Gallowglass

Ever closer union

Chris Bertram looks at the draft European Union constitution’s references to peace, security, childrens’ rights etc, and asks whether the “values stuff” might become a charter for judicial activism. David Weman writes that there’s little chance of this happening in the forseeable future.

I’m in the throes of reading the draft myself, as I have EU constitution related talks to give in Seattle and in Stockholm in the next 7 days - the text couldn’t have been issued at a worse time for me. But, even apart from the text itself, I reckon that David is wrong, for two basic reasons. First (as Chris mentions), fundamental constitutional values frequently come into conflict with each other, so that judges can exercise real political power, by deciding how to balance one value against another. So the potential exists in principle. Second, the judges of the ECJ have already shown themselves willing to take advantage of constitutional ambiguities so as to expand their mandate. They’ve already turned the European Union Treaty text into a constitution for all intents and purposes, and have creatively construed Treaty texts so as to provide a real (if minimal) set of social rights for EU citizens, that the Treaty drafters certainly didn’t intend.

Originally, the authority of the ECJ was quite narrowly construed, but through a series of judgements, the ECJ managed to transform itself into the equivalent of a constitutional court. Alec Stone Sweet has a nice short account of this process in Governing with Judges: Constitutional Politics in Europe, which I summarize here. Over time, the ECJ articulated four legal doctrines that are of particular importance.

The Doctrine of Supremacy: In any conflict between EC legal norms, and national level norms, the EC norm must be given primacy.

The Doctrine of Direct Effect: Certain Treaty provisions and EU Directives confer rights on individuals that public authorities must respect. Even if an EU member state doesn’t transpose a Directive into national law, the ECJ can provide relief to plaintiffs.

The Doctrine of Indirect Effect: National level judges must always interpret national laws as if they were in conformity with EC law.

The Doctrine of Governmental Liability If a member state fails to transpose a Directive properly, national courts can hold the member state liable for damages incurred by individuals.

In short, the ECJ has created for itself a new - and much wider- role than that which was originally intended for it. It’s done so through articulating legal doctrines that establish the supremacy of EU law, which national level courts and member states have more or less acquiesced to (the German Constitutional Court has noted some reservations, but hasn’t really acted on them).

Not only that, but the ECJ has construed ambiguous provisions in the original Treaty texts in a quite expansive manner, so as to create new social rights. The Treaty of Rome was almost exclusively concerned with creating a European marketplace. However, it did include an article saying that member states should give men and women equal pay for equal work. This clause was a nod to French political sensitivities, an empty gesture, more or less. However, as Alec and Jim Caporaso have shown, the ECJ then interpreted this principle in a maximalist fashion, using it to create a much wider body of jurisprudence on equality and non-discrimination issues, and stretching it to cover issues that the Treaty’s drafters had very clearly never intended it to.

Thus, I can safely predict that these nostrums in the Treaty text, bland though they may seem, will provide the basis for judicial activism in coming decades, unless they are very explicitly made non-justiciable. And perhaps not even then. The ECJ is demonstrably interested in expanding its political prerogatives, and it can do so readily through resolving clashes between competing constitutional values. If it has managed to construct a body of social rights from the market-heavy Treaty of Rome, it will have little difficulty in using the much more promising material that the Convention is offering.

Of course, the real battle will start when the Convention proposes a legally binding Charter of Human Rights. The British are already girding their loins for that particular battle; how the member states will end up deciding the issue (and indeed the broader controversy over which bits of the draft constitution to adopt) is anyone’s guess.

Posted by Henry at May 27, 2003 01:00 PM | TrackBack