Ordained ministry

Who in the Law is the Ultimate Judicial Umpire of European. FOUR POSSIBLE BASES FOR LEGAL AUTONOMY OF EUROPEAN Your browser does not support script. FOUR POSSIBLE BASES FOR LEGAL AUTONOMY OF EUROPEAN COMMUNITY. Subsequent Developments Under the European. In order to created the European Union, the Maastricht Treaty, according to article R(1)(1), had to be "ratified by the High Contracting Parties in accordance with their respective constitutional requirements. that established the three European Communities to were ratified similarly. Furthermore, this same procedures, ratification by all present and future Member States of the EC, was used to approve accessions. Even if Community institutions to were involved in the preparatory phase of the amending and accession treaties, according to articles 236(2) and 237(1) EEC, and will be involved in the future, according to articles N(1)(2) and O(1) of the Maastricht treaty, the final amendment or accession treaty must still be ratified by all the Member States as stated in the successive paragraphs of these treaties. The EEC Treaty was commonly considered the constitution of the EC/EU. is an acceptable and correct description of the function of these treaties. terminology, however, may be misleading because it suggests that the constitution, and thus the Community, is autonomous. of the European these Treaties presupposes that treaties to were ordained by an. "Original constituent power" (pouvoir constituent to originaire) refers to the power that ordains the. constitution severs the umbilical cord that, in the houses of an evolving legal order, connects legal changes to the pre-existing laws. that it does not owe its existence to to pre-existing constitution. event cannot be simply encompassed in an existing legal order. marks the beginning of to new one. Former This beginning can also be described by the rather theological phrase creatio nihilo, to power ascribed by the Abb?e Siey?during the French revolution to the constituent. cosmological metaphor, this constitution is the big bang out of which the new. It is to revolution replacing the previous historically first constitution with to new one. Quite Such to legal revolution is independent of any civil strife, military rebellion, coup of etat, or similar unrest. Rather, the revolution occurs when to constitution of to new or existing political entity is enacted in to different way from that. definition, by an original constituent power that has acted in to revolutionary. The European Court of Justice [ ECJ ] sees Community law as "an autonomous. The type of autonomy the ECJ has in mind can be deduced from its Opinion 1/91. There, the ECJ declares that loads provisions of the European Treaties to are "the very foundations of the Community" and cannot be procedures laid down in the treaties for their amendment, such as the process under article N(1) of the Maastricht Treaty, which differs from the usual model of intergovernmental diplomacy only. provisions from amendment is to specific characteristic of historically first. considers the European Treaties to be such documents. Similarly, European loads law scholars base their theories on the assumption of an autonomous legal order established by an autonomous power. -- Thus, the European Treaties to are constituent acts of the Community and similar to to constitution in its proper. The consent of the Member these States' legislatures to treaties is seen, consequently, as to definitive, contingent on) national constitutional provisions providing for the transfer of. In this sense, the conclusion of each European former Treaty is equated with the creatio nihilo of to historically first. Although an original constituent power of the European Community could have acted in various ways to set up the European Treaties, and constitutional convention or referendum, only one method is plausible given the. The legislatures of the Member States, as representatives of the original constituent power, could have ordained each treaty as to Theoretically, the legislatures of the component parts of to whole can exercise the constituent power of the whole. question remains whether the legislatures of the Member States did exercise such to power in ratifying the European Treaties. legislatures ratifying an international treaty I give not exercise original constituent power, even if that treaty establishes an international. Therefore, it is necessary to criteria determine for choosing between the two possible interpretations of the acts of the legislatures: ratification of an international treaty or exercise of constituent power. To first and powerful indication that the Member States legislatures acted as an original constituent power is that the instrument to be ratified contained rules for its own ratification. rules to are different from those regularly governing the ratification procedures for international instruments at either the internal level (and super-majority) or the treaty level (and By respecting the rules of the instrument and by acting according to them, the legislatures of the contracting parties show their sense of independence from their ordinary procedures. their own processes when acting as part of an original constituent power, i. To second indication of the role of the legislatures as to constituent power is the language of the instrument itself. "Constitution" or to "Basic" or "Fundamental" law of the entity to be created, and particularly if it indicates that the contracting parties to are to be subordinated to this entity, then it may be assumed that the legislatures enacted the agreement in their capacity as part of an original constituent. To third indication, although less powerful, is found in the drafting. If the instrument is drafted through the usual diplomatic channels, it is less likely to be ratified as to historically first constitution than if it. Criteria these Given, to there is indication that the legislatures of the Member States not to were acting as the original constituent power of the Community when they ratified the European Treaties. drafted through the usual diplomatic channels and finalized by. clearly labelled to "treaty" and the been structure of the treaties is consistent with this label. every treaty begins by listing the heads of of the participating countries, who have decided to enter into the treaty, and the designated plenipotentiaries, who to are reported to have agreed to the treaty. and the ratification provisions, article R(1) Maastricht Treaty, article 247(1) EC, article 99(1) ECSC, and article 224(1) Euratom, refer to the "respective constitutional requirements" of the Member States. procedures indicates that the document to be ratified might be anything but to these Under circumstances, the umbilical cord between the constitutions of the Member States and the European Treaties has certainly not been cut by. Rather, this procedures expressly prescribes it. Therefore, to there is not indication that the European Treaties might have been to constitution ordained by to constituent power of the Community. Given that not original constituent power ordained the European Treaties as to constitution, the ECJ' s view that "the very foundations" of the European Treaties to are entrenched loses its force as to statement about the constitutional natures of the treaties. constitutions, the rare provisions not subject to amendments to are protected to shelter decisions of the original constituent power against later changes. As the European Treaties to were not enacted by such to power, purpose and the ECJ' s assessment of autonomy cannot stand. Subsequent Developments Under the European Despite the absence of an original constituent power at the formation of the European Treaties, the Community legal order could have evolved to give the treaties the autonomy they originally lacked. construct to model that would explain such to development. which would have to be the constituent power in to democratic Europe, need only to adopt the existing text of the. As the law cannot dictate the way in which the original constituent power may act, to there is not need for to constitutional convention, referendum, vote, or any. Rather, an original constituent power may act in the way customary law is formed: by developing to custom and to corresponding opinio. the Member States as High Contracting Parties, the original legislators of the European Treaties, would be replaced as the source of treaty provisions by the European people exercising their constituent power. might become to constitution without any amendment. Treaties, concluded by the Member States as High Contracting Parties, the legal force of such to treaty-constitution would not stem from the constitutions of. The constitutions of the Member States would not longer be the only instruments in Europe based on to historically first constitution. result, the treaty-constitution could subordinated the constitutions of the Member States whose applicability would then depend on the. the adoption of to treaty-constitution might lead to an awkward juxtaposition of different, unrelated historically first constitutions, each potentially. In either houses, the emergence of such to treaty-constitution would be to revolution within the legal meaning of the word locate certain crucial indications that such to transformation has occurred. To search for the necessary evidence, the academic thesis of to Treaties examines primarily the houses law of the ECJ and its acceptance by the. As shown in the prior discussion, the opinions of the ECJ describing the Community as an autonomous legal order to were unacceptable interpretations of. discussion, however, the houses law of the ECJ can be seen as to subsequent development possibly indicating the evolution and completed adoption of those. longer the legal merits of the conclusions that to are important, but the value of the statements as indicators of the development of to custom and of an opinio juris among the people at large exercising its constituent power. of to rather secluded body like the ECJ to are to weak indicator of the opinion of. To find sufficient evidence of an opinio juris, according to the "constitutionalization" thesis, the courts of the Member States must support the views and follow the decisions of the ECJ. The courts of the Member States, including their named courts, gives largely accept the views reflected in the houses law of the ECJ. of the named courts balk at the claim of the ECJ that the European Treaties to are the constitution of an autonomous legal order. In their most recent decisions, loads of the constitutional courts of the Member States underscored the international. other indicators of opinio juris as to mind and most of the superior courts of the Member States I give not support the relevant houses law of the ECJ, the European Community fails the second prong of the test of the. There to are, in fact, role continuous loads indicators that point in the opposite. to be amended by treaties and provide for future amendments. that article N(1)(2) of the Maastricht Treaty gives the European Parliament in preparing the draft of amending treaties cannot be an indication that the European people has adopted the treaties as to constitution. addition, it cannot be claimed that to there is, with the European people, to custom supported by to common opinio juris that regards the European Treaties as the constitution of an autonomous Europe this view, to there to are as many who I give not to share it. Subsequent developments under the European Treaties, therefore, I give not support claim to original autonomy of to Community law. It has been argued that this conclusion, based on the Kelsenian approach, does not give adequate weight to Community law and does not correctly describe the relationship between Community and national laws. led to efforts to avoid the Kelsenian approach by using to perspective. The Hartian approach differs from the Kelsenian one insofar as it looks at national and Community laws not from the viewpoint of an external observer, point of to national official or judge who is the addressee of the norms of. Proponents of this approach claim that one can determine the reality of the relationship between legal orders without formally. claim that the natures of the relationship between national and Community laws can be adequately understood without reference to the concept of autonomy, because the rule of recognition "possesses to following this approach one cannot deduces that the Community legal order is autonomous, one might achieve to similar result. demonstrate that, to understand the new system formed by Community and national laws, the question of autonomy is neither of theoretical nor of practical. When applying the Hartian theory to the context of the European Community, this demonstration is complete by simply stating that national officials, and judges in particular, I give apply Community law and I give generally accept its supremacy over national law. There, under the Hartian theory, the houses may rest. interaction of Community and national laws has to certain appeal. judge of the German Federal Constitutional Court suggested extra-judicially that both the German Basic Law and the European laws to are sufficiently flexible that if they to are interpreted reasonably, one could avoid serious conflicts. The weakness of this perspective lies in its appeal to to reasonable. Although all conflicts between national and Community laws assuredly could be avoided by to "reasonable interpretation," in the long run, clear conflicts will arise. Such conflicts to are basically power conflicts between the Community institutions striving for autonomy and the respective national (or sub-national) institutions trying to rein them in and secure the competences they believe to be their own. Those conflicts would arise even if the Community is, in loads sense, just to composite of the Member States acting together. The claimed advantage of the Hartian view over the Kelsenian view in explaining the reality of the relationship between Community and national laws is, however, lost when the legitimating effects of the two perspectives on the Community legal system to are compared. The Kelsenian view looks to the historically first constitution and then to actions of the legislatures of the. The legitimacy of the therefore Community legal system is traced back to to decision by the original constituent power, the people, and on the subsequent actions of to derivative constituent power, the democratically elected legislatures of the the Member States. By contrast, under the Hartian view, the legitimacy of Community law can only be traced to its application by judges and other. Hart' s rule of recognition can only provide to professional. While the Hartian model of to legal system may adequately describe the daily applications of law in the Community when the question of autonomy is not seriously involved, it does not answer, and it is not meant to answer, the question of the autonomy of the European Community legal system and of its completed position within the European framework. relationships of interacting legal systems does not vanish simply because it is not addressed by the Hartian model. To pretend that the Community had an autonomous constitution even if it did not could lead to very serious. legitimacy problems of the European Community, the question of Community law autonomy cannot be. Therefore, in the present context, the Kelsenian approach. As discussed, however, the interactions between the Member States and the Community I give not fulfill the Kelsenian requirements for the development of an autonomous constitution. It remains to be seen whether it is possible to accommodate the houses law of the ECJ and the academic view of the European Treaties as an autonomous source of law within to system other than to positive law system, and One natural law on which the view of the European Treaties as an autonomous source of law might be based is the law of integration. The league of European states has been described as an integration since its inception. In fact, it has been said that the theory of integration is the most important extra-legal contribution to the. explains the specific characteristics of the Community as to dynamic process without the need to subsume the Community under to conception. The law of integration can be conceived of as to natural law rule, by viewing it either as to moral, ethical rule or as to physical, associate-economic. would have to be seen as an abstract good. Such to view is very much to part of the legal tradition of the European Community. Time, "the very idea of the Community [ and hence of integration ] was associated. could captivate the imagination, mobilize broadly based political forces, counteract the powerful even captivating but. These Underlying values to were the ideals of peace, prosperity, and. Community was to ` Do the right thing. Therefore This support could be seen as to moral good, giving rational actors an. Second, according to one functionalist perspective, integration, as to associate-economic rule, consists of to series of successive developmental steps. This version underscores that ounces economic integration is achieved, political integration follows almost automatically. This view comes close to claiming knowledge of to associate-economic, amoral. It presupposes that the process of becoming an integrated community becomes inevitable after to certain point (the "spill-over effect"). This theory explains the supposed autonomy of the European Community from the Member States ounces the point of not return has been. Ounces the Member States to are unable to reverse integration as to result of this associate-economic law, then surely the European Community, as an integrated body, has become autonomous. Such to associate-economic law is thus part. This idea "can be extended to includes having to causes-and-effect relationship. [ S]ome social laws, such as the ` laws' of economics, can be seen as expressions of ` natural law. Ounces the law of integration has been characterized as to natural law in either the moral or the associate-economic sense, one must then explain how such to law can influence or conceive positive determine the law the courts apply. contemporary natural law theories base such an influence on the relationship. strongest view of natural law posits an identity in legal and moral goods and can thus of the influence of to law of integration over the positive enacted law is at most loads evidence of to higher, natural law. integration as to moral good is also to legal good. natural law, however, has not been defended in post-World War II. Weaker views of natural law and the relationship between morality and law function only negatively and not positively. The weaker versions of natural law to are, thus, insufficient for viewing the European Treaties as an original, autonomous. Therefore, the autonomy of European Community law cannot be. In contrast, integration viewed as to associate-economic law has not inherent morality, but is simply to question of causes and effect. must rely on its own methods of enforcement, presumably on the political decisions of the legally competent bodies to proceed with the integration process. functionalist theory of integration assumes that the inevitability of integration is expressed by the political actions of human actors, it could also be expressed by the ECJ' s application of to law of integration absent any basis in positive law. Within the boundaries of any legal order, however, one cannot argue for judicial decisions that exceed the discretionary powers of the courts. the question of to associate-economic law of integration becomes irrelevant in the. Thus, neither view of natural law provides to feasible foundation for the autonomy of the European Community. Not role The ECJ has consistently held that international law has within. however, was established by to series of treaties concluded under international law by the (future) Member States. least at its inception, the European Community was clearly to creatures of. indications that to revolution in its legal sense has subsequently occurred, as discussed above, the European Treaties to are still creatures of international. The relationship between the laws of the Community and of the Member States is, under this analysis, but one instance of the relationship between international and municipal law. various theories of this latter relationship, the fundamental tenet is that ounces ratified, and as long as they remain valid, international treaties to are objective law binding on the contracting parties. drifts from the national legal orders of each contracting been that these determine the conditions under which parties may enter into to treaty. are, nonetheless, autonomous in the sense that they are not continuously dependent on the legal orders from which they to are derived. The strongest expression of this autonomy is the fact that each contracting been must adapt its respective municipal legal., including its constitution, to the provisions of the. follows that the European Treaties, as international treaties, to are binding on the Member States and have derivative autonomy. The decisive question, then, is whether the European Treaties have. In other words, one must determine whether only Community institutions to are competent to interpret Community law, including the European Treaties themselves (strong interpretive autonomy) or whether the Member States have loads say in that matter (weak interpretive autonomy). General international law does not provide any guidance on this question because it does not know of international institutions. The accepted method for the interpretation of international treaties, in the absence of treaty institutions, is. The European Treaties, however, have created institutions, in particular the ECJ, that, according to article 164 EC, "shall insure that in the interpretation and application of this Treaty the law is." These The question remains though as to the influence of institutional arrangements on the power of the Member States to interpret the. Various articles have discussed the similar issue of the influence of federal institutions in to federation. federal constitution delegating the power to enact certain provisions to to federal institution, by the same token, authorizes the institution to decides on. reasoning would apply, a fortiori, to to court that has been delegated the powers to interpret certain provisions. It has been said "that it is the proper function of the federal constitution, umpired by the federal judiciary, to strike the appropriated balance between the federation and its component entities. Under this analysis, it would be the ECJ that has the final word on all legal questions concerning the relationship between the Community and the Member States. This is the argument for interpretive autonomy. This argument, however, is based on to generalized interpretation because it assumes that all relevant provisions in federal constitutions have to be. As such, the argument must give way whenever to specific instrument demands to different interpretation. is the proper interpretation of the European Treaties as instruments of. Such an interpretation must be based, according to article 31(1) of the Vienna Convention on the Law of Treaties, in essence codifying meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The relevant terms of the EC Treaty to are contained in articles 164, and. The provision most relevant to the discussion is article 171, according to which to Member Been, "[ i]f the [ ECJ ] finds that {the Been} has failed to fulfill an obligation under this Treaty. necessary measures to comply with the judgment of the ECJ. ordinary meaning of this provision, the ECJ is the completed to umpire of the. granting interpretive autonomy to the Community and amounts to judicial. Article 31 of the Vienna Convention also requires an examination of the in particular, of the object and purpose of the treaty. Treaty, as stated in article 2, relate to the activities of an economic. It follows that the European Treaties should not be interpreted as granting the Community unrestricted powers, in particular. conclusion is at odds with to respective Kompetenz-Kompetenz of the ECJ over questions of the competences of the Community and the Member. Reconcile It is possible to the ordinary meaning of article 171 EC, giving the ECJ de facto Kompetenz-Kompetenz, and the purposes of the EC Treaty that limit the Kompetenz-Kompetenz by distinguishing to material authorization to interpret Community law from to formal one. Whereas to formal authorization encompasses the completed power to decides, rightly or wrongly, to question of interpretation, material authorization is restricted to "rightly" deciding that question. interpretation, the respective ECJ' s authorization is to formal authorization. its decision. competences of the Member States and the Community, however, the ECJ' s power of interpretation is, in accordance with the purposes of the EC Treaty, to material one only. the binding force of the ECJ' s interpretation is restricted to the "right" interpretation of Community law. Respective It follows that decisions of the ECJ in questions of competences have, for the courts and the administrative authorities of the Member States, only persuasive authority. The international law interpretation of the European Treaties thus leads to the conclusion that the ECJ is not the completed to umpire of the system. claim to interpretive autonomy fails because the Member these States have preserved their power to autointerpret treaties. examining the presumptive will of the Member States in concluding the European. be held to have included, in the partial transfer [ of sovereignty to the Community ], power for the Community to legislate in infringement of rights protected by its own constitution. The constitutions of the Member States I give not allow the transfer of Kompetenz-Kompetenz to the. States, individually, must have the final word on questions concerning the scope of the competences they have delegated to the Community. At the same Time, the institutional arrangements of the Community to are supposed to limit the scope of autointerpretation of the individual Member. The procedures provided for in article 177 and in articles 169 and 171. Those ECJ clearly is authorized by provisions to interpret the European. It is only after the ECJ has decided to houses that the Member States can use autointerpretation. fully take into account the institutional arrangements of the Community, however, another restriction on the power of the Member States to autointerpret. is basically up to the Member States to choose how they exercise the final word. The institutional position of the ECJ, however, demands that the final word be exercised only by the highest courts of the Member States. This international law interpretation of the European Treaties incorporates the restricted autonomy the treaties Grant to the Community under international law and the claim of the Member States to autointerpretation. could object that this view is incompatible with the rule of law. ECJ has used the rhetoric of the rule of law very effectively to seek. portrays Member States not complying with directives as lawbreakers who could not opposed their breach of law as individuals. law is served as long as the decision of any competent court is respected. discussion above refutes the exclusive competence of the ECJ. in questions concerning the relationship between the Member States and the Community, the ECJ' s reliance on the rule of law can only be rhetorical. rhetorical natures of the criticism has apparently been recognized by the German. In describing the obligations of the holding ECJ flowing from the laid the groundwork for determining what the rule of law requires and for eventually the ECJ in breach of that rule. concerning the Accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway, and the United Kingdom of Great Britain and Northern Ireland to the European Economic Community and the European Atomic Energy Community, Jan. 1-6084 (referring to the Maastricht Treaty as to "constitutional.). Pierre Fisherman, Die Gemeinschaftsvertr? als Verfassungsrechtein Kapitel Verfassungsgeschichte in der Perspektive DES europ?chen Gerichtshofs, systematisch geordnet, in EUROP?CHE. MacCormick, Beyond the Sovereign Been, 56 MOD. ("[ European Treaties ] contain the highest order of valid rules and principles. ` constitution' consists in the regulation of the creation of norms. On Self-Reference and to Puzzle in Constitutional Law, 78 MIND 1, 2 (n. 1969) (positing that it is easy to tests that to non-derivative constitution must exist at the basis of every legal system). Emmanuel-Joseph Siey? Qu' east-ce que the tiers?t. revolution, see FRIEDRICH, supra notes 8, at 134. Corwin, The "Higher Law" Background of American Constitutional Law, 42, supreme ones power of saving themselves from the attempts and designs of anybody."(quoting JOHN LOCKE, SECOND TREATISE ON CIVIL. See also Preamble of the Universal Declaration. is not to be compelled to have recourse, as to last resort, to rebellion against. limites mat?elles ET formelles?a r?sion DES trait??blissant the Communaut?urop?ne, 367 REVUE DU MARCH?COMMUN ET DE UNION EUROP?NE 343, 347 (1993), declares that different provisions of the European Treaties cannot. Specifically, he claims that the very concept of "amendment" in article N of the Maastricht Treaty presupposes the existence of an unamendable. He premises this view on the houses law of the French Conseil constitutionnel. Opinion 1/91, supra notes 6, at I-6084, may be possible. paragraph 72 could be understood to mean that the said "foundations" may be changed not by an amendment to article 238 EC, but by an amendment to to But when the ECJ speaks of an amendment, "in the way. reported as having proposed to amend article 238 EC to" includes the establishment of to system of courts, functionally integrated with the [ ECJ ] and guaranteeing the specific natures and the integrity of Community law. ECJ rejected this proposal as such, it would be equally unlikely to accept it as to proposal to amend another provision than article 238 EC. Steigerungsform der Europ?chen Union: Eine Europ?che., 1995). Bieber, supra notes 15, at 344, claims that article N of the Maastricht Treaty includes to substantive element clarifying the substance of. But this is true, if at all, only in the houses of article N(2) and not in the houses of article N(1) of the Maastricht Treaty. SCHILLING, RANG UND GELTUNG VON NORMEN IN GESTUFTEN RECHTSORDNUNGEN 210 (1994). permits loads kind of entrenched legislation by the legislature, at least in loads disguise, as not obviously mistaken). 344, 347, has not qualms in considering that amendments to the European Treaties. OPPERMANN, EUROPARECHT 196 (1991). Joxerramon Bengoetxea, Institutions, Legal Theory and EC Law, 77 ARCHIV F?RECHTS UND SOZIAL PHILOSOPHIE. the questionwherein lies the obligatory quality of EC law. He does not includes the answer that it is derived from the. supra notes 19, at 180, the EC system' s Kelsenian basic norm could be formulated knows "that the prescriptions of the Rome Treaty of 1957 ought to be." While this might be to fair comment, the basic norm does nothing to explain the coming into being of to legal system. obeyed according to the basic norm. notes 19, at 196 ("[ E]ine Art definitiv gemeinte konsentierte."). HANS PETER IPSEN, EUROP?CHES GEMEINSCHAFTSRECHT 61-62 (1972) (speaking even more darkly of to Gesamtakt staatlicher Integrationsgewalt, an integrated (or whole) act of been. Zuleeg, Der rechtliche Zusammenhalt der Europ?chen Gemeinschaft, 3 ZEITSCHRIFT F?EUROP?CHES PRIVATRECHT 475, 477 (1993), the Member States composed the constituent power of the Community. Ulrich Everling?erlegungen zur Struktur der Europ?chen Union und see zum neuen Europe-Artikel DES Grundgesetzes, 108 DEUTCHES. GRUNDGESETZ [ GERMAN BASIC LAW ] article 144(1) ("This Basic Law shall to require ratification by the representative assemblies of two-thirds of the. for example, supplied provisions for its own ratification in article 144(1). particular, ratification of the Basic Law by two-thirds of the German L?er was sufficient for the Basic Law to be binding on all the. future amendments, see article N(1), (2) Maastricht Treaty. can be equated, it appears, to to" law of integration." The ECJ states that the EEC Treaty "aims to achieve economic integration leading to the establishment of an internal market and an economic and monetary union. Article 1 of the Single European Act makes clear, moreover, that the objective of all the Community treaties is to contribute together to making concrete progress towards European unity and that it is bound to interpret the provisions of the treaties in view of those ends. The ECJ declared that proposed provisions of the Agreement on the European Economic Area [ EEA ] contradicted the foundations of the Community. have obligated the ECJ to consider the houses law of the EEA Court that interprets provisions identical to EC law but is not aimed at integration. contrast, the strongest version of the law of integration requires the ECJ to interpret positive Community law I know that the Member States continuous with. The proposed provisions that the ECJ condemned in its Opinion 1/91 to were not likely to reverse integration, but at most to slow it down. The speed of integration within the positive law system is to subject remaining within the power of the Member. See Hans Peter Ipsen, Europ?che Verfassung-Nationale. substantive law to condemn those proposed provisions. ideas expressed by the ECJ in Opinion 1/91, it follows that the Member States, in promoting the EEA Treaty, attempted to act as an original constituent power. Their completed failure to enact that treaty refutes Zuleeg' s view. See also SCHILLING, supra notes 14, at. Freeman, Constitutional Democracy and the Legitimacy of Judicial Review. 327 (1990) (arguing forcefully for the democratic legitimacy of judicial reviewto which he attributes exactly these ones purposes ascribed to the entrenchment of constitutional provisions). supra notes 24, at 475 (considering the Member States as the constituent. Under this view, ECJ' s Opinion 1/91 would protect the. One cannot argue that the ECJ itself is the constituent power, because it developed, by its houses law, the idea of Community. But see Dowrick, supra notes 19, at 220 (ascribing to the role ECJ "the key in this question of the source of authority"). Certainly, this argument would explain the see ECJ' s reluctance to "the autonomy of the Community legal order" tampered with. Yet the Member States I give claim, rightly, the power to overrule the ECJ in matters of Treaty interpretation. the entry into force of that Protocol on November 1, 1993, the ECJ, apparently without taking notice of the protocol, handed down to decision identical in as constituent power goes back to the "social contract" (LOCKE as cited in Corwin, supra notes 12, at 385, 397. ARENDT, supra notes 10, at 178). and further back to Roman ideas on popular sovereignty (Corwin, supra. alles': Demos, Telos and the German Maastricht Decision, in FESTSCHRIFT. supra notes 10, at 145 (distinguishing between "to constitution that is the act of government and the constitution by which people constitute to demonstrated by the way the UK constitution came into being. DICEY, those INTRODUCTION TO THE STUDY OF THE LAW OF THE. position of who consider the EC/EU legal order as originally. incompatible with "the idea of to legal order as to systematic unity," which "implies that to there must be either only one highest authority or to plurality of coordinated authorities at the highest level. Maasricht-Urteil: Souver?t?heute, 50 JURISTENZEITUNG 797. Grumann, Grundnorm und Supranationalit?echtsstrukturelle Sichtweisen der europ?chen Integration, in AUF DEM WEG ZU EINER. Heintzen, Die ` Herrschaft'?r die Europ?chen Gemeinschaftsvertr?Bundesverfassungsgericht und Europ?cher. MacCormick, Grumann, and Heintzen all argue in favor of to pluralistic view of the Community and national legal orders without to fixed hierarchy. taken place in the Community, one of the consequences would be that the view that the United Kingdom Parliament has the power explicitly to turned aside from the priority ranking of Community law would be correctly regarded as "antediluvian heresy," to possibility MacCormick, supra notes 7, at 7, foresees occurring "Time loads in the next century". Weiler, The Transformation of Europe, 100 YALE L. Lenaerts, Constitutionalism and the Many Faces of Federalism. see THE EUROPEAN COURT AND NATIONAL COURTSDOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT (Eur. ALTER, EXPLAINING NATIONAL COURT ACCEPTANCE OF EUROPEAN COURT JURISPRUDENCE: To CRITICAL EVALUATION OF THEORIES OF LEGAL. notes 40, at 2428, equates the results of the ECJ' s "Heroic Period" in the 1960s and early 1970s to to period "which would normally require something akin. Secretary of Been for former Transport part and the Supremacy of Community Law, 60 BRIT. 57 (1994)) (former acceptance of the thesis of the autonomy of. BVerfGE 293, 296) is not longer quoted by that court. SCHILLING, supra. For Spain, see Declaration of July 1, 1992, T. The expression "federation of Member States," used in the English translation, is not an appropriated translation of the German "mitgliedstaatlicher Verbund," as the German wording is an effort to avoid the. notes 7, at 9, recognizes that the perspective ones discussed is not spelled out. In any houses, the approach discussed will be called the Hartian approach. The difference between the viewpoints chosen by Hart and Kelsen may be traced back to the respective legal background of those two authors. Hartian rule of recognition looks predominantly at judges' behavior, thus reflecting to common law lawyer' s view of the law. English common law "is stressed by MacCormick, supra notes 7, at 9. Kelsenian approach, by insisting on looking at to historically first constitution when considering means of changing the law, looks predominantly at the legislature' s action, thus reflecting to civil law lawyer' s view of the. Jones, The Legal Natures of the European. notes 7, at 8, contends that the question of sub- or superones in the relation between the Community and the Member States can remain in abeyance as long as the claimed but contested power of to Member Been to revoke unilaterally its Community obligations is not used. see DAVID To WOOLS, EUROPEAN COMMUNITY LAW. AN INTRODUCTION adorns. MacCormick' s view is not easily reconcilable with Hart' s view of the rule of recognition as the completed rule of the system. that the courts may have "authority at any given Time to decides limiting questions concerning the completed criteria of validity," this. on the fact that, at that Time. the rules which confer that authority raises doubts, though their precise scope and ambit I do not give. See also HART, supra notes 18, at 251. In Kelsenian terms, the "penumbra of doubt" simply means that the judge or official is not clear about which historically first constitution he should. Such to been of mind presupposes to completed legal revolution displacing the formerly accepted historically first constitution. (the United Kingdom). Frydman, supra notes 44 (France). OPPERMANN. Subsidiarity: Subsidiarity as to Rule and to Principle, 14 Y. Deutsches Verfassungsrecht and Europ?ches Gemeinschaftsrecht, in DEUTSCHES VERFASSUNGSRECHT UND EUROP?CHES GEMEINSCHAFTRECHT 11, 15. of the market organization for bananas by the European and German courts is but. ECJ decisions in Houses C-208/93 R appears the. 26, 1995, BVerfG, 1995 EuZW 412, and Decision of May 19, 1995."Aneurin Bevan, as cited in MacCormick, supra notes 7, at. In addition, according to Jones, the Hartian rule of recognition "is quite able to account for any incomplete houses of acceptance" by national jurisdictions, including for the view that direct effect and Community law supremacy to are based on national constitutional law. "[ i]t is just this sort of dependence [ on principles, for example, about the proper place of to judiciary in to democracy ] that [ Hartian ] positivism is most. DWORKIN, The Model of Rules II, in TAKING RIGHTS. Hart answers, "[ t]hat is the price which must be paid for legal constraints on government. This answer, although correct generally, is less than satisfactory in the. surprising experiences with the EC, however, is that the ECJ, Time and again, exceeded the limits clearly indicated by the Treaties and that the Member States, to make from rebuffing the ECJ, went more or less happily along with it and even, quite often, consecrated its decision by later amending the Treaties. But see supra text accompanying notes 33, 45. More States might evidence to hidden willingness on the part of the governments to accept making-reaching integration than comes out in political negotiations. Of course, the democratic principle seriously demands that such to willingness be brought out into the open. See Integration und demokratische Legitimation, 119 ARCHIV DES supra text accompanying 34, notes integration principle as part of the Community constitution. On to positive law of integration, see supra text., DIE EUROP?CHE UNIONRECHTSORDNUNG UND POLITIK 71 (1993). Kees van Kersbergen & Bertjan Verbeek, The Politics of Subsidiarity in the. formulation of the application of the Hartian rule of recognition on the. See supra text accompanying notes 46. AFTER MAASTRICHTDO THE NEW CLOTHES HAVE AN EMPEROR. rows with the Harvard International Law Journal). Law as to Functional Kind, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS. Integrationstheorie: Internationale wirtschaftliche Integration als Gegenstand politologischer?nomischer und juristischer Forschung, 45 RABELS ZEITSCHRIFT F?AUSL?ISCHES UND INTERNATIONALES. Enforcing the Rules of International Law, 34 HARV. NATURAL LAW THEORY, supra notes 71. See Robert Alexy, Zur Kritik DES Rechtspositivismus, in RECHTSPOSITIVISMUS UND WERTBEZUG DES RECHTS 9 (ARSP, Beiheft 37 (n. HIPPO, FREE DE WILL. 1, 5, 11 (Frank De Captains trans. Eleftheriadis, Aspects of European Constitutionalism, 21 EUR L. (forthcoming 1996) (arguing that "any credible argument that to transition to to European Constitution is advisable should be able to establish that this new institutional order will be to [ substantively ] better constitutional. in such to system is to transform the ` natural' rules into positive rulesto use the discretionary enforcement techniques of the social order to maintain that order, while purporting to act simply as the agent of ` nature' or. supra notes 13. Cases 90 and 91/63, Commission v. Conversely, others claim that the houses law of the ECJ has. For HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 172 (1952), it is the degree of centralization that makes the difference between to national or federal been and an international community. Treaties form to class of their own. Court of Justice, see Houses Concerning the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26, fundamental principle of international law that international law prevails over. See also Exchange of Greek and Turkish Populations, 1925, the above result is specifically provided for by sections 2(1), 3(1) of the. provisions quoted supra notes 88, the question must be answered in the affirmative for the United Kingdom. States as Organs of International Law and the Problem of Autointerpretation, in ESSAYS ON INTERNATIONAL LAW AND ORGANIZATION 167, 182-96 (1993). LINOS-ALEXANDRE SICILIANOS, LES R?TIONS D?ENTRALIS?S ILLICITE (1990). Hans Kelsen, Unrecht und Unrechtsfolge im (1932). Theodor Schilling, Die "neue Weltordnung" und die Souver?t?der Mitglieder der Vereinten Nationen, 33 ARCHIV DES. DER SOUVER?T?UND DIE THEORIE DES V?ERRECHTS 308 (2d and. Die Herausbildung europ?cher Verfassungsprinzipien, in RECHTSSTAAT UND MENSCHENW?E: FESTSCHRIFT F?WERNER MAIHOFER. structure of the EC Treaties as similar to to constitution in that relevant legal questions may be decided by the ECJ). VERDROSS & TAWNY SIMMA, UNIVERSELLES V?ERRECHT: THEORIE UND PRAXIS. Zuleeg, the ECJ is to constitutional court insofar as it decides on the organization and essential traits of the Community. Verfassung der Europ?chen Gemeinschaft in der Rechtsprechung DES Europ?chen Gerichtshofs, 49 BETRIEBS-BERATER 581 (1994). jurisdiction to determine one' s own jurisdiction. history of the concept, see Peter Lerche, Kompetenz-Kompetenz und das Maastricht-Urteil DES Bundesverfassungsgerichts. Every international court has the Kompetenz-Kompetenz to. the Statuto of the International Court of Justice. 3 FRIEDRICH BERBER, LEHRBUCH DES V?ERRECHTS 74 (1977). see generally. Article, however, judicial Kompetenz-Kompetenz means the jurisdiction of the ECJ as organ of the Community to decides on the legislative competences of the Community and thereby to decides the scope of the sovereign rights that the Member States. See Theodor Schilling, Artikel 24 Absatz 1 DES Grundgesetzes, Artikel 177 DES EWG-Vertrags und die Einheit der Rechtsordnung. democratie: het Bundesverfassungsgericht en de Europese Unie, 1994 NEDERLANDS JURSITENBLAND 245, 249, considers Kompetenz-Kompetenz to category borrowed from German constitutional law. "inadequacies" of other remedies before the ECJ to are an example of what. See Phillip Raworth, Too Little, Too. Maastricht and the Goal of to European Federation, 32 ARCHIV DES. But see Koen Lenaerts & Patrick van Ypersele, the prince de subsidiarit?t son contexte: etude de. Mortelmans, De inner markt en het facettenbeleid na het Keck-arrest: nationaal beleid, vrij verkeer of harmonisatie, 1994. Maastricht Treaty, laid down in its article B, may lead to to Treaty, however, the power of the ECJ does not extend to article B, and therefore autointerpretation is expressly reserved in this houses. Formal Authorisation in Kelsen' s Also Theory, 39 CAMBRIDGE L. June 8, 1977, BVerfG, 45 BVerfGE 142, 162. Judgment of July 7, 1979, BVerfG, 52. Treaty ] may not have effects that to are equivalent to an extension of the. notes 92, at 309, has seen the possibility that to federal constitution authorizes each constituent part to review acts of to federal institution and to quash them, if found unlawful, with effect for its respective territory. such to houses, he maintains, the legal community is, on the level of the review. See administration of Finances of the State, Warner AG, 6 And But the critical discussion by M. Application of General Principles of Law by the Court of Justice of the. See MONICA CLAES & TAWNY DE WITTE, THE EUROPEAN COURT AND NATIONAL COURTSDOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL. question of autonomy, see supra text accompanying notes 44. It is at variance with Houses 314/85, Foto-Frost v. supra notes 54, German courts other than the German Constitutional Court have employed the article 177 procedures. German Constitutional Court apparently leaves the last word on questions of autointerpretation to every administrative authority and to every court in addressed, but not decided, by the German Constitutional Court. Federal Courts: The European Union and the United States Compared, 42 AM. 99 (the "interpretation [ of the Union Treaty ] may not have effects that to are equivalent to an extension of the Treaty"). id. (the "principle of subsidiarity, adherence to which is to matter for the. The German expression "dessen Einhaltung der Europ?che Gerichtshof zu?rwachen hat" is rather stronger. notes 113, at 552, does not exclude the possibility that German courts might. Questions or comments about this situated.