The term "constitutional court" is often associated with a specialised tribunal whose jurisdiction is limited to constitutional issues. Perhaps most typically, its tasks include judicial review of legislation to ensure its conformity with the constitution or other fundamental law; and in particular to ensure the observance of fundamental rights. More generally, it may also adjudicate in disputes over the respective powers of the organs of the State. Where, as in a federal system, power is divided between central authorities and those of the component States or regions, the respective limits to the powers of those authorities will also be considered a constitutional issue.

Responsibility for adjudicating on issues such as these, however, is not always conferred on a specialised constitutional court. Although many of the countries of Central and Eastern Europe have introduced a constitutional court, for reasons which might be understood in part in the light of their recent history, many Member States do not have a constitutional court. In the United States, which provides early examples both of a system providing for judicial review of legislation ("constitutional review"), and of a developed federal system, it is significant that no specialised constitutional court in this sense exists. The U.S. Supreme Court may, independently of its constitutional role, also act as a final court of appeal in cases which raise no specifically constitutional issues. Indeed that Court has a remarkably wide jurisdiction, being the highest court in the federal system and also having appellate jurisdiction in cases involving federal law that arise in the State courts.

In the Community, the Court of Justice is not of course a specialised constitutional court. It is a court of general jurisdiction in all fields of Community law. Its function is broadly described in Article 164 of the EC Treaty as being to ensure that in the interpretation and application of the Treaty, the law is observed. The various heads of jurisdiction are then spelt out, but the practical effect of the Treaty provisions is to confer upon the Court responsibility, within the sphere of Community law, not only for what might be termed constitutional issues but also for ensuring uniform interpretation of Treaty and of Community legislation, a task analogous to that assumed in other legal systems by final appellate courts.

In many respects the Treaty itself does not have the character of a constitution. It does, it is true, contain a number of provisions having a constitutional character, such as the prohibition of discrimination on grounds of nationality, the articles on the fundamental economic freedoms, and an embryonic duty of loyalty analogous to the principle of Bundestreue. On the other hand, many of the general provisions usually found in national constitutions are lacking: in particular, the Treaty does not contain a comprehensive catalogue of fundamental civil and political rights; such a catalogue would not have been considered necessary in the Treaty as originally conceived. Moreover, the Treaty contains many provisions which would not traditionally be regarded as being of a constitutional character, such as substantive rules on competition and State aid.

Nevertheless the functions performed by the Court through its various heads of jurisdiction include some which have an unmistakably constitutional flavour, in particular demarcation of the competences of the Community and of the Member States, review of compatibility of Community legislation with the Treaty, demarcation of the competences of the Community institutions inter se and - by the Court's case-law, with no clear Treaty basis - protection of the fundamental rights of individuals. Such issues, however, do not correspond to particular heads of jurisdiction but can arise in different guises within the various categories of proceedings.

That is one reason why it is difficult to conceive of a separate constitutional court within the Community legal system.

This paper is not intended to provide a survey of the Court's case-law in those areas.¹ Instead I wish to focus on certain aspects of the Court's general approach which are particularly relevant to its constitutional function.

A characteristic feature of the Court's approach is that it employs the case-law method of developing Community law. The twin doctrines of direct effect and supremacy, principles of fundamental importance to the Community legal order, are early examples of that process. In some quarters such developments have led to accusations of undue activism. However, as the German Federal Constitutional Court itself noted in Kloppenburg:

"... it was the intention of the Member States to provide the Community with a Court which would ascertain and apply the law by methods developed over centuries of common European legal tradition and refinement of law. In Europe the judge was never merely `la bouche qui prononce les paroles de la loi'. Roman law, the English common law and the German Gemeines Recht were to a large extent the creation of the judges in the same way as in more recent times in France, for instance, the development of general legal principles of administrative law by the Conseil d'Etat or, in Germany, general administrative law, a large part of the law of employment or security rights in private-law business transactions."

The emergence of the protection of fundamental rights as a general principle of law is another example of particular relevance here. Although the original text of the Treaty contained no references to fundamental rights as such, the development in the activities of the Communities has led the Court to conclude that in the exercise of their powers the Community institutions are bound by the principle of respect for fundamental rights, in much the same way as are the authorities of the Member States under their own constitutional provisions. Moreover, in its more recent case-law, the Court of Justice has applied similar principles to the review of measures taken by the Member States when acting within the field of the Treaty.

The principle of respect for fundamental rights is however only one illustration of the "general principles of law" to which the Court has resorted both in interpreting Community provisions and in assessing their validity. Other such principles include the principle of non- discrimination, which the Court has extrapolated, from specific references in the Treaty, into a universal principle; and the principle of proportionality, which has served as a yardstick of general application, applied both to the Community authorities and to the authorities of the Member States, to test the necessity and appropriateness of any measure imposing burdens on the individual.

The fundamental character of such principles is evidenced by the fact that they prevail over any measure, from whatever source it originates within the legal hierarchy (unless perhaps it is a Treaty provision), and by the fact that they apply both to Community measures and to national measures implementing Community provisions. Their applicability across the entire spectrum of the Community legal system would seem to justify their being regarded as constitutional principles. Moreover, they have proved to be a fertile source of grounds for controlling Community action, a particularly valuable source given the absence of detailed guidance in the Treaty - particularly Articles 173 and 177 - of the grounds of review.

In developing such principles the Court has been inspired by national legal traditions, although the Court does not generally identify the source of the principles which it has developed in this way. The notion of "general principles of law" was itself derived from French administrative law. It is widely thought that the principle of proportionality was derived substantially from German law; the principle of respect for legitimate expectations perhaps from French and German law; the right to a hearing (audi alteram partem) from several systems including notably English law. ² But although the Court is clearly influenced by particular legal systems, those principles often embody widely shared values.

Since the Court is drawing on common legal traditions it does not feel constrained to apply the principle in any preordained way. Thus the Court does not always, for example, articulate the principle of proportionality in the particular form advocated by German theorists; on the other hand the principle is sometimes applied more effectively than, for example, the notion of reasonableness in English administrative law.

Other principles may be more fully developed in Community law, having regard to the needs of the Community legal system, than they are in German law or French law. For that reason, among others, it is widely - if not universally - understood that Community law cannot be approached from a purely national law perspective or criticised on the ground that Community law does not provide for exactly the same system of protection as a particular national system.

A second feature of the Court's approach of particular relevance here has been its determination to ensure a complete and effective system of remedies. The Court has been ready to fill gaps in the system of judicial remedies established by the Treaties in order to fulfil its task of ensuring that "the law is observed". ³ In Les Verts v European Parliament ⁴ the Court emphasised that the European Community "is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty". The Court considered that the Treaty established "a complete system of legal remedies and procedures designed to permit the Court ... to review the legality of measures adopted by the institutions". ⁵ Faced, in an action brought against the European Parliament, with the fact that the Treaty did not at that time provide for such an action (Article 173 then being limited to review of the legality of acts of the Council and the Commission) the Court held nonetheless that an action for annulment did lie against measures adopted by the European Parliament intended to have effect vis-ŕ-vis third parties. ⁶ Similarly, the Court accepted that proceedings for judicial review could be brought by the European Parliament, notwithstanding the contrary indication in the text, but only for the purpose of protecting the Parliament's prerogatives. ⁷ On both points, the solutions adopted by the Court were found politically and constitutionally acceptable to the extent that they were subsequently incorporated into the EC Treaty by the Treaty on European Union.

The Court's reference to the Treaty in Les Verts as a "constitutional charter" has a particular significance here. The Court's approach was based on the need to see the Treaty provisions in the light of the Community's development. Thus the Court expressly justified its decision on the ground that, when the Treaty was drawn up, the Parliament did not have powers whose exercise called for judicial review. This dynamic interpretation of the Treaty is an approach characteristic of the interpretation of a constitutional text, which by its nature cannot readily be amended, and which therefore calls for a more flexible approach to interpretation than would be appropriate in the case of ordinary legislation.

The Court has been particularly concerned to ensure adequate protection of the rights of individuals. Access to justice for individuals in European Community law involves access not only to the Court of Justice and Court of First Instance, but also - perhaps indeed primarily - to the national courts. In 1963 in Van Gend en Loos ⁸ the Court stated that the Community constitutes a "new legal order" that confers rights on individuals. Ever since then the Court has consistently held that Community law creates rights "which national courts must protect", but the content of that principle has been progressively developed. That development can be seen in a triad of cases: Johnston v Royal Ulster Constabulary, ⁹ UNECTEF v Heylens ¹⁰ and Factortame I. ¹¹

In Johnston the Court ruled that the principle of effective judicial review laid down in Article 6 of the Equal Treatment Directive¹² reflected a general principle of law which underlay the constitutional traditions common to the Member States and was also laid down in Articles 6 and 13 of the European Convention on Human Rights. The Court accordingly held that a statutory rule allowing the issue by a Minister of a conclusive certificate declaring that a measure was taken for the purpose of safeguarding national security or protecting public safety or public order could not be upheld so as to exclude judicial review of the matter, since this would be to deprive the national court of effective judicial control of the decision to issue the certificate. Notwithstanding the certificate, the national court must examine whether the rule had been made for the purpose of safeguarding national security and protecting public safety.

Another aspect of the same fundamental requirement of effective judicial review is illustrated by the decision of the Court of Justice in UNECTEF v Heylens ¹³ holding that the French Minister for Sport must give the reasons for refusing to register in France a coach qualified under Belgian law to be a football trainer. Freedom of movement and free access to employment are guaranteed by the Treaty of Rome to nationals of Member States. The existence of a judicial remedy against the decision of a national authority refusing the benefit of those Community rights was essential. Effective judicial review, which must extend to the legality of reasons for a contested decision, presupposes that the individual may require the competent authority to notify the reasons for refusing him the benefit of his Community rights. There was therefore a duty on the French minister to tell Heylens why he had been refused permission to work in France.

In the third case, Factortame I, a reference from the House of Lords in R v Secretary of State for Transport, ex parte Factortame and Others, the Court made it clear that the principle of effective judicial protection may require national courts to review all legislative measures and to grant interim relief, even where - as was the case in the United Kingdom - they would be unable to do so under national law.

Community law may even require national courts to grant a remedy where none is available under national law. A striking illustration is the well-known Francovich case, ¹⁴ where the Court established the principle that a Member State may be required to make good losses caused to individuals arising from the failure to implement a directive. It is apparent that Community law requires not merely access to the courts, but under certain conditions the availability of a specific remedy; moreover the principle established in Francovich presupposes access to the courts not merely in respect of administrative or even legislative measures, but also in respect of a failure by the Member State correctly to transpose Community rules.

On the principle of effective judicial protection there is perhaps one respect in which it may be appropriate for the Court to take further steps to ensure adequate access to justice, namely with regard to requirements of standing for individuals to bring a direct action before the Court under Article 173 of the EC Treaty. The strict requirements for standing are said to be justified by the possibility which individuals have of action before the national courts, which may seek a preliminary ruling from the European Court on the validity of the measure. ¹⁵ With well-known exceptions in recent cases such as Extramet ¹⁶ and Codorniu, ¹⁷ the Court has been reluctant to accept challenges by way of a direct action brought by natural and legal persons against measures of general application.

On that issue there seems to me, as to many who have recently written on the subject, cause for concern about the restricted access of individuals to the Court - here the Court of First Instance; moreover that Court was established precisely in order to hear cases brought by individuals, and "to improve the judicial protection of individual interests". ¹⁸

It may be questioned whether the criteria of direct and individual concern, as understood by the two Courts, are still appropriate in all cases; and also whether the justification relied upon for a restrictive approach, namely the possibility of action in the national court combined with an Article 177 reference, always meets the requirement of an effective judicial remedy. These doubts can be illustrated in the field of environmental protection, where the requirements of direct and individual concern are inherently difficult to satisfy and indeed inherently unsatisfactory. It would be unfortunate if the recent Greenpeace case should have the result that action by the Commission affecting the environment may in some circumstances be immune from judicial review at the suit of any individual or organisation whatever.

I will end this rapid survey of the Court's constitutional role with a brief comment on an area of great constitutional significance: the demarcation of the competences of the Community and the Member States. It is sometimes said that the Court has taken too expansive a view of the Community's powers under Article 235 of the Treaty. In fact the Court has never interpreted Article 235 expansively. Indeed in general the supposedly expansive interpretations have been in the field of protecting individual rights conferred by the Treaty, and ensuring full judicial protection. It could even be argued that the Court, in two leading opinions on the Community's powers, has been unduly restrictive: I refer to the opinion on accession to the European Convention on Human Rights ¹⁹ and the opinion on the WTO Agreement. ²⁰

As regards, more generally, the Court's future in its role as a constitutional court, the Court has historically often been described as a motor for European integration. That can no longer be said today. Inevitably in its early years when the Community was in its infancy the Court had to breathe life into the Treaties and ensure that the aims of the founding fathers were met. To that end it was called upon to define basic principles underlying the Community legal order and its relationship with Member State law and trace the scope of the fundamental provisions of the Treaty. Moreover, for many years there was a political and even a legislative vacuum in the Community - a vacuum which has gradually been filled by the introduction of majority voting through the Single European Act, by the internal market programme of 1992 and by the Treaty of Maastricht. The advent of EMU will doubtless do more for integration than any court could do.

The Community now having attained a degree of maturity, it seems to me that the Court's role is more likely to focus on ensuring the necessary "checks and balances", not unlike a federal court in a truly federal system. Its role is to protect, on the one hand, the Community interest and, on the other, that of the Member States, while ensuring throughout the full protection of individual interests.

What in the light of the above will be the role of the Court after the entry into force of the Amsterdam Treaty?

The Treaty introduces changes which have a constitutional dimension. Three examples may be given:

1. The amended Article F refers to certain politico-legal concepts - liberty, democracy and the rule of law, as well as to respect for human rights and fundamental freedoms. Liberty and democracy have moved from the preamble into the body of the Treaty. Human rights have emerged as substantive rules of law, and the Court given jurisdiction.
2. The principle of non-discrimination is expanded: the new Article 13 gives the Council the competence, acting unanimously, to extend the principle to cover also discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. That article thus enables the Council to apply within the EC a general rule of non-discrimination on the model of some national constitutions and certain international conventions on human rights.
3. Equality of men and women has been given a new "constitutional" status, expanded beyond the confines of equal pay under Article 119.

Also of great significance are the new heads of jurisdiction conferred on the Court by the Treaty of Amsterdam, for example in the areas of asylum and immigration and police and judicial cooperation in criminal matters. In these areas the protection of fundamental rights seems likely to play an important part.

These changes are certainly substantial, and are not to be under-estimated. The Court will no doubt exercise its new jurisdiction to the full. But, while these changes underline the constitutional role of the Court, they do not involve any radical change in that role.

The main challenge for the future may be to ensure that the Court is able to discharge its constitutional functions effectively. As is perhaps the case with other institutions and is clearly, I think, the case with the Court itself, what the Court will need is not the attribution of new competences, but the means and the resources to enable it to perform effectively the tasks which it already has. So far as the Court is concerned, at one practical level this will entail a number of housekeeping measures: for example adequate resources for translation, more judges for the Court of First Instance and greater autonomy for the Court of Justice in the formulation of the Rules of Procedure.

More fundamentally, the question will arise whether the existing court structure is able to cope with the increase in the case-load, and even whether it will still be appropriate to an enlarged Union. If not, some reshaping of the Community's "judicial architecture" will be necessary before long.

But in any such reform, care must be taken to ensure the unity of Community law.

What seems essential if the Community or Union are to work at all is that there should be a single court which has the final word on questions of law. The Community system, the entire economic structure, depends on that, perhaps uniquely - in a way in which no other legal system does. If national courts start to claim the right to the final word where they disagree on some point of interpretation, the system is likely to unravel very quickly. Such an approach by the national courts could only be justified in my view if the Court of Justice were to adopt a wholly unreasonable approach to its duties. That seems unlikely if one looks at its record. From the perspective of the United Kingdom, for example, which has a respectable judicial tradition, there has never been any suggestion by the courts at any level that there was the slightest cause for hesitation about following the Court's case-law, even though that has overturned the fundamental principle of Parliamentary sovereignty. Politicians of course might take a different view. But even politicians, in their capacity as governments of the Member States, have largely endorsed the Court's approach. As Professor Tridimas says, in discussing the general principles of EC law, the case-law has often shown the way, with subsequent Treaty amendments endorsing that case-law on fundamental aspects of the Community legal system. Referring to a period of politically motivated criticism in the United Kingdom of the Court's "judicial activism", he says that, despite what ephemeral political rhetoric might suggest, where the Member States acting in a sovereign capacity decide to amend the founding Treaties, they look on the Court as a source of inspiration rather than as an aberrant institution whose powers should be curtailed.

My conclusion is that the role of the Court in the coming years will not in itself be fundamentally new. Changes may need to be made to enable it to discharge that role effectively. But those changes should not be such as to subvert that role by diluting the judicial system or preventing the Court from ensuring the uniform application of Community law.

Francis G. Jacobs

² See the Opinion of Advocate General Warner in Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063.

³ Article 164 of the EC Treaty.

⁴ Case 294/83 [1986] ECR 1339, paragraph 23.

⁵ Ibid.

⁶ Paragraphs 24 to 25.

⁷ Case 70/88, European Parliament v Council (Chernobyl) [1990] ECR I-2041.

⁸ [1963] ECR 1.

⁹ Case 222/84 [1986] ECR 1651.

¹⁰ Case 222/86 [1987] ECR 4097.

¹¹ Case C-213/89 [1990] ECR I-2433.

¹² Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39 at 40.

¹³ Cited in note Fehler! Textmarke nicht definiert..

¹⁴ Joined Cases C-6/90 and C-9/90 Francovich & Others [1991] ECR I-5357.

¹⁵ Les Verts, paragraph 23 (at end).

¹⁶ Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501.

¹⁷ Case C-309/89 Codorniu v Council [1994] ECR I-1853.

¹⁸ Preamble to the Council Decision of 24 October 1988 establishing a Court of First Instance, OJ 1988 L 319, p. 1.

¹⁹- Opinion 2/94 [1996] ECR I-1759.

²⁰- Opinion 1/94 [1994] ECR I-5267.