A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

DOIhttp://doi.org/10.1111/1468-0386.00024
AuthorNorbert Reich
Date01 June 1997
Published date01 June 1997
131
A European Constitution for Citizens:
Ref‌lections on the Rethinking of
Union and Community Law
Norbert Reich*
Abstract: Whilst the European Union or Community is not a state and does not
possess a political constitution in the sense of a series of irrevocable norms existing
prior to and above Community or Union law, the evolution of the European legal
system might nonetheless be regarded as a fundamental constitutional process. In this
light, primary and secondary European law, together with the jurisprudence of the
ECJ, might be said to be subjectivising certain specif‌ically European principles thus
contributing to the legal creation of sometimes novel rights for European Citizens. In a
legal process similar to that seen within 19th Century Germany, European law is
seeking to compensate for an incomplete political constitution through the
development of a – second best – European Charter for Citizens.
I The European Charter for Citizens
A Some Unorthodox Thoughts on the European Constitution
A Theory of Rights in the Union Context
This article is concerned with the development of rights granted to European citizens
– individuals as well as groups – within the context of Union, or to be more precise,
Community law. It uses the notion of the European constitution as a metaphor to
describe what is undoubtedly a fundamental process, although there may be some
confusion about its exact content. The article does not claim that the European Union
or Community resembles a state, or that its ‘basic constitutional charter’
1
can be
compared with the constitutions of the Member States. Similarly, it does not suggest
that the constitution should be regarded as something irrevocably laid down in certain
norms or principles lying beyond positive Community law which cannot be changed
or modif‌ied by the Member States as the sponsors of the Union Treaty, or by the
appropriate Community legislative processes.
European Law Journal, Vol. 3, No. 2, June 1997, pp. 131–164
© Blackwell Publishers Ltd. 1997, 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA
* Professor of Civil, Commercial and European law, University of Bremen. A longer version of this paper
was f‌irst presented as a special course at the summer seminar of the European University Institute,
Florence in 1995.
1
Case 294/82, Les Verts v Parliament, [1986] ECR 1339 at 1365 No. 23, repeated in Opinion 1/91, [1991]
ECR I-6079 at 6102.
The article does not take a position on the question of whether the Union needs a
constitution or not;
2
instead, it suggests that it already has one, though not in the
traditional sense of (political) state constitutions, but rather as an incomplete and
dynamic body of law which protects ordinary European citizens in their economic role
as consumers and their social role as workers, as well as in their functions as ecological
and political subjects.
The concept of the European constitution is used to describe the dynamic of
establishing, guaranteeing and implementing individual and collective rights as
subjective rights (subjektive Rechte or droits subjectifs) for EC citizens during the
process of European integration. This article adopts and extends Opinion 1/91 of the
European Court of Justice
3
on the compatibility of the European Economic Area
Treaty and its provisions of judicial control with the EC Treaty. There the Court
insisted on the specif‌icity of a Community law which contains the rights and duties
not only of Member States but also of citizens:
The essential characteristics of the Community legal order which has thus been established are
in particular its primacy over the law of the Member States and the direct effect of a whole
series of provisions which are applicable to their nationals and to the Member States
themselves.
Whenever the concept of subjective rights is used these words should be recalled
and be linked to those provisions of Community law which create a direct effect in
favour of individuals or citizens. The ECJ has recently repeated its concept of
subjective rights in its case law that ‘the principle of state liability for loss and damage
caused to individuals as a result of breaches of Community law for which the state can
be held responsible is inherent in the system of the Treaty’.
4
From a Wirtschaftsverfassung for Economic Citizens to a Charter of Subjective Rights
The concept of a European constitution has been most often used in discussions on a
European economic constitution concerned with the activities of active market
subjects vis à vis Member States and the Community itself. Economic freedoms, as
guaranteed by the Treaty, were thus transformed into fundamental rights. Of
particular inf‌luence here have been so-called ordoliberale (neoliberal) concepts of the
Wirtschaftsverfassung (economic constitution).
5
Even though the scepticism voiced by
Weiler
6
and Joerges
7
about the neoliberal concept of the economic constitution may
be justif‌ied, the Wirtschaftsverfassung may still be of use in the context of the
European Law Journal Volume 3
132 © Blackwell Publishers Ltd. 1997
2
See the scepticism voiced by Grimm, ‘Does Europe Need a Constitution?’, (1995) 1 ELJ 282; and a
somewhat broader approach by Weiler, ‘Does Europe need a Constitution? Ref‌lections on Demos, Telos
and the German Maastricht Decision’, (1995) 1 ELJ 219; Rousseau, ‘Pas d’Europe sans Constitution’, Le
Monde 18.1.1997, p. 17.
3
[1991] ECR at 6102 No. 21.
4
Joined cases C-46/93 and C 48/93, Brasserie du Pêcheur/ Factortame, [1996] ECR I-1029 at 1149 Para 31;
joined cases C-178/94 et seq,Dillenkofer et al. vFederal Republic of Germany, not yet reported,
(8.10.1996),comment by Reich, (1996) Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 709.
5
Joerges, ‘European Economic Law, the Nation State, and the Maastricht Treaty’, in: Dehousse (ed.),
Europe after Maastricht, (Beck, 1993) at 37–38; Gerber, ‘Constitutionalizing the Economy: German Neo-
Liberalism, Competition Law, and the New Europe’, (1994) 42 AmJCompL 25 for an account of this
discussion.
6
‘The Transformation of Europe’, (1991) 100 YaleLJ 2403 at 2477–78.
7
Loc cit,n 5.
development of a specif‌ically European theory of subjective rights which extend
beyond free movement. Neoliberals recognise therefore constitutional principles need
to be transformed into individual rights because market entry, guarantees for private
property and the free exercise of professions and trades, all rely on individuals for their
implementation. Individuals must therefore enjoy effective judicial protection and
access to the law. The Community law concept of direct effect attempts to transform
these objective principles into subjective rights. This transformation is clearly a part of
the existing acquis communautaire and hardly needs any further justif‌ication, despite
the many critiques of it derived from traditional theories on state sovereignty.
Within the conceptual framework of this paper, the idea of the subjectivisation of
principles guaranteed under Community law will be further extended to the general
rights of citizens in their roles as consumers and workers and their functions
as ecological and political subjects. The main criticism of the notion of the
Wirtschaftsverfassung is that it follows a purely one-sided approach to rights theory.
The economic rights of active market citizens are certainly the nucleus of any rights
granted by the European Community or Union: in reality only those citizens who are
actively engaged in free movement and competition will prof‌it from them. Therefore,
in the evolution of Community law these active economic rights have been
supplemented by additional rights which will be identif‌ied here as consumer rights,
social rights, ecological rights and citizenship rights. The European constitution might
thus be said to resemble a Russian doll which at its core contains a basic (economic)
structure, but which also has several layers of dresses around it which show us the true
shape of the f‌igure. In order to simplify the analysis, however, the following initial
distinctions should be made:
1. Consumer rights are concerned with the economic activities of passive market
citizens.
8
2. Social rights are concerned with the position of the individual as part (or not) of
the workforce, be it as a person or as a member of a group (individual vs
collective rights).
9
3. Ecological rights are somewhat more remote from the centre since they are
concerned with the sustainability and safety of the environment in which
individuals live or with which they have contact.
10
4. Citizenship rights are still at the outer reaches of the Community legal order
simply because the Union is not a state. Therefore, political rights have but
limited recognition in the Union and are still bound to a great extent by the ties
of the European citizen to his or her home country.
11
It is here that the
fragmented character of rights theory in the Union becomes most obvious.
June 1997 A European Constitution for Citizens
© Blackwell Publishers Ltd. 1997 133
8
Reich, ‘European Consumer law and its Relationship to Private Law’, (1995) 3 EurRevPrL 285.
9
Bercusson, ‘Social Policy at the Crossroads: European labour law after Maastricht’, in: Dehousse (ed.),
loc cit, n 5, 149; Martin, ‘Le droit social communautaire: droit commun des Etats membres de la
Communauté européenne en matière sociale?, (1994) RTDE 609; R. Nielsen, Employers’ Prerogatives
(Handelshojskolens forlag, 1996) at 197–210.
10
H. Micklitz, Internationales Produktsicherheitsrecht (Nomos, 1995); Krämer, EC Treaty and
Environmental law, 2d ed. (Sweet & Maxwell, 1995).
11
d’Oliveira, ‘European Citizenship: Its Meaning, its Potential, in: Dehousse (ed.), loc cit, n 5, 126; Shaw,
‘Citizenship of the Union: Towards Post-National Membership?’, in: Collected Courses of the EUI,
Florence (Kluwer, forthcoming).

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