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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 <strong>Law</strong>, EUI Working Paper <strong>Law</strong> 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
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) constitution, the above claims are sufficient to be made. The sensitivity of the economic constitution manifested itself in the course of drafting the TCE. The objectives of the Union, the Charter of the Fundamental Rights of the Union, economic and fiscal policies and the budgetary procedure were among the most debated issues of the Intergovernmental Conference (hereinafter IGC), which commenced its work on the 4th of October 2003 – during both the Italian and the Irish presidencies. 14 The concept of the economic constitution should be applied when outlining the economic constitution of the Union, pursuant to which it concerns the constitutional principles, the provisions pertaining to objectives and competences and the fundamental rights. Depending on how detailed the constitutional regulation is, the economic constitution – typically in respect of the provisions pertaining to competences – may be perceived in a narrow and in a broad sense. In the case of succinct constitutions in the broad sense it may include for instance provisions pertaining to the structure of proprietorship, social policy, employment policy, fiscal policy and the budget, whilst in the case of more detailed basic laws in the narrow sense it only includes provisions pertaining to economic policy. When construing the economic constitution, it is always incidental whether to apply the narrow or the broad sense, or how to classify the relevant provisions, it always reflects the arbitrary choice made by the analyst from among the view points. In connection with the Union, the rest of the study examines the economic constitution of the TCE in the broad sense. The aim of this study is to examine only one objective and the relevant fundamental rights. 15 The relevant provisions of the TCE may be grouped by its articles or by its conceptual elements. On the basis of the conceptual elements of the economic constitution, the legal norms stating the objectives of the Union that have market economy in their heart may be perceived as provisions belonging to the fundamental principles. 16 The institutional framework 17 of the Union and the scope of the duties and powers of its important institutions and organs – the European Central Bank 18 and the Court of Auditors 19 – form a separate group. Provisions pertaining to the powers of the Union 20 , economic and monetary policy 21 , internal market 22 , employment 23 and social policy 24 , environment 25 , industry 26 and common commercial policy 27 belong to the competence-provisions. Norms pertaining to the financial principles of the Union 28 and the financial provisions 29 should be placed into a separate group. Provisions pertaining to law include the existence of the constitutional state, the special capacity (or outstanding role) of law, the recognition and enforcement of the fundamental rights, European Union membership and the ratification of the TCE. 14 Cf e.g. the documents of the third (CIG 37/03), the seventh (CIG 75/04) and the eighth (CIG 78/04) ministerial meetings. SCADPlus: Work of the IGC 2003/2004. The Intergovernmental Conference 2003/2004: Negotiations under the Italian Presidency. 8., p 10. http://europa.eu.int (12 01 2005.) SCADPlus: Work of the IGC 2003/2004. The Intergovernmental Conference 2003/2004: Negotiations under the Irish Presidency. 4. p 5. http://europa.eu.int (12 01 2005) 15 Describing the other elements would go well beyond the limits of this study, consequently, no thorough examination of them is conducted, only references are made. 16 Part I, Title I 17 Part I, Title IV, Chapter I 18 Part III, Title VI, Chapter I, Section 1, Subsection 6 19 Part III, Title VI, Chapter I, Section 1, Subsection 7 20 Part I, Title III, Title V 21 Part III, Chapter II 22 Part III, Title III, Chapter I 23 Part III, Chapter III, Section 1 24 Part III, Chapter III, Section 2 25 Part III, Chapter III, Section 3 26 Part III, Chapter V, Section 2 27 Part III, Title V, Chapter III 28 Part I, Title 7 DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 67
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