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Political integration of constitutional states, including the fifteen members of the European Union, requires a constitutional basis. The constitution is the supreme affirmation of the primordial power of a people over themselves (as a collectivity), and over the space they occupy. The constitution organizes various branches of government, establishes the balance between them, and sets the limits of power by guaranteeing a set of fundamental rights against (public or private) trespass. From this source derive the legitimacy of power and the validity of the law it enacts. In short, the constitution "constitutes" the state by establishing it as a legal entity[26].
Clearly, the process of integration profoundly transforms the states involved on a number of levels.
By definition, integration involves a reduction in state sovereignty.[27] The extent of this reduction is pre-defined. It may be indefinitely increased either through reform of the founding Treaties, or, more informally, by the ever widening interpretation of the Treaties clauses establishingthe jurisdiction of Community bodies over member states. The tendency to increase the power of the Community, and consequently to limit that of the member states, is not a passing phase, nor is it attributable to power-hungriness among "Eurocrats" in Brussels. Rather, this tendency is structural - a necessary consequence of the telos of the system, which the Treaty of Maastricht defines as the search for "a more and more perfect union." As this formulation indicates, the process of integration is set on an infinite time scale without pre-defined techniques for determination and attribution of competencies to the Community.[28]
This deliberate alteration of the status of member states, in turn, generates other changes, which are unavoidable if the integration process is to continue. First, integration changes the very structure of national legal systems. Logically, the submission of the State to the Community requires that Community law prevail over national law in the sphere of Community responsibilities. In each of the member states, the Community is source of a new law whose provisions prevail over domestic norms of any level. The supremacy of this new body of law liberates the national judges who must apply it from their duty of absolute submission to nation law, including national constitutional law, and, in effect, transforms them into Community judges. The main implication of this release is to allow national judges to escape in some measure the binding force of fundamental rights as defined in their respective national constitutions.[29]
Secondly, the supremacy of Community law substantially modifies the formal subordination of governments to their respective Parliaments, whose principal consequence for the domestic legal orders of member states is the supremacy of statutes over delegated legislation and executive orders. The supremacy of "derived" or secondary Community law, made by the representatives of national governments in the Council of Ministers, turns upside down this relationship.
Finally, integration also alters the balance established by national constitutions between the central government, and regional and local entities and organizations.
Providing an adequate constitutional basis for a transformation of this magnitude is necessary for the states involved, since their own legitimacy would fall into doubt if changes were carried out in opposition to their respective constitutions. The Community is also in vital need of an articulated constitutional basis, given that it has only the power granted to it by its member states and its law exists only to the extent that national judges, whose decisions cannot be reviewed by the European Court of Justice, respect it.[30] Obviously, judges will not be able to respect Community law if its validity and its asserted primacy have no basis of support in the constitutions they are bound by oath to uphold.
In spite of its indispensability, the constitutional grounding of the integration process is still inadequate. Moreover, little attention is paid to this phenomenon, which has been termed the `constitutional deficit.' The European Court of Justice has managed, in the course of its admirable work in constructing a system of European law, to ignore the problem. Theoreticians of European law have tended to scorn the issue and to dismiss thoughts on it as manifestations of "anti-European" nationalism. This attitude may have been somewhat justified in the past insofar that the constitutional deficit was seen as a result of the very methods used to bring about integration. However, the old justification no longer holds.
Until recently methods developed in the early stages of integration performed successfully -- and still do in some reduced measure. The very success of these methods has, however, exhausted their possibilities and the advancement of the European Community as a genuine Rechtsgemeinschaft demands further progress on the constitutional question.
The unavoidability of this question is increasingly evident, as much in efforts to endow Europe with a "constitution" as in the amendment of national constitutions to bring them into congruence with the Treaty of the European Union. However neither present efforts directed toward developing a European constitution, nor the reform of national constitutions is sufficient to provide the integration process with the uniform constitutional basis it demands. Constitutional amendments in France and Germany perhaps have lent a stronger basis to the process of integrating these countries, but carried as they are from a domestic point of view, these steps fail to alleviate the constitutional deficit of the Community, and, to the extent that they deepen its heterogeneity, they may contribute to worsen it.
As stated above, the integration process deeply alters the constitutionally determined balance of powers inside the state. Consequently, analysis of the "constitutional deficit" could proceed by focusing on each type of imbalance the deficit creates. My analysis will focus on the judiciary, in part because I am a lawyer and this in my natural inclination, but also because the judicial imbalance mirrors and encapsulates all others.
Before getting to the nub of the problem, we must nevertheless review succinctly the European Court's answer to the constitutional problem. This answer is. the standard doctrine supporting ECJ's requirement that all national judges give primacy and direct effect European law, notwithstanding the exigencies of corresponding domestic law.
The core of the standard doctrine is the idea of `two-coordinated but distinct legal systems' which has been the cornerstone of European integration, at least since the decision in Internationale Handelgesellschaft.[31] Indeed, the European Court speaks of distinct but coordinated legal orders - not of independent ones. However, the ECJ's formal denial that the national judiciaries actually control the validity and coordination of Community rules, coupled with its failure to scrutinize the form and the terms by which national constitutions should articulate their compliance, raises serious doubts about the substantive value of this reciprocal independence.[32]
These independent but coordinated legal systems are applied simultaneously to the defendant by a single judge operating inside a single national jurisdiction. Indeed, the proclaimed coordination is not horizontal, but vertical and hierarchical. The doctrine of `dual ordainment' establishes that Community treaties and Community law have both direct effect in the territory of the member states upon passage, and supremacy over domestic law -- previous or subsequent, constitutional or statutory.
Since many European constitutions place international treaties on a supra-legal level, the main practical consequence of this doctrine with respect to treaties stems from the direct effect provision. However, it is the supremacy clause which, . precludes any challenge to the constitutional validity of community treaties, even via control over the constitutionality of the laws authorizing their ratification or their incorporation into national law.[33]
The effects of the doctrine are truly momentous when it is applied to "secondary law", or law created by Community bodies to which no reference is made in national constitutions in all but the few cases referred to below. Although theoretically derived from domestic law by means of authorization clauses, the supremacy, direct effect, and also the validity of secondary law are based exclusively on the treaties and cannot be questioned by a national judge under any circumstances.[34]
The practical indispensability of this doctrine and the internal coherence it imposes on Community law are beyond question. The doctrine's main flaw (which is considerable) is that it is built, so to speak, `on air' with only the weakest basis in the member state constitutions. Formally, the doctrine supports the requirement that the founding treaties, or their subsequent modifications, have a constitutional grounding in each member state. However, in practice no regard is given to the quality of this grounding, or even whether it exists.[35] Although the European Court has rightly maintained that the relationship between the Community and the member states is not international in character, it persists in viewing member states as the "black boxes"[36] of classic International Law, whose internal legal problems have no effect on the obligations imposed by Community law.
The process of integration rests foremost on generic clauses that enable the state to limit sovereignty under conditions of reciprocity, with the aim of ensuring peace and justice in the international order;[37] or to transfer sovereignty rights (Germany, article 24), legislative, executive and judicial authority (Netherlands, article 67; Luxembourg, article 49a), or certain powers (Belgium, article 25a) to international institutions.[38] In the United Kingdom authorization to ratify each of the treaties was granted by a single ordinary bill, and in Ireland this power was incorporated into the constitution following a referendum.[39] Generic enabling according to various formulas also has been used by those states incorporated into the Community at a later date. Examples include article 9.2 of the Austrian constitution,[40] article 20 of Denmark's constitution, which authorizes the delegation of powers derived from the constitution,[41] and article 93 of Spain's constitution, which includes a formula very similar to that used in the old article 24 of the German constitution.[42] With unusual eclecticism, Greece's constitution allows the recognition of authority derived from the constitution in "the bodies of international organizations" (article 28.2) while also acknowledging restrictions on its sovereignty (article 28.3).[43]
The increasing de-constitutionalization of the European Community is evinced by the fact that, although France and Germany have amended their original "opening clauses" or supplemented them with additional clauses to accommodate their respective constitutions to changing circumstances, none of the other member countries have followed suit. The "opening" these clauses intend to produce is more akin to a manifestation of political will than an exercise of serious legal reasoning. In the short term, the substitution of politics for law menaces mainly only the member states; but in the medium term it endangers the European Community and the goal of achieving "integration through law."
The nonexistent or patently weak basis of the standard doctrine, itself a product of legal activism,[44] places national judges in a difficult and paradoxical position. It obliges them to act according to rules which, by definition, form no part of the ordinances granting their authority to judge, and to which, at least with respect to secondary law, the national legal order does not expressly refer. In few cases the precepts establishing direct effect and the primacy of Community law have been, with good judgement, incorporated into the constitution, thereby "constitutionalizing" the doctrine.[45] In other cases, binding judges to European law has been achieved, to the extent it has been achieved at all, only through barely consistent and extremely weak judicial constructions.
The application of European law raises a relatively minor problem in countries without a system of constitutional jurisdiction, where judges are precluded absolutely from questioning the constitutionality of prevailing norms. Problems in applying European law arise in such systems only when statutes are promulgated that conflict with existing Community regulations. If the European norm belongs to the Community primary law, its application depends upon the provisions of corresponding domestic systems with regard to international treaties. With respect to secondary law, since except in the few cases referred to above, domestic legal orders contain no provisions, whereby a national judge can fasten his or her decisions, he has to do it either on the standard doctrine itself , or on the application, by analogy, of treaty dispositions - an approach that is, in any case, not easily reconcilable with a legal culture based upon the principle of judicial subjugation to the law. Thus, it comes as no great surprise that judicial attitudes toward Community law, especially with respect to its supremacy over prior national law, have varied among the EU member states.[46] Further variations of note are brought about by the differing degrees of attention actually paid to European law by national judiciaries, and the effectiveness of means available to rectify lack of observance through appeal to the corresponding supreme court.
The most serious problem is how to bind judges to European law on terms set by the European Court in those countries that have a system of judicial review of legislation, particularly in cases, common in Europe, where judicial review is organized according to the centralized model with a Constitutional Court. In such contexts, the problem posed by the potential conflict of secondary European law and domestic statutory norms, which a procedure for constitutional challenge places on a different grounding, is compounded by the need to prevent open discord between European law and the national constitution and all the problems that would entail.
Conflict between Community law and national statutes passed later in time could be treated merely as a flaw in the constitutionality of the statutes in question given that, from a domestic point of view, the primacy of Community law derives from the `opening clauses' of the constitution. Such was the reasoning of the Italian Constitutional Court in the Granital case. The European Court's emphatic rebuttal of this view in the Simmenthal sentence,[47] which "de-constitutionalizes" the relationship between Community and national law, has the advantage of clarity but the disadvantage of depriving effective action before the constitutional court if a national judge either fails to apply, or misapplies, Community law.[48] For this reason, "de-constitutionalization" has not been taken to its logical extreme in Germany, where the constitutional court regards a national judge's refusal to refer questions to the Court of Justice in circumstances specified in article 177 of the Treaty of the European Community as a violation of article 101 of the German constitution guaranteeing the right to procedural justice akin to the Common Law notion of due process.
A second type of problem stems from uncertainties posed by the real or imagined discord between European law and national constitutions. Until recently, this problem emerged only with regard to the fundamental rights guarantee by these constitutions. In all European countries that have constitutional courts, the main task of these courts is to ensure respect for fundamental rights by invalidating all legal provisions found to be in violation. Because giving direct effect to European law requires its application by national judges, constitutional courts have also attempted to secure control over domestic applications of European law. From the outset, the European Court strongly rejected granting such control and instead emphasized the primacy of community law over national at no matter what level. The result of this rejection was the rise of a complex doctrine, particularly in Germany and Italy, whereby the respective national courts, without abdicating their authority to exercise control over domestic applications of European law, tacitly refrain from exercising it in practice. As long as the Community maintains protections of constitutional rights equivalent to those provided in the national system, the national courts will not interfere. A detailed account of the doctrine's evolution and its strengthening by the "opening" of the Community to basic rights,[49] first by means of the ECJ, and subsequently through the Treaties, is hardly required in order to demonstrate its purely pragmatic nature and the inherent instability it introduces.[50] The absence of a solid theoretical basis to solve this type of problem may have even more momentous consequences after the "nationalization" of community law.
Constitutional amendments introduced in France to make ratification of the Maastricht Treaty possible, and in Germany as a direct consequence of the ratification itself, imply a dramatic change for these states and inaugurate two very different paths by which to construct a relationship between European and domestic law. Both France and Germany give constitutional status to membership in the Union as well as to their strong affirmative commitment to the EU's progressive development, but at the same time both countries erect almost insurmountable limits to this commitment. In other respects, however, the techniques they employ differ and must be considered separately.
The new article 88-1 of the French Constitution introduces a formula ("the common exercise of certain powers") to circumvent the conflict that arose under the French Constitutional Council's old distinction between limitations on powers (admissible) and transfers of powers (inadmissible).[51] The amended version is more clearly reflective of reality and may put an end to unhelpful doctrinal controversies,[52] but it contributes little to the actual resolution of the problems implied by that reality. Unlike the German reform, France's amendment does not "constitutionalize" the principles of the European Union, nor does it incorporate any authorization for subsequent relinquishments of sovereignty. Instead it conforms to the doctrine defined by the Constitutional Council in the decision referred to above, incorporating two new precepts (articles 88-2 and 88-3) to authorize waiver of specific powers that "affect the essential conditions for the exercise of sovereignty."[53]
The German reform, by contrast, supplements the generic authorization contained in article 24 with specific authorization to relinquish powers to the Union, and anticipates the possibility that laws of authorization for subsequent treaty reforms may modify the constitution, assuming that established procedures are followed.[54]
The significance of these reforms has given rise to a series of analyses too extensive to summarize here. Leaving aside other considerations,[55] we wish only to observe that constitutionalization of the ties binding France and Germany to the European Union, together with the inclusion of the "essential principles" of the Union[56] in the new article 23 of the German constitution (imitated in Portugal[57] and, to a lesser extent, in Sweden[58]), point to the "nationalization" of European law.
The "nationalization" of Community law extends the problem of control over the constitutionality of Community law to new areas, thereby creating new problems and also new possibilities. Indeed, it is logically inevitable that primary Community law will be used not only as a parameter of constitutionality by which to judge the validity of Community norms, but also as part of the general `law of the land' used to decide the domestic applicability of secondary Community law. In France the possibility of using Community law as a measure of the constitutionality of national law has been confirmed by a small number of authors, who cite for support the Constitutional Council's 2 September 1992 decision (dubbed `Maastricht II') and, specifically, its reference to the incorporation of article 8B of the Maastricht Treaty into article 88.3 of the French Constitution.[59] In Italy, the constitutional court has already incorporated this practice through the sentence handed down in 384/1994.[60] The German constitutional court, however, has extracted the most emphatic, and potentially dangerous illation from the newly forged bond between national and Community law, with implications for both bodies of law.
In the now famous decision of 12 October 1993, the German constitutional court revoked the doctrine of the Eurocontrol decision[61] and, at the same time, proclaimed that the Treaties granted it authority to control secondary law. The court based its reasoning on the limited nature of the transferred powers and the principle of subsidiarity, which is both an essential pillar of the Community system, and a component in the German constitution. The German decision formally safeguards the European Court's monopoly over the validity of Community law, thereby reducing the authority it had claimed and limiting it to control over the applicability of the doctrine on German territory. However, the generalizability of the doctrine means that Community norms declared non-applicable in all fifteen EU member states would indeed enjoy a strange validity.[62] Moreover, a declaration of inapplicability in just one state would create difficulties regarding the equality and reciprocity of obligations on which the transfer of sovereign rights is conditioned, in some cases by explicit constitutional provision.
Pragmatic solutions to these problems will certainly be found, just as they were in Solange II where Germany's commitment to the protection of fundamental rights was at issue. Dieter Grimm makes several thought-provoking proposals to this end in an recently published study,[63] but these by no means exhaust the range of possibilities for preventing serious legal conflicts from spinning off into potentially indefinite cycles of provisionality.[64] We are undeniably dealing with a set of purely pragmatic possible solutions that depend for their efficacy on the goodwill of various bodies, and not with a coherent theory that argues for the necessity of any one approach. Ironically, the very effectiveness of the pragmatic solutions generates a very real risk of blunting efforts to construct a constitutional theory of the integration process -- itself a matter of practical necessity and not merely the vain hope of legal academicians. Constitutional legal theory has a legitimating force that cannot be long disregarded without endangering the stability of soundness of democratic institutions. A policy of "legitimation though success" (if such a thing exists) is scarcely equivalent to establishing rule of law and a Rechtsgemeinschaft.
Whichever path is chosen, the task will not be an easy one. The ideas presented here are not a systematization of the principles that inspire any existing constitution, but rather the elaboration of the fundamentals of a constitution that does not yet exist, and which has the challenge of reconciling two distinct frameworks. If the integration process is to progress and consolidate itself, it cannot dispense with the supremacy of European law over national law, or the uniform application of European law by all member state judges. Equally important is the principle of sovereignty, by which national constitutions invest public bodies with authority and establish the validity of law.
The European Parliament has attempted repeatedly, with the support of many distinguished jurists, to correct the constitutional deficit in the integration process through proposal for a "European Constitution." [65] These attempts have the merit of responding to an evident need, but little possibility of success, given that the spirit behind them is at once excessively ambitious and resolutely timid. The vigor with which the Parliament has taken on the task of drafting a constitution for a political community whose ultimate contours are not yet known, and will not be known for some time, reveals the degree of its ambition. The timidity of the Parliament is revealed in the contents of the planned constitution, which propose little beyond a formal re-elaboration of the Treaties, whose "constitutional" nature already has been reiterated often and emphatically by the European Court.[66] In short, the proposed constitution would still be ontologically distinct from member state constitutions, and would remain separated from them by more than just the quotation marks in which the word itself is frequently placed. More importantly, it is unlikely to provide a solution to the material problems facing the Community.
The process of European integration has come a long way, but it is an open process without a complete and defined structure. For this reason, the "constitutionalization" of European integration has to be based on the only real, existing constitutions - the national constitutions. For the foreseeable future, the main foundation of legitimacy for Community authority will remain the democratic will of the peoples of Europe - not, unfortunately, the `will of the European people' which, at present, is largely inchoate. European law will continue to lean on the national constitutions for its validity. At least for the time being, there is no alternative to the doctrine of `two different but coordinated' legal systems. Nevertheless, it should be possible to refashion the doctrine to remove some of its current crudeness, and to remedy the defect of its "constitutional blindness."
If we accept, as we shall, that coordination is assured by the "opening clauses" in national constitutions, we must also accept that constitutional reforms inside the member states will alter the system of coordination, thereby necessitating doctrinal modifications at the Community level. In the profound post-Maastricht transformation of these clauses, the generic declarations that existed previously have been substituted by specific constitutional authorizations to make the bonds between the state and the Union explicit, and to define the nature and extent of the powers given up. Most striking is the trend toward inclusion of the essential guiding principles of Community action in the text of national constitutions. In summary, the "nationalization" of Community law has introduced substantial changes that should also be reflected in the doctrine. However, thus far there has been no indication of change, nor is it likely that the needed change will occur as long as the "official" refusal to take into account the content of national institutions persists.
As to what exactly the contour of the modified doctrine should be, it is unlikely that anyone, myself included, could at present lay out a practicable framework. Modification will have to proceed step by step, and the first step unquestionably should be to take all constitutions seriously, and to publicly acknowledge that the content and form of "opening clauses" are not purely a domestic matter.
The Inter-Governmental Conference, which is currently occupied with the structural problems of the Community, could include this point in its already extensive agenda and begin study on the possibility of a coordinated reform of the national constitutions. Efforts to align the main strands of reform to ensure a minimal degree of homogeneity in the constitutional bases of European integration, and to resolve the tension between integration and national sovereignty may appear utopian. However, other considerations apart, the goal of harmonizing national constitutions is likely less quixotic than attempts to provide Europe with a constitution even before it has been formalized as a political unit.
Constitutional reform is without a doubt an issue with direct implications for national sovereignty -- but no more so than the system of relations between parliament and government, and the Inter-Governmental Conference that passed the Treaty of Maastricht had no difficulty passing an additional declaration urging member states to promote the participation of national parliaments in European Union activities, and urging governments to "work, among other things, to create a context in which parliaments have access to the Commission's legislative proposals sufficiently early to examine them."[67] It would be assuredly excessive to suppose that the constitutional and legal reforms carried out in various states in order to ensure greater participation of national parliaments in the integration process are simply the practical application of this recommendation. At the same time, it would be inaccurate to conclude that the Conference recommendation has not favored these constitutional reforms. It should be possible to advance in a direction that favors the consolidation of integrationalist constitutional reforms and, in so doing, to endow the integration process with its needed foundation. Without doubt, these reforms are, on their own, insufficient to compensate for the many other deficits existing in the process of integration. But their realization would, at the very least, help to remedy its current legal schizophrenia.
[26] For a development of these ideas, see my prologue to J.L. Requejo, Sistemas Normativos: Constitución y Ordenamiento, Madrid, (1995).
[27] It should be recalled that sovereignty is a normative concept - not a sociological one. Sovereignty relates to the legitimacy of power and the validity of law. It is not an artifact of the magnitude of the former or the effectiveness of the latter, but rather sovereignty is an attribute of the power of the state. In addition, sovereignty is the power of a people over the state and over themselves as a politically organized society. Defined according to these terms, sovereignty is a postulate of legitimacy and is rightfully included among classic democratic principles.
[28] For more information on opinions regarding the system by which jurisdiction is assigned, see A.S. Milward, The European Rescue of the Nation-State, Berkeley and Los Angeles (1992) pp. 343-344.
[29] The European Court of Justice declared in its decision of 10 December 1969 in the accumulated cases between the European Commission and the French Republic that the existence of an inalienable core of national sovereignty rights cannot be invoked against the action and powers of the Commission. This view is the firmly held belief of the ECJ. We will return to this debate later in this paper.
[30] In the course of the current debate over the legitimacy of the Community's power, the derived nature of this power and the absence of an apparatus by which to ensure compliance with the decisions of the Community through "legitimate physical coercion" is frequently forgotten. This oversight calls into question the relevance of the debate. For a discussion of the non-existence of appellate jurisdiction in the European Court see K. Lenaearts, op. cit., p. 257.
[31] The verdict was given on 17 December 1970. The idea of a system of dual ordainment appeared even before this decision in the Costa-ENEL verdict of 15 July 1964, A. San Michele v. European Commission, but the verdict in Internationale Handelgeselllschaft makes the point more emphatically.
[32] See C.N. Kakouris "La relation de l'ordre juridique communautaire avec les ordres juridiques des Etats membres", in Du droit international au droit de l'integration, Liber Amicorum Pierre Pescatore, Baden-Baden: Nomos Verlag (1987).
[33] It is worth recalling that the decision in Van Gend en Loos, the first to affirm the direct effect of treaties, was awarded against the Netherlands, which had accepted the superiority of treaties over national law since the verdict of Hoge Road, 26 May 1906.
[34] Precluding judges from mounting challenges to this type of law is necessary to preserve its validity and prevent the emergence of conflicts between Community and national law. A national judge cannot declare a derived Community law invalid by holding it up against a domestic law, but when parties allege a purely "intra-community" basis for invalidity, the question can, and indeed must be, referred to the European Court. See, among others, the verdicts in Foto-Frost (22 October 1987) and Zuckerfabrik (21 February 1991).
[35] As noted above, neither Portuguese nor the Belgian constitutions contained the requisite provisions to join the Community at the moment of their incorporation. Moreover, it is clear that the European Court could not take into consideration the specific nature of each national constitution when it elaborated this doctrine. It is noteworthy that at this stage of the integration process the content of the operative clauses in the national constitutions has not yet become a Community issue.
[36] J.H.H. Weiler uses this term in his masterly study "The Transformation of Europe" in Yale Law Journal, vol. 100, No. 8 (July 1991).
[37] This formulation is included in the constitutions of both France (1946 preamble) and Italy (article 11).
[38] Article 67, which corresponds to article 92 in the 1983 text, was introduced in the Netherlands in 1953. The preceding article (91.3) envisages even the possibility of introducing constitutional amendments by treaty, providing the statute authorizing its ratification was approved by at least two-thirds of the votes in each chamber. This is the same quorum required for revision of the constitution, although revision demands, in addition, the dissolution of Parliament.
Article 49b of Luxembourg's constitution, which requires that the transfer be made for a specific length of time, is a result of the 1956 reform. Article 25a of the Belgian constitution (the text of which is preserved in article 34 of the present constitution) was introduced in 1970 as part of a more extensive reform on this matter that was never fully carried out.
[39] Initially on the Treaties of Paris and Rome, (resulting in Article 29.3), and subsequently through the addition of a new paragraph to the previous Article, the Single European Act and, finally, in Article 29.4 as regards the Treaty of Maastricht. With this modification a fifth paragraph was added to article 29 affirming in emphatic terms the primacy of European law, original or derived, with respect to the constitution. . Although the addition lends the force of law to the arrangement, it leaves open the question of its application in the case of a conflict between Community law and subsequent national laws.
The technique used by the Irish for their accession to the Community is the equivalent, for a country with a written constitution, to that employed in Great Britain. The European Communities Act of 1972 authorized the ratification of Community treaties, applied the force of European law to the domestic order, and also ensured its primacy - in the event Parliament did not decide differently. This Act has since been followed by others in relation to the Single European Act and the Treaty of European Union. British courts have interpreted these principles to ensure the primacy of European law unless the will of Parliament is unequivocally not to comply with Community obligations, as demonstrated by the famous Factortame and Equal Opportunities Commission verdicts.
[40] This modification was introduced by the constitutional reform of 1 July 1981. The specification, incorporated in this reform through an amendment, that the powers to be transferred were federal powers made it useless as a basis for Austria's accession to the Community. The path actually followed was to revise article 44 and article 50 the Austrian constitution. For more on this episode see I. Seidl-Hohenveldern, "Constitutional problems involved in Austria's accession to the EU," in Common Market Law Review, No. 2 (1995), pp. 727-741.
[41] According to article 42, treaty ratification in Denmark requires the affirmative votes of five-sixths of the members of Parliament or, alternatively, of the majority of voters in a national referendum.
[42] One part of the Spanish doctrine, which found an echo in the position of the Council of State, went so far as to maintain that the Treaty of Accession (and its subsequent revisions) could amend the constitution. This doctrine was overruled by the Constitutional Court in its declaration of 1 July 1992.
[43] In the Greek formulation, both the recognition of authority and the limitation of sovereignty must coalesce to "serve an important national interest". Moreover, limitations are conditioned on respect of human rights and democratic principles, as well as equality and reciprocity - conditions which apparently do not apply to the "recognition" of authority.
[44] For more on the tolerance of judicial activism and its relation to the nonexistence of a supra-national decision-making process, see J.H.H. Weiler, "The Transformation of Europe" in Yale Law Journal, Vol. 100, No. 8 (June 1991).
[45] For example, the constitutions of the Netherlands (art. 94) and Portugal (art. 8.3) provide a constitutional basis for the direct effect and the primacy of derived law. In Ireland, article 29.6 establishes the supremacy of derived law over the national constitution. The existence of these reforms constitutes the clearest evidence of the weakness of the doctrine of dual ordainment as the sole foundation for the effective operation of European law.
[46] A perfect example of this phenomenon is the variance that existed until recently between criteria for supremacy proffered by France's Conseil d'Etat and the Cour de Cassation. An elucidation of the entire situation can be seen in the excellent work of Joël Ridau "Aspects constitutionnels comparés de l'evolution vers l'Union europeenne" in Université Pantheon-Assas, Paris II (ed.) La Constitution et l'Europe (Paris, 1992).
[47] See the verdict of 9 March 1978. This decision led the Italian constitutional court to alter the doctrine shaped by the Granital verdict.
[48] Decision STC 45/1996 of the Spanish Constitutional Court, which welcomed the Simmenthal doctrine from the outset, illustrates the risks of this arrangement. In this decision, the constitutional court dispensed with the specific nature of Community law when it maintained that the choice of the applicable norm is the exclusive competence of the judge. This move implied no change in the doctrine, although it may have taken it to new limits.
A critique of the Spanish jurisprudential position can be found in R. Alonso García and J.M. Baño León "El recurso de amparo frente a la negativa a plantear la cuestión prejudicial ante el Tribunal de Justicia de la Comunidad Europea" in Revista Española de Derecho Constitucional (REDC), No. 29 (1990).[49]
See Alonso García, Derecho comunitario: Sistema constitucional y administrativo de la Comunidad Europea CEURA, Madrid (1994) for a good account of the evolution of the treatment of basic rights within the European Community.
The "opening" of the Community to basic rights has been posed in new terms following Report 2/94 of the European Court, released 28 March 1996, which declared that "in the current state of Community law, the Community has no authority to adhere to the [European] Agreement [on Human Rights]."
[50] The decisive judgements of the German and Italian constitutional courts received comments in the REDC by Antonio López Castillo (No. 23) and P.Pérez Tremps (No. 13). A more detailed study can be found in books by the same authors. See Constituciones nacionales y integración europea , and Constitución española y Comunidad Europea, Civitas, Madrid (1994) in which the posture of the Spanish court is also analyzed.
[51] These categories were, in fact, abandoned by the Council in decision 92-308 concerning the Treaty of the European Union. The 1992 reform of the Portuguese constitution adopted the formula used in the French constitution.
[52] The controversy arose between those who view transfer merely as one available means to exercise these powers, and those who interpret `transfer' to entail an actual handing over of the powers.
[53] Decision 92-308 establishes that the generic authorization contained in the Preamble of 1946 is sufficient, under conditions of reciprocity, to grant transfer of powers. However, transfers must not call into question the principle of national sovereignty or the Rights of Man in any way. Furthermore, if an amendment under consideration contain provisions that conflict with the constitution, or with the basic conditions for the exercise of sovereignty, a constitutional reform is required before transfer can occur.
[54] The authorization laws are exempt from the requirements imposed by paragraph 1 of article 79, that is to say, from the demand that the reform be specific. Nonetheless, the reform preserves the absolute limits contained in paragraphs 2 and 3 of the same article, which generally coincide with the equally absolute, although imprecise, limits the French Constitutional Council derives from the Preamble of 1946.
[55] For example, considerations provoked by widely divergent valuation in France and Germany of the capacities of generic authorization and the importance of the dual affirmation (by Germany and France) of the impracticability of the principle of national sovereignty for the future of the EU. It seems clear that for either country to exercise sovereign power in order to break links with the Union - unthinkable in practice, but undeniably possible in theory - would require constitutional amendment.
[56] The text specifies that Germany "... is committed to the respect of the principles of democracy, the rule of law, the social state and the federal state, together with the principles of subsidiarity, and guarantees the protection of basic rights comparable with that contained in the Basic Law."
[57] Introduced in 1992, article 7.6 expressly mentions the principle of subsidiarity and also requires transfer of powers necessary for the construction of Europe with the aim of "economic and social cohesion". At the time Portugal acceded to the Treaties of Paris and Rome, its constitution had no provision authorizing, specifically or generically, the transfer of powers, although the 1983 reform had already incorporated article 8.3 which gave direct effect to Community law.
[58] The Instrument of Government (chapter X, article 5) conditions the transfer of "decision making powers" to the Community on the prior establishment of safeguards on human rights equivalent to those guaranteed in the Swedish constitution.
[59] See the work of L. Dubois in Mélanges J. Boulois: L'Europe et le Droit, Dalloz, Paris (1991). It should be noted that this is still a minority position.
[60] See the commentary of A. Sainz Arnaiz in Revista de Instituciones Europeas, No. 22 (1995).
[61] In this decision, the constitutional court had maintained that complaints regarding the violation of basic rights could be levied only against actions of German public authorities, which excluded the possibility of challenging the actions of Community authorities by these means - although not the actions of German authorities applying Community laws. The court now affirms that its duty is to guarantee the force of these laws on German territory, independent of whether the authority accused of violation is German. In other respects the court has maintained its previous doctrine with regard to human rights.
[62] Clearly, this situation will never actually occur given that not all member states possess a constitutional court; however, an even more distorted outcome would prevail if the applicability of Community norms were the exclusive function of the organization of jurisdiction in each state. The German doctrine must be seen as valid for all states with the means to implement it. See Gil Carlos Rodríguez Iglesias, "Zur `Verfassung' der Europäische Gemeinschaft" in Europäische Grundrechte Zeitschrift, Jahre 24, Heft. 5-6 (29 March 1996).
[63] See "Europäische Gerichtshof und nationale Gerichte", a revised version of the lecture given by Professor Grimm at a Symposium organized by the Federal Labor Tribunal and the Association of Labor Tribunals in Kassel.
[64] Grimm's article suggests that, if an ordinary German court were to raise a question before the constitutional court as to whether a norm of derived European law exceeds the powers transferred to the EU by Germany, the high court would immediately refer the question to the ECJ using article 177 of the Treaty of the European Union for a determination based upon European law. Grimm trusts that the dissuasive effect of this procedure is sufficient to prevent open conflict between the ECJ and national courts. If such a conflict were to surface, it would not be resolvable by purely legal means.
[65] For review of recent parliamentary efforts and discussion see R. Bieber and P. Widmer (eds.) L'espace constitutionnel européen, Zurich (1995), particularly the collaborative piece by Bieber and Widmer.
[66] For more information on these declarations and, in general, the European Court's use of the concept of constitutionalization, refer to the detailed work of María Luisa Hernández Esteban, "La noción de Constitución Europea en la jurisprudencia del Tribunal de Justicia", REDC, No. 40 (1994).
[67] This statement is taken from Declaration 13 in the appendix to the Treaty of the European Union. The fact that government representatives directed this recommendation to themselves may cause some perplexity in the reader unaccustomed to the subtleties of the integration process.