chapter  12
16 Pages

Defining a constitution for the European Union

It is possible for lawyers to say that the question of whether there is a constitution of the European Community has been answered by pronouncements of the European Court of Justice. In Les Verts 1 the Court described the EEC Treaty as a 'constitutional charter' .2 In its Opinion on the EEA Agreement3 the Court said,

Much has been written on a 'European constitution'5 indicating the importance of the topic, and simply to cite the Court's statements as a complete answer to the question is to duck the issue. All writers agree that the Community has no written constitution, but no legal writer denies the existence of constitutional principles which govern the legality of action at the Community level. The thrust of much of the writing is to draw attention to the constitutionalizing role of the Court of Justice. The absence of a written constitution has been noted by the European Parliament (EP). In 1994 it adopted a Resolution on the Constitution of the European Union,6 which contained a Draft Constitution of the European Union. Among the principles which motivated the Parliament was the need for a constitution which is 'readily accessible and comprehensible to the citizens of the Union'. 7

The Treaty on European Union has been criticized8 as tinkering with the constitutional charter 'in an arbitrary and ad hoc manner which defied ... its underlying constitutional character' _9 The Bundesverfassungsgericht (German Federal Constitutional Court) raised a number of fundamental questions about the constitutional legitimacy of the Union, and its planned development. 10 Those who hoped that the Treaty of Amsterdam would remedy the widely acknowledged 11 deficiencies and complexities will be disappointed. Some aspects of the 'bits and

pieces' criticized by Curtin have been tidied up, but the overall structure remains just as complex, perhaps even more complex with a plethora of opt-ins and opt-outs.