Jean Monnet Center at NYU School of Law


Do the international treaties on which the European Union is founded constitute a "Constitutional Charter" ?

This first question has already received an answer from the Court of Justice of the European Communities. One may stress that:

- the treaties on which the EU is founded go far beyond classic international treaties, and
- they do indeed contain some important elements which are mentioned by law dictionaries as defining what a Constitution is.

The EU founding treaties go far beyond classic international treaties

This point can be made briefly, because it does not give rise to many differences of opinion. One should simply point out a few well-known characteristics of the EU:

· Compared with classic international organizations, the EU institutions have special characteristics. The Council may vote by qualified majority and take decisions which are binding on the Member States without any need for transposition. The Commission is independent from the Member States and has a near-exclusive right of initiating legislation. The European Parliament is directly elected and shares with the Council a real right of co-decision for a large part of legislation and for the budget. The Court of Justice is independent and its decisions are binding on the Member States.

· These institutions have been given important powers, both legislative and executive, in extensive fields of action. In certain fields, the EC even has "exclusive" power (the common commercial policy, monetary union, agriculture, fisheries, competition, ...), Member States having lost some or all of their sovereign attributions in those areas. The Court of Justice has also determined that the EC enjoys "implied powers", notably in order to conclude agreements with third States and other international organizations, where that is necessary for achieving the objectives assigned to the Community on the internal level5. The Court has also ruled, in the ERTA case6, that:

"each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules".

· EC law is binding and may have a direct effect for citizens, without any intervention on the part of national authorities. The Court stated in the case Van Gend en Loos7, as early as 1963:

"that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights ... and the subjects of which comprise not only Member States but also their nationals".

The Court therefore concluded that the Treaty provision at issue there "produces direct effects and creates individual rights which national Courts must protect". EC law also has supremacy over national law: the Court affirmed the "precedence of Community law" in the case of Costa v. Enel8 in 1964. It has also stated, in 1970, that:

"the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure"9.

Over the years, the EC Court of Justice has developed this legal system through a body of law including superior principles of law, particularly by the preliminary rulings it gives whenever a question on the interpretation of EC law is referred to it by national courts (on the basis of Article 234 of the EC Treaty, ex-Article 177).

· The Commission ensures that EC law is properly implemented by Member States. It may bring actions against Member States before the Court of Justice. The Court ensures the uniform interpretation of EC law and ensures its application. It has established that Member States must pay compensation to individuals for losses caused to them when Member States have violated Community law10.. Furthermore, the Court itself may impose a lump sum or penalty payment on a Member State which has not complied with its judgments11.

· Finally, the Amsterdam Treaty has introduced provisions allowing the EU institutions to determine the existence of a serious and persistent breach by a Member State of principles of democracy, respect for human rights and the rule of law and to decide on suspending certain of the rights deriving from the Treaties to the Member State in question, including its voting rights in the Council12.

The EU's founding Treaties include some important elements of what is generally defined as "a Constitution"

The founding Treaties organize the "government" of the Union, by describing the composition of its institutions and prescribing the extent and manner of exercise of their powers. It is on these bases that the EC Court of Justice has determined that the EC founding Treaties constitute a "Constitutional Charter" which:

- is based on the rule of law,
- establishes a new legal order distinct from national laws,
- protects human rights and fundamental freedoms.

· The rule of law

The first time the Court expressly referred to the Treaty as a "constitutional charter" was in the case of Les Verts13 in 1986, when it emphasised that the 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."

This means that the Treaty has superior legal value, in the same way as a Constitution does: just as the different organs of government in any State have to comply with the national Constitution, so the Member States and the Community institutions are obliged to comply with the rules of the Treaty. The rule of law is perhaps the most fundamental of constitutional guarantees, because all other values depend on it, for them to be upheld at all.

The Court also pointed out in the same case that :

"in Article 177 (new Article 234) the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions. Natural and legal persons are thus protected against the application to them of general measures which they cannot contest directly before the Court by reason of the special conditions of admissibility laid down in the second paragraph of Article 173 (new Article 230) of the Treaty."

The Community therefore gives effective rights of recourse to individual citizens14, not just to the Member States or to the Community institutions. This is indeed a crucial criterion which would certainly not be met by the typical mechanisms found in international agreements, for settling disputes between the States parties to the agreement over its interpretation or application. Moreover, it is not the national courts, but the Court of Justice which has the final say on the interpretation and the validity of Community acts. This ensures that such acts are interpreted as uniformly and consistently as possible in all Member States.

· A new legal order

The Court referred again to the Community Treaty as a "constitutional charter" in its Opinion nº 1/9115, where the Court distinguished the Treaty from the Agreement establishing the European Economic Area (EEA) between the EC and its Member States on the one hand, and certain Member States of the EFTA (European Free Trade Association) on the other hand.

The Court noted, firstly, that the Community Treaty is much more ambitious than an international agreement setting up a free trade area, by emphasising that:

"the treaty aims to achieve economic integration leading to the establishment of an internal market and economic and monetary union".

At the same time, the Court stressed that the ultimate objective of the Community is not just socio-economic but rather political:

"Article 1 of the Single European Act makes it clear moreover that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity".

The Court then showed that the Community Treaty is radically different in nature from other international agreements, by pointing out that:

"The EEA is to be established on the basis of an international treaty which, essentially, merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the intergovernmental institutions which it sets up.

In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals (see, in particular, the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1). The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves".

· The protection of human rights and fundamental freedoms

There is no list of human rights in the European Treaties16. However, according to Article 6(2) (ex-Article F.2) of the Treaty on European Union:

"The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law".

Even before that Article was incorporated in the Treaty by the Maastricht Treaty, the Court of Justice had already established this constitutional feature, by holding consistently :

"that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are unacceptable in the Community"17.

The Court followed this up by awarding compensation for damages on the basis of Article 288 (ex-Article 215) of the EC Treaty, in cases where there had been a breach of "a general and superior principle of Community law for the protection of the individual" and "the Community legislature manifestly and gravely disregarded the limits of its discretionary power, thereby committing a sufficiently serious breach of a superior rule of law"18.

The Court frequently refers to the European Convention for the Protection of Human Rights and Fundamental Freedoms, in order to uphold the rights and freedoms mentioned in the Convention and its subsequent Protocols. In December 1998, the Court of Justice even ruled that the Court of First Instance of the EC had breached the right to a fair hearing mentioned in Article 6 of the Convention, by taking too long to give judgment in an anti-trust case.19

The Community is not, however, party to the European Convention on Human Rights, and there has always been the risk that the Court of Human Rights in Strasbourg would find certain provisions of Community law to be incompatible with the Convention. This risk had remained largely theoretical. However, in February 1999, the Court of Human Rights handed down a very important judgment in the case of Matthews v. United Kingdom, by ruling that an act of primary Community law was incompatible with Protocol nº 1 to the Human Rights Convention20.

The answer to be given to the first question is, therefore, that the EU does indeed, as the EC Court of Justice has recognized, have a Constitutional Charter.

One should add that the "constitutional" characteristics of the Treaties have been deepened and strengthened, not only by the Court of Justice21, but also by successive Treaty amendments, which have been negotiated, signed and then democratically approved by the Member States : this has been generally recognized, albeit often rather belatedly, in the case of the Single European Act22 and the Treaty of Maastricht23, but not (yet) for the Treaty of Amsterdam24, which entered into force on 1st May 1999.

The constitutional importance of that Treaty has been generally ignored or under-estimated25. In fact this Treaty:

· significantly increases the powers of the "integrated" institutions :

- that is obviously the case for the European Parliament, with the establishment of a real co-decision procedure for legislation, which has put the European Parliament on an equal footing with the Council26, with the extension of the scope of that procedure to some twenty new fields, with the obligation to consult the European Parliament for measures to be adopted under Title VI of the EU Treaty (police and judicial cooperation in criminal matters) as opposed to merely keeping it informed, and with the powers of the Parliament to approve the appointment of the President of the Commission and then the Commission itself;
- but that is also obviously the case for the Court of Justice, with its role in the safeguarding of fundamental rights in the new Title IV added to Part III of the EC Treaty on visas, asylum, immigration and other policies related to the free movement of persons, as well as in relation to measures under Title VI of the EU Treaty, the incorporation of the Schengen cooperation into the EC-EU legal framework and in relation to the possibilities of enhanced cooperation;
- that is also the case for the Commission, the legitimacy and the role of its President having been strengthened and its role of initiative extended;

· enshrines in the Treaty constitutional principles which, up to now, were only reflected in the case-law of the Court; this is the case for:

- the principles developed by the Court regarding the relationship between national and Community law27;
- the interpretation given by the Court to the definition of powers conferred on the EC by the Treaty28;
- respect for the acquis communautaire "in full"29;

· increases the double democratic legitimacy of the EU's decisions, both through the European Parliament and through national parliaments, with the Protocol on the role of national parliaments in the European Union30;

· increases the constitutional value of the respect by the Union for "the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law"31, providing also for the institutions of the Union to control Member States' respect for these principles32 ;

· envisages further constitutional improvements for the future: a reform of the institutions33, a uniform electoral procedure and a statute for the Members of the European Parliament (regulations and general conditions governing the performance of their duties)34. The inter-governmental conference also adopted Declarations nº 31 on "comitology", nº 32 on the organisation and functioning of the Commission, nº 42 on the consolidation of the Treaties, etc.

5 Judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76, Kramer, ECR 1976, II-p.1308.

6 Judgment of 31 March 1971 in Case 22/70, ECR 1971, p.274.

7 Judgment of 5 February 1963 in Case 26/62, ECR 1963, p.12.

8 Judgment of 15 July 1964 in Case 6/64, ECR 1964, p.594.

9 Judgment of 17 December 1970 in Case 11/70, Internationale Handelsgesellschaft mbH, ECR 1970 p.1134, point 3. See also paragraph 2 of the Protocol on the application of the principles of subsidiarity and proportionality, annexed to the EC Treaty by the Treaty of Amsterdam : "The application of the principles of subsidiarity and proportionality (...) shall not affect the principles developed by the Court of Justice regarding the relationship between national and Community law". This provision has become Treaty law since 1st May 1999, date of the entry into force of the Amsterdam Treaty.

10 Judgment of 19 November 1991 in Joined Cases C-6/90 and C-9/90, Francovitch and Bonifaci, ECR 1991-9, I-5357.

11 Article 228 (2) of the EC Treaty (ex-Article 171(2)).

12 Article 7 of the EU Treaty and Article 309 of the EC Treaty.

13 Judgment of 23 April 1986 in Case 294/83 ECR 1986-4, p. 1365. See also Opinion 1/76 of 28 April 1977, ECR 1977-I, p.758 point 12; Order of 13 July 1990 in Case C-2/88, Zwartfeld, ECR 1990-7 I, p.3372;Judgment of 23 March 1993 in Case C-134/91, Beate Weber vs. European Parliament, ECR 1993-I, p.1093, point 8.

14 It is true, however, that in its Report of May 1995 on certain aspects of the application of the Treaty of the European Union, drawn up at the request of the Corfu European Council of 24-25 June 1994, in view of the preparation of the 1996 Intergovernmental Conference (IGC), the Court of Justice itself raised the following doubt: "It may be asked, however, whether the right to bring an action for annulment under Article 173 (new Article 230) of the EC Treaty (and the corresponding provisions of the other Treaties), which individuals enjoy only in regard to acts of direct and individual concern to them, is sufficient to guarantee for them effective judicial protection against possible infringements of their fundamental rights arising from the legislative activity of the institutions."

15 Opinion of 14 December 1991, ECR 1991-10, p. 6102.

16 The European Parliament has already tried ten years ago to establish such a list (Resolution of 5 April 1989, OJEC C120, 16.5.89, p. 51).

17 Judgment of 13 December 1979 in Case 44/79, Liselotte Hauer, ECR 1979, p. 3744-5. See also Judgment of 14 May 1974, in Case 4/73, Nold, ECR 1974, p. 491.

18 Judgment of 19 May 1992 in Joined Cases C-104/89 and C-37/90, Mulder and Heinemann, ECR 1992-5, p. 3132.

19 Case C-185-95P, not yet published.

20 Judgment of 18 February 1999 in Case nº 24833/94, not yet published.

21 Eric Stein : "Lawyers, Judges and the Making of a Transitional Constitution", American Journal of Institutional Law, 1981.

22 Signed at Luxembourg on 17 February 1986 and at the Hague on 28 February 1986.

23 Treaty on European Union, signed at Maastricht on 7 February 1992.

24 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts, signed on 2 October 1997.

25 See, however, Jean-Claude Piris and Giorgio Maganza : "The Amsterdam Treaty: Overview and Institutional Aspects", Fordham International Law Journal, 1999, vol.2.

26 By the important amendments made to Article 251 (ex-Article 189b) of the EC Treaty, in particular by the abolition of the so-called "third reading".

27 Paragraph 2 of the Protocol on the application of the principles of subsidiarity and proportionality; this refers in particular to the primacy of Community law and to its direct effect, etc.

28 Paragraph 3 of the same Protocol; this refers to the EC's implied powers, and to the interpretation given to some Articles of the Treaty by the Court of Justice.

29 Paragraph 2 of the same Protocol.

30 See especially paragraphs 1 to 3 of this Protocol.

31 Article 6 § 1 of the EU Treaty.

32 Article 7 of the EU Treaty.

33 Protocol on the institutions with the prospect of enlargement of the European Union.

34 Amendment of Article 190 (ex-Article 138) of the EC Treaty, paragraphs 4 and 5.



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