Jean Monnet Center at NYU School of Law

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IV. Redefining the Decisive Question

This analysis is telling because, we think, it leads us to identify what we believe is the real concern of Schilling and the German Federal Constitutional Court to whose support he runs. The real concern is not with the integrity of the Treaty under international law, nor even with the Rule of Law. On the one hand, there seems to be an unhappiness with the erosion of state sovereignty in a classical sense in a materially and legally inter-dependent world.[242 ] It is really state rights which concern Schilling, albeit cloaked in a would-be mantle of international law.

But there probably is yet another concern for which we have greater sympathy. Imagine the unlikely scenario that Schilling were persuaded by our arguments. Would he really be happy to see the European Court remain in its pivotal position as ultimate umpire on questions of competences? We doubt it. His other concern, we think, is not with the idea of a centralized court that states may create to police their transnational legal undertakings (which from an international law perspective is legitimate and unexceptional), but with the performance of this particular Court, especially on the issue of competences.

The decisive question that truly underlies Schilling's engagement with international law is quite different to the one he poses. The question is not, do the European Treaties make the European Court the final umpire over Community competences?, but rather, can we trust and have confidence in the ECJ to perform the task of ultimate umpire of the jurisdictional limits? The issue, then, is not one of formal definition of task, but of trust in the performance.

The history of the Community jurisdictional powers explains Schilling's concerns. He is not alone in developing that sensitivity. During the debate accompanying the Maastricht Treaty, there erupted the dormant question of Community "competences and powers."[243] This question and the accompanying debate found their code in, for example, the deliciously vague concept of "subsidiarity." This question has been inevitably connected to the continued preoccupation with governance structures and processes, with the balance between Community and Member States, and with the questions of democracy and legitimacy of the Community to which the Maastricht debate gave a new and welcome charge.

What accounts for this eruption?[244 ]

First, a bit of history. The student of comparative federalism discovers a constant feature in practically all federal experiences: a tendency towards concentrations of legislative and executive powers in the center or general power at the expense of constituent units.[245] This concentration apparently occurs independently of the mechanism allocating jurisdiction / competences / powers between center and "periphery." Differences, where they occur, depend more on the ethos and political culture of polities than on legal and constitutional devices.[246 ] The Community has both shared and differed from this general experience.[247 ]

It has shared it in that the Community, especially in the 1970s, had seen a weakening of any workable and enforceable mechanism for allocation of jurisdiction/competences/powers between Community and its Member States.

How has this occurred? It has occurred by a combination of two factors.

a. Profligate legislative practices especially in, for example, the usage of art. 235.

b. A bifurcated jurisprudence of the Court which on the one hand extensively interpreted the reach of the jurisdiction/competences/powers granted the Community and on the other hand had taken a self-limiting approach towards the expansion of Community jurisdiction/competence/powers when exercised by the political organs.[248]

To make the above statement is not tantamount to criticizing the Community, its political organs and the ECJ. The question is one of values. It is possible to argue that this process was beneficial overall to the evolution and well-being of the Community as well as beneficial to the Member States, its citizens and residents. But this process was also a ticking constitutional time bomb which one day could threaten the evolution and stability of the Community. Sooner or later, "supreme" courts in the member states would realize that the "socio-legal contract" announced by the ECJ in its major constitutionalizing decisions -- namely, that "the Community constitutes a new legal order ... for the benefit of which the States have limited their sovereign rights, albeit within limited fields"[249 ] -- had been shattered. Although these "supreme" courts had accepted the principles of the new legal order, supremacy and direct effect, the fields seemed no longer limited. In the absence of Community legal checks, they would realize, it would fall upon them to draw the jurisdictional lines of the Community and its Member States.

Interestingly enough, the Community experience differs from the experience of other federal polities, in that despite the massive legislative expansion of Community jurisdiction / competences / powers, there had not been any political challenge of this issue from the Member States.

How so? The answer is simple and obvious, and it resides in the decision-making process as it stood before the Single European Act (SEA). Unlike the state governments of most federal states, the governments of the Member States, jointly and severally, could control the legislative expansion of Community jurisdiction / competences / powers. Nothing that was done could be done without the assent of all States. This diffused any sense of threat and crisis on the part of governments. Indeed, if we want to seek "offenders" who have disrespected the principle of limited competence, the governments of the Member States, in the form of the Council of Ministers, conniving with the Commission and Parliament, would be the main ones. How convenient to be able to do in Brussels what would often be politically more difficult back home, and then exquisitely blame the Community! The ECJ's role has been historically not one of activism, but one of, at most, active passivism. Nonetheless, it did not build up a repository of credibility as a body which effectively patrols the jurisdictional boundaries between the Community and Member States.

This era passed with the shift to majority voting after the entry into force of the SEA and the seeds -- indeed, the buds -- of crisis became visible.[250] It became a matter of time before one of the national courts would defy the ECJ on this issue. Member states would become aware that in a process that gives them neither de jure nor de facto veto power, the question of jurisdictional lines has become crucial. The Maastricht Decision of the German Federal Constitutional Court fulfilled this prediction, albeit later than anticipated.

Of course, the German decision is an egregious violation of the Treaty -- ironically, especially if understood in classical international legal terms. But this view is grounded in the classical, hierarchical, centrist view of the European legal order. How should one evaluate this development given the questions concerning the normative authority of European constitutionalism and a more horizontal, conversation-based view of that very same constitutionalism?

Somewhat inappropriately, given the conversation metaphor, we want to use some of the dynamics of the Cold War as a device for evaluating the judicial Kompetenz-Kompetenz aspect of the Maastricht Decision of the German Federal Constitutional Court.

According to this analogy, the German decision is not an official declaration of war, but the commencement of a cold war with its paradoxical guarantee of co-existence following the infamous MAD (Mutual Assured Destruction) logic. For the German Court actually to declare a Community norm unconstitutional, rather than simply threaten to do so, would be an extremely hazardous move so as to make its usage unlikely. The use of tactical nuclear weapons was always considered to carry the risk of creating a nuclear domino effect. If other Member State courts followed the German lead, or if other Member State legislatures or governments were to suspend implementation of the norm on some reciprocity rationale, a real constitutional crisis would arise in the Community -- the legal equivalent of the Empty Chair political stand-off in the 1960s.[251] It would be hard for the German government to remedy the situation, especially if the German Court decision enjoyed general public popularity. Would the German Federal Constitutional Court be willing to face the responsibility of dealing such a blow to European integration, rather than just threatening to do so?

Maybe not, but the logic of the Cold War is that each side has to assume the worst and to arm as if the other side would actually deal the first blow. The ECJ would then have to watch over its shoulder the whole time, trying to anticipate any potential move by the German Federal Constitutional Court.

If we now abandon the belligerent metaphor, it could be argued that this situation is not per se unhealthy. The German move is an insistence on a more polycentered view of constitutional adjudication and will eventually force a more even conversation between the European Court and its national constitutional counterparts. We would suggest that, in some ways, the German move of the 1990s in relation to competences resembles their prior move in relation to human rights.[252] It was only that move which forced the European Court to take human rights seriously.[253 ]

The current move could also force the Court to take competences seriously.

This view is not without its functional problems.

a. There is no "non proliferation treaty" in the Community structure. MAD works well, perhaps, in a situation of two superpowers. But there must be a real fear that other Member State Courts will follow the German lead in rejecting the exclusive Kompetenz-Kompetenz of the ECJ. The more courts adopt the weapon, the greater the chances that it will be used. Once that happens, it will become difficult to push the paste back into the tube.

b. Courts are not the principal Community players. But this square-off will have negative effects on the decision making process of the Community. The German Government and Governments whose Courts will follow the German lead, will surely be tempted to play that card in negotiation. ("We really cannot compromise on this point, since our Court will strike it down ...")

Here, too, we find an interesting paradox. The consistent position of the ECJ, as part of its constitutional architecture, has been that it alone has judicial Kompetenz-Kompetenz because the jurisdictional limits of the Community are a matter of interpretation of the Treaty. The German Federal Constitutional Court, as part of its reassertion of national sovereignty and insistence of legitimization of the European construct through states' instrumentalities and the logic of public international law, has defied the ECJ. As we argued throughout this article, the internationalist logic claimed by the German Court negates its own conclusions. Surely, the reach of an international treaty is a matter of international law and depends on the proper interpretation of that treaty. Therefore, from the internationalist perspective, the ECJ must be the final umpire of that system.

If, however, the European polity constitutes a constitutional order as claimed by the European Court of Justice, then this issue is far more nuanced. There has been no constitutional convention in Europe. European constitutionalism must depend on a common-law type rationale, one which draws on and integrates the national constitutional orders. The constitutional discourse in Europe must be conceived as a conversation of many actors in a constitutional interpretative community, rather than a hierarchical structure with the ECJ at the top. It is this constitutional perspective that, paradoxically, gives credibility to the claim of the German Court. A feature of neo-constitutionalism in this case would be that the jurisdictional line (or lines) should be a matter of constitutional conversation, not a constitutional diktat.

And yet, the solution offered by the German Federal Constitutional Court and endorsed by Schilling is no conversation either. Although the German Court mentions that these decisions have to be taken in cooperation with the ECJ, it reserves the last word to itself. A European diktat is simply replaced by a national one. And the national diktat is far more destructive to the Community, if one contemplates the possibility of fifteen different interpretations.

How, then, can one square this circle?

One possible solution is institutional and we would like to outline only its essential structure. We have proposed the creation of a Constitutional Council for the Community, modeled in some ways after its French namesake. The Constitutional Council would have jurisdiction only over issues of competences (including subsidiarity) and would decide cases submitted to it after a law was adopted but before coming into force. It could be seized by any Community institution, by any Member State or by the European Parliament acting on a majority of its Members. Its president would be the President of the ECJ, and its members would be sitting members of the constitutional courts or their equivalents in the Member States. Within the Constitutional Council, no single Member State would have a veto power. The composition would also underscore that the question of competences is fundamentally also one of national constitutional norms, but still subject to a Union solution by a Union institution.

We will not elaborate in this Article some of the technical aspects of the proposal.[254] The principal merit of this proposal is that it addresses the concern over fundamental jurisdictional boundaries without compromising the constitutional integrity of the Community, as did the Maastricht Decision of the German Federal Constitutional Court. Since, from a material point of view, the question of boundaries has an built-in indeterminacy, the critical issue is not what the boundaries are, but who gets to decide. On the one hand, the composition of the proposed Constitutional Council removes the issue from the purely political arena; on the other hand, it creates a body which would, we expect, enjoy a far greater measure of public confidence than the ECJ itself.

[242] Schilling also asserted classical state sovereignty in his 1990 article in the German public law journal "Der Staat." Theodor Schilling, Artikel 24 Absatz 1 des Grundgesetzes, Artikel 177 des EWG-Vertrags und die Einheit der Rechtsordnung, 29 DER STAAT 161 (1990). In that article, he used, as he does here, an interpretation reconciling two allegedly incompatible legal provisions (German constitutional legal doctrine calls this concept "praktische Konkordanz") in relation to Article 177 EEC Treaty and the former Article 24 of the Geman Basic Law. The outcome was exactly the same: the interpretation of EEC Treaty art. 177 along the lines of GG art. 24(1) demanded that ECJ decisions had only persuasive power, i.e., that of an advisory opinion, if (a) the legal question touched upon the issue of competences, and (b) the ECJ's interlocutor was the German Federal Constitutional Court. Schilling, in the Article that we are responding to, "internationalizes" this conclusion by undertaking a similar interpretation of EEC Treaty art. 171 in relation to EEC Treaty art. 2. Even more revealing is Schilling's recent article on the "Sovereignty of the Members of the United Nations". Theodor Schilling, Die ´neue Weltordnung' und die Souveränität der Mitglieder der Vereinten Nationen, 33 ARCHIV DES VöLKERRECHTS 67 (1995). There, Schilling turns against another international institution that, in the name of international integration, fetters national sovereignty, namely the Security Council using its right to make decisions that are legally binding upon the Member States of the UN. Id., at 92 - 103. He argues that the Member States are bound only by legal decisions of the Security Council. Id. Since the ICJ can only review Council acts incidenter, he asserts that the state in question has the power to judge for itself whether or not a measure of the Council is legal. Yet that state is, according to Schilling, not necessarily the judge of its own cause because its decision can be reviewed by a "decentral decision of the state community" ("dezentrale Entscheidung der Staatengemeinschaft"). Id., at 101 - 103. Schilling dismantles the UN mechanism of dealing with breaches of peace and brushes away "certain doubts" in the name of state sovereignty. Id., at 101.

[243] See generally Weiler, supra note 7, at 2431-53.

[244] In this part of the article, we are relying on Weiler, Haltern & Mayer, supra note 6.

[245] See generally EUROPE AFTER MAASTRICHT: AN EVEN CLOSER UNION? (Renaud Dehousse ed. 1994).

[246] See J.H.H. Weiler, Limits To Growth? On the Law and Politics of the European Union's Jurisdictional Limits, in STATE AND NATION - CURRENT LEGAL AND POLITICAL PROBLEMS BEFORE THE 1996 INTERGOVERNMENTAL CONFERENCE, IUSEF No. 15, 1-32 (1995).

[247] We are relying here on Jacqué & Weiler, supra note 11.

[248] See Weiler, supra note 7, at 2453-63.

[249] Van Gend en Loos, supra note 8, at 2 (emphasis added).

[250] See Weiler, supra note 7, at 2453-63.

[251] Weiler, Haltern & Mayer, supra note 6.

[252] See German Federal Constitutional Court, judgment of May 29, 1974, 37 BVerfGE 271 ("Solange I"); judgment of October 22, 1986, 73 BVerfGE 339 ("Solange II").

[253] Cf., in extensu, Weiler & Lockhart, supra note 113.

[254] For a more elaborate description of this proposal, see Weiler, Haltern & Mayer, supra note 6.

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