The New Constitutionalism

Extraits

[...] It can be seen as a complement to the supremacy doctrine. It determines "whether a whole policy area has been actually or potentially occupied by the central authority so as to influence the intervention of the states in that area". For example, concerning, the CAP, the Court decided that "the very existence of such a system precludes Member States from legislating within the field covered by it". Judicial powers One of the essential characteristics of any federal system is the judicial review of legislation. [...]

[...] The problem in this theory is that the Court often lacks coercive powers, which are not explicitly foreseen in the Treaty. The new Constitutionalism is then a theory of integration in the sense that it proposes to facilitate the understanding of the EU functioning, it describes the process taking place and it can be of course a good way to predict future events. But like the other theories, it is not universal and can not explain for example the procrastination of the EU in the CFSP area. [...]

[...] Yet it lacks the coercive powers to enforce its judgements. But, and that is why Weiler says that the National Courts can be an allied of the ECJ, they often ask the ECJ for advice concerning the validity of EU legislation. The interpretation given in Luxembourg has acquired a kind of binding authority and this is indeed a mean of influence of the ECJ on National Courts. The citizenship The theory of Constitutionalism falls down perhaps on the notion of citizenship in Europe. [...]

[...] That is perhaps why Weiler feels very closed to neofunctionalism. There is then in the EU system of compliance which renders European Law in effect a transnational form of higher law" and with a Court of Justice which has adopted an explicit constitutional rhetoric. And even if the EU lacks the most fundamental property, which is the legitimisation through a popular power, Weiler speaks of a realist perspective. The EU would be a "constitutional order without constitutionalism", with a "constitutional practice adopted by the Community but without any underlying legitimating constitutionalism" This essay is divided in two parts. [...]

[...] Have the treaties created a constitutional entity or a classical international organisation? This is one of the questions that are important to pose to examine the framework of the EU itself and to understand what the EU is. The European Law Order (ELO) comes without any doubt from the public international law. It was indeed at the beginning a communion between the High Contracting Parties, which ratified the Treaty of Rome giving birth to the European Community. So it was surely in 1957 a classical organisation, with a separate legal personality, but with no power to eradicate its subordination to the Member States. [...]