Note: The comments of these questions are part of my take-home exam on “Law and Governance of the EU” course, which was taught by Mrs. Imelda Maher, Sutherland Professor of European Law (University College Dublin).
“The EU is a unique legal order that is constitutionalizing.”
The European Union (EU) is indeed a unique legal order that is constitutionalizing. Nonetheless, in my opinion, this process of constitutionalization was paralyzed when French and Dutch people voted against the Treaty establishing a Constitution for Europe (hereinafter, European Constitution).
The European Constitution, as well as its symbology, supposed a turning point in the EU history. For the first time, a European treaty recognized the primacy principle expressly. The effects would have been devastating for national constitutions.
It is important to emphasize that the uniqueness of EU legal order has been imposed by the European Court of Justice (ECJ) through its case-law. According to international law, the Founding Treaties could only bind signatory Member States. However, European judges decided that it was not sufficient.
For this reason, the ECJ firstly created the Doctrine of Direct Effect in the case of Van Gend en Loss, under which Community law confers rights and imposes obligations both Member States and their nationals. If Treaties also subjected the latter, the EU legal order would be different from international law.
The European judges asserted that “the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited field, and the subjects of which comprise not only Member States but also their nationals”.
Nevertheless, the ECJ took another step forward to constitutionalize EU legal order. In Costa, this court created the primacy principle, under which EU law was supreme over national law. But, just in case, European judges had a necessity to made the scope of primacy principle clearer in Internationale Handelsgesellschaft. They had the audacity to affirm that the EU legal system also took precedence over the national constitutional law of Member States.
This kind of judicial behavior has a name: judicial activism. That is to say when judges use non-textual interpretative criteria to impose their preferences rather than interpreting legal texts according to their original meaning.
The ECJ constitutionalized the EU law through the teleological interpretation (purposive approach). It used two poor arguments to defend its legal reasoning: on the one hand, the ECJ said that all Member States must have common rules to guarantee the uniformity and avoid, accordingly, the discrimination among them; on the other, it was necessary to create these doctrines to comply with objectives of the EU (efficacy).
Beyond the lack of democratic legitimacy, professor Maher perfectly identified the most important problem of these principles asking the reader the following: “how could the EEC as it then was constitute a supreme legal order creating obligations for individuals when it was silent on the protection of fundamental rights?”
“The Rule of Law is an important part of the EU legal order, that has received greater prominence and recognition since the introduction of the Lisbon Treaty.”
Before Lisbon Treaty, the Rule of Law was extremely fragile in the EU legal order. Firstly, there were no general categories of competence. Therefore, it was complex to determine when European institutions or the Member States had the power to legislate and adopt legally binding acts.
Secondly, it already existed the dangerous ‘flexibility clause’ (Arts 308 and 95 EC). European institutions, with the almost complete protection by the ECJ, often used Art. 308 EC to enlarge competences to European institutions and legitimate its legal system.
European judges again used the teleological interpretation to legitimate the action of EU institutions.
The Rule of Law was strengthened with Lisbon Treaty. To begin with, the Treaty on European Union (TEU) recognizes expressly the ‘rule of law’ as an essential part of EU legal order (Art. 2 TEU).
Furthermore, the TEU repeats ad nauseam the principle of conferral (Arts. 3.6, 4.1, and 5 TEU). According to this principle, the EU can only act “within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein.”
But Craig and Búrca highlighted the most important novelty of Lisbon Treaty, namely: “[It] makes provision not only for the existence and scope of EU competence, but also for whether the competence should be exercised.”
As to the existence and scope of EU competence, the Treaty on the Functioning of the European Union (TFEU) recognizes three kind of competences: the exclusive competence (Art. 2.1 TFEU), the shared competence (Art. 2.2 TFEU), and the competence to carry out actions to support, coordinate or supplement the actions of Member States (Art. 2.5 TFEU).
Therefore, in addition to having provisions of the Treaties which determine the scope of competence, there are also categories of competence.
As to whether the competence should be exercised, the Lisbon Treaty recovers the principle of subsidiarity. According to Art. 5.3, this principle means that “in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
The subsidiarity mechanism is regulated by the Protocol (No 2) on the Application of the Principles of Subsidiarity and Proportionality.
Nonetheless, in my opinion, the principle of subsidiarity is very controversial bearing in mind that the reason is of political opportunity, rather than legal issue. Moreover, taking into account the history of the ECJ, which protects EU interests, I am quite skeptical of this mechanism.
  OJ C300
 Article I-6 “[T]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.”
 Case C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1
 Case 6/64 Costa v ENEL  ECR 585
 Ibid 4 “The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity.”
 Case C-11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle für Getreide und Futtermittel  ECR 1125
 Ibid 6 “Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.”
 Imelda Maher, ‘EU Law’ in Ron Tiersky & Erik Jones (eds), Europe today (3rd ed) Rowman and Littlefields (2007) Lanham Md.
 Paul Craig and Gráinne de Búrca, EU Law. Text, cases and materials (6th edn, 2015) 73
 Art. 308 EC: “If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.”
 Cf Craig (n 9) 90
  OJ C 202
  OJ C 22
 Art. 5.3 TEU