Revolt or Revolution: The Constitutional Boundaries of the European Community (review)

Revolt or Revolution: The Constitutional Boundaries of the European Community, by Diarmuid Rossa Phelan (Dublin: Round Hall Sweet & Maxwell, 1997) 431 pp.

I. Introduction

This book provides a fascinating look at the interrelationship between European Community (EC) law and the constitutional law of its members, with a focus on its effects in France and Ireland. The book is divided into six parts, including an introduction. Diarmuid Rossa Phelan first introduces his theme that there is a gap between EC law and how it views its status in national courts and the national courts' view of that status. The author argues that the existence of the gap and the fact that EC law and national law are based on different legitimacies will lead to either a revolt in the national courts or a revolution in law where consistent legitimation becomes impossible in the Member States. He then notes the proposition that EC law is an autonomous legal order that does not follow the traditional norms of public international law.

In Part II the author discusses EC law. He includes an analysis of public international law treaties as interpreted by EC law and describes how they differ. In Part III Phelan covers French Constitutional law including a description of the history of the process of the ratification of the Treaty on European Union as well as French Constitutional law interpretation of EC law. Part IV covers Irish Constitutional law with two separate subsections on the application of public international law and EC law in that system. Part V reviews cases, primarily in Ireland, where the application of EC law has either created a conflict or has had the potential for creating a conflict in constitutional law. Finally, in Part VI, the author presents suggestions for resolving the various conflicts he predicts. Each section will be discussed in greater detail below. However, I believe that the potential for conflicts described by the author has not risen to the crisis level precisely because the national courts want to avoid the conflicts that Phelan suggests.

II. European Community Law

In this section the author develops his thesis that European Community law is different from public international law in that it does not rely on that legal order to establish its supremacy. In other words, EC law makes more demands on national law than treaties traditionally have. EC law adopts a monist approach in which the member countries have agreed that EC regulations would be directly applicable in the Member States' respective legal systems without requiring that they by adopted by the legislative body of the Member State as would be the case in a dualist system. As such, EC law is more like the constitution of a federal state than a traditional international organization as is contemplated under public international law.

Phelan begins by analyzing the decisions of the Court of Justice of the European Communities (Court of Justice, or Court) to show how the monist principle has been used to increase legal integration throughout the EC and thus establish a new legal order. He argues that EC law is upheld because there is an EC law duty rather than a national law duty to do so. He criticizes the Court of Justice for not relying on the usual sources of law in interpreting the instrument, such as those set forth in Article 31 of the Vienna Convention on the Law of Treaties ² and those relied on by the International Court of Justice under Article 38 (1) of the Statute of the International Court of Justice. ³ The latter sources are international conventions, international custom as evidence of a general practice accepted as law, general principles of law recognized by civilized nations, and judicial decisions and teachings of the most qualified publicists. Unfortunately, Phelan does not include in his discussion a detailed consideration of the negative effect that failure to follow those norms may have on the...