However what is absolutely striking is the process which led to the progressive and incremental setting up of a constitution for Europe. This process took time and developed step by step. Above all, the process was fully driven by the 15 judges of the ECJ. No democratic control. Not even any political involvement.

I THE ORIGINAL LACK OF CONSTITUTIONAL DIMENSION

A - What is a Constitution ?

What are the elements that can be used to recognise the constitutional dimension of a new legal order.

1 - A constitution is the formal expression of sovereignty

ANTHONY GIDDENS, 1985, The Nation-State and Violence

· During the 18^th century a link was developed between the concept of sovereignty and that of Nation-State.

CASTIGLIONE, 1996, The Political Theory of the Constitutions.

· Constitution have a constitutive nature in that they give 'origin to a political entity and sanction its nature and primary ends'.

· Internally sovereignty was therefore formally vested in the national constitutions.

2 - Principles delineating competencies of the central and local authorities

doctrine of Supremacy of EC law

doctrine of pre-emption

subsidiarity principle

3 - The authority of a Constitution is dependent upon the granting to a central body a set of exclusive powers.

HINSLEY, 1986, Sovereignty.

Sovereignty has a twofold nature - internal and external to the polity at stake.

1) Internal feature : the concept of sovereignty involves the belief in an absolute power within the community

2) External feature : applied to international relations, its function is to express the antithesis of the internal feature : above the collection of communities, no supreme authority exists.

· For, without such a central body (normally a constitutional court or council) there is a anger of the polity descending into institutional chaos.

· The powers granted to a central authority would include :

1) to give rulings on the constitution which are accepted as 'final' (cannot be challenge without an amendment to the constitution). This final authority to rule on the legal status of the constitution is known in German as the Kompetenz-Kompetenz.

2) a monopoly over the review of compatibility of legislative acts with the constitution

4 - In the western liberal tradition, constitutions usually include fundamental rights

5 - Principles delineating judicial, legislative and executive functions

6 - Even more fundamentally, a constitution is based on a demos (Weiler)

B -Establishing a new legal between states : Two procedures (Mastery of the States and Constitutional fusion)

WEILER & HALTERN, in The Autonomy of the Community Legal Order - Through the Looking Glass, distinguish two procedures by which different states can bring about a new legal order.

1 - The standard method : States are Masters of the Treaties ...

The first one can be said to be 'the normal way of public international law' or 'mastery of the state'. In this procedure, the High Contracting Parties negotiate, sign and subsequently ratify the constituent Treaties. The States, like the Olympian Gods, would remain ultimate Masters of their creation.

This mastery of the States over their offspring does not prevent acts of self-limitation by which they decide to give them the power to issue binding decisions. Yet, they would amend a Treaty in violation of its specific amendment procedures. The states are the masters of the Treaties as well as of the organisations.

E.G : the European Coal and Steel Community, The EEC and Euratom.

2 - ... and of the organisations (doctrine of conferred powers)

It is important to note that this model is related to the standard conception of public international law whereby the created bodies are subject to the doctrine of conferred powers. This doctrine asserts that international organisations only have those legal rights and duties that are specified or implicit in their constituent documents. Therefore this doctrine :

1) sets out material limits as to what the organisation can do

2) posits hierarchical relations between the States and the organisation.

3 - The second method : constitutional fusion. New level of legitimacy.

The second manner is a 'constitutional fusion'. Can take place either by treaty or by constitutional convention. The constitutive act may extinguish the separate existence of the constituent units. As a result the subjects of such a new legal order (e.g. federal system) are not only its constituent states but also its common citizenry.

It creates a different level of legitimacy, one where legitimacy does not come only from the consent of the citizens.

C - The EC Treaty originally correspond to the first model (Mastery of the States) and have none of the four aforementioned features

Both the format of the EC Treaties and the process leading to their formation suggest that their were originally conceived to correspond to the classic model of international public law.

1 - The process of formation of the Treaties

· The process: the drafting of the Treaty was carried out by diplomats and foreign offices rather than legislatures.

· The processes of ratification were left up to the independent constitutional process of each MS.

2 - Their content

· In the Treaties themselves there is no express provision stating that they are to have an organic or 'constitutional character'.

· The Treaties look very different from the national constitutions which are developed in the Western liberal tradition :

1) No attempt to set out, in a universal manner, a catalogue of civil and political rights.

2) No delimitation of judicial, legislative and executive functions

3) No express constitutive principles delineating national and Community competencies.

3 - Therefore it was originally assume that the Treaties were

· Indeed in the early years, it was assumed that the Communities correspond to the traditional models of international organisations.

· In the 1950s the Ms twice sought to amend the ECSC informally, abandoning the formal legal amendment procedure.

· In 1962 a House of Lords Committee asked to report to the Lord Chancellor on the legal implications of British membership stated :

" The transfer of legislative power does not of course mean a surrender of any

part of the ultimate sovereignty of Parliament"

II The Development of Constitutionalism (Features 1, 2, 3)

A - Feature 1 : Acknowledging of a transfer of sovereignty : Van Gend en Loos (5^thFebruary 1963)

1 - The facts

Van Gend en Loos had imported a chemical from Germany into the Netherlands. The Dutch customs had increased the import duty payable. Van Gend en Loos argued this was in breach of Article 12 EC, which prohibited, inter alia, increases in the custom duties between Member States.

The Dutch tax court asked the ECJ whether Article 12 of EEC Treaty has direct application within the territory of a MS, in other words whether nationals of such State can on the basis of the Article 12 lay claim to individual rights.

The Court said 'yes' establishing by the same token the doctrine of direct effect.

2 - The reasoning

There is no rule of international law which requires MS to allow treaty provisions to be invoked before domestic courts. In order to affirm direct effect, the ECJ had therefore to distinguish the ECC Treaty from all other international treaties.

" The objective if the ECC Treaty, which is to establish a Common Market (...) implies that this Treaty is more than an agreement which merely creates mutual obligations (...). This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples ".

"In addition the task assigned to the Court under Article 177 (the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals) confirm that the States have acknowledged that Community law has an authority which can be invoked by their national before those courts and tribunals".

The conclusion to be drawn from this is that Community law constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only MS but also their nationals.

" Independently of the legislation of MS, Community law confers upon MS nationals rights which become part of their legal heritage ".

3 - The meaning

The key to understand the importance of this judgement lies in the phrase : " new legal order of international law for the benefice of which the states have limited their sovereign rights".

Stated more simply, the Court has claimed s sovereign authority for the EEC Treaty. Such a claim breaks from the doctrine of conferred powers, for it no longer sees the basis of Community power as derived from MS but as autonomous and original.

As we saw with CASTIGLIONE, sovereignty is linked with constitution. Therefore, the assertion of sovereignty in Van Gend en Loos is essentially a claim that the Treaty has a constitutional character.

4 - Confirmation by the ECJ : Opinion 1/91

This constitutional character of the EEC Treaty was clearly acknowledged in Opinion 1/91 : "The EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law".

Aggressive claim that, at least within the area of its jurisdiction, ultimate political authority lies with the Communities.

Thus began the process of constitutionalisation which was to have both tremendous symbolic, formal and socio-political implications for the Communities.

B - Feature 2 : Acknowledging the Supremacy of EC law : Costa v ENEL (1964)

1 - The Facts and the judgement

In 1962 an Italian law was passed nationalising the electricity production and distribution industries. Costa, a shareholder of Edison Volta, a company affected by the nationalisation, refused to pay his electricity bill, claiming the nationalisation breached EC law.

The matter was referred to the Court of Justice, by the national court. The Italian government claimed the Court had no jurisdiction to rule on the matter. It said that the request was 'absolutely inadmissible', inasmuch as a national court is obliged to apply national law. The Curt held that ' the law stemming from the Treaty, which an independent source of law, cannot be overridden by domestic legal provisions'. It therefore established the doctrine of precedence of Community law.

2 - The Court's reasoning

In justifying its judgement, the ECJ appealed to several legal basis and reasoning.

1) The EEC has created its own legal system which is an integral part of the legal system of the MS. Its legal capacity is based upon a permanent limitation of sovereignty and a transfer of power from the MS to the Community.

2) Precedence of national provision would jeopardise the realisation of Article 5

3) ... as well as the realisation of Article 7 which prohibits discrimination

4) Precedence of Community law is confirmed by Article 189, since it is necessarily assumed in the definition of a Regulation

3 - The meaning

A hierarchy of norms was thus established between Community law and national law. Very important step towards a properly defined constitution, insofar as the doctrine of Precedence organises the relationship between the legal systems integrated within the Community.

C - Redistributing powers among national courts

1 - The repartition of powers and duties among national courts

In many national legal systems, a division of duties is made between national courts : only administrative or constitutional courts can strike down administrative or legislative acts respectively. (These courts have the duty of controlling the legislative and the executive).

The consequence of such ad division is that certain courts (most courts) would not be able to apply EC law, if it meant disapplying national executive or legislative acts.

This problem could only be resolved if EC law expanded the jurisdiction of such courts by conferring such power upon them.

2 - The consequences of the Supremacy Doctrine

A direct consequence of the doctrine of Supremacy is that lower national courts can be required to disapply the national legislation, a power up until that time only enjoyed by the Constitutional Courts or Councils of MS.

WEILER, The Community system: the dual character of Supranationalism. The effect of this would be that the doctrine of supremacy would no longer be sue merely to regulate conflicts, but would instead be replacing national law with EC law.

D - Feature 2' : regulating the distribution of competencies between different levels of authority

1 - Doctrine of Pre-emption : function

The doctrine of Supremacy protects Community competence by holding that were there is a conflict between EC law and national law, EC law must prevail. The doctrine of supremacy is dependant itself on a mechanism which will determine when there is an actual or potential conflict.

The Doctrine of Pre-emption is implicitly meant to trace a boundary between the powers of the Community and those of the MS. Yet, its actual form is more about determining whether or not the exercise by MS of their powers is contrary to rules adopted by the Community.

2 - Two concurrent Court's approaches : a federalist and pragmatic

WAELBROECK, 1982, The Emergent Doctrine of Community Pre-emption.

Thesis : The Court is influenced by two conflicting approaches to the pre-emption problem.

The 'conceptualist-federalist' approach : Under the first approach the Community competence is construed as being necessarily exclusive. The essential problem is to define the scope of the Community competence.

The 'pragmatic' approach : the Community competence is not necessarily exclusive. The MS retain a concurrent power to regulate matters falling within the reach of the Community's power - as long as in doing so they do not create a conflict with the rules adopted by the Community.

Depending on the field at stake the Doctrine of Pre-emption can take four forms :

- The doctrine of exclusive power Federalist approach

- The doctrine of 'field of occupation'

- The Minimum harmonisation Pragmatic approach

- The duty of sincere co-operation under Article 5 Expansion of concurrent

competence

We are witnessing an expansion in concurrent competence, as a result of Treaty amendments, change in the political culture and contributions of the ECJ.

3 - The Doctrine of exclusive competence

The Community has 'exclusive competence' in the fields of common commercial policy, common custom tariff and fisheries. However, this doctrine of exclusivity is a myth.

Indeed, a strict doctrine of exclusive competence leads to the emergence of regulatory gaps. In such a situation, a MS is bared from regulating in a particular area, but there is no substitute Community legislation in place.

To prevent this, in all the fields where Community has exclusive powers national measures are permitted, provided prior authorisation has been given. Exclusivity is a myth : national and Community measures exist side-by-side in areas supposed to be the sole domain of the Community legislator.

4 - The doctrine of 'fields of occupation'

The most common form of pre-emption is that of 'field of occupation. Where Community legislation occupies a field, MS are prohibited from enacting legislation within that field.

Within the context of the Single Market, this form of legislation is particularly important. Otherwise the maintenance of differing national regimes would lead to commercial uncertainties, distortion of competition and restriction to trade.

WEATHERILL, 1994, Beyond Pre-emption

Pre-emption has major advantages (commercial certainty) and flaws. 1) it is difficult to achieve, given the difficulty of replacing 12 regimes with one 2) stifling effect on national initiatives. Discourage innovation.

Þ to offset this effect, Article 100 A EC (possibility of derogation). Invoked very rarely (only twice - Denmark and UK)

Þ Amsterdam introduced more possibilities of derogation, especially on the ground of new scientific evidences (to protect natural and working environments).

5 - The Minimum harmonisation

The doctrine of field of occupation is tailored very much for the needs of the single market. In other fields, EC competencies do not require such a monolithic regime. It would be perverse for example if EC environmental policy prevented MS from maintaining higher standards. It could therefore :

1) level down some national policies

2) prevent national experimentation which is the key to evolution

The Edinburgh European Council knocked the doctrine of field occupation off its pedestal. It can no longer said to be central. Many measures will now explicitly state they are minimum harmonisation standards.

It should be emphasised that the Court itself played an important role in the move towards a less integrationist and strict pre-emption doctrine. In some cases, the Court refused to disapply national legislation.

6 - The duty of sincere co-operation under Article 5

Relation in the case of concurrent competencies are structured by the duty of co-operation contained in Article 5 EC.

A good example are international agreements (States and Community share competence).

WEATHERILL, 1994, Beyond Pre-emption.

The Court's shaping of Article 5 in to a general constitutional principle, far beyond its explicit wording, is emblematic of the Court's evolution into a general constitutional court.

Justification for the Court's activism lies in the overall aims of the Treaty - the constitutional rule of law.

7 - The evasion from Pre-emption

The doctrine of pre-emption whatever form it takes (exclusive competence, field of occupation, minimum harmonisation, duty of co-operation) has a central feature : it subjects MS - Community relations to the jurisdiction of the ECJ.

Increasingly, since the TEU, new patterns of integration are being created which have no pre-emptive effect and therefore exclude the Court.

· Soft law : a considerable move away from pre-emption has occurred through the expansion of soft law (with the TEU : education, culture, health, and consumer protection). Soft law cannot be invoked before courts.

· CFSP, JHA: a full move away from pre-emption has been made in the other two pillar of the Union - CFSO and JHA (even though Amsterdam transfer Immigration Policy from the third to the first pillar and allow the Court to have competence to rule on framework decisions adopted under JHA).

8 - The principle of subsidiarity

E - Feature 3 : The development of the Court as an Incipient Constitutional Court

The constitutionalisation has immediate institutional implications for the ECJ. The authority of a written constitution is dependent upon the granting to some central body, normally a constitutional court or council, certain exclusive formal powers.

The logic of constitutionalising the EC Treaty was that the Court would have to claim these power for itself.

1 - The exclusive jurisdiction over the Treaty (Kompetenz-Kompetenz) : Opinion 1/91 on the Draft Treaty on an European Economic Area

This final authority was already implicit in the Court's claim for the sovereign qualities of the EC legal order. According to CHALMERS, the Court did not have this authority. That is why it did not claim it clearly in the first place. However, the Court became very explicit in Opinion 1/91 on the Draft Treaty on an European Economic Area.

In 1991 a Treaty was signed between the EC and the EFTA, setting up a European Economic Area (EEA). The thrust of the agreement was the extension of the EC's acquis communautaires on trade and competition law to the EFTA States. The agreement included the establishment of an EEA Court to settle disputes between the contracting parties. An opinion was sought under Article 228 EC as to whether the Agreement was compatible with EC law.

"The jurisdiction conferred on the EEA Court (...) is likely to affect the allocation of responsibilities defined in the Treaties and, hence, the autonomy of the Community legal order, respect for which must be assured by the ECJ pursuant to Article 164 EEC ".

" This exclusive jurisdiction of the court is confirmed by Article 219 EEC, under which MS undertake no to submit a dispute concerning the interpretation or application of the Treaty to any method of settlement other than those provided in the Treaty ".

2 - The power to give rulings on the constitution, accepted as authoritative and binding by other courts (i.e. accepted as final)

The second hallmark of a constitutional court (the capacity to make rulings on the constitution accepted as final and binding by other courts) has proved more difficult for the Court to establish.

Indeed, the ECJ's dependence on national courts to enforce Community law has rendered it unwilling to adopt too hierarchical an attitude vis-à-vis national courts.

· Binding power on referring courts

Article 177 EC entitles or in certain cases obliges, national courts to refer questions of EC law to the Court. The latter commented on the status of the answer :

" A judgement in which the Court gives a preliminary ruling on the interpretation or validity of an act (...) is binding on the national courts for the purposes of the decision to be given by it in the main proceedings"

However, in Da Costa (1963) the Court recognised the power of national courts to refer matters back in which the Court had already given a ruling (e.g. Da Costa 1963, Foglia v Novello, 1981). More problematic has been the question of the effect of Court judgements on other courts.

· Implicit use of a Doctrine of precedent

The Court has no formal doctrine of precedent. If the judgements of the Court had only a declaratory effect on the state of EC law, they would have no predictive value whatsoever.

This is not the case. The Court follow and cite its previous law case as courts which have a formal system of precedent.

· Binding power on other national courts (the erga omnes effect)

The erga omnes effects of Court judgements (that is to say the extent to which they bind national courts other than the referring court) are less clear. Whilst some Advocates General have asserted that all court rulings have general erga omnes effects, other have asserted they do not.

The Court, meanwhile, has not ruled generally upon this matter. It has ruled however on the erga omnes effects of judgements which declare an act of a Community institution (e.g. Regulation, Directive, Decision) to be invalid (1981).

3 - A monopoly of review over the compatibility of legislative acts with the constitution

In 1987 the Court rule that only itself could declare acts of the EC Institutions to be illegal or invalid. This established a doctrine of monopoly of review over EC acts.

This power of review would normally be exercised by administrative or constitutional courts within domestic jurisdictions.

III Fundamental Rights (Feature 4)

A - The Incorporation of Fundamental Rights

1 - The Problem

The EC Treaty does not resemble those Western Constitutions developed in the republican tradition. These establish a series of reciprocal claims between the State and citizen which take the form of civil and political rights.

WEILER, 1996, European Neo-constitutionalism : in search of Foundations for the European Constitutional Order.

The EC Treaty contains a number of economic rights but only very limited civil, political and social rights. As WEILER has observed the constitutionalisation of the EC Treaty has very limited emancipating effect. It is in essence the 'granting of a constitution without constitutionalism'.

HARDING, 1992, Who goes to Court in Europe ?

Harding shows that an overwhelming majority of action against the Community are brought by corporations and that the litigation typically involves licences and other economic interests. This raises the question as to what sort of rights EC law really protects.

2 - Initial position of the Court

This problem was initially NOT acknowledged by the Court, for it was initially extremely reticent about developing fundamental rights which were not explicitly mentioned in the EC Treaty.

In a series of early judgements it refused to countenance arguments based on the alleged breach by the Community of some rights protected in national constitutions (e.g. cases in 1959, 1960 and 1966)

3 -The turning point : Stauder v City of Ulm, 1969

The Commission had adopted a Decision designed to reduce Community butter stocks by allowing butter to be sold at a reduced price to people who were on certain social welfare schemes. To claim the butter the beneficiaries had to produce a coupon which in the German and the Dutch version had to indicate their name.

Stauder, a German national, challenged the requirement that his name had to be on the coupon, claiming that it violated his right to respect for privacy. The question was referred to the Court, which states that the more liberal French or Italian version should be adopted.

"The fundamental human rights are enshrined in the general principles of Community law and protected by the Court ".

4 - The rational for the Stauder judgement : assuring the Supremacy of EC law

· The absence of individual guarantee in EC law was threatening the very supremacy of EC law, so boldly asserted by the ECJ. For if EC law did not offer similar safeguards of fundamental liberties to those fund in national constitutions, it would lead to situations where national courts would be given the choice between either refusing to apply EC law or forsaking fundamental liberties.

SCHEUNER, 1975, Fundamental Rights in European Community law.

The development of guarantees in EC law to protect fundamental rights is a quid pro quo for acceptance of the precedence of EC law over even national constitutions. The key factor was therefore the threat to the supremacy of Community law.

· In the case International HandelsGesellschaft (1970), the Court, having stated that fundamental rights were protected by it, went on to claim that no fundamental right had been violated (by the requirement of giving a deposit to obtain a licence to export maize) -contrary to the German court which referred the matter to the ECJ.

The matter was taken before the German Constitutional Court which stated that it would disapply EC law if it violated fundamental rights protected in the German constitution. The Italian Constitutional Court made a similar assertion.

Þ this meant that EC law could be reviewed by national courts for its incompatibility with rights protected by national constitutions.

Þ Advocate General WARNER : there was therefore a strong incentive for the ECJ to adopt a 'maximalist approach' to fundamental rights, in order to ensure Supremacy of EC law.

· An easy way to enforce a 'maximalist approach' was to 'draw inspiration from constitutional traditions common to the MS'.

B - The Application of Fundamental Rights to Community acts

The development of the doctrine of fundamental rights was firstly concerned with acts of Community institutions.

The Court had still to explain what vision of humanity and which central values provided the inspiration for its development.

1 - International HandelsGesellschaft, 1970 : the Court is bound inspiration from constitutional traditions of MS (reaffirmed in Hauer, 1974)

It is in Hauer that this doctrine is the most clearly expressed

Miss Hauer was refused authorisation to plant vines on her land by the local authorities, on the ground of a 1976 Regulation which imposed a three year prohibition on the planting of new vines.

She challenged the decision before a German administrative court, considering that the Regulation was violating her right to property and to pursue trade (both protected under the German constitution). The Court held :

" Fundamental rights form an integral part of the general principles of the law (...) In safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the MS, so that measures which are incompatible with the fundamental rights recognised by the Constitutions oft hose States are unacceptable in the Community ".

2 - Nold v Commission, 1974 : inspiration from International Treaties (especially ECHR)

In this case, the source of inspiration was extended to include 'international treaties for the protection of Human Rights on which the MS have collaborated or of which they are signatories.

3 - The maximalist approach of the Court : Orkem v Commission, 1991

The Court developed a right which was not present in either national constitutional traditions or international human rights Treaties, namely a protection against self-incrimination in competition proceedings.

4 - The controversy as to what kind of rights and interests are actually protected

There has been a heated debate surrounding the ethical values of the Court. The Principal criticism has been that the doctrine of fundamental rights has been used to protect not just civil liberties but also economic rights, such as the right to trade and to own property.

PHELAN, Right to life of the unborn v Promotion of trade in Services, 1992

Phelan has argued that by market concerns being placed on an equal plane to civil liberties, the latter are diminished. They no longer enjoy the privileged status over all other interests. He predicts that there will be circumstances where market freedoms will be balanced against civil liberties.

COPPELL and O'NEIL, The European Court of Justice : taking rights seriously, 1992

Went further and argued that the ECJ never took fundamental rights seriously. They were only used instrumentally by the Court to temper resistance to market integration. Wherever a conflict has arisen between the pressure of market integration and civil liberties, the former has triumphed.

WEILER and Lockhart, 'Taking Rights Seriously' Seriously, 1992

There is little evidence to support Coppell's thesis. However it is right that market values should not be placed on the same pedestal as civil values.

WARD, 1993, Making sense of integration : A Philosophy of Law for the European Community

Ward argues that debate about the ethics of the market is misplaced within this context and misunderstand the nature of legal reasoning. He takes the defence of the ECJ in the Grogan case. Court must operate within an hermeneutic straightjacket.

"The task of hermeneutics, like that of the judge, is to emphasise a unit of reasoning, or integrity of reasoning. The constraint is the demand of integrity or 'fidelity to the text', interpreting and reasoning in complete faith with the 'purpose' of the text , as understood in the immediate historical circumstances".

"In the Grogan case (...) the ECJ gave the ruling which the judicial order of the Community demanded. If there are unpalatable implications, then it is for politicians to rectify the problem".

"To suggest that the right of life, or any other ethical position, could be a 'legal norm', is to completely misunderstand the nature of what a rights-based philosophy of law is. Moral and legal norms are rationally quite distinct".

C - The Application of Fundamental Rights MS actions

What we have seen so far was the development of the doctrine of Fundamental Rights as applied to Community institutions. If the development of this doctrine was confined to this mere area, then there would have been little to concern MS governments directly.

The position was radically altered however if the doctrines was extended to cover MS action. The autonomy of national governments and legislatures would be reduced.

1 - Initial reticence of the Court : Cinéthèque v Fédération Nationale des Cinémas Français, 1985

Unsurprisingly the Court was initially reticent about holding MS action to be bound by fundamental rights. The matter was only addressed directly for the first time on Cinéthèque.

A French law provided that no film shown in cinemas could be sold or hired in video for twelve months after it has been released. Cinéthèque, a video vendor, alleged that the French law was contrary to Article 30 EC, the Free movement of goods provision, and also constituted a unjustifiable restriction on freedom of expression.

The Court considered that it did not have jurisdiction to assess the compatibility of MS action with the European Convention on Human Rights.

2 - MS bound by FR, when they act within the field of EC law : ERT v Dimitiki, (DEP) 1994

ERT, a Greek radio and television company, enjoyed exclusive broadcasting rights under Greek statute. It sought an injunction against an information company (DEP). DEP argued that ERT's exclusive rights infringed the free movement and competition provisions of EC and Article 10 of the ECHR relating to freedom of expression.

The Court in ERT recognised that MS were bound by FR whenever they acted within the field of application of EC law. By contrast, where they act outside the field of application of EC law, the States continue not to be bound by the EC doctrine of FR.

3 - Consequence : the ECJ intrudes upon a number of civil and political choices. Reticence of the ECJ.

Bostock and Wachauf showed that the ECJ tries to avoid intruding into national autonomy. There is a reluctance on the part of the Court to provide rigorous criteria for the review by national courts of domestic action for its compatibility with EC fundamental rights.

4 - Problems related to the reticence

· This has spillover effects for the review actions of the EC institutions. For it is inconceivable that one regime of FR can apply to national law authorities acting within the scope of EC law and another one to the EC institutions.

· WEILER Respect for FR would clearly form part a civilian identity.

In this line, Advocate General GULMANN considered that the status of European Citizen could be invoked to oppose any violation of FR. The Court did not take up this suggestion.

5 - The Treaty of Amsterdam

· In Maastricht, FR are referred to in Article F(2) TEU, a non-justiciable principle.

· Amsterdam : extension of the non-discrimination principle to cover not only discrimination on nationality, but also on the basis of " sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation " (Article 13 EC)

· Amsterdam : mechanisms to enforce Article F(2) TEU. Respect for these principles is now a pre-condition to membership of the EU Þ Article 49 TEU. It formalised the existing practice.

· Article 7 TEU : sanctions. The procedure can be initiated by the Commission, requires the assent of the Parliament and a unanimous finding by the Heads of Government (minus the State accused).

Conclusion : The Union has set up itself as guarantor of a series of civil values. It can no longer be denied that it has a civil identity. FR not only preserve individual autonomy but also provide a connection and a bond between the individual and the polity.

IV The role of the Court of Justice : the debate surrounding Judicial Activism

A - Judicial Activism : F. MANCINI

MANCINI, The making of a Constitution for Europe, 1989

C.F. card (fiche)

Michel Debré: "J'accuse la Court de Justice de mégalomanie maladive".

No doubt as to the degree of activism the Court displayed in fostering the integration of the EU.

Critics : - judges are incompetent law makers

- their intervention is incompatible with the problem of certainty and predictability

- now, we have the EP for laws

- MS comply with EC law

Þ no reason whatsoever why the Court should keep its activism going

Þ necessity of a retreat and self restriction (C.F. Cinéthèque v France Þ the ECJ has no power to review the Compatibility of laws which fall within the area of the national legislator)

B - The Court has overstepped the functions of a court : HARTLEY, 1996

HARTLEY, The European Court of Justice, Judicial objectivity and Constitution of the EU(1996). HARTLEY distinguishes three types of ruling :

1) ruling within the interpretation of the text

2) ruling outside the text, but not contrary to the text

3) ruling contradicting the text (e.g. Van Gend en Loos)

C - The Court does not pay regard to its surrounding social context : RASMUSSEN, 1987

RASMUSSEN, On Law and Policy in the ECJ, 1987

The integrationist zeal of the ECJ has prevented the latter from taking into account the reaction of the society at large. The Court legitimacy does not rest simply on procedural grounds. It will not enjoy support if it constantly reaches decisions which are unacceptable to society at large.

D - The Statist view of the Court (Realist approach) GARRET

1 - The nature of the Court

GARRET, International Co-operation and institutional choices, 1992

1) Such an approach perceive the national governments to be the principal actors in international relations

2) The EC is an international organisation, product of an aggregation of MS preferences.

The EC legal system plays a vital role in enabling the EC to meet these preferences in two ways :

3) it solves the 'prisoner dilemma' whereby there are no incentive to comply with their obligations unless they can be sure that there are guarantees that other MS will comply with their own obligations

4) it solves the 'incomplete contract problem'. As it would entail considerable administrative costs to MS to detail out exhaustively (if it were possible !) the 'rules of the game', it is more efficient to sketch pout a broad schema and to delegate to the Court the task of 'filling in' the rest.

2 - The behaviour of the Court

GARRET's analysis is sophisticated.

1) In the short run, the Court might reject MS argument, in particular cases. This occur when the benefits of a decision (e.g. greater trade liberalisation) may outweigh immediate costs (e.g. the opening up to competition of a protected domestic industry). Still, it may be in the interest of the government to argue vigorously in favour of the latter. As we see, in fact, the Court's decision is always in favour of the national interest. But for domestic political reason the government is forced to argue against the Court (e.g. Cassis de Dijon)

2) In the long run however, the Court is captive of the national governments. If it were to give judgements than run in counter to their preference, it would encounter difficulties of implementation and even legitimacy.

3 - The flaws of GARRET's argument

1) The notion of national government preference is left so vague that it has almost no predictive value

2) GARRET takes a rather monolithic view of society. Research now emphasises the role of non-governmental actors

3) Understates the autonomy of law

V The limits of the European Constitutionalism

A - Constitutionalism has potentially integrative features (WALKER, 1996) -Constitutional Patriotism

Whilst ALLOT considers that the solution lies in the revival of the European ideas, others argue that the discourse of constitutionalism has a sufficient internal appeal and integrative potential.

WALKER, European Constitutionalism and European Integration, 1996

It is imperative not to underestimate the potential of constitutionalism. Sometimes the constitution and its associated belief system have a much more central role in the legitimisation of the underlying socio-political order.

As regard Germany, the absence of nationalism as an acceptable candidate to mobilise support for the new state and the dark legacy of totalitarianism helped to foster a new 'constitutional patriotism'. This new patriotism involved the treatment of the constitution itself as an object of allegiance and a rallying point.

The United States provide another example of this 'constitutional patriotism'. The venerable status and its central place in the development and legitimisation of the multi-ethnic society as an integrated society had made the constitution even resistant to rational public critique and transparent reform.

In a nutshell, constitutional belief can provide the basis of a legitimised socio-political order.

B - However, there is still a crisis of European constitutionalism

1 - The absence of a transcendent social framework (ALLOT 1991, and SHAW 1996)

ALLOT, The European Community is not the true European Community, 1991

The absence of a transcendent social framework for the Community has generated a cascade of consequences for the constitutional development of the EC over forty years.

Þ The EC system has become to be equated with the idea of 'Europe' for many people

Þ It has meant that the EC has seemed to have no reason for existing other than the continued willing of the states that formed it.

Þ The EC has tended to revert to a pre-modern democratic model of individualism aggregated

Þ Politicians and civil servant take over negotiation of new laws as if they were negotiating treaties

Þ The process of EC legislation has thereby managed to detach itself from the national political accountability.

ALLOT, The Crisis of European Constitutionalism, 1997

Allot argues there is a crisis of European constitutionalism which can only be solved at the level of consciousness. The first step must be the reintegration of the European Unification into the historical consciousness of the people of Europe. This will require both :

1) the bringing about of a collective consciousness

2) and a serious public debate about the idea of Europe

2 - The disintegrative features of constitutionalism

SHAW, European Union Legal Studies in Crisis ? Towards a New Dynamics, 1996

SHAW has argued that law reflects rather than reconciles deep-seated political trends and tension. The integrative centripetal dynamics of the Community legal order is matched by an equally strong disintegrative, centrifugal dynamics.

Even WALKER acknowledges that whilst it is possible to trace shared traditions concerning the structural features of constitutionalism within the EU (norms concerning decision-making processes, and relationship between different bodies) there is no such tradition surrounding the substantive features (namely goals and values) Þ it is difficult for the EU to develop such a Bill of Rights.

C - Towards a reconfiguration of European Constitutionalism

It is increasingly being argued that the sovereign qualities of EC law cannot simply entail a subordination of national legal order. The MS still remain masters of the Treaties, insofar as it is they who can alter the existing settlements.

1 - Detach Sovereignty from Statehood. Interaction better than Hierarchy. MACCORMICK, 1996

MACCORMICK, Liberalism, Nationalism and the Post-Sovereignty State, 1996

MACCORMICK has led the debate surrounding the reconfiguration of constitutionalism. According to him, it is perfectly possible to detach sovereignty from Statehood. The relationship between the EC and the national legal systems need not to be hierarchical, but a pluralistic system of mutual interaction.

" The most appropriate analysis of the relations of legal systems is pluralistic rather than monistic, and interactive rather than hierarchical (...) The interpretative power of the highest decision-making authorities of the different systems must be, as to each system, ultimate". (i.e. ECJ is the highest authority as far as EC law goes, and National Constitutional Courts as far as national legal system go)

"Acceptance of a pluralistic conception of legal systems entails acknowledging that not all legal problems can be solved legally".

" Resolving such problems, or, more wisely still, avoiding their occurrence is a matter of co-operation and circumspection from the ECJ and National Courts. If despite this, conflicts come into being there will necessarily have to be some political action to produce a solution".

MACCORMICK, Beyond the Sovereign State, 119?

The right definition of sovereign states is "the exercise of power is not subject to external superior power. Therefore, according to this definition, the EU does not contain sovereign States any longer. Not all power are exercised internally. We are already beyond the sovereign state.

MACCORMICK sees three great historic opportunities :

- the way forward (EC = USA)

- the way back (the old polycentric sovereignties of Europe, but ended up in two World Wars)

- the sideways : our lives would be anchored in a variety of institutional systems.

2 - Redefining the Community interest. JOERGES 1996, and SCHARPF 1994

JOERGES, Taking law seriously : On Political Science and the Role of Law in the Process of European Integration, 1996

JOERGES argues that Community interests requires MS to take account of their neighbours. Practically this means that national legislatures, executive and judges should take into account the interests and concerns of 'foreigners'.

SCHARPF, Community and Autonomy : Multilevel Policy-Making in the EU, 1994

If supremacy law is to be genuinely pluralistic the Community interest it represents must be a bipolar one. That is to say that Community interest must be a synthetic concept which carries an assessment of the relative weight if both the communal and the autonomous interests at stake.

BACK TO PUBLIC POLICY ANALYSIS