The Community has developed with an inexorable dynamism of enhanced supranationalism. As a result, it has first been ruled by general principles of public international law to become an interstate governmental structure "per se " ruled by a "Constitutional Charter? . The Constitutionalisation is the process by which the Court of Luxembourg conferred a Constitutional power to the Treaties . In the national order, a Constitution is defined by the fundamental political principles on which a state is governed. This means that the Founding Treaties have become the supreme law of the European Union (EU), over national Constitutions.
[...] Toth, The Oxford Encyclopaedia of European Community law, Clarendon Press, (1990). -J.H.H. Weiler, The transformation of Europe, Cambridge University Press, (1999). Rassmusen, On law and policy in the European Court of Justice, Martimus Nijhoff (1986). Federico Mancini, The making of the Constitution for Europe, (1989) CMLR 26, p.595-614. In the important judgment les Verts (case 294/83), referring to the Treaty of Rome, the ECJ interpreted it as the “Constitutional Charter” of the EU. Mainly, ECSC (1952), Rome-CE (1957), Maastricht-UE (1992), Amsterdam (1997). J.H.H. [...]
[...] The theories of direct effect and supremacy issued by the ECJ. The theory of direct effect The question of whether the certain provisions of the EEC Treaty were capable of producing enforceable rights in favour of individuals was first raised in the case Van Gend en Loos[7] in 1963. The Court used an interpretative method[8] to consider that in contrast to ordinary treaties, the EEC Treaty set up a Community that constituted new legal order of international law.” Thus, it had direct effect in the national legal order. [...]
[...] Its position towards the Constitutionalisation of the Treaties is very interesting. It first refused to agree with the doctrine of supremacy, then it abandoned its position and it ‘willy-nilly` accepted the twin supranational theories, and it even finally admitted the supremacy of the directives over national law. - The “splendid isolation” While the Conseil Constitutionel, the Cour de Cassation and all of the other European national courts recognized the theories of direct effect and supremacy, the Conseil d'Etat long refused to abandon its “grumbling”[20] attitude. [...]
[...] - The theory of supremacy extended to the directives The starting point for this discussion must be the Cohn-Bendit[27] case. The plaintiff is a German citizen who was one of the leaders of the student's revolt of May 1968. Consequently, he was expelled of the French territories on the ground that his presence in France was contrary to the public good (“ordre public”). Seven years later he wanted to return to France to take up employment but his request was refused without any valid reasons. [...]
[...] Most of the critics hold the opinion that the Conseil d'Eat does indeed have the competence to reverse its confusing case law. Then, the position of the Conseil was in complete contradiction with the European case law and was putting France in a position of potential[26] breach of its Community obligation. This decision therefore constituted an important advance for Community law in France and in Europe. It is, nevertheless, the result of a mode of reasoning, which is still far removed from the spirit of the Community system. [...]
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