Jean Monnet Center at NYU School of Law

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The European Treaties cannot be considered a historically first constitution at the time of their conclusion, nor have they developed into such a constitution over time. Likewise, a natural law of integration does not provide the theoretical basis for the claim of autonomy of Community law. The only basis on which Community law could claim a certain autonomy from the legal orders of the Member States is international law. This autonomy, however, is derivative and does not include complete interpretive autonomy. As a consequence, as to questions of the respective competences of the Community and the Member States, judicial Kompetenz-Kompetenz remains with the latter and their courts. Those who would like to remedy these shortcomings, as they might be perceived by advocates of the supremacy of Community law, must be reminded of the difficulties involved in drawing up a historically first constitution for Europe based on the decision of an original European constitutent power.[123]

[]123See Raworth, supra note 100, at 38.

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