PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW While politics wrestles with the Constitutional Treaty, this volume presents a European constitutional law—not as a mere project but as binding law. There are good reasons to treat the European Union’s current primary law as constitutional law: it establishes public power, legitimates legal acts, pro- vides a citizenship, protects fundamental rights, and regulates the rela- tionships among legal orders as well as between law and politics. Reconstructing primary law as constitutional law yields useful insights, as this volume seeks to demonstrate. This volume presents European constitutional law as it stands and, on that foundation, the Treaty establishing a Constitution for Europe. The contributions present its theoretical and doctrinal fundamentals from the perspective of German-speaking scholarship, reflect the state of research, clarify methodological approaches, illuminate legal doctrines and assump- tions, and identify research desiderata. The perspectives on offer are not uniform, but encompass varying methodologies and differing political approaches to integration. Volume 8 in the Series Modern Studies in European Law Modern Studies in European Law 1 Soft Law in European Community Law Linda Senden 2 The Impact of European Rights on National Legal Cultures Miriam Aziz 3 Partnership Rights, Free Movement and EU Law Helen Toner 4 National Remedies Before the Court of Justice Michael Dougan 5 The National Courts Mandate in the European Constitution Monica Claes 6 EU Environmental Law Maria Lee 7 European Union Law and Defence Integration Martin Trybus 8 Principles of European Constitutional Law Armin von Bogdandy and Jürgen Bast Principles of European Constitutional Law Edited by Armin von Bogdandy and Jürgen Bast Max Planck Institute for Comparative Public Law and International Law OXFORD AND PORTLAND, OREGON 2006 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Web Site: www.isbs.com © The editors and contributors jointly and severally 2006 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval sys- tem, or transmitted, in any form or by any mean, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be cov- ered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB email: mail@hartpub.co.uk Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-464-2 (hardback) ISBN-10: 1-84113-464-3 (hardback) Typeset by Compuscript, Shannon Printed and bound in Great Britain by TJ International, Padstow, Cornwall Preface W HILE POLITICS WRESTLES with the Constitutional Treaty as the founding legal document de lege ferenda, this volume presents a European constitutional law—not as a mere project but as binding, valid law, as lex lata. Of course, no document in force carries this designa- tion. Scholarly terminology, however, does not require the blessing of poli- tics. There are good reasons to treat the European Union’s current primary law as constitutional law. After all, it establishes public power, legitimates legal acts, provides a citizenship, protects fundamental rights, and regulates the relationships among legal orders as well as between law and politics. Constitutional law is conceivable without a state, a nation, or an instrument that fulfils all the traditional requirements of a constitution. Reconstructing primary law as constitutional law yields useful insights, as this volume seeks to demonstrate. Such an endeavour does not imply a justification of primary law in force—rather, both achievements and deficits become apparent. This volume presents European constitutional law as it stands and, on that foundation, the Draft Treaty establishing a Constitution for Europe as agreed upon by the European Convention (CONV 850/03 of 18 July 2003, hereinafter CT-Conv) as well as the Treaty establishing a Constitution for Europe finally adopted by the ensuing Intergovernmental Conference (CIG 87/04 of 6 August 2004, hereinafter CT-IGC). The work on the chapters was finalised in October 2004, the book reflects the European state of affairs of that time. The contributions present the theoretical and dogmat- ic fundamentals of European constitutional law from the perspective of German-speaking scholarship, reflect the state of research, clarify method- ological approaches, illuminate legal doctrines and assumptions, and iden- tify research desiderata. This volume brings together authors of varying methodologies and differing political approaches to integration; they are united by the desire to protect—and even to develop further—the existing constitutional culture within the Union. This project is deeply indebted to the Fritz Thyssen Stiftung, which gen- erously financed the extensive collaboration of the authors. Stephan Bitter, Andreas Magnusson, Julia Schwartz, Michael Rötting, Robert Stelzer, Markus Wagner, and Joseph Windsor provided valuable assistance in the completion of the volume. [...]... e) European Competition Law and Contract Law 653 f) The Nature of “Individual Rights” of European Economic Law .654 g) Concluding Characterisation of the European Economic Constitution 655 III IMPACT OF CONSTITUTIONAL PRINCIPLES ON COMPETITION LAW 656 1 Methodology for the Identification of the Relevant Principles 656 xxvi Contents 2 Effectiveness of Constitutional Principles. .. Competition Law .657 3 “Homogeneity” of Competition Law with General Constitutional Principles .659 a) Competition Law as an Expression of a European Constitution of Individual Freedom and the Rule of Law 659 b) A Democratic Concept of the Market? 660 c) Social Justice and Equal Protection? 660 4 European Rights of the Citizens 662 5 Subsidiarity and the Problem of Multilevel... and the European Private Law Development 645 4 The Economic Constitution from a Community Law Perspective 648 a) Legitimacy of an Ordoliberal Approach to the European Economic Constitution 648 b) Objectives of European Competition Law 648 c) Economic Freedom as a Subjective Right of European Competition Law? 650 d) “Individual Rights” as Part of European Competition Law ... Legally Binding Character .511 bb) Adaptations of the Charter within the Constitutional Context—the Fear of Judicial Activism 512 (1) Field of Application of the Charter 512 (2) Constitutional Traditions and General Principles of Law .513 (3) Limitation of Interpretation of the Provisions 514 III CORE ELEMENTS OF THE LEGAL DOCTRINE OF FUNDAMENTAL RIGHTS 515 1 Preliminary... CONSOLIDATION OF THE INSTITUTIONAL SYSTEM OF THE EUROPEAN UNION 690 1 Peculiarities of the Institutional System of the Union 690 2 The Legislative Process of the Union 693 3 Distribution of Competences in the Union 698 IV FORMING THE CONSTITUTIONAL AND LEGAL ORDER OF THE EUROPEAN UNION 703 1 The Constitutional Structure of the Union 703 Contents xxvii 2 The Position of the Member... 632 15 Josef Drexl: Competition Law as Part of the European Constitution 633 I INTRODUCTION 633 1 Competition Law as Substantive Constitutional Law 633 2 Competition Law and Constitutional Principles 635 II COMPETITION LAW AS PART OF THE ECONOMIC CONSTITUTION .636 1 The German Concept of the Economic Constitution 636 a) German Constitutional Debate After 1949 637 b)... Administrative Constitutionalisation 218 d) The Legitimacy of Evolutionary Constitutionalisation 220 V EUROPEAN CONSTITUTIONAL LAW A LEGAL FIELD AND ITS ACADEMIA 220 VI EPILOGUE: THE CONSTITUTIONAL TREATY .223 1 Constitutional Deliberation: Convention and Intergovernmentalism 223 2 Constitutional Moments: The Political Remaining Outside 224 3 Constitutional Honesty: The Constitutional. ..Contents xi 2 Limited Primacy of Community Law over Constitutional Law .98 3 Primacy of the Constitution 103 4 The Situation in the Legal Systems of New Member States 104 5 Similarities and Differences in Justifications 105 6 The Legal Situation According to the Constitutional Treaty 106 III CONTENTS OF NATIONAL CONSTITUTIONAL LAW RELATING TO THE EUROPEAN UNION .107... Necessary Development of the Legal Doctrine of Fundamental Rights 515 a) Functions of the Legal Doctrine of Fundamental Rights Against the Background of Diverging Fundamental Rights Cultures .515 b) The Necessity of Further Development of the Present Legal Doctrine of Fundamental Rights of the ECJ and the Light at the End of the Tunnel 517 2 Functions and Classification of Fundamental Rights... .664 IV IMPACT OF COMPETITION LAW ON THE EUROPEAN CONSTITUTION .664 1 The Market Citizen as the Constitutive Force of Parts of the European Constitution 665 2 Impact on the Interpretation of Substantive Community Law: Taking into Account the Competition Law Dimension 665 a) Application of the Fundamental Freedoms 665 aa) Keck Revisited 666 bb) The Problem of Reverse Discrimination . Series Modern Studies in European Law Modern Studies in European Law 1 Soft Law in European Community Law Linda Senden 2 The Impact of European Rights on National. PRINCIPLES OF EUROPEAN CONSTITUTIONAL LAW While politics wrestles with the Constitutional Treaty, this volume presents a European constitutional law not