The European Union (EU) is founded on
conceptual variants within liberalism such as corporatism and
ordo-liberalism, which, in contrast to the U.S., are
collectivist, not individualist, social, not contractarian,
and confederal, not federal. The laws which grow from these
concepts often parallel and/or converge on similar U.S. laws.
This article traces out the conceptual foundations and
objectives of the EU to understand the sources and extent of
convergences and divergences in EU confederalism with respect
to U.S. federalism.
It can be difficult for U.S. jurists to
understand the EU's logic, which diverges from U.S.
federalism. Founded on variants within liberalism that are
collectivist, social, and confederal, EU institutions have
grown from the desire to prevent war by using economic
integration, and peaceful resolution of trade disputes. Rather
than relying on the logic of the separation of powers and
federalism, the EU follows the logic of limited, weak,
unitary, confederal powers. The authoritarian tendency in EU
structures is both less ambitious and less extensive than the
powers of the U.S. federal government. In short, the EU tries
to do less, but better.
This article explores out the conceptual
foundations and objectives of the EU in order to provide North
American jurists with the conceptual apparatus for assessing
and applying lessons of European integration to
*64
the Americas. Understanding
Europe increases transatlantic understanding and enables North
and South Americans alike to draw lessons about economic and
political integration from the world's largest trading bloc.
Such an understanding can improve inter-American economic
well-being and political stability by applying the same
principles of free movement of goods, capital and workers to
the Americas in order to generate economic prosperity and, in
turn, political stability and peace.
There are numerous parallels, but also
divergences, in the conceptual foundations of the United
States and EU. The U.S. political structure was designed to
creare a central government strong enough to defend and expand
U.S. territory, but also to decentralize power through the
power-sharing arrangement of Federalism to provide a bulwark
against the rise of an unchecked, tyrannical head-of-state.
The problem facing the states of Europe, by contrast, was how
to prevent another European war and rebuild their devastated
economies.
The EU was built up gradually on the basis
of functionalist theory.
1 Functionalism is the
idea that economic and political integration is best achieved
through incremental efforts in diverse fields. Functionalist
methods obtain political legitimacy in democratic terms after
the fact because of the success of the institution in
achieving practical goals.
2 The objective of
functionalism is to prevent war, not by keeping states apart
but by drawing them together and by establishing rational
transnational governance structures.
3 For more than 60
years, this approach has helped prevent a third world war.
Functionalism works. Functionalist theory has successfully
4
drawn Europe from a community of six nations jointly
developing coal and steel resources into a 25 nation union
constituting the world's largest free trading area.
5
It has not, however, created a Federal Europe.
6
This is because functionalism's legitimacy is always
ex
post. Functionalism has built an economic union, but
political union requires direct democratic input in concert
with a clear political will. Functionalist methods cannot
create
political union but can create
economic
union.
*65
The teleology of the EU is a
single market that creates the prosperity needed to enable
people to live what Aristotle called "the good life,"
7
in which a certain degree of wealth is a necessary condition.
However, wealth is not an end in itself;
8
it is only the means to the end of the good life for all. In
practical terms, this teleology is evident in recent efforts
toward privatization and deregulation.
9
In the 1980s and 1990s, a consensus emerged in the West that
private ownership of the means of production was more
efficient than public ownership. Thus, state-owned enterprises
such as rails, telecommunications, and post offices throughout
Europe have been privatized and listed on stock exchanges.
This teleology also expresses itself
through harmonization--the process of bringing the member
states' laws into line with each other. Harmonization of the
Member State's laws is one of the ways transaction costs are
to be reduced so as to create a single integrated market. The
single market is intended to enhance international economic
well being and to avoid economic crises.
10
The EU is an expression of a variant of
liberalism different from social contract liberalism. It has
evolved in part in reaction to the ideologies of corporatism
and ordoliberalism.
Corporatism argues that corporations and
governments should cooperate closely to attain desired social
goals. It argues that the goals of states, companies, and
workers are closely aligned: corporations serve the goals of
the state, and consequently, the state should create
conditions favorable for the corporation. Likewise,
corporatists believe the state should, in cooperation with
corporations, create conditions favorable for workers. Thus,
guaranties of medical care, retirement, unemployment
insurance--the social insurance systems established in the
first world since about 1900--are provided because educated,
healthy workers are more productive, enabling corporations to
better serve the interests of the state.
Corporatism has evolved over the course of
the twentieth century. The idea of a close cooperative
relation between labor and management was a central tenet of
Hitlerism. While Marx proposed that labor and capital were
fundamentally antagonistic, Hitler argued that labor and
capital should relate cooperatively in the interest of the
nation.
Right-wing corporatist governments have
held state power in the post-war era in Argentina, Chile,
Paraguay, and Bolivia. Some argue that Putin's Russia is
corporatist.
11 In Europe,
left-wing corporatist governments
*66 have, at various times and with
weaker authoritarian tendencies, governed in both Germany and
France. French and German corporatism was partly a reaction to
the excesses of national socialism.
A key feature of post-war Europe is the
rise of strong constitutional human rights guarantees
protected by judicial review before constitutional courts
modeled after the U.S. Supreme Court.
Neo-corporatism recognizes that autarchic
national economies underperform in comparison with today's
globalizing networked trading economy and that isolated
national economies led to war for market share because no
other possibility existed in the world before the GATT and its
successor, the WTO. There is nothing inherently authoritarian
or totalizing about the essence of corporatist thinking.
Today, corporatism plays out in the legal structure of
enterprises and in labor-management relations in different
ways in different legal systems.
Corporatism in German law is expressed by
guarantees of a voice for labor in managerial decisions.
12
Labor representation on the board of directors of German
corporations is guaranteed.
13 Further, the German
social insurance system is more extensive than that of the
United States, guaranteeing not only unemployment, disability,
and pension insurance but also promising medical care and
affordable university education.
While French labor is not similarly
guaranteed a voice in managerial decisions,
14
French labor contracts, as in Germany, are more generous than
those in the United States.
15 Most U.S. labor
contracts are "at will," which means that the employee may be
fired at any time for "any reason or no reason at all." In
Germany and France, following a "
periode d'essai"--a 30
to 90 day trial period--the employee is no longer "at will"
but rather may be fired only "for cause." French social
insurance is even more extensive than German social insurance.
The French government guaranties all French citizens a minimum
income--essentially, sufficient revenue to cover the citizens
needs for food and shelter.
Functionalism argues that institutions are
best understood by and designed around the functions they
serve and are intended to serve.
16 The EU was built
using functionalist logic; institutions, defined by their
functions, would allow the steady acquisition of the
attributes of sovereignty--the
acquis communautaire.
17
The function of the
acquis is to help Europe grow into
an ever-closer economic and political union of a diverse
number of peoples.
The English speaking world generally, and
the United States in particular, should be seen as the epitome
of liberal capitalism. As such, among developed states, the
English-speaking world is the place where,
*67
theoretically, conflict between
labor and capital is greatest, due to its historical
commitment to liberal individualism. American ambivalence
toward corporatism is justified by history. But
neo-corporatism, by abandoning the failed, under-productive
and warlike national corporatist model in favor of a
labor-management partnership in a highly networked and open
trading system, empowered Europe to surmount the problems of
first generation corporatism.
Marred by their historical association with
fascism, corporatist tendencies in the EU tend to be
downplayed. Ordoliberalism, by contrast, presents an
alternative to social contract democracy that is liberal, but
is not totalitarian like fascism. European ordoliberalism is
an outgrowth of liberalism rooted in the thought of Aristotle,
Adam Smith, and John Locke. Since at least Alexander Hamilton,
one strand of liberalism has proposed that the wealthy must be
protected from democracy. Ordoliberals would agree with
Hamilton that it is necessary to protect unpopular minorities,
specifically the wealthy, from the levelling effects of direct
democracy. Liberalism's promise to protect political,
religious, and racial minorities also extends to wealthy
minorities. This is because liberalism is predicated on the
premise that the wealthy deserve their wealth. Liberalism thus
cannot ultimately grasp the problems of economic monopoly or
inherited wealth.
Unlike other liberal schools of thought,
ordoliberalism limits itself to the economic realm and lacks
social and political dimensions. Thus, classical liberals,
corporatists, fascists, and libertarians could all claim to be
ordoliberals. This is both a strength and a weakness of
ordoliberalism, granting it broad support, but also allowing
it to be tainted by association with discredited political
movements such as fascism.
Historically, ordoliberalism was shaped by
the economic and political crises of the Weimar Republic:
hyperinflation, unemployment, and bank failure leading in turn
to both communist and fascist reactions against liberalism.
The ordoliberal response to these crises was a call for a
strong, limited state that could check extremist tendencies.
18
Ordoliberalism thus is related to corporatism and Thatcherism.
It asserts the power of the state
*68 to enforce individual property
claims against democratic efforts to erase inequality. Thus,
"[e]ven before the National Socialists' seizure of power,
Herman Heller criticised ordoliberalism as 'authoritarian"'
19
In the post-war world, the same
concerns--the extremes of communism and fascism--subsisted.
Ordoliberalism re-emerged and tried to present an alternative
by arguing for the concept of the economic constitution--the
idea that the state must guarantee at least a minimum of
economic institutions in order to create a functioning economy
and that the society's economic rules constitute its political
order. Some proponents of the EU advance the idea of the
economic constitution as the conceptual constitutional
foundation of the EU. It is particularly well-adapted to the
construction of a limited confederal state-like polity in that
it sets forth a limited yet economically powerful European
legal order.
Both corporatism and ordoliberalism are
different from social contract liberalism. Neithet of those
ideologies plays a dominant role in the creation or
functioning of the EU but both have influenced the Union.
Those who call for a "social Europe" are, knowingly or not,
voicing the echoes of corporatism. Seeking a limited and
purely economic union is likewise an ordoliberal vision: the
idea of a minimal state setting up only the framework and
otherwise leaving individuals free to interact economically as
they wish. Just as corporatism tends to see the state as
totalising, so ordoliberalism tends to see the proper state as
minimalist. Neither ideology dominates in the EU, but both are
there in the background and are sufficiently distinct from
social contract liberalism that they merited examination.
We now turn our attention away from
contentious and uncertain ideologies and toward the concrete
laws that are used to implement the vision of a single market
for goods, labor, capital, and services resulting in economic
integration, prosperity, and peace.
U.S. jurists have difficulty understanding
the EU due to a lack of parallel structures. This is partly
because the functionalist method advocates the creation of
numerous specialized technical experts to disaggregate
sovereign unitary national power, providing a different
perspective than
*69
the separation of powers logic
of Montesquieu and Locke. The limited understanding of the EU
by U.S. jurists is also partly due to different constitutional
histories of the Member States as compared with the U.S.
Dissimilar histories and logic together result in different
institutions that serve different roles than U.S.
institutions. We briefly survey EU legal institutions in order
to understand the framework through which political and legal
ideas are worked out. The functions of the institutions are
illustrated by examples from the EU Common Foreign and
Security Policy.
The main political actor for the EU is the
European Commission (hereafter, the Commission).
20
The Commission is the central initiator of legislation at the
EU. The Commission also determines and conducts the EU's
foreign trade policy.
21
The European Community (EC) Treaty empowers
the Commission to represent and act on behalf of the EU in
both formal and informal international agreements. The
Commission represents the EU before the United Nations, the
Council of Europe, and the Organization for Economic
Cooperation and Development. The Commission also receives and
sends out diplomatic missions on behalf of the EU, and
provides an authoritative opinion to the Council in regard to
applications for EU membership.
Under the Treaty of the European Union, the
"Commission shall be fully associated with the work carried
out in the common foreign and security policy field" (Article
J. 9)
22
In terms of the EU's foreign policy, like the Member States,
the Commission can propose general guidelines, common
strategies, joint actions, and common positions to be
considered for implementation by the Union.
The European Parliament is the only
directly elected EU institution, yet it has few powers. The
Parliament can recommend actions to the Presidency and request
and receive information from the Commission and Presidency
regarding the Common Foteign and Security Policy. Parliament
also has a consultative function and has the power to fund the
operating expenses of the Common Foreign and Security Policy.
Pailiament has the right to ask the Commission to introduce
legislation.
The European Council brings together the
heads of states and the President of the Commission. An
executive of executives, the European Council shapes the
contours of the EU's foreign policy by determining the content
of general guidelines and common strategies of the Common
Foreign and Security Policy. "Guidelines" outline the goals of
the Union, "common strategies" clarify how those guidelines
are to be implemented, and "joint actions" implement the
policies outlined in the guidelines and the common strategies.
EU foreign policy instruments are hierarchically arranged from
general to specific with differing decision mechanisms for
each policy instrument.
The Council of the EU consists of a
representative of each Member State at a ministerial level,
authorized to commit the government of that State. The Council
is a political rather than administrative body.
23
The Commission's perspective on political integration is
federalist, whereas the Council prefers an intergovernmental
approach.
24
The Council lacks formal powers at the
Union level but nevertheless indicates the broad outlines of
EU policy. For example, in foreign policy the Council
determines joint actions and common positions. The Council
must ordinarily reach its Common Foreign and Security Policy
decisions unanimously. However, Member States can abstain from
voting, and abstention from voting will not prevent all other
Member States from adopting a policy. In the event the Union
as a whole cannot act, Member States can also act with each
other in "enhanced cooperation." However, enhanced cooperation
as to matters with military or defense implications is
essentially forbidden.
Exceptionally, some votes of the Council
may be taken by a qualified majority "when adopting joint
actions, common positions, or taking any other decision on the
basis of a common strategy, when adopting any decision
implementing a joint action or a common position, when
appointing a special representative in accordance with Article
18(5)."
25 However, qualified
majority voting is expressly forbidden as to "decisions having
military or defense implications." Further, Member States can
force a vote to be taken on the basis of unanimity.
The principle legislative actions of the EU
are regulations and directives. Regulations are directly
binding laws, are applicable to Member
*71 States and their citizens, and
are analogous to U.S. federal legislation. They are supreme as
compared with national laws.
Directives do not have any equivalent legal
form in U.S. law. Directives are framework goals established
by the EU for implementation by the Member States. They are
not directly binding; however, they are nonetheless hard law.
A Member State which fails to implement a directive can face
sanctions and the directive can be made to have direct effect
where a Member State fails to implement it.
The ECJ interprets national laws in light
of directives and encourages national courts to do likewise.
It does so exclusively (through the doctrine of supremacy of
EU law) and its decisions are binding precedent. National
courts are not able to hold a Commission decision void as
incompatible with the EC Treaty. The ECJ could be compared to
a supreme civil court in a national legal order.
The European Convention of Human Rights,
though founded independently from the EU and having several
non-EU adherents, is nevertheless in symbiosis with the EU and
advances basic human rights in industrializing countries such
as Turkey and Russia, where the rule of law is sometimes still
at issue. The symbiotic relationship between the ECHR and the
EU is set out in the Maastricht Treaty, the preamble of which
affirms its respect of the principles of freedom, democracy,
as well as human rights. Likewise, the treaty states that the
Union respects fundamental human rights as guaranteed by the
European Convention on Human Rights and the constitutional
traditions of the member states as far as they form general
principles of community law.
26 This linkage of
fundamental human rights to general principles of law is
crucial to understanding how the EU broadens human rights
protection.
In terms of political geography, it is most
useful to think of Europe as a series of associations, much
like a set of concentric rings, with a dense core and a loose
periphery. The core of the EU are those Member States that are
both members of the Eurozone (the single-currency European
Monetary
*72
Unit) and the Schengen group
(whose members do not maintain border controls between each
other). The next ring consists of Member States who are not in
NATO. This ring includes Sweden, Finland, Austria, and
Ireland.
The picture is complicated somewhat by the
accession of Eastern European states to the Union. In terms of
political and economic integration, Member States of the
former Eastern Bloc are clearly economically and politically
on the periphery of the EU; however, all are strongly in favor
of the EU because of its economic advantages and because they
are also members of NATO. The security interests of Eastern
European Member States are heavily Atlanticist, while their
economic interests are clearly European.
The Union ends and the periphery starts
with the associated states--European states such as
Switzerland, Norway, and Iceland. These are states which could
have become Member States but chose to remain outside the
Union, usually because they were already prosperous and/or
neutral. A bit further afield are states like Turkey or
Ukraine who aspire co become Member States but face political
hurdles.
In sum, the EU is a unique system of
governance from the geographic and political integration
perspectives. This system becomes even more remarkable in its
structure when we recall the diverse institutions and
conceptual apparatus that under-gird the Union. EU
confederalism is clearly shaped by, yet differs from, U.S.
federalism; the EU represents a collectivist-statist variant
to liberalism in contrast with the Anglo-American tendency
toward liberal individualism and social contract views of the
state. Europe represents a bracing challenge, a competitive
partner, but not a political or economic threat. To the
bravest, Europe represents an inspiration for possible
inter-American governance projects centered on economic and
political integration of the Americas. We now turn to the
intellectual foundations of the EU to understand why and how
all of this is so.
Unlike the institutions, the legal concepts
that are key to implementing the vision of Europe generally
parallel similar concepts in U.S.
*73 federalism. Further, where some
concepts do not appear similar at first glance, a closer
inquiry reveals that analogies exist. In fact, legally, rules
of law are converging due to globalisation toward free
movement of goods and capital to create economic integration
both to avert war and to create prosperity -- the EU is
however the most advanced example of this tendency of rule
convergence around the concept of economic integration through
free movement of goods, capital and also of workers. Once we
understand that general principles in the EU play the same
role of guarantors of basic human rights that constitutional
rights play in the United States, it is much easier to
understand their content, functions, limits, and extensions.
The
acquis communautaire denotes
the set of all EU legislation and case law.
27
Any state that wishes to join the EU must agree to abide by
the existing
acquis. The
acquis ensures that
the EU moves Member States toward the desired goal of economic
interdependence. The
acquis can be seen as both
constitutional laws that express inalienable rights (the
American sense of constitutional) and also as constitutive
rights that create the core of the EU (the European sense of
constitutional, i.e., the basic economic rights which
constitute the polity).
General principles of law exist in the
domestic legal order of civil law jurisdictions in countries
such as France and Germany. They also exist in international
law and the law of the EU. However, the general principles of
law, as a source or interpretive guide to the law, do not
exist in the common law's domestic legal order. Although the
general principles of law are a source of international law,
in domestic civil law they are usually persuasive evidence
(the case in France). In contrast, there are no domestic
general principles of law in the common law.
28
Understanding this asymmetry is a partial explanation of
terminological confusion among terms such as "general
principles of law," "fundamental rights," "basic rights," and
"human rights." All these concepts are converging on each
other around the concept of jus cogens (non derogable
fundamental rights in international law).
Terminological confusion also arises out of
language differences. "Fundamental rights," "
principes
généraux de droit," "
droits de l'homme," "
Grundfreiheiten,"
and "human rights" as legal concepts are simultaneously
*74
similar and different. All
address the basic idea of how to discover inherent claims of
the individual to protection. However, they are not entirely
congruent. When a German lawyer speaks of
Grundfreiheiten
it is fairly evident that she means the basic four freedoms of
the EC treaty--free establishment and the free movement of
labour, capital, and goods,
29 the constitutive
rights of the EU. Those rights are an artificial construction
intended to serve the purpose of creating a single market.
They are thus not "natural" in the sense that a natural right
means one that is inherent to the human condition and could
not be otherwise.
Grundfreiheiten can be thought of as
the economic means to political goals and are thus
distinguished from inalienable fundamental rights.
30
They constitute the economic constitution of the EU. While a
"basic right" (
Grundfreibeit) would thus be
hierarchically superior to ordinary legislation of the Union,
it would also be logically inferior to the inalienable
fundamental rights in, for example, the ECHR.
When we consider "fundamental rights" we
must also note that French law does not generally speak of
droits
fondementaux but rather of
droits de l'homme--the
rights of man, i.e. human rights. French scholarship also
addresses human rights through the general principles of law,
a persuasive evidence of the law in France.
Principes
généranx du droit and fundamental rights are not
however the same concept. Nevertheless these concepts are all
converging due to globalisation.
To this complexity is added the fact that
the EU is a
sui generis legal order.
31
The general principles of national and international law are
tinged by this fact and do not transfer immaculately from
either the national or international legal order. This fact
allows both the Strasbourg and Brussels courts to flexibly
develop human rights.
Distinguishing between constitutive
principles and constitutional principles allows us to
understand the content and limits of rights. Constitutional
principles refer to those principles of law that are so
fundamental to the legal order that it could not exist without
them. They are generally natural, not positive, and are
substantive ends. Constitutional principles are by this
definition indispensable to the final logic of the legal
structure. Constitutive principles, in contrast, refer to
those rules by which other rules are formed. They are the
framework through which the goals
*75 of the legal structure are
expressed. The constitutive principles constitute the
framework in which the constitutional principles are
expressed. They are generally positive, not natural, are
usually procedural and are means to the end.
A constitutional right is hierarchically
superior to a constitutive right in some senses: the
constitutional right is the end toward which the constitutive
right seeks. The substantive-procedural distinction is
dichotomous but valid because the former expresses the
teleological and material cause, whereas the latter expresses
the efficient and formal cause.
The "four freedoms" are those economic
liberties that are needed to assure the economic integration
of Europe: the free movement of goods, labor, capital, and
services. They are constitutive principles.
Free trade agreements normally include only
the idea of free movement of goods. However, the EU also
guarantees the right of a business to set up shop anywhere in
the EU--the right of establishment. The EU also guarantees the
right of capital to move from any bank in the EU to any other
bank in the EU-- the free movement of capital. Finally and
perhaps most importantly, the EU guarantees workers the right
to take up residence for work or study anywhere in the EU.
The free movement of workers globally is
the next step in global prosperity. Due to demographics and an
aging population, the first world faces an increasing labor
shortage: Third Workers in the First World remit some of their
pay home, lifting well-being in the Third World and reducing
global tension resulting from vast income inequality. The
logic of the free market should also be applied to labor
markets to benefit the world's poorest. In this sense, the EU
has been the vanguard of liberalism.
Americans usually think of constitutional
rights as fundamental and inalienable. The basic four freedoms
of the EU form a type of "economic constitution." These "basic
rights" (
Grundrechte) are teleologically interpreted
not as absolute inalienable rights but rather as relative to
other basic rights, and as the means to the end of creating a
single market to attain the good life for all Europeans. Thus,
the fundamental economic freedoms (
Grundrechte) are
subject to the general principles of proportionality and
perhaps also subsidiarity. To American legal scholars, the
principle of proportionality is a familiar test for the
constitutionality of a law,
33 though it is better
known to U.S. jurists as means-end rational review. The law
must be a rational means to a permissible end. Subsidiarity
essentially
*76
holds that the EU acts only
where the goals of the Union would be best achieved by
collective action at the level of the Union.
34
In theory, the confederal power is final, but limited. When in
doubt, powers are reserved exclusively to the Member States.
However, since human rights are by their nature guaranteed to
all persons, subsidiarity cannot limit human rights
protections by the EU since such protection complements and
does not replace the Member States' human rights protections.
The key organizing and legitimating
principle of the post-war world is human rights protected as
fundamental rights e.g. the non-derogabley
jus cogens
of international law. The ultimate goal of the EU is to
guarantee and improve the quality of life for all through
increased prosperity. This view is consistent with the
materialist view of human rights, which holds that human
rights are conditioned by economic development. EU law seeks
to ensure the maximum possible standard of protection of human
rights by permitting private causes of action to be heard
before the European Court of Justice.
35
Contemporary international law is marked by directly
enforceable individual rights.
In addition to the European Convention's
express protection of human rights, the EU also recognizes
numerous basic rights outlined in treaties. These rights are
usually expressed, not with the American terminology of
"fundamental rights," but rather in terms of the civil law as
"general principles of law." General principles of law are
used by judges to render terms of the treaty more precise, to
fill gaps in the law,
36 and to cure
ambiguities in the law by lending their support to the
interpretation most reasonable and coherent with the spirit of
the treaty.
37 Further, the
principles permit judges to limit the discretionary exercise
of power by the community's organs or even by Member States
where the Member State acts in an area of community
competence.
38 However, this very
flexibility can create confusion as to the application and
contours of the general principles. Legal terminology here
appears only partly helpful. The description of one and the
same concept as at times a "fundamental right" and at others
as a "general principle" is partly to blame.
39
This tendency is due to globalisation and (deductive) general
*77
principles and (inductive)
fundamental rights are currently converging on each other due
to globalisation to create a uniform world law.
General principles of European community
law often operate in the same manner as fundamental human
rights. Fundamental rights guaranteed within the EC treaties
as general principles of law include: the principle of
equality, freedom of religion,
40 freedom of
expression and of information, protection of confidentiality,
the inviolability of one's home, the right of self-defense and
the rights of the accused, the non-retroactivity of criminal
laws, the right to redress before the court, economic and
property rights,
41 and freedom of
association and employees rights to organize. This list of
rights protected directly by the EC treaties is hardly
exhaustive.
42
Whether a right exists and whether the
holder of that right has the power to enforce it are two
distinct questions. The direct effect of the basic rights of
the EC Treaty and ECHR--the self-executing nature of the
rights in those treaties--is sometimes analyzed using a
concept from German constitutional law, third party effect (
Drittivirkung).
Vertical direct effect (v
ertikale unmittelbare
Drittivirkung) binds EU member states such that
individual citizens will have rights against the Member State.
43
Horizontal direct effect (
horizontale Anwendbarkeit)
binds the citizens of the member states
inter se.
44
The problem is that the term
Drittwirkung
admits of more than one meaning.
45 Some contend that
Drittwirkung
refers only to vertical direct effect, the relations between
citizens and Member States. A second school contends that
Drittwirkung
means that "provisions concerning human rights also apply in
mutual legal relation between private individuals, not only in
legal relations between an individual and the public
authorities."
46 The distinction
appears to turn on whether the right can be used by an
individual to compel another individual to act or refrain from
acting as to a particular conflict.
The various meanings of
Drittwirkung
can also be illustrated by the example of the ECHR. In dualist
states such as Britain prior to the passage of the Human
Rights Act, individuals might have rights under the ECHR, even
as to other individuals, but they would nonetheless only be
able to proceed against a state. That seems to correspond to
the first meaning of
Drittwirkung given above--the
individual has a right, but can only enforce it via invocation
against the state. The second situation can also be
illustrated by reference to the ECHR. In monist states such as
France, treaties
*78
are an integral part of the
domestic legal order and the ECHR may be invoked by private
persons against private persons.
Drittwirkung acquires
multiple meaning as soon as the focus changes from "who holds
the right" to "how may the right be enforced." This confusion
is only partially reduced by the concept of "direct" and
"indirect" effect.
Third party effect may be either direct or
indirect. A direct third-party effect (
unmittelbare
Drittwirkung) exists in German domestic law when the
legal rule is applied against the individual citizen.
47
Indirect third party effect (
Drittwirkung) exists when
the fundamental right loosely binds individual parties to some
basic legal rule by legal interpretation, for example where a
law is interpreted in light of a right expounded in the
convention or treaty.
In EU legal discourse the terms
"horizontal" and "vertical" effect are often used in further
defining
Drittwirkung, particularly when discussing
the four basic freedoms (
Grundfreiheiten). In a
conflict between the right to contract (a general principle of
law) and the free movement of persons (one of the four
freedoms, a
Grundfreiheit) horizontal direct effect
would say that the community law binds the individuals
inter
se. Thus if the basic freedom (
Grundfreiheit) has
horizontal direct effect (
unmittelbare Drittwirkung)
then the general principle of freedom of contract would
probably have to give way. This illustrates a related problem:
even if we know whether the right is applicable to individuals
inter se, and whether such effect is affects
individuals
inter se or
vis-Ã -vis the
state as either binding law or merely as a persuasive
interpretive guide, one still does not know the relative
positions of basic freedoms (
Grundfreiheiten),
fundamental rights (
droits fondemen-taux), human rights
(
droits de l'homme), and of the general principles of
law (which may be national, international or European ... ) in
the hierarchy of norms. The typology here suggested is to
recognize the convergence of fundamental rights into general
principles and then to distinguish among basic rights by these
criteria: whether the right is natural and inalienable, or
instead positive economic and alienable; whether the right is
a means to some other end, or an end in itself. Whether the
right is procedural (a rule for determining other rules) or
substantive. The resulting hierarchization places economic
rights below inalienable rights, substantive rights above
procedural rights, and ends above means.
To see that
Drittwirkung is just
one more method--and a subtle, nuanced one at that--by which
liberals attempt to channel political struggles, class
conflict, hatred, and jealousy into constructive economic
competition, requires no great imagination. The entire liberal
order is predicated, since at least Aristotle and at latest
Hamilton, on profitably
*79 channelling democratic impulses
to avoid political extremes. Thus, in so far as
Drittwirkung
is one element in the (neo) liberal order, it is nearly
tautological to say that the exact content of the concept of
third party effect (
Drittwirkung) is manipulated in
order to channel conflict and avoid political extremes.
Consistent with that realist view, it is useful to recall that
the essence of the post-war constitutional structure of
Germany was to protect human rights and prevent the rise of a
strong, central, absolutist government. The finality of Europe
is not merely a "market without a state." Rather, European
market integration is and has always been intended as a
necessary first step toward political integration. The
ultimate contours of Europe--federal state, confederation, or
a concentric association of states spanning continents--may
not be clear to us today. However it is clear that while the
concept of an "economic constitution" helped Europe to achieve
the initial goal of a single market, it cannot direct European
policy toward any goal other than a mere customs union. The
idea of Europe as only having an "economic constitution"
completely ignores the cultural and foreign policy aspects of
European integration.
Because the concept of an economic
constitution, of which
Drittwirkung is a part, coheres
well with a minimal state, it was easily and compellingly
subsumed into EU law. The community was weak, and an object of
the post-war economic constitution was to accommodate
competing interests precisely so that the central governments
could absolve themselves from totalising goals. Further, the
process of European integration has always been driven by
economic arguments of increased efficiency through free trade,
reduced transaction costs, and improved competition overseas
which also mesh nicely with the liberal market assumptions
underlying the idea of a (purely) economic constitution (
Wirtscbaftsverfassung).
But if on the surface an economic
constitution appears to mesh perfectly with the
raison
d'être of the Union, a closer examination reveals
that in fact the idea of a (pure) economic constitution is
inapt to the final logic (teleology) of the Union. The
advantages of the Union go beyond a mere customs union to
include the benefits of a single currency, common foreign and
agricultural policy, and common cultural policies. The idea of
an economic constitution served Europe well in its first phase
of economic integration but cannot by definition go beyond
economic integration to political integration.
To the extent that
Dnitwirkung
embodies and protects a purely economic constitution, it is
inapt to address questions of human rights. Fundamental human
rights are values which are inalienable and in that sense
prior and superior to economic rights. Trying to use market
based tools of analysis for determining whether and when the
ECHR or the Maastricht Treaty create rights between private
parties
inter se is inapt because:
"It is often
unclear how 'private' private property really is: when the
Government reduces the tax payable on petrol, is this a
subsidy to the oil companies? Is a state-regulated private
monopoly 'private'? When a company relies entirely on tax
incentives and government patronage, is it still 'private'?
Why should it be different from a company where the State owns
51 percent of the shares or from a company where the
Government has a 'golden share'? Is a self-regulating
occupational organization, such as the Law Society, private?"'
48
The public/private distinction has been
academically long discredited.
49 Even if it were
tenable, the existence of private bodies to assign rights
through market interactions does not mean that such a method
is socially desirable. Some values have greater importance
than money; it might be socially desirable to ignore the
public/private distinction. Thus,
"Even if we could
find completely private bodies, there may still be a case for
making them comply with public standards. For example, private
television companies may be obliged to screen the party
political broadcasts of all major parties, and American
privately owned corporate towns and private shopping precincts
have been forced to allow their premises to be used as a
marketplace not only for goods, but also for the market of
ideas."
50
Finally, appealing to private ownership as
the key to assigning rights ignores the fact that the
mechanisms to enforce property rights are granted by the
state.
51 For these reasons
the market is simply the inadequate instrument for protection
of human rights.
Political reasons are not the only
explanation of why
Drittwirkung may be inappropriate
as a doctrinal concept at the EU. The term itself has several
different meanings.
52 As two scholars
noted: "
Drittwirkung is a complicated phenomenon about
which there are widely divergent views."
53
Drittwirkung doctrine confuses the existence of a right
with the possibility to enforce that right. Such a basic
confusion should really simply be obviated by avoiding the
term and speaking less abstractly about concrete legal
disputes in individual cases.
*81 Finally, the confusion of the
meanings of
Drittwirkung results in doctrinal
incoherence in EU law. This confusion arises because
transposition also results in transformation.
"What seems to
have happened is that the more usual
mittelbare
Drittwirkung [i.e. indirect effect] application, as
developed at the national level, has been adopted at the
international level in its unmittelbare form [i.e. what is
called indirect effect in the domestic German legal order is
somehow recast--or misunderstood--as direct effect at the EU
level]."
54
This confusion of
Drittwirkung's
meaning and consequences at the ECHR and EU explains why this
author believes the question would be better analysed through
focusing on the practical questions whether and when the ECHR
and EU law has effect on individuals
vis-Ã -vis
the community and on individuals in their relations
inter
se. Focusing attention on the concrete legal questions
in actual cases obviates confusion created by the term
"direct" or "indirect."
This article has sketched out the ideas,
institutions, and laws that form the EU. The EU is
conceptually and politically organized by a confederal
structure markedly different to U.S. federalism, despite some
juridical similarities. Founded on holist-materialist variants
of liberalism, as opposed to Lockean liberal individualism and
social contractarianism, EU confederalism is influenced by,
yet different from, U.S. federalism. The EU expresses a
pragmatic yet visionary response to the problems of war and
poverty. An understanding of the intellectual, institutional
and juridical framework of the EU enables North and South
Americans to draw on European models for economic and
political integration to build economic prosperity and
political stability throughout the Americas.