The Jean Monnet Program

Professor J.H.H.Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 8/03

Volker Röben

Constitutionalism of Inverse Hierarchy: the Case of the European Union

NYU School of Law  New York, NY 10012

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ISSN 1087-2221
© Volker Röben 2003
New York University School of Law
New York, NY 10012 
USA

Constitutionalism of Inverse Hierarchy: the Case of the European Union

Volker Röben*

Abstract

On 20 June 2003, the European Convention presented the European Council of Thessaloniki with a Draft Treaty establishing a Constitution for Europe. This paper proposes that this draft treaty reflects the specific, if not traditional, constitutionalism has evolved over the half-century course of European integration, in particular since 1992, when the Treaty on European Union was concluded at Maastricht.  In this sense, the Union’s constitutionalism is stable even if its positive constitutional manifestations are not.  The specific constitutionalism of the EU is a three-level system of government that works through an inverse hierarchy.  The constitutional nation State is placed both at the lowest and at the highest level of this system, with the Union/Communities taking the middle level.  In the first process, the Union forms a hierarchical centre with the Member States acting at the ”lowest level” to the extent the Community enacts policies in areas such as the internal market and the Member States carry them out.  But the periphery also inverts this hierarchy with the Member States acting at the “highest level” to the extent that they inspire and determine the action of the centre.  At this level of the hierarchy, the Member States act through the heads of States and governments assembled in the European Council, the national constitutional courts and national parliaments in their treaty-making capacity, while at the ”lowest” level, they act through their executive organs and their courts.  This interaction between centre and periphery is the precondition for the working of the institutions of democracy, the Rule of law, and individual rights within the Union.  The article analyses these institutions of constitutionalism as they operate in an inverse hierarchy, taking into account, when appropriate, the Draft Constitutional Treaty.

I.  Introduction 

The Draft Treaty establishing a Constitution for Europe presented preliminarily in October 2002 and adopted by the plenary of the European Convention on 13 June 2003 is the most concrete documentary evidence of the constitutional debate underway in the European Union. While this debate is the first self-conscious attempt to reflect on the nature of the public authority that has been created over fifty years of first the Communities and then the Union, it does not start from scratch. This paper proposes that a specific, if not traditional, constitutionalism has evolved over the course of European integration since 1950, and in particular since 1992, when the Treaty on European Union was concluded at Maastricht. The document that will emerge at the end of the process set in motion at Nice in all probability will reflect this constitutionalism specific to the union of States. In this sense, the Union’s constitutionalism is stable even if its positive “constitutional” manifestations are not.

The plan of the paper is as follows:  I shall first lay out my understanding of the specific constitutionalism in place in the European Union today, which I term a constitutionalism of inverse hierarchy (II). I shall then analyse three classic institutions of constitutionalism as they operate in this inverse hierarchy, taking into account, when appropriate, the Draft Constitutional Treaty; democracy (III), the Rule of law (IV), and individual rights (V) will be looked at in turn.

II.  The Idea of Constitutionalism of INverse Hierarchy 

The constitutionalism of inverse hierarchy of the EU establishes a connectivity between ‘State’, ‘union of States’ and ‘constitution’, and the Draft Constitutional Treaty reflects this:  it is a system of government that works through an inverse hierarchy.  The constitutional nation State is placed both at the lowest and at the highest level of this hierarchical system, with the Union taking the middle level.
1. The centre
In the first process, the Union and the Member States (that is, the States acting at the ”lowest” level) form a hierarchical centre, to the extent the Community enacts policies in areas such as the internal market and the Member States carry them out.  At this ”lowest” level, Member States act through their national executive organs and their courts.
2. The periphery
In the second process, the Member States acting at the “highest” level autonomously inspire and determine the actions of this centre.  Thus the periphery inverts the centre’s hierarchy.  At the ”highest” level of the hierarchy the Member States act through the heads of States and governments assembled in the European Council, the national constitutional courts and national parliaments in their treaty-making capacity.
3. The interaction between centre and periphery as the precondition for the working of the institutions of democracy, individual rights, Rule of law and federalism in the Union
There are thus two separate yet parallel constitutional processes operating.  It is the specific interaction between centre and periphery in both processes that meets the demands of the institutions of a liberal democracy with respect to the concepts of democracy, the Rule of law, human rights and federalism.  This interaction of centre and periphery transcends the constitutional nation State.  The specific constitutionalism of the European Union is thus distinct from the relation between the federal and infra-federal level of government in a federal nation State.  It is not process federalism since it is not limited to ensuring adequate peripheral representation in the centre’s organs, nor is it about carving out domains of power or immunity for the infra-federal level of government.  Rather the process at the centre depends on its being complemented by the process at the periphery.  Within this process, the relative weight of influence between the more supranational and the more intergovernmental organs may change.  But the inverse hierarchy as such will not be fundamentally changed by the constitutional treaty as currently discussed.  This constitutionalism of inverse hierarchy is the autonomous constitutionalism of the European Union.

III.  Democracy in the UNion

The central idea of democracy is to make exclusive power tolerable through inclusion of those subject to it, thus legitimizing the power.  In the case of a union of states not only individuals are subjected but also nation States.  For inclusion to take place, collectively binding decisions must be attributable and ultimately be accounted for in sufficiently transparent ways.  Separating legislative, executive and adjudicative powers and allocating them to specific organs secures attributability and accountability.  The legislative power needs to be vested in a directly elected body.  This is balanced with the political initiative and overall leadership of a monolithically structured head office of the executive.  Modern mass democracies depend on political parties both for the meaningful carrying out of elections and for the transmission of public opinion between elections.  The structure of inverse hierarchy set forth above affects the operation of democracy in ways unique to the Union.

A) The Centre
The capacity of first the European Communities and then the Union for collectively binding decision-making has grown continuously with European integration.  Each of the organs is thought to represent a certain constituency in the centre’s decision-making process:  the European Commission the common interest, the Council the Member States, and the European Parliament the peoples of Europe.  The Commission’s right to initiate legislation, which will then be passed on by the Council of Ministers and Parliament acting under the cooperation or the co-decision procedure, corresponds to a fairly strict hierarchy vis-à-vis Member State parliaments. The Union may task Member State parliaments with implementing Union directives, art. 249(2) EC, and they remain independently accountable only if and insofar as the directive leaves them room for discretionary decision-making.  The legislative decision-making process of the Union has been marked by two tendencies: enhanced efficiency and parliamentarization.  Ever since the Single European Act replaced unanimity with qualified majority voting on internal market legislation, efficiency of decision-making has increased critically in the Council of Ministers.  Regarding the centre’s competence to install a common market without internal frontiers, art. 95 EC empowers the Community to harmonize existing national rules if necessary for the establishment of the internal market.  The introduction of art. 95 EC (then: art. 100a EEC) in 1986 into the treaty by the Single European Act, replacing unanimity by majority voting in the Council of Ministers, overcame the protracted hold out problems in this core area of Community competence.  The broad interpretation of art. 95 EC by the Court of Justice has left the discretion of the political organs largely unfettered.  It is only recently that the Court of Justice has taken a more restrictive approach.  The Court of Justice sets out two categories that will trigger the power under art. 95 EC:  the removal of barriers to market entry of goods or persons and addressing substantially distorted competitive conditions in one or several Member States.  The expansion of this decision-making mode to more and more substantive areas of Community competence is complemented by the move towards according the Parliament a genuine legislative veto, which is the effect of the co-decision procedure provided for in art. 251 EC.  This expansion comes mainly at the expense of the co-operation procedure between the Council of Ministers and Parliament as provided for in art. 252 EC, which leaves the last word to the Council.  Parliamentarization has also been on the ascendancy since the introduction of qualified majority voting just mentioned.  Primarily as a result of the amendments brought about by the Amsterdam Treaty, the Parliament’s power exercised under co-decision now roughly parallels the legislative powers of the Council in those cases where the Council can decide by majority vote.  Appointment power of the Commission is vested with the Council of Ministers but Parliament’s approval is needed as well, art. 214 EC.  Parliament also was given the power to censure the Commission based on its ”activities”, art. 201 EC.  This arguably goes beyond the power to remove the Commission for cause and approaches the power of a vote of no-confidence. If Member States will indeed have to rotate seats on a smaller Commission as foreseen by the Treaty of Nice and also by the Draft Constitutional Treaty, this will reduce the strong element of Member State representation built into the Commission. Even more important is the considerable accretion of power and status in the Commission’s president, who now is well on his way to a premiership within the Commission.

Even so, efficiency outweighs parliamentarization in that the Council of Ministers has the first vote on any piece of legislation proposed by the Commission.  Blockage of legislation in the Council will deprive the Parliament of the chance to pass on legislation that it may like.  In effect, the Council of Ministers and thus the Member States’ executives set the agenda for the legislature. Furthermore, Parliament’s involvement in the exercise of legislative powers delegated to the Commission remains limited to controlling whether the Commission is exceeding the powers delegated to it.  The bulk of Union legislation now consists of such implementing legislation, adopted in ‘regulatory committees’, in which the Commission and the Member State executives but not the Parliament are represented.  The concern for democracy in European Union decision-making does not arise with regard to parliamentarization but with regard to efficiency.  As qualified majority voting becomes the norm, it is increasingly difficult to hold the national representatives in the Council of Ministers – and thus the Council as a whole – accountable.  One might assume the Council representative of each Member State to be the loyal agent for that Member State or at least for the government of which he or she is a member.  As an autonomous actor, the representative may suffer the occasional defeat at the hand of the qualified majority.  In reality, however, a vote is almost never taken.  And the assumptions of loyalty and autonomy need to be relaxed because of the dynamics of decision-making in the Council of Ministers, which takes place under the condition of qualified majority voting across large swathes of Community competences; the collegiality and camaraderie between ministers responsible for certain portfolios; and the import of the national administrations, driven by an ethos of expertise, in both the preparation of the decision-making by the ministers and in implementation of those decisions at the national level. The democratic qualms raised by ever more efficient decision-making in the Council are reflected in the introduction of a demographic element into Council decision-making, which has the effect of preventing the Council from taking a specific decision.  If the European decision-making process, through the institutions analyzed here, can be found lacking in democratic accountability, it is also because of the absence of European political parties, i.e. of institutions that straddle the social and political spheres.  The loose coalitions formed in the European Parliament do not yet have an effect outside the parliamentary process, they do not yet contribute to forming public opinion.  The competence to enact the statute of European political parties provided for in art. 191(2) EC as revised by the Treaty of Nice is clearly designed to remedy this situation and may accelerate developments already under way.

B) the Periphery
EU constitutionalism has specifically responded to these democratic challenges by empowering the periphery.
1. The autonomy of the periphery
Member State action is required to complement the Union’s opening of the common market without internal frontiers.  Art. I-13 of the Draft Constitutional Treaty expresses this by providing for shared competence of the Union and the Member States with respect to the internal market.  Having come quite close to subjecting the national policies to a uniform reasonableness standard in the 1960s and 1970s under a jurisprudence centred on the effects of a national rule on cross-border trade, the Court reversed itself in the early 1990s and restricted the reach of the economic freedoms as they set limits to Member State action.  Moving from Dassonville’s broad understanding of the concept of the free movement of goods as the paradigmatic of the treaty’s fundamental freedoms, to the limitations of Cassis de Dijon, to the dramatic change operated by Keck, the Court seems content to have found a way to tailor the rule so that it protects access of foreign individuals, goods and companies but does not open to its judicial review all national measures as to their general reasonableness. Under its current formula the rule may be restated as protecting market access and checking national laws and regulations that prevent or hinder such access.  The scope for balancing has thus been significantly reduced and that of autonomous decision-making in the Member State has been enlarged.  Member States may shield their national policies from the effect of these fundamental freedoms by laying down a Community framework for a certain public interest objective through a harmonization directive according to art. 95 EC.  A national implementing measure that stays within the limits of this framework cannot be challenged under any of the fundamental freedoms.  Even where the Union enjoys exclusive competence, Member States have reserved areas for their own action, albeit in close intergovernmental cooperation.  As a result, the centre’s action depends on peripheral action if its policies are to stand a chance of success.  This is the case with respect to the Union’ single currency and monetary policy.  The EC Treaty addresses both social and economic policy areas but does not subject them to the supranational decision-making process.  The Union may define a general framework, but it may not legislate. As to economic policy, the European Council shall, acting on the basis of the report from the Council of Ministers, discuss a conclusion as to broad guidelines of the economic policies of the Member States and of the Community.  Based on this conclusion it shall, acting by a qualified majority, adopt recommendations setting out these guidelines.  In the field of social and employment policy, the treaty envisages cooperation between Member States and the Community in developing a coordinated strategy for employment, art. 125 EC.  Member States, through their employment policies, shall contribute to the achievement of the objectives referred to in art. 125 EC in a way consistent with the broad guidelines of the economic policies of the Member States and of the Community adopted pursuant to art. 99(2) EC (art. 126 EC).  The periphery’s action dominates in other fields as well for lack of authoritative centre competences. Thus, short of any harmonization, the Union may support Member State action regarding industry, protection and improvement of human health, education, vocational training, youth and sport and culture, each of which area is touched by the Community’s Internal Market competences.  The Draft Constitutional Treaty leaves this basic model unchanged.  It does not rule out to that Union competences will be rounded at the edges. But it expressly provides that the Union will have competences only to coordinate, support, and guide by framework what remains Member State action.
2. The periphery and the Centre’s decision making
The trend to qualified majority voting in the Council of Ministers in the centre is counter-balanced by the ever increasing role on the periphery of the European Council of Heads of State or Government and of the Commission president.  As will be recalled, the European Council was not part of the original scheme of the treaties of Paris and Rome, which established the Coal and Steel, the Economic and the Atomic Energy Communities.  Yet it has become the central player in the decision-making process of the Union.  In response to the increased political weight of the European Council, the European decision-making process has become a dynamic circular process.  It takes on the form of a four-step approach: a programme of action is developed by the Commission, submitted for approval to the European Council, and implemented through manageable pieces of legislation, usually a framework directive to be adopted by the Council of Ministers and the European Parliament and implementing legislation to be taken by the Commission according to arts. 202 and 211 EC pursuant to the regulatory committee procedure.  The regulatory committee procedure allows for input by Member States’ administrations, through which the national political systems feed their preferences.  In the fourth step, the European Council controls steps two and three, in that it may take up any controversies arising during the implementation phase.  It is, then, not surprising that the Nice amendments of the provisions on ”enhanced cooperation” accord the European Council a central position.  Art. 40a(2) EU rev. provides that a member of the Council of Ministers may request that a matter envisioned for enhanced operation be referred to the European Council.  The Council of Ministers will then proceed accordingly.  The European Council physically embodies the crucial advantages of highly visible policy-making.  Most western democracies vest this specific function of overall (comprehensive) political leadership in a monolithic, ideally one-person, office, be it a prime minister or a president.  The importance of the European Council is thus closely linked to another dominant structural change in the working of all of the European democracies that follow the Westminster model, i.e. the presidentialization of parliamentary democracy.  The European Council draws on the constitutional process in the Member States by involving the individuals identified by the broadest national constituencies as embodying the national leadership, thus legitimizing both the European polity and re-legitimizing the national polities.  Public opinion is focused on these meetings of the Heads of State and Governments, which enjoy extensive media coverage.  There is a requirement of unanimity and decisions are made by those members of the national governments who are directly accountable either to the people or to the national parliaments.  The participants detail their objectives to their parliaments prior to a Council meeting and report back after its conclusion, in addition to the Presidency reporting to the European Parliament pursuant to art. 4(3) EU.  And it is not out of the question that a highly visible, sustained failure of a prime minister or president at this genuinely political level will ultimately be sanctioned by the (national) electorate.  As the European Council has gained in stature, its revolving presidency has taken to setting out a political agenda to be accomplished during its six month tenure, which reflects the distinct priorities of the Member State holding the Presidency. The re-organization of the European Council at Seville in Summer 2002 further strengthens its role in defining the general political guidelines of the Union by introducing a three year strategic program, to be based on a joint proposal drawn up by the Presidencies concerned.  The European Council has also undertaken steps to strengthen its efficiency:  meetings are to be prepared by the „General Affairs and Foreign Relations“ configuration of the Council of Ministers, which shall coordinate all the preparatory work and draw up the agenda.  The Draft Constitutional Treaty provides for a separate Presidency of the European Council.  Such a presidency would further strengthen the periphery over the centre.  The individual would be elected for a term of office of two and a half years, renewable once by the European Council.  But the President would not have a power base of its own but would have to rely on the European Council and thus the Member States. His or her inclination would be towards representing the interests of the big Member States that dominate the Council of Ministers.  The Presidency would further strengthen the effectiveness of the proceedings of both Council by providing it with a longer-term perspective than the current six month rotating presidency.  The power of the European Council to set the long-term planning of Union action creates a fundamental tension vis-à-vis attempts by the Commission to set the overall agenda for the European Union.  This indicates one of the constitutional fault lines of the inverse hierarchy of EU constitutionalism. The Commission’s December 2002 paper sees this clearly:  it moves to extend the exclusive power of the Commission to initiate Union action by submitting a formal proposal for the overall strategic programming of Union action.

As a matter of autonomous evolution of national constitutional law, Member State parliaments may parallel the decision-making process in the Council of Ministers.  Thus, for example, under revised art. 23(3) of the Grundgesetz or Basic Law, the German Government now has to consult the German Parliament before taking a position on a proposal submitted by the Commission to the Council of Ministers.  The Federal Government has to act faithfully on Parliament’s opinion during the different phases of decision-making in the EU Council of Ministers.  And, Parliament can enforce the discharge of this obligation in the Federal Constitutional Court.  Art. 2 EU and art. 5 EC stipulate that the European Union and the European Community exercise their competences according to the principles of subsidiarity and proportionality, except when acting pursuant to an exclusive competence.  A Protocol on Subsidiarity to the treaty on European Union sets out the substantive and procedural requirements to implement the principle.  And the Draft Constitutional Treaty further emphasizes the periphery by giving the Member States’ parliaments a role in the effective monitoring of the subsidiarity principle.
3. The periphery’s control over the bases of Union competence
Member States retain control of the treaties and thus of the highest authority in the Union legal order. Unanimity rules, in that any amendment requires the constitutionally valid consent of each Member State to enter into force. Amending the treaties is a well-established way to either expand or to limit the competences of the centre. The fact that since 1992 (Treaty of Maastricht) there have been full-blown amendments in 1997 (Treaty of Amsterdam) and 2000 (Treaty of Nice) suggests that engaging in an Intergovernmental Conference with the aim of treaty revision is not prohibitively costly for Member States.  Such changes require ratification according to the respective procedures of the Member States but not by the European Parliament.  Amendment thus involves a range of actors different from the repeat players in the committees and conference rooms of Brussels.  All Member States vest the ratification power in their national Parliaments; the federal or decentralized Member States also involve the intra-federal level.  Member States have also made use of their treaty amendment power to send more general signals about their view of the proper balance between centre and the periphery.  On more specific points, Member States establish their views as a matter of treaty law by means of the protocols and declarations that are a regular feature of the final acts concluding the Intergovernmental Conferences.  Such instruments stipulate the agreed understanding of a certain provision of treaty law.  In at least one instance, a declaration was used to limit the effects of a judgment of the Court of Justice.  The Member States have taken corrective action to the relative lack of central fundamental rights authority.  The competence provided for in art. 13 EC, to combat discrimination based on sexual orientation, can be seen as a response to the well-known Grant case of the European Court of Justice.  Member States’ parliaments maintain a tight control over the treaties even in the newly devised, abbreviated procedure used to bring about a limited, specific change in the treaties.  Such change also requires consent of the national Parliaments.  In such cases, the European Council decides to amend and then recommends the amendment for adoption by the Member States in accordance with their respective constitutional procedures. Member States Parliaments are well equipped to discharge the important function that accrues to them here.  The assumptions underlying much of public choice theory about parliamentary decision-making in this respect have to be adapted in the face of the institutional design of parliamentary democracies. The longer terms of office (between 4 and 5 years for parliamentarians), proportional representation and the rare occurrence of non-party backed challenges of an incumbent tend to insulate the individual parliamentarian from certain short-term re-election considerations. The search for power, at which any rational parliamentarian would be oriented, may direct him or her to take a longterm view of the relevant causation codes (and thus to exercise power effectively).

The adoption of the ‘Charter of Fundamental Rights of the European Union’ features an innovation in the process of amending the treaties. The European Councils of Cologne and Tampere in 1999 decided to draw up a Charter of fundamental rights, and laid down the composition and working methods of the body responsible for drafting the Charter, which later on took the name of “Convention”.  The Convention was comprised representatives of the Member States governments,  the European Parliament, the Commission, and  the national parliaments.  And the drafting of a Constitutional Trearty was again to a similarly composed deliberative body outside of the diplomatic machinery of the Member States (the European Convention).  The involvement of Community institutions in this act of constitutional law-making is indeed a remarkable development that some think may indicate a emergence of a separate constituent power of the Union, independent of the Member States.  Upon closer examination, however, things are smaller than they appear at first sight.  In fact, the Member States have retained the keys for the Charter to become part of the Union’s constitutionalism, as they have done regarding the Draft Constitutional Treaty elaborated and adopted by the European Convention.

IV.  The rule of law in the Union

Law’s function is collectively binding decision-making. In a constitutional system, legal and political decision-making are structurally joined so that legal decisions are secondary to the primary political decisions.  Law rationalizes the exercise of public authority providing it with secondary legitimacy that complements the primary legitimacy derived from elections.  The Rule of law is that bundle of principles that seeks to maintain the specific rationality of the law.  Most important is the principle that rules be binding; jurisdictional and procedural rules control whether aspirational law (Sollen) in fact translates into reality (Sein), and how reality is then fed back into the ”ought-to”.  By ensuring that the legal system operates according to the binary code of legal/illegal, the Rule of law works “the re-entry of the form into the form”.  Internal consistency of the law is thus both the result and the object of the institution of the Rule of law.

A) the Centre
The EU’s ability to establish itself as a “Community of law”, i.e. as polity under the Rule of law, has been critically important for propping up its fledging political legitimacy. The EC treaty provides for judicial review of the acts of the Community organs, enforcement of the treaty obligations incumbent on the Member States and, most importantly, contains the preliminary ruling procedure of art. 234 EC, by which national courts can refer questions to the European Court of Justice concerning either the interpretation of a Community act or its validity. But the Court of Justice has also been instrumental in the establishment of an autonomous European legal order.  The hallmarks of that jurisprudence bear repeating:  the recognition of the self-executing quality of potentially all Community law including the treaties and the fundamental freedoms set out therein, supremacy of Community law over national law, including national constitutional law, and parallelism of internal and external competences of the Community.  To what extent Member States remain bound by their national constitutions when acting within the purview of Community law is a difficult, and not yet fully settled structural question that calls into question the hierarchy within the centre.  The Court of Justice also has ensured the effective enforcement of Community law in the Member State courts.  Sovereign immunity of Member States from private suits with Community causes of action is limited to Community court but does not extend to the national courts.  Aside from establishing the rule that remedies available under national law must be administered in a non-discriminatory fashion and in such a way so as not to render the substantive Community law ineffective, the Court has judicially created specific Community law remedies.

As important as this body of law has been for establishing firmly the rule of Community law throughout the treaties’ purview, it would have remained a dead letter had the Court not been able to turn the national courts into its loyal cooperators through the referral procedure of art. 234 EC.  However, national courts have to refer whenever they consider a Community act invalid and intend not to apply it in the case at hand.  With regard to the specific point of the authoritative interpretation or striking down of a Community law, therefore, the hierarchy also operates within the system of judicial protection formed by the Court of Justice and the national courts.  Why national courts have responded so favorably to the referral procedure can be probed by using a rational choice approach, which highlights the leverage that the courts gain over the national legislatures whose laws they may strike down as violating Community law.  National judges may also be particularly receptive to the high moral ground that European integration has claimed from the beginning.  But the prospect of a fully self-referential legal system the central organization of which is so obviously a court should appeal to anyone operating within it.

The Member States as constituent powers have taken the institutional steps necessary to sustain the functionality of the Court of Justice for the rule of Community law.  To the previous establishment of a Court of First Instance the Treaty of Nice adds important reforms in the overall judicial architecture of the Union.  The Draft Constitutional Treaty strengthens the Court by doing away with the execeptions to the standards procedure of art. 234 EC provided for currently in art. 68 EC and art. 35 EUV concerning home affairs.

B) the Periphery
It is precisely the integrity of the treaties as a legal order binding on both the Union and the Member States that is guaranteed by the periphery.  To the extent that the Court of Justice does not have jurisdiction over the treaties, Member States’ abiding by the law remains crucial.
1. Integrity of the treaties
The Court of Justice has asserted the integrity of the treaties by ruling that secondary legislation by Council, Parliament and Commission cannot add to the rules of the Treaties.  However, the key to the Rule of law in the European legal order remains art. 308 EC.  Quite unassumingly included in the original treaties, this provision stipulates a truism under general international treaty law: that the treaty’s limits remain subject to the States Parties acting unanimously.  The unanimous action under art. 308 EC is through the Council, acting on a Commission proposal and in consultation with the Parliament, to achieve a Community objective in the operation of the common market.  But it is precisely this malleability that calls into question the legal autonomy of the treaty and the legal and thus final interpretation by the Court of Justice over its legislature.  The way out of this conundrum is to defer to a decision-maker outside of the institutional balance between Union judiciary and legislature, namely to the Member States.  The Court of Justice made a foray into this area in its opinion 1/94 on the accession of the European Community to the European Convention on Human Rights (ECHR).  The Court held that, for the Community to adhere to the ECHR, an explicit amendment of the treaty was required.  Thus, accession to the ECHR is a constitutional question that cannot be decided by the constituted powers of the centre, including the Council of Ministers acting unanimously pursuant to its residual powers under art. 306 EC, but rather requires action by the constituent powers of the periphery, the Member States. 
2. Intergovernmental cooperation
A true challenge to the rule of law in the sense of the binding character and overall consistency of the legal order of the Union arises out of two particular strands of the structure of European integration:  the areas of intergovernmental cooperation and the provision for enhanced cooperation.  The Court of Justice has no jurisdiction over action by the Union pursuant to the Common Foreign and Security Policy.  With regard to Police and Criminal Justice cooperation, under art. 35 EU, jurisdiction of the Court of Justice depends on an express act of acceptance by Member States.  The Court’s jurisdiction is limited to the secondary acts adopted under Title VI EU but does not include interpretation of the primary treaty law as such.  With respect to enhanced cooperation among certain Member States, the jurisdiction of the Court does not extend to the substantive provisions set forth in art. 43 EU.  

Ensuring observance of these provisions is therefore left to the political branches, i.e. the Commission, the Council and the European Council, which art. 45 EU charges with ”ensur[ing] the consistency of activities undertaken on the basis of this Title [VII] and the consistency of such activities with the policies of the Union and the Community.”  That leaves the three with the task of securing the rule of law within the Union.  The political branches of government in a nation State are capable of interpreting a constitution self-consciously and are actually expected to do so.  This insight was confirmed by the practice of the European Council in the 2000 Austria case concerning the interpretation and application of art. 7 EU.  This clause requires Member States to abide by certain standards both in the field of Union law and of Member State autonomous action.  Having to apply the provision for the first time, the European Council devised a procedure involving the report by a group of independent experts to help determine whether such standards had been met.  This (authentic) interpretation of a constitutional question of the Union treaty by the European Council is now laid down in art. 7(1) rev. EU; judicial review of action by the Union under art. 7(2) rev. EU remains limited to the ”purely procedural stipulations”.

V.  Individual rights in the Union

Every polity is based on a conception of the relation between public power, society and the individual.  In the humanistic view of the individual, inherent human rights are universal, their source cannot be found in a State or an international act.  Yet a constitution allows for a secondary formulation of human rights as rational self-limitation of power, thus legitimizing the public authority by limiting its reach.  Fundamental rights, under this reading, complement the conceptual framework of legitimate power by surmounting the exclusive power through democratic inclusion, rationalizing the exercise of political power through legal forms, and providing distance between society and public power through enforceable individual rights.  The essential unity of the concept of human rights allows to [re-]formulate human rights again, this time as a rational self-limitation of public power created by sovereign States at the international level.

A) The Centre
In its individual rights jurisprudence, the Court has had to grapple with four separate yet interrelated questions:  the autonomy of its fundamental rights law, the scope of its application, the coherence of its interpretation and of its application to acts of the Community and of the Member States.
1. The fundamental rights jurisprudence of the European Court of Justice
With no written bill of rights enshrined in the treaties, the Court of Justice was forced to develop fundamental rights jurisprudentially.  This brought the Court to the brink of moving from the legal into the political system, in the process threatening the legitimacy of its entire enterprise of judicial activism.  In this process, the Court resorted to treating the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), drawn up in the international organisation Council of Europe, as a bill of rights de facto binding on the Union.  As to the scope of application, the Court of Justice has consistently ruled that Union fundamental rights are binding on Member States only when they are implementing Union law.  Fundamental rights indicate areas of value judgments that the primarily economic rationality of the treaties cannot adequately accommodate and which therefore prescribe areas of Member State competence.  For example, the distribution of information in Ireland on the availability of abortion in British clinics was not covered as an EU protected service under art. 49 EC (Grogan) and was thus not an enforceable Union right.  Similarly, the question whether an employer could deny certain compensatory employment benefits to employees’ same-sex partners while at the same time allowing them for an unwed employee’s (different sex) partner did not come under the prohibition of sex-based discrimination in art. 131 EC (Grant).  In each of these cases the Court of Justice was acutely aware of the fundamental rights questions they raised, the right to an abortion and discrimination based on sexual orientation.  Yet the ECJ expressly declined to rule on these issues for lack of Community competence.  Thus, the fundamental rights questions serve to highlight a bright line in the delimitation of competences between the Community and the Member State.  The Community cannot decide contentious fundamental right questions involving social choices beyond the specific rationale underlying the limited Community competence in question.  Seen from this angle, Grogan and Grant are correctly decided.  The cases highlight the specific weakness of the ECJ’s fundamental rights jurisprudence as opposed to that of any national constitutional court:  the Court of Justice will not decide all the fundamental rights issues of the day.  Again, the limits to the centre’s approach follow from a constitutional choice that Member States have made.  There can be no consistent fundamental rights jurisprudence at the centre because the periphery does not come under its purview.  Member States are bound by Union fundamental rights only insofar as they are implementing Community law.  There is no equivalent to the equal protection clause of the 14th Amendment, which allows the Supreme Court to create a more or less uniform standard of individual rights protection and under which the States’ fundamental rights competence concerns marginal questions only.  As the Court of Justice is faced with the diversity of fundamental rights protection in the Member States, and is constitutionally barred from homogenizing it, it has to rely on the periphery to guarantee those rights.
2. The Charter of Fundamental Rights of the EU
The Charter of Fundamental Rights of the European Union spells out for the first time in a written document the fundamental rights binding on the organs of the Union.  Even though the adoption as a “solemn proclamation” precludes currently seeing the Charter as an legally binding instrument, the Charter has been shaping the fundamental rights jurisprudence of the Court of Justice.  The Draft Constitutional Treaty envisages it as an integral part of the future constitution.  The Charter is not just a re-statement of the Court of Justice’s jurisprudence.  Rather it amalgamates preferences and structures of the Member States’ fundamental rights orders, the European Convention on Human Rights and certain provisions of the treaties with fundamental rights aspects; the European Convention on Human Rights is declared the minimum standard.  In several respects the Charter goes beyond the case law of the Court of Justice, e.g. with respect to those “dignity” rights that have a distinctly non-economic context, certain “freedoms” and “equality rights” and the “citizens’ rights”.  With respect to art. 18 – right to asylum – and art. 19 – protection in the event of removal, expulsion or extradition -, the substance of the Charter provisions had been part of Union treaty law but the individual rights status had not been not clear.  It will no doubt fall to the Court of Justice to sort out which parts of the Charter are actually judicially enforceable individual rights and which parts are merely or primarily exhortations to act directed at the political organs.  The Member States, however, have sent a powerful signal to the Court of Justice that they are ready to consider these issues from the angle of individual rights protection and expect the Court to follow suit.  At the same time, the Member States in the exercise of their treaty-making power have reinforced a clearly limited understanding of the scope of application of Union human rights.

B) the Periphery
1.	The national Constitutional Courts
The periphery exercises influence with respect to the centre’s fundamental rights standards through the Member States constitutional courts.  The German and Italian Constitutional Courts as well as the Irish Supreme Court have asserted that the integrity of the national Constitutions acts as a limit to any transfer of competences to the EU.  At the core of that constitutional integrity lie the fundamental rights guarantees enshrined in the national constitutions.  The German Constitutional Court, e.g., first held that it would test any Community act against the fundamental rights standards of the Basic Law as long as the Union had no adequate standards of its own.  It then reversed that presumption by holding held that it would not exercise its jurisdiction under the German Basic Law over Community acts as long as the European Court of Justice met a general standard of fundamental rights protection as defined by the German court.  The strong demands placed by the constitutional courts of certain Member States on the Court of Justice have been providing it with the incentive to establish fundamental rights standards for the centre’s decision-making in the first place.  But the high visibility of the demands of the national courts has also given the Court of Justice the legitimacy vis-à-vis the Union’s political organs to uphold fundamental rights standards.  The complex process of political compromise in a union of nation States places a higher onus on those calling for checks on decisions nevertheless rendered by that process.  Developing a stringent fundamental rights jurisprudence meant constraining the powers of the centre that the Court of Justice was otherwise working to expand.  This impediment could be overcome after the Constitutional Courts of certain Member States, most notably Germany and Italy, had continued to subject Community legislative acts to scrutiny for compatibility with their respective national constitutions.  Such scrutiny in turn endangered the uniform application of Community law in all Member States, something in which the Council and Commission have been acutely interested.  Analysis of the Court of Justice’s recent jurisprudence shows a coherent application of fundamental rights standards to acts of the Union and of the Member States that fall within the purview of Union law.  The inverse hierarchy thus induced turns on procedure.  The (temporal) sequencing of the judicial pronouncements allows the national constitutional courts will be able to make their interpretation of the issue known to the European Court.  In the well-documented Bananas cases, the Court of Justice at first ruled that the Community regulation abolishing an import contingent of so-called “dollar-zone” bananas to (German) importers raised no fundamental rights issue.  Upon a decision of the Federal Constitutional Court of Germany indicating a retroactivity problem with the regulation, in which that court nevertheless avoided a definitive ruling by pointing out that the available recourse had not been exhausted, the case reached the Court of Justice again.  This time the Court of Justice reversed itself, seeing the retroactivity problem and interpreting a certain provision of the regulation in such a way as to ease the transition for the hardest hit importers.  In its decision ending the Bananas saga, the German Constitutional Court then dismissed the question of unconstitutionality of the regulation that had been certified by a lower court.  In ruling the referral inadmissible, the Constitutional Court stated that the lower court’s referral was not sufficiently argued, for, among other things, it contained no discussion of the relevant judgment of the Court of Justice.  This implied a subtle reminder of the jurisdictional quid pro quo:  The European Court of Justice will be followed in its interpretation and application of human rights if and as long as that Court remains willing to accept hints from the national constitutional courts when they strongly feel that the Court of Justice is steering a wrong course.

The continuing impact of the Member States constitutional courts appears to be guaranteed.  The limited scope of application of the Union fundamental rights system and the paucity of genuine fundamental rights cases to arise before the courts of the European Union even within that scope.  Given these strictures, only continuous complementary fundamental rights decisions by the national constitutional courts ensure the overall viability and coherence of fundamental rights jurisprudence in the Union.  The sheer frequency and importance of the fundamental rights issues to reach the national constitutional courts reverse the hierarchy claimed by the centre:  The EU courts have to look to the national courts for guidance on the substantive fundamental rights issues that they face.
2.	The European Court of Human Rights
A separate challenge to the Court of Justice arises from the side of the European Convention on Human Rights and the institutional machinery set up by the Council of Europe to implement the Convention.  The Court of Justice went out of its way in Opinion 2/94 to avoid being subjected to judicial control of its decision by the European Court of Human Rights on the basis of the ECHR. Undeterred, the Strasbourg Court affirmed just a few years later its jurisdiction over the Union treaty law.  Art. I-5(2) of the Draft Constitutional Treaty would expressly grant the Union the competence to accede to the ECHR. If the Union made use of this competence, the periphery would further be strengthened.

Conclusions

Introducing constitutionalism in the specific context of the European Union renders visible the central rational function of constitutionalism as the comprehensible foundation and limitation of public power.  The Nice Declaration, the Laeken Mandate, and the Draft Constitutional Treaty really turns on this point in that they aim to re-structure the current positive treaty law.  The constitutionalism of the European Union proposes to resolve the paradox of the self-conscious choice for a union of constitutional nations States rather than a federal State.  The constitutionalism in the European Union is marked by inverse hierarchy:  The centre is a largely autonomous system for decision-making.  However, the centre depends for its decision-making on input from the periphery, which the organs at the apex of the respective branches of government in the Member States provide.  And as much as the centre depends on the input from the periphery, the periphery depends on the centre harnessing it its forms and procedures involving the Council, Commission and Parliament.  Within the constitutionalism of inverse hierarchy the institutions of liberal democracy transcend the constitutional nation State but rely on its continuing viability.  The model reflects on its continuous attractiveness through further European nation States applying for membership.  The Nice Declaration, the Laeken Mandate, and the Draft Constitutional Treaty as it has emerged from the deliberations of the Convention are best read as aiming at reformation, not at revolution, of this model of constitutionalism.  Such inverse hierarchy is also an answer to the dilemma that the constitutional nation State is both indispensable and insufficient for the political system of Weltgesellschaft.