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Rejoinder: The Autonomy of the Community Legal Order

In Particular: The Kompetenz-Kompetenz of the ECJ

Theodor Schilling[*]

I. To receive a prompt and incisive response is the second best thing that can happen to an article (and its author). The best thing is to be given an opportunity to submit a rejoinder. The response, in the nature of things, tries to expose the weak points in the original article, or rather those points perceived to be weak by the respondent, viz. the points on which the article arguably needs some touching up. Thus, in a dialectic turn, the response, by trying to refute the argumentation in the original article, makes it possible to strengthen it.

In this rejoinder to the response[255] J.H.H. Weiler and Ulrich R. Haltern gave to my original article, in particular to the part of it dealing with international law[256], I do not set out to defend the latter in its entirety; rather, I shall defend only the core of my international law argument i.e. the close connection between legislative Kompetenz-Kompetenz of the Community and judicial Kompetenz-Kompetenz of its Court. For the rest, I shall rely on the wisdom of readers to decide for themselves on the respective claims to persuasivness of my original article and of Weiler/Haltern's response.

Weiler/Haltern state that ´[t]he assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with judicial Kompetenz-Kompetenz is at the core of [my] argument'[257]; for them, this assumption is false[258]. They claim also that I do not offer any proof for the assumption. It may be that the discussion of this point in my article[259] was somewhat brief; so I seize this opportunity to expand on it. My central point is not the assumption that legislative Kompetenz-Kompetenz of an entity is an indispensable prerequisite of the judicial Kompetenz-Kompetenz of a court of that entity, although I consider that there is a strong prima facie case in favour of such an assumption. My central point is rather that, in the case of the ECJ, there are no sufficient indications for refuting this prima facie case, and this is what I shall try to demonstrate in this rejoinder. If this demonstration succeeds and the core of my argument is thus restored, I am confident that its remaining pieces will fall into place as well.

II. The jurisdiction of a court to decide on the ´constitutionality' of a norm is at the borderline between judicial and legislative competences. Indeed, decisions of a court to quash a norm as unconstitutional have repeatedly been deemed to be ´negative legislation'[260]. Whilst this point is not relevant to the present discussion, the following question is: whether a court decision wrongly ´maintaining' in force a legislative act issued outwith the competence of the issuing body is a (purely) judicial, or (also) a legislative act. As the original legislative act was, in the period between its enactment and the decision of the court, by definition either void or at least voidable[261], it is only the decision of the court which makes it valid. It follows that a decision of a court by which a void or voidable legislative act is (wrongly) declared to be valid must be considered to be an act of legislation[262]. If one accepts this reasoning, the assumption that a Community without legislative Kompetenz-Kompetenz cannot contain a court with such Kompetenz-Kompetenz certainly gains in force.

Even if the above reasoning is not considered convincing, it is important to realize that a distinction must be drawn between the jurisdiction of an international court to decide on its own competences - a form of jurisdiction exercised by any international court[263] - and the jurisdiction of such a court to decide on the legislative competences of the international organization of which it is an organ. It is the latter type of judicial Kompetenz-Kompetenz that is relevant in the present context[264]. Contrary to the former type, it is not self-evident.

III. In discussing the connection between legislative Kompetenz-Kompetenz and judicial Kompetenz-Kompetenz of the latter type, it is useful to distinguish between two basic types of competence according to its holders i.e. legal entities on the one hand and their respective institutions on the other[265]. The first, dubbed Verbandskompetenz in German, is a competence of the legal entity as such, in public law e.g. a township, a county, a state or an international organization. The fact that some kind of action is within the competence of a legal entity does not make it possible to state which institution of the entity may exercise that competence. On the other hand, the fact that some kind of action is outwith the competence of such an entity does make it possible to state that none of its institutions can perform that action.

The second type of competence, dubbed Organkompetenz in German, is the competence of the different institutions of a legal entity, in public law, in the case of a State, e.g. of the different branches of Government or of some special agencies. As institution of the legal entity, their competence is, in principle, circumscribed by the competences of the legal entity itself: the Organkompetenz can only exist insofar as there is Verbandskompetenz. All this is quite straightforward and even, I submit, self-evident. And it must follow, at least in principle, that the competences of the ECJ which, according to Art. 4 (1) ECT, is one of the institutions of the Community, do not go beyond the competences of the latter[266].

As to the Community, it appears to be common ground that its powers are ´attributed - i.e. limited by the explicit or implicit grants in the Treaty, as interpreted by the rules of international law'[267], in other words, that there is no Kompetenz-Kompetenz of the Community as such; the Verbandskompetenz of the Community does not include the competence to enlarge its own powers[268]. From this it would follow, prima facie, that there cannot be a competence of any of the Community institutions - including the ECJ - to enlarge the powers of the Community. In addition, this consequence is expressly spelt out in the EC Treaty itself: according to Art. 164 ECT, ´[t]he Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed'[269].

IV. It is this consequence which Weiler/Haltern call into question, even into a whole series of questions[270]. But as they apparently fail to see the prima facie strength of the above argument[271], they are content to ask those questions and do not venture to attack it outright, although some lines of attack are implicit in their response. Indeed, there might be different lines of that kind open to them. A first line of attack, implicit in Weiler/Haltern's insistence that judicial Kompetenz-Kompetenz is something quite different from legislative Kompetenz-Kompetenz, might consist in claiming that whatever the ECJ decides, it does not amount to enlarging the Community's powers. To give a fictitious example[272]: on that view, a judgment of the court maintaining in force a Commission regulation setting up a European army[273] would not amount to such an enlargement[274]. How is that point to be argued? One could propose that the ECJ is not acting on its own, in such a judgment, but only reacting, and that it is in reality the Commission that acted (doubly) ultra vires, outwith its Organkompetenz and the Community's Verbandskompetenz. But the fact remains that only the ECJ's judgment, according to the view of its judicial Kompetenz-Kompetenz, would validate the Commission regulation, and the co-operation of two Community institutions would enable the Community to go beyond its Verbandskompetenz. Therefore, it must be immaterial that the Court cannot ´go it alone' but is dependent on the action of another institution and a relevant case being brought before it. So this line of attack must fail.

A second line of attack might consist in denying that the jurisdiction of the ECJ is limited by the Verbandskompetenz of the Community. Of course, it is open to Contracting States to conclude, under international law, one (or more than one) treaty setting up, on the one hand, an international organization with a certain Verbandskompetenz and, on the other, a court with its own distinct jurisdiction (in which case that court would have its own Verbandskompetenz probably equivalent to its Organkompetenz). Indeed, this is the case of the ICJ - according to Art. 92 of the UN Charter the UN's ´principal judicial organ' - whose jurisdiction (including its Verbandskompetenz) is laid down, in Art. 36 of its Statute, quite independently of the powers of the political organs of the UN set out in the latter's Charter (to which the Statute, however, refers in part). Such a denial of the limitation of the ECJ's jurisdiction by the competences of the Community appears to be implicit in Weiler/Haltern's question why ´the Treaties cannot establish a court, the ECJ, with judicial Kompetenz-Kompetenz (i.e., the power to be the ultimate arbiter of disputes concerning the extent of those limited competences) ...'[275]. Indeed, as just indicated, there cannot be any reason why the Treaties (or, rather, the Member States by treaty) could not establish such a court. The question is rather whether they have done so[276].

Weiler/Haltern, I suppose, would affirm that the treaties have done so[277]. They would rely on Arts. 173-177 ECT[278]. And indeed, as stated in my original article, the ordinary meaning of these provisions appears to confer such a jurisdiction on the ECJ[279]. The problem is to square these provisions with the equally clear provisions which confine the ECJ within the Verbandskompetenz of the Community i.e. Art. 4 ECT (´[t]he tasks entrusted to the Community shall be carried out by ... a Court of Justice')[280] and Art. 164[281]. This problem, it appears, has not even be addressed by Weiler/Haltern. So as not to repeat myself, may I refer in this connection to the discussion, in my original article[282], of the distinction between formal and material authorization[283] which, I submit, supports the conclusion that the Member States have not established a court whose jurisdiction includes the competence conclusively to decide the respective competences of the Community and its Member States and, by this means, to go beyond the Verbandskompetenz of the Community as a legal entity[284]. Therefore, the second line of attack must fail.

V. However, something close to addressing the problem of squaring the different provisions of the EC Treaty quoted above can be found in the rather curious last part of Weiler/Haltern's response: ´Redefining the Decisive Question'[285]. There, they assume that the ideas presented in my original article are fuelled by concerns not so much about the idea of a centralized court[286] but about the performance of ´this particular court', and they even express sympathy with such concerns[287]. But discussing concerns about the performance of ´this particular court' is tantamount to an argumentum ad personas and, as such, appears to me quite unacceptable in the present context[288]. However, the argument of Weiler/Haltern reveals its true meaning, it is submitted, if read together with the solution they suggest to the problem of the performance of the ECJ i.e. the establishment of a Constitutional Council in the mould of its French namesake which ´would have jurisdiction only over issues of competence ...'[289], and with the proposed composition of that Council: ´Its president would be the President of the ECJ, and its members would be sitting members of the constitutional courts or their equivalents in the Member States'[290]. This proposed composition makes it clear that the Constitutional Council, which is portrayed by Weiler/Haltern as ´a Union institution'[291], would in fact belong to a level above the Community[292], distinct from but comprising both the Community and the Member States[293].

Seen in the light of this proposal, or rather the shortcoming which this proposal is meant to remedy, the true meaning of the apparent argumentum ad personas about the performance of ´this particular court' appears to be an argumentum ad rem i.e. the argument that the ECJ as part of the Community level is, by reason of this very position, and not by reason of its particular performance, not above suspicion of bias in a case concerning the Community's Verbandskompetenz[294]. Moreover, the fact that Weiler/Haltern consider this argument with some sympathy[295] seems to indicate that they accept, at least in part and perhaps without realizing it, the ultimate correctness of my assumption that the European Treaties did not, in fact, establish a court having judicial Kompetenz-Kompetenz: the argument may well be taken in order further to buttress the other argument[296] that the Member States, when concluding the European Treaties, cannot be understood as having given the ECJ jurisdiction to go beyond the Verbandskompetenz of the Community itself.

VI. There are two final points I wish to address. Weiler/Haltern claim that the solution advocated in my original article does not allow for a dialogue between the ECJ and national courts but rather provides for a national diktat[297]. However, this is not the case. Rather, I have insisted on the national court's not taking a decision without the ECJ having been asked for its opinion[298]. By those means, the national courts will be able to decide in full knowledge of the views of the ECJ[299], and this is what dialogue is all about. I would agree however that a judicial organ on a third, ´supra-Community' level, composed as the Constitutional Council proposed by Weiler/Haltern but deciding on questions of Community and national competences, in a procedure akin to the one under Art. 177 ECT, on requests by certain national courts and the ECJ respectively, might offer a more adequate institutional framework[300].

Lastly, Weiler/Haltern detect in my original article[301] ´an unhappiness with the erosion of state sovereignty in a classical sense'[302]. One may possibly derive such an impression by looking exclusively at the conclusions I draw. However, if one also takes into consideration the reasoning contained in my original article, one will find that I defend the pre-eminence, in questions relating to the respective competences of the Community and its Member States, not of ´state sovereignty' but of courts constituted under a national constitution over the ECJ which was set up under international treaty law. This defence, at the present stage of the development of the Community, has more to do with the respect for the democratic credentials of the national constitutions in question than with the aspect of sovereignty[303]. I submit that this evaluation of the respective democratic credentials of the national constitutions and of the founding treaties of the Community has influenced the drafting of the provisions, in those treaties, on the jurisdiction of the ECJ in such a way that a correct interpretation shows the ultimate pre-eminence of the national courts. To change this situation, which is admittedly rather unsatisfactory from the viewpoint of European integration, I have been pleading - without seriously expecting short-term success - for a European constitution to be voted by the European people[304]. From this angle, the whole analysis of the possible foundations of an autonomous Community legal order in my original article should be read as an exhortation not to rely on the foundations that exist but to found the European Community on a constitution ordained by popular mandate. All efforts to found an autonomous legal order, i.e. an autonomous supremacy of Community law over national constitutions, including the pre-eminence of the ECJ over national courts, on any other basis, however sagaciously argued, are very much second best and, I submit, must ultimately founder[305].

[*] Dr. jur. utr., LL.M. (Edin.); Court of Justice of the EC, Luxemburg; Privatdozent, Humboldt University at Berlin. All opinions expressed are purely personal to the author.

[255]J.H.H. Weiler/ U.R. Haltern, ´The Autonomy of the Community Legal Order - Through the Looking Glass', 37 Harv. Int'l LJ 411 (1995/96).

[256]Th. Schilling, ´The Autonomy of the Community Legal Order', 37 Harv. Int'l LJ 389 at 403 et seq. (1995/96).

[257]Weiler/Haltern (supra n. 1), at 437.

[258] Ibid.

[259]Schilling (supra n. 2), at 406 and n. 99 referring to Th. Schilling, ´Artikel 24 Absatz 1 des Grundgesetzes, Artikel 177 des EWG-Vertrags und die Einheit der Rechtsordnung', 29 Der Staat 161, 176-79 (1990).

[260]Cf. K.A. Bettermann, ´Richterliche Normenkontrolle als negative Gesetzgebung?', DVBl. 1982, at 91, reporting.

[261]The argument is based on the assumption that a lack of competence in the issuing body is a valid legal argument against the validity of an act issued by that body. Whilst this assumption is correct in the case of the Community [cf. Arts. 173 (2), 184, 177 (1) (b) ECT], it is not universally correct; cf. e.g. Art. 113 (3) of the Swiss constitution.

[262]Th. Schilling, Rang und Geltung von Normen in gestuften Rechtsordnungen 581 (1994).

[263]Cf. Art. 36 of the ICJ Statute; F. Berber, 3 Lehrbuch des Völkerrechts 74 (1977); more generally W.Wengler, 1 Völkerrecht 729 (1964).

[264]Weiler/Haltern (supra n. 1), at413, define as judicial Kompetenz-Kompetenz ´the competence to declare or to define the competences of the Community'. But of course, the hard question is the power to enlarge the competences of the Community.

[265]Cf. e.g. H.J. Wolff/ O. Bachof/ R. Stober, 1 Verwaltungsrecht352 (10th ed. 1994).

[266] This conclusion from legislative to judicial competences is considered a ´short circuit' by G. Hirsch, ´Europäischer Gerichtshof und Bundesverfassungsgericht - Kooperation oder Konfrontation?', 49 NJW 2457 at 2463 (1996).

[267]Weiler/Haltern (supra n. 1), at437.

[268] This is also the position of the ECJ; cf. most recently Opinion 2/94, 3-28-1996, para. 30; Hirsch (supra n. 12 ), at2465.

[269] Emphasis added.

[270]Weiler/Haltern (supra n. 1), at437.

[271]Indeed, relying on Art. 173 (2) ECT which lists among the grounds of review ´lack of competence', Weiler/Haltern (supra n. 1), at431 claim that the Member States ´could have restricted the competence of the Court'. But this would have been, it is submitted, quite unnecessary: the boot is on the other foot.

[272]Already used by Schilling (supra n. 2), at174.

[273]Cf. Art. J.4 (1) TEU: ´... shall include ... the eventual framing of a common defence policy, which might in time lead to a common defence'.

[274]But cf. Weiler/Haltern (supra n. 1), at429: ´Arguably, a state is not obligated by an otherwise-binding [judicial dispute] resolution if the resolution was adopted ultra vires'.

[275]Weiler/Haltern (supra n. 1), at437. It is also implicit, on the one hand in the reasoning reproduced supra n. 14 and, on the other, in the claim [Weiler/Haltern (supra n. 1), at427 et seq.] that ´state practice confirms the overwhelming view that when a treaty sets up ... judicial organs, autointerpretation is legally squelched' (footnote omitted). But this claim is based just on the type of generalized interpretation that must give way to the interpretation of a specific treaty; cf. Schilling (supra n. 2), at 405. And cf. Hirsch (supra n. 12 ), at2463.

[276] Weiler/Haltern (supra n. 1), at441, are misreading my original article [Schilling (supra n. 2), at 407] when they protest, quite correctly, that ´[t]he general rule of international law does not allow ... for a state to use its own domestic law as an excuse for non-performance of a treaty'. My claim was only that largely parallel constitutional provisions of the Contracting States prohibiting the transfer of Kompetenz-Kompetenz to the Community may be used to ascertain the intention of the parties (´the presumptive will of the Member States in concluding the European Treaties') not to transfer Kompetenz-Kompetenz, and may thus further buttress an interpretation, reached by other means, which denies such transfer.

[277]And cf. Hirsch (supra n. 12 ), at2463.

[278]Weiler/Haltern (supra n. 1), at430 et seq. For the record, I would point out that I have discussed Art. 177 ECT, in a similar context, at length in Schilling (supra n. 2), at176 et seq.

[279]Schilling (supra n. 2), at 405 et seq.

[280]Emphasis added.

[281]Quoted above at n. .

[282]Schilling (supra n. 2), at 406 et seq.

[283]It is not quite correct to draw a parallel between the procedure I have in mind, on the basis of a merely material authorization of the ECJ, with the kindergarten game of ´Heads I Win, Tails You Lose', as Weiler/Haltern (supra n. 1), at432 et seq., do. But it is true that under this procedure, competences claimed by the Community must pass a double test: they must be accepted not only be the ECJ but also by the competent national courts. I fail to see why this result should be inconsistent with a meaningful interpretation of the EC Treaty. Contrary to what Weiler/Haltern (ibid.) maintain, it does not imply that a Member State may unilaterally abrogate a treaty provision on the grounds that it is ultra vires. Treaty provisions, as part of the Community's primary law, cannot be ultra vires of the Community set up by these treaties. On the other hand, treaty provisions are, as such, at least in some Member States part of national law and may be declared void, under certain circumstances, by a national (constitutional) court even if this involves a breach of international law. Rather, the double test described above applies only to secondary Community legislation.

[284]Hirsch (supra n. 12 ), at2462 and 2466 claims for the ECJ ´the "competence" for an (incorrectible) wrong decision' and ´the ultimate responsibility for an irreversible error', respectively (my translation) i.e. a formal authorization. A ´competence' of the kind claimed by Hirsch for the ECJ could be based on an ´error calculus' (Fehlerkalkül) as developed by A. Merkl, Die Lehre von der Rechtskraft entwickelt aus dem Rechtsbegriff 293 (1923), and defined thus (my translation): ´Error calculus is the positive law provision that makes it possible in law to ascribe to the State acts not meeting all the requirements, laid down elsewhere by positive law, for their coming into being and validity i.e. the provision that permits such acts to be regarded as law in spite of those faults.' And cf. H. Kelsen, Reine Rechtslehre 272 et seq. (reprint of the 2nd ed. 1960, 1992). But the - in my view insurmountable - problem is to find such an error calculus in the positive law relating to ECJ decisions on the respective competences of the Community and its Member States. Indeed, it is exactly this right to err which the ECJ is denied by the merely material authorization it is granted; cf. Schilling (supra n. 2), at 177 et seq.

[285]Weiler/Haltern (supra n. 1), at442 et seq.

[286]The idea indeed is unexceptional but, as far as I can see, no court with the jurisdiction attributed to it by Weiler/Haltern has been established by the European Treaties.

[287] Weiler/Haltern (supra n. 1), at442. And cf. U. Everling, ´Zur föderalen Struktur der Europäischen Gemeinschaft', in Festschrift für Karl Doehring, Berlin 1989, 179 at 196; idem, ´Die Stellung der Judikative im Verfassungssystem der Europäischen Gemeinschaft', 112 ZSR I 337 at 344 (1993).

[288]Hirsch (supra n. 12 ), at2465, discusses this question in a different context and concludes that the ECJ fulfills its supervisory task also in the field of the limitation of competences.

[289]Weiler/Haltern (supra n. 1), at447. This Council ´would decide cases submitted to it after a law was adopted but before coming into force'. But there is an obvious objection to closely following the French example: the specific legal-political circumstances which led, in France, to the specific limitations of the Conseil constitutionnel's competences i.e. the deep rooted idea of the suprématie des lois which made it unacceptable to have the constitutionality of parliamentary statutes reviewed by the courts is completely absent in the case of the Community; indeed, there are no parliamentary statutes here. There are other objections: the short-term validation of Community law adopted ultra vires, as long as no competent body impugnes it, and the imbalance between national and Community law in so far as (apparently) only the latter may enjoy such validation.

[290]Weiler/Haltern (supra n. 1), at447.

[291]Ibid. It is not quite clear whether this portrayal seeks to assign the Council not to the Community but specifically to the Union; cf. Weiler/Haltern (supra n. 1), atn. 3.

[292]Therefore, the treaty establishing such a council could easily and clearly free the latter from the limitations to which the ECJ's jurisdiction is subject.

[293]This is reminiscent of a construction of the Federal Republic of Germany defended by some German constitutional lawyers [cf. e.g. H. Nawiasky, 2/II Allgemeine Staatslehre 203 et seq. (1955); 3 Allgemeine Staatslehre 159 et seq. (1956)] but rejected by the FCC [BVerfGE 13, 54 (77 et seq.)]: it is the construction of a ´three-tiered Bundesstaat', consisting of Länder, Bund and Federal Republic, in which the Federal Republic would comprise the two other levels and would have only two institutions, representing the whole and not just the Bund, i.e. the Federal Constitutional Court and the Federal President.

[294] Conversely, Weiler/Haltern (supra n. 1), at432 speak of the ´oft-partisan national courts'. And cf. M.E. Streit/ W. Mussler, ´The Economic Constitution of the European Community - "From Rome to Maastricht"', in Constitutional Dimensions of European Economic Integration 109, 127 (F. Snyder, ed., 1996) discussing the undermining of the principle of attributed competences by the use of Art. 235 ECT: ´The European Court is not on the record for having opposed the extensive use of this provision.'

[295]Cf. supra n. 33.

[296]Supra n. 22.

[297]Weiler/Haltern (supra n. 1), at447.

[298]Schilling (supra n. 2), at 408. This requirement, it appears, is not always respected by the German courts; cf. the decisions quoted by Hirsch (supra n. 12 ), at2460 et seq.

[299]To the ECJ, the idea of giving an opinion to a national court, as opposed to taking a binding decision, is anathema; cf. Opinion 1/91, 1991 ECR I-6079, para. 61; Case C-346/93, Kleinwort Benson, 1995 ECR I-615, para. 24. But there is nothing intrinsically absurd in a court's giving, in certain circumstances, opinions instead of handing down binding decisions.

[300]On possible difficulties engendered by the President of the ECJ participating in the work of the Constitutional Council cf. Opinion 1/91, 1991 ECR I-6079, para. 47-53.

[301]And in other articles I have published.

[302]Weiler/Haltern (supra n. 1), at442 and n. 119. I shall answer this point only in relation to my original article. However, it is submitted that the reasoning developed in the text applies also, mutatis mutandis, in relation to the other articles quoted by Weiler/Haltern (supra n. 1), atn. 119.

[303]Cf. e.g. Schilling (supra n. 2), at 400.

[304]Schilling (supra n. 2), at 409. And cf. Th. Schilling, ´Die deutsche Verfassung und die europäische Einigung', 116 AöR 32 at 69 et seq. (1991).

[305]Cf. also W. Streeck, ´Neo-Voluntarism: A New European Social Policy Regime?', in Constitutional Dimensions (supra n. 40) 229 at 232.

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