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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
economic and a political part, it only means a more stressed interpretation of its different provisions, as it
is impossible to split the unified basic law consisting of legal norms into two. 7
The conclusion reached by Katrougalos is closer to the constitutional law approach towards the economic
constitution in so far as according to it the Communities have had an unfinished (economic) constitution
from the start, as concerning the fundamental rules, they have a system with power beyond the legislative
power, which on the one hand regulates economic procedures, on the other hand these rules define the
legitimate national restrictions imposed on the operation of the market. 8 Ipsen applies the concept of the
economic constitution to the relevant elements of primary law – that is to the customs union, the four
freedoms and the prohibition of discrimination. 9 Under primary law, politics and economy shall be based
on an undistorted market system. These restrictions of the political discretion together with the economic
freedoms constitute the economic constitution. The guaranteed freedoms, the opening up of national
economies, the regulations against discrimination and the commitment to an undistorted market may be
interpreted as decisions supporting an economic constitution of a market economy. 10 In principle, the EEC
Treaty may be construed as a market-economic constitution. 11 Apparently, the above definition of the
constitution is a guiding one concerning the fundamental treaties in the special literature, too. It is justified
– among others – on the one hand by the more and more separated EC/EU legal system, which is based on
the fundamental freedoms, the establishment of the inner market and the detailed and unified competition
rules. This legal system has grown out of the field of economy in a narrow sense, and restricts the scope of
action of the state/national legal systems like basic law, and even becomes an organization with a
constitution taken in a legal sense. It follows from this that there are debates about the economic neutrality
of the EC treaties at community level similar to the debate about the German economic constitution. 12
The core of the debate is whether guaranteeing the freedoms of the treaty and regulating the competition
are operative only for the member states or restrictions on the exercise of community competences may
also be gathered from them, and if yes, to what extent.
In order to answer the above question, the Treaty establishing a Constitution for Europe (hereinafter TCE)
should be examined. Considering that after the ratification of the TCE, the European Union becomes a
constitutional supranational legal personality composed of the Union’s constitutional states of the rule of
law 13 , there is no need to thoroughly examine the former organisation in respect of the economic
7 In spite of it Francesco Saverio Marini conveys the suggestion that it is worth separating the economic and the political
constitution. Francesco Saverio Marini: Il „privato” e la costituzione. Rapporto tra proprietà ed impresa, Milano, Dottore A.
Guffrè Editore 2000 p 65. Cf Gygi: ibid p 23. René Rhinow: Die Bundesverfassung 2000. Eine Einführung. Helbing &
Lichtenhahn, Basel-Genf-München 2000 p 299.
8 G. S. Katrougalos: The „Economic Constitution” of the European Union and the protection of social rights in Europe.
www.iacloworldcongress.org/workshop/6 (24 11 2004) p 2.
9 Weiler improved Ipsen’s theory ten years later. Christian Joerges: The Market without the State? The ’Economic Constitution’ of
the European Community and the Rebirth of Regulatory Politics. 1997. http://eiop.or.at/eiop/texte/1997-019a.htm (24 11 2004)
p 5.
10 Christian Joerges and Florian Rödl: „Social Market Economy” as Europe’s Social Model? European University Institute,
Florance, Department of Law, EUI Working Paper Law No. 2004/8. Italy 2004 pp 5-6.
11 This is not changed by the exceptions from the competition-oriented regulations either, the provisions of the ECSC and the
Common Agricultural Policy. These are the most typical examples of integration through intervention. Mussler: ibid pp 190-
191. C-179/90, Merci Convenzionali Porto di Genova 1991 ECR I-5889. Katrougalos: The „Economic Constitution” of the
European Union p 19.
12 On the summary of the debate see e.g. Mestmäcker: ibid p 3.
13 The Union’s constitutional state of the rule of law – by the commencement of the TCE – appears as a new type of the state of
the rule of law, the main peculiarity of which is that all activities of the state have to be directly and indirectly traceable to the
national constitution as well as to the TCE. Accordingly, further peculiarities of the Union’s constitutional state of the rule of
DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 66