ABSTRACT
This chapter examines the constitutionalisation of the Treaties undertaken by the ECJ. It presents a view of the Court as a highly politicised, federalising instrument whose decisions have been pivotal to EI. Key rulings of the ECJ have established a ‘new legal order of international law’. An examination of those rulings reveals the construction of a constitutional edifice that approximates a federal or quasi-federal system. Questions concerning the EU’s constitutional progress to date and status are evaluated from interdisciplinary and multi-dimensional perspectives. Central to this discussion is the meaning of ‘constitution’ itself and whether the EU can be said to have a constitution. Taking into account the arguments for and against this proposition, I conclude that the question as to whether or not the constitutional arrangements can be designated a ‘constitution’ is a futile one in the absence of more productive discussion on the functions of a constitution and of constitutional discourse as well as the various dimensions of, and connections to, legitimacy. The Role of the European Court of Justice in Establishing and Advancing the EU ‘Federal’ Constitutional Order Introduction Judges of the ECJ (particularly Pescatore and Mancini) and academics alike have widely recognised the magnitude of the contribution made by the ECJ to the integration of Europe. Shapiro has observed that the ECJ has ‘constituted the European Community’,1 keeping ‘alive the vision of the Community as something more than a trade alliance’ at low points in its history.2 Such observations help to explain and justify the Court’s activism. In a similar vein, Dehousse has stated that the ‘[ECJ’s] contribution has been important – sometimes even decisive – in shaping the trinity of institutional structures, community policies and decisionmaking’.3 Indeed, the answer to the question as to what the EU is today is tied up with one’s outlook on the constitutional status of the Community Treaties and their effects. What is most remarkable about the Community treaties is that they have been transformed into constitutional documents by the ECJ, which has itself
1 Shapiro, ‘The European Court of Justice’, p. 123.
