Constitutionalisation

Constitutional Law of the EU

Pieter-Augustijn Van Malleghem

19/9/2022
Overview

1. Course Overview

2. Constitutionalising the Treaties

2.1 Van Gend & Loos
2.2 Costa v ENEL

3. Constitutionalisation?

4. What’s In A Name?
1. Course Overview
Course Overview: Method

Case Law: Key decisions of

Court of Justice of the European Union
Highest courts of Member States (eg GFCC)
Theory
EU Con Law: Less a “branch” of EU law than a theoretical
project
Course Overview: Philosophy

Constitutional Law of the EU as “lawfare”

Law is part and parcel of ideological struggle, eg
Case Law:
“Realist” methodology: indeterminacy of legal argument
Perspective of the alternative decision that could have
been
Theory:
EU Con Law as theoretical project(s) in competition with
others
Sense of stakes involved in each of these projects
Course Overview: Content

Constitutionalism 1.0: Division of Powers

Vertical allocation of powers — Member States and EU
Horizontal allocation of powers — between EU
institutions
Constitutionalism 2.0: Rights
Economic constitutionalism
Human Rights
Constitutionalism 3.0: Pluralism
GFCC Lisbon, theoretical approaches to legal pluralism
Pragmatic approaches to legal pluralism, national
identity, citizenship
Rule of Law Crisis, COVID-19, Ukraine?
Course Overview: Materials
Slides
Class materials
Case law
Scholarly work
Reference Manuals
P. Craig, G. De Búrca, EU Law, Oxford University Press,
2020
K. Lenaerts and P. Van Nuffel, European Union Law,
Oxford University Press, 2021
A. Rosas, L. Armati, EU Constitutional Law: An
Introduction, Hart Publishing, 2018
R. Schütze, European Constitutional Law, Cambridge
University Press, 2016
A. Somek, The Cosmopolitan Constitution, Oxford
University Press, 2014

Not required, useful for writing a research paper

Course Overview: Evaluation

Reaction paper: Personal view of one of the class

readings
Initially: in function of your (personal, political, legal, ...)
understanding of the EU
As class develops, in function of themes of the class
Name, title of reaction, 1/2 to 3/4 of a page, Times New
Roman 12pt, standard margins
Three reaction papers [4,5/20]
For a total of four readings
Deadlines during the semester
Graded on 1,5 point each (or 1,5 point for your 3 best
papers)
In lieu of exam: 8 page paper on one of the class themes
Subject to be agreed upon (by December 5th)
Deadline: January 26th, 4PM
English?
 2. Constitutionalising the Treaties

2.1 Van Gend & Loos

2.2 Costa v ENEL
A Vision for a Federalized Europe?

Schuman Declaration, 9 May 1950

It proposes that Franco-German production of coal and
steel as a whole be placed under a common High Authority,
within the framework of an organization open to the
participation of the other countries of Europe. The pooling
of coal and steel production should immediately provide for
the setting up of common foundations for economic
development as a first step in the federation of Europe, and
will change the destinies of those regions which have long
been devoted to the manufacture of munitions of war, of
which they have been the most constant victims.
Political
Functionalist
...
NB: Art. 169 & 170: infringement ; Art. 177: preliminary ruling
Preliminary Reference

Whether Article 12. of the EEC Treaty has direct application within the
territory of a Member State, in other words, whether nationals of such a
State can, on the basis of the Article in question, lay claim to individual
rights which the courts must protect?

Art. 12 EECT, standstill clause

MEMBER STATES SHALL REFRAIN FROM INTRODUCING BETWEEN

THEMSELVES ANY NEW CUSTOMS DUTIES ON IMPORTS OR EXPORTS OR
ANY CHARGES HAVING EQUIVALENT EFFECT , AND FROM INCREASING
THOSE WHICH THEY ALREADY APPLY IN THEIR TRADE WITH EACH OTHER .
Art. 65 Dutch Constitution

provisions of agreements which, according to their terms, can be binding

on anyone shall have such binding force after having been published

Art. 66 Dutch Constitution

legislation in force within the kingdom shall not apply if this application
would be incompatible with provisions of agreements which are binding
upon anyone and which have been entered into either before or after the
enactment of such legislation
Van Gend & Loos: Analysis

Parties: tiny.cc/vangend1
AG: tiny.cc/vangend2
Court: tiny.cc/vangend3
Van Gend & Loos: Analysis
For
Procedure
Interpretation of the Treaty (→
CJEU has jurisdiction)
Preliminary Ruling complements
Infringement Action
Vigilant supervision of individual
rights
Effective & uniform application
needed
Against
Interpretation of national consti-
tutional law (→ CJEU has no juris-
diction)
No compatibility review of na-
tional law (→ infringement ac-
tions)
Irrelevant (matter of national law!)
Limits infringement actions
Infringement actions: delay to re-
spond + ”necessary measures”
Legal uncertainty (because com-
plexity + no primacy)
Lack of uniformity (because no pri-
macy)
Van Gend & Loos: Analysis
For
Substance
Method: Spirit, general scheme
and wording of Treaties
New legal order (“autonomy”):
Objective (common market)
Preamble: governments &
peoples
Institutions with sovereign
rights
European Parliament
Authority of European law
invoked before national
court
Against
Method: System of the Treaty,
wording, content and context of
art. 12
Text: addressee
Intent of the Contracting
Parties
Systematic analysis of types
of obligations in Treaty
Content: National legislative
discretion in customs
Van Gend & Loos: Autonomy

26/62 Van Gend & Loos

[...] the Community 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 subjects of which comprise not only Member States but
also their nationals. Independently of the legislation of
Member States, Community law therefore not only imposes
obligations on individuals but is also intended to confer
upon them rights which become part of their legal heritage.
Autonomy:
MS are no longer “Masters of the Treaties”
NB: this is clearly wrong!
Role of individuals ≈ national law ↔ international law
Link with direct effect
Van Gend & Loos: Conclusion
Direct Effect: A rule of invocability
Relies on claim of “Autonomy” of EU law (“new legal
order”)
Difference with respect to International Law:
Direct effect depends on criteria defined by EU law
CJEU claims interpretive monopoly over these criteria
Interaction with Primacy/Supremacy
Monism (irrelevant) or dualism (?!?)
Judicial strategy: NL is monist country
Cooperation with national courts
What if Dutch court hadn’t asked a question?
What if it didn’t comply?
If national courts comply: weapon against national
governments
Incentive: empowerment of national courts
(Tariefcommissie)
Costa v ENEL: Italy, AG
Facts: Nationalisation of the electricity industry
Flaminio Costa refuses to pay his electricity bill
Compatible with internal market?
Outcome: to be decided by national court
Italian Constitutional Court refuses to apply EEC law
lex posterior derogat legi priori
Dualism: no question of EEC law → no preliminary
reference
Solution? Italian Parliament
Italy: “Absolutely inadmissible”
National court can & should apply national law
Question = compatibility of national law with EECT
6= Treaty interpretation
Remedy? Infringement procedure
AG Lagrange: “disastrous consequences” of CC’s
judgment
“Insoluble conflict” which undermines EEC law
Chain reaction: France applies reciprocity rule
Challenge to effectiveness, uniformity of EEC law
Costa v ENEL: Court
Costa repeats the autonomy claim
6/64 Costa
By contrast with ordinary international treaties, the EEC
Treaty has created its own legal system which, on the entry
into force of the Treaty, became an integral part of the legal
systems of the Member States and which their courts are
bound to apply. [...]
the Member States have limited their sovereign rights, albeit
within limited fields, and have thus created a body of law
which binds both their nationals and themselves.
Autonomy: bindingness of EU law
Autonomy ← characteristics of the Community
unlimited duration, own institutions
own personality, legal capacity, capacity of
representation
powers ← limitation of sovereignty, transfer of powers
Costa v ENEL: Primacy (1)
Costa establishes primacy
Primacy = Conflict rule: which law takes precedence?
IT: Italian law
EU: primacy of EU law

6/64 Costa
[...] the law stemming from the Treaty, an independent
source of law, could not, because of its special and original
nature, be overriden by domestic legal provisions, however
framed, without being deprived of its character as
Community law and without the legal basis of the
Community itself being called into question.
“Nature of Community law”: circular argument
“Nature” changes with Costa — can’t be a justification for
Costa
Why not: the “nature of international law”, with opposite
conclusion?
Costa: Primacy (2)
Arguments establishing the primacy of EEC law
Integration of EEC law (including its “spirit”) into national
law make lex posterior “impossible”
But: IL is not “impossible”
EEC law “cannot vary” between MS without jeopardizing
the “objectives” of the Treaty and giving rise to
discrimination
Objectives: invocation of “effet utile” argument
Effet utile: teleological/purposive reasoning
Yes, but: which enforcement mechanism? IL also
enforces
EECT obligations “would not be unconditional, but
merely contingent” if lex posterior applies
But: IL is not “contingent”
Regulations are directly applicable [288 TFEU]
Yes, but: no conclusions about Treaty law in general ...
... and enforcement mechanism unclear
Costa: Primacy Endorsed?

Treaty Establishing a Constitution for Europe, Art. I-6

The Constitution and law adopted by the institutions of the
Union in exercising competences conferred on it shall have
primacy over the law of the Member States.
Declaration No 17 to the Lisbon Treaty
The Conference recalls that, in accordance with well settled
case law of the Court of Justice of the European Union, the
Treaties and the law adopted by the Union on the basis of
the Treaties have primacy over the law of Member States,
under the conditions laid down by the said case law.
CJEU: Constitutional Charter

294/83 Les Verts, para. 23

It must first be emphasized in this regard that the European
Economic Community is a Community based on the rule of
law, inasmuch as neither its Member States nor its
institutions can avoid a review of the question whether the
measures adopted by them are in conformity with the basic
constitutional charter, the Treaty. In particular, in article [263]
and [277 TFEU], on the one hand, and in article [267 TFEU],
on the other, the Treaty established a complete system of
legal remedies and procedures designed to permit the
Court of Justice to review the legality of measures adopted
by the institutions.
3. Constitutionalisation?
Constitutionalisation? (1) International Law or ...?

Between intergovernmentalism (→ IL) and ...

supranationalism (→ (over?)judicialized federal state)
J.H.H. Weiler, The Transformation of Europe
the Treaties have been “constitutionalized” and the
Community has become an entity whose closest structural
model is no longer an international organization but a
denser, yet nonunitary polity, principally the federal state.
[...] the European Court of Justice in a series of landmark
decisions established [...] doctrines that fixed the
relationship between Community law and Member State law
and rendered that relationship indistinguishable from
analogous legal relationships in constitutional federal states.
Cf. same-sex marriage in the US
Constitutionalisation? (1) Autonomy!
International law
Direct effect, supremacy exist as doctrines of
international law
Direct Effect
IL: Direct effect depends on national law & national
courts
EU: Direct effect depends on EU law & CJEU
Difference: Substantive criteria + who decides?
Primacy
IL: “A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty” [27
VCLT, pacta sunt servanda]
But lack of enforcement within the national legal order?
EU: Primacy + Duty of national courts to enforce EU law
over conflicting national legislation
In reality, invitation to national courts to co-operate. Will they?
Defend national interests against EU law, or
Empowerment of national (even low-ranked) judges
Strategy: Disaggregation of the nation state (judges ↔ politicians)
≈ (Over-judicialized?) Federal state
Constitutionalisation? (2) Constitutionalism
Constitutionalisation? (2) The Constitutional Treaty

Art. I-8 TECE

The flag of the Union shall be a circle of twelve golden stars on a blue
background.
The anthem of the Union shall be based on the ‘Ode to Joy’ from the
Ninth Symphony by Ludwig van Beethoven.
The motto of the Union shall be: ‘United in diversity’.
The currency of the Union shall be the euro.
Europe day shall be celebrated on 9 May throughout the Union.

Art. I-33 TECE

A European law shall be a legislative act of general application. It shall be
binding in its entirety and directly applicable in all Member States.
A European framework law shall be a legislative act binding, as to the
result to be achieved, upon each Member State to which it is addressed,
but shall leave to the national authorities the choice of form and
methods.
Constitutionalisation? (2) After the TECE
French (29/5/2005, 55%) and Dutch (1/6/2005, 61%) no
IGC Mandate for the Lisbon Treaty
The TEU and the Treaty on the Functioning of the Union will
not have a constitutional character. The terminology used
throughout the Treaties will reflect this change: the term
“Constitution” will not be used, the “Union Minister for Foreign
Affairs” will be called High Representative of the Union for
Foreign Affairs and Security Policy and the denominations
“law” and “framework law” will be abandoned, the existing
denominations “regulations”, “directives” and “decisions”
being retained. Likewise, there will be no article in the
amended Treaties mentioning the symbols of the EU such as
the flag, the anthem or the motto. Concerning the primacy
of EU law, the IGC will adopt a Declaration recalling the
existing case law of the EU Court of Justice.
Constitutionalisation? (2) Back to ...

26/62 Van Gend

[...] this Treaty is more than an agreement which merely creates mutual
obligations between the Contracting States. This view is confirmed by the
Preamble to the Treaty which refers not only to governments but to
peoples. It is also confirmed more specifically by the institutions endowed
with sovereign rights, the exercise of which affects Member States and
also their citizens. Furthermore, it must be noted that the nationals of the
States brought together in the Community are called upon to cooperate in the
functioning of this Community through the intermediary of the European
Parliament and the Economic and Social Committee. [...]

The conclusion to be drawn from this is that the Community 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
subjects of which comprise not only Member States but also their
nationals. [...]
Constitutionalisation? (2) Politics vs
Juridification/Judicialisation
Constitutionalisation: popular sovereignty & a political
process
A revolutionary actor
Typically: Pouvoir constituant advocates popular
sovereignty
A political process
Paradigmatically, a Parliament
EU
A revolutionary actor: CJEU
A political process? With Van Gend,
Process of juridification: law is central
Process of judicialization: courts are central
Van Gend:
Empowering individuals (“private attorney-general”) ...
... to the detriment of national political process
... without a fully-fledged European political process?
Constitutionalisation? (3) Perils
Constitutionalisation? (3) Counter-majoritarian
Difficulty

Counter-Majoritarian Difficulty: Judicial Review of Legislation

(6= EU?)
(1) Is judicial power legitimate in a “democratic” political
system?
Democratically adopted legislation – unelected judges
eg Same-sex marriage in the US, Bruxelles-Halle-Vilvorde
in BE
(2) Does the law legitimate judicial power?
Problem of indeterminacy of legal texts
Exacerbated in constitutional law: vagueness of norms
regarding federalism, fundamental rights, ...
(3) Difficulty in amending the Constitution
Difficulty: legal and/or political
eg US ... BE?
Constitutionalisation? (3) Counter-majoritarian
Difficulty

Counter-majoritarian Difficulty: What about the EU?

(1) Which “democratic” legislator? National legislator
Van Gend & Loos, Costa
EU: Democratic? CJEU: more lenient?
(2) EU Treaties: indeterminate legal norms ...
art. 12 EECT ; direct effect & primacy: gaps or “spirit,
general scheme and wording,” “character” of Community
law?
(3) Amendment?
Unanimity requirement [48 TEU], but practical frequency
...
... yet political process hardly interferes with judicial
practice
 Constitutionalisation? (3) A Counter-Majoritarian
Judicial Coup d’Etat?
(4) CJEU attributes to European Courts a quasi-power of
judicial review
“Quasi-power” of judicial review:
National courts refuse to apply (6= invalidate) national law
“European courts”:
National courts interpret facts and national law
CJEU de jure interprets EU law (but goes further de facto)
“Attributes”
What is the legal basis for the power of judicial review?
Alternatively: why not rely on national legislature?
→ Allegations of judicial activism, “pro-integration,”
“federalist,” ...
(5) Multi-level setting:
Counter-majoritarian difficulty: one legislature, one
court
EU: multi-level counter-majoritarian difficulty
Courts: national & European
Legislatures: paradigmatically national, and ...
EU: Parliament (direct representation), Council (indirect),
Commission (technical expertise)
4. What’s In A Name?
What’s In A Name?

Functionalism:
constitution = constitution because of its functions
EU: fundamental rights, allocating power, relations with
external world [Lenaerts]
What’s In A Name?

Constitutions: two ideal-types [Möllers]

Politicisation of Law
French, American Revolution: pouvoir constituant, popular
sovereignty
EU: where’s our pouvoir constituant?

Juridification of politics
England, Germany: domesticating existing political power
Confederations: Treaties as constitutions
Democracy?
EU: is this our ambition?
Conclusion
From International Law — towards a federal legal
order?
Direct effect & supremacy with European flavour
Depends crucially on co-operation of national courts
Disaggregation of the nation state
A “third way”: a “new legal order of international law”
Constitution?
Instead of pouvoir constituant & popular sovereignty
A judicial coup, individuals, judges & direct effect
Perils!
Judicial coup: inventing power of quasi-judicial review
Counter-majoritarian difficulty: European courts strike
down democratically legitimate legislation
Theoretical struggle: constitution as
Politicization of law, or
Judicialization of politics