Jean Monnet Center at NYU School of Law

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I. Introduction

Surely one of the most embarrassing, and hence endearing moments in the human condition occurs when the proverbial little boy cries out: "The Emperor is Naked!" The embarrassment is not only that of the Emperor whose dignity comes crashing down with his clothes, but more exquisitely that of his subjects whose own gullibility and obsequiousness are fully exposed. Our laughter, that of the spectators, is directed, one hopes, in equal measure at ourselves and at the Emperor. Our civilization cherishes, or ought to cherish, such "little boys".

Theodor Schilling, in The Autonomy of the Community Legal Order -- An Analysis of Possible Foundations,[124 ] attempts to be such a "little boy" by taking on, to use his own language in the opening phrase of his piece, no less than "[t]he single most far-reaching, and probably most disputed, principle of the European Community ... its claim to a legal order autonomous from Member State law."[125 ] In his attempt to explore the foundations of this claim to autonomy, he pricks one of the biggest hot-air balloons of European law[126 ] -- its alleged "new" constitutional garb -- and exposes, if not its nakedness, at least its comfortable old togs of international law. Since most of us have been party to the "constitutional" celebration of Community law, we are all invited to join in the merriment. We would like to.

But there is one situation which, arguably, is even more embarrassing and, accordingly, more endearing. This happens when the little boy cries out, "The Emperor is Naked!", and it turns out instead that it is he who has no clothes on. We fear that Dr. Schilling may have placed himself, unwittingly, in that position.

The bulk of the Schilling article is dedicated to the theoretical exercise of exploring the foundations of the autonomy claim: are these foundations constitutional or international? But fear not: this is not theory merely for the sake of theory. There is a distinct political context to the heavy theorizing. It comes in the very final passages of Schilling's piece, in what he himself describes as "The Decisive Question."[127 ] Schilling also makes no bones that his article is meant to be instrumental in the battles surrounding this "Decisive Question."[128 ]

What, then, is the "Decisive Question"? It is the most recent flash point (or "flash-in-the-pan") in the evolving relationship between Community law and Member State law.[129 ] The supremacy of Community law over, and the direct effect of Community law within, the Member States legal orders, once all the rage, are now well-established. The are accepted by both the constitutional and the international law accounts of the system and confirmed, by and large, in practice. But, as all interpretative communities at least verbally affirm,[130 ] the Community is a system of "attributed," "enumerated," "limited" competences.[131 ] The writ of the Community is thus supreme only when enacted within its jurisdictional limits. An ultra vires Community measure should not be and would not be supreme. The "Decisive Question" is, therefore, as follows: when the legality of a Community measure is challenged on the grounds of ultra vires who, in law, gets to make the final determination? Is it the The European Court of Justice [ECJ] or the (highest) courts of the individual Member States? Since the jurisdictional limits laid out in the European Treaties are notoriously difficult to identify with precision,[132 ] the question of who gets to decide is of tremendous political importance for the relationship between the Community and the Member States.

The standard answer to the "Decisive Question", the "imperious answer" if you wish, put forward by most commentators as well as by the ECJ, is that the final determination of this issue, as with any other legal challenge to the legality of a Community measure, rests with the ECJ.[133 ] The ECJ has the competence, an exclusive competence, to invalidate a Community measure on any ground, including the ground that the measure was ultra vires. We may call this Judicial Kompetenz-Kompetenz: the competence to declare or to determine the limits of the competences of the Community.

This issue, dormant for years,[134 ] was suddenly thrown into the limelight by the famous (or infamous) 1993 Maastricht Decision of the German Federal Constitutional Court.[135 ] While conceding that the ECJ had a role to play, the German Court held that from a German constitutional perspective, the ultimate authority to determine this issue rested with domestic law. Indeed, any German Court or other emanation of the State had a duty not to apply Community measures which in their eyes were ultra vires.[136 ] In the case of a dispute, the German Federal Constitutional Court itself would have the final say.[137 ] The German Court arrived at this conclusion based on a reasoning of German Constitutional law. Though the reasoning has not met with uniform approval, to put it mildly, even among German constitutionalists,[138 ] we do not plan to take issue with it in this essay.[139 ] After all, if the German Court understands its authority as flowing from, and its loyalty flowing to, the German Constitution, it could hardly hold otherwise if it came to the conclusion that this is what the German Constitution mandated. Other Courts, some with considerably longer traditions of constitutionalism and democracy than their German counterpart, have upheld positions that they thought were mandated by the genesis or function of their constitutions, even if this created or sanctioned a violation of the international obligations of their respective States.[140 ]

Some German courts, taking their cue from the German Federal Constitutional Court, have already set aside Community law that in their eyes was ultra vires.[141] If the German Constitutional Court itself were to do this, it would clearly be illegal under Community law. Schilling, however, does not reason ostensibly from a national constitutional law perspective, though he clearly supports the German result. Schilling tries to render this constitutional swine -- if that is what it is -- kosher by relying on public international law, his preferred foundation for the European Community legal order. His conclusion is uncompromising:

The international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system ... Therefore, the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community.[142 ]

The stakes for Schilling are high: the "Rule of Law" itself is at issue. In Schilling's eyes, it is mere rhetoric when, on the "Decisive Question," the ECJ relies on the principle of the Rule of Law.[143 ] The "Truth" has been recognized by the German Constitutional Court, which according to Schilling, does not merely constitute, in law, the "final umpire of the system," but is also the clarion of the Rule of Law itself and has positioned itself, with the help of Schilling, "for eventually holding the ECJ in breach of that rule."[144 ]

We confess to finding these conclusions, and the reasoning on which they are based, puzzling. They evoke a reaction not unlike that of Alice when she peers into the Looking-Glass House: "that's just the same ... only the things go the other way."

Whatever the merits, or lack thereof, of a constitutional foundation for European law, the European Court, in adopting its position on judicial Kompetenz-Kompetenz, was not following any constitutional foundation but rather an orthodox international law rationale. In other words, even if we agreed with Schilling that international law provided the only basis on which to found the Community legal order, we would argue that this very foundation in international law mandates the opposite conclusions than the ones he reaches: The European Court does hold the position of "ultimate umpire of the system." Furthermore, international law certainly would not give the States, individually, the right to have the final word on questions concerning the competences of an international organization, just as it would not give such decisional finality to a State over any aspect of a Treaty to which it was party. Regardless of whether the position of the German Constitutional Court is justified under German constitutional law, it is not defensible under public international law. At most, all Member States of the Union, acting in unison, usually by following the Treaty-amendment procedure, may determine, amend, and modify the Treaties, including their jurisdictional reach.[145 ] Ironically, as we argue later in this article, a constitutional law approach to the Community legal order would be more solicitous to an involvement of national jurisdictions in the determination of the jurisdictional limits of the Community legal order.

This, then, is how we plan to proceed. We shall say first a few words on Schilling's "constitutional-international" analysis -- a few words only because, for the purposes of this essay, we are happy to remain agnostic on this issue. We agree with much of what Schilling says and our disagreements are mostly unrelated to the so-called "Decisive Question." We will thus be willing to accept, at least arguendo, his international law characterization of the Community legal order as the premise for analyzing his "Decisive Question." On this basis we then proceed to analyze with some care the reasoning on which Schilling bases his conclusions. Lastly, we shall conclude by addressing, in a somewhat less doctrinal manner, the stand-off between the ECJ and the German Constitutional Court on the issue of judicial Kompetenz-Kompetenz.

[124] 37 HARV. INT'L L. J. 389 (1996).

[125] ID. at 389.

[126] While Dr. Schilling's article mostly refers to the law of the European Community, we will use the term "European Law" to describe either European Community Law or European Union law as the case may be. Only when distinctions matter, we will flag them. Our references include the TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY [EEC TREATY]; TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY [ECSC TREATY]; TREATY ESTABLISHING THE EUROPEAN ATOMIC ENERGY COMMUNITY [EURATOM]; SINGLE EUROPEAN ACT [SEA]; and TREATY ON THE EUROPEAN UNION [TEU].

[127] Schilling, supra note 1, at 404.

[128] Id. at 408-09.

[129] J.H.H. Weiler, Ulrich R. Haltern & Franz C. Mayer, European Democracy and Its Critique, W. EUR. POLITICS, July 1995, at 4.

[130] See, e.g., BENGT BEUTLER ET AL., DIE EUROPäISCHE UNION: RECHTSORDNUNG UND POLITIK 82 (4th ed. 1993); THOMAS OPPERMANN, EUROPARECHT 168 - 69 (1991); PHILIPPE MANIN, LES COMMUNAUTéS EUROPéENNES - DROIT INSTITUTIONNEL 62 (1993); Antonio Tizzano, Les compétences de la Communauté, in TRENTE ANS DE DROIT COMMUNAUTAIRE 45 (Commission des Communautés européennes ed., 1981); Roland Bieber, Artikel 4, in KOMMENTAR ZUM EWG - VERTRAG para. 38 (Hans von der Groeben et al. eds., 4th ed. 1991). The virtual disappearance of the principle of enumerated powers, as a constraint on Community material jurisdiction, is analysed in detail by J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2431 - 53 (1991). The diminishing practical significance is also noted by T.C. HARTLEY, THE FOUNDATIONS OF EUROPEAN COMMUNITY LAW 110 - 119 (3d ed. 1994).

[131] This has been confirmed by the Court of Justice early on. E.g., Case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1 (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..." (emphasis added)). For even more striking language (albeit related to the Coal and Steel Community), see Joined Cases 7/56 & 3-7/57, Dineke Algera et al. v. Common Assembly of the European Coal and Steel Community, 1957 E.C.R. 39, Opinion of Mr. Advocate General Lagrange, 69, at 82 ("The Treaty is based upon delegation, with the consent of the Member States, of sovereignty to supranational institutions for a strictly defined purpose... The legal principle underlying the Treaty is a principle of limited authority. The Community is a legal person governed by public law, and as such, it shall enjoy the legal capacity it requires to perform its functions and attain its objectives, but only that capacity....") Much of this, today, is mere lip-service. Koen Lenaerts, for instance, concludes, "There simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community." Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM. J. COMP. L. 205, 220 (1990); Weiler, supra note 7, at 2431 - 36.

[132] Weiler, supra note 7, at 2436 - 53.

[133] Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost, 1987 E.C.R. 4199. (This, it seems, has also been Schilling's first intuition.) See Schilling, supra note 1, at 405 ("According to the ordinary meaning of this provision, the ECJ is the ultimate umpire of the European system").

[134] Jean Paul Jacqué & J.H.H. Weiler, On the Road to European Union -- A New Judicial Architecture: An Agenda for the Intergovernmental Conference, 27 COMMON MKT. L. REV. 185 (1990); Jean Paul Jacqué & J.H.H. Weiler, Sur la voie de l'Union européenne, une nouvelle architecture judiciaire, 26 REVUE TRIMESTRIELLE DE DROIT EUROPéEN 441 (1990).

[135] German Constitutional Court, Judgment of Oct. 12, 1993, 89 BVerfGE 155, English translation in 33 I.L.M. 388, 422-23 (1994).

[136] "If, for example, European institutions or governmental entities were to implement or to develop the Maastricht Treaty in a manner no longer covered by the Treaty in the form of it upon which the German Act of Acession is based, any legal instrument arising from such activity would not be binding within German territory. German State institutions would be prevented by reasons of constitutional law from applying such legal instruments in Germany." Id. at 188.

[137] This is the consequence of the German system of centralized judicial review, with the Bundesverfassungsgericht at its core.

[138] See, for instance, Christian Tomuschat, Die Europäische Union unter Aufsicht des Bundesverfassungsgerichts, 20 EUROPäISCHE GRUNDRECHTEZEITSCHRIFT 489, 494 (1993); Jochen A. Frowein, Das Maastricht-Urteil und die Grenzen der Verfassungsgerichtsbarkeit, 54 ZEITSCHRIFT FüR AUSLäNDISCHES öFFENTLICHES RECHT UND VöLKERRECHT 1, 8 - 10 (1994); Meinhard Schröder, Das Bundesverfassungsgericht als Hüter des Staates im Prozeß der europäischen Integration - Bemerkungen zum Maastricht-Urteil, 1994 DEUTSCHES VERWALTUNGSBLATT 316, 323 - 24; Jürgen Schwarze, Europapolitik unter deutschem Verfassungsvorbehalt - Anmerkungen zum Maastricht-Urteil des BVerfG vom 12.10.1993, 48 NEUE JUSTIZ 1, 3 (1994); Karl M. Meessen, Maastricht nach Karlsruhe, 9 NEUE JURISTISCHE WOCHENSCHRIFT 549, 552 - 53 (1994).

[139] For an extensive discussion, see J.H.H. Weiler, The State `über alles': Demos, Telos and the German Maastricht Decision, in FESTSCHRIFT FüR ULRICH EVERLING 1651 (Ole Due et al. eds., 1995).

[140] For example, English courts have held that English statutory law is binding upon them even if conflicting with international law. See, e.g., R. v. Chief Immigration Officer, ex parte Salamat Bibi, [1976] 3 All E.R. 843; R. v. Secretary of State for the Home Dept., ex parte Thakrar, [1974] 2 All E.R. 261; Woodend (K. V. Ceylon) Rubber and Tea Co. v. Inland Revenue Commissioner [1970] 2 All E.R. 801. Under U.S. law, courts have occasionally subordinated treaties to subsequent statutes and held that the U.S. has the perogative to violate its international commitments. See, above all, references in Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARV. L. REV. 853 (1987), and the response by Peter Westen, The Place of Foreign Treaties in the Courts of the United States: A Reply to Louis Henkin, 101 HARV. L. REV. 511 (1987). As to U.S. statutes and international treaties see, inter alia, the Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 124 U.S. 190 (1888); Chinese Exclusion Case, 130 U.S. 581 (1889). As to U.S. statutes and customary international law see, inter alia, the dictum in the Paquete Habana Case, 175 U.S. 677, 700 (1900) ("International law is part of our law, and must be ascertained and administered by the courts of justice... For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations..."). Under German law, international treaties do not have a higher status than federal laws, with the consequence that the principle lex posterior derogat legi posteriori is applicable and that the treaty must be consistent with the German Constitution, or Grundgesetz [GG]. For the obligation to choose the interpretation of an international treaty that is in accordance with the Constitution, see, inter alia, Judgment of May 4, 1955, BVerfG, 4 BVerfGE 157, 168 translated in 1 DECISIONS OF THE BUNDESVERFASSUNGSGERICHT - FEDERAL CONSTITUTIONAL COURT - FEDERAL REPUBLIC OF GERMANY: INTERNATIONAL LAW AND LAW OF THE EUROPEAN COMMUNITIES 1952 - 1989 (pt. 1) 70, 77 (1992). Article 25 of the Basic Law, which could be read as an affirmation of the supremacy of international law (although many disagree; see, e.g., KNUT IPSEN, VöLKERRECHT, 1091 - 93 (3d ed. 1990)), does not apply to treaties but only to general customary rules of international law. GRUNDGESETZ [GG] art. 25 (F.R.G.). For further reference, also relating to other countries, see OPPENHEIM'S INTERNATIONAL LAW, VOL. I: PEACE 54 - 81 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1992). See also Eyal Benvenisti, Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 EUR. J. INT'L L. 159 (1993).

[141] See Norbert Reich, Judge-made `Europe a la carte': Some Remarks on Recent Conflicts between European and German Constitutional Law Provoked by the Banana Litigation, 7 EUR. J. INT'L L. 103 (1996).

[142] Schilling, supra note 1, at 407 (emphasis added).

[143] Id. at 408.

[144] Id. at 409.

[145] This is, of course, not just a theoretical suggestion. The Member States have altered the Treaties several times, the latest examples being amendments to the framework of Maastricht. The most important example is the Protocol Concerning Article 119 of the Treaty Establishing the European Community, annexed to the EC Treaty which, according to Ec Treaty art. 239, is an "integral part" of it. This protocol -- the so-called "Barber" Protocol -- was a reaction to the ECJ judgment in Case C-262/88, Barber v. Royal Guardian Exch. Assurance Group, 1990 E.C.R. 1889. Being the prototype of a consensus reaction of the Member States to a binding decision of the ECJ, the Barber Protocol is considered by some to be a warning to the Court. See, e.g., Deirdre Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, 30 COMMON MKT. L. REV. 17, 51 (1993). Another example of the Member States altering the Treaties is the Protocol Annexed to the Treaty on European Union and to the Treaties Establishing the European Union (the so-called "Irish Abortion" Protocol). Curtin submits that "the whole purpose of including the Protocol in the first place was to close the door that seemed to be left ajar ... by the [ECJ] ruling in SPUC v. Grogan [Case C-159/90, 1991 E.C.R. I-4685]." Id. at 49. Further examples -- outside the "special case" protocols -- include the new provisions on culture (see EC Treaty arts. 3 (p) and 128) and on public health (see art. 3 (o) and Title X of the EC Treaty).

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