For a European legal system

“FOROEUROPA” is a new publishing initiative of the Italian State Mint and Printing Office, at present available on Internet but soon to be presented on paper as well, undertaken at the same time as the start of work on the part of the Convention assigned by the European Council of Laeken to give concrete form to the European Union as a political entity through the formulation of a constitution: an ambitious and difficult challenge which will see the legal system play a vital role in constructing a balanced set of values, in addition to serving, in its own right, as one of the underlying values guaranteeing the new form of coexistence under which we have freely chosen to live.
This role, as becomes evident upon closer examination, shall take shape under the influence of the facts, meaning in the course of the debate that has arisen over the institutional and normative choices to be made, as well as the bodies, the functions and the interrelations between different subjects, plus the connected jurisdictions and legal situations. There shall necessarily be a change in the approach to topics of European law: it will no longer suffice to be well informed on Community jurisprudence, on the production of laws, on the gradual extension of the fields of interest and the joint action of the Union, nor, to this end, shall we any longer be able to limit ourselves to consulting the documentation and enriching our store of knowledge on the doctrinal formulations and analyses which the sciences of law, economics, politics and social affairs, together with technological research, devote to the ongoing phenomena of European aggregation and integration. Instead, we are obliged to accustom ourselves to reasoning in terms of a legal system that must be created, interpreted, applied and nurtured to success in a European dimension, and in a fairly timely manner, given that the need for such a system increasingly manifests itself between the lines of the documents of the Union’s institutions and the sentences of European-Community judges, taking the form of a direct message aimed at the general public, and no longer the exclusive concern of legal experts; what is more, the European “constituent assembly” intends to hear, on the most critical points, the opinions of the national sources with the greatest awareness of the subject matter, a group which will definitely include universities and, in more general terms, the academic and scientific forums in which legal theory and thinking are forged.
FOROEUROPA intends to contribute to this new effort to move in the direction of a European legal system, doing so to the full extent of its possibilities, through the elaboration of a wide-ranging and well-ordered review of the sentences of the Court of Justice and the decisions reached at the initial level of the court system, with the texts to be published in their full and unadulterated versions and as close as possible in time to their publication in the Italian language, complete with commentary from the editors, plus references to jurisprudence and legislative norms in cases where these are held to be necessary in order to place the rulings in their proper historical and systemic framework. Publication shall also be made, under the same criteria, of the sentences of other judges, including Italian magistrates, whose rulings present points of particular relevance to the European Community or to Europe as a whole; but, as mentioned earlier, the goal is to offer something more substantial as well, culling from the sentences – by means of adequate though necessarily brief commentary, or through foretastes of in-depth examination in the paper version of the materials – those messages and indications which European judges, for some time now, have been sending us through their rulings for the purpose of reiterating principles and introducing criteria of unified, or at least convergent, legal logic designed to give substance and content to a jurisprudence that reflects “day-to-day life”, meaning the concrete impact on citizens of the need to think and live, all of us together, in the European dimension. The arrival of the Euro has triggered, in this sense, an irreversible existential and cultural process which, all things considered, has been well accepted, but which can and must be proposed in other fields as well, with the first of these being the legal system, where the time has come to ask if, and up to what point, the structure of relations between European-Community law and national bodies of law can continue to be based on a prevalence of the former upheld by nothing more than a pact, as well as on the reserves regarding national sovereignty, not to mention the need to decide, on each separate occasion, whether or nor it is necessary to use the instruments of national legislative production to transpose the measures passed by the Community into national law. What must be faced are new and far deeper demands for a restructuring of the shared institutional reality, in order to meet the three major challenges which lie on the horizon for Europe: the entry of new member states for the purpose of fulfilling the historic and geographic destiny of the Union, together with the underlying tenets of full economic integration; the simultaneous, and in many aspects consequential, attainment of political unity in its most appropriate forms; the ongoing interrelations with the rest of the world, and with the other dominant areas, regarding political and economic-financial concerns, as well as the issues of peace, security, solidarity and the much sought-after dialogue between different ethnic groups and various levels of civilisation and existence. The debate over a European legal system has been fuelled by these subjects in recent times, resuming the ideal quest which had gradually taken it from the first projects of extremely limited range, in pursuit of a merely economic-commercial and agricultural protection of the six original European nations, to an extension of the sphere of European-Community obligations, together with the number of nations and citizens of the Community itself, into vital sectors of the internal market, such as competition, state subsidies and public tenders, with the end result being the establishment of the extremely important structures of economic and monetary union and of economic and social cohesion, as well as environmental and consumer defence, in a groundswell of developments that has received no small contribution from the jurisprudence of the Court of Justice, an institution which further provided the preliminary concepts for the fundamental principles of subsidiary government action and proportionality. These last milestones, together with the contributions made through accords on the subject matter of the second and third pillars, meaning security, foreign policy, cooperation in the sectors of law enforcement, justice and the construction of a European judicial venue, have shifted the axis of European-Community law towards the realm of relations between Community institutions, as well as between the Community itself and the member nations, in this way laying the groundwork, at least in theory, for an initial, albeit still amorphous, constitutional project, which was later to be augmented, though not without a good deal of hesitation and caution, by themes of significant institutional relevance, such as the coordination of economic policies, together with the acknowledgment of the fundamental rights of the European Union, creating an ethical-regulatory overview that pointed to a high level of constitutional expectations, an attitude which, at the Nice summit in December of 2000, was unanimously heralded as being on the European legal horizon, in what amounted to the harbinger of a new era. And the driving force behind this new era consists of the three fundamental challenges which were referred to earlier, and which the legal system - meaning the system that shall eventually have been filtered through the experiences of the European Community, as well as the traditions of culture, civilisation and democracy of the member nations - must respond to in a fitting manner, with opinions converging on the absolute necessity for support of the underlying principles of political unity, of acknowledgment of the sovereignty and empowerment of the government of the Union, of the hierarchy of legal measures and their sources, of the balanced distribution of prerogatives, resources and attendant powers among the Union, the member nations and the autonomous institutions on the federal, regional and local levels within their boundaries, of the structure of relations between the different powers, organs and individuals, as well as between these and authority, not to mention the constitutional controls which guarantee the ongoing viability of all the above.
The task at hand, therefore, is to write a new body of constitutional law which respects the original forms of sovereignty but constantly channels them towards the achievement of common objectives and benefits: a body of law that must definitely draw on the principles and criteria which, in the course of the last two centuries, have shaped and consolidated democratic structures, though it must also be capable of absorbing and putting to the best possible use the principles which most closely respond to the needs made manifest by the overall design of the new Europe. This, in fact, was the core message of the Declaration of Laeken on the future of the European Union, as well as that of the draft report issued on 6 February 2002 by the Constitutional Affairs Commission of the European Parliament, meaning the first documents drawn up on Community institutions to highlight the role which, within the complex construction about to come into being, must be played by the principles of subsidiary government and proportionality, two of the focal points towards which, up to the present, the mode of coexistence between the Union and its member nations has been fruitfully moving, though they must necessarily be supplemented by the principle of “constancy” referred to above. The aforementioned draft report provides an effective overview of what needs to be done: all the transfers of powers and prerogatives must be made at constant costs, with constant tax charges for the body public, meaning that any increase in taxes or expenses resulting from a transfer of power from the Union or towards the Union must be offset by a reduction of equal magnitude in another portion of the system, so as to neutralise any effect of the operation on taxpayers. And the practical language and shared determination must be brought to other, no less challenging aspects of the so-called economic constitution, such as the financial and monetary balances, the costs and the management of services of public utility and the distribution of roles between public and private wealth, with a shared and well-coordinated commitment to sustainable development: in these sectors as well, new criteria and methods of government and political initiative must courageously be identified, if necessary by overturning the traditional channels through which centres of interest are promoted and brought together, with an example being the granting of significant space to the analyses and proposals of local government bodies and their spontaneous accords, with the goal being to present the United Europe as a political entity capable of coming up with new ideas and serving as a model for the rest of the world, which today, more than ever before, has need of progress in the direction of the new. Within this alluring scenario, the legal system is to carry out, as was briefly noted at the start of this presentation, an extremely significant task involving both day-to-day experience and phases of reflection, and it would be a most grievous error to hold that there are still fields or sectors of legal knowledge which may be “exempted” from a serious revision under the Community perspective: were it not enough to note the signs of the influence of Community law not only on public law, as is to be expected, but also on civil and commercial law, with examples to be found in corporate law and in the defence of the consumer and the weaker parties to contracts, as well as in judicial cooperation in criminal law cases, it shall inevitably prove necessary – given the inherent nature of human relations to seek and invoke common rules – to review the underlying principles and to update, within a sphere of shared intents, the time-honoured canons of the law as well, such as the theory of obligations and contracts, the concrete rights of property, the prerogative of the laws of the individual states over crime and punishment, the presumption of the legitimacy of the acts of the Public Administration and the prerogatives of the internal legal systems over extradition and the acknowledgment of sentences issued by judges of other member nations, while, at the same time, thought must also be given to creating new legal juridical instruments, such as the establishment and procedural regulation of a European Constitutional Court, together with the management of the relations between such a court and the constitutional courts of the individual nations, plus the framework for synergy between the European Parliament and the national parliaments in the interest of finding common grounds for debates and the production of legislation.
As was mentioned earlier, the project in question is ambitious but unavoidable; FOROEUROPA is tuning itself onto the same wavelength, and not only by paying the necessary and inevitable attention to jurisprudence, or by taking part in this stimulating progress in the direction of the new, but also by bringing to the fore and publishing legislative acts and documents selected according to criteria of relevance to the present moment and continuity with regard to the fundamental aspects of the construction of a United Europe, giving priority to references to contents, including multi-disciplinary ones, rather than mere procedural profiles, as, for that matter, is the custom in Community law. It is not easy to determine, at this point, whether what is being consolidated and constructed can be considered a new jus gentium or a new common jus, nor, in the final analysis, should that much importance be given to systematic classifications, seeing that the key element is the spirit behind the ongoing developments, meaning that European spirit which instils direction and enthusiasm in the staff of FOROEUROPA, in the hope that the results shall prove equally fruitful and gratifying: to those who visit this site, a warm welcome, plus the assurance of our utmost willingness to engage in dialogue, participate in discussions and receive suggestions.

The Editor
Claudio De Rose