Jean Monnet Center at NYU School of Law

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Given the discrepancy between the passion of the argument and the thinness of the case, it is hard to believe that democracy alone is driving Mancini. What else can be at stake? Here are some possibilities, some or all of which may explain the position of Mancini and those like him.

There is, I think, something odd in the deep disappointment of Mancini in those academics and judges--his two reference groups--who refuse to share his statal dream. After all, in the analysis, up to the very final point including the civic based demos and all the rest, Mancini seems to march with me, drums and all. It is only when he wants to move beyond and transform Community into a sovereign State, even if minimalist (isn't that what they all say--yet show me the federal state that has remained minimalist), that Mancini finds himself the lonely drummer. What, then, makes him part company and march so determinedly along? When Mancini cites with such approval those supposedly glorious words of Attlee--Europe must federate or perish--is he (or Attlee) really motivated by democracy alone? Or could he be giving expression to the deeply held habit of self-determination of peoples so dominant in the last 150 years and according to which the great dream and prize of peoplehood, defined organically or otherwise, was a State? Does not Mancini's hearkening after the common foreign policy and army so that Europe could play a noble role in the world remind one of similar noble sentiments in previous unifications within Europe? Is it possible that having been led to the point where he accepts that the logic of European democracy requires the conceptualisation and eventual emergence of a European demos, it is, perish the thought, he himself who cannot conceive of a demos, based on civic loyalty or otherwise, without a State and simply takes the almost instinctive next step, so natural in Europe, from people (even if civic based) to State? A veritable and equally honourable European Risorgimento? Maybe you have to be Scottish, or Catalan, or Jewish, to believe truly in the possibility of peoples, demoi, existing and thriving without having their own State--and even among these groups such a belief is a dying faith.

Another possibility is that alongside the vision of the European State fighting single-mindedly for social rights in the world economic arena by bringing to bear the vast economic might of Europe and becoming a humanitarian fire-brigade for the world through its would-be foreign and security apparatus, there is, too, as I have already mentioned, the simple attraction of the undoubted power and might that a would-be European State would have. And why not, if it is all for a good cause?

But there is something else, too: European statehood will safeguard what to Mancini are the `major advances' of European Integration. And what are these `major advances?' In his words: `[S]upremacy of European law and its corollaries, undistorted competition and equal treatment for all Union citizens.' Who is the author of these major advances? That goes without saying. And what and who is threatening these major conquests? You guessed it: `... [T]he testing by Member State courts of Community provisions against the values enshrined in their constitutions....'[92]

With some tongue in cheek could we not say, as Mancini did, that in spite of appearances, which suggest that the main issue at stake is the safeguarding of democracy, the reasons accounting for the hostility towards any national control of European governance is more down-to-earth than ideological? Old hands might identify them in the self-preserving interests of the European Court to maintain its own supremacy as the ultimate arbiter of constitutionality and legality in the Union and, in a worthier vein, to try and preserve some of the important achievements of an open transnational market and some notable achievements in ensuring in some spheres equal treatment for all Union citizens.

If Mancini believes that the major advances of supremacy of European law, undistorted competition and equal treatment for all, (or at least for some as the Court reminded us in its recent Grant decision) are values worthier than values enshrined in the national constitutions, there is no reason why he should not advocate measures to safeguard them. And he is correct in assuming that at least a certain type of federal state[93] could, indeed, finally put to rest the recent and increasing challenges by national constitutional courts. But it is one thing to say that a European State is required to preserve these conquests. It is another thing to say that it is required to preserve democracy. After all, a disruptive people in the European State might even, democratically, elect to do away with, say, the market philosophy of the European Court of Justice.

It is on these occasions that I rejoice most that I am not a judge on the Court. What would I do if I felt, as Mancini does, that the European Community suffered from this deep democratic deficit which he describes so unflinchingly and which could only be cured by a European State? Would I want to give effect to a principle which rendered the Community's undemocratic laws--adopted by `numberless, faceless and unaccountable committees of senior national experts' and rubber-stamped by the Council--supreme over the very constitutional values of the Member States? If democracy is what I cared about most, would I unambiguously consider much of the Community edifice a major advance? I feel even happier that I am not a judge on one of the Constitutional Courts of a Member State. As a Member State Judge, I would, I am sure, take the views of my brother on the European Court very seriously. What would I feel as my duty, after reading Mancini, in a case which challenged, for example, the `Communauterisation' of certain aspects of the Third Pillar on the grounds that European law lacked the basic legitimacy which real, rather than presumed, democracy bestows and which it was my duty as a guarantor of the national Constitution's commitment to democracy to ensure? I imagine I would say and do what some Constitutional Courts have already said, albeit in more elegant ways: that until the European Union becomes a State which according to Mancini, barring a miracle, is its only way of becoming democratic, the ultimate repository of legitimate authority which flows from democracy must, after all, be the Member State; that supremacy cannot but be a contingent and limited concept subject to Member State control; that if too much power has been transferred to the Union so that national controls, as Mancini argues, have become ineffective, then it would be my duty to declare unconstitutional any new transfer of power--bye-bye Amsterdam--and maybe even to claw back some powers already transferred. After all, when it comes to democracy, better late than never. I do not think that the two German judges whom Judge Mancini critiques will, after all, find his position so inimical. The last grin goes, so it seems, to Grimm.

[92]`Finally, the testing by Member State courts of Community provisions against the values enshrined in their constitutions runs the risk of undermining the major advances made during the integration process: namely, supremacy of European law and its corollaries, undistorted competition and equal treatment for all Union citizens.' Mancini, Text to n 63

[93]Cf. Steve J. Boom, The European Union after the Maastricht Decision: Is Germany the `Virginia of Europe?'5/95 Harvard Jean Monnet WorkingPaper, JeanMonnet/

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