Ross Carrick, University of Edinburgh, European Constitutionalism and The
Normative Role of the European Court of Justice
Introduction
This paper poses the question is the European Court of Justice still building an EU
constitution? and begins by considering the conceptual limits of European
constitutionalism and theories of judicial activism. It rejects popular conceptions and
discourse on the idea of a ‘European Constitution’, per se, as a conceptual basis for
discussion and instead identifies a ‘rights-based’ paradigm of the rule of law as the
mechanism through which constitutional norms are activated. The discussion then
proceeds to a legal analysis of the constitutional jurisprudence of the Court and focuses
on the development of fundamental rights. The paper concludes by answering the original
question in the affirmative and asserts that the Court is a necessary actor for the
development of constitutional norms; in particular fundamental rights.
Constitutionalism and Theories of Judicial Activism
This part of the paper outlines the theoretical framework underpinning these arguments
and there are two broad categories that inform the subsequent legal analysis:
constitutionalism and theories of judicial activism. These species of theory have largely
been developed through traditional political contexts that are typically founded on
notions of nationalism; the autonomy and sovereignty of the nation-state; and the
corollary principles of institutionalism that these assumptions engender. Implicit in the
arguments of this paper is a comparison between such a traditionalist paradigm of
institutionalism and a federalist paradigm. It is therefore important to explain that this
paper does not rest on traditionalist ideological assumptions and instead asserts that the
European Community is a unique political phenomenon, which is a community based on
the rule of law1 and that its Member States are integrating into a political system that
resembles a political federation of states; similar to the USA 2. This movement is
henceforth referred to as the institutional integration project.
Constitutionalism
Fundamental to the arguments of this paper is the definition of the term constitution; a
term that engenders something akin to a semantic minefield. In his article on The
constitutionalisation of the European Union, Dyevre outlines the semantic difficulties
surrounding constitutionalism and describes this as a problem that the EU is ‘indubitably’
prone to3. Indeed, the study of constitutionalism is particularly relevant to issues
surrounding the development of Community constitutional norms or a European
Constitution and already one can observe a semantic discrepancy between these two
terms; for while they are not mutually exclusive, they do not necessarily embody the
same meanings. The latter typically denotes popular discourse that portrays a narrow
conception of constitutionalism in which ‘constitution’ is ultimately equated to a codified
legal document. Dyevre, in fact, defines constitution as a ‘word [that] is used to refer to a
written document.’4 In his view the Treaty itself forms the de facto constitution for the
European Union and it is no surprise that the media has latched on to this connection
1
Case 294/83 Les Verts v Parliament [1986] ECR 1339 at para. 23
It is outwith the scope of this discussion to consider the merits of this assumption, however examples of
federalist assertions within European scholarship are ubiquitous; see, for example Komarek, Jan, ‘In the
court(s) we trust? On the need for hierarchy and differentiation in the preliminary ruling procedure’, (2007)
32:4 European Law Review 467-491; and Advocate General Jacobs in Case C-338/95 Wiener [1997] ECR
I-6495
3
Dyevre, A. ‘The constitutionalisation of the European Union: discourse, present, future and facts’, (2005)
30 ELRev at pg. 166
4
Ibid. at pg. 168
2
between the ‘EU Constitution’ and the Treaty5. This is an observation that has also been
judicially recognised by the Court in Les Verts: ‘... the European Economic Community is
a community based on the rule of law, inasmuch as neither its member states nor its
institutions can avoid a review of the question whether the measures adopted by them are
in conformity with the basic constitutional charter, the Treaty.’ 6Whereas the media have
conceived of this connection as political trickery, the Court has implicitly identified the
connection as part of a broader framework of constitutionalism that links ‘the basic
constitutional charter’ into the idea of the rule of law; a conceptualisation that is
consistent with the argumentation of this paper, which rejects the narrow definitions
contained in popular discourse of the ‘EU Constitution’. Instead, a useful analysis of the
term constitution that is consistent with the arguments presented in this paper is that
proposed by Christian Timmermans in his thesis The Constitutionalization of the EU7. In
the same way as I have described above, Timmermans rejects the idea of a codified
charter as the sole basis from which constitutional norms can be identified and, instead,
asserts that ‘when we refer to ‘a constitution’, we mean more than a technical instrument
embodying the organizational chart for a state, spelling out who should do what and in
doing so be controlled by whom. The term constitution, at least to me, implies values of a
more fundamental nature; values that should underpin and penetrate the institutional
structuring of the state system and its functioning. That is why it is possible to have a
constitution without a written text and why we can use the term constitutionalization ...’ 8
As well as discussing the form of constitutionalism, Timmermans identifies the substance
of constitutionalism as both institutional relations and fundamental rights. He specifies
that ‘... [t]hese values ... are more particularly expressed in terms of protection of
fundamental rights, democracy and the rule of law.’9 Further below the Court’s
development of constitutional norms are considered in the context of fundamental rights;
both substantively and in relation to their normative institutional framework.
5
EU treaty 'same as Constitution', http://news.bbc.co.uk/1/hi/uk_politics/7034052.stm
Supra at n. 1
7
C. Timmermans, ‘The constitutionalization of the European Union’, (2002) 21 Yearbook of European
Law 1-61
8
Ibid. at pg. 2
9
Ibid.
6
Judicial Activism
Having considered the limits of constitutionalism, the process by which the Court
legitimately develops constitutional norms is now considered. The conceptualisation of
this process contributes to the development of an analytical framework to be used for the
subsequent examination of the Court’s constitutional jurisprudence. By way of
illustration of this process, the concurrent inauguration of the principles of supremacy
and direct effect will explored presently.
The principal theoretical backdrop to the notions of judicial activism discussed in this
paper is inspired by Dworkin’s discussion of Political Judges and The Rule of Law10.
Dworkin proposes a rights-based conception of the rule of law in which the judiciary
must decide ambiguous constitutional cases on principled grounds for which the judiciary
have complete autonomy; as opposed to the rule-book conception which places an
obligation on the judiciary to decide such cases by explicit reference to the will of the
legislature. Dworkin basis his assertion on the premise that the rights-based conception
‘assumes that individuals have moral rights and duties with respect to one another, and
political rights against the state as a whole. It insists that these moral and political rights
be recognized in positive law, so that they may be enforced upon the demand of
individual citizens through courts or other judicial institutions of the familiar type.’11 In
essence, then, the process is instigated by individuals whose displaced interests are at the
behest of a gap, of some sort, in the pre-established law. Via a rights-based conception
the judiciary must ‘fill in’ this gap, not by considering what the prudent legislator would
have decided on this matter, but solely on the basis of what the prudent judge considers
he should have decided, as a matter of principle. This counterfactual reasoning ultimately
gives the judiciary a quasi-legislative role- specifically for matters of constitutional
10
Dworkin, R. A matter of principle, Cambridge, Mass. ; London : Harvard University Press, c1985;
Chapter 1
11
Ibid. at pg. 11
significance- and would clearly offend a traditionalist paradigm of institutionalism.
Particularly given that legislative power is typically reserved for overtly political
institutions (parliaments, for example) and such judicial quasi-legislative activityconsistent with Court’s constitutional developments over the past 50 years- would be
ultra vires. These issues are considered presently.
The Development by the Court of Community Fundamental Rights
Perhaps one of the most significant constitutional developments by the Court is the
provision of Community fundamental rights. Certainly, following Timmermans model of
constitutionalism, fundamental rights protecting the individual are an essential feature of
any constitution and unlike most other constitutional norms, they are substantive in
nature i.e. they can apply directly to individuals as well as providing a normative
institutional framework. Below it is demonstrated that fundamental rights in the
Community is an area of constitutional jurisprudence that is necessarily still under
construction by the Court.
It is interesting to note, first of all, that the inaugural act for the development of
Community fundamental rights was not by a legislative body. Prior to the seminal case of
Stauder v City of Ulm12 there had been no mention in the Treaty (or any other legal
document) of fundamental rights. Dauses suggests that this may be due to the nature of
the Community’s predecessor- The European Coal and Steel Community- which had not
been designed to accommodate such constitutional norms13. A turning point in the history
of the Community, then, was observed in 1969 by the Court’s decision in Stauder; in
12
Case 29/69, Stauder v City of Ulm [1969] ECR 419
Dauses, Manfred A., “The protection of fundamental rights in the Community legal order”, (1985) 10
European Law Review at pg 399
13
which it was- somewhat abruptly- announced that fundamental rights were to be part of
the Community legal framework: ‘Interpreted in this way the provision at issue contains
nothing capable of prejudicing the fundamental human rights enshrined in the general
principles of Community law and protected by the Court.’14 As a direct consequence of
this intuitive act of judicial inspiration, the definition and application of substantive
principles has been adopted by the other Community institutions; with a considerable
wealth of legal texts now devoted to fundamental rights. As well as their inclusion in the
treaties- Article 6 EU, for example- The Charter of Fundamental Rights of the European
Union15 provides an influential point of reference for the application of fundamental
rights in the Community16. The Court has continued to contribute by defining the
application of Community fundamental rights in cases such as Hauer v Land RheinlandPfalz17- where in particular the Court identified the limitations of the right to property. A
significant recent development in this regard is the introduction of the idea of a hierarchy
of norms; whereby certain substantive principles prevail over others when they are in a
conflict of principle. Fundamental rights are thus a superior source of law in this way. In
Omega v Spielhallen18 the Court considered the implicit notion of a hierarchy of rights
within the Community legal framework. Indeed, Advocate General Sticx-Hackl
suggested that ‘the Court of Justice should defend fundamental rights as general legal
principles of the Community on the basis of Article 220 EC and Article 6(2) EU. They are
to be considered part of its primary legislation and therefore rank in hierarchy at the
same level as other primary legislation, particularly fundamental freedoms.’19 Having
unlocked the door into a new area of the jurisprudence, the Court only marginally opened
it by merely concurring that ‘[t]here can be no doubt that the objective of protecting
human dignity is compatible with Community law ...’20- leaving open a gap in the issue of
whether or not there is a de jure hierarchy of rights; much in need of judicial clarification.
As well as these substantive concerns, the Court is also still developing an institutional
14
Stauder v City of Ulm at para. 7
The Charter of Fundamental Rights of the European Union OJ C 364, 18.12.2000, p. 1–22
16
See the Opinion of Advocate-General Tizzano in Case C-173/99 BECTU v Secretary of State for Trade
and Industry [2001] ECR I-4881
17
Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727
18
Case C-36/02 Omega Spielhallen [2004] ECR I-9609
19
Advocate General Sticx-Hackl, para. 49
20
Omega v Spielhallen at para. 34
15
framework in which the sources of fundamental rights are enshrined. This framework is
already notably complex given the myriad concurrent intergovernmental relationships
that the de facto same Member States to the EU are signatories- especially the European
Convention of Human Rights21- and is a problematic area within the Court’s
constitutional jurisprudence that is still under construction.
A ‘disturbing’ implication of these principles, for which many scholars have protested, is
the quasi-legislative role the Court has taken on22. Indeed Rasmussen has attacked this
phenomenal status of the Court and poses it as ‘the emergence of an analogous
“disaster”-problem in Community law and society, that is one generated by the
European Court’s activist role-performance.’23 However, there are a few points to be
noted about these initial developments. The first is the way in which the Court came to
the decision in Stauder. The seemingly abrupt inclusion of these rights within the legal
framework of the Community can be understood as consistent with Dworkin’s rightsbased paradigm of the rule of law in that it was a principled decision by the judiciary
borne out of an ambiguity in relation to the proper application of established norms. In
this case it was the interpretation and subsequent application of a right to social security
that was being considered and was explicitly justified as being ‘[incapable] of prejudicing
the fundamental human rights enshrined in the general principles of Community law and
protected by the Court’24 i.e. a matter of principle. This notion of principle is best
understood by reference to the federalist paradigm and the corollory intitutional
integration project; where the unique poltical status of the Community can be regarded as
underdeveloped at this stage and therefore necessitates a rights-based conception of the
rule of law i.e. constitutional norms need to be developed to enable the Community to
mature into a fully autonomous polity. Indeed, the reference by the Court in the seminal
21
Article 6 (2) EU specifically identifies the ECHR as a source of fundamental rights that the Treaty
respects.
22
Rasmussen, H. On Law and Policy in the European Court of Justice, Dordrecht ; Lancaster : Nijhoff,
1986 at pg. 14
23
H. Rasmussen,“Between self-restraint and activism: A judicial policy for the European Court”, (1988) 13
European Law Review at pg 29
24
Stauder v City of Ulm at para. 7
case of van Gend en Loos to making the decision that is in the spirit of the Treaty25
underlines exactly this point.
Conclusion
The European Community- as understood under a federalist paradigm of institutionalismis still under-developed; but it is growing. Amongst other areas of constitutional
significance, the provision and protection of Community fundamental rights have
emerged and are continuously being nurtured in such a way as to fulfill the ends of the
aforementioned institutional integration project i.e. a discrete political community. This
paper has identified the Court as an important and necessary actor in developing such
constitutional norms. Whilst this quasi-legislative judicial function is regarded by some
as disasterous, the development of constitutional jurisprudence by the Court is best
understood and justified under a rights-based conception of the rule of law; particularly
given the relatively under-developed status of such rights and the Community as a whole.
Bibliography
Arnull, The European Union and its Court of Justice (Oxford University Press, Oxford,
1999)
25
Case 26/62, van Gend en Loos (NV Algemene Transporten Expeditie Onderneming) v Nederlandse
Administratie der Belastingen [1963] 1 97at pg 12
Craig and De Burca, EU Law: Text, Cases and Materials (Fourth Edition, 2007); Oxford:
Oxford University Press
Dauses, Manfred A., “The protection of fundamental rights in the Community legal
order”, (1985) 10 European Law Review 398-419
Dworkin, Ronald, A matter of principle; Cambridge, Mass. ; London : Harvard
University Press, c1985.
Dyevre, A. ‘The constitutionalisation of the European Union: discourse, present, future
and facts’, (2005) 30 ELRev 165-189
Komarek, Jan, ‘In the court(s) we trust? On the need for hierarchy and differentiation in
the preliminary ruling procedure’, (2007) 32:4 European Law Review 467-491
Rasmussen, H., “Between self-restraint and activism: A judicial policy for the European
Court”, (1988) 13 European Law Review 28-38
Timmermans, C. ‘The constitutionalization of the European Union’, (2002) 21 Yearbook
of European Law 1-61
Cases
Case 26/62
van Gend en Loos (NV Algemene Transporten
[1963] 1 97
Expeditie Onderneming) v Nederlandse Administratie der
Belastingen
Case 29/69
419
Stauder v City of Ulm
[1969]
ECR
Case 44/79
3727
Hauer v Land Rheinland-Pfalz
[1979]
ECR
Case 294/83
1339
Les Verts v Parliament
[1986]
ECR
Case C-338/95 Wiener
6495
Case C-173/99
4881
[1997] ECR I-
BECTU v Secretary of State for Trade and Industry [2001] ECR I-
Case C-36/02 Omega Spielhallen
[2004] ECR I-9609
Statutory Documents
The Charter of Fundamental Rights of the European Union OJ C 364, 18.12.2000, p. 1–
22
Online Resources
http://curia.europa.eu
EU treaty 'same as Constitution', http://news.bbc.co.uk/1/hi/uk_politics/7034052.stm