The path of the European construction of federalism has been through treaties and the organizing principle premised upon the theory of “subsidiarity.” The enforcing mechanism has been, perhaps not so surprisingly, the Court of Justice.
When common rules are decided in the Community, it is vital that they are followed in practice and that they are understood the same way everywhere, which is what the existence of the Court of Justice ensures. The Court of Justice was established in 1952 under the Treaty of Paris, which formed the ECSC. The Court consists of one independent judge from each member state and is located in Luxembourg. Up until now, it has been empowered to ensure that Community laws are interpreted and applied consistently and to settle disputes between the Community and its member states. If national courts are in doubt about how to apply Community laws, they are left no room for their own discretion but, instead, must bring the cases to the Court. In addition to the preliminary and referring jurisdictions, individual persons can also bring proceedings against the EU and EC institutions before the Court46 (Maduro, 1998: 12-16; Swaine, 2000: 10-15; Weatherill, 1995, 187-189).
To assist the Court of Justice, which is heavily loaded with thousands of cases every year, a “Court of first instance” was
45 Article I-6, Title I of “the Constitution Treaty” reads that “The Constitution and law adopted by the institutions of the Union is exercising competences conferred on it shall have primacy over the law of the Member States.”
46 Articles 226-244 of the “Community Treaty.”
created in 1989. This Court, attached to the Court of Justice, is responsible for giving rulings on certain kinds of cases, particularly actions brought by private individuals and cases relating to unfair competition between businesses. Both the Court of Justice and the Court of first instance have a President who is chosen by his or her fellow-judges to serve for a term of three years.47
In what ways has the Court of Justice become the critical mechanism in constructing European federalism? It has achieved this status primarily through court decisions and notably by establishing doctrines including: supremacy, direct applicability, and the direct effect of Community treaties and laws (Halberstam, 2001: 223; Maduro, 1998: 12-16; Swaine, 2000: 10-15;
Weatherill, 1995: 187-189). Despite the lack of a Supreme Clause in the founding treaties, such as exists in the US Constitution,48 the Court of Justice nevertheless established its own. In a famous case van Gend and Loos in the early 1960s, it was held 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 comprise not only member states but also their nationals.”49 It was upon this principle, emphasized by the Court, that the Community treaty provisions “produce direct effect and create individual rights, which national courts must protect.”50 In another case, the Court established that the law of member states, despite having been enacted subsequently, could not affect the validity of the pre-existing Community laws.51 The prevalence of the Community
47 Regarding the provisions of the Court of first instance and its jurisdictions, relationship with the Court of Justice, see Articles 220-225a.
48 Section 2, Article 6 of the US Constitution. It is expressed clearly that the Constitution, and the laws of the United States shall be the supreme law of the land.
49 Case 26/62, N.V. Algemene Transport-en Expeditie Onderneming van Gend
& Loos v. Nederlandse Administratie der Belastingen, (1963) European Court Reports [ECR] 1, 12.
50 Case 26/62, at 16.
51 Case 6/64, Flaminion Costa v. ENEL, (1964) ECR 585, 509.
legal order was thus reaffirmed.
Through a few other cases handed down in the 1970s, the supreme legal order of the Community was completed and consolidated. In Simmenthal,52 in which the Court was faced with a conflict between a national law concerning the jurisdiction of its constitutional court and Community law, it was held that the national law would be inapplicable. Similarly, in another case, the Court went even further, indicating that respect for fundamental rights “whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community.”53
By way of judicial interpretations, the Community’s legal order and its entrenchment have been constructed. In a profoundly intelligent and creative way, the Court of Justice has established that member states acting against Community laws violate the laws of their own, rather than those of another supranational legal order (Halberstam, 2001: 224). This judicial construction of federalism has been vital in the process of putting together the European Union. It is evident that the draft Constitution for Europe has adopted these legal doctrines developed by the Court and, equally remarkable in terms of comparative constitutionalism, is the judicial precedence of political solutions for developing federalism.
The American mechanism, however, is quite different. The supremacy of the Constitution and federal laws is embodied clearly in the document itself and, together with the compromising principles such as the enumerated powers of the Congress, or the Tenth Amendment, it gives residual power to the states or the people. Insofar as these principles laid down in the founding document require interpretation or clarification, the judiciary still
52 Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, [1978] ECR 629.
53 Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorrastsstelle fuer Getreide und Futtermittel, (1970) ECR 1125.
has a role to play. Yet, it is a political struggle, rather than judicial intelligence which legitimates federal construction and the entrenchment of the federal legal order.
The vital mechanism of the US construction of federalism has been constitutional codified by constitutional politics. Did the judicial actions during the New Deal indicate a shift in the construction of federalism from the political sphere to the judicial?
The answer is no. As I explained earlier, without political leadership and even threats, the Supreme Court would not retreat into an embrace regulatory federalism. The recent “Velvet Revolution” initiated by the Supreme Court, however, shows some of the elitist constructions of federalism (Ackerman, 1997: 793- 794).