Sliding Towards Supranationalism? The Constitutional Status of EU Framework Decisions after Pupino

German Law Journal

Volumn 8, Issue 5, 2007, Pages 501-531

  Lebeck, Carl ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62349102349     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S2071832200005745     Document Type: Article

References (64)

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2. C-105/03 Pupino
3. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
4. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
5. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
6. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
7. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
8. Deirdre Curtin, A Europe of Bits and Pieces, 30 COMMON MARKET LAW REVIEW 17-63 (1993) Deirdre Curtin & Ige F Dekker, EU - a Layered International Organisation, in THE EVOLUTION OF EU LAW, 112-126 (Paul Craig & Gráinne de Búrca eds., 1999). Armin von Bogdandy, GUBERNATIVES RECHTSSETZUNG, (2000) 39-42, 488-496, Armin von Bogdandy, SUPRANATIONALER FÖDERALISMUS - EINE NEUE HERRSCHAFTSFORM (1999) 17-21, 44-50. Trevor C Hartley, International Law and the Law of the European Union, 72 BRITISH YEARBOOK OF INTERNATIONAL LAW 1, 3-10 (2001), Stefan Griller, EU - Ein staatsrechtliches Monstrum? in EUROPAWISSENSCHAFTEN 201, 203-209 (Gunnar Folke Schuppert, Ingolf Pernice & Ulrich R Haltern eds. 2006)
9. Bruno de Witte, The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral, in THE EUROPEAN UNION AFTER AMSTERDAM - A LEGAL ANALYSIS 51, 54 (Tom Heuekels et al eds., 1998)
10. Steve Peers, Who's Judging the Watchmen? The Judicial System of the "Area of Freedom Security and Justice 18 YEARBOOK OF EUROPEAN LAW 337, 343-348, 376-380 (1998). Eileen Denze, INTERGOVERNMENTAL PILLARS OF THE EUROPEAN UNION 265-267 (2001). Peter-Christian Müller-Graf, Die Europäische Zusammenarbeit in den Bereichen Justiz und Inneres (JIZ), in FESTSCHRIFT FÜR ULRICH EVERLING, vol. II 925, 932-934 (Gil Carlos Rodriguez Iglesias et al. eds., 2000). Pieter Jan Kuijper, The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects. 41 COMMON MARKET LAW REVIEW 609, 611-613 (2004).
11. Steve Peers, Who's Judging the Watchmen? The Judicial System of the "Area of Freedom Security and Justice 18 YEARBOOK OF EUROPEAN LAW 337, 343-348, 376-380 (1998). Eileen Denze, INTERGOVERNMENTAL PILLARS OF THE EUROPEAN UNION 265-267 (2001). Peter-Christian Müller-Graf, Die Europäische Zusammenarbeit in den Bereichen Justiz und Inneres (JIZ), in FESTSCHRIFT FÜR ULRICH EVERLING, vol. II 925, 932-934 (Gil Carlos Rodriguez Iglesias et al. eds., 2000). Pieter Jan Kuijper, The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects. 41 COMMON MARKET LAW REVIEW 609, 611-613 (2004).
12. Steve Peers, Who's Judging the Watchmen? The Judicial System of the "Area of Freedom Security and Justice 18 YEARBOOK OF EUROPEAN LAW 337, 343-348, 376-380 (1998). Eileen Denze, INTERGOVERNMENTAL PILLARS OF THE EUROPEAN UNION 265-267 (2001). Peter-Christian Müller-Graf, Die Europäische Zusammenarbeit in den Bereichen Justiz und Inneres (JIZ), in FESTSCHRIFT FÜR ULRICH EVERLING, vol. II 925, 932-934 (Gil Carlos Rodriguez Iglesias et al. eds., 2000). Pieter Jan Kuijper, The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects. 41 COMMON MARKET LAW REVIEW 609, 611-613 (2004).
13. Steve Peers, Who's Judging the Watchmen? The Judicial System of the "Area of Freedom Security and Justice 18 YEARBOOK OF EUROPEAN LAW 337, 343-348, 376-380 (1998). Eileen Denze, INTERGOVERNMENTAL PILLARS OF THE EUROPEAN UNION 265-267 (2001). Peter-Christian Müller-Graf, Die Europäische Zusammenarbeit in den Bereichen Justiz und Inneres (JIZ), in FESTSCHRIFT FÜR ULRICH EVERLING, vol. II 925, 932-934 (Gil Carlos Rodriguez Iglesias et al. eds., 2000). Pieter Jan Kuijper, The Evolution of the Third Pillar from Maastricht to the European Constitution: Institutional Aspects. 41 COMMON MARKET LAW REVIEW 609, 611-613 (2004).
14. Philipp Dann, PARLAMENTE IM EXEKUTIVFÖDERALISMUS (2004)
15. Mitchell Lasser, JUDICIAL DELIBERATIONS 347-360 (2004)
16. Alan Dashwood, States in the European Union, 23 EUROPEAN LAW REVIEW 201, 206-209 (1998)
17. In the context of European integration this has been described as "functionalism," which is a technically correct description of that European integration is based on delegation of national powers concerning particular governmental functions. However, the normative idea that underlies functionalism is the liberal view of public power, where law is thought of as separate from political will, both by its forms of institutionalisation and by its decision-making method. In that sense however, functionalism and more traditional understandings of separation of powers share basic pre-suppositions concerning the relation between political decision-making and corresponding political control of public powers on one hand, and legal control of public powers on the other. The difference between functionalist approaches and approaches based on separation of powers lies in the understanding of which kinds of institutions are necessary to accomplish such controls.
18. Armin von Bogdandy, Jürgen Bast & Felix Arndt, Legal Instruments in European Union Law and their Reform: A Systematic Approach on an Empirical Basis 24 YEARBOOK OF EUROPEAN LAW 91, 108-111 (2005)
19. Elspeth Guild, The Constitutional Consequences of Lawmaking in the Third Pillar of the European Union, in LAWMAKING IN THE EUROPEAN UNION 65, 74-75 (Paul Craig & Carol Harlow eds., 1999)
20. However, that tension is far from always present; there are moments when it is in the institutional interest of the Council to adopt legislation that is directly effective rather than to adopt indirectly effective framework legislation since that can make the implementation of the legislation more expedient.
21. Marc Bungenberg, ART. 235 EGV NACH MAASTRICHT (1999).
22. Panos Koutrakos, Is Article 297 EC a 'reserve of sovereignty'?, 37 COMMON MARKET LAW REVIEW 1339-1362 (2000)
23. Koen Lenaerts & Piet van Nuffel, CONSTITUTIONAL LAW OF THE EUROPEAN UNION 53-54, 428-430 (2nd ed. 2005).
24. While that might be theoretically contestable in the sense that it is hard to point to any clear explanatory factor for a particular common "institutional interest" of the various national executives, it nevertheless is the assumption that such a common institutional interest of the national executives still make a lot of sense to the adopted policies, e.g. the tendency to use art. 308 of the EC-treaty and (to a lesser extent) framework decisions in an expansive way in order to avoid parliamentary oversight at both the national and the European level.
25. Miguel Poiares Maudro, WE THE COURT (1997). Hjalte Rasmussen, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE (1986)
26. Miguel Poiares Maudro, WE THE COURT (1997). Hjalte Rasmussen, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE (1986). Id., THE EUROPEAN COURT OF JUSTICE (1999)
27. The most obvious case of this is when the ECJ has applied principles of state-liability for nonimplementation of directives and regulations of states. Although the ECJ has enabled citizens of the member states of the EU to vindicate their rights against the states, it has not created legal protection in the form of injunctions, but has instead chosen to develop principles of compensation for damages. However, since EC-law has mainly concerned economic damages, it is also clear that the difference between allocating costs in that way and by way of more general injunctions is relatively limited. However, the ECJ does, in cases where it finds a member state to be in violation of its obligations under the treaties, apply a mix between enforcement through principles of damages and injunctions applied to states, which seems to parallel state-liability in public international law. C-26/62 van Gend en Loos E.C.R. [1963] 3, C-6/90 Francovich and Bonifaci E.C.R. [1992] I-5357, C-224/01 Köbler E.C.R. [2003] I-10239 and C-173/03 Traghetti del Mediterraneo (not yet reported) are all examples of how the ECJ has applied the principle of state-responsibility in relation to state action within the framework of EC-law in a way which treats judicial powers as a part of a dependent part, analogous to the treatment of domestic judicial power on state-liability under public international law. C-105/03 Maria Pupino can be seen as an example how the ECJ has used the same principle in the context of EU-law.
28. Acceto & Zleptnig argue that the principle of effectiveness is a central structural principle of EC-law, which has been illustrated in some recent cases where the court has extended the effects of legislation under the third pillars in the national legal orders. The normative reasons are based on a combination of that citizens are to be treated equally regardless of their nationality in relation to EC-law, and that the benefits from cooperation that arise from coordination will not come about if effectiveness is an overarching legal principle in deciding which forms implementation of the community decisions should take. The problem, from a normative perspective however, is that this presupposes that all forms of cooperation within the framework of the EU should be given equal effectiveness. The problem that Accetto & Zleptnig point to is that this presupposes that effectiveness is to be an overarching concern for some kind of normative reason, while disregarding reasons against regarding effectiveness as an overarching value. In relation to national law, that seems to be related to protection of fundamental rights and legal certainty and to some extent to the protection of political accountability within the national political system. The alternative approach that some authors argue is that the ECJ has embraced an element of proportionality review as opposed to an across the board principle of supremacy. However, in relation to recent case-law, it seems as if the ECJ has instead chosen to adopt a far more extensive understanding of effectiveness as an overarching constitutional principle. See Matej Accetto & Stefan Zleptnig, The Principle of Effectiveness: Rethinking Its Role in Community Law, 11 EUROPEAN PUBLIC LAW 375, 379-383 (2005). Malcolm Ross, Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality, 31 EUROPEAN LAW REVIEW 476, 483-488 (2006)
29. Acceto & Zleptnig argue that the principle of effectiveness is a central structural principle of EC-law, which has been illustrated in some recent cases where the court has extended the effects of legislation under the third pillars in the national legal orders. The normative reasons are based on a combination of that citizens are to be treated equally regardless of their nationality in relation to EC-law, and that the benefits from cooperation that arise from coordination will not come about if effectiveness is an overarching legal principle in deciding which forms implementation of the community decisions should take. The problem, from a normative perspective however, is that this presupposes that all forms of cooperation within the framework of the EU should be given equal effectiveness. The problem that Accetto & Zleptnig point to is that this presupposes that effectiveness is to be an overarching concern for some kind of normative reason, while disregarding reasons against regarding effectiveness as an overarching value. In relation to national law, that seems to be related to protection of fundamental rights and legal certainty and to some extent to the protection of political accountability within the national political system. The alternative approach that some authors argue is that the ECJ has embraced an element of proportionality review as opposed to an across the board principle of supremacy. However, in relation to recent case-law, it seems as if the ECJ has instead chosen to adopt a far more extensive understanding of effectiveness as an overarching constitutional principle. See Matej Accetto & Stefan Zleptnig, The Principle of Effectiveness: Rethinking Its Role in Community Law, 11 EUROPEAN PUBLIC LAW 375, 379-383 (2005). Malcolm Ross, Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality, 31 EUROPEAN LAW REVIEW 476, 483-488 (2006)
30. Lukas Wasielewski, Differentiation in the System of Judicial Review in EU Law - the ECJ in a Differentiated Legal Order, in THE EMERGING CONSTITUTIONAL LAW OF THE EUROPEAN UNION 158 ff, 164-169 (Adam Bodnar et al. eds., 2003)
31. Christian Tomuschat, Das Francovich-Urteil des EuGH - Ein Lehrstück zum Europarecht, in FESTSCHRIFT FÜR ULRICH EVERLING, vol. II 1585 (Gil Carlos Rodriguez Iglesias et al. eds., 2000)
32. Piet Eeckhout, The European Court of Justice and the "Area of Freedom, Security and Justice": Challenges and Problems, in JUDICIAL REVIEW IN EU - LIBER AMICORUM LORD SLYNN OF HADLEY vol. I 153-166, 159-161 (David O'Keeffe et al. eds. 2000). TEU Art. 35(6)
33. TEU Art. 35(2), 35(3)a-b, 35(4)
34. The argument of Levinson & Pildes is essentially that why political safeguards work rather through political parties than through institutions is that political parties represent people with different and sometimes changing preferences for how power is to be allocated among institutions. Levinson & Pildes assume that institutional choices are ultimately dependent on political preferences on substantive issues. That seems to be true when such preferences are channelled through a long-lasting organisational system such as parties that represent certain interests. In the context of legislative institutions without parties, it is clear that the argument depends on whether and to what extent such contingent preferences will influence the process of political decision-making. In certain contexts, such as the EU, it is obvious that the kind of influence based on representation of popular political opinion is mediated through a number of political institutions, nationally and internationally, with limited direct control of parties. On the other hand, the powers of the member states are still regarded as the source and as the final constraint on EU-law in the sense that the member states are the ultimate sources of authority of EC-law, and it is the states that ultimately decide on whether to retain EC-law as a part of their legal system. See Daryl Levinson & Richard H Pildes, Separation of parties, not of powers, 119 HARVARD LAW REVIEW 2311 (2006). Larry Kramer, Putting Politics Back in the Political Safeguards of Federalism, 100 COLUMBIA LAW REVIEW 215-293 (2000)
35. The argument of Levinson & Pildes is essentially that why political safeguards work rather through political parties than through institutions is that political parties represent people with different and sometimes changing preferences for how power is to be allocated among institutions. Levinson & Pildes assume that institutional choices are ultimately dependent on political preferences on substantive issues. That seems to be true when such preferences are channelled through a long-lasting organisational system such as parties that represent certain interests. In the context of legislative institutions without parties, it is clear that the argument depends on whether and to what extent such contingent preferences will influence the process of political decision-making. In certain contexts, such as the EU, it is obvious that the kind of influence based on representation of popular political opinion is mediated through a number of political institutions, nationally and internationally, with limited direct control of parties. On the other hand, the powers of the member states are still regarded as the source and as the final constraint on EU-law in the sense that the member states are the ultimate sources of authority of EC-law, and it is the states that ultimately decide on whether to retain EC-law as a part of their legal system. See Daryl Levinson & Richard H Pildes, Separation of parties, not of powers, 119 HARVARD LAW REVIEW 2311 (2006). Larry Kramer, Putting Politics Back in the Political Safeguards of Federalism, 100 COLUMBIA LAW REVIEW 215-293 (2000)
36. Göran Lysén, EU FRAMEWORK DECISIONS (2005) 13-15
37. Armin Hatje, LOYALITÄT ALS RECHTSPRINZIP (2001) 36-38, 38-41
38. C-8/81 Becker v Finanzamt Muenster-Innenstadt, E.C.R. [1982] 53
39. C-105/03 Maria Pupino, para. 22-26, 38-41, 45-46 (opinion of AG Kokott)
40. C-105/03 Maria Pupino, para. 37-48
41. Per Hallström, European Union Law - From reciprocity to loyalty, 39 SCANDINAVIAN STUDIES IN LAW 79 (1999)
42. C-105/03, Maria Pupino, para. 58-61
43. C-105/03 Maria Pupino, paras. 45-48
44. C-105/03 Maria Pupino, para. 41-43 and paras. 68-69 (opinion of AG Kokott)
45. Maria Fletcher, Extending "indirect effect" to the third pillar: the significance of Pupino? 30 EUROPEAN LAW REVIEW 862 (2005)
46. Case C-14/83 von Colson and Kamann, E.C.R. [1984] 26
47. Vassilios Skouris, "Rechtswirkungen von nicht umgesetzten EG-Richtlinien und EU-Rahmenbeschlüssen gegenüber Privaten - neuere Entwicklungen in der Rechtsprechung des EuGH", ZEITSCHRITFT FÜR EUROPARECHTLICHE STUDIEN 4-2005, 474-476
48. For a more traditional understanding of the role of precedents, see Fredrick Schauer, Precedent, 39 STANFORD LAW REVIEW, 571 (1986-1987), In the context of EC/EU-law, see Albertina Albors-Llorens, Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam, 35 COMMON MARKET LAW REVIEW, 1273 (1998), Anthony Arnull, Owning up to Fallibility: Precedent and the Court of Justice, 30 COMMON MARKET LAW REVIEW, 247 (1993)
49. For a more traditional understanding of the role of precedents, see Fredrick Schauer, Precedent, 39 STANFORD LAW REVIEW, 571 (1986-1987), In the context of EC/EU-law, see Albertina Albors-Llorens, Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam, 35 COMMON MARKET LAW REVIEW, 1273 (1998), Anthony Arnull, Owning up to Fallibility: Precedent and the Court of Justice, 30 COMMON MARKET LAW REVIEW, 247 (1993)
50. For a more traditional understanding of the role of precedents, see Fredrick Schauer, Precedent, 39 STANFORD LAW REVIEW, 571 (1986-1987), In the context of EC/EU-law, see Albertina Albors-Llorens, Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam, 35 COMMON MARKET LAW REVIEW, 1273 (1998), Anthony Arnull, Owning up to Fallibility: Precedent and the Court of Justice, 30 COMMON MARKET LAW REVIEW, 247 (1993)
51. The ECJ notes in its decision that there is a duty to interpret national law to be in harmony with framework decisions. It is not obvious how far such an obligation goes and the ECJ does not define any general principle on that matter. However, it is notable that the ECJ did not reject the view that their interpretation would be contra legem in relation to Italian domestic law. Vlad Constantinesco, The ECJ as a Law-Maker: Praeter Aut Contra Legem, in JUDICIAL REVIEW IN EU - LIBER AMICORUM LORD SLYNN OF HADLEY, vol. I, 73 (David O'Keeffe ed., 2000)
52. One aspect that seems to be important in relation to unanimity requirements is that it provides for a certain minimal transparency to the decision-making process, namely that an unanimity requirement makes it clear that all changes were supported by all governments, unlike various forms of QMV-procedures that make it impossible for the citizens to know which government that took which position. In that respect, unanimity requirements enhances transparency and accountability, on the other hand, it only works to provide information in cases where there actually was a decision to change law, i.e. there is no possibility to account for non-decisions through the unanimity requirement.
53. C-6/64 Costa v. ENEL. E.C.R. [1964] 1251
54. Mattias Kumm, Who is the final arbiter of constitutionality in Europe?, 36 COMMON MARKET LAW REVIEW 351 (1999)
55. Franz C. Mayer, Wer soll der Hüter der Europäische Verfassung Sein in DIE ZUKUNFT DER EUROPÄISCHEN UNION: EINE KRITISCHE BILANZ DES KONVENTS, 429 (Olivier Beaud & Ingolf Pernice, eds., 2004)
56. One should however be clear about that the constitutionalization of EC/EU-law has mainly concerned the constitutionalization of certain competencies of the institutions, the remedies under EC-law and the jurisdiction of the ECJ. As has often been pointed out, it has been a development focused on functions, rather than attempting to make a claim of the powers of EC/EU stemming from a particular European "demos" or in any other way making a claim to some kind of inherent political legitimacy. However, in a similar way, domestic courts have often avoided according any final authority to EC/EU-decisions. Therefore, what has often been described as a constitutionalization of the EU seems to be a matter of cooperation and routinization of decision-making through customary practices and not of the creation of institutional hierarchies associated with the more traditional approach of constitutionsalization at the level of the nation-state.
57. In relation to the issue of the character of the EC/EU, it seems notable that there are two concurrent trends within the case law of the ECJ with regard to the relation between the member states and the EC/EU. One trend concern the increasing malleability of competencies of the EC, which is related to expansionist understandings of implied powers granted under art. 308 EC-treaty which concerns the extent of EC-powers, whereas in relation to the third pillar, it seems mainly to be a matter of effects of powers granted. However, these currents have in common that they both serve to amplify the institutional role of the Council at the expense of the national parliaments. In these both respects, it seems as if the effect has been enhancement of the role of national executives through the Council. In practice it seems to lead to that the role of the Council as legislator and the ECJ as arbiter of claims of constitutional validity are enhanced. For developments in EC-law, e.g. Carl Lebeck Article 308 EC-treaty: From a Democratic Deficit to a Constitutional Deficit? EUROPARÄTTSLIG TIDSKRIFT 231 (2007)
58. Joakim Nergelius, "De-legalize it" - On Current Tendencies in EC Constitutional Law, 21 Ybk Euro. L. 443 (2002)
59. Eric A Stein, International Integration and Democracy - No Love at First Sight, 95 Am. J. Int' L. 489, 515-520 (2001)
60. Anne Peters, The Constitutionalist Reconstruction of International Law: Pros and Cons, NCCR Trade Working Paper 11/2006, 10-11
61. Graínne de Búrca & Bruno de Witte, The Delimitation of Powers Between the EU and its Member States, in ACCOUNTABILITY AND LEGITIMACY IN THE EUROPEAN UNION, 201, 205-209 (Anthony Arnull & Daniel Wincott eds., 2002)
62. Jason Coppel & Aidan O'Neill, The European Court of Justice: Taking Rights Seriously?, 29 COMMON MARKET LAW REVIEW 669 (1992), and for a contrary opinion, see Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights in the European Community, 61 WASHINGTON LAW REVIEW 1103 (1986), Joseph H.H. Weiler & Nicolas Lockhart, 'Taking Rights Seriously' Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence - Part I, 32 COMMON MARKET LAW REVIEW 51 (1995)
63. Jason Coppel & Aidan O'Neill, The European Court of Justice: Taking Rights Seriously?, 29 COMMON MARKET LAW REVIEW 669 (1992), and for a contrary opinion, see Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights in the European Community, 61 WASHINGTON LAW REVIEW 1103 (1986), Joseph H.H. Weiler & Nicolas Lockhart, 'Taking Rights Seriously' Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence - Part I, 32 COMMON MARKET LAW REVIEW 51 (1995)
64. Jason Coppel & Aidan O'Neill, The European Court of Justice: Taking Rights Seriously?, 29 COMMON MARKET LAW REVIEW 669 (1992), and for a contrary opinion, see Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights in the European Community, 61 WASHINGTON LAW REVIEW 1103 (1986), Joseph H.H. Weiler & Nicolas Lockhart, 'Taking Rights Seriously' Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence - Part I, 32 COMMON MARKET LAW REVIEW 51 (1995)