114
Daniel Halberstam
Deuxième séance de travail — Les retombées
provides the core of what I have called elsewhere the ‘democratic recalibra-
tion’ of Europe (
9
).
On
Van Gend
’s institutional side, five words changed the union: ‘which na-
tional courts must protect’. Having reached the normative conclusion that the
Treaty confers rights and obligations on individuals,
Van Gend
told member
state courts what to do. The institutional significance of these words becomes
apparent in the operative part of the ruling. Speaking directly to the national
court that had referred the question to Luxembourg, the European Court of
Justice replied that the treaty creates individual rights ‘which national courts
must protect’ (
10
).
Thinking back to Hamilton and the Supremacy Clause, we understand
these normative and institutional components both as core constitutional
claims. European law is the law of the land, and national courts must protect
that law. Primacy would easily follow from these premises in
Costa
v
ENEL
a
year later.
Problem or Promise?
In thinking about constitutions, we tend to assume the need for a singular,
grand foundational act. We often look for an authoritative external actor who
puts the whole of the constitution in place all at once. Following the
Abbé
Sieyès, we like to think of that actor as the
pouvoir constituant
, that is, the con-
stituting power that acts outside the constitution to create the constitution.
‘We the People’ are often thought of in this way. And the European Union did
not have that.
A Piecemeal Constitution
Europe’s constitution did not come about all at once. Europe has, instead,
what we can call a ‘piecemeal constitution’,
i.e.
one that was established in bits
and pieces over time.
Van Gend
’s direct effect and the claim of supremacy that
followed a year later are both crucial elements, but other important pieces
have since been added. Some have come via treaty amendments, while others
can be found in decisions the Court and other actors made along the way.
(
9
) D. Halberstam, ‘
The Bride of Messina: Constitutionalism and Democracy in Europe’
, 30 Eur.
L. Rev. 775 (2005).
(
10
) [1963] ECR 1, at 16.
