Jean Monnet Center at NYU School of Law

The European Union after the Maastricht Decision


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[*] Steve J. Boom, Arnold & Porter, Washington, DC. The author wishes to thank Professor Joseph H.H. Weiler of Harvard Law School for his inspiration and support.

[1] BVerfGE 89, 155 (1993)(hereinafter Maastricht). For an unofficial translation, see 33 I.L.M. 395 (1994).

[2] Maastricht at 188.

[3] Id.

[4] Terrance Sandalow, The Expansion of Federal Legislative Authority, in Courts and Free Markets 49, 51 (Terrance Sandalow & Eric Stein eds., 1982).

[5] Interposition vs. Judicial Power, 1 Race Rel. L. Rep. 465, 466 (1956). See also Charles G. Haines, The Role of the Supreme Court in American Government and Politics 1789-1835 331-613 (1973).

[6] The Court's language on the procedural aspects of the issue is not clear. The Court declares that German state agencies would be constitutionally prohibited from applying ultra vires Union legal acts in Germany. Maastricht at 188. The Court does not specify, however, whether a state agency could refuse to apply a Union legal act on its own volition, or whether a reference to the Federal Constitutional Court would be necessary. The last three scenarios above operate on the assumption that a lower German court or other German state agencies could make such a determination sua sponte.

[7] Maastricht at 188. Of course, if a German agency decided not to implement a Union legal act, it would not take long for the issue to reach the courts. Any individual intended to benefit from the Union legal act would almost certainly challenge the German agency's failure to implement.

[8] Federalism appears in many forms. All federal systems are, at their core, systems of divided sovereign powers guaranteed by a national or supranational charter. To this extent, both the United States and the European Union are properly called federal systems. That their respective implementations of federalism are different is not relevant for the purposes of this article. Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 Am. J. Comp. L. 205 (1990); see also G. Federico Mancini, The Making of a Constitution for Europe, 26 Common Mkt. L. Rev. 595 (1989).

[9] The purpose of comparative analysis is not to prove convergence, or to assert the equivalence, of two different systems, such as the United States and the European Union. Indeed, a comparative approach often shows the divergence of the systems. Nonetheless, the essential question of the authority to divide competences is the same in both the United States and the European Union. This article examines both the convergence and divergence of how this issue has been dealt with in these two systems.

[10] Especially when, as here, the comparison is between a system in which the issue is currently contested (the European Union) and a system in which the issue has been settled for a significant period of time (the United States).

[11] A fourth issue also appears: the possibility of Germany leaving the European Union. The Federal Constitutional Court mentions both this prospect and the possibility of Germany leaving monetary union. Maastricht at 188-190, 199-205. The Court's statements should not be interpreted, however, as an implicit threat of secession. Rather, the Court raises this possibility in the context of stressing that Germany remains a sovereign state and not part of a "United States of Europe." Therefore, this article does not mention these statements further in comparing the Europe Union and the United States.

[12] Maastricht at 175.

[13] Re the Application of Wünsche Handelsgesellschaft, 3 C.M.L.R. 225 (1987), BVerfGE 73, 339 (1986)(hereinafter Solange II).

[14] Solange II, 3 C.M.L.R. at 265, BVerfGE 73, 387.

[15] See Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 2 C.M.L.R. 540 (1974), BVerfGE 37, 271 (1974)(hereinafter Solange I). To the extent that most Union legislation is passed by directive and, therefore, implemented by Member State legislatures, this prior jurisdictional limitation was not as significant, with respect to Union legislation, as it seemed at first blush. It was significant, however, in that it prevented the Federal Constitutional Court from challenging ECJ rulings.

[16] See Dr. Christian Tomuschat, Die Europäische Union unter der Aufsicht des Bundesverfassungsgerichts, 20 Europäische Grundrechte Zeitschrift 489 (1993).

[17] See, e.g., Tomuschat, supra note 16; Hans-Werner Rengeling, Grundrechtsschutz in der Europäischen Gemeinschaft (1993); Ulrich Elvering, Weiterentwicklung des Grundrechtsschutzes durch den Europäischen Gerichtshof, in Der Schutz der Grundrechte in der Europäischen Gemeinschaft 73, 74 (Werner Weidenfeld ed., 1990); Carl Otto Lenz, Der europäische Grundrechtsstandard in der Rechtssprechung des Europäischen Gerichtshofes, 20 Europäische Grundrechte Zeitschrift 585 (1993).

[18] Treaty on European Union, art. F. Although enforcement of this article of the Maastricht Treaty does not fall within the jurisdiction of the ECJ, Treaty on European Union art. L, it is consistent with the ECJ's jurisprudence. See, e.g., Tomuschat, supra note 16; Elvering, supra note 17.

[19] Article 38 provides, "(1) The deputies to the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders and instructions, and shall be subject only to their conscience." GG.

[20] BVerfGE 47, 269 (1978).

[21] Under the qualified majority voting system, Member States are bound to decisions taken by that the Council, regardless of whether the decision is consonant with the position taken by the Member State in the decision-making process. Therefore, a Union legal act can be contrary to the will of the German populace.

[22] Maastricht at 182-184.

[23] Id. at 184-185. The Court noted the important role of political parties, organization and the media in the development of a European public opinion. Id.

[24] Id. at 186.

[25] Id.

[26] Id.

[27] In the end, the Court found that the Bundestag did retain sufficient competences and influence under the Treaty of Maastricht and, therefore, that the Treaty of Maastricht did not violate the Democracy Principle. While this outcome is important for the current stage of European integration, the Court's reasoning has implications for future stages of integration. See Section VI.C, infra.

[28] Maastricht at 187.

[29] Id. at 188.

[30] In other words, enumerated power.

[31] Maastricht at 210.

[32] Id. at 188.

[33] The Federal Constitutional Court could have avoided the issue altogether. It could have examined the Treaty of Maastricht and determined that it met the constitutional requirement of certainty, without asserting its jurisdiction over future disputes concerning the division of European and Member State competences.

[34] See, e.g., Tomuschat, supra note 16; Volkmar Götz, Das Maastricht-Urteil des Bundesverfassungsgerichts, 48 Juristenzeitung 1081 (1993).

[35] Nor was it unpredicted by legal writers. See, e.g., Helmut Steinberger, Aspekte der Rechtsprechung des Bundesverfassungsgerichts zum Verhältnis zwischen Europäischem Gemeinschaftsrecht und deutschem Recht, in Staat und Völkerrechtsordnung-Festschrift für Karl Doehring 951, 967-968 (Kay Hailbronner et al. eds., 1989).

[36] In re The Application of Frau Kloppenburg, 3 C.M.L.R. 1 (1988), BVerfGE 75, 223 (1988)(hereinafter Kloppenburg).

[37] Kloppenburg, 3 C.M.L.R. at 18, BVerfGE 75, 242. The Court reiterates this term in Maastricht. Maastricht at 188-190.

[38] Kloppenburg, 3 C.M.L.R. at 19, BVerfGE 75, 243.

[39] Id., 3 C.M.L.R. at 19, BVerfGE 75, 242-243.

[40] Steinberger, supra note 35, at 965-966.

[41] See Section VI.C, infra, for a discussion of why this limit may not be absolute.

[42] In fact, the issue of guaranteeing fundamental rights protection could arguably be subsumed into the Federal Constitutional Court's broader role in determining the boundaries of European and Member State competences. If the Court finds that a particular act of the Union violates a German citizen's fundamental right, it is, in a sense, determining that such act was ultra vires, for Germany's transfer of competences to the Union does not include the power to violate constitutional norms. Such a transfer would be unconstitutional because fundamental rights are inviolable.

[43] Haines, supra note 5, at 349.

[44] Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)(hereinafter Martin).

[45] Charles Warren, I The Supreme Court in United States History 449 (1922).

[46] Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 628 (1813).

[47] Hunter v. Martin, Devisee of Fairfax, 18 Va. (4 Munf.) 2, 3 (1815)(hereinafter Hunter)(emphasis added).

[48] Hunter at 58-59.

[49] Id. at 9.

[50] Id.

[51] Id. at 12.

[52] Hunter at 14.

[53] Martin at 324.

[54] Id. at 325.

[55] See, e.g., Robert L. Schuyler, The Constitution of the United States 166 (1925)("[the] argument that the Constitution was a compact between the people of the United States, forming a single Nation, was not in harmony with the general opinion in 1787-1788 however congenial it may have been to the nationalistic spirit of [Daniel Webster's] generation."); William MacDonald, Jacksonian Democracy 109-110 (1906)(" theory could have had a slighter historical foundation. From the beginning of the ratification of the Constitution to the end, there never was a moment when 'the people of the whole United States' acted in 'their collective capacity,' or in any other manner than as 'the people of the several States.'...If anything is clear beyond peradventure in the history of the United States, it is that the Constitution was established by the States, acting through conventions authorized by the legislatures thereof, and not by 'the people of the United States...'"), cited in Haines, supra note 5, at 562.

[56] Martin at 338.

[57] U.S. Const. art. VI, cl. 2.

[58] Martin at 342.

[59] Imagine the following paradigm, which is a simplified version of what took place in Martin. Plaintiff brings a suit in a state court for tort injury. Defendant concedes the action but denies liability, claiming that a federal law relieves it of liability. According to Story's reasoning, this would be a case involving federal law, and any decision by the state court could be reviewed by the Supreme Court. His logic breaks down, however, in the situation where the state court rules that the federal law purporting to relieve defendant of liability exceeds the scope of powers granted to Congress in the Constitution-in other words, that the federal law is ultra vires. If such statute were ultra vires, there would be no issue of federal law in this case, and, therefore, the Supreme Court would itself be acting ultra vires by issuing judgment on appeal. The state court would then be justified in refusing to respect the Supreme Court's decision.

[60] Id. at 348.

[61] Id. at 351. An equally plausible interpretation of the constitutional history is that, since such a power is transcendent, it would not have been left out of the Constitution or the Judiciary Act; the drafters would have made it clear that this power belonged to the federal government.

[62] Interposition vs. Judicial Power, supra note 5, at 468-469. Madison later changed his position. Id. Thomas Jefferson was also among the influential Founding Fathers (he was not present at the Constitutional Convention) who voiced strong opposition to Supreme Court jurisdiction and championed states' rights. Id.; See also Haines, supra note 5, at 187-219, 514-535, 550.

[63] Martin at 351-352. In fact, the Supreme Court had exercised jurisdiction on appeals from state court decisions on sixteen occasions after 1796 prior to Virginia's refusal to obey the mandate. No state court, including Virginia, objected to the Supreme Court's assumption of this power. This is due largely to the fact that only two cases involved a conflict between the US Constitution and a state statute; the state statute was upheld in one instance and invalidated in the other. Charles Warren, Legislative and Judicial Attacks on the Supreme Court of the United States, 47 Am. L. Rev. 1, 6 (1913).

[64] In 1798, the Supreme Court of Pennsylvania refused to allow removal of an action to the Federal Circuit Court. The Chief Justice stated, "If a State should differ with the United States about the construction [of the powers granted by the Constitution,] there is no common umpire but the people who should adjust the affair by making amendments in the constitutional way, or suffer from the defect... There is no provision in the Constitution that in such a case the judges of the Supreme Court of the United States shall control and be conclusive." Respublica v. Cobbett, 3 Dall. 462 (1798), quoted in Warren, supra note 63, at 4.

[65] See Section V.B, infra.

[66] Martin at 380-381.

[67] Id. at 364, 379-382. Given the Virginia Court of Appeals' stance toward the Supreme Court, it is not surprising that Story did not rest his opinion on the "comity" of state courts.

[68] The outcome seems inevitable to the modern reader because one cannot conceive of a United States in which state courts have the power to define the limits of federal power. But, as we have seen, the outcome was not obvious: "[i]t is true, of course, that with certain Federalist assumptions or presuppositions, such as the presumed design of the Constitution to establish a sovereign nation with federal supremacy over the states and the proposed superiority of the Judiciary in interpreting the Constitution, the language of the document could be construed to grant the authority to the federal courts that Story and Marshall were contending. But starting with different assumptions and interpreting the course of American history to date, together with the express provisions of the Constitution and its amendments, the decision of the Virginia supreme court could just as readily be sustained. At bottom the issue was one of politics and expediency rather than law. Was it preferable to have a federation or confederation of states?" Haines, supra note 5, at 349. (emphasis added)

[69] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)(hereinafter McCulloch).

[70] Id. at 404-405.

[71] Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)(hereinafter Cohens).

[72] Albert J. Beveridge, The Life of John Marshall, Vol. IV at 343 (1919), quoted in Haines, supra note 5, at 427.

[73] For example, Marshall refers to the Supremacy Clause as "the authoritative language of the American people." Cohens at 381.

[74] Story, as discussed above, did trace the court's power directly to the American people. Nationhood is implicit in the term "American people." The explicit use of the term "nation," however, is important in its refinement of the analysis.

[75] Marshall used this term in reference to the Supreme Court. Id. at 423.

[76] Both Thomas Jefferson James Madison spoke out forcefully against the Supreme Court, although Madison eventually reversed his position. See Interposition vs. Judicial Power, supra note 5, at 469-473; Haines, supra note 5, at 437.

[77] It is also important to note the debate surrounding the Supreme Court's newly-claimed power of judicial review, established in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The backlash against the Supreme Court which resulted from this opinion added fuel to the fire surrounding Martin.

[78] Lurking behind this debate, of course, was also the tension between the North and South, and the South's fear that slavery was endangered by the nationalist theories of the Supreme Court. Haines, supra note 5, at 499. The extent to which ideologies were shaped by slavery is evidenced by the reaction to Ableman v. Booth, 59 U.S. (18 How.) 479 (1856). In this case, Booth was arrested for breaking a fugitive slave out of a Wisconsin prison , in violation of the Fugitive Slave Act. The Supreme Court of Wisconsin, an abolitionist state, declared the Fugitive Slave Act unconstitutional. On appeal, the Supreme Court of the United States, using the same reasoning as in Martin, found the statute constitutional and overruled the Wisconsin court. When the Wisconsin legislature responded by rejecting the Supreme Court's authority to define the limits of federal power, "[it] was heralded with enthusiasm in the other Northern states in which anti-slavery feeling ran high. In the South there was firm approval of the action of the United States Supreme Court." Interposition vs. Judicial Power, supra note 5, at 495.

[79] See Warren, supra note 63, at 1-34, 161-189. Massachusetts passed a resolution in 1822 specifically upholding the power of the Supreme Court under the Judiciary Act. Similarly, in 1855, the California legislature passed an act in order to enforce compliance with section 25 of the Federal Judiciary Act. Id. at 16, 176.

[80] See Section III.B.2.b.ii, infra, for a definition and discussion of the nullification doctrine.

[81] Warren, supra note 63, at 174-177. Even Virginia's position changed over time: the Virginia legislature responded to Pennsylvania's 1809 call for a constitutional amendment to provide for a tribunal to settle disputes over federal power by stating that "a tribunal is already provided by the Constitution of the United States (to-wit the Supreme Court)..." Id. at 5.

[82] Haines, supra note 5, at 354 (emphasis added).

[83] John Taylor used the term "League of Nations" to refer to the United States. Id. at 445.

[84] Senator Hayne of South Carolina, as quoted in id. at 559.

[85] Id. at 365, quoting Mr. Stevenson of Richmond, Journal of the House of Delegates, Virginia at 56 (1819).

[86] Id. at 446.

[87] Id. at 439.

[88] Id. at 429, citing Journal of the House of Delegates, Virginia at 102-104 (1820).

[89] Id. at 454.

[90] Id. at 356-362, 438.

[91] Id. at 445.

[92] Warren, supra note 63, at 4. See note 64, supra, for language of the decision.

[93] The strength of the opposition from Virginia prompted Justice Marshall to write that the atmosphere in Virginia was in danger of leading "to the destruction of the government and the reestablishment of a league of sovereign States." Haines, supra note 5, at 458.

[94] Warren, supra note 63, at 167-168.

[95] Padelford v. Sanford, 14 Georgia 440 (1854).

[96] Johnson v. Gordon, 4 Cal. 368 (1854). Four years later, after an interceding legislative resolution calling for compliance with the Judiciary Act, the California court expressly recognized the Supreme Court's jurisdiction. Warren, supra note 63, at 177.

[97] Warren, supra note 63, at 184-186. Six months later, the Wisconsin court reversed itself. Id.

[98] Id. at 15. The Virginia legislature did not go as far as some states' rights advocates wanted: the Richmond Enquirer called for passage of a bill heavily penalizing any person enforcing any judgment of the Supreme Court reviewing a decision of a court of Virginia. Id. at 18.

[99] Id. at 20.

[100] Id. at 169. Significantly, the same resolution referred to Georgia as a member of a "Confederacy," not a "Union." Id. at 169.

[101] Id. at 184.

[102] Haines, supra note 5, at 468 (emphasis added).

[103] Warren, supra note 63, at 169. Georgia's resolution, and the tense period directly following its passage, ultimately proved moot, as the governor pardoned the prisoners whose conviction had led to the conflict between the Supreme Court and the Georgia state courts. Id. at 173.

[104] Secession was often discussed in the same circles as nullification.

[105] Haines, supra note 5, at 569.

[106] Id. at 569-570.

[107] But only delayed. Civil war would break out less than 30 years later.

[108] Haines, supra note 5, at 571-572.

[109] Herman Vandenburg Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History 158 (1896).

[110] Id. at 154-163.

[111] Haines, supra note 5, at 467.

[112] Ames, supra note 109, at 161.

[113] Haines, supra note 5, at 451.

[114] As opposed to Representatives, whose loyalties might be more to their district, not the state as a whole.

[115] Ames, supra note 109, at 163.

[116] Id. at 163.

[117] Haines, supra note 5, at 495.

[118] See Section III.B, supra.

[119] Haines, supra note 5, at 542.

[120] Interposition vs. Judicial Power, supra note 5, at 466.

[121] Brown v. Board of Education, 347 U.S. 483 (1954).

[122] Alabama, Georgia, Mississippi, South Carolina and Virginia. 1 Race Rel. L. Rep. 435, 437-447 (1956).

[123] 1 Race Rel. L. Rep. 435 (1956).

[124] Georgia Resolution of Interposition and Nullification, 1 Race Rel. L. Rep. 438-439 (1956).

[125] Virginia Resolution of Interposition and Nullification, 1 Race Rel. L. Rep. 445-447 (1956).

[126] Cooper v. Aaron, 358 U.S. 1 (1958)(hereinafter Cooper).

[127] Cooper at 4. Of course, this issue was about more than Supreme Court jurisdiction and states' rights. As in the 1800s, racial prejudices were largely determinative of theories of constitutional interpretation.

[128] Id. at 18.

[129] James C. Duram, A Moderate Among Extremists: Dwight D. Eisenhower and the School Desegregation Crisis 143-173 (1981).

[130] Id. at 163.

[131] Amending the Constitution to Strengthen the States in the Federal System, 36 State Gov't. 10, 11-15 (1963).

[132] Id. at 14.

[133] Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979, 982 (1986).

[134] Id. at 984.

[135] Id. at 985.

[136] Edwin Meese III, The Tulane Speech: What I Meant, Wash. Post, Nov. 13, 1986, at A21, col. 1.

[137] Id.

[138] See Section II.B, supra.

[139] Joseph H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991).

[140] Lenaerts, supra note 8, at 220.

[141] Weiler, supra note 139, at 2437-2450. Professor Weiler chronicled two additional modes of mutation: extension and incorporation. Extension is, however, by Weiler's definition confined to areas of exclusive Union competence. As such, it does not directly remove competences from the Member State level and is not significant for purposes of this article. Incorporation refers to the application by the ECJ of human rights standards to Member State action, a process still in its embryonic stages. Given the Federal Constitutional Court's view of itself as the ultimate guarantor of fundamental rights, the process of incorporation is similarly not of primary concern for this study.

[142] Case 9/74, Casagrande v. Landeshauptstadt München, 1974 E.C.R. 773 (hereinafter Casagrande).

[143] Casagrande at Judgment Recital 12.

[144] Weiler, supra note 139, at 2440.

[145] Justice Dieter Grimm, The European Union after Maastricht: Subsidiarity and the Democracy Deficit, speech given at Harvard Law School (Mar. 16, 1994)(hereinafter Grimm speech). Justice Grimm is not a member of the Second Senate, which issued the Maastricht opinion.

[146] Weiler, supra note 139, at 2440.

[147] See Kloppenburg; see also Götz, supra note 34.

[148] Article 235 provides, "If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures." Treaty on European Union.

[149] For example, between 1973 and 1980, approximately 20 Union acts based on article 235 were taken annually; that number jumped to more than 30 after 1980. By August 1, 1989, a sum total of 491 community acts had been based exclusively or partially on article 235. Traité instituant la CEE 1519-1520 (Vlad Constantinesco et al. eds., 1992); See also Hans Smit & Peter E. Herzog, 6 The Law of the European Economic Community 314, 319 (1993).

[150] Weiler, supra note 139, at 2445; Traité instituant la CEE, supra note 149, at 1525, 1529. ("Des mesures communautaires ont ainsi pu être adoptées grâce à l'article 235 dans des domaines largement laissés par le Traité aux États.")

[151] Traité instituant la CEE, supra note 149, at 1529.

[152] In other words, allowing means "necessary" to achieve enumerated ends, but not non-enumerated ends.

[153] Now contained in article B of the Treaty of Maastricht.

[154] Smit & Herzog, supra note 149, at 332; Traité instituant la CEE, supra note 149, at 1511.

[155] Traité instituant la CEE, supra note 149, at 1512.

[156] The term "necessary" appears twice in article 235, once to refer to the necessity of action and once to refer to the necessity of using article 235 as a basis for action. See note 148, supra.

[157] Weiler, supra note 139, at 2446, note 120.

[158] Case 8/73, Hauptzollamt Bremerhaven v. Massey Ferguson GmbH, 1973 E.C.R. 897.

[159] Under "effet utile" doctrine, the Court gives effective meaning, or "teeth," to a treaty article by permitting Union action, though not expressly provided for in the treaty.

[160] Maastricht at 210. See text surrounding note 31.

[161] 207.

[162] Id.

[163] Article 3b provides, inter alia, "The Community shall act within the limits of the powers conferred upon it by this Treaty and the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community." Treaty on European Union.

[164] Maastricht at C.II.3.c.

[165] Id.

[166] Id.; Grimm speech, supra note 145. In fact, Germany considered subsidiarity important enough to make it a constitutional requirement for Germany's membership in the European Union.

[167] Maastricht at 210-212.

[168] Weiler, supra note 139, at 2435. Justice Grimm agreed with this assessment, stating that, although European integration was not a matter of public concern for many years, competences were transferred nonetheless. Grimm speech, supra note 145.

[169] Expansion of competences under article 235 requires unanimity; the Luxembourg Accords guaranteed unanimity on the absorption of Member State competences through other articles.

[170] Weiler, supra note 139, at 2449.

[171] Kloppenburg, 3 C.M.L.R. at 12-13, BVerfGE 75, 234.

[172] Case 314/85, Firma Foto Frost v. Hauptzollamt Lubeck-Ost, 1987 E.C.R. 4199 (hereinafter Foto Frost).

[173] Foto Frost at 4230-4231; see also Mauro Cappelletti & David Golay, The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration, in I Integration Through Law (book 2) 261, 327-328 (Mauro Cappelletti et al. eds., 1986).

[174] The direct result of which is that the ECJ has never struck down a Council or Commission measure due to lack of Union competence. Weiler, supra note 139, at 2447.

[175] See note 63, supra.

[176] "The jurisdiction granted by article 177 is not unlimited. The limits imposed on it by the Basic Law are ultimately subject to the jurisdiction of the Federal Constitutional Court." Kloppenburg, 3 C.M.L.R. at 13, BVerfGE 75, 235 .

[177] Treaty on European Union, preamble.

[178] Id. (emphasis added); see also Lenaerts, supra note 8, at 209-210.

[179] Maastricht at 188.

[180] Id.

[181] In McCulloch, Justice made the famous statement, "...we must never forget, that it is a constitution we are expounding." McCulloch at 407. The Federal Constitutional Court, in contrast, referred to the Treaty of Maastricht as an "international treaty." Maastricht at 187-188.

[182] Kloppenburg, 3 C.M.L.R. at 18, BVerfGE 75, 242.

[183] See, e.g., Weiler, supra note 139, at 2413-2419; Koen Lenaerts, Some Thoughts About the Interaction Between Judges and Politicians, 1992 U. Chi. Legal F. 93, 93-94 ("In its original state, the European Community's 'constitution' was seen as, at most, a compact among States. Since that time, the Treaties establishing the European Community are considered a true constitution."); Christopher Sasse and Howard Charles Yourow, The Growth of Legislative Power of the European Communities, in Courts and Free Markets 92(Terrance Sandalow & Eric Stein eds., 1982); Mancini, supra note 8,; Advocate General Walter van Gerven, The European Court of Justice in the Post-Maastricht Era, speech given at Harvard Law School (Apr. 11, 1994).

[184] Weiler, supra note 139, at 2413-2418; Mancini, supra note 8, at 603.

[185] Case 294/83, Parti ecologiste 'Les Verts' v. European Parliament, 1986 E.C.R. 1339, 1365.

[186] Maastricht at 188-190.

[187] Id. at 194-195.

[188] One difference between the two documents is the absence of a supremacy clause in the Treaty of Maasitrcht. The Supremacy Clause does not, however, provide the Supreme Court with the explicit authority to determine the limits of federal power. The importance of the Supremacy Clause in Martin lay in the fact that it contemplates that state courts will rill on federal causes of action. In this regard, the Treaty of Maastricht is similar to the US Constitution, since it provides for Member State courts to decide issues of European law, and to refer questions to the ECJ if necessary. Treaty on European Union, arts. 164, 177.

[189] The Federal Constitutional Court does not, however, call for an interpretation based solely upon the "plain meaning" of the treaty. In Kloppenburg, the Federal Constitutional Court explicitly recognized the ECJ's authority of "judicial development," stating that "[i]n Europe, the judge was never merely 'la bouche qui prononce les paroles de la loi.'" Kloppenburg, 3 C.M.L.R. at 19, BVerfGE 75, 243. See also Steinberger, supra note 34, at 966. This remains intact. The Federal Constitutional Court aims not at the general principle of interpretation based on the spirit of the treaty, but rather the extreme outcomes that excessive reliance on this principle engenders.

[190] Case 26/62, N.V. Algemene Transport en Expedite Onderneming van Gend en Loos v. Nederlandse Administratie der Belastigen, 1963 E.C.R. 1, 12 (hereinadter van Gend en Loos).

[191] See Sections III.A.1, III.B.2.a, supra.

[192] Solange I, 2 C.M.L.R. at 564, BVerfGE 37, 29.

[193] Id.

[194] Kloppenburg, 3 C.M.L.R. at 13, BVerfGE 75, 234. In this case, the Federal Constitutional Court acknowledged the validity of the ECJ's extension of direct effect doctrine to directives because it "serves to create equality in application of the law among Union nationals..." Id, 3 C.M.L.R. at 19, BVerfGE 75, 243.

[195] Treaty on European Union, preamble; see also Cappelletti & Golay, supra note 173, at 261.

[196] See, e.g., Case 44/79, Liselotte Hauer v. Rheinland-Pfalz, 1979 E.C.R. 3727; Case 282/81, Srl CILFIT, and Lanifico di Gavardo, SpA v. Ministry of Health, 1982 E.C.R. 3415 (1982)(hereinafter CILFIT); Case 36/74B.N.O. Walrave and L.J.N. Koch v. Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie and Federacion Española Ciclismo, 1974 E.C.R. 1405 (extending prohibition of discrimination on grounds of nationality to private action because of the danger to uniformity if private organizations were exempt from such prohibition). The Court does allow, however, Member State differences in procedural implementation of Union obligations. This has a negative impact on uniformity. Cappelletti & Golay, supra note 173, at 335-338.

[197] van Gend en Loos at 12-13

[198] Interview with Justice Dieter Grimm, Federal Constitutional Court, in Cambridge, Mass. (Mar. 17, 1994)(hereinafter Grimm interview).

[199] Kloppenburg, 3 C.M.L.R. at 19-20, BVerfGE 75, 244.

[200] Maastricht at 210.

[201] Only the dissent in Solange I raised uniformity concerns.

[202] See Kloppenburg.

[203] See Section IV.A, supra.

[204] Weiler, supra note 139, at 2449.

[205] Id. at 2449.

[206] Maastricht at 183.

[207] Weiler, supra note 139, at 2473.

[208] Maastricht at 182-184.

[209] Id. at 175. See also Kloppenburg, 3 C.M.L.R. at 13, BVerfGE 75, 234 (Article 177 "...aims at cooperation between the courts of the Member States and the Court of Justice of the European Communities.")

[210] In 1990, for example, article 177 references were 204 of the 469 total actions brought (44%). Synopsis of the Work of the Court of Justice in 1990 .

[211] CILFIT at 3428.

[212] Id. at 3429-3430.

[213] Id. at 3428.

[214] Maastricht at 188.

[215] Certainly, the Commission could bring an article 169 proceeding against Germany for failure to fulfill its obligation to implement the Union legal act. This procedure is, however, weaker than article 177 because the Commission has discretion whether to bring action in the ECJ. Its decision is invariably guided by political considerations which do not affect private individuals' decisions. Thus, the Commission could decide not to institute article 169 proceedings against Germany for fear that the outcome would be a much greater constitutional crisis.

[216] One time in acknowledging the cooperative relationship and the other in recognizing the ECJ's authority to ensure compliance with the subsidiarity principle. Maastricht at 175, 211.

[217] Grimm interview, supra note 198.

[218] See Section VI.A.1, infra.

[219] See, e.g., Carl Otto Lenz, Der Vertrag von Maastricht nach dem Urteil des Bundesverfassungsgerichts, 46 Neue Juristische Wochenschrift 3038 (1993).

[220] Solange II, 3 C.M.L.R. at 262, BVerfGE 73, 383 (emphasis added).

[221] Kloppenburg, 3 C.M.L.R. at 19-20, BVerfGE 75, 244.

[222] Maastricht at 210. See also Götz, supra note 34, at 1084 ("After [Kloppenburg] a conflict between German constitutional law and the interpretive and jurisprudential competences of the ECJ appeared to lie in the theoretical future. The dramatic formula...of the Maastricht decision seems to place it significantly closer at hand.").

[223] See Section II.A, supra.

[224] Grimm speech, supra note 145.

[225] The only hints the Federal Constitutional Court gives to its willingness to exercise its Maastricht authority comes in two rather extreme situations: the Union using Art. F Par. 3 as an implied powers clause, and deviation from stability as the foundation for monetary union. Maastricht at 194-195, 204-205. Because both Art. F Par. 3 and monetary union were attacked by the complainant, the Federal Constitutional Court had the opportunity to give its interpretation of these treaty provisions. Presumably, the opposite interpretation by a European organ would lead the Court to exercise its Maastricht authority. For the remainder of the treaty articles, however, the question of the Court's willingness remains open.

[226] Grimm interview, supra note 199.

[227] For example, in the last four years of the Marshall era, 1831 to 1835, the Court upheld states' rights in four cases, as opposed to finding national power in only one instance. This is a 180-degree reversal from the period 1816 to 1830, where national power was upheld against states' rights sixteen times to four. Haines, supra note 5, at 579-613.

[228] Grimm speech, supra note 145.

[229] Maastricht at 211.

[230] Justice Grimm believes that, in its current state, the subsidiarity principle is nonjusticiable. In his opinion, there is not one word or phrase in article 3b that is not overly vague and subject to profoundly different interpretation. It is his hope that there will be an amendment to the treaty to clarify subsidiarity's meaning. Grimm speech, supra note 145; Grimm interview, supra note 198. The Federal Constitutional Court does not call subsidiarity nonjusticiable, however. But they do try to guide the ECJ in giving it meaning. Maastricht could, then provide the impetus for such an amendment: if European organs feel compelled to apply subsidiarity strictly, but are unable to arrive at a coherent definition, Member States may find it necessary to amend article 3b.

[231] Maastricht at 211.

[232] Haines, supra note 5, at 562.

[233] See Section II.B, supra.

[234] Maastricht at 194-199; see also Grimm speech, supra note 145.

[235] Maastricht at 184-186, 213; see also Grimm speech, supra note 145; Christian Kirchner & Joachim Haas, Rechtliche Grenzen für Kompetenzübertragungen auf die EG, 48 Juristenzeitung 760, 766 (1993) This article, published shortly before the Maastricht decision was issued, reached many of the same conclusions as the Federal Constitutional Court, especially in this area.

[236] Maastricht at 184-185.

[237] Id. at 186.

[238] Id.; see also Grimm speech, supra note 145.

[239] See Section II.B, supra.

[240] Grimm speech, supra note 145.

[241] Maastricht at 182.

[242] Id. at 184-185.

[243] See Section II.B, supra.

[244] See, e.g., BVerfGE 5, 85; BVerfGE 69, 315 (1985). See also Grimm interview, supra note 198.

[245] Grimm interview, supra note 199.

[246] Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 551 (1985); see also Lenaerts, supra note 9, at 222.

[247] Maastrichtat 185.



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