Europe as regulatory 'state'

Once again, we have the very welcome opportunity to continue the path between the disciplines that we have been following for a couple of years now. The goal has always been the same one, which, in reality, is actually two different ones. In addressing our own discipline, law, we argue that it should renew its perceptions of reality and open up its normative and dogmatic conceptual structure. To political scientists engaged in integration research, we proclaim that they ought to take the law's normative structure seriously and open up their analytical and empirical models to this peculiar reality. 'Two goals?! No wonder he never gets anywhere!' By no means. These are merely two sides of one and the same thing. To anticipating my argument and my conclusions in a thesis, Europe's constitution is too important to be left up to the law; but it is also something that cannot be grasped in an empirical, analytical approach that relies on the identification of independent and dependent variables.

Walking on the ridge that we wish to explore, Europe's constitution will be looked at from two directions. We are concerned, first, with the legal content, and with the strategies of juridification of the integration project which have, since the foundation of the European Economic Community, have led to ever-new versions of the Treaties and their interpretation. But we are also concerned with the thematic development of the law, in order to show that, in the course of the integration process, Europe has been repeatedly 'constituted' anew and differently. The law itself is subject to change; it has to learn. It 'is' not per se 'the' constitution of Europe; it goes through metamorphoses when Europe is re-shaped, and constituted anew. There are, of course, different ways to look at these issues, and from such a distance, or such a level of abstraction, the developments and differences that this contribution seeks to explore can become invisible: how should Europe be constituted in order for us to be able to recognise it as legitimate? This is indeed a formula that could accompany the whole history of the integration project. But the answers that have been given and institutionalised, have changed. We have to realise what kind of body politique Europe represents in order to understand how law can, and should, constitutionalise the European polity.

And we cannot content ourselves with looking at the texts which form its legal basis. The speed at which the foundations are developing in the Treaties has become breathtaking. Between the 1987 Single European Act, Maastricht 1992, Amsterdam 1997 and Nice 2001, there were only a few years in each case. But the ink under the Nice agreements was not even dry when it was followed by the Laeken Conference with its concluding declaration on the future of the Union and the setting up of a constitutional convention.1 The sceptically sounding question of whether Europe needs a constitution2 seems to have been settled. An invisible hand or a Hegelian List der Vernuinft at work? Anyone engaged in interpreting the Laeken declaration, who then observes the convention discussions, follows them, and tries to interpret the smoke signals, will be continually confronted with the question of what sort of structure (polity) Europe is. Evidently, one does, after all, have to ask both questions at once. We shall seek to do so in a reconstructive procedure, in which three stages in the development of European integration and its legal constitution will be distinguished below.

  1. The first section, covering the period from the establishment of the EEC up to the Single European Act, involves the building up of a supranational legal system which claimed primacy over national law, and, on this very ground, possessed constitutional significance which was, however, basically confined to an 'economic constitution'.
  2. The second period covers the programme of the 'White Paper on Completion of the Internal Market', of 1985 (Commission 1985), which was rooted in the Single European Act that came into force in 1987, and was taken further by the Maastricht Treaty. All of this brought Europe into the political awareness of scholarship and onto its agenda. The key question in practical politics for this stage was: can completion of the European internal market be only be achieved at the price of breaking down the various regulatory patterns that both continental and British welfarism had institutionalised? The relevant empirical, analytical and conceptual contributions from political scientists correlate to two problems in constitutional law: a) what limits does one's own constitution set to the hollowing out of statehood through integration; b) what standards as to rule of law and democracy does the institutionalisation of Europe have to meet?
  3. This issues are by no means definitely settled.. But their background conditions have once again changed. The present situation can be characterised by referring to the Commission's Governance White Paper of July 2001 on the one hand (Commission 2001), and the Constitutional Convention set in motion through the Treaty of Nice3 and the Laeken Declaration of 20014 on the other. One might think that reform of governance and constitutional convention belong together. Yet, as will be shown, one ought not to build up great expectations about this coincidence.

These three stages, divided by these dates, do not involve strict caesurae. The state of development of the integration project is only very incompletely mirrored in Treaty amendments or the descriptions by their observers. In each phase, the understanding of the project was controversial. The conceptual and theoretical bases of such perceptions and positions tend, to a large degree, to be immune to many changes and are often carried over into a new Treaty amendment. But such theoretical constructs can never fully represent the law. This mysterious body found its way quite incrementally, neither as unconsciously as Niklas Luhmann's metaphor of the starfish insinuates (Luhmann 1974 #), nor through the direction of a mastermind, but through a problem-related discovery process in which both the Commission's political programmes and the many adjustments on which the 'masters of the Treaty' agreed were continuously reflected in the terms that a sensitive judiciary had enunciated and was entrusted with developing further. In reconstructing this process, I do not intend to write the legal history of the integration process, but, instead, to defend the thesis that it was common experience, and the concrete constraints towards unification that European law was able link up with, that justified its extraordinarily inventive, and often also cunning, production of law. Whether Europe can continue to pursue this path of 'constitutionalisation from below' is difficult to predict; it has, at any rate, been so successful that it ought not to be given up lightly.

1. 'Vertical Constitutionalism': the justification of the supremacy of European law, and the theory of the economic constitution

The distinctions between the development stages of the integration process employed here are widespread in both political and legal science, both at home and abroad. Admittedly, the accents shift a bit according to disciplines and nationalities. Authors coming from international law or 'public' law usually take the marked institutional shifts as milestones. English-speaking European law belongs entirely in this box. Economic integration research and European lawyers coming from private (economic) law have been more interested in the connections between market integration and economic policy. Particularly in Germany, the second, 'private-law' interpretation of the 'European Economic Community' was influential (an interpretation paid little attention to abroad: on this, cf., Gerber 1994; Sauter 1997: 26ff). Both viewpoints and traditions have a constitutional core. Both, in their ways, are 'right'. And the common features are as instructive as the differences.

1.1. Vertical constitutionalisation: 'Legal integration from above'

It is no coincidence that public-law research into European law has dealt so intensively with the separation of European law from general international law. Nor is it any coincidence that it was this tradition that identified the European Court of Justice as the protagonist for 'integration through law'. Its characterisation by an emigrant from Czechoslovakia has become famous: "Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type Europe," (Stein 1981: 1).

The history of this 'constitutionalisation from above' is fascinating for lawyers, since it seems to confirm the existence of a legal culture of argumentation that is not only practised over and above the national legal systems but which is also able to find recognition (see a). It is as fascinating for legal sociologists and political scientists as Baron von Münchhausen's tale about pulling himself out of a swamp by his hair: can it really be true that, by its own resources, the law raised itself above inter-governmental politics and imposed its validity on sovereign states? What were the 'real' reasons - outside the law - for the law's success in the integration process, is the question that any self-respecting social scientist has to ask.

1.1.1. The Law's Self-Descriptions

The interpretation of the EC system as a supranational legal community can indeed be called an ingenious product of the European Court of Justice. This jurisprudence has found - in the legal system and beyond - such widespread support that it can well be regarded as the core of the dominant orthodoxy of Community law. The gradual construction of this legal architecture has been depicted so frequently (cf., for example, because of their striking similarities in this respect, Ipsen 1973: 97ff; Weiler 1991: 2413ff, and, more recently, von Bogdandy 2001: 11 ff.) that some remarks on the major steps should suffice here.

The foundations were laid in 1963 with the doctrine of "direct effect" of EC law (ECJ 1963). This doctrine declared that the rules of the EEC Treaty, as long as they are sufficiently precise, are not just binding on the Community and the Member States, but are valid 'directly' and establish subjective rights: anyone may claim the subjective rights contained in the Treaty, and domestic courts must guarantee their protection as if national law were at stake.

What is nowadays generally accepted was, at the time, anything but obvious. Article 169 of the EEC Treaty (now Article 226) envisaged appeals by the Commission and the Member States against Treaty infringements. This corresponded to the heritage of international law. Yet, it was possible to deduce from the preliminary rulings procedure of Article 177 (now 234) and from the extensive law-making powers of the Community that it was intended to be more that an international organisation. From these elements of the Treaty, the ECJ extracted its doctrine of direct effect:5 '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 contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but also to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens ... In addition, the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which not only comprise Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community,' (ECJ 1963: 24 f).

The second building block in this process was the doctrine of the 'supremacy' of Community law. This was introduced in the path-breaking Costa/ENEL decision as a legally-binding implication of the theory of 'direct effect':

'The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the treaty, make it impossible for the States, as a corollary, to accord precedent to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system ... The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws without jeopardizing the attainment of the objectives of the treaty set out in Article 5(2) and giving rise to the discrimination prohibited by Article 7' (ECJ 1964: 1269f).

Two further consequences are already discernible from the quoted passages: The 'direct effect' of Community law, leading to its supremacy vis-a-vis national legal systems, must also mean that Community law has the effect of pre-empting Member States from taking legislative action: if and when a policy area becomes occupied by the Community, then the Member States lose the right to act unilaterally. And demanding that Community law ought to have equal relevance in all Member States is to say that the ECJ must have the final competence to rule on the limits of its application. This consequence was forcefully drawn in the 1971 AETR judgment (ECJ 1971). Case law concerning the 'functional' Community competences - based on the objectives of the Treaty - as well as the 'implied powers' doctrine carried on from this judgment: even though the Treaty orders Community responsibilities 'enumeratively' and therefore limits them (Article 3B; now Article 4), these have to be understood and treated as 'goal-oriented'. This broad interpretation of the Community's competences was, in practice, limited by Article 235 (now 308) EEC Treaty, which demanded unilateral decisions on such matters. Article 100 (now 94) EEC stipulated the same for legal harmonization.

Inevitably, the application of these principles did, and still does, pose difficult problems, from which respective controversies of interpretation follow. But as long as these doctrines are accepted in principle, and as long as the ECJ remains able to take conclusive decisions in cases of conflict, we are dealing with a supranational order that is fundamentally different from the rules delineating domestic and international law. It is precisely because of this difference that one may assign the status of a "constitutional charter" to the structuration of the Community legal system as endorsed by the ECJ (Stein 1981: 1; Weiler 1991; 2413; Pernice 1993: 449, and especially the Court's own Opinion: ECJ 1991).

1.1.2. Explanations

All ECJ statements on the quality and the content of Community law have been based on "strictly juridical" operations. Nowhere can we find explications of methodological premises or theoretical deliberations as to the legitimacy of Europe's 'constitutional charter'. Is this the right way to go about adopting a constitution? And how stable can such an order, which presents itself as a purely legal product of law, actually be? To these questions, we will return.

What remains remarkable and needs to be explained is the mere broad acceptance of this jurisprudence. The ECJ could not, for its landmark decisions, muster the support of the European nations; frequently, it did not even meet with the consensus of their governmental representatives (Stein 1981: 25). Equally, the Court was unable to rely on force or the kind of sanctions a supranationally institutionalised power centre might possess. Instead, support came from the Court's Advocates-General, from the Commission, and, after some resistance, from the Member States' national courts (Beutler/Bieber/ Pipkorn/Streil 1994: 98; Weiler 1993: 417). Europe experienced the strength of a silently and patiently operating 'legal community' (Höland 1993; Schepel/Wesseling 1997) of interpretation that took up the supreme judges' doctrines and used them as a framework for action.

Such technical legal references to the practice of the legal system have been taken up by political scientists. Here, the 'legal dialogue' between the ECJ and the national supreme courts is an important, if not the most important, fact. It was also important that the Commission stubbornly utilized the means for enforcing European law domestically, which was granted to it by Article 169 (now 226) (Börzel 2000; Tallberg 1999), and that the so-called acquis communautaire (the stock of European law) was never made disposable in external relations - and this is again the case with EU enlargement, to the dissatisfaction of the accession countries (Weiner 1998). As a much noted inter-disciplinary essay concluded, "Law functions both as a mask and as a shield. It hides and protects the promotion of one particular set of objectives against contending objectives in the purely political sphere," (Burley[Slaughter]/Mattli 1993: 72).

All of this is walking along the ridge between the normativity and facticity of the law, abstracting from the content; balancing acts as they are employed everywhere in international law. Against this, however, we must ask ourselves if the actors that helped European law to validity were not also following a vision, a 'finalité' of the European project, that could have more convincingly justified its 'primacy'?

1.2. Ordo-liberal Economic Constitution Theory: Europe as 'market without state'

This is something requiring the use of an oxymoron like 'normative fact': technical legal 'dogmatic' reconstructions of European law were always accompanied, supported or criticised by metadogmatic justificatory discourses, by 'legal-science theories of integration', which dealt with the validity claims of this law (Joerges 1996). One justification for European law that continues to be important, and is far superior to the purely legal methodological derivation of vertical constitutionalism, was brought by the 'ordo-liberal' theory of a supranational 'economic constitution'.

To understand the operational history of this theory, we have to look right back to the Weimar Republic. There, the theory of the economic constitution advocated a framework order above party disputes which was intended to guarantee economic freedoms, but, at the same time, to check them legally through a competition system (Nörr 1999: 5-18; Wiethölter 1989: 225 ff.). 'Ordo-liberalism' had practical effect for the self-perception of the young Federal Republic, particularly because of its inclusion in the concept of a 'social market economy' (Abelshauser 1987; Haselbach 1991: 117 ff.; Nörr 1999: 58 ff., 81 ff.). Its leading exponents - Walter Hallstein (1946; 1969), Franz Böhm (1946), Alfred Müller-Armack (1947) - committed themselves very early and very successfully to Europe, bringing the core ideas of ordo-liberalism to bear there.



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