Jean Monnet Center at NYU School of Law

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1. The position described

The question of whether the FCC may review European community legislation depends on whether it may override the ECJ as a final arbiter of constitutionality. In fact there are three related but logically independent questions, that need answering in this context. First, which constitution is supreme? Is European Constitutional Law[7] or Member States' Constitutional Law supreme? Second, who has the last word adjudicating the constitutional provisions of the respective supreme constitution, the ECJ or the highest judicial organs of the respective Member States? Third, are the answers given part of a monist or a pluralist conception of European constitutionalism?

In this framework the magnitude of the claim put forward by the ECJ can be assessed. According to it, European Constitutional Law is supreme[8], the ECJ alone has the power to review and annul community measures on any grounds[9] and the Member States may not invoke their constitutional provisions to justify not applying Community Law in their territory. This position I will call `European Monism'.

2. The position applied

European Monism gives a clear answer to the question of how the FCC should deal with the case of the legality of the banana market order: It should make no substantive decision at all but should dismiss the action for lack of jurisdiction. Legality under European Law is the only valid criteria for the application of the regulation in Germany and only the ECJ has the authority to determine whether the regulation is in fact legal under European Law. The ECJ has found the regulation legal, dismissing the case brought by Germany under Art.173 ECT, and has repeated its finding in the case brought by the Administrative Court of Frankfurt in an Art. 177 ECT referral. Even if the FCC claimed jurisdiction and then decided to dismiss the case on substantive grounds, this assertion of jurisdiction alone would be an act ultra vires, incompatible with European Law.

3. The position justified

The authority of the Court to give an authentic interpretation of the Treaties' provisions has its legal basis in the Treaties, particularly Art. 164 and Art.173 ECT. It is generally[10] acknowledged that, on the level of European Law, the institutionalization of judicial review on the community level bars Member States from substituting their interpretations of the Treaties for that of the ECJ. It is the ECJ's task to decide what the law is on the level of the European Legal Order. The supremacy of the European Legal Order is based on an argument which the court also invokes to justify its role as final arbiter of legal questions: Supremacy is required in order to ensure the uniform application of the Community's law - itself necessary to establish the coherent legal order that the Treaties intended to establish.

A more general argument in favor of such a conception, related to the ideal of a coherent legal order, is that it expands the liberal ideal of the Rule of Law to the supranational sphere. The European Communities are viewed as the most promising attempt so far to extend the Rule of Law beyond the borders of the state, attempting to integrate effectively the Member States and its peoples into an autonomous legal order. Besides ensuring the regularity, predictability and procedural due process generally associated with the Rule of Law[11], such integration is generally thought to significantly mitigate two dangers that, historically, have been associated with nation states. The first concerns the relationship between states: Clashes of interests between nation states have a dangerous propensity to degenerate into bloody wars. Within the framework of a coherent legal order the definition, articulation and negotiation of national interests occurs in such a manner, as to make such a development highly unlikely. The second concerns safeguarding fundamental rights and democracy within nation states: Legal integration can be seen as a mechanism which tends to immunize nationally organized peoples from the kind of passionate political eruptions that have lead to the kind of totalitarian or authoritarian governments and/or discrimination of minorities, that have characterized much of the 20th century in Europe. This could not be achieved to the same degree, so the argument goes, if the ultimate decision concerning what is to be applied as law in a Member State rests on a decision ultimately made by the Member States themselves.

4. The position criticized

a) The argument denying the existence of an autonomous European Legal Order

The most frequently invoked argument against the ECJs position is that there is no such thing as an autonomous legal order established on the European level and therefore European Law can not be supreme.[12] What exists is a set of legal practices based on treaties concluded between sovereign states, amendable only by the consent of all Member States and terminable at will by the Member States.[13] The will of the Member States, as manifested in their respective legal orders, is supreme.

This formalist focus on the origin and amendment procedure of the European Legal Order has its theoretical basis in the national statist conception of an autonomous legal order[14] and therefore shares its weaknesses. One such weakness is that it is conceptually blind to significant institutional, sociological and normative factors that it excludes as reasons relevant to assessing whether the ECJ's position is plausible or not. An argumentum ad absurdum helps to illustrate the point. If it were the case that: (a) a perfect system of justice institutionalized on a European level based on Treaties concluded by states a long time ago, after many amendments and years of continuous public debate; and (b) some important questions were left to be determined by the Member States, but the Community were conferred exclusive competencies in most areas, including defense, foreign affairs (naturally excluding the Member States' relation to the European Union) internal affairs and legal affairs: As long as the requisite amendment procedure would require all Member States' ratification, such an order would not qualify as an autonomous legal order according to this statist model.[15] That, however, is not convincing.

Of course the regime just described is not that of the existing European Legal Order. It does not, however, seem farfetched to claim that there are institutional, sociological and normative factors that provide good reasons to interpret the existing European Legal Order as having emancipated itself from its founders to such a degree that denying it autonomous status is implausible. Such factors include (a) the rich body of law in important areas not strictly limited to the economic sphere that (b) have direct effect in Member States legal orders and are (c) supreme over national statutory law, (d) held to a fundamental rights standard elaborated by the ECJ, (e) enacted, at least in part, by a legislative process involving majoritarian decision-making and participation of a European Parliament (f) adjudicated within a system that prescribes compulsory judicial conflict resolution functionally integrated into national systems of judicial review and (g) the prevalence of a teleological method of legal reasoning phenomenologically distinguishable from the focus on text and the will of the contracting parties[16] that typically characterizes interpretation in international law.

But even if there is merit to the claim that there is such a thing as an autonomous legal order existing on the European level, it does not follow that the ECJ's monist conception is convincing. The status of the European Legal Order as `autonomous' may be a necessary condition for the supremacy claim to be justified.[17] It is not, however, a sufficient condition, as will become clear in the following.

b) The argument from democratic legitimacy

(1) The argument made

A stronger argument is the one based on democratic legitimacy, which exists in two mutually supporting versions. The first version focuses on the legal orders institutionalized on the level of Member States and extolls their democratic virtue: If the legal order of the Member States can be characterized as having gone quite some way in the never-ending pursuit of an ideal institutionalized form of government of the people by the people and for the people, why should the Member States not be able to defend the violation of the basic principles laid down in their respective constitutions? And why should the Courts of member States not be able to establish whether the violation of these principles has occurred? The second version focuses on the European Legal Order and its perceived democratic deficiencies: If the laws passed on the level of the European Legal Order are characterized by the fact that the procedure in which they were enacted suffers from significant democratic defects, why should those laws trump even the constitutions of the Member States?

There are two primary worries that give weight to the democratic legitimacy argument. On one hand, a Community instrument may violate a basic right guaranteed in the constitution of a respective Member State. On the other hand, the Community may usurp powers to legislate in areas that seriously infringe upon areas that are considered to be the legitinate domain of national decision-making without substantial reasons justifying such an intrusion. Justifying the supremacy of European Law by reference to the Rule of Law is insufficient. The importance of keeping a handle on the emergency break - subjecting European Law to member States' constitutional control - justifies the limitations of the realization of the liberal Rule of Law ideal at the European level.

(2) The argument assessed

aa) The standard of assessment

The strength of the argument from democratic legitimacy depends on two factors. First, it depends on an assessment of the danger that the Commission, the Council and the European Parliament under the supervision of the ECJ will in fact violate fundamental constitutional principles of Member States. Second, it depends on the degree to which the realization of the Rule of Law is endangered on the European level by allowing Member States to engage in judicial review. The ideal of the Rule of Law and the integrity of Member States' constitutional principles can be realized to a higher or lower degree. The problem is misconceived by phrasing it as a clash of absolutes. What is at issue are potentially colliding principles.[18] The best answer is therefore one that optimizes the realization of each. The claim underlying the argument from democratic legitimacy is that the benefits derived by safeguarding fundamental national constitutional principles through judicial review of EC legislation outweigh the detriment inflicted on the Rule of Law ideal at the European level. Such a balance would need to be sensitive to present day political conditions in the European Union and the Member States. The argument from democratic legitimacy is convincing, if , all things considered, the dangers of violations of fundamental principles of Member States' constitutions and their consequences are in fact more significant than the danger to the realization of the Rule of Law on a European level and its consequences.

Without being able to deal in depth with these issues here my claim is that neither danger is probably as significant as the proponents of the opposing camp would have it appear. The following should therefore be read not so much as arguing for one side or the other, but as an argument in support of the claim that the important question is not whether the Member States Courts have jurisdiction over secondary EC legislation, but whether and how they ought to exercise that jurisdiction.

bb) Concerns for fundamental constitutional principles

On one side of the equation, the danger of a violation of fundamental constitutional principles by Community organs is not a serious one, though arguments from democratic legitimacy can be seen to address some legitimate concerns. To clarify what is at stake: No one in her right mind seriously claims that there is any probability that the European polity is or may develop in the foreseeable future into a regime that resembles anything like the totalitarian and authoritarian regimes that had been established on the national level by most Member States at some time this century. The real concerns are more subtle: There has been a steady trickle of subject-matter jurisdiction from the national to the European level. There is a clear sense of unease about the corrosive and transformative effect this has on national identities. If it is true that national identities are to some degree fostered if not constructed by the practice of political self-governance and through institutions set up within the organizational framework of the nation state; and if it is true that the democratic deficit underlying the legislative process on the community level does little to encourage the development of what could be termed a civic European identity as a partial compensation for the erosion of a unitary national identity: then, it is of no surprise that the transfer of competencies to the European level may, to some degree, be experienced as an identity-undermining form of disempowerment. The transformation of identities from a unitary national to a multi-layered one is difficult under any circumstances, and would likely be resisted by Europeans even were the institutional framework at the European level more effectively to foster that transformation. The transformation is hampered as long as the sphere of European governance and its institutions remains unfathomable for its citizens.

Argument over identity may be an important perspective from which to understand Member States' sensitivity over the question of legislative jurisdiction. It is a concern the legal literature has exhibited ever since the debates surrounding the ratification of the Treaty of Maastricht. The ECJ has not shown itself to be especially sensitive to questions concerning the Community's jurisdiction to legislate. It has labored in the field of doctrine to extend the Community's competencies[19] and has to date never struck down a European legislative measure for lacking a legal basis in the Treaties. It is in this context that the fundamental rights adjudication of the ECJ has reemerged as a focus of criticism. The charge against the ECJ is that it does not take rights seriously.[20] This is also the claim made by the Administrative Court of Frankfurt in its referral to the FCC: The protection of fundamental rights warranted by the Grundgesetz is higher than that required at the European level, and accordingly the German FCC should no longer entrust the ECJ with the task of ultimate arbiter concerning basic rights.[21]

cc) Concerns for the ideal of the Rule of Law at the European level

On the other side of the equation there are also legitimate concerns that form the basis of the ECJ's position. The likelihood that all laws will in fact be applied throughout the Community will decrease as the probability that a particular law will be struck down by a national court increases. What consequences follow if Member States exercise judicial review over the legislative acts of the Community? Two extreme scenarios are the poles on a spectrum of possible non-monist European worlds. I will refer to them as the Cassandra and the Pangloss scenario.

Under the Cassandra scenario, such a step would precipitate the European Union into a state of inter-statal anarchy, ending the 50 year experiment of establishing a coherent legal order on the European level. Courts would strike down pieces of European legislation as frequently or more frequently than national legislation. Member States' constitutions would be invoked much like Art. 2 Sect. 7 of the UN-Charter is invoked in International Law: As an escape clause to justify non-compliance with legal obligations. It would be a complicated task to ascertain which provisions were applicable in which country at a particular time. The European Legal Order would loose its credibility. The European Union would gradually degenerate into an inter-governmental forum, all but abandoning its legislative activity. Under this scenario judicial review by Member States amounts to the legal order's equivalent of a nuclear meltdown.

Under the Pangloss scenario, the impact of permitting Member States to adjudicate the constitutionality of Community laws would be minimal, perhaps even benefiting the coherence of the legal order in the long run. The Member States would strike down a piece of legislation only very rarely and for good reasons. Soon they would be recognized as a constructive corrective force within the European polity, enhancing the development of European constitutionalism in three distinct ways. The first pertains to the relationship between the Member States Courts and the European Legal Order. The moral weight and authority of Member States Courts would be marshalled in the interest of the European polity in different ways. On the one hand pressure to increase the democratic quality of decision-making on the European level would increase (a lack of democratic legitimacy might develop as a basis of judicial review). On the other hand Member States review would give the ECJ an incentive to develop a sensitivity to questions of legislative jurisdiction and become more rigorous in its fundamental rights analysis. The second concerns the relationship between Member States Courts of different nationalities. The doctrines of respective Member States' Court would be studied attentively by other Member States' Courts and the result might well be the development of a more interrelated European constitutional tradition. The third is related to the role of the Court as a contributor to and facilitator of democratic deliberations in their respective political orders.[22] The courts would take over an important role in some Member States as catalysts for debates over how the European Union should develop. The same catalyst effects can be expected within the context of the national constitutional amendment procedures as Member States constitutions are adjusted to keep up with or with a view to the next step to an ever closer Union of European Peoples. Turned around this argument exposes a danger of the Monist view: Its insistence on supremacy and complete control could well be counterproductive in strengthening resistance by shutting down a potentially valuable deliberative forum allowing for serious discussion of the concerns addressed.

There are good reasons to believe that the second scenario comes closer to describing likely events than the first. The strongest basis for this claim is that the second scenario comes closer to the role the Member States' Courts have in fact played in the process of European integration to date.[23] The world of European integration, as we know it, has not been one in which the ECJ's European monist conception has been accepted. Yet, even though Courts have asserted at various times and in various degrees an authority to review the constitutionality of Community laws - the FCC, for example, has engaged in various acts of rhetorically beefed-up doctrinal posturing[24] - no EC provision has as yet been rendered non-applicable by the Court of a Member State. This is not as surprising as it may seem: First, there is a solid fundamental liberal constitutionalist consensus in Europe, that makes fundamental clashes in values unlikely[25]. Secondly, some Member States have adjusted their constitutions to conform to central precepts of European Law, mostly in the context of the ratification of the treaties' amendments.[26] Thirdly, Member States adopt forms of judicial review of a not overly intrusive character.

Even if a piece of EC legislation were to be declared inapplicable in a Member State, there is no reason to believe that the ensuing questions cannot be dealt with on a political level. Legally, the principles of reciprocity, state responsibility and counter measures usually available under international law, are, of course, not available to the Member States under European Community Law. On the other hand the political pressure to find a consensual solution and secure the coherence of the legal order would, in most cases, probably be very strong. Two ways of achieving this come to mind. First, the particular provision struck down could be renegotiated on the European level. Second, the national constitution could be amended in an ad hoc fashion to insure the compatibility of a particular peice of EC law with it.

To illustrate the point: Even if the FCC declares regulation 404/93 (establishing a European banana market order) inapplicable in Germany, the political repercussions that arise from the legal implications of such an act would be limited. As a consequence of two GATT panel decisions holding the regulation in violation with the GATT, the regulation is in the process of being renegotiated and is under a deadline to be replaced by January 1st 1999. The decision of the FCC would merely be one additional consideration to be taken account in that process. The symbolic value of a Member State Court openly disobeying the ECJ, on the other hand, would exist only for those troubled by Schmittian sensibilities, which may well, as I will go on to show, be cultivated by the FCC itself.

dd) Balancing and the argument for bracketing the question and redirecting the question

If the above analysis is plausible, then neither danger invoked by the proponents of the opposing camps is probably as significant as they would have it appear, while both sides address legitimate concerns. Whether or not the arguments for democratic legitimacy or concerns relating to the Rule of Law win out in the end is not clear. One of the reasons for the difficulty of coming up with a clear answer, is that the degree to which the realization of the Rule of Law in Europe is endangered depends on the kind of judicial review Member States engage in. In addition there are realist grounds for shifting the focus of debate: It is unlikely that Member States Constitutional Court judges will accept any other starting point of their inquiry than their constitution. This is what they are expected to do by the people who have put them in office and to it they have sworn their respective oaths of allegiance.[27] Therefore the important question seems to be not whether the Member States Courts have jurisdiction over secondary EC legislation, but whether and how they ought to exercise the jurisdiction they claim to have in fact.

[7] For an account of the process of constitutionalization see J. Weiler, The Transformation of Europe, 100 Yale L. J. 1991, 2403 (2413 pp.).

[8] Case 6/44 Flaminio Costa v. Enel [1964] ECR 585, Case 43/76 Comet BV v. Produktschap voor Siergewassen [1976] ECR 2043, 106/77 Administrazione delle Finanze Stato v. Simmenthal [1978] ECR 629.

[9] Case 314/85 Firma Foto Frost v. Hauptzollamt Lübeck-Ost, [1987] ECR 4199.

[10] There are some scholars, however, who dispute this. These authors subscribe to a division of labor model, according to which the the ECJ is the final arbiter concerning the interpretation of most provisions of the ECT, but not of all of them. Concerning some provisions Member States Courts are claimed to have the final say. The provisions for which this claim is made, however, differ. According to Th. Schilling, The Autonomy of the Commumity Legal Order, 37 Harv. Int'l L. J. 1996, 389 questions pertaining to legislative jurisdiction should ultimately be decided by Member States' courts (for a critique of this position see J. Weiler/U. Halter, The Autonomy of the Community Legal Order: Through the Looking Glass, 37 Harv. Int'l L. J. 1996, 411) . According to E. U. Petersmann, Kommentar zum EWG - Vertrag, 3rd ed. 1983, at Art. 234 questions relating to international obligations are ultimately left for the Member States Courts to be decided authoritatively. For the purposes of this paper it is assumed that these claims are ultimately untenable.

[11] See for example M. Zuleeg, Die Rolle der rechtsprechenden Gewalt in der europäischen Integration, JZ 1994, 1.

[12] See Th. Schilling, supra.

[13] For a discussion of the significance of Art. N EUV in this context see J. Weiler/ U. Haltern, supra, at 418 Fn. 26.

[14] The national statist position will be analyzed in depth below at II.

[15] The argument can also be turned around: What if the formal requirements for the existance of an autonomous order were met (an amendment would not require a consensus of all Member States), but the legal structures in place established only a rudimentary order producing highly unsatisfactory results: A minimal set of competencies complemented by a burdensome, practically non-functional legislative process, producing results that are considered inappropriate by many Member States and generally not applied.

[16] This phenomenon is not one that is legally entrenched. Art. 30 and 31 VCLT explicitly endorse a teleological interpretive approach in international law, whereas the will of the contracting parties is relegated to a subsidiary status.

[17] The link between the concept of an `autonomous' legal order and the supremacy claim is not clear. The ambiguity of the term is something it shares with other related concepts, such as the concept of a legal order [see J. Raz, The Concept of a Legal Order, 1975] or a constitution [see C. Schmitt, Verfassungslehre, 9th ed. 1993, 1-121]. This is not the place to explore these issues further.

[18] The concept of a principle is discussed in R. Alexy, Zum Begriff des Rechtsprinzips, Rechtstheorie, Beiheft 1 (1979), 59-87; see also R. Dworkin, The Model of Rules I, in: Taking Rights Seriously (1977), at 22 pp.

[19] On the different techniques the ECJ has used to expand its competencies see J. Weiler, The Transformation of Europe, supra, at 2453pp.

[20] See for example Coppel & O'Neill, The European Court of Justice: Taking Rights Seriously?, 29 CMLR 1992, 669.

[21] Decision of the Verwaltungsgericht Frankfurt of 24th Oct. 1996, EuZW, at 183.

[22] For an account of constitutional courts as facilitators for democratic deliberations see F. Michelman, Law's Republic, 97 Yale L. J. 1988, 1493; R. Alexy, Basic Rights and Democracy in J. Habermas Procedural Paradigm of the Law, Ratio Iuris 1995, 234; R. Dworkin, Freedom's Law 1996, 31.

[23] Perhaps the most prominent example is the often told story of the role of the FCC in the `so long as' saga, in which the FCC is said to have played the role as a catalyst for the fundamental rights jurisprudence of the ECJ.

[24] BVerfGE 22, 273 (So long as I), BVerfGE 89, 155 (Maastricht).

[25] This does not mean that a conflict is not conceivable. On the contrary, the abortion issue and the position taken for example by Ireland (constitutionally prohibiting abortion) on the one hand and Holland (constitutionally guaranteeing abortion as an individual right) is an example for the existence of such a fundamental conflict. It is not surprising that the ECJ has avoided making a pronouncement on the merits regarding the clashing fundamental rights claims involved.

[26] Germany, for example, has overhauled its constitution as part of the ratification process regarding the Treaty of Maastricht. [In the law concerning the 38th amendment of its constitution eight constitutional provisions were modified or added: Art. 23, 24 Sect. 1a, 45, 50, 52 Sect. 3a, 88, 115e Sect. 2 Grundgesetz.]

[27] The oath sworn by German FCC judges, for example, is laid down in Para. 11 of the Bundesverfasssungsgerichtsgesetz (BVerfGG). It prescribes as part of the oath the following phrase: "I swear as a judge committed to justice [gerechter Richter] to always uphold the Grundgesetz of the Federal Republic of Germany ...".

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