Panel Discusses European Constitutionalism at WCL
On March 6, 2023, Professor Morten Rasmussen of the Saxo Institute at the University of Copenhagen visited American University, where he presented a lecture on his research on the legal history of European Law.
To prevent future conflict and rebuild European states after World War II, the Coal and Steel Community was instituted by the Treaty of Paris in 1951. As Rasmussen refers, this project sought to strengthen Western Europe politically while simultaneously creating economic growth. This integration project would additionally provide a reconciliation between France and West Germany.
During the same year, the European Court of Justice (CJEU), the EU’s equivalent to the Supreme Court, was formed. Its three main functions are to: “review the legality of the acts of the institutions of the EU; it ensures that the member states comply with their Treaty obligations; and” “it interprets EU law at the request of the national courts and tribunals through a Preliminary Ruling Procedure (Art. 267 TFEU).”1 Moreover, ratifying the Treaty of Rome in 1957 brought together a common market between Belgium, Germany, France, Italy, Luxembourg, and the Netherlands. The incorporation of this treaty furthered political integration by allowing these member states to work towards national interests and common European goals.2 In the process of building the common market, removing trade barriers, and creating a common set of regulations and standards, member states governments and judiciaries could also seek clarification of the nature and impact of community law from the Court.
Soon after the treaty came into effect, the Court was asked to advise national courts on a number of issues. Two early cases, Van Gend en Loos (1963) and Costa v E.N.E.L. (1964), became fundamental in launching a constitutional interpretation of European law. In effect, these cases resembled the Marbury and McCulloch rulings of the early SCOTUS. Rasmussen notes the significance of these two cases due to their particular effects between 1965 to 1993 when the Court and its supporters claimed to have built a proto-constitutional legal order out of what were non-popular ratified treaties through its case law. In addition, despite the CJEU publicly stating that the treaties were now a constitution in its 1986 Les Verts decision, Rasmussen provided evidence that this is an inaccurate representation of European law. Historical background on the member states has provided an understanding of the deep resistance among national courts and administrations, which ultimately indicates reluctance towards the constitutional interpretation of the CJEU first put forward.
By the early 1990s, the Maastricht Treaty (1993) led to notable changes in the way Europe was governed, such as establishing the common currency of the euro, European citizenship and passports, and expanding justice and security policies. Regarding constitutionalization, the Maastricht Treaty gave member states the chance to limit the Court’s jurisdiction to just one of the three ‘pillars’ of jurisdiction created by the treaty.3 In other words, the member states did not accept the Court’s promotion of the idea of a European Constitution born out of the treaties, and the attempt to create an official constitution by convention was rejected in 2005. As a result of this failure, Europeans reverted to the idea of government by treaty. The Lisbon Treaty has governed the European Union since 2007.
Professor Fernanda Nicola of Washington College of Law discussed the missing areas of Rasmussen’s research and areas of future development for this case study. Although existing scholarship includes partial information on political backgrounds, Nicola explained that more research is required on the political law and historical background, specifically between the influence of fascists and anti-fascists on European law. Ultimately, she asserts that this research would further contribute to understanding what led the European Union law to what it is today.
