The New Constitutionalism

Extract

[...] Home office case, the Court has indeed attributed "direct effect" to provisions of directives not transposed into the law of the Member States within the prescribed time limit. This can be seen as a revolution in the ELO. Directives are indeed more characteristic of an international organisation and are different from regulations because they are binding only the States and only as for the result. Yet, because of the opposition of the French Conseil d'Etat and of the German Bundesfinanzhof, this doctrine is not yet well accepted by the Member States. [...]

[...] Moreover, in relation to the institutional framework of the EU, we have the European Council as the "cornerstone" of the Union, in a very prominent and powerful position. It is the intergovernmental organ, which can have competencies in the three pillars. The fact that the treaties do not provide a legal personality for the Union is also to notice. There is then no single institutional framework in the EU that could clearly resemble to a federal state. The question of the acquis communautaire On of the primary objectives of the SEA and later of the TEU was to maintain in full the acquis communautaire and to built upon it under the principle of non-discrimination. [...]

[...] The citizenship The theory of Constitutionalism falls down perhaps on the notion of citizenship in Europe. Whereas any federal system with a constitution indeed recognises a citizenship for all the people living in (under certain conditions), which has great implications (everybody has the same rights), the Member States of the EU still have different jurisdiction concerning the penal law for example. Yet, we can notice some advances, for example the fact that "European Union" is now written on all the passports of the Individuals living in the EU, the fact that the European Parliament is elected by the European since 1979, or the fact that the European Union develops exchange programmes allowing the European Students to study in another country of the EU. [...]

[...] It is specified by the No protocol. That agreement was signed by only 11 of the 12 members of the community in 1989. It states that any extension of the social policy is transferred to the level of an intergovernmental agreement, because of the refusal of one of the Member States (the UK) to accept any extension of the social competencies of the Community. Moreover, Art provides "an extra precaution to make sure that the various rules concerning the application of the treaty would be implemented also in relation of the various protocols". [...]

[...] If the EC was built like an international organisation, it nevertheless had some peculiarities: A unique institutional structure and judicial powers. The founding text was a traditional multilateral treaty and definitely not a constitution, but we can not speak of an international organisation. According to Mancini, the motor of the constitutional move has been the role of the ECJ. This role "has been to remove or reduce the differences just mentioned. In other words, the Court has sought to constitutionalize the Treaty, that is to fashion a constitutional framework for a federal-type structure in Europe". [...]