1 Colum. J. Eur. L. 183 (1995)
Edward A. Tomlinson. Professor of Law, University of Maryland School of Law.
Forty years ago the founders of what is now the European Union utilized international law to launch their venture in European integration. Thus, international agreements (treaties) were the device used in the 1950s by the Benelux countries, France, Germany, and Italy to establish the three European “Communities.” No doubt many of the founders had profoundly federalist ambitions for a united Europe, but the framework they chose to implement their design was that of international law. Member States thus joined the new Communities through duly ratified international agreements. In a world that tended to see all law as either international or national law, Community law belonged to the former domain and the Communities were international organizations. Under that traditional dichotomy, each State’s municipal law (normally its constitutional law) determined the place assigned international law norms in the domestic legal order.
In the 1960s the European Court of Justice formulated a quite different approach to the relationship between Community law and Member State law. In its landmark ruling in van Gend en Loos, the Court described the European Community as “a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only Member States but also their nationals.” In its subsequent descriptions of this “new legal order” created by the Treaties, the Court dropped the qualifying phrase “of international law,” and thus claimed for Community law a status quite different from that of international law. The hallmark of this distinctive status, first recognized in van Gend en Loos and subsequently reaffirmed on countless occasions, was the conferral of rights on individuals as part of a “legal heritage” which they could invoke “independently of the legislation of Member States.” This empowering of individuals to invoke Community law before national tribunals – called the doctrine of direct effect’ – contrasts sharply with international law’s traditional reluctance to treat persons, be they individuals, corporations, or other juridical persons, as “subjects” of international law capable of invoking rights against sovereign States.
The Court of Justice’s refusal to equate Community with international law is perhaps best explained by the Court’s concern over assuring its supremacy throughout the Community. Uniformity was unlikely to be achieved if, as in the case of international law, each Member State applied its own rules for determining the place of Community law in the domestic legal order. The Court’s overcoming, in this fashion, the treaty status of the Communities’ founding texts was part of a more general effort to “constitutionalize” the treaties, i.e., to fashion a constitutional framework for a federal-type or supranational structure in Europe.” This development largely depended on the doctrine of direct effect. As described recently by Judge Mancini, “without direct effect we would have a very different Community today – a more obscure, remote Community barely distinguishable from so many other international organizations whose existence passes unnoticed by ordinary citizens.”Direct effect, when combined with the companion “constitutionalizing” doctrines of Community law’s supremacy and preemptive effects, has made the Community, in the eyes of many, more a supranational than an international institution. That process has now advanced far enough for the Court of Justice to describe the European Community Treaty as “the basic constitutional charter” of the Community.
This “constitutionalization” of the treaties by the European Court of Justice gives rise to what French jurists call the “specificity” of Community law. What they mean by specificity is Community law’s claim, based on the European Court of Justice’s case law, to be something more than international law and thus not subject to the normal rules applied by the French courts for the reception of international norms into the French legal system. Those rules, according to basic principles of public international law, belong to the receiving State’s own constitutional order; they allow the State to determine how it will integrate international norms into the domestic legal system and what will be their status, once integrated, in the hierarchy of norms applied by the domestic courts. This application of national rules to the integration of Community law by Member States appears impermissible following the European Court of Justice constitutionalization of the treaties. Does not Community law’s specificity require French courts, and the courts of other Member States, to treat it as directly effective, supreme, and preemptive based on its status as Community law, thus assuring its uniform reception throughout the Community?
France’s three court systems have divided on the issue of Community law’s specificity. The “judicial” courts, which exercise jurisdiction over most private law, criminal, and tax matters, have recognized Community law’s specificity (at least as an alternative ground) since a landmark 1975 decision by the Court of Cassation, the highest court in the regular court system. On the other hand, the administrative courts, which have jurisdiction over disputes between private persons and the State, have consistently rejected it.”‘ The highest administrative court, the Council of State, thus treats Community law as a category of international law and receives it on that basis. The third court structure, the Constitutional Council, which reviews the constitutionality of international agreements and statutes before they go into effect, also treats Community law as international law. The Council, unlike France’s other two Supreme Courts, is a relatively new institution created by the 1958 Constitution which established the present, Fifth French Republic.50 Under its rather limited jurisdiction, international agreements (including secondary Community legislation adopted thereunder) are immune from constitutional challenge once ratified or approved, but new or modified international commitments found to be inconsistent with the Constitution can only be ratified or approved, and thus enter the French legal system, after amendment of the Constitution.
How can France participate effectively in the integration of Europe when only the judicial courts accept the European Court of Justice’s case law on the specificity of Community law? The answer to this question appears to lie in the fact that Community law receives an adequate welcome in France because the French constitutional order is unusually receptive to the integration of international norms, and because Community norms bear more resemblance to international norms than the proponents of Community law’s specificity would have us believe. Indeed, the whole process of constitutionalizing the treaties is consistent with their status as international agreements of the law-making type.
The privileged status afforded international law in the French legal system thus permits French courts to afford Community norms the superior status required by Community law. While that result is largely unquestioned today, achieving it was not an easy task. Undoubtedly, the process would have been smoother if all three court systems had agreed on Community law’s specificity, but the real problem is deeper and resides in the jurisdictional limitations to which each court system is subject under the domestic constitutional order. Those limitations often make it difficult for a French court to give full and immediate effect to Community norms as required by the European Court of Justice’s case law. As will be seen, French courts have succeeded in doing so, but only after considerable effort. Their approach ensures Community law’s reception in the French legal system, but its higher status derives from domestic law and not, as required by the European Court of Justice, from Community law itself.
This article tells the story of Community law’s reception in France. It first addresses the constitutional framework for reception (Part I). This framework recognizes the higher status of the Constitution but affords only limited opportunities to challenge the constitutionality of Community norms. The article then describes how the French courts have enforced the higher status of Community law against a subsequent inconsistent statute (Part II). That task has been greatly complicated by constitutional limits on each court system’s competence. Finally, the article addresses the reception of Community secondary legislation, especially directives (Part III). Here the focus is almost exclusively on the Council of State. The Council, while continuing to reject the specificity of Community law and the European Court of Justice’s interpretation of article 189(3) of the Treaty on the direct effect of directives, has largely reached the results required by Community law through the application of traditional techniques of French administrative law.