The Constitutionalisation of the Treaties by the European Court of Justice.

The Court began by confidently asserting,

‘To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit, the general scheme and the wording of those provisions’.  

The Court then used four arguments to support it’s conclusion that

‘… the Community constitutes a new legal order of international law…the subjects of which comprise not only Member States, but also their nationals’.

 It is submitted here that four of the arguments regarding general scheme and wording have weak basis and that had the Court really looked at the general scheme and wording it would have come to the same conclusion as Advocate General Roemer.  

1. The Court proposed that because the Preamble of the Treaty referred to the ‘peoples’ of Europe as well as the Governments, direct effect should result.  This simply does not follow.  The Treaty itself does in fact already affect the peoples of Europe in many ways.  This vague reference in the Preamble cannot be held to be specifically relevant to the effect of law when the provision in question is specifically directed at Member States.
2. The Court stated that the establishment of institutions with sovereign rights affecting citizens pointed to direct effect.  
3. On a similar note, it argued that State nationals were required to take part in the European Parliament and the Economic and Social Committee.  These two points, drawing from the general scheme of the Treaty do perhaps suggest it would be fair to adopt direct effect, but in line with the Advocate General, I would suggest that such irrelevant considerations cannot be used to fly in the face of what was expressly stated in the provision at issue.
4. The Court’s final textual argument was that by virtue of the preliminary reference procedure in Article 234, the Treaty was recognising that nationals would invoke Community law in their courts.  This is sound, but again it does not necessarily follow that all Treaty provisions, particularly those specifically directed at Member States, should have such effect.

Given the spinelessness of these arguments it is the Court’s invocation of the spirit of the Treaties which best reveals it’s motivation,

‘ The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States’.

In reality the Court is ignoring the general scheme and in particular the wording of the Treaty and relying on what it perceives to be the Treaty’s overarching objective.  Thus a unique interpretative practice has enabled the Court to attribute to the Treaty qualities analogous to that of a constitution which it was never expressed to have.  This was the first step in the ‘constitutionalisation’ of the Treaty.

It is instructive to note at this stage that this first step in constitutionalisation was in fact a tentative one.  The Court appeared to make the direct effect of Article 12 conditional on four qualities which it possessed.  It was

1.  ‘clear’
2.  ‘unconditional’
3.  ‘not a positive but a negative obligation’
4. ‘not qualified by any reservation on the part of States which would make its implementation conditional upon a positive legislative measure enacted under national law’

These specifications have been considerably widened in a number of subsequent cases.  In Lutticke v Hauptzollant Saarlouis the Court held that the fact that the Article in question contained a positive obligation as opposed to a negative prohibition did not prevent it from having direct effect.  Hence requirement number two was dropped.  Numbers two and four were rendered almost meaningless when in Reyners, when the Court held what was then Article 52 to be directly effective in the absence of specifically required further implementing measures.  The first requirement of clarity and precision was also questioned when in Defrenne v Sabena the Court gave direct effect to the principle of ‘equal pay for equal work’ contained in what was then Article 119.  

The so-called conditions for direct effect first enunciated in Van Gend en Loos have seemingly been whittled down to ‘…the minimum conditions for the application of almost any legal rule.’.  Only where direct effect would create serious practical problems is it likely that the provision will not be held to be directly effective.

In the wake on Van Gend en Loos not only did the Court apply the doctrine of direct effect to an increasing range of Treaty provisions but it also broadened the class against which such provisions could be used.  Defrenne v Sabena is an example of how the Court has extended the use of a directly effective provision from being invoked against governmental action (vertically) to being invoked by one individual against another (horizontally).  This mechanism was first acknowledged in Walrave & Koch v Union Cycliste Internationale where the Court held that the Article in question was not only applicable ‘ to the action of public authorities but extends likewise to rules of any other nature aimed at [conduct in violation of the specified article]’.

Hence, the concept of direct effect first enunciated in Van Gend en Loos in 1964 has significantly had it’s application broadened by the time of Defrenne v Sabena in 1976.

   

The Doctrine of Supremacy

In 1964, in the case of  Costa v ENEL the Court was faced with the issue of whether a Treaty provision could prevail over conflicting national legislation in the national courts.  Initially the Court was again faced with the problem of whether this question really was a matter of interpretation.  Undoubtedly with a view to the importance of the judgement to come the Court pithily disposed of this.  It was held that the Court has the ‘power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the Treaty’ and had no remit to ‘criticise the grounds and purpose of the request for interpretation’.  

The Court began it’s judgement by building on the idea of Van Gend en Loos that the Treaty had become ‘part of the legal systems of the Member States which the Courts are bound to apply’ and that the Member States had  ‘limited their sovereign rights…thus [creating] a body of law which binds both their nationals and themselves’.  

Having accepted the doctrine established in Van Gend en Loos, it was relatively easy for the Court to justify the concept of supremacy that followed ‘logically’ from it.  It would be ‘inconsistent’ with the objectives of this new legal system if it’s law was to vary from one State to another in ‘deference to subsequent domestic laws’.  Similarly, Treaty provisions of direct effect would be ‘contingent’ as opposed to ‘unconditional’ if they were allowed to depend on subsequent acts of Member States.  

With these arguments blatantly flowing once again from the judges’ own perception of the spirit of the Treaty, the Court did throw in one textual argument for good measure.  Unsurprisingly it was weak.  Article 249 states regulations shall be ‘binding’ and ‘directly applicable in all Member States’.  The Court argued this provision would be ‘quite meaningless’ if national law took precedence over such a regulation.  Surely regulations could be binding on Member States but nonetheless inferior to conflicting provisions of national law.  In any event, the case in question concerned a Treaty provision itself that was not expressly stated to be ‘binding’ or ‘directly applicable in all Member States’.  

As pointed out by Craig and de Burca,

‘…there is little support in the text of the Treaties for the proposition that Community law has a ‘special and original nature’ of which it would be deprived if domestic laws were to prevail.’  

Nonetheless, building on the judgement of Van Gend en Loos, and drawing still more from the ‘spirit’ of the Treaty, it was logically necessary for the Court to take this ‘bold step’ in further constitutionalising the Treaty.  As pointed out by the Court, not to do so would result in Community law being given different application in different Member States thereby defeating it’s purpose.

 Three subsequent cases did not extend but clearly defined the extent of the supremacy of Community law.  In Internationale Handelsgesellschaft, the Court held specifically that not even national constitutions could override Community law.  In Ammistrazione delle Finanze dello Stato v Simmenthal it was held that national courts which had no jurisdiction to set aside domestic law must do so in the event of a conflict with Community law.  Similarly, and with biting impact the Court held in R v Secretary of State for Transport, ex parte Factortame Ltd that the House of Lords should in this particular case grant interim relief, something they are clearly not allowed to do under the British Constitution.

Expansion of the Doctrines

Although the doctrines of direct effect and supremacy were indeed established in 1964, as has been shown, the range of cases to which they could be applied in the context of Treaty provisions were gradually extended by cases such as Lutticke, Reyners, Walrave and Defrenne.  However, the ‘most radical extension of the direct effect principle’ occurred in Van Duyn v Home Office in 1974.  In this case the Court held that if the ‘nature, general scheme and wording’ of a Directive are capable of having direct effects then it should do so.  This is a radical judgement by the Court in two senses.  Firstly, not only is there no textual basis in the Treaty for such an assertion but Article 249 explicitly states

 ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.

It would seem according to this provision that a Directive will always require further implementing measures and that therefore could never be capable of having direct effect.  The Court emphasised the ‘binding effect’ identified in Article 249 and supported this with two further arguments.

1. The ‘useful effect’ of a Directive would be weakened if it could not have direct effect
2. Article 234 allowing the Court to give preliminary rulings does not distinguish between acts of the Community institutions and therefore implies that Directives may have direct effect.

The second argument here is baseless since if Directives did not have direct effect in the national courts there would simply be no need for Article 234 to refer to or distinguish them.  In any event, the Court has itself held that in some circumstances a national court may require a preliminary ruling on a Community provision which is not directly effective.

The second reason for this being such a radical judgement concerns the effect it has had on the availability of Community law in Member States.  A vast quantity of Community law exists in the form of directives, which the States ‘were (and still are) very remiss in implementing’.  Granting direct effect to directives has greatly enhanced the accessibility of national citizens to vast areas of Community law, thereby making the constitutionalisation of the Treaty thus described more tangible.

It is interesting to note that in the subsequent case of  Pubblico Ministereo v Ratti  the Court emphasised that a directive can only have direct effect once the implementation date has expired.  This prevented directives being given the full carte-blanche regarding direct effect.  It is additionally indicative of Member State views at the time that the granting of direct effect to directives stopped short of implying obligations on individuals i.e. directives could only be invoked vertically against the State and not horizontally against individuals.

Nonetheless, in spite of these later restrictions, Van Duyn had an immense practical impact on the constitutionalisation of the Treaty.

Conclusion

In conclusion it is hoped that this essay has demonstrated four indispensable aspects of the constitutionalisation of the Treaties.  Firstly, without the broad use of Article 234, the landmark cases might never have had the opportunity to surface and even if they had, their principles could never have had a significant impact.  Secondly, without the innovative judgements of Van Gend en Loos and it’s sequel Costa, constitutionalisation in terms of direct effect and supremacy would simply not have happened, and finally, that without the application of these doctrines to directives the constitutionalisation itself would have had limited effects.  The first and second points here have been graphically captured by Mancini and Keeling,

‘If the doctrines of direct effect and supremacy are… the ‘twin pillars of the Community’s legal system’, the reference procedure laid down in Article 234 must surely be the keystone in the edifice; without it the roof would collapse and the two pillars would be left as a desolate ruin, evocative of the temple at Cape Sounion – beautiful but not of much practical utility.’

Without the Van Duyn case it is submitted, that yes, these twin pillars would have existed and represented the superiority of Community law, but would not have had the sheer presence and impact which they have had to date.

Bibliography

Hartley, 1998, The Foundations of European Community Law

Craig and de Burca, 1998, EU Law, Text, Cases and Materials

Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ [1981] AJIL 1

Mancini and Keeling, ‘From CILFIT to ERT : the Constitutional Challenge Facing the European Court’ (1991) 11 YBEL 1

Mancini, ‘The Making of a Constitution for Europe’, Common Market Law Review, vol. 26, 1989

Pescatore, ‘ The Doctrine of Direct Effect’ : An Infant Disease of Community Law’ (1983) 8 ELRev. 155

Burley and Mattli, ‘Europe before the Court: A Political Theory of Legal Integration’, (1993) 47 International Organisation 41

Snyder, ‘The Effectiveness of European Community Law’ (1993) 56 Modern Law Review 19

Weiler, J.J.H., ‘The Transformation of Europe’, (1991), 100 Yale Law Journal 2403

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