European Commission Delegation Deputy Head Gérard Depayre (Left), European Court of Justice Member Koen Lenaerts (Center) & US Associate Supreme Court Justice, The Honorable Stephen G. Breyer (Right).

REMARKS OF
JUDGE KOEN LENAERTS,
EUROPEAN COURT OF JUSTICE
AND
JUSTICE STEPHEN BREYER,
ASSOCIATE JUSTICE OF THE US SUPREME COURT

TUESDAY, MARCH 29, 2005
6:00 – 7:00 PM

WASHINGTON, DC

Transcript by:
Federal News Service
Washington, DC

MR. GERARD DEPAYRE: -- (In progress) sharp, so let me say a few words of welcome to all of you here and in particular, to Judge Koen Lenaerts from the European Court of Justice and Supreme Court Justice Stephen Breyer. It is a true privilege to host a judge from the European Court of Justice. I don’t think you members of the Court of Justice travel very much. It’s the also privilege to host a United States Supreme Court Justice, but it is an exceptional occasion to host both together at the same time with both discussing an issue that is of crucial importance to the future of the European integration.

But before I begin with introductions, please let me thank Ambassador Franz van Daele and the staff of the Belgian embassy who initiated this event and helped to put it together. Our gratitude. Also I would like to thank the Washington – (unintelligible) – EU Center, Washington, DC, for their sponsorship of tonight’s meeting.

The sequence of events I understand is that Justice Breyer will make opening remarks and he will be followed by Mr. Koen Lenaerts. And then there will be a session for question and answer. Let me just say a brief word about Justice Stephen Breyer, who was first appointed Associate Justice to the United States Supreme Court in 1994. Prior to that, he served as Chief Judge for the US Court of Appeal for the First Circuit, ’90 to ’94. He was a judge for that same court from 1980 to – ’90. He has taught at the College of Law in Sydney, Australia, the University of Rome and Harvard University, where he taught alongside tonight’s guest of honor, Judge Koen Lenaerts. And I found out that Justice Breyer speaks excellent French.

Judge Lenaerts is professor of European law at the University of Leuven and Judge of the Court of Justice of the European Community since October, 2003. He has been Judge of the Court of First Instance of European Communities and a visiting professor of law at Harvard Law School, the University Robert Schuman de Strasbourg and the College of Europe. Welcome to the two of you and without further ado, I will turn the meeting over to our distinguished guest, Justice Breyer.

JUSTICE STEPHEN G. BREYER: I wanted to say a few things briefly. One is it’s really a pleasure for me to be here with Justice Lenaerts. Now why? Because he was actually a student of mine when I was at Harvard. (Laughter.) He may not admit it – I think he does, and that’s good. But, and he went to my seminar and you have no idea how pleased I am, that despite my seminar, he really – (inaudible, background noise.) And it really is a pleasure. And then he came back a few years later, and he taught at Harvard. And then he’s been teaching in Belgium, and then he became a judge at the Court of First Instance. And now he’s a judge of the Court of Luxembourg. So you can in fact, be a professor and later turn out to be a reasonably good judge. Now this to me is very, very encouraging. Now I’m extremely happy to be here because he is here in part.

Now I think I just want to say a couple of things about the Constitution for Americans, and then I’d like to hear what he has to say. And we have a discussion. The reason that I’m so glad to see so many Americans here and particularly Americans who are interested in the judicial part, the legal part, the constitutional part. Why? Because – I’m not a politician, and I can’t tell you too much about the politics of it. I’m certainly not a European politician, and I have a hard time explaining American politics to anyone because I can’t understand it myself. But nonetheless, I am interested in this document as a student of government. Now why?

Well, first there’s something, I think, misleading. And then, something that is not misleading but quite interesting and maybe hopeful. The misleading part, which is only misleading to Americans who are willing to only spend 2 seconds, is that you say, oh, it's the Constitution. See, I thought maybe this was the Constitution. See, I thought, my God, it’s grown even further. I thought, this is bad enough! (Laughter.) Very, very long! And we look at ours, and ours is very short. And we think ha! Well, we’ll be just – well, we won’t say that much about it, but there must be something wrong when they write a Constitution this long. And modesty prevents us from saying it.

And then we proceed with our misleading metaphor, our misleading example, because it is important both to put in our mind Philadelphia 1787 and then not totally remove it from our minds, but at least push it to the side because it is important to begin I think with the notion that in 1787 in Philadelphia 1788, 1789, we had representatives of 13 colonies, 4 million people, all of whom spoke the same language, had the same traditions, had no national government. Really, they had just finished their revolution a few years earlier. They were trying to create something, a document that was going to be a Constitution where none previously existed. And they met in secret. No press.

Important. Why do you think we have in that document that you cannot, you cannot be President of the United States if you are not a natural born citizen? According to my other student, Akia Lamar (ph), he says the reason is because leaks got out of that meeting hole and people began to spread the rumor that the Convention was about to bring over the bastard son of George III who was an Episcopal bishop, an Anglican, and make him king! (Laughter.) And to be – scotch that rumor, they put into the Constitution, and you must be, not a naturalized citizen. I said, I don’t know that that’s still relevant, that reason. But there it is, in that Constitution. You say, stopping Governor Schwarzenegger to this day. But the point of course is private, common tradition, common language, basic objective, moral number of people – we must write a Constitution where none previously existed.

Contrast representatives of 25, maybe 26 nations, representing 350 million people with different traditions, established government, different languages – meeting in public to discuss how, not to create something out of nothing, but to improve and rationalize and bring together a host of existing documents. Now this doesn’t look quite as mysterious as one might at first have thought. I’d say that’s the basic model.

And my second and last point is, why do I find this so interesting? I’ll come back because I really have a point after the last point, but I’d like to get discussion going first. Because we have in government in the United States not found the secret or the last word on certain issues that are common to all modern democracies. One, for example, how are we going to decide which issues in a world that is filled with chemicals, environment, technology, complexity, internet – so complicated. And so technical. How are we going to divide the power to say what between the elected representatives of the people and the technocrats, called administrators, called bureaucrats if you don’t like them? We are, in fact, in a world where they must make decisions. But we are also in a world that treasures democracy. So how do we create institutions that divide that authority between the 2 in a sensible way. Have we found the final word on that? No. You’re trying slightly different approaches. We’ll find out.

Second, how do we control the bureaucrats, administrators who regulate the regulators? Will the court do it in the EU? Will they find a somewhat different method than we have? Will they follow our method? Will you use, for example, a favorite subject of mine, which they won’t like at all, notice and comment rule making? Or how do separation of functions with – oh, I’ll spare you all that. But you see, all, well, look with interest. And so will many of us, to see what solutions they come up with in the European system. How do we divide power between a central governmental organization and the periphery? A woman who is in Naples who says, I hate Brussels is no different from a woman who is in Des Moines who says, I hate Washington. They don’t actually. They, whether women or men, are human. And therefore, they’d like to make all decisions for themselves at the lowest possible area of control. The most local, but also know they can’t. And so, we’re trying to figure out a way as to how to divide authority between the center and the periphery that meets the conflicting desires and the needs of modern democracy.

All right. I could tell you how we have done it or not done it, but I won’t because I think what is interesting about this is how is the European Union now going to try and answer these questions. People are already studying it. They begin to answer them successfully. You’ll have everybody in the world trying to find out how it’s being done. And you’ll tell us. (Laughter.)

JUDGE KOEN LENAERTS: Thank you, Justice Breyer. As a matter of fact, I do acknowledge that I was one of your students. And I do it with great pride. I also acknowledge that you’re one of those on the Supreme Court who are using the comparative method to learn about one’s own system. That reminds us of Goethe, who says, one should know many languages to understand one’s own. That is exactly why I am so glad to sit here tonight on this panel together with you. Connecting with yet another point you raised, that the European Union already has a Constitution, I brought here our handbook of which I shall now publicly give a copy to Justice Breyer. It has as its title, Constitutional Law of the European Union [Koen Lenaerts and Piet Van Nuffel, Constitutional Law of the European Union, London, Sweet & Maxwell, 2005 (second edition)]. That is the present law. If Europe has a Constitution, you might ask yourself, why does it need another one, a document called that way? That is what we have to dig in tonight.

The European Union has a Constitution, that is a number of treaties which are fulfilling the function of a Constitution, organizing the institutions, decision-making procedures, dividing power between the center and the periphery, stating in general ways the protection of rights, and on top of that, you have the case law of the Court of Justice, which has elaborated these texts with a view to making it all work. That is the present constitutional law of the Union. That law is thus spread over a plurality of foundational documents, on the one hand, and it is the outcome of judicial constructs (whose legitimacy is not necessarily accepted by everyone), on the other hand. Some say the latter is judicial activism, making constitutional choices which should democratically be made by a constitution-making body.

How did the “Constitution for Europe,” a single document, come about?

There was 50 years ago the Declaration of Robert Schuman saying that Europe will not be made in a single stroke, but on the basis of concrete achievements creating first a solidarity between the states and peoples participating. (Speaks in French.) You understand that that is to be learned by heart by all my students and by my children because that is so important that one should know it. It was the idea that reconciling France and Germany needed a common project, not abstractly, not with big words, but on things, however limited they were at the beginning, which those Member States were ready to do together as a common project.

And by the way, almost 40 years later when the iron curtain fell, Europe relived such a reconciliation moment between the west and the east. Where these eastern countries which had for 4 decades been left to their own fate and for which the westerns had maybe not done everything they could have in order to free them earlier on from communism, all of that had to be reconsolidated in a single entity. That changed the nature of the Union (which started as the Community). In the cold war context, it was to organize the west vis-à-vis the east, now it was to develop into a political entity/legal order capable of organizing the reunification of Europe rather than consolidating its division.

The piecemeal progressing of European integration on the basis of the Schuman method has achieved great outcomes – the internal market, the single currency, aspects of environmental policy, beginnings of social policy, of foreign relations policy – all of that was sometimes seen as scattered initiatives whose consistency was not necessarily very clear. And then, as I said, the context had changed from a divided Europe to a reunited Europe where the Union was seen as a political entity/legal order not only to bring all the states of Europe together in a single structure, but also to help them consolidate democracy, respect for fundamental rights, socially and environmentally corrected market economies, inside their own borders.

That is why, after the last intergovernmental conference [IGC] of the classical type, leading up to the Nice Treaty, everyone felt that something had to be done in terms of changing the methods of negotiation of Treaty amendments. After 30 years of Treaty stability, you had the internal market project laid down in the Single European Act. Five years later, there was the Maastricht Treaty with new components, such as European citizenship and the single currency. Again 5 years later, the Amsterdam Treaty came with as its main focal point the area of freedom, security and justice. And then the Nice Treaty which was to technically prepare the Union for enlargement, working on the composition of the institutions, adapt their modes of operation in order to make them work with 25 or more Member States.

But at that stage, what had somehow gone lost was the clarity about the deeper sense of the project. Here, I touch on a central point, especially vis-à-vis an American audience. The European Union is not “one nation indivisible” like the US Constitution would say it. The Union is not a nation-state. The Union is not aspiring to becoming a nation-state. The Union is however a polity of states and citizens “united in diversity." The Union is due respect for the national identities of the Member States. That is an express provision of the present Treaty [Article 6(3)], it will equally be an express provision of the Constitution for Europe [Article I-5(1)] in an even more elaborated version.

So the central concern was to identify the added value of the European Union – what can people expect from the Union as a level of government which they can’t expect from the national governments or regional or local governments inside the Member States?

To meet that concern the Laeken Declaration has launched a debate which took place inside the Convention with representatives of the citizens, parliamentary representatives, representatives of the states, governmental representatives, sitting together in a quasi-parliamentary body of constitution-making. The idea being that the people should be reconnected to the European Union. Therefore, the foundational document of the Union was to express very clearly the values, objectives, interests to be pursued in common, values, objectives and interests which give the Union its ultimate legitimacy as a polity. So that people see, in spite of their differences as to language, culture, societal backgrounds, what they have in common, while realizing that they cannot achieve separately what is needed to consolidate the common values, objectives and interests.

To that effect, the Laeken Declaration was not primarily focused on institutional design. It was focused on putting on the table the right questions inside the right forum, the Convention, to make a substantive debate possible as to the kind of Union Europe needs. That is an exercise of democratic deliberation of constitution-making in the substantive sense, rather than a treaty-making process resulting from a classical international negotiation. But that being said, the Member States, at the difference with the United States’ 50 states, continue to be sovereigns in their own right. The Member States continue to be the Masters of the Treaty. They are sovereigns and they can only surrender the exercise of parts of their own sovereignty by bringing it in common through a Treaty, a Treaty that is called upon to fulfill the role of a Constitution. So the Treaty is now properly called a Constitution, and this not because it evokes the idea of building a nation-state. Let me be very clear about this. Those saying that you can’t have a Constitution without having a state contend in fact that the European Union will never have a Constitution since it will never be a (nation-)state in its own right. But I cannot see why Constitution and (nation) state must be linked, in other words why a Constitution cannot be the substance of a Treaty.

The Constitution for Europe is the reflection of the kind of polity it is intended to structure. If you have a Constitution of a centralized state, then, of course, you can have a short Constitution because you don’t have to organize a multi-layered composite structure. If you take, on the contrary, the Belgian Constitution, that is including all the constitutional laws specifying the division of competence between the state and its component entities, it becomes a rather heavy document. And a complex document also going into details about various policy areas. So also for Europe, the Constitution is in the end a contractual Constitution, but it is a real Constitution both as to its substance and as to its origin.

First as to the substance, it addresses all the elements that need to be there in order to organize the exercise of public authority within the newly established polity, i.e., the institutions, the decision-making procedures, the division of competence between the center and the periphery, the Charter of Fundamental Rights, including several social rights expressing the proper identity of the European social model (it goes further than the American bill of rights). And then, in a very detailed fashion, for all the areas of policy entrusted to the Union, the exact scope of what the Union can do, is indicated.

In that respect, you cannot simply list subject matters. You cannot simply say education, culture, environment. That doesn’t work for Europe. But if you say education with a view to promoting mobility of teachers and students or to a number of other specific objects to be reached inside that field, the same being true for consumer protection, for public health, etcetera, then the precision is reached which Member States need, to be ready to surrender the exercise of parts of their own sovereignty. That is why Part III of the Constitution for Europe is so essential, although some see it almost as an appendix to the “real” Constitution, that is Parts I and II of the Constitution.

You can see a trace of that thinking in the fact that Part I doesn’t bear a title. Then the Charter of Fundamental Rights is in a way attached to that (Part II of the Constitution). Thereafter comes Part III, entitled the “policies and functioning of the Union.” This latter part was seen as an elaboration, a sort of implementing laws almost. However, as a judge on the ECJ [European Court of Justice], I know for sure that we will especially have to do with Part III because all the competence conferring provisions are in that part stating per policy area, very specifically, the objectives to be reached, the means authorized to be used, the means prohibited – although they would be effective to reach the objectives – express limitations to the conferral of competence, the decision-making procedures, and the normative instruments which are being allowed.

It’s all there. That is the global balance of power of which Justice Breyer already spoke. Again, it has been established in a contractual way because states only confer competence to the Union within exact limits which they can understand. In case of doubt, the Court of Justice is to draw the lines like the Supreme Court would do in the US federal system. But Europe cannot simply suffice with a commerce clause. Why can it not? Because the Member States, as Justice Breyer said, have long traditions of their own, have their own identities which must be respected by the Union, have their governments age old, have their sovereignty status as a Member State which will remain also after the Constitution for Europe, and that is why the balance of power is so delicate.

In short, this is a Treaty establishing a Constitution. The Treaty is an instrument by which sovereign states bring in common the exercise of parts of their own sovereignty. The Constitution is the substance of the document which they have made together. And it’s extremely important that the Member States recognize that they expect that document to fulfill the same function as they expect from the similarly named document inside their own legal order. So it’s not an innocent choice of name to designate the substance of what they have made in common.

Second, as indicated, there is the origin of the document. The document came not solely anymore from the diplomatic negotiation table. It came from a transparent, quasi-parliamentary assembly in which there was deliberation connected to the internet, so to speak, with an openness unseen before. And this is normal because it was a real societal debate as to what the citizens and their states expected from Europe as a single re-constituted level of government. Indeed, nowadays the Union is governed by different legal regimes – the Community regime, the intergovernmentalism of the Common Foreign and Security Policy and, to a lesser extent, of police and judicial cooperation in criminal matters. These regimes are now being brought into a single text, a text expressing the choices made by the citizens and their states in the Convention. So, the origin is worthy of a democratic process of constitution-making.

As a result, the Union will be a single entity with legal personality. Today there is a Union without legal personality, coexisting with Communities with legal personality. There is a risk of lack of consistency between Union actions outside the Community framework and within that framework. That problem should soon belong to the past. I take as an example police and judicial cooperation in criminal matters, that is the so-called third pillar presently. The Constitution for Europe places it under the ordinary legislative procedure; that is under the Community method, meaning qualified majority voting in the Council, full bicameral co-decision of the European Parliament. That’s not so different as between the Senate and the House here, including a conference committee in case they can’t agree on a single text, with the difference that we call it a conciliation committee. But the perspective is the same. The ordinary legislative procedure involves the chamber of the citizens, the Parliament, the chamber of the states, the Council, with a conciliation committee if need be.

Next, foreign policy, the so-called “second pillar.” It will be fully integrated in the Union framework together with all other aspects of Union action in the external field. Those are the common commercial policy, development aid, humanitarian action, the conclusion of international agreements, the representation of the Union. The very place where I am now speaking is called the Delegation of the European Commission. With all due respect, what is this? How can you be the delegation of an institution rather than of a legal entity? But this is not possible as long as the Union has no legal personality. So foreign policy will be fully integrated in the global external action of the Union that is now spread over the Community pillar and the second pillar.

The Union Minister for Foreign Affairs will represent the Union for the foreign policy in the strict sense, called the Common Foreign and Security Policy, including defense matters to the extent that the Union is dealing with them. But at the same time, that foreign minister is to be Vice President of the [European] Commission and to coordinate what are today the Community parts of the external action of the Union, such as development aid, humanitarian action, external aspects of the several areas of Community policy. So it’s extremely important that as Vice President of the Commission this foreign minister will coordinate the work of all commissioners involved.

An attempt has been made to combine the Community method of supranational decision-making and external representation in those fields of external action which traditionally belong to the Community, with classical foreign policy which is still in the hands of the Member States who remain members of the United Nations, sovereign in their own right, doing together what they want to do together by consensus basically. And when they can’t reach full consensus, they still may reach consensus among a critical mass of Member States so that all accept that the Union acts as such.

The Minister for Foreign Affairs is to boost the chances that consensus will actually be reached, so his task is not just a matter of implementation and representation if and when consensus is reached. The existence of his office should make it more likely that consensus will be achieved or at least consensus will be achieved among a sufficient number of Member States so that the others who are in a minority will, as we say, constructively abstain. They will not block the others to go forward under the banner of the Union, in the foreign policy action.

The Constitution for Europe organizes the institutions, decision-making procedures, the division of competence between the Union and the Member States, integrating all the actions of the Union into a single structure, based on the present Community method of decision-making and judicial enforcement (except the Common Foreign and Security Policy). Presently this is not the case for police and judicial cooperation in criminal matters. When a Member State is not transposing the European arrest warrant framework decision, no infringement proceedings can be brought in the Court. After the Constitution, the matter will be dealt with in the same way as when today a Member State is not transposing an environmental directive into national law. That’s a concrete example of where technique can make the difference.

And then lastly, as Justice Breyer already indicated, there is the issue of organizing the powers at the Union level itself. Indeed the Constitution has made a major leap forward in organizing the trias politica, well known to an American audience in the form of the distinction between Articles 1, 2 and 3 of the US Constitution. Congress shall have the legislative power, the President the executive power, the Supreme Court and such lower courts as may be established the judicial power. Well especially the split between legislative and executive powers has been taken care of in the Constitution for Europe.

The Convention responding to the Laeken questions has worked very hard on that. Why? Because beyond the distinction between legislative and executive acts lies the distinction between legislative and executive decision-making procedures, which imply differing requirements or needs in terms of democracy. Representative democracy is at its height for legislative choices, that is, the basic policy choices to be made by elected bodies in a particular field, policy choices directly based on a concrete Constitution article serving as their legal basis. Once those choices made, it is necessary to make them work in the field. For that, the perspective shifts from an input legitimacy question to an output legitimacy question. That’s what I learned almost 30 years ago in Justice Breyer’s regulatory process course. You need effective outcomes. The Constitution tries to achieve them by putting the Commission very clearly in the pilot seat of the executive process. Making it adopt so-called delegated regulations which are to put into effect the laws and framework laws adopted, pursuant to the ordinary legislative process, in a bicameral setting between the Council and the Parliament except for a very small number of (important) matters which were too sensitive for the Member States to give up their veto.

As I said, except for these matters, the ordinary legislative process will apply generally, also to matters which from the beginning belong to Community competence and were not yet subject to it. A first example concerns the Common Agricultural Policy [CAP] which is taking up 40 percent of the Union’s budget. Today the Council decides by a qualified majority and the European Parliament has just the right to be consulted, not to co-decide. The national Parliaments have no direct input either. Where then is parliamentary democracy for legislative acts in this field? Yet, combining the needs of agriculture and the environment is a concern in this country, it is equally a concern in Europe. That’s a societal debate. Health safety, food safety requirements – it’s a societal debate. All of that is done outside the bicameral decision-making now.

Another example relates to the common commercial policy, defining the position of the EU vis-à-vis the World Trade Organization. Today, the Council decides by a qualified majority – the Parliament, under the Treaty, has not even the right to be consulted. Under the Constitution the ordinary legislative procedure will apply, and when international agreements are concluded, the Parliament will have to ratify them, just like here, where a two-thirds vote in the Senate is needed. There must be a parliamentary involvement. It will be organized. These examples show that the concern for democracy and legitimacy has been very real. I think that is something which must be underscored.

Together with the inclusion of the Charter of Fundamental Rights, a clear definition of the values and objectives of the Union, such as solidarity between rich and poor, environmental protection, consumer protection, protection of services of general interest – all of this is put forward as societal choices which Europe is to care for within its internal market operating as an area without internal frontiers, with a single currency, an area of freedom, security and justice. All of that is the choice which is made substantively in the Constitution for Europe.

But it remains a Treaty. Also in its amending procedures. To me, that does not take away from the characterization of the document as a Constitution because this is not a Constitution for a nation-state. This is a Constitution for a polity of citizens and states, respecting one another’s diversity and identity, a polity united in its diversity and having its foundational document organize that unity in diversity.

Let’s come to the ratification. The people must now pronounce by referenda or through their representatives in parliamentary votes, and I can’t see in a crystal ball what will happen. But I do know what the terms of the debate are. The terms of the debate are not those often believed them to be, that is, a choice for or against Europe. You like Europe, so you vote yes. You don’t like Europe, so you vote no. Somewhat provocatively, I would almost say, it should be the other way around. You like Europe as it is, you should vote no because then you maintain what exists. If you don’t like Europe, you should certainly vote for the Constitution because it is making things clearer, more transparent, more democratic. The Constitution is precisely meeting to the extent achievable this time around major concerns which are not met in the present set-up.

When people vote no to the Constitution, they effectively vote yes to the present Treaties on which the Union is founded because the Treaty establishing the Constitution is repealing the Treaties on which the Union is presently founded.

You can’t be serious saying, I love it to have a plurality of Treaties, which I can’t really understand. I love it to have some legal persons, the 2 Communities, and an entity without legal personality, the present Union, because I like some confusion. And I love it not to have a Charter of Fundamental Rights because that’s a matter better left to judges to work out. And I love it not to be totally clear on who does what in terms of the power balance. Then I can read smart, thick books or law review articles on the subject. I prefer that genre of writing over a Constitution which risks to be too clear. You can’t be serious about that. I think we should explain that a single Union with legal personality, having a Constitution in the substantive sense, in spite of all the steps not taken in it which could have been taken, is a strengthening of democracy and the rule of law aiming to promote unity in diversity.

I thank you.

(Applause.)

MR. DEPAYRE: All right, Justice Breyer may want to make some comments before we give the floor to the audience.

JUSTICE BREYER: I’ll put 2 questions, which are not – in both respects the Constitution is probably an improvement on the status quo, but still, I want to know where it’s going in respect to each of these areas.

The first question that I think is finessed, or not dealt with, really, is pretty basic. That is, in most – in all European countries, and in the United States, when we go to vote for the President of the United States, or you vote for a Prime Minister or political party, you’re really voting on the basis of 2 things, if you think about it: one, is what legislative program has this party initiated and gotten through, or not; and two, how good a job has this party done at controlling the people who really control our lives, namely all the administrators who want to write the rules and regulations about the size of lawnmower blades and what’s on television and how much you have to pay and so forth, because it is the job of the elected government to control the latter and promote the former.

Very well, what’s the European, what does the European Union want to do about that, because the logical thing is not that you say, we have a senate, i.e., the states, and we have the Parliament, because with maybe limited exceptions they neither initiate legislation nor do they control the bureaucracy, with some exceptions. Primarily the people who do are called the Commission and the Commissioners and the President of the Commission.

Now, it would have taken, and it would still take, very little for the Parliament to say, we will turn the President of the Commission into a Prime Minister, because we will not ratify any person proposed by the Council who isn’t the person whom we suggested to the Council. That could do it. But Article 25 says the Commission should be independent, and the origin of the Commission is that it represented the spirit of the Community, which didn’t really mean the elected representatives of the Community. So here have enormous power being given to the bureaucracy and the power to initiate a legislative program. Well, will it be done democratically or won’t it?

Second question: you have in this document enormous bills of rights. Now, when I see something this long, as a lawyer I think, who are the people who are going to decide what those words mean? (Laughter.) Mm-hmm, exactly – a nice group of people, underpaid but serious. (Laughter.) Now, there you are, judge. And I say that a lot of the argument going on comes out of the Brits’ reading a right, for example, such as the right not to be dismissed without cause. Well, that’s fine, they’ll say, for France and Germany, who’ve long had that, but we use labor courts, not constitutional judges, to decide whether there is cause or not, and we’re afraid that there will be a lot of litigation, if we want to rationalize our industry for example, where people will say, you haven’t paid enough attention to the labor effects, and who will decide how that’s to be interpreted? Who will decide how all of these provisions are to be interpreted? Who will decide if the language you quoted about education is broad enough to allow the Union to do almost anything, like our Commerce Clause, which if you read it seems narrow too, but it certainly wasn’t, because the judges got a hold of it.

And who can control the judges? Unlike this system, the United States, where Congress can pass new statutes and overturn our statutory decisions, or two-thirds of the Congress plus three-quarters of the states can overrule our constitutional decisions; no one can overrule you. And moreover, you are now 25, with a large number of different languages, all right?

So my first question: what are you going to do about democracy in the Commission? How do you see it evolving? My second question: what are we, if anything – “we” being the great “we;” who knows who “they” are? – but what do they do about you? Is it okay? Will your court work out all right? Suppose you make a mistake how you change the Constitution?

MR. LENAERTS: Thank you for the questions. First of all, the Commission. For time’s sake I’ll go short and straight. The Commission is to be compared to the Swiss government. No, no, but I’m serious. (Laughter.) The idea is that the Commission has, as its principal role, to be, as we now say, guardian of the Treaties, and as we will say after the Constitution, guardian of the Constitution. It has an ambivalent role. It is clearly not just representing a majority, as in a classical parliamentary system. A former Commission President Jacques Delors said that the Commission is not just an executive resting on a majority of the Parliament; the Commission must be able to operate as a broker of conflicting interests between big and small Member States, between richer and poorer regions, between different political groups in the European Parliament, etc.

I can illustrate that with two concrete examples. First of all, when a Member State is not complying with its obligations flowing from Community law, the Commission has the initiative to bring that Member State to the Court in Luxembourg. Suppose you have a red-green coalition in a Member State while the Commission rests on a conservative majority. If the Member State adopts environmental legislation which is said to have a negative impact on the free movement of goods – let’s say packaging of beverages; that’s a classical example – and the Commission were to take that Member State to court, the whole thing would be perceived as conservatives against socialists/greens. It would be seen as a political debate between 2 opposing majorities, one at European level and one at Member State level. That would also put the Court of Justice in Luxembourg in an awkward position as it would have to decide what is openly seen as a clash of 2 political approaches, and this in the face of relatively open-ended Treaty texts on free movement of goods, on environmental protection and so on.

That is not desirable and explains why, from the beginning, the idea has been that the Commission must have the confidence of all. But I recognize that the Commission is also an executive taking implementing measures, which leads to the call for legitimizing the Commission in the more classical way of parliamentary democracies, that is resting on a majority in Parliament.

It’s a mixture. Yet I promised you a second example. It relates to the European Union equivalent of the conference committee between the House and the Senate in the US, that is the conciliation committee trying to bring together a qualified majority in the Council and a majority in the Parliament. The Commission is the mediator, the broker. If the Commission were to be seen as only having the confidence of a majority segment of the Parliament, it would be very hard on an ad hoc basis to negotiate majorities which are changing all the time. For that role also, the Commission must have the confidence of all the stakeholders.

When I made the sort of playful allusion to the Swiss government, there is something rather serious about it. Switzerland is a small country but it is composed of 4 languages, of several religions, of very strongly held local identities in the several cantons, but at the same time there is a rather strong feeling of belonging to the Swiss Confederation. Switzerland has a system in which the government is the reflection of all the political groups of the Parliament, with of course the stronger groups being more heavily represented. That is, in a way, the option taken by the Constitution for Europe and by the present Treaties, that the Commission has the confidence of all. I agree that the moment of electing the President of the Commission is crucial for the Parliament. There, it can develop its prerogatives. If the Parliament were to say in a resolution that it wants the European Council to consider certain candidates, I can’t see any firm textual argument not to do so.

So there is quite a bit of stronger politics possible even under the present Treaties. Upon reflection I think the present system looks like the best we can get, and analogies with state models are dangerous here. That being said, it must be a point of constant attention that the Commission does not remain without parliamentary and other forms of effective oversight. I think there is nothing wrong in terms of Commission independence with the fact that the Commission should at all times be backed by all the stakeholders in the composite legal order.

Then your second question, which is of course fundamental, that is the question whether the Court of Justice interpreting the Charter of Fundamental Rights or the competence-conferring provisions – like the United States Supreme Court does since the landmark case of Marbury versus Madison – can somehow be controlled. It is the monopoly of the Court of Justice to decide on the legality of acts adopted by the Union institutions. That’s a mere practical need, like one famous law scholar, Charles Black, has said in this country: you can’t imagine the federal system without having a central court as the umpire of the lines drawn by the Constitution.

The Court drew that competence for itself from the system of the Treaty, reflected in the preliminary rulings procedure, the fact that the Commission can bring Member States to the Court, the fact that only the Court apparently has the power to annul or invalidate acts of the institutions. From these discrete provisions, the Court inferred the system of the Treaty resting on the Court having the last word within that system.

Now, national courts know very well that if they were to claim for themselves the last word, there would be 24 other Member States’ courts having the same right.

That is why, although the Bundesverfassungsgericht and also the Danish Højesteret have already, in obiter dicta, included language to the effect that if the Court of Justice were to manifestly transgress the line, which they concede has not yet happened and is very unlikely to happen, then they might still, on pure conceptual grounds, have the power of review.

But as a practical matter, there has never been a problem of real tension. There has been more disobedience in the formative decades of this country on the part of the Virginia courts than ever seen in Europe. (Laughter.)

That being said, as to all interpretations by the Court of regulations or directives, it’s just like in the United States: the bicameral legislator (Council/Parliament), on the initiative of the Commission, can do exactly the same vis-à-vis the jurisprudence as Congress can do vis-à-vis statutory interpretations given by the US Supreme Court, and they do. If the Commission is very dissatisfied with the way the Court reads a regulation or a directive, it takes an initiative to have the Council and the Parliament change the text. That is not a blame for the Court; that’s the normal legislative process.

And by the way, almost all IGC’s having led to recent Treaty amendments have produced one or another protocol or even amendment of a provision of the Treaty to somehow overturn or at least nuance very strongly an earlier judgment of the Court. And that can be done because that is the normal process of constitution-making.

So I think the Court really is not without political oversight to the extent that the correct procedures are being followed.

MR. DEPAYRE: Well, I see our coordinator indicating that we are pressed for time, but still I would think that we have time for a few questions from the audience. So, please, could you stand up and identify yourself?

Q: Knox Thames with the Helsinki Commission up on Capitol Hill. Thank you for coming today, sir, and for your talk. Two questions. One, looking into your crystal ball, what will be the impact if the ratification does not go through? How will this change the day-to-day work of the Union? Obviously the Union won’t go away. What do you think the psychological impact will be?

And second, do you ever envision a day when the ECJ will take individual complaints, much like the European Court of Human Rights does, under the Council of Europe system?

Thank you.

MR. LENAERTS: The first point you raise is: what happens if the Constitution is not ratified? Well, in the immediate, strangely enough, nothing because, as I said in my talk, the present law will remain without further ado. And as I said, Part III of the Constitution is, to a large extent, the rewording, sometimes literally, of the present Treaty. So the Constitution in a substantive sense will remain spread over many Treaties, and the Court will continue doing its work; that is, uphold the law, as set out in Article 220 of the EC Treaty, in interpreting and applying Community law.

So I think legally and politically it will continue as today. Maybe some of the mechanisms of the Constitution can be politically anticipated even inside the legal framework of the present Treaties. For instance, much of what is written about the Minister for Foreign Affairs could already, to some extent, be achieved under the present Treaties. That needs further legal research, but it is not impossible to do that.

What is now the psychological blow? That’s really, I think, the crux of your question. There I’m not so sure since the people voting against the Constitution have themselves the impression that they vote against Europe. In a way, we resubmit also whole chunks of the existing law to ratification, because, as I said, it’s literally there in Part III of the Constitution. The Constitution is a single document with its 4 parts. Some political scientists especially are now saying this is a dangerous operation because in fact you are now asking for a vote on the acquis communautaire, which in any event will continue to be binding. That is a delicate point. I think it will be digested as life goes on. I can’t say much more about it. But, of course, we will see first what happens throughout the ratification process.

As to your second point relating to access to the Court, I think there is a slight misunderstanding. The individual complaint, as it exists in the Strasbourg Court, exists since much longer in the European Union. That is why the Court of First Instance, of which I was a founding judge, was established in 1989, because there were so many cases brought by natural and legal persons, not just Community nationals, claiming to have been affected in their legal position by acts of the Community institutions. Think of the competition cases or the cases about access to documents: e.g., American journalists wanting to get access to the files of the Commission. You don’t need to be a Union citizen for that. It’s a very open structure of government, and if you don’t get what you want, you can come to the Court of First Instance to seek the annulment of the decision refusing access. If you win in court, you will get access.

It is true, of course, that you cannot, without any further requirements, bring a case to court, but that is the normal standing to sue case-law, which also in this country – if, again, I remember the classes on administrative law 28 years ago – is an extremely difficult part of the law. That’s no different in Europe. And the criteria may differ a little bit. I was teaching precisely on that topic at Ann Arbor, Michigan, last week. It is a difficult point, indeed.

The Constitution for Europe is widening the access further. I think that the Court feels that it has about reached the limits of what is possible in terms of access of private citizens to court under the terms of the present Treaties. In case of non-ratification of the Constitution we might somehow touch the ceiling of what is possible.

MR. DEPAYRE: Do we have the time for one more question?

MS. SIEG: I’m afraid we probably need to wrap up.

MR. DEPAYRE: Okay, one more question.

MS. SIEG: Okay.

(Laughter.)

Q: Thank you. Given that if the Constitution passes in each State, and given that each Member State still has a level of sovereignty, what would happen in an extreme case if the state wanted to drop out of the Treaty? Would that be legal, and would there be a force, potentially even military force, to keep a state within those treaties?

MR. LENAERTS: No, we will not send the national guard to Rhode Island and Providence Plantations if that is the question. (Laughter.) I can be extremely short, it’s Article I-60 of the Constitution. The right of withdrawal has now been expressly stated.

MR. DEPAYRE: Okay, last last question. (Laughter.)

Q: I don’t probably need a microphone. (Inaudible.) I was wondering if you can actually touch on the expansion really which is there, the new threshold under Article 365 for business litigants, private litigants? And also how you see – (inaudible) – probably is going to come up – (inaudible) – of whether or not the Charter of Fundamental Rights, which only protects against EU laws and not – (inaudible) – laws. Will that new citizen’s initiative, which can bring legislation in, is that something – (inaudible)?

MR. LENAERTS: First, Article III-365. That article echoes a judgment of the Court of First Instance, in which I’ve been operational. It concerned a case where the Commission had taken executive measures with a general scope of application. The Commission measure was based on a legislative measure. So you see the hierarchy of norms come into play. It is legal tradition common to the Member States in such a case to offer access to court, if such an executive measure with a general scope of application is taking away rights from you or imposing obligations on you without any further implementing measures being needed to that effect. In this context the Court of First Instance had expanded somewhat the notion of individual concern, which appears in Article 230 of the EC Treaty as the threshold of admissibility, construed restrictively by the Court of Justice since the Plaumann case [case 25/62 Plaumann v. Commission (1963) ECR 95, at p. 107]. The Court of First Instance said that was no longer in line with what a Community based on the rule of law, having at its disposal a complete system of legal remedies, needed to have the legality of acts of the institutions checked, because in the setting described that often meant that an affected private party had to breach such an act first before getting access as a defendant to national court where it could then contest its legality.

This was May 2002, the time when the Convention on the Future of Europe had just been launched. There was the place to fill the gap in the system, a gap because the affected private party could not get, as an applicant, into national court because there were no national implementing measures needed, as I said. And it did not get into the Community court either because the act by which it was affected being of general application it had to show that the act was, if it were, just addressed to it. That is impossible to prove for an act of really general application.

So the Constitution for Europe, in Article III-365, fourth paragraph, takes over that particular case-law. The Constitution could do so because it had introduced the distinction between legislative and executive acts. When an executive act is of general application and it concerns you directly in that it is taking away rights from you or imposing obligations on you without there being a need to that effect for any further implementing measures, you have direct access to the European Court in Luxembourg to ask the annulment of that act.

Yes, that’s a very important development, and it would be a shame if the Constitution is not ratified because this is a gap in constitutionalism, in the rule of law, which is being filled; it could have been filled even a bit more completely, but the Convention didn’t get any further. And so I’m very satisfied with at least the major part of the gap which could be filled.

On the Charter, that’s a different debate, I think. You say it’s only applicable to European laws, not to national laws; well, it’s more complex than that. It is applicable to national laws when they are within the field of substantive Union law, and that’s a matter of interpretation for the Court when appropriate jurisdiction is being exercised. I can’t say much more about it, given the time pressure. That would be a separate talk.

MR. DEPAYRE: Well, thank you. Being in a hurry – (applause) – being in a hurry doesn’t preclude us from thanking profusely our two speakers. It was an exceptional occasion and we thank you very much.

MR. LENAERTS: Thank you.

(Applause.)

(END)