EUROPEAN UNION LAW
Q2. Does the European Union need a written constitution?
Laws essay 2006
Does the European Union (the EU) need a written constitution? To answer this question it is first necessary to assess the democratic legitimacy of the EU’s institutions. Democracy, with all its failings, is not the ideal political system, but it can be used as a benchmark. The nation state of the democracy can be used to expose the democratic deficit existing in the EU. The main problem with the EU is its legislative initiator – the Commission. This executive branch consists of unelected elites, and is, subject to a censure motion from the EU Parliament, completely independent. The nation state model can be used to argue a written constitution is essential for the EU, or contra-wise, that is not essential, and extending the competency of the EU Parliament over the Commission is the solution. However, to judge the EU by the ideal nation state model is highly precarious. For example, New Zealand, as a nation state, suffers its own democratic deficit. Arguably, it is more sound to assess the need for a written constitution on the basis of a collective 'will formation' emanating from the European citizens instead. A written constitution resulting from an external reference point is surely inadequate. Only when there exists an internal collective consensus from EU citizens can a constitution be considered legitimate. Issues involving the EU’s democratic legitimacy and transparency are discussed first.
The Treaty of Nice 2003 was viewed as an opportunity for substantial institutional reform, but this reform failed to eventuate. The Nice Treaty, however, included an appended declaration by the heads of states and governments;1
‘Important reforms have been decided in Nice… [t]he Conference
recognises the need to improve and to monitor the democratic
legitimacy, and transparency of the Union and its institutions…’2
Earlier, on December 15 2001, the European Council of Laeken had adopted another declaration, which declared; ‘The Union needs to become more democratic, more transparent and more efficient’. The Union made the further decision to convene a convention in order to draft a ‘Constitution for European Citizens’. The Treaty establishing a Constitution for Europe (CT) is a volumous document, consisting of 341 pages and 448 articles. This is the first time Europe has ever in its history had a draft constitution. The key aspects for constitutional reform came from both the Nice conference and the Laeken declaration. Ultimately, it was decided that the EU needed ‘to become more democratic’; why was this? Since the EU’s inception, and even more so today, EU institutions exercise a legislative ‘action that [has] the purpose and effect of altering the legal rights, duties, and relations of persons’.3
The Commission is the key legislative driver in the EU and its most powerful institution. Nothing can be set in motion without the Commission first initiating it. The Commission holds the key power of the EU, which is that of legislative initiative. It has a complete monopoly, and therefore the power to shape vitally the destiny of the EU, and its citizens. The Commission holds the critical power – that is the ‘governmental power’. This ‘community method of government’ is a basic hallmark of the EU institutional structure.4
Under the 2004 proposed constitutional treaty, the Commission (which is unelected) would even have had general powers to enact regulations, being the exercise of a delegated legislative power. However, these powers were to be limited by the primary legislation. Even still, the Commission could ‘supplement’ or ‘amend’ specific non-essential elements of any given European law or framework law.5 Again, this is subject to revocation by the EU Parliament or Council of Ministers to the degree prescribed in relation to the legislation.6
Essentially, the EU is governed by an independent Commission, independent of the 25 member states, from their governments, and from EU citizens. The Commission formulates its policies, not as a group of elected representatives, but according to its own jurisdiction conferred by Article 26 (7) of the EU Draft Constitution; which reads the Commission ‘shall be completely independent [and its members] shall neither seek nor take instructions from any government or other institution, body, office or entity.’ The EU is essentially governed by a panel of independent unelected experts.7 When compared with the nation state political structure;
‘[t]he community method of government, which relies on an
independent college of men and women for deciding the fate of
millions of people, is not a democratic method of government, and
nobody pretends it is.’8
The Commission has become the most powerful body in the EU. It drafts legislation and furthermore is subject to the command of no one. The Commission is comprised of eminent members, who are acknowledged to have a European commitment.
It is ‘independent’, and as such is empowered to ‘promote the general interest of the Union and take appropriate initiatives to that end’.9 The elected representatives of the people, being the EU Parliament, can only approve or disapprove the Commissions initiatives.10 ‘[T]he constitutional treaty ostensibly lodge[d] “executive authority’, as such in the Commission …’11
From the democratic perspective, the most objectionable aspect of the Commission’s executive governance is not so much its exclusive right of legislative initiation, but rather its total independence. This also appears in orthodox parliamentary regimes where cabinet possesses power, yet not absolutely, as MPs may always initiate bills. The status of the Commission is more untenable, as its members not only enjoy complete control in regards to its legislative proposals, it is also independent.12 The historic fatal flaw, which was carried over to the proposed constitution, is the misconception that if the Commission remains independent its impartiality is assured. However, the Commissions independence does not result in it being the protector of the smaller member states, or the enforcer of the treaties. Rather, smaller states are protected by treaty rule, pursuant to which, when the Council seeks to depart from a Commission proposal, it must do so unanimously. Likewise, the treaties enforcement is not a result of the Commissions independence, but instead because the treaty confers jurisdiction on the Commission to lodge a complaint with the European Court of Justice when the treaty is breached by a member state.13
Another decision by the drafters of the constitutional treaty was to enhance the democratic legitimacy of the Commission by having its President chosen by the EU Parliament.14 However, this fails to reflect the more robust democratic process commonly associated with parliamentary systems in nation statues. What remains contentious is that the Commission’s President is elected only indirectly by the European Parliament, and not via an electorate mandate from the European citizens.15 Still, the European Parliament can only elect as President of the Commission a person whom the European Council (being the governments of the 25 member states) has specifically nominated for the purpose.16 This results in a limited democratisation of the Commission, but that is all.17
The Draft Constitution states ‘[t]he Commission, as a body, shall be responsible to the European Parliament.’18 However, this may be overstated, as the Commission’s independence remains intact;
‘The result of this broad, extended independence may well make
the Commission’s political responsibility to Parliament the most
elusive accountability to grasp. For there is a total contradiction
between granting complete independence to the Commission and
holding it accountable to the Parliament.’19
The Draft constitution does provide that EU citizens may ‘take the initiative’ in the EU’s legislative process. Although this right is limited, as the EU citizens are powerless in the face of the 20 unelected EU experts. The reason being, that the constitution limits the EU citizens to the ‘initiative of inviting the Commission … to submit [a]proposal’.20 The EU Parliament, an elected body, has the power to hold the unelected Commission accountable by voting on a motion to censure. Still, to be effective, the Commission’s mistakes, being the subject matter of the motion, should include the Commission’s political mistakes and failures also. Moreover, the Commission should be censured for failure to carry out policies that the EU Parliament considers appropriate for the EU.21
Zoller’s answer to the EU’s democratic deficit is not to adopt a written constitution, but instead, to extend the power of the EU Parliament in such a way that the Commission is deprived of its independence.22 To do this she submits that all faults by the Commission be interpreted as legal faults. A legal fault is not a policy fault. For example, the Commission, directed by Jacques Santer, was collectively forced to resign in 1999 for corruption and bribery. As stated, legal liability should be widely construed to include political mistakes, and especially failure or refusal to implement a policy formulated by the EU Parliament.23 If the expanding jurisdiction of the EU suffers from inadequate legitimation, the nation state model, at least for the Euro- sceptics, appears as a reliable comparison to assess the EU’s legitimacy.24
The above discussion used the nation state system as a comparison to expose the democratic deficit existing in the EU. Nevertheless, it is conceptually flawed to rely on this model of political structure as the ideal method of government by which to judge the EU;
‘Assessing problems of legitimacy by extending emphasis on
European-level governance can always be criticised for its
illegitimacy by those who assume the pre-eminence of national-level
political structures. It is the specious but primitively compelling
“loss of sovereignty” argument, but such debates cannot sensibly
be conducted pending liberation from (frequently unwitting)
preconceptions about sites of legitimacy. So solutions must be
pragmatic, incremental and cautious.’25
This quotation exposes the weaknesses in Zoller’s arguments. She uses the nation state as a site of legitimacy to claim a formal constitution for the EU is unnecessary. She claims, '[a] constitution is not necessary to create a democracy,’26 and further claims New Zealand, even without a formal constitution, is a ‘true democracy’; it has a constitution in the substantive, but not formal sense. Zoller argues the EU already does possess a constitution, in the same sense as New Zealand, in that the EU’s government consists of several institutions; a Parliament, Commission, European Council, Coucil of Ministers, and a Court. Moreover, EU laws and customs bind not only EU institutions, but also member states. This is a matter of law, as such these laws are enforceable in Court. As a consequence, Zoller asks; ‘is there any need for the EU to adopt a formal constitution’?27
Incredibly, Zoller claims New Zealand is a ‘true democracy’, even without a formal constitution – this is simply wrong. To further argue that New Zealand’s nation state political structure provides a cogent reason for the EU not to adapt a formal constitution is also incorrect. In actual fact, New Zealand’s political legal structure suffers from the same problem Zoller herself has just exposed in the EU – an overly powerful executive;
‘As with most democratic governments, but even more so in New
Zealand, the Executive wields extraordinary power, including the
power to take away fundamental rights and freedoms, which are
protected only by goodwill and trust, and not by the courts. This
enormous and almost unchecked power of government, alone and
through Parliament, has been likened by a former Prime Minister
to that of the Stuart Kings before the Glorious Revolution of 1668.
It was characterized by other commentators as an almost perfect
example of a strict majoritarian model, an “elective dictatorship”,
and an “overpowerful parliament dominated by what is as a result
and overpowerful executive”. This is clearly a very “thin” and
vulnerable democracy’.28
New Zealand, with its ‘thin’ democracy, provides a weak example by which to claim the EU institutional structure can be improved without a written constitution. If anything, it is the exact opposite, that is, that the EU must have a constitution to constrain the excessive executive power wielded by its Commission. Of course, the proposed EU constitution (as critiqued by Zoller above) failed completely to address the problem. If the nation state model is to be used at all, it should be used to argue in favour of a constitution for the EU and not against one.
Dieter Grimm claims new political institutions within the EU, such as a European Parliament with nation state powers and therefore extended competences (as suggested by Zoller) offer no solution. If they are not subject to a collective European will formation they will merely accelerate the problems already apparent in the national frameworks, that is, an overly complex bureaucratisation.29 The crucial point is the opinion ‘will formation’ existing in the national member states is lacking at the European level. This dangerous scenario results in increased democratic legitimisation at the national level, yet illegitimate democratisation at the European Community level. This is important, as the EU exercises a supreme law jurisdiction that binds all member states at the national level.30
Grimm further argues that adverse consequences would result if the European Community made the transition to a democratically constituted federal state. In the absence of a common political European based culture, the supranational decision process would evolve ever more independently from the national level opinion will formation process.31 This problem exists also with the treaties, as they have an external rather and internal reference point. Other theorists reiterate this when they state ‘… the inclusion of citizens in political decision making is considered paramount to the formation of collective identity’;32 and, ‘[a] constitution without demos would lack its fundamental element, that is, subjects’.33 Therefore, there should be no written constitution for the EU.
However, without federal innovations, such as a written constitution, the democratic deficit evident in the EU’s institutions ‘… expands day by day because the economic and social dynamics even within the existing institutional framework [of the EU] perpetuate the erosion of national powers through European law’. The democratic based legitimacy of the member states is diminishing, as their power of decision – making is accruing to the European community which has only a weak form of democratic legitimatisation.34
Ultimately, Grimm and Habermas may be correct on the following point; there can be no European federal state worthy of being called a democratic Europe unless there is ‘… public communication that transcends the boundaries of the until now, limited national public spheres’.35 Habermas argues, [g]iven the political will, there is no a priori reason why [Europe] … cannot subsequently create the politically necessary communicate context as soon as it is constitutionally prepared to do so.’36 The core is formed by a political public sphere which enables citizens to take positions at the same time on the same topics of the same relevance.’37
The nation state model exposes the inadequacies of the EU institutions. The EU is dominated by a largely independent Commission. From this perspective a written constitution is essential in order to constrain the Commission’s executive power and to precisely delineate those powers. It is also arguable that a constitution is unnecessary, and instead the competence of the EU Parliament should be extended as a control over the Commission. However, to use the nation state model to argue a constitution is unnecessary seems flawed. A nation state such as New Zealand also suffers from a democratic deficit and is not a 'true' democracy , if there ever was one. Owing to the EU's democratic deficit a written constitution is needed. Yet to adopt a constitution in the absence of European citizen involvement would mean it lacks demos – the essential element. If a written constitution is to have legitimacy it must emanate from the citizens of Europe; as to when this collective 'will formation' will arise appears unanswerable.
Does the European Union (the EU) need a written constitution? To answer this question it is first necessary to assess the democratic legitimacy of the EU’s institutions. Democracy, with all its failings, is not the ideal political system, but it can be used as a benchmark. The nation state of the democracy can be used to expose the democratic deficit existing in the EU. The main problem with the EU is its legislative initiator – the Commission. This executive branch consists of unelected elites, and is, subject to a censure motion from the EU Parliament, completely independent. The nation state model can be used to argue a written constitution is essential for the EU, or contra-wise, that is not essential, and extending the competency of the EU Parliament over the Commission is the solution. However, to judge the EU by the ideal nation state model is highly precarious. For example, New Zealand, as a nation state, suffers its own democratic deficit. Arguably, it is more sound to assess the need for a written constitution on the basis of a collective 'will formation' emanating from the European citizens instead. A written constitution resulting from an external reference point is surely inadequate. Only when there exists an internal collective consensus from EU citizens can a constitution be considered legitimate. Issues involving the EU’s democratic legitimacy and transparency are discussed first.
The Treaty of Nice 2003 was viewed as an opportunity for substantial institutional reform, but this reform failed to eventuate. The Nice Treaty, however, included an appended declaration by the heads of states and governments;1
‘Important reforms have been decided in Nice… [t]he Conference
recognises the need to improve and to monitor the democratic
legitimacy, and transparency of the Union and its institutions…’2
Earlier, on December 15 2001, the European Council of Laeken had adopted another declaration, which declared; ‘The Union needs to become more democratic, more transparent and more efficient’. The Union made the further decision to convene a convention in order to draft a ‘Constitution for European Citizens’. The Treaty establishing a Constitution for Europe (CT) is a volumous document, consisting of 341 pages and 448 articles. This is the first time Europe has ever in its history had a draft constitution. The key aspects for constitutional reform came from both the Nice conference and the Laeken declaration. Ultimately, it was decided that the EU needed ‘to become more democratic’; why was this? Since the EU’s inception, and even more so today, EU institutions exercise a legislative ‘action that [has] the purpose and effect of altering the legal rights, duties, and relations of persons’.3
The Commission is the key legislative driver in the EU and its most powerful institution. Nothing can be set in motion without the Commission first initiating it. The Commission holds the key power of the EU, which is that of legislative initiative. It has a complete monopoly, and therefore the power to shape vitally the destiny of the EU, and its citizens. The Commission holds the critical power – that is the ‘governmental power’. This ‘community method of government’ is a basic hallmark of the EU institutional structure.4
Under the 2004 proposed constitutional treaty, the Commission (which is unelected) would even have had general powers to enact regulations, being the exercise of a delegated legislative power. However, these powers were to be limited by the primary legislation. Even still, the Commission could ‘supplement’ or ‘amend’ specific non-essential elements of any given European law or framework law.5 Again, this is subject to revocation by the EU Parliament or Council of Ministers to the degree prescribed in relation to the legislation.6
Essentially, the EU is governed by an independent Commission, independent of the 25 member states, from their governments, and from EU citizens. The Commission formulates its policies, not as a group of elected representatives, but according to its own jurisdiction conferred by Article 26 (7) of the EU Draft Constitution; which reads the Commission ‘shall be completely independent [and its members] shall neither seek nor take instructions from any government or other institution, body, office or entity.’ The EU is essentially governed by a panel of independent unelected experts.7 When compared with the nation state political structure;
‘[t]he community method of government, which relies on an
independent college of men and women for deciding the fate of
millions of people, is not a democratic method of government, and
nobody pretends it is.’8
The Commission has become the most powerful body in the EU. It drafts legislation and furthermore is subject to the command of no one. The Commission is comprised of eminent members, who are acknowledged to have a European commitment.
It is ‘independent’, and as such is empowered to ‘promote the general interest of the Union and take appropriate initiatives to that end’.9 The elected representatives of the people, being the EU Parliament, can only approve or disapprove the Commissions initiatives.10 ‘[T]he constitutional treaty ostensibly lodge[d] “executive authority’, as such in the Commission …’11
From the democratic perspective, the most objectionable aspect of the Commission’s executive governance is not so much its exclusive right of legislative initiation, but rather its total independence. This also appears in orthodox parliamentary regimes where cabinet possesses power, yet not absolutely, as MPs may always initiate bills. The status of the Commission is more untenable, as its members not only enjoy complete control in regards to its legislative proposals, it is also independent.12 The historic fatal flaw, which was carried over to the proposed constitution, is the misconception that if the Commission remains independent its impartiality is assured. However, the Commissions independence does not result in it being the protector of the smaller member states, or the enforcer of the treaties. Rather, smaller states are protected by treaty rule, pursuant to which, when the Council seeks to depart from a Commission proposal, it must do so unanimously. Likewise, the treaties enforcement is not a result of the Commissions independence, but instead because the treaty confers jurisdiction on the Commission to lodge a complaint with the European Court of Justice when the treaty is breached by a member state.13
Another decision by the drafters of the constitutional treaty was to enhance the democratic legitimacy of the Commission by having its President chosen by the EU Parliament.14 However, this fails to reflect the more robust democratic process commonly associated with parliamentary systems in nation statues. What remains contentious is that the Commission’s President is elected only indirectly by the European Parliament, and not via an electorate mandate from the European citizens.15 Still, the European Parliament can only elect as President of the Commission a person whom the European Council (being the governments of the 25 member states) has specifically nominated for the purpose.16 This results in a limited democratisation of the Commission, but that is all.17
The Draft Constitution states ‘[t]he Commission, as a body, shall be responsible to the European Parliament.’18 However, this may be overstated, as the Commission’s independence remains intact;
‘The result of this broad, extended independence may well make
the Commission’s political responsibility to Parliament the most
elusive accountability to grasp. For there is a total contradiction
between granting complete independence to the Commission and
holding it accountable to the Parliament.’19
The Draft constitution does provide that EU citizens may ‘take the initiative’ in the EU’s legislative process. Although this right is limited, as the EU citizens are powerless in the face of the 20 unelected EU experts. The reason being, that the constitution limits the EU citizens to the ‘initiative of inviting the Commission … to submit [a]proposal’.20 The EU Parliament, an elected body, has the power to hold the unelected Commission accountable by voting on a motion to censure. Still, to be effective, the Commission’s mistakes, being the subject matter of the motion, should include the Commission’s political mistakes and failures also. Moreover, the Commission should be censured for failure to carry out policies that the EU Parliament considers appropriate for the EU.21
Zoller’s answer to the EU’s democratic deficit is not to adopt a written constitution, but instead, to extend the power of the EU Parliament in such a way that the Commission is deprived of its independence.22 To do this she submits that all faults by the Commission be interpreted as legal faults. A legal fault is not a policy fault. For example, the Commission, directed by Jacques Santer, was collectively forced to resign in 1999 for corruption and bribery. As stated, legal liability should be widely construed to include political mistakes, and especially failure or refusal to implement a policy formulated by the EU Parliament.23 If the expanding jurisdiction of the EU suffers from inadequate legitimation, the nation state model, at least for the Euro- sceptics, appears as a reliable comparison to assess the EU’s legitimacy.24
The above discussion used the nation state system as a comparison to expose the democratic deficit existing in the EU. Nevertheless, it is conceptually flawed to rely on this model of political structure as the ideal method of government by which to judge the EU;
‘Assessing problems of legitimacy by extending emphasis on
European-level governance can always be criticised for its
illegitimacy by those who assume the pre-eminence of national-level
political structures. It is the specious but primitively compelling
“loss of sovereignty” argument, but such debates cannot sensibly
be conducted pending liberation from (frequently unwitting)
preconceptions about sites of legitimacy. So solutions must be
pragmatic, incremental and cautious.’25
This quotation exposes the weaknesses in Zoller’s arguments. She uses the nation state as a site of legitimacy to claim a formal constitution for the EU is unnecessary. She claims, '[a] constitution is not necessary to create a democracy,’26 and further claims New Zealand, even without a formal constitution, is a ‘true democracy’; it has a constitution in the substantive, but not formal sense. Zoller argues the EU already does possess a constitution, in the same sense as New Zealand, in that the EU’s government consists of several institutions; a Parliament, Commission, European Council, Coucil of Ministers, and a Court. Moreover, EU laws and customs bind not only EU institutions, but also member states. This is a matter of law, as such these laws are enforceable in Court. As a consequence, Zoller asks; ‘is there any need for the EU to adopt a formal constitution’?27
Incredibly, Zoller claims New Zealand is a ‘true democracy’, even without a formal constitution – this is simply wrong. To further argue that New Zealand’s nation state political structure provides a cogent reason for the EU not to adapt a formal constitution is also incorrect. In actual fact, New Zealand’s political legal structure suffers from the same problem Zoller herself has just exposed in the EU – an overly powerful executive;
‘As with most democratic governments, but even more so in New
Zealand, the Executive wields extraordinary power, including the
power to take away fundamental rights and freedoms, which are
protected only by goodwill and trust, and not by the courts. This
enormous and almost unchecked power of government, alone and
through Parliament, has been likened by a former Prime Minister
to that of the Stuart Kings before the Glorious Revolution of 1668.
It was characterized by other commentators as an almost perfect
example of a strict majoritarian model, an “elective dictatorship”,
and an “overpowerful parliament dominated by what is as a result
and overpowerful executive”. This is clearly a very “thin” and
vulnerable democracy’.28
New Zealand, with its ‘thin’ democracy, provides a weak example by which to claim the EU institutional structure can be improved without a written constitution. If anything, it is the exact opposite, that is, that the EU must have a constitution to constrain the excessive executive power wielded by its Commission. Of course, the proposed EU constitution (as critiqued by Zoller above) failed completely to address the problem. If the nation state model is to be used at all, it should be used to argue in favour of a constitution for the EU and not against one.
Dieter Grimm claims new political institutions within the EU, such as a European Parliament with nation state powers and therefore extended competences (as suggested by Zoller) offer no solution. If they are not subject to a collective European will formation they will merely accelerate the problems already apparent in the national frameworks, that is, an overly complex bureaucratisation.29 The crucial point is the opinion ‘will formation’ existing in the national member states is lacking at the European level. This dangerous scenario results in increased democratic legitimisation at the national level, yet illegitimate democratisation at the European Community level. This is important, as the EU exercises a supreme law jurisdiction that binds all member states at the national level.30
Grimm further argues that adverse consequences would result if the European Community made the transition to a democratically constituted federal state. In the absence of a common political European based culture, the supranational decision process would evolve ever more independently from the national level opinion will formation process.31 This problem exists also with the treaties, as they have an external rather and internal reference point. Other theorists reiterate this when they state ‘… the inclusion of citizens in political decision making is considered paramount to the formation of collective identity’;32 and, ‘[a] constitution without demos would lack its fundamental element, that is, subjects’.33 Therefore, there should be no written constitution for the EU.
However, without federal innovations, such as a written constitution, the democratic deficit evident in the EU’s institutions ‘… expands day by day because the economic and social dynamics even within the existing institutional framework [of the EU] perpetuate the erosion of national powers through European law’. The democratic based legitimacy of the member states is diminishing, as their power of decision – making is accruing to the European community which has only a weak form of democratic legitimatisation.34
Ultimately, Grimm and Habermas may be correct on the following point; there can be no European federal state worthy of being called a democratic Europe unless there is ‘… public communication that transcends the boundaries of the until now, limited national public spheres’.35 Habermas argues, [g]iven the political will, there is no a priori reason why [Europe] … cannot subsequently create the politically necessary communicate context as soon as it is constitutionally prepared to do so.’36 The core is formed by a political public sphere which enables citizens to take positions at the same time on the same topics of the same relevance.’37
The nation state model exposes the inadequacies of the EU institutions. The EU is dominated by a largely independent Commission. From this perspective a written constitution is essential in order to constrain the Commission’s executive power and to precisely delineate those powers. It is also arguable that a constitution is unnecessary, and instead the competence of the EU Parliament should be extended as a control over the Commission. However, to use the nation state model to argue a constitution is unnecessary seems flawed. A nation state such as New Zealand also suffers from a democratic deficit and is not a 'true' democracy , if there ever was one. Owing to the EU's democratic deficit a written constitution is needed. Yet to adopt a constitution in the absence of European citizen involvement would mean it lacks demos – the essential element. If a written constitution is to have legitimacy it must emanate from the citizens of Europe; as to when this collective 'will formation' will arise appears unanswerable.
TABLE OF CASES
Amministrazione delle Finanze v Simmenthal (Case 106/77) [1978] ECR 629
Commission v France (Case 167/173) [1974] ECR 359.
Costa v ENEL (Case 6/64) [1964] ECR 585.
Immigration & Naturalization Service v Chadha, 462, U.S. 919. (1982).
Ministero delle Finanze v IN. CO. GE’ 90 Srl & others (Joined Cases C-10/97 to C-22/97) [1998] ECR 1-6307.
TABLE OF TREATIES / DECLARATIONS
Laeken Declaration on the Future of the European Union 2001.
Treaty of Nice 2003.
Draft Treaty establishing a Constitution for Europe 2004.
TABLE OF BOOKS
Weatherill, S, Cases & Materials on EU Law, 7th edn, Oxford University Press, 2006.
TABLE OF JOURNAL ARTICLES
Berman, G, Executive power in the new European constitution, O.U.O., 2005, 440.
Bogdandy, A, The European Constitution and European identity; Text and subtext of the Treaty establishing a Constitution for Europe; O.U.P. & NY sch. Law, 2005, 295.
Grimm, D, Does Europe need a Constitution? 1. Eur. L. J. (1995) 291.
Habermas, J, Remarks on Dieter Grimm’s “Does Europe need a Constitution?” (1995) 1. Eur. L. J. 303.
Leane, G.W.G, Enacting Bills of Rights; Canada and the Curious Case of New Zealand’s “Thin Democracy”, H.R.Q. 26 (2004) 152.
Palombella, G, Whose Europe? After the constitution; A goal-based citizenship, O.U.P, 2005, 357.
Zoller, E, The Treaty establishing a constitution for Europe and the democratic legitimacy of the European Union, Indiana Journal of Global Legal Studies (2005) 391; LegalTracPrint 1.
Word Count = 2562
End notes
1 E. Zoller, The Treaty establishing a Constitution for Europe… I.J.G.L.S. (Summer 2005) 391; Legal TracPrint at p.1.
2 Declaration of Nice 2001, cited in Zoller, op.cit. note 1 at p.1.
3 This legislative definition derives from Immigration & Naturalization Service v Chadha, 462, U.S. 919, at 952.
4 E. Zoller, supra, at p.3.
5 CT art, 1-36(1).
6 CT art, 1-36(2).
7 E. Zoller, op. cit. note 1, at p. 4.
8 Loc. cit.
9 CT art, 26(1).
10 E. Zoller, op.cit. note 1, at pp. 5 & 6.
11 G. Berman, Executive power in the new European constitution, O.U.P., 2005, 440 at p. 442.
12 E. Zoller, supra, at p. 6.
13 Loc. cit.
14 CT art, 1-27(1).
15 CT art, 1-20(1); cited by G. Berman, op. cit.note 11, at p. 442.
16 CT art, 1-27(1)
17 G. Berman, supra, at p. 442.
18 CT art, 1-26 para 8.
19 E. Zoller, op. cit, note 1, at p. 8.
20 CT, art 1-47, para 4.
21 E. Zoller, supra, at p. 8.
22 See further, E. Zoller, op. cit, note 1, at p. 8.
23 Loc. cit.
24 J. Habermas, cited in S. Weatherill, Cases and materials on EU Law, 7th edn. O.U.P., 2006, at p. 707.
25 A. Menon & S. Weatherill, in EU Law, supra, at p. 711.
26 E. Zoller, supra, at p. 13.
27 See E. Zoller, op. cit. note 1, at pp. 13 & 14; Zoller also cites Israel and the United Kingdom as true democracies, at p. 13.
28 G.W.G Leane, Enactng Bills of Rights; Canada and the Curious Case of New Zealand’s “Thin” Democracy; H.R.Q. 26 (2004) 152, at p. 167.
29 J. Habermas critiquing Grimm in S. Weatherill, op. cit. note 24, at p. 706.
30 Ibid, at p. 707; For decisions on the supremacy of EC law see Costa v ENEL (Case 6/64) [1964] ECR 585; Amministrazione delle Finanze v Simmenthal (Case 106/77) [1978] ECR 629; Ministero delle Finaze v IN. CO. GE ’90 Srl & others (Joined Cases C-10/97 to C-22/97) [1998] ECR 1-6307; Commission v France (Case 167/173) [1974] ECR 359; see generally, S. Weatherill, supra, at chp. 3.
31 J. Habermas, supra, at p. 707.
32 A. Bogdandy, The European Constitution and European Identity… O.U.P. & NY University school of Law, 2005, 295, at p. 312.
33 G. Palombella, Whose Europe? After the constitution; A goal-based citizenship O.U.P., 2005, 357, at p. 360.
34 J. Habermas critiquing Grimm cited in S. Weatherill op. cit. note 24, at p. 707.
35 Ibid, at p. 708.
36 Ibid, at p. 709.
37 Ibid, at p. 708.
