Ross Carrick, University of Edinburgh, European Constitutionalism and The Normative Role of the European Court of Justice

Introduction

This paper poses the question is the European Court of Justice still building an EU constitution? and begins by considering the conceptual limits of European constitutionalism and theories of judicial activism. It rejects popular conceptions and discourse on the idea of a ‘European Constitution’, per se, as a conceptual basis for discussion and instead identifies a ‘rights-based’ paradigm of the rule of law as the mechanism through which constitutional norms are activated. The discussion then proceeds to a legal analysis of the constitutional jurisprudence of the Court and focuses on the development of fundamental rights. The paper concludes by answering the original question in the affirmative and asserts that the Court is a necessary actor for the development of constitutional norms; in particular fundamental rights.

Constitutionalism and Theories of Judicial Activism

This part of the paper outlines the theoretical framework underpinning these arguments and there are two broad categories that inform the subsequent legal analysis: constitutionalism and theories of judicial activism. These species of theory have largely been developed through traditional political contexts that are typically founded on notions of nationalism; the autonomy and sovereignty of the nation-state; and the corollary principles of institutionalism that these assumptions engender. Implicit in the arguments of this paper is a comparison between such a traditionalistparadigm of institutionalism and a federalistparadigm. It is therefore important to explain that this paper does not rest on traditionalist ideological assumptions and instead asserts that the European Community is a unique political phenomenon, which is a community based on the rule of law[1] and that its Member States are integrating into a political system that resembles a political federation of states; similar to the USA[2]. This movement is henceforth referred to as the institutional integration project.

Constitutionalism

Fundamental to the arguments of this paper is the definition of the term constitution; a term that engenders something akin to a semantic minefield. In his article on The constitutionalisation of the European Union, Dyevre outlines the semantic difficulties surrounding constitutionalism and describes this as a problem that the EU is ‘indubitably’ prone to[3]. Indeed, the study of constitutionalism is particularly relevant to issues surrounding the development of Community constitutional norms or a European Constitution and already one can observe a semantic discrepancy between these two terms; for while they are not mutually exclusive, they do not necessarily embody the same meanings. The latter typically denotes popular discourse that portrays a narrow conception of constitutionalism in which ‘constitution’ is ultimately equated to a codified legal document. Dyevre, in fact, defines constitution as a ‘word [that] is used to refer to a written document.’[4] In his view the Treaty itself forms the de facto constitution for the European Union and it is no surprise that the media has latched on to this connection between the ‘EU Constitution’ and the Treaty[5]. This is an observation that has also been judicially recognised by the Court in Les Verts: ‘... the European Economic Community is a community based on the rule of law, inasmuch as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.’[6]Whereas the media have conceived of this connection as political trickery, the Court has implicitly identified the connection as part of a broader framework of constitutionalism that links ‘the basic constitutional charter’ into the idea of the rule of law; a conceptualisation that is consistent with the argumentation of this paper, which rejects the narrow definitions contained in popular discourse of the ‘EU Constitution’. Instead, a useful analysis of the term constitution that is consistent with the arguments presented in this paper is that proposed by Christian Timmermans in his thesis The Constitutionalization of the EU[7]. In the same way as I have described above, Timmermans rejects the idea of a codified charter as the sole basis from which constitutional norms can be identified and, instead, asserts that‘when we refer to ‘a constitution’, we mean more than a technical instrument embodying the organizational chart for a state, spelling out who should do what and in doing so be controlled by whom. The term constitution, at least to me, implies values of a more fundamental nature; values that should underpin and penetrate the institutional structuring of the state system and its functioning. That is why it is possible to have a constitution without a written text and why we can use the term constitutionalization ...’[8] As well as discussing the form of constitutionalism, Timmermans identifies the substance of constitutionalism as both institutional relations and fundamental rights. He specifies that ‘... [t]hese values ... are more particularly expressed in terms of protection of fundamental rights, democracy and the rule of law.’[9] Further below the Court’s development of constitutional norms are considered in the context of fundamental rights; both substantively and in relation to their normative institutional framework.

Judicial Activism

Having considered the limits of constitutionalism, the process by which the Court legitimately develops constitutional norms is now considered. The conceptualisation of this process contributes to the development of an analytical framework to be used for the subsequent examination of the Court’s constitutional jurisprudence. By way of illustration of this process, the concurrent inauguration of the principles of supremacy and direct effect will explored presently.

The principal theoretical backdrop to the notions of judicial activism discussed in this paper is inspired by Dworkin’s discussion of Political Judges and The Rule of Law[10]. Dworkin proposes a rights-based conception of the rule of law in which the judiciary must decide ambiguous constitutional cases on principled grounds for which the judiciary have complete autonomy; as opposed to the rule-bookconception which places an obligation on the judiciary to decide such cases by explicit reference to the will of the legislature. Dworkin basis his assertion on the premise that the rights-based conception ‘assumes that individuals have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or other judicial institutions of the familiar type.’[11] In essence, then, the process is instigated by individuals whose displaced interests are at the behest of a gap, of some sort, in the pre-established law. Via a rights-based conception the judiciary must ‘fill in’ this gap, not by considering what the prudent legislator would have decided on this matter, but solely on the basis of what the prudent judge considers he should have decided, as a matter of principle. This counterfactual reasoning ultimately gives the judiciary a quasi-legislative role- specifically for matters of constitutional significance- and would clearly offend a traditionalist paradigm of institutionalism. Particularly given that legislative power is typically reserved for overtly political institutions (parliaments, for example) and such judicial quasi-legislative activity- consistent with Court’s constitutional developments over the past 50 years- would be ultra vires. These issues are considered presently.

The Development by the Court of Community Fundamental Rights

Perhaps one of the most significant constitutional developments by the Court is the provision of Community fundamental rights. Certainly, following Timmermans model of constitutionalism, fundamental rights protecting the individual are an essential feature of any constitution and unlike most other constitutional norms, they are substantive in nature i.e. they can apply directly to individuals as well as providing a normative institutional framework. Below it is demonstrated that fundamental rights in the Community is an area of constitutional jurisprudence that is necessarily still under construction by the Court.

It is interesting to note, first of all, that the inaugural act for the development of Community fundamental rights was not by a legislative body. Prior to the seminal case of Stauder v City of Ulm[12] there had been no mention in the Treaty (or any other legal document) of fundamental rights. Dauses suggests that this may be due to the nature of the Community’s predecessor- The European Coal and Steel Community- which had not been designed to accommodate such constitutional norms[13]. A turning point in the history of the Community, then, was observed in 1969 by the Court’s decision in Stauder; in which it was- somewhat abruptly- announced that fundamental rights were to be part of the Community legal framework: ‘Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.’[14] As a direct consequence of this intuitive act of judicial inspiration, the definition and application of substantive principles has been adopted by the other Community institutions; with a considerable wealth of legal texts now devoted to fundamental rights. As well as their inclusion in the treaties- Article 6 EU, for example- The Charter of Fundamental Rights of the European Union[15] provides an influential point of reference for the application of fundamental rights in the Community[16]. The Court has continued to contribute by defining the application of Community fundamental rights in cases such as Hauer v Land Rheinland-Pfalz[17]- where in particular the Court identified the limitations of the right to property. A significant recent development in this regard is the introduction of the idea of a hierarchy of norms; whereby certain substantive principles prevail over others when they are in a conflict of principle. Fundamental rights are thus a superior source of law in this way. In Omega v Spielhallen[18] the Court considered the implicit notion of a hierarchy of rights within the Community legal framework. Indeed, Advocate General Sticx-Hackl suggested that ‘the Court of Justice should defend fundamental rights as general legal principles of the Community on the basis of Article 220 EC and Article 6(2) EU. They are to be considered part of its primary legislation and therefore rank in hierarchy at the same level as other primary legislation, particularly fundamental freedoms.’[19] Having unlocked the door into a new area of the jurisprudence, the Court only marginally opened it by merely concurring that ‘[t]here can be no doubt that the objective of protecting human dignity is compatible with Community law ...’[20]- leaving open a gap in the issue of whether or not there is a de jure hierarchy of rights; much in need of judicial clarification. As well as these substantive concerns, the Court is also still developing an institutional framework in which the sources of fundamental rights are enshrined. This framework is already notably complex given the myriad concurrent intergovernmental relationships that the de facto same Member States to the EU are signatories- especially the European Convention of Human Rights[21]- and is a problematic area within the Court’s constitutional jurisprudence that is still under construction.

A ‘disturbing’ implication of these principles, for which many scholars have protested, is the quasi-legislative role the Court has taken on[22]. Indeed Rasmussen has attacked this phenomenal status of the Court and poses it as ‘the emergence of an analogous “disaster”-problem in Community law and society, that is one generated by the European Court’s activist role-performance.’[23]However, there are a few points to be noted about these initial developments. The first is the way in which the Court came to the decision in Stauder. The seemingly abrupt inclusion of these rights within the legal framework of the Community can be understood as consistent with Dworkin’s rights-based paradigm of the rule of law in that it was a principled decision by the judiciary borne out of an ambiguity in relation to the proper application of established norms. In this case it was the interpretation and subsequent application of a right to social security that was being considered and was explicitly justified as being ‘[incapable] of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court’[24] i.e. amatter of principle. This notion of principle is best understood by reference to the federalist paradigm and the corollory intitutional integration project; where the unique poltical status of the Community can be regarded as underdeveloped at this stage and therefore necessitates a rights-based conception of the rule of law i.e. constitutional norms need to be developed to enable the Community to mature into a fully autonomous polity. Indeed, the reference by the Court in the seminal case of van Gend en Loos to making the decision that is in the spirit of the Treaty[25]underlines exactly this point.

Conclusion

The European Community- as understood under a federalist paradigm of institutionalism- is still under-developed; but it is growing. Amongst other areas of constitutional significance, the provision and protection of Community fundamental rights have emerged and are continuously being nurtured in such a way as to fulfill the ends of the aforementioned institutional integration project i.e. a discrete political community. This paper has identified the Court as an important and necessary actor in developing such constitutional norms. Whilst this quasi-legislative judicial function is regarded by some as disasterous, the development of constitutional jurisprudence by the Court is best understood and justified under a rights-based conception of the rule of law; particularly given the relatively under-developed status of such rights and the Community as a whole.

Bibliography

Arnull, The European Union and its Court of Justice (Oxford University Press, Oxford, 1999)

Craig and De Burca, EU Law: Text, Cases and Materials (Fourth Edition, 2007); Oxford: Oxford University Press

Dauses, Manfred A., “The protection of fundamental rights in the Community legal order”, (1985) 10 European Law Review 398-419

Dworkin, Ronald, A matter of principle; Cambridge, Mass. ; London : Harvard University Press, c1985.

Dyevre, A. ‘The constitutionalisation of the European Union: discourse, present, future and facts’, (2005) 30 ELRev 165-189

Komarek, Jan, ‘In the court(s) we trust? On the need for hierarchy and differentiation in the preliminary ruling procedure’, (2007) 32:4 European Law Review 467-491

Rasmussen, H., “Between self-restraint and activism: A judicial policy for the European Court”, (1988) 13 European Law Review 28-38

Timmermans, C. ‘The constitutionalization of the European Union’, (2002) 21 Yearbook of European Law 1-61

Cases

Case 26/62 van Gend en Loos (NV Algemene Transporten [1963] 1 97

Expeditie Onderneming) v Nederlandse Administratie der

Belastingen

Case 29/69 Stauder v City of Ulm [1969] ECR 419

Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727

Case 294/83 Les Verts v Parliament [1986] ECR 1339

Case C-338/95Wiener [1997] ECR I-6495

Case C-173/99 BECTU v Secretary of State for Trade and Industry [2001] ECR I-4881

Case C-36/02 Omega Spielhallen [2004] ECR I-9609

Statutory Documents

The Charter of Fundamental Rights of the European Union OJ C 364, 18.12.2000, p. 1–22

Online Resources

EU treaty 'same as Constitution',

[1] Case 294/83 Les Verts v Parliament [1986] ECR 1339 at para. 23

[2] It is outwith the scope of this discussion to consider the merits of this assumption, however examples of federalist assertions within European scholarship are ubiquitous; see, for example Komarek, Jan, ‘In the court(s) we trust? On the need for hierarchy and differentiation in the preliminary ruling procedure’, (2007) 32:4 European Law Review 467-491; and Advocate General Jacobs in Case C-338/95 Wiener [1997] ECR I-6495

[3]Dyevre, A. ‘The constitutionalisation of the European Union: discourse, present, future and facts’, (2005) 30 ELRev at pg. 166

[4] Ibid. at pg. 168

[5]EU treaty 'same as Constitution',

[6] Supra at n. 1

[7]C. Timmermans, ‘The constitutionalization of the European Union’, (2002) 21 Yearbook of European Law 1-61

[8] Ibid. at pg. 2

[9] Ibid.

[10] Dworkin, R. A matter of principle, Cambridge, Mass. ; London : Harvard University Press, c1985; Chapter 1

[11] Ibid. at pg. 11

[12] Case 29/69, Stauder v City of Ulm [1969] ECR 419

[13] Dauses, Manfred A., “The protection of fundamental rights in the Community legal order”, (1985) 10 European Law Review at pg 399

[14] Stauder v City of Ulm at para. 7

[15] The Charter of Fundamental Rights of the European Union OJ C 364, 18.12.2000, p. 1–22

[16] See the Opinion of Advocate-General Tizzano in Case C-173/99 BECTU v Secretary of State for Trade and Industry [2001] ECR I-4881

[17] Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727

[18] Case C-36/02 Omega Spielhallen [2004] ECR I-9609

[19] Advocate General Sticx-Hackl, para. 49

[20] Omega v Spielhallen at para. 34

[21] Article 6 (2) EU specifically identifies the ECHR as a source of fundamental rights that the Treaty respects.

[22] Rasmussen, H. On Law and Policy in the European Court of Justice, Dordrecht ; Lancaster : Nijhoff, 1986 at pg. 14

[23]H. Rasmussen,“Between self-restraint and activism: A judicial policy for the European Court”, (1988) 13 European Law Review at pg 29

[24] Stauder v City of Ulm at para. 7

[25] Case 26/62, van Gend en Loos (NV Algemene Transporten Expeditie Onderneming) v Nederlandse Administratie der Belastingen [1963] 1 97at pg 12