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In order to create the European Union, the Maastricht Treaty, according to article R(1)(1), had to be "ratified by the High Contracting Parties in accordance with their respective constitutional requirements." Older treaties that established the three European Communities were ratified similarly.[3] Furthermore, this same procedure, ratification by all present and future Member States of the EC, was used to approve accessions.[4] Even if Community institutions were involved in the preparatory phase of the amending and accession treaties, according to articles 236(2) and 237(1) EEC, and will be involved in the future, according to articles N(1)(2) and O(1) of the Maastricht treaty, the final amendment or accession treaty must still be ratified by all the Member States as stated in the successive paragraphs of these treaties.[5]
The EEC Treaty was commonly considered the constitution of the EC/EU, as is the Maastricht Treaty now.[6]- This is an acceptable and correct description of the function of these treaties within the Community framework.[7] This terminology, however, may be misleading because it suggests that the constitution, and thus the Community, is autonomous. Such an original autonomy of the European Treaties presupposes that these treaties were ordained by an original constituent power.
"Original constituent power" (pouvoir constituent originaire)[8]refers to the power that ordains the "historically first constitution."[9] Such a constitution severs the umbilical cord that, in the case of an evolving legal order, connects legal changes to the pre-existing laws. It is non-derivative in that it does not owe its existence to a pre-existing constitution. Such an event cannot be simply encompassed in an existing legal order. Instead, it marks the beginning of a new one. This beginning can also be described by the rather theological phrase creatio ex nihilo, a power ascribed by the Abbé de Sieyès during the French revolution to the constituent power of the nation.[10] If one prefers a cosmological metaphor, this constitution is the big bang out of which the new legal order develops. It is a revolution replacing the previous historically first constitution with a new one.
Such a legal revolution is quite independent of any civil strife, military rebellion, coup d'etat, or similar unrest.[11] Rather, the revolution occurs when a constitution of a new or existing political entity is enacted in a different way from that prescribed by any prior constitution. This new constitution is ordained, by definition, by an original constituent power that has acted in a revolutionary manner,[12] i.e., by violating the existing constitutional order.
The European Court of Justice [ECJ] sees Community law as "an autonomous legal order."[13] The type of autonomy the ECJ has in mind can be deduced from its Opinion 1/91.[14] There, the ECJ declares that some provisions of the European Treaties are "the very foundations of the Community" and cannot be changed at all,[15] not even by the procedure laid down in the treaties for their amendment,[16] such as the process under article N(1) of the Maastricht Treaty, which differs from the usual model of intergovernmental diplomacy only in nuances.[17] The protection of some provisions from amendment is a specific characteristic of historically first constitutions.[18] Evidently, the ECJ considers the European Treaties to be such documents.
Similarly, some European law scholars base their theories on the assumption of an autonomous legal order established by an autonomous power.[19]-- Thus, the European Treaties are constituent acts of the Community and similar to a constitution in its proper sense.[20] The consent of the Member States' legislatures to these treaties is seen, consequently, as a definitive, constituent act,[21] facilitated by (but not contingent on) national constitutional provisions providing for the transfer of sovereign rights to international organizations.[22] In this sense, the conclusion of each European Treaty is equated with the creatio ex nihilo of a historically first constitution.[23]
Although an original constituent power of the European Community could have acted in various ways to set up the European Treaties, e.g., through constitutional convention or referendum, only one method is plausible given the historical facts. The legislatures of the Member States, as representatives of the original constituent power, could have ordained each treaty as a historically first European constitution.[24] Theoretically, the legislatures of the component parts of a whole can exercise the constituent power of the whole.[25] The question remains whether the legislatures of the Member States did exercise such a power in ratifying the European Treaties. Ordinarily, national legislatures ratifying an international treaty do not exercise original constituent power, even if that treaty establishes an international organization. Therefore, it is necessary to determine criteria for choosing between the two possible interpretations of the acts of the legislatures: ratification of an international treaty or exercise of constituent power.
A first and powerful indication that the Member States legislatures acted as an original constituent power is that the instrument to be ratified contained rules for its own ratification. It is even more convincing if these rules are different from those regularly governing the ratification procedure for international instruments at either the internal level (e.g., super-majority) or the treaty level (e.g., majority decision).[26] By respecting the rules of the instrument and by acting according to them, the legislatures of the contracting parties show their sense of independence from their ordinary procedures. Indeed, they cannot be bound by their own processes when acting as part of an original constituent power, i.e., in a revolutionary way.
A second indication of the role of the legislatures as a constituent power is the language of the instrument itself. If the instrument is called a "Constitution" or a "Basic" or "Fundamental" law of the entity to be created, and particularly if it indicates that the contracting parties are to be subordinated to this entity, then it may be assumed that the legislatures enacted the agreement in their capacity as part of an original constituent power.
A third indication, although less powerful, is found in the drafting process. If the instrument is drafted through the usual diplomatic channels, it is less likely to be ratified as a historically first constitution than if it is drafted by a constituent group.[27]
Given these criteria, there is no indication that the legislatures of the Member States were acting as the original constituent power of the Community when they ratified the European Treaties. The European Treaties were drafted through the usual diplomatic channels and finalized by intergovernmental conferences.[28] Each one is clearly labelled a "treaty" and the structure of the treaties is consistent with this label; every treaty begins by listing the heads of state of the participating countries, who have decided to enter into the treaty, and the designated plenipotentiaries, who are reported to have agreed to the treaty; and the ratification provisions, article R(1) Maastricht Treaty, article 247(1) EC, article 99(1) ECSC, and article 224(1) Euratom, refer to the "respective constitutional requirements" of the Member States. Nothing in the ratification procedure indicates that the document to be ratified might be anything but a treaty. Under these circumstances, the umbilical cord between the constitutions of the Member States and the European Treaties has certainly not been cut by the ratification procedure. Rather, this procedure expressly prescribes it. Therefore, there is no indication that the European Treaties might have been a constitution ordained by a constituent power of the Community.[29]
Given that no original constituent power ordained the European Treaties as a constitution, the ECJ's view that "the very foundations"[30] of the European Treaties are entrenched loses its force as a statement about the constitutional nature of the treaties. In national constitutions, the rare provisions not subject to amendments[31] are protected to shelter decisions of the original constituent power against later changes.[32]
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As the European Treaties were not enacted by such a power,[33] entrenching certain provisions serves no purpose and the ECJ's assessment of autonomy cannot stand.
Despite the absence of an original constituent power at the formation of the European Treaties, the Community legal order could have evolved to give the treaties the autonomy they originally lacked. Theoretically, one could construct a model that would explain such a development. The people of Europe, which would have to be the constituent power in a democratic Europe,[34] need only to adopt the existing text of the treaties as their own constitution. As the law cannot dictate the way in which the original constituent power may act,[35] there is no need for a constitutional convention, a referendum, a vote, or any such formal mechanism. Rather, an original constituent power may act in the way customary law is formed: by developing a custom and a corresponding opinio juris over time.[36] Under such a model, the Member States as High Contracting Parties, the original legislators of the European Treaties, would be replaced as the source of treaty provisions by the European people exercising their constituent power. In that way, the treaties might become a constitution without any amendment. In contrast to the European Treaties, concluded by the Member States as High Contracting Parties, the legal force of such a treaty-constitution would not stem from the constitutions of the Member States. The constitutions of the Member States would no longer be the only instruments in Europe based on a historically first constitution. As a result, the treaty-constitution could subordinate the constitutions of the Member States whose applicability would then depend on the treaty-constitution.[37] In the alternative, the adoption of a treaty-constitution might lead to an awkward juxtaposition of different, unrelated historically first constitutions, each potentially applying to the same facts.[38]
[beta]--[beta]
In either case, the emergence of such a treaty-constitution would be a revolution within the legal meaning of the word. One must first, however, locate certain crucial indications that such a transformation has occurred.[39]
To search for the necessary evidence, the academic thesis of a "constitutionalization"[40] of the European Treaties examines primarily the case law of the ECJ and its acceptance by the courts of the Member States.[41]
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As shown in the prior discussion, the opinions of the ECJ describing the Community as an autonomous legal order were unacceptable interpretations of the original treaties.[42] In the present discussion, however, the case law of the ECJ can be seen as a subsequent development possibly indicating the evolution and ultimate adoption of those treaties as a constitution.[43] It is no longer the legal merits of the conclusions that are important, but the value of the statements as indicators of the development of a custom and of an opinio juris among the people at large exercising its constituent power. The views of a rather secluded body like the ECJ are a weak indicator of the opinion of the people. To find sufficient evidence of an opinio juris, according to the "constitutionalization" thesis, the courts of the Member States must support the views and follow the decisions of the ECJ.
The courts of the Member States, including their appellate courts, do largely accept the views reflected in the case law of the ECJ. But nearly all of the appellate courts balk at the claim of the ECJ that the European Treaties are the constitution of an autonomous legal order.[44] In their most recent decisions, some of the constitutional courts of the Member States underscored the international character of the European Treaties.[45] As no other indicators of opinio juris come to mind and most of the superior courts of the Member States do not support the relevant case law of the ECJ, the European Community fails the second prong of the test of the "constitutionalization" thesis.
There are, in fact, some indicators that point in the opposite direction, away from constitutionalization. Importantly, the European Treaties continue to be amended by treaties and provide for future amendments. The minor role that article N(1)(2) of the Maastricht Treaty gives the European Parliament in preparing the draft of amending treaties cannot be an indication that the European people has adopted the treaties as a constitution. In addition, it cannot be claimed that there is, with the European people, a custom supported by a common opinio juris that regards the European Treaties as the constitution of an autonomous Europe. While some Europeans take this view, there are as many who do not share it. This is not enough to create a custom. Subsequent developments under the European Treaties, therefore, do not support a claim to original autonomy of Community law.
It has been argued that this conclusion, based on the Kelsenian approach, does not give adequate weight to Community law and does not correctly describe the relationship between Community and national laws. Those arguments led to efforts to avoid the Kelsenian approach by using a perspective informed[46] by the Hartian theory of law, based on the rule of recognition.[47]
The Hartian approach differs from the Kelsenian one insofar as it looks at national and Community laws not from the viewpoint of an external observer, but from the inside,[48] from the vantage point of a national official or judge who is the addressee of the norms of those legal orders. Proponents of this approach claim that one can determine the reality of the relationship between legal orders without formally characterizing this relationship.[49] They claim that the nature of the relationship between national and Community laws can be adequately understood without reference to the concept of autonomy,[50] because the rule of recognition "possesses a `penumbra of doubt."'[51] Although by following this approach one cannot deduce that the Community legal order is autonomous, one might achieve a similar result. In fact, this approach could demonstrate that, to understand the new system formed by Community and national laws, the question of autonomy is neither of theoretical nor of practical importance.
When applying the Hartian theory to the context of the European Community, this demonstration is complete by simply stating that national officials, and judges in particular, do apply Community law and do generally accept its supremacy over national law.[52] There, under the Hartian theory, the case may rest. This way of looking at the interaction of Community and national laws has a certain appeal. For example, a judge of the German Federal Constitutional Court suggested extra-judicially that both the German Basic Law and the European laws are sufficiently flexible that if they are interpreted reasonably, one could avoid serious conflicts between them.[53]
The weakness of this perspective lies in its appeal to a reasonable interpretation of the respective laws. Although all conflicts between national and Community laws assuredly could be avoided by a "reasonable interpretation," in the long run, clear conflicts will arise.[54] Such conflicts are basically power conflicts[55] between the Community institutions striving for autonomy and the respective national (or sub-national) institutions trying to rein them in and secure the competences they believe to be their own.[56] Those conflicts would arise even if the Community is, in some sense, just a composite of the Member States acting together.
The claimed advantage of the Hartian view over the Kelsenian view in explaining the reality of the relationship between Community and national laws is, however, lost when the legitimating effects of the two perspectives on the Community legal system are compared. The Kelsenian view looks to the historically first constitution and then to actions of the legislatures of the Member States. The legitimacy of the Community legal system is therefore traced back to a decision by the original constituent power, i.e., the European people, and on the subsequent actions of a derivative constituent power, i.e., the democratically elected legislatures of the Member States.[57] By contrast, under the Hartian view, the legitimacy of Community law can only be traced to its application by judges and other officials. Hart's rule of recognition can only provide a professional legitimacy,[58] which is insufficient in itself to meet democratic standards.[59]
While the Hartian model of a legal system may adequately describe the daily applications of law in the Community when the question of autonomy is not seriously involved, it does not answer, and it is not meant to answer, the question of the autonomy of the European Community legal system and of its ultimate position within the European framework. The question of the relationships of interacting legal systems does not vanish simply because it is not addressed by the Hartian model. Rather, this question is of primary importance to Community law legitimacy. To pretend that the Community had an autonomous constitution even if it did not could lead to very serious conflicts.[60] In view of the undisputed legitimacy problems of the European Community,[61] the question of Community law autonomy cannot be dismissed. Therefore, in the present context, the Kelsenian approach[62] is preferable because it addresses the necessary question of autonomy. As discussed, however, the interactions between the Member States and the Community do not fulfill the Kelsenian requirements for the development of an autonomous constitution.
It remains to be seen whether it is possible to accommodate the case law of the ECJ and the academic view of the European Treaties as an autonomous source of law within a system other than a positive law system, e.g., a natural law system. One natural law on which the view of the European Treaties as an autonomous source of law might be based is the law of integration.[63] The league of European states has been described as an integration since its inception. In fact, it has been said that the theory of integration is the most important extra-legal contribution to the body of work on the Community.[64]
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The concept of integration, it is claimed,[65] explains the specific characteristics of the Community as a dynamic process without the need to subsume the Community under a conception of sovereignty.[66]
The law of integration can be conceived of as a natural law rule, by viewing it either as a moral, ethical rule or as a physical, socio-economic rule.[67] First, as a moral rule, integration would have to be seen as an abstract good. Such a view is very much a part of the legal tradition of the European Community. For a considerable length of time, "the very idea of the Community [and hence of integration] was associated with a set of values which . . . could captivate the imagination, mobilize broadly based political forces, counteract the powerful even captivating but often abused pull of nationalism."[68]
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Underlying these values were the ideals of peace, prosperity, and supranationality.[69] "Supporting the Community was to `Do the right thing."'[70] This support could therefore be seen as a moral good, giving rational actors an objective reason to act.[71]
Second, according to one functionalist perspective, integration, as a socio-economic rule, consists of a series of successive developmental steps.[72] This version underscores that once economic integration is achieved, political integration follows almost automatically. This view comes close to claiming knowledge of a socio-economic, amoral, natural law. It presupposes that the process of becoming an integrated community becomes inevitable after a certain point (the "spill-over effect") and therefore irreversible. This theory explains the supposed autonomy of the European Community from the Member States once the point of no return has been reached. Once the Member States are unable to reverse integration as a result of this socio-economic law, then surely the European Community, as an integrated body, has become autonomous. Such a socio-economic law is thus part of a natural order. This idea "can be extended to include . . . those events having a cause-and-effect relationship . . . . [S]ome social laws, such as the `laws' of economics, can be seen as expressions of `natural law."'[73]
Once the law of integration has been characterized as a natural law in either the moral or the socio-economic sense, one must then explain how such a law can influence or determine the positive law the courts apply. All contemporary natural law theories base such an influence on the relationship between morality and law.[74] But only the strongest view of natural law posits an identity in legal and moral goods and can thus conceive of the influence of a law of integration over the positive law of the Community.[75] Under this view, enacted law is at most some evidence of a higher, natural law. Therefore, integration as a moral good is also a legal good. This strongest view of natural law, however, has not been defended in post-World War II jurisprudence.[76] In addition, it is incompatible with democratic lawmaking.
Weaker views of natural law and the relationship between morality and law function only negatively and not positively. That is, an unjust proposition is not a law,[77] but every just proposition does not have to be a law. The weaker versions of natural law are, thus, insufficient for viewing the European Treaties as an original, autonomous source of law. Therefore, the autonomy of European Community law cannot be premised on a moral law of integration.
In contrast, integration viewed as a socio-economic law has no inherent morality, but is simply a question of cause and effect. As such, it does not necessarily serve any good.[78] Such a law must rely on its own methods of enforcement,[79] presumably on the political decisions of the legally competent bodies to proceed with the integration process. Although the functionalist theory of integration assumes that the inevitability of integration is expressed by the political actions of human actors,[80] it could also be expressed by the ECJ's application of a law of integration absent any basis in positive law.[81]
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Within the boundaries of any legal order, however, one cannot argue for judicial decisions that exceed the discretionary powers of the courts. As such, the question of a socio-economic law of integration becomes irrelevant in the present context. Thus, neither view of natural law provides a feasible foundation for the autonomy of the European Community.
The ECJ has consistently held that international law has no role within Community law.[82] The European Community, however, was established by a series of treaties concluded under international law by the (future) Member States.[83] At least at its inception, the European Community was clearly a creature of international law.[84] As there are no indications that a revolution in its legal sense has subsequently occurred, as discussed above, the European Treaties are still creatures of international law.[85] The relationship between the laws of the Community and of the Member States is, under this analysis, but one instance of the relationship between international and municipal law.[86] Irrespective of the differences in the various theories of this latter relationship, the fundamental tenet is that once ratified, and as long as they remain valid, international treaties are objective law binding on the contracting parties. Such treaties undoubtedly derive from the national legal orders of each contracting state that determine the conditions under which these parties may enter into a treaty. The treaties are, nonetheless, autonomous in the sense that they are not continuously dependent on the legal orders from which they are derived. Once concluded, they take on a life of their own. The strongest expression of this autonomy is the fact that each contracting state must adapt its respective municipal legal system, i.e., including its constitution, to the provisions of the international treaties it concluded.[87] It follows that the European Treaties, as international treaties, are binding on the Member States and have derivative autonomy.[88]
The decisive question, then, is whether the European Treaties have interpretive autonomy as well. In other words, one must determine whether only Community institutions are competent to interpret Community law, including the European Treaties themselves (strong interpretive autonomy) or whether the Member States have some say in that matter (weak interpretive autonomy).[89] General international law does not provide any guidance on this question because it does not know of international institutions.[90] The accepted method for the interpretation of international treaties, in the absence of treaty institutions, is autointerpretation by the contracting states.[91] The European Treaties, however, have created institutions, in particular the ECJ, that, according to article 164 EC, "shall insure that in the interpretation and application of this Treaty the law is observed." The question remains though as to the influence of these institutional arrangements on the power of the Member States to interpret the European Treaties themselves. Various articles have discussed the similar issue of the influence of federal institutions in a federation. They argue that a federal constitution delegating the power to enact certain provisions to a federal institution, by the same token, authorizes the institution to decide on the legality of these provisions.[92] This reasoning would apply, a fortiori, to a court that has been delegated the powers to interpret certain provisions.[93] It has been said "that it is the proper function of the federal constitution, umpired by the federal judiciary, to strike the appropriate balance between the federation and its component entities."[94] Under this analysis, it would be the ECJ that has the final word on all legal questions concerning the relationship between the Community and the Member States.[95] This is the argument for interpretive autonomy.
This argument, however, is based on a generalized interpretation because it assumes that all relevant provisions in federal constitutions have to be construed in the same way. As such, the argument must give way whenever a specific instrument demands a different interpretation. The vital issue, then, is the proper interpretation of the European Treaties as instruments of international law. Such an interpretation must be based, according to article 31(1) of the Vienna Convention on the Law of Treaties, in essence codifying existing customary norms,[96] on "the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."[97]
The relevant terms of the EC Treaty are contained in articles 164, and 169-83. The provision most relevant to the discussion is article 171, according to which a Member State, "[i]f the [ECJ] finds that {the State} has failed to fulfill an obligation under this Treaty . . . shall be required to take the necessary measures to comply with the judgment of the ECJ." According to the ordinary meaning of this provision, the ECJ is the ultimate umpire of the European system.[98] This is equivalent to granting interpretive autonomy to the Community and amounts to judicial Kompetenz-Kompetenz.[99]
Article 31 of the Vienna Convention also requires an examination of the language of the provision in context,[100] in particular, of the object and purpose of the treaty. The purposes of the EC Treaty, as stated in article 2, relate to the activities of an economic community[101] and, therefore, are arguably restricted to these activities. It follows that the European Treaties should not be interpreted as granting the Community unrestricted powers, in particular Kompetenz-Kompetenz.[102] But such a conclusion is at odds with a Kompetenz-Kompetenz of the ECJ over questions of the respective competences of the Community and the Member States.[103]
It is possible to reconcile the ordinary meaning of article 171 EC, giving the ECJ de facto Kompetenz-Kompetenz, and the purposes of the EC Treaty that limit the Kompetenz-Kompetenz by distinguishing a material authorization to interpret Community law from a formal one.[104] Whereas a formal authorization encompasses the ultimate power to decide, rightly or wrongly, a question of interpretation, a material authorization is restricted to "rightly" deciding that question.[105] In general questions of Community law interpretation, the ECJ's authorization is a formal authorization; its decision is final.[106] In questions concerning the respective competences of the Member States and the Community, however, the ECJ's power of interpretation is, in accordance with the purposes of the EC Treaty, a material one only; the binding force of the ECJ's interpretation is restricted to the "right" interpretation of Community law.[107] It follows that decisions of the ECJ in questions of respective competences have, for the courts and the administrative authorities of the Member States, only persuasive authority.[108]
The international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the ultimate umpire of the system. The claim to interpretive autonomy fails because the Member States have preserved their power to autointerpret these treaties.[109] Moreover, this interpretation is buttressed by examining the presumptive will of the Member States in concluding the European Treaties. "No Member State can . . . be held to have included, in the partial transfer [of sovereignty to the Community], power for the Community to legislate in infringement of rights protected by its own constitution."[110] The constitutions of the Member States generally[111]
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do not allow the transfer of Kompetenz-Kompetenz to the Community.[112] Therefore, the Member States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community.[113]
At the same time, the institutional arrangements of the Community are supposed to limit the scope of autointerpretation of the individual Member States. The procedures provided for in article 177 and in articles 169 and 171 EC must be scrupulously respected.[114] The ECJ clearly is authorized by those provisions to interpret the European Treaties.[115] It is only after the ECJ has decided a case that the Member States can use autointerpretation. In order to fully take into account the institutional arrangements of the Community, however, another restriction on the power of the Member States to autointerpret the European Treaties is necessary.[116] It is basically up to the Member States to choose how they exercise the final word on interpreting the European Treaties.[117] The institutional position of the ECJ, however, demands that the final word be exercised only by the highest courts of the Member States.[118]
This international law interpretation of the European Treaties incorporates the restricted autonomy the treaties grant to the Community under international law and the claim of the Member States to autointerpretation. One could object that this view is incompatible with the rule of law. Indeed, the ECJ has used the rhetoric of the rule of law very effectively to seek compliance with its rulings.[119] It portrays Member States not complying with directives as lawbreakers who could not oppose their breach of law as individuals.[120] Such an objection would be misconceived. The rule of law is served as long as the decision of any competent court is respected. The discussion above refutes the exclusive competence of the ECJ. It follows that, in questions concerning the relationship between the Member States and the Community, the ECJ's reliance on the rule of law can only be rhetorical. This rhetorical nature of the criticism has apparently been recognized by the German Constitutional Court. In describing the obligations of the ECJ flowing from the Maastricht Treaty,[121] the German court has laid the groundwork for determining what the rule of law requires and for eventually holding the ECJ in breach of that rule.[122]
[]3 Art. 247(1) EC; art. 99(1) ECSC; art. 224(1) Euratom.
[]4 See, e.g., Treaty concerning the Accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway, and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and the European Atomic Energy Community, Jan. 22, 1972, art. 2(1), 18 U.K.T.S. 1979.
[]5 Arts. 236(3), 237(2) EEC; arts. N(1)(3), O(2) Maastricht Treaty.
[]6 See, e.g., Case 294/83, Les Verts v. Parliament, 1986 E.C.R. 1357, 1365; Opinion 1/91, 1991 E.C.R. 1-6084 (referring to the Maastricht Treaty as a "constitutional charter"). See also Judgment of Oct. 18, 1967, BVerfG, 22 BVerfGE 293, 296 (F.R.G.); Pierre Pescatore, Die Gemeinschaftsverträge als Verfassungsrechtein Kapitel Verfassungsgeschichte in der Perspektive des europäischen Gerichtshofs, systematisch geordnet, in EUROPäISCHE GERICHTSBARKEIT UND NATIONALE VERFASSUNGSGERICHTSBARKEIT 319 (W.G. Grewe et al. eds., 1981).
[]7See, e.g., Neil MacCormick, Beyond the Sovereign State, 56 MOD. L. REV. 1, 7 (1993) ("[European Treaties] contain the highest order of valid rules and principles . . . ."); HANS KELSEN, REINE RECHTSLEHRE 228 (2d ed. 1960) ("[T]he essence of `constitution' consists in the regulation of the creation of norms . . . .").
[]8 GEORGE BURDEAU ET AL., MANUEL DROIT CONSTITUTIONNEL 55 (22d ed. 1991). See CARL J. FRIEDRICH, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY 134 (4th ed. 1968).
[]9 HANS KELSEN, PURE THEORY OF LAW 46 (Max Knight trans., 2d ed. 1967)(1934). See, e.g., Alf Ross, On Self-Reference and a Puzzle in Constitutional Law, 78 MIND 1, 2 (n.s 1969) (positing that it is easy to prove that a non-derivative constitution must exist at the basis of every legal system).
[]10See Emmanuel-Joseph Sieyès, Qu'est-ce que le tiers état?, in ECRITS POLITIQUES 115, 160 (Roberto Zapperi ed., 1985); HANNAH ARENDT, ON REVOLUTION 28-32 (1990).
[]11On different types of revolution, see FRIEDRICH, supra note 8, at 134.
[]12See Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 HARV. L. REV. (pts 1 & 2) 149, 365, 390 (1928) ("[T]he community retains a supreme power of saving themselves from the attempts and designs of anybody, even their legislators . . . ." (quoting JOHN LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT 224 (1924))). See also Preamble of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N Doc. A/810, at 71 (1948) ("[I]f man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression . . . .").
[]13Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 12.
[]14Opinion 1/91, supra note 6, at I-6084.
[]15Roland Bieber, Les limites matérielles et formelles à la révision des traités établissant la Communauté Européenne, 367 LA REVUE DU MARCHÉ COMMUN ET DE L'UNION EUROPÉENE 343, 347 (1993), declares that different provisions of the European Treaties cannot be amended. Specifically, he claims that the very concept of "amendment" in article N of the Maastricht Treaty presupposes the existence of an unamendable core, i.e., a persistent Community identity . He premises this view on the case law of the French Conseil constitutionnel. Judgment of Jan. 23, 1987, Con. const., 1987 D.S.Jur., No. 86-225, at 13-19; Judgment of Jan. 12, 1989, Con. const., 1989 D.S.Jur., No. 88-251, at 524. But see, e.g., LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 25-30 (1991) (concerning U.S. CONST. art. V).
[]16A different reading of Opinion 1/91, supra note 6, at I-6084, may be possible. The relevant paragraph 72 could be understood to mean that the said "foundations" may be changed not by an amendment to article 238 EC, but by an amendment to a different provision. But when the ECJ speaks of an amendment, "in the way indicated by the Commission," it refers to p. 6088, where the Commission is reported as having proposed to amend article 238 EC to "include the establishment of a system of courts, functionally integrated with the [ECJ] and guaranteeing the specific nature and the integrity of Community law." As the ECJ rejected this proposal as such, it would be equally unlikely to accept it as a proposal to amend another provision than article 238 EC.
[]17Roland Bieber, Steigerungsform der Europäischen Union: Eine Europäische Verfassung, in VERFASSUNGSRECHT IM WANDEL 291, 297 (Jörn Ipsen et al. eds., 1995); Bieber, supra note 15, at 344, claims that article N of the Maastricht Treaty includes a substantive element clarifying the substance of possible amendments. But this is true, if at all, only in the case of article N(2) and not in the case of article N(1) of the Maastricht Treaty.
[]18See THEODOR SCHILLING, RANG UND GELTUNG VON NORMEN IN GESTUFTEN RECHTSORDNUNGEN 210 (1994); H.L.A. HART, THE CONCEPT OF LAW 150 (2d ed. 1994) (considering an argument that permits some kind of entrenched legislation by the legislature, at least in some disguise, as not obviously mistaken). Bieber, supra note 15, at 344, 347, has no qualms in considering that amendments to the European Treaties cannot be amended.
[]19See, e.g., THOMAS OPPERMANN, EUROPARECHT 196 (1991); Joxerramon Bengoetxea, Institutions, Legal Theory and EC Law, 77 ARCHIV FüR RECHTS UND SOZIAL PHILOSOPHIE [ARSP] 195 (1991). See also F.E. Dowrick, A Model of the European Communities' Legal System, 3 Y.B. EUR. L. 169, 224 (1983) ("[T]o the questionwherein lies the obligatory quality of EC law?several answers must be given."). He does not include the answer that it is derived from the national constitutions.
[]20See OPPERMANN, supra note 19, at 196. According to Dowrick, supra note 19, at 180, the EC system's Kelsenian basic norm could be formulated so "that the prescriptions of the Rome Treaty of 1957 ought to be obeyed." While this might be a fair comment, the basic norm does nothing to explain the coming into being of a legal system. Rather, it presupposes the existence of a legal system, i.e., a historically first constitution to be obeyed according to the basic norm.
[]21OPPERMANN, supra note 19, at 196 ("[E]ine Art definitiv gemeinte konsentierte `Verfassungsgebung'...."); HANS PETER IPSEN, EUROPäISCHES GEMEINSCHAFTSRECHT 61-62 (1972) (speaking even more darkly of a Gesamtakt staatlicher Integrationsgewalt, an integrated (or whole) act of state integration power(s)).
[]22OPPERMANN, supra note 19, at 196.
[]23Id.
[]24According to Manfred Zuleeg, Der rechtliche Zusammenhalt der Europäischen Gemeinschaft, 3 ZEITSCHRIFT FüR EUROPäISCHES PRIVATRECHT 475, 477 (1993), the Member States compose the constituent power of the Community. See also Ulrich Everling, Überlegungen zur Struktur der Europäischen Union und zum neuen Europa-Artikel des Grundgesetzes, 108 DEUTCHES VERWALTUNGSBLATT 936, 942 (1993).
[]25 For a modern example, see GRUNDGESETZ [GERMAN BASIC LAW] article 144(1) ("This Basic Law shall require ratification by the representative assemblies of two-thirds of the German Länder . . . .").
[]26 The German Basic Law, for example, supplied provisions for its own ratification in article 144(1). In particular, ratification of the Basic Law by two-thirds of the German Länder was sufficient for the Basic Law to be binding on all the Länder.
[]27See FRIEDRICH, supra note 8, at 131-33.
[]28For the drafting of future amendments, see article N(1), (2) Maastricht Treaty.
[]29See SCHILLING, supra note 18, at 212-17.
[]30These "very foundations" can be equated, it appears, to a "law of integration." The ECJ states that the EEC Treaty "aims to achieve economic integration leading to the establishment of an internal market and an economic and monetary union." Opinion 1/91, supra note 6, at 1-6084. Article 1 of the Single European Act makes clear, moreover, that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity and that it is bound to interpret the provisions of the treaties in view of those ends. The ECJ declared that proposed provisions of the Agreement on the European Economic Area [EEA] contradicted the foundations of the Community. They would have obligated the ECJ to consider the case law of the EEA Court that interprets provisions identical to EC law but is not aimed at integration. By contrast, the strongest version of the law of integration requires the ECJ to interpret positive Community law so that the Member States continue with integration. The proposed provisions that the ECJ condemned in its Opinion 1/91 were not likely to reverse integration, but at most to slow it down. See Bieber, supra note 15, at 349. The speed of integration within the positive law system is a subject remaining within the power of the Member States. See Hans Peter Ipsen, Europäische Verfassung-Nationale Verfassung, 3 EUROPARECHT 195, 203 (1987). Therefore, there was no basis in substantive law to condemn those proposed provisions. But if one accepts the ideas expressed by the ECJ in Opinion 1/91, it follows that the Member States, in promoting the EEA Treaty, attempted to act as an original constituent power. Their ultimate failure to enact that treaty refutes Zuleeg's view. See Zuleeg, supra note 24, at 477.
[]31See, e.g., U.S. CONST. art. V. See also SCHILLING, supra note 14, at 210.
[]32See Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review, 9 LAW & PHIL. 327 (1990) (arguing forcefully for the democratic legitimacy of judicial reviewto which he attributes exactly these purposes ascribed to the entrenchment of constitutional provisions).
[]33But see Zuleeg, supra note 24, at 475 (considering the Member States as the constituent power of the Community). Under this view, ECJ's Opinion 1/91 would protect the Member States against themselves. One cannot argue that the ECJ itself is the constituent power, because it developed, by its case law, the idea of Community law supremacy. But see Dowrick, supra note 19, at 220 (ascribing to the ECJ "the key role in this question of the source of authority"). Certainly, this argument would explain the ECJ's reluctance to see "the autonomy of the Community legal order" tampered with. Opinion 1/91, supra note 6, at I-6084. Yet the Member States do claim, rightly, the power to overrule the ECJ in matters of Treaty interpretation. See Protocol concerning article 119 of the EC Treaty, 1992 O.J. (C 191) 68. Shortly after the entry into force of that Protocol on November 1, 1993, the ECJ, apparently without taking notice of the protocol, handed down a decision identical in content to that protocol. See Case C-152/91, Neath. v. Hugh Sleeper, Ltd., 37 E.C.R. 6958 (1993).
[]34The idea of "the people" as constituent power goes back to the "social contract" (LOCKE as cited in Corwin, supra note 12, at 385, 397; ARENDT, supra note 10, at 178); and further back to Roman ideas on popular sovereignty (Corwin, supra note 12, at 151-52 n.8, referring to ULPIAN DIG. I, 1, 4 and INST. I, 2, 4). On the "No Demos" theory, see J.H.H. Weiler, The State `über alles': Demos, Telos and the German Maastricht Decision, in FESTSCHRIFT FüR ULRICH EVERLING 1651, 1655 (O. Duc et al., eds. 1995).
[]35But see ARENDT, supra note 10, at 145 (distinguishing between "a constitution that is the act of government and the constitution by which people constitute a government.").
[]36This is amply demonstrated by the way the UK constitution came into being. On parliamentary sovereignty, see, e.g., A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 39 (10th ed. 1961).
[]37This is, of course, the position of those who consider the EC/EU legal order as originally autonomous. See supra part II.A.
[]38This would be incompatible with "the idea of a legal order as a systematic unity," which "implies that there must be either only one highest authority or a plurality of coordinated authorities at the highest level." Ross, supra note 9, at 3 n.1 (emphasis added). But see N. MacCormick, Das Maasricht-Urteil: Souveränität heute, 50 JURISTENZEITUNG 797 (1995); W.D. Grumann, Grundnorm und SupranationalitätRechtsstrukturelle Sichtweisen der europäischen Integration, in AUF DEM WEG ZU EINER EUROPÅISCHEN STAATLICHKEIT 47 (Th. v. Danwitz et al. eds., 1993); M. Heintzen, Die `Herrschaft' über die Europäischen GemeinschaftsverträgeBundesverfassungsgericht und Europäischer Gerichtshof auf Konfliktkurs?, 119 ARCHIV Des öFFENTLICHEN RECHTS 564 (1994). MacCormick, Grumann, and Heintzen all argue in favor of a pluralistic view of the Community and national legal orders without a fixed hierarchy between them.
[]39Had such a development taken place in the Community, one of the consequences would be that the view that the United Kingdom Parliament has the power explicitly to deviate from the priority ranking of Community law would be correctly regarded as "antediluvian heresy," a possibility MacCormick, supra note 7, at 7, foresees occurring "some time in the next century".
[]40E.g., J.H.H. Weiler, The Transformation of Europe, 100 YALE L.J. 2403, 2413-19 (1991); K. Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM. J. COMP. L. 205, 208-10 (1990).
[]41On this relationship, see THE EUROPEAN COURT AND NATIONAL COURTSDOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT (Eur. Univ. Inst. Working Papers RSC Nos. 95/24-95/26, 95/28-95/31, 1995); K. ALTER, EXPLAINING NATIONAL COURT ACCEPTANCE OF EUROPEAN COURT JURISPRUDENCE: A CRITICAL EVALUATION OF THEORIES OF LEGAL INTEGRATION. (Eur. Univ. Inst. Working Papers RSC No. 95/27, 1995).
[]42See supra part II.A.
[]43Weiler, supra note 40, at 2428, equates the results of the ECJ's "Heroic Period" in the 1960s and early 1970s to a period "which would normally require something akin to a constitutional convention."
[]44For the United Kingdom, see, e.g., Regina v. Secretary of State for Transport ex parte Factortame Ltd. 3 C.M.L.R. 8, 380 (1990) ("Under . . . terms of the Act of 1972 it has always been clear...."); M. Akehurst, Parliamentary Sovereignty and the Supremacy of Community Law, 60 BRIT. Y.B. INT'L L. 351, 356 (1989). For France, see M. Patrick Frydman, J.C.P. II, No. 21371 (1989). For Germany, see Judgment of Oct. 12, 1993, BverfG, 89 BVerfGE 155 (English translation in 69(2) C.M.L.R. 57 (1994)) (former acceptance of the thesis of the autonomy of Community law by the BVerfG (e.g., Judgment of Oct. 18, 1967, BverfG, 22 BVerfGE 293, 296) is no longer quoted by that court; SCHILLING, supra note 18, at 182). For Spain, see Declaration of July 1, 1992, T.C., 1993 B.J.C. D 1-7-1992, at 460.
[]45See, e.g., Judgment of Oct. 12, 1993, supra note 44, 69(2) C.M.L.R.at 98, para. 82. The expression "federation of Member States," used in the English translation, is not an appropriate translation of the German "mitgliedstaatlicher Verbund," as the German wording is an effort to avoid the concept of federation.
[]46MacCormick, supra note 7, at 9, recognizes that the perspective discussed is not spelled out by Hart. See also id. at 9, n.745. In any case, the approach discussed will be called the Hartian approach.
[]47HART, supra note 18, at 100-10. The difference between the viewpoints chosen by Hart and Kelsen may be traced back to the respective legal background of those two authors. The Hartian rule of recognition looks predominantly at judges' behavior, thus reflecting a common law lawyer's view of the law. That the Hartian approach is "very firmly based . . . on the law of the UK . . . perceived in terms of the English common law" is stressed by MacCormick, supra note 7, at 9. The Kelsenian approach, by insisting on looking at a historically first constitution when considering means of changing the law, looks predominantly at the legislature's action, thus reflecting a civil law lawyer's view of the law.
[]48HART, supra note 18, at 242-44.
[]49MacCormick, supra note 7, at 1. See also M.L. Jones, The Legal Nature of the European Community: A Jurisprudential Analysis Using H.L.A. Hart's Model of Law and a Legal System, 17 CORNELL INT'L L.J. 1 (1984).
[]50MacCormick, supra note 7, at 8, contends that the question of sub- or super-ordination in the relation between the Community and the Member States can remain in abeyance as long as the claimed but contested power of a Member State to revoke unilaterally its Community obligations is not used; see DAVID A.O. EDWARD & ROBERT C. LANE, EUROPEAN COMMUNITY LAW; AN INTRODUCTION para. 84 (1991). MacCormick's view is not easily reconcilable with Hart's view of the rule of recognition as the ultimate rule of the system. Even if Hart realizes that the courts may have "authority at any given time to decide . . . limiting questions concerning the ultimate criteria of validity," this possibility, according to Hart, "depends . . . on the fact that, at that time, the application of those criteria to . . . the rules which confer that authority raises no doubts, though their precise scope and ambit do." HART, supra note 18, at 152 (emphasis added).
[]51But see Jones, supra note 49, at 4. See also HART, supra note 18, at 251. In Kelsenian terms, the "penumbra of doubt" simply means that the judge or official is not clear about which historically first constitution he should apply. Such a state of mind presupposes a completed legal revolution displacing the formerly accepted historically first constitution.
[]52As does Jones, supra note 49, at 46-47. See, e.g., Akehurst, supra note 44, at 356 (the United Kingdom); Frydman, supra note 44 (France); OPPERMANN, supra note 18, para. 523 (Germany). For a "scaled" interpretation of Community law supremacy, see Th. Schilling, A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle, 14 Y.B. EUR. L. 203, 236-42 (1994).
[]53Paul Kirchhof, Deutsches Verfassungsrecht and Europäisches Gemeinschaftsrecht, in DEUTSCHES VERFASSUNGSRECHT UND EUROPäISCHES GEMEINSCHAFTRECHT 11, 15 (Europarecht, Beiheft 1, 1991).
[]54The respective treatment of the market organization for bananas by the European and German courts is but one example. Compare the ECJ decisions in Case C-208/93 R., Germany v. Council, 1994 E.C.R. I-5039 and Case C-383/93, Dürbeck, 1995 E.C.R. I-1529 with Judgment of Jan. 25, 1995, BVerfG, 1995 EuZW 126 (F.R.G.); Judgment of Feb. 9, 1995, Verwaltungsgerichtshof Kassel, 1995 EuZW 222 (F.R.G.); Judgment of Apr. 26, 1995, BVerfG, 1995 EuZW 412; and Decision of May 19, 1995, Finanzgericht Hamburg, 1995 EuZW 413 (F.R.G.).
[]55"Politics is about power." Aneurin Bevan, as cited in MacCormick, supra note 7, at 11.
[]56On competences, see Lenaerts, supra note 40, passim; J.H.H. Weiler, Problems of Legitimacy in Post 1992 Europe, 46 AUSSENWIRTSCHAFT 411, 424 (1991).
[]57Judgment of Oct. 12, 1993, supra note 44, 69(2) C.M.L.R. at 86, para. 39. Admittedly, this is a rather tenuous legitimacy. See Weiler, supra note 34, at 1655, n.41.
[]58See, e.g., Jones, supra note 49, at 46. In addition, according to Jones, the Hartian rule of recognition "is quite able to account for any case of incomplete acceptance" by national jurisdictions, including for the view that direct effect and Community law supremacy are based on national constitutional law. Id. at 47.
[59]Indeed, according to R. Dworkin, "[i]t is just this sort of dependence [on principles, for example, about the proper place of a judiciary in a democracy] that [Hartian] positivism is most concerned to deny." R. DWORKIN, The Model of Rules II, in TAKING RIGHTS SERIOUSLY 46, 61 (1987). Hart answers, "[t]hat is the price which must be paid for legal constraints on government." HART, supra note 18, at 275. This answer, although correct generally, is less than satisfactory in the EC context.
[]60One of the most surprising experiences with the EC, however, is that the ECJ, time and again, exceeded the limits clearly indicated by the Treaties and that the Member States, far from rebuffing the ECJ, went more or less happily along with it and even, quite often, consecrated its decision by later amending the Treaties. But see supra text accompanying notes 33, 45. The actions of the Member States might evidence a hidden willingness on the part of the governments to accept more far-reaching integration than comes out in political negotiations. Of course, the democratic principle seriously demands that such a willingness be brought out into the open. See Weiler, supra note 56, at 426; Weiler, supra note 40, at 2428.
[]61See, e.g., Weiler, supra note 34; Claus D. Classen, Europäische Integration und demokratische Legitimation, 119 ARCHIV DES öFFENTLICHEN RECHTS 238 (1994).
[]62For further discussion, see supra text accompanying note 34.
[]63Ipsen speaks of the integration principle as part of the Community constitution. Ipsen, supra note 30, at 200. On a positive law of integration, see supra text accompanying note 30.
[]64See BENGT BEUTLER ET AL., DIE EUROPäISCHE UNIONRECHTSORDNUNG UND POLITIK 71 (1993); Kees van Kersbergen & Bertjan Verbeek, The Politics of Subsidiarity in the European Union, 32 J. COMMON MKT. STUD. 215, 227-29 (1994).
[]65BEUTLER, supra note 64, at 70.
[]66This is yet another formulation of the application of the Hartian rule of recognition on the Community. See supra text accompanying note 46.
[]67On these two types of natural law, see, e.g., Corwin, supra note 12, at 165-66, 382.
[]68J.H.H. WEILER, EUROPE AFTER MAASTRICHTDO THE NEW CLOTHES HAVE AN EMPEROR? 2 (1995) (Working Paper on file with the Harvard International Law Journal).
[]69Id. passim.
[]70Id. at 2.
[]71See M.S. Moore, Law as a Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 188, 196 (R.P. George ed., 1992).
[]72Peter Behrens, Integrationstheorie: Internationale wirtschaftliche Integration als Gegenstand politologischer, ökonomischer und juristischer Forschung, 45 RABELS ZEITSCHRIFT FüR AUSLäNDISCHES UND INTERNATIONALES PRIVATRECHT 8 (1981).
[]73Alfred P Rubin, Enforcing the Rules of International Law, 34 HARV. INT'L. L.J. 149, 151 (1993).
[]74See, e.g., NATURAL LAW THEORY, supra note 71.
[]75Moore, supra note 71, at 197.
[]76Id. at 197. See Robert Alexy, Zur Kritik des Rechtspositivismus, in RECHTSPOSITIVISMUS UND WERTBEZUG DES RECHTS 9 (ARSP, Beiheft 37 (n.s.), 1990).
[]77ST. AUGUSTINE, BISHOP OF HIPPO, DE LIBERO ARBITRIO §§ 1, 5, 11 (Franco De Capitani trans., 1987) (1524)
[]78See Pavlos Eleftheriadis, Aspects of European Constitutionalism, 21 EUR L. REV. 30 (forthcoming 1996) (arguing that "any credible argument that a transition to a European Constitution is advisable should be able to establish that this new institutional order will be a [substantively] better constitutional arrangement").
[]79See Rubin, supra note 73, at 155.
[]80See Judgment of Oct. 12, 1993, supra note 44, 69(2) C.M.L.R. at 102, para. 91.
[]81"The role of the judge . . . in such a system is to transform the `natural' rules into positive rulesto use the discretionary enforcement techniques of the social order to maintain that order, while purporting to act simply as the agent of `nature' or `reason.' Rubin, supra note 73, at 151.
[]82Van Gend en Loos, supra note 13; Cases 90 and 91/63, Commission v. Luxembourg & Belgium, 1964 E.C.R. 625, 631. Conversely, others claim that the case law of the ECJ has no relevance in international law. KNUT IPSEN, VöLKERRECHT § 72, para. 14 (3d ed. 1990).
[]83See supra text accompanying note 45. For HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 172 (1952), it is the degree of centralization that makes the difference between a national or federal state and an international community.
[]84See, e.g., Weiler, supra note 40, at 2413.
[]85See supra text accompanying note 45.
[]86Even if the European Treaties form a class of their own. See IPSEN, supra note 82, § 27, para. 9.
[]87From the International Court of Justice, see Case Concerning the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 82 INT'L. L. REP. 225, 252 (1990) ("sufficient to recall the fundamental principle of international law that international law prevails over domestic law"). See also Exchange of Greek and Turkish Populations, 1925 P.C.I.J. (ser. B) No. 10, at 20 (Feb. 25). Alternatively, states could amend such treaties.
[]88In the United Kingdom, the above result is specifically provided for by sections 2(1), 3(1) of the European Communities Act (1972).
[]89On the basis of the provisions quoted supra note 88, the question must be answered in the affirmative for the United Kingdom.
[]90See KELSEN, supra note 83, at 402-03.
[]91See Leo Gross, States as Organs of International Law and the Problem of Autointerpretation, in ESSAYS ON INTERNATIONAL LAW AND ORGANIZATION 167, 182-96 (1993); LINOS-ALEXANDRE SICILIANOS, LES RéACTIONS DÉCENTRALISÉES À L'ILLICITE (1990); Hans Kelsen, Unrecht und Unrechtsfolge im Völkerrecht, 12 ZEITSCHRIFT FüR ÖFFENTLICHES RECHT 481, 577 (1932); Theodor Schilling, Die "neue Weltordnung" und die Souveränität der Mitglieder der Vereinten Nationen, 33 ARCHIV DES VöLKERRECHTS 67, 100 (May 1995).
[]92HANS KELSEN, DAS PROBLEM DER SOUVERäNITäT UND DIE THEORIE DES VöLKERRECHTS 308 (2d ed. 1928).
[]93Jochen Abr. Frowein, Die Herausbildung europäischer Verfassungsprinzipien, in RECHTSSTAAT UND MENSCHENWüRDE: FESTSCHRIFT FüR WERNER MAIHOFER ZUM 70. GEBURSTAG 149 (Arthur Kaufmann et al. eds., 1988) (viewing the structure of the EC Treaties as similar to a constitution in that relevant legal questions may be decided by the ECJ).
[]94Lenaerts, supra note 40, at 205 (emphasis added).
[]95See Lenaerts, supra note 40, at 260-63.
[]96See, e.g., ALFRED VERDROSS & BRUNO SIMMA, UNIVERSELLES VöLKERRECHT: THEORIE UND PRAXIS § 775 (3d ed., 1984).
[]97Vienna Convention on the Law of Treaties, May 22, 1969, art. 31(1), 1155 U.N.T.S. 331
[]98According to Manfred Zuleeg, the ECJ is a constitutional court insofar as it decides on the organization and essential traits of the Community. Manfred Zuleeg, Die Verfassung der Europäischen Gemeinschaft in der Rechtsprechung des Europäischen Gerichtshofs, 49 BETRIEBS-BERATER 581 (1994). But see Lenaerts, supra note 40, at 254-62.
[]99Kompetenz-Kompetenz is the jurisdiction to determine one's own jurisdiction. On the history of the concept, see Peter Lerche, Kompetenz-Kompetenz und das Maastricht-Urteil des Bundesverfassungsgerichts, in VERFASSUNGSRECHT IM WANDEL 409 (Jörn Ipsen et al. eds., 1995). Every international court has the Kompetenz-Kompetenz to determine its own jurisdiction. See, e.g., art 36 (6) of the Statute of the International Court of Justice; 3 FRIEDRICH BERBER, LEHRBUCH DES VöLKERRECHTS 74 (1977); see generally 1 WILHELM WENGLER, VöLKERRECHT 729-30 (1964). As employed in this Article, however, judicial Kompetenz-Kompetenz means the jurisdiction of the ECJ as organ of the Community to decide on the legislative competences of the Community and thereby to decide the scope of the sovereign rights that the Member States gave it. See Theodor Schilling, Artikel 24 Absatz 1 des Grundgesetzes, Artikel 177 des EWG-Vertrags und die Einheit der Rechtsordnung, 29 DER STAAT 161, 176-79 (1990). T. Koopmans, Rechter, D-Mark en democratie: het Bundesverfassungsgericht en de Europese Unie, 1994 NEDERLANDS JURSITENBLAND 245, 249, considers Kompetenz-Kompetenz a category borrowed from German constitutional law. See also Lerche, supra, at 418.
[]100The procedural "inadequacies" of other remedies before the ECJ are an example of what is included in the context. See Phillip Raworth, Too Little, Too Late? Maastricht and the Goal of a European Federation, 32 ARCHIV DES VöLKERRECHTS 24, 39-41 (1994).
[]101See Judgment of Oct. 12, 1993, C.M.L.R., supra note 44, at 90; Schilling, supra note 52, at 233 n.49. But see Koen Lenaerts & Patrick van Ypersele, Le principe de subsidiarité et son contexte: etude de l'article 3 B du étude Traité'CE, 1-2 C. de D. Eur. 3, 5 (1994); K.L.M. Mortelmans, De interne markt en het facettenbeleid na het Keck-arrest: nationaal beleid, vrij verkeer of harmonisatie, 1994 SOCIAL-ECONOMISCHE WETGEVING 236, 248.
[]102See Judgment of Oct. 12, 1993, supra note 44, 69(2) C.M.L.R. at 84, paras. 33, 65; Opinion 2/94, 1996 E.C.R. I-21, para. 23; Koopmans, supra note 99.
[]103The purposes of the Maastricht Treaty, laid down in its article B, may lead to a different result. According to article L of the Maastricht Treaty, however, the power of the ECJ does not extend to article B, and therefore autointerpretation is expressly reserved in this case.
[]104On this distinction, see Schilling, supra note 99, at 168; S.L. Paulson, Material and Formal Authorisation in Kelsen's Pure Theory, 39 CAMBRIDGE L.J. 172 (1980).
[]105Schilling, supra note 99, at 169.
[]106See, e.g., Case 52/76, Benedetti v. Monari, 1977 E.C.R. 163, para. 26; Judgment of June 8, 1977, BVerfG, 45 BVerfGE 142, 162; Judgment of July 7, 1979, BVerfG, 52 BVerfGE 187, 201; Judgment of Oct. 22, 1986 BVerfG, 73 BVerfGE 339, 370; Judgment of Mar. 22, 1995, BVerfG, 1995 EuGRZ 125, 135. See also MacCormick, supra note 38, at 800.
[]107Schilling, supra note 99, at 177. See also Judgment of Oct. 12, 1993, supra note 44, (69)2 C.M.L.R. at 105, para. 99 (the "interpretation of the [Union Treaty] may not have effects that are equivalent to an extension of the Treaty").
[]108Schilling, supra text accompanying note 99, at 177. It is rather doubtful whether this conclusion is valid for the UK. See discussion supra note 89.
[]109KELSEN, supra note 92, at 309, has seen the possibility that a federal constitution authorizes each constituent part to review acts of a federal institution and to quash them, if found unlawful, with effect for its respective territory. In such a case, he maintains, the legal community is, on the level of the review of legal acts, a primitive one.
[]110Case 7/76, IRCA v. Amministrazione della Finanze dello Stato, Warner AG, 6 E.C.R. 1213, 1237 (1976). But see the critical discussion by M. Akehurst, The Application of General Principles of Law by the Court of Justice of the European Communities, 52 BRIT. Y.B. INT'L. L. 29, 44 (1981).
[]111Except for the Netherlands. See MONICA CLAES & BRUNO DE WITTE, THE EUROPEAN COURT AND NATIONAL COURTSDOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT. REPORT ON THE NETHERLANDS 14-18 (Eur. Univ. Inst. Working Papers RSC No. 95/26, 1996).
[]112On the similar question of autonomy, see supra text accompanying note 44.
[]113This can be seen most clearly in the Judgment of Oct. 12, 1993, supra note 44, 69(2) C.M.L.R. at 105, para. 99. It is at variance with Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost, 9 E.C.R. 4199, para. 15 (1987). See Koopmans, supra note 99, at 250; K.M. Meessen, Maastricht nach Karlsruhe, 47 NEUE JURISTISCHE WOCHENSCHRIFT 549, 552 (1994).
[]114 In the banana cases, supra note 54, German courts other than the German Constitutional Court have employed the article 177 procedure.
[]115See Judgment of Mar. 22, 1995, supra note 106.
[]116See Schilling, supra note 99, at 178.
[]117For example, the German Constitutional Court apparently leaves the last word on questions of autointerpretation to every administrative authority and to every court in Germany. See, e.g., Judgment of Oct. 12, 1993, supra note 44, (69)2 C.M.L.R. at 105, para. 99.
[]118The question has been addressed, but not decided, by the German Constitutional Court. Judgment of Apr. 26, 1995, supra note 54, 1995 EuZW at 413.
[]119See Dowrick, supra note 19, at 223; Paul M. Dubinsky, The Essential Function of Federal Courts: The European Union and the United States Compared, 42 AM. J. COMP. L. 295, 331 (1994).
[]120See, e.g., Case 148/78, Publico Ministero v. Ratti, 2 E.C.R. 1629, para. 22 (1979); Joined Cases 6/90 and 9/90, Francovich v. Italian State, 1991 E.C.R. I-5357, I-5414, para. 32 (1990).
[]121. See, e.g., Judgment of Oct. 12, 1993, supra note 44, (69)2 C.M.L.R. at 105, para. 99 (the "interpretation [of the Union Treaty] may not have effects that are equivalent to an extension of the Treaty"); id. at 106, para. 103 (the "principle of subsidiarity, adherence to which is a matter for the European Court to scrutinize"). The German expression "dessen Einhaltung der Europäische Gerichtshof zu überwachen hat" is rather stronger.
[]122Meessen, supra note 113, at 552, does not exclude the possibility that German courts might be obligated, by the Judgment of Oct. 12, 1993, supra note 44, to refuse to grant damages under Francovich.