whether the court perceives itself as an institution that should reflect the will of the
peoples, the citizens or the states, or somehow the combined will of all of these elements
together. Judges view themselves as the ‘pouvoir judiciaire’, ‘die dritte Gewalt’ in the
system of the separation of powers. However, in a multilevel Union there is no clear
division of powers, let alone a clear attribution of powers to the judiciary. In fact, the
Community was essentially created by law, as a ‘Rechtsgemeinschaft’.
From the outset, the court was therefore at the very basis of the integration process.
But do the judges know in whose name they rule? To paraphrase a famous dictum of
Judge Pescatore: do they not only have ‘une certaine idée de l’Europe’, but also an
understanding of their role as constitutional judges in this process? The immediate
answer is negative: judges do not seem to talk of their ideas of Europe, their mandate,
of their role or the way ahead, let alone act according to some or other common aim.
But they do something far more important: they decide individual cases—and by doing
so they add another piece to a framework for which there is no overall design, but
which is nevertheless constitutive of a union of law. These cases reveal their thinking
and provide the material to show where legitimacy is drawn from and what the
probable consequences are.
I submit that the ECJ is currently developing a jurisprudence under which citizens,
mainly Union citizens as private actors, as well as their organisations and corporate
private actors, are gradually being included in the matrix of rights and—this is a crucial
point—obligations of the treaties. Put in a different way, the ECJ is framing the
European Constitution, at least as regards aspects other than institutional or organi-
sational, in almost complete disregard of the public/private distinction. The ECJ is
thereby including ‘non governmental’ or non-state actors, that is, ‘the civil society’ in
the edifice of integration.
It incorporates civil society actors and citizens, beyond
notions of representative (citizenship) and participatory (civil society) democracy, into
the body of law and thereby reworks its own and the Union’s identity.
I shall argue that in reconstructing the Constitution beyond the public/private divide,
the court offers a unique vision of a Union beyond dichotomist perceptions and seeks
to include a whole range of today’s actors in the matrix of rights and obligations, all the
while preserving a functioning system. The court seeks to guarantee that individuals are
protected from ‘misbehaviour’—be it legislative, executive or private.
Two core aspects will be explored: the first is the reconfiguration of Union citizenship
as a norm which triggers the application of the material norms of the Treaty—most
notably the genuine constitutional issue of non-discrimination. The second aspect of
this evolution is the creation of what I call ‘private governance’. Private governance
refers to processes in which, as a rule, private action is regarded as action that has to
meet the standards of the treaty. I shall briefly outline this process when I present the
ways in which the rights and obligations of non-state actors have developed, defining
According to Walter Hallstein, the EEC is ‘in dreifacher Hinsicht ein Phänomen des Rechts: Sie ist
Schöpfung des Rechts, sie ist Rechtsquelle und sie ist eine Verwirklichung der Rechtsidee’; W. Hallstein,
‘Die EWG—Eine Rechtsgemeinschaft’, in T. Oppermann (ed.), Europäische Reden (Deutsche Verlags-
Anstalt, 1979), quoted in I. Pernice, Der Beitrag Walter Hallsteins zur Zukunft Europas: Begründung und
Konsolidierung der Europäischen Gemeinschaft als Rechtsgemeinschaft, available at http://www.whi-
As such, this article challenges, at least with regard to the ECJ, Philippe Schmitter’s statement that Union
citizenship ‘most certainly will not be a panacea for resolving the EU’s democratic deficit and growing
legitimacy problems’; P. Schmitter, ‘Second thoughts on European Citizenship as Secondary Citizenship’
(2003) 28 Cuadernos europeos de Deusto 113.
May 2007 Au nom de qui?
© 2007 The Author 381
Journal compilation © 2007 Blackwell Publishing Ltd.