¹ OJ 2003 C 169/1, hereafter ‘draft Constitution’. The numbers of provisions of the draft Constitution are preceded by Roman numerals denoting the Part in which they are located.

² See further House of Lords European Union Committee, ‘The Future Role of the European Court of Justice’ (Session 2003–04, 6th Report, HL 47); Tridimas, T ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’ in Tridimas, T and Nebbia, P (eds) EU Law for the Twenty-First Century: Re-Thinking the New Legal Order, Volume I (Oxford, Hart Publishing, 2004) ch 7Google Scholar.

³ See further Ludlow, P ‘Brussels Breakdown’ (February 2004) Prospect 38; editorials (2004) 41 CML Rev 1; (2004) 29 ELR 1.

⁴ At present, the Court is known formally as ‘the Court of Justice of the European Communities’: see Art 46 of the Treaty on European Union (TEU). The draft Constitution re-baptises it ‘the European Court of Justice’ (Art I–28(1)). A Working Party of Legal Experts instructed by the Presidency of the IGC to verify the draft drawn up by the Convention preferred the term ‘Court of Justice of the European Union’ to avoid confusion with the European Court of Human Rights and the International Court of Justice. See Draft Treaty establishing a Constitution for Europe (following editorial and legal adjustments by the Working Party of IGC Legal Experts), CIG 50/03.

⁵ ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in Curtin, D and O’Keeffe, D (eds) Constitutional Adjudication in European Community and National Law (Dublin, Butterworths, 1992) 25 Google Scholar.

⁶ Opinion 1/91 on the creation of the European Economic Area [1991] ECR I–6079, para 21. See also Case 294/83 Les Verts v Parliament [1986] ECR 1339, para 23. Interestingly, Finer, S, Bogdanor, V and Rudden, B Comparing Constitutions (Oxford, Clarendon Press, 1995)Google Scholar contains, alongside the Constitutions of the USA, France, Germany and the Russian Federation, extracts from the TEU and the EC Treaty (plus the European Convention on Human Rights).

⁷ Above n 5, 31.

⁸ The draft Constitution calls the CFI the ‘High Court’ (see Art I–28(1)), a term with which the Working Party of Legal Experts was content.

⁹ See generally Arnull, A ‘Modernising the Community Courts’ (2000) 3 Cambridge Yearbook of European Legal Studies 37 CrossRefGoogle Scholar.

¹⁰ See Art 225(3) EC.

¹¹ See Art 62 of the ECJ Statute.

¹² In early 2003, the ECJ proposed the transfer to the CFI of certain direct actions brought by Member States: see Interinstitutional File 2003/0805 (CNS). See now Dec 2004/407, OJ 2004 L 132/5.

¹³ See Art 220 EC.

¹⁴ Referred to in the draft Constitution as ‘specialised courts’ (see Art I–28(1)), a term which also met with the approval of the Working Party of Legal Experts.

¹⁵ Art 225a EC. The draft Constitution would change the decision-making procedure applicable from unanimity in the Council to the ordinary legislative procedure (essentially co-decision): see Arts III–264(1) and I–33(1). The first proposals for the establishment of judicial panels were presented by the Commission in late 2003: see COM(2003)705 final, proposing the establishment of a judicial panel (to be called the European Civil Service Tribunal) to deal with staff cases; COM(2003)828 final, proposing the establishment of a judicial panel (to be called the Community Patent Court) to exercise jurisdiction at first instance in disputes relating to the proposed Community patent. The latter proposal was accompanied by a proposal for a decision conferring on the Union Courts and the judicial panels jurisdiction in disputes relating to the Community patent: see COM(2003)827 final. The latter proposal was based on Art 229a EC, which requires unanimity in the Council and adoption by the Member States in accordance with their respective constitutional requirements. Art III–269 would substitute the ordinary legislative procedure for unanimity and abolish the requirement for adoption by the Member States.

¹⁶ Art 225(2) EC. In September 2003, the ECJ proposed amendments to the Statute laying down the detailed procedural rules for the conduct of the review procedure and the effects of that procedure on the substance of the action and the interests of the parties: see Interinstitutional File 2003/0820 (CNS).

¹⁷ See Art 225(1), (2) and (3), which each stipulate that appeal or review is only permissible ‘under the conditions and within the limits laid down by the Statute’.

¹⁸ Cf COM(2003)660 final, 3-4.

¹⁹ Art 220 EC does not refer to the judicial panels, but Art 225a EC says that the provisions of the Treaty relating to the ECJ apply to them unless the Council provides otherwise in the decision by which they are established.

²⁰ The French texts of the two articles are virtually identical. Thus, Art 220 refers to ‘le respect du droit dans l’interprétation et l’application du présent traité’ while Art I–28(1) speaks of ‘le respect du droit dans l’interprétation et l’application de la Constitution.’ The Italian texts are also almost identical. Like the English texts, the German texts display minor discrepancies.

²¹ For the avoidance of doubt, it would be sensible to align the two. The error does not seem to have been corrected by the Working Party of Legal Experts.

²² Particularly the Commission (see in particular Art I–25(3)), the Council (see in particular Arts I–23 and I–24) and the European Council (see in particular Arts I–20 and I–21).

²³ See A Constitutional Treaty for the EU: The British Approach to the European Union Intergovernmental Conference 2003 (Cm 5934, September 2003), 12.

²⁴ See also Treatment of Polish Nationals in Danzig, Permanent Court of International Justice, Advisory Opinion of 4 February 1932, Series A/B No 44, 24; Jennings, J and Watts, A (eds) Oppenheim’s International Law, Volume I 9th edn (London, Longman, 1992), 84-5Google Scholar.

²⁵ See eg Case 48/71 Commission v Italy [1972] ECR 527, para 9; Case C–298/97 Commission v Spain [1998] ECR I–3301, para 14.

²⁶ See Art 26 of the Vienna Convention on the Law of Treaties: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

²⁷ See Oppenheim’s International Law, above n 24, 83.

²⁸ Case 6/64 [1964] ECR 585. See also Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629; Joined Cases C–10/97 to C–22/97 Ministero delle Finanze v IN. CO. GE. 90 and Others [1998] ECR I–6307.

²⁹ The Italian Presidency also proposed the adoption of a declaration noting that the provisions of what in the Convention draft was Art I–10(1) ‘reflect existing Court of Justice case law’: CIG 60/03 ADD 1, 7. See House of Lords EU Committee, above n 2 at 19.

³⁰ The relationship between direct effect and primacy was considered by the House of Lords EU Committee, above n 2, 15.

³¹ The related concept of direct applicability is mentioned (though not defined) in Art I–32(1).

³² Case 11/70 [1970] ECR 1125.

³³ Ibid, para 3. See also Case C–285/98 Kreil [2000] ECR I–69.

³⁴ See Tridimas, T, House of Lords EU Committee, above n 2, Minutes of Evidence, 102.

³⁵ CfDutheil de la Rochère, J and Iliopoulou, A, House of Lords EU Committee, above n 2, Minutes of Evidence, 73 Google Scholar.

³⁶ But see Art III–283. That provision is discussed by the House of Lords EU Committee, above n 2 at 36-8.

³⁷ See Art III–282. The jurisdiction of the ECJ over the CFSP is discussed in section IV.B below.

³⁸ See Art I–2.

³⁹ The principle of conferral is currently reflected in Arts 5 and 7(1) EC. See also Opinion 2/94 on Community accession to the European Convention on Human Rights [1996] ECR I–1759, para 30, where the ECJ said that Art 235 (now 308) EC was ‘an integral part of an institutional system based on the principle of conferred powers’.

⁴⁰ Declaration on the Future of the Union, para 5.

⁴¹ But see Art I–13(3) and (4).

⁴² Art I–11(2).

⁴³ Art I–14.

⁴⁴ Art I–15.

⁴⁵ Art I–9(4).

⁴⁶ Art I–9(3). Cf Art 5 EC.

⁴⁷ Protocol on the Application of the Principles of Subsidiarity and Proportionality. Cf the Protocol on the same subject annexed to the EC Treaty at Amsterdam.

⁴⁸ See the conclusions of Working Group I on the principle of subsidiarity, CONV 286/02, 7-8.

⁴⁹ See para 7. The Committee of the Regions would in certain circumstances be able to bring proceedings before the ECJ for infringement of the principle of subsidiarity: see the second subparagraph of para 7.

⁵⁰ The decision is reported in English as Brunner v European Union Treaty [1994] 1 CMLR 57. See Herdegen, M ‘Maastricht and the German Constitutional Court: Constitutional Restraints for an Ever Closer Union’ (1994) 31 CML Rev 235; Everling, U ‘The Maastricht Judgment of the German Federal Constitutional Court and its Significance for the Development of the European Union’ (1994) 14 Yearbook of European Law 1 CrossRefGoogle Scholar; Kokott, J ‘Report on Germany’ in Slaughter, AM, Stone Sweet, A and Weiler, J (eds) The European Courts and National Courts: Doctrine and Jurisprudence (Oxford, Hart Publishing, 1997) 77 Google Scholar.

⁵¹ See Weiler, J, Haltern, U and Mayer, F ‘European Democracy and its Critique’ (1995) 18(3) West European Politics 4, 35–36 CrossRefGoogle Scholar.

⁵² See Kokott, J, above n 50, 93.

⁵³ Para 48 of the judgment.

⁵⁴ Para 49 of the judgment.

⁵⁵ Para 99 of the judgment.

⁵⁶ See para 3 of the judgment.

⁵⁷ See Kokott, J, above n 50, 127-31.

⁵⁸ [1999] 3 CMLR 854. See Høegh, K ‘The Danish Maastricht Judgment’ (1999) 24 ELR 80 Google Scholar.

⁵⁹ Para 14 of the judgment.

⁶⁰ Para 31 of the judgment.

⁶¹ Para 33 of the judgment.

⁶² See eg Weiler, J ‘Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision’ (1995) 1 European Law Journal 219 CrossRefGoogle Scholar; MacCormick, N ‘The Maastricht-Urteil: Sovereignty Now’ (1995) 1 European Law Journal 259 CrossRefGoogle Scholar; Weiler, J and Haltern, U ‘Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz-Kompetenz ’ in Slaughter, AM, Stone Sweet, A and ?Weiler, J, above n 50, 331 Google Scholar; Kumm, M ‘Who is the Final Arbiter of Constitutionality in Europe? Three Conceptions of the Relationship between the German Federal Constitutional Court and the European Court of Justice’ (1999) 36 CML Rev 351.

⁶³ See also Art 35(6) TEU.

⁶⁴ See Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, para 17. The legality of a Community act may also be challenged in a claim against the Community for damages under the second paragraph of Art 288 EC, over which the Union Courts again have exclusive jurisdiction: see Arts 235 and 240 EC.

⁶⁵ See Foto-Frost v Hauptzollamt Lübeck-Ost, ibid, para 20. National courts of last resort are in any event bound to refer by the third paragraph of Art 234 EC.

⁶⁶ See Anderson, D and Demetriou, M References to the European Court 2nd edn (London, Sweet & Maxwell, 2002) 334-5Google Scholar; Case C–465/93 Atlanta Fruchthandelsgesellschaft I [1995] ECR I–3761.

⁶⁷ Para 15 of the judgment.

⁶⁸ See Weiler, J and Haltern, U above n 62, 357-8.

⁶⁹ Or by another Member State under Art 227 EC. Other Member States might even retaliate unilaterally on the basis of some concept of reciprocity, although this would itself be unlawful: see eg Case C–5/94 The Queen v MAFF, ex p Hedley Lomas [1996] ECR I–2553, para 20.

⁷⁰ Case C–129/00, judgment of 9 December 2003.

⁷¹ Member States cannot challenge the validity of directives or decisions addressed to them as a defence in infringement proceedings: Case C–52/00 Commission v France [2002] ECR I–3827, para 28. The position may differ in the case of regulations: see para 191 of the Opinion of AG Jacobs in Case C–11/00 Commission v European Central Bank [2003] ECR I–7147.

⁷² If Germany refused to pay any financial penalty imposed on it, it would be committing a further breach of the Treaty: see Everling, U above n 50, 15. The draft Constitution would streamline the sanctions procedure: see Art III–267(2) and (3).

⁷³ Case C–224/01, judgment of 30 September 2003.

⁷⁴ Cf Weiler, J, Haltern, U and Mayer, F above n 51, 38; Schmid, C ‘From Pont d’Avignon to Ponte Vecchio: the Resolution of Constitutional Conflicts between the European Union and the Member States through Principles of Public International Law’ (1998) 18 Yearbook of European Law 415, 467-70CrossRefGoogle Scholar.

⁷⁵ Above n 50 at para 37.

⁷⁶ See eg the Protocol concerning the application of the provision of the Irish Constitution on the right to life of the unborn annexed to each of the Union Treaties at Maastricht; the so-called Barber Protocol concerning Art 141 EC annexed to the EC Treaty at Maastricht; the Protocol concerning the acquisition of property in Denmark annexed to the EC Treaty at Maastricht; Art 141(4) EC on affirmative action, introduced by the Treaty of Amsterdam.

⁷⁷ Weiler, J, Haltern, U and Mayer, F, above n 51, 37, draw an analogy with the notorious Cold War policy of mutually assured destruction (MAD). CfSchmid, C ‘All Bark and No Bite: Notes on the Federal Constitutional Court’s “Banana Decisio”‘ (2001) 7 European Law Journal 95, 106CrossRefGoogle Scholar.

⁷⁸ Above n 50 at paras 13 and 23.

⁷⁹ See Internationale Handelsgesellschaft (‘Solange I’), judgment of 29 May 1974 [1974] 2 CMLR 540; Wünsche (‘Solange II’), judgment of 22 October 1986 [1987] 3 CMLR 225.

⁸⁰ Opinion 2/94 [1996] ECR I–1759, para 30. See also Opinion 1/94 on the competence of the EC to conclude the WTO Agreement [1994] ECR I–5267.

⁸¹ Above n 50, para 99.

⁸² See [1999] 3 CMLR 854, 860.

⁸³ Case C–376/98 Germany v Parliament and Council [2000] ECR I–8419.

⁸⁴ Para 83 of the judgment.

⁸⁵ For later developments, see Everling, U, above n 50, 15-18; Everling, U ‘Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts’ (1996) 33 CML Rev 401 Google Scholar; Reich, N ‘Judge-Made “Europe à la Carte”: Some Remarks on Recent Conflicts between European and German Constitutional Law Provoked by the Banana Litigation’ (1996) 7 European Journal of International Law 103 Google Scholar; Schmid, C, above n 77; Schwarze, J ‘Judicial Review in EC Law — Some Reflections on the Origins and the Actual Legal Situation’ (2002) 51 ICLQ 17. Continuing the Cold War analogy (above n 77), the term ‘détente’ has been used to describe the current situation: see Alter, K, House of Lords EU Committee, above n 2, Minutes of Evidence, 53.

⁸⁶ Cf MacCormick, N, above n 62, 265.

⁸⁷ Cf Weiler, J, Haltern, U and Mayer, F, above n 51, 37-8; Everling, U, above n 50, 15.

⁸⁸ On the use made of Art 235 (now 308) EC, see Weiler, J The Constitution of Europe (Cambridge, Cambridge University Press, 1999), 52ffGoogle Scholar.

⁸⁹ It applies only ‘within the framework of the policies defined in Part III’ (Art I–17(1)) and ‘may not entail harmonisation of Member States’ laws or regulations in cases where the Constitution excludes such harmonisation’ (Art I–17(3)).

⁹⁰ The consent of the European Parliament would be required (Art I–17(1)) and the national parliaments would be able to monitor the compatibility of proposals based on the article with the principle of subsidiarity (Art I–17(2)).

⁹¹ CfLenaerts, K and Gerard, D ‘The Structure of the Union According to the Constitution for Europe: The Emperor is Getting Dressed’ (2004) 29 ELR 289, 301-3Google Scholar.

⁹² The report is available at <http://www.interights.org/news/English%20Report.pdf>. For a summary of its key elements, see Coomber, A ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’ (2003) European Human Rights Law Review 486.

⁹³ See Arts 20-4 ECHR.

⁹⁴ Above n 92 at 6. The quotation in the second paragraph is from Art 9 of the Universal Charter of the Judge, which was adopted by the Central Council of the International Association of Judges in 1999.

⁹⁵ Above n 92, 17 and 25-6.

⁹⁶ See further Kenney, S ‘Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice’ (2002) 10 Feminist Legal Studies 270 CrossRefGoogle Scholar.

⁹⁷ See the Rules of Procedure of the ECJ, Art 6.

⁹⁸ See Art 223 EC. For appointments to the CFI, see Art 224 EC, which requires members to be chosen from ‘persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office.’

⁹⁹ Art 223 EC.

¹⁰⁰ The Treaty is silent on the nationality of nominees. In the case of Judges, the draft Constitution might arguably change the position. While Art 221 EC speaks of the ECJ comprising ‘one judge per Member State’, Art I–28(2) speaks of ‘one judge from each Member State’ (emphasis added). Both the EC Treaty (Art 224) and the draft Constitution (Art I–28(2)) describe the CFI/High Court as consisting of ‘at least one judge per Member State’. Is there a difference between ‘per’ and ‘from’? Cf the provisions on membership of the Commission (Art 213(1) EC; Art 4 of the Protocol on the Enlargement of the European Union annexed at Nice to the TEU and the EC and Euratom Treaties; Art III–250). Art 20 ECHR says simply that the European Court of Human Rights “shall consist of a number of judges equal to that of the High Contracting Parties.’

¹⁰¹ Every three years there is a partial replacement of the members: see Art 223 EC and Art 9 of the Statute. This causes considerable disruption to the Court’s work: see its report on the application of the TEU in ‘The Proceedings of the Court of Justice and Court of First Instance of the European Communities’ (22-6 May 1995, No 15/95), para 17.

¹⁰² See [1995] OJ C 151/56, point 23(ii).

¹⁰³ Above n 101.

¹⁰⁴ See ‘1996 Inter-Governmental Conference’ (Session 1994-5, 21st Report, HL Paper 105), para 261. CfKapteyn, P ‘Reflections on the Future of the Judicial System of the European Union after Nice’ (2001) 20 Yearbook of European Law 173, 189-90CrossRefGoogle Scholar.

¹⁰⁵ See eg Case C–299/95 Kremzow v Austrian State [1997] ECR I–2629, para 14.

¹⁰⁶ Art I–7(2).

¹⁰⁷ See Art I–7(1); Arnull A. ‘From Charter to Constitution and Beyond: Fundamental Rights in the New European Union’ (2003) PL 774.

¹⁰⁸ (1995) 21 EHRR 272, para 37.

¹⁰⁹ Above n 92, 24-5.

¹¹⁰ See ‘?Advocates General and Judges in the European Court of Justice: Some Personal Reflections’ in O’Keeffe, D and Bavasso, A (eds), Judicial Review in European Law (The Hague, Kluwer, 2000) 17, 24 Google Scholar. See also Alter, K Establishing the Supremacy of European Law (Oxford, Oxford University Press, 2001) 199–200 Google Scholar.

¹¹¹ Above, n 101, para 17, emphasis added.

¹¹² CONV 636/03, para 8.

¹¹³ See Art I–28(2).

¹¹⁴ The Treaty implies that this should be equivalent to the ‘competence’ of someone eligible for appointment to judicial office at the highest domestic level.

¹¹⁵ Above n 92, 27.

¹¹⁶ See Kenney, S, above n 96, 260.

¹¹⁷ Above n 112, para 6. Cf the report of the House of Lords Select Committee on the European Communities on the 1996 IGC, above n 104, para 260.

¹¹⁸ And the CFI: Art III–261.

¹¹⁹ Cf the method proposed by the Commission for appointing the judges of the European Civil Service Tribunal (COM(2003)705 final, p 11) and the Community Patent Court (COM(2003)828 final, p 15), whose members would be fewer in number than the Member States.

¹²⁰ This was regarded as a minimum requirement by the authors of the European Charter on the Statute for Judges drawn up in 1998 under the auspices of the Council of Europe: see DAJ/DOC (98)23, Explanatory Memorandum, 18.

¹²¹ Cf House of Commons Constitutional Affairs Committee, ‘Judicial Appointments and a Supreme Court (Court of Final Appeal),’ First Report of Session 2003-04, Vol I (HC 48-1), para 52, referring to the evidence of the Bar Council on appointments to a UK Supreme Court.

¹²² This was acknowledged by the House of Commons Constitutional Affairs Committee, ibid, para 131.

¹²³ Principle 10, UN Basic Principles on the Independence of the Judiciary.

¹²⁴ CfKoopmans, T ‘The Future of the Court of Justice of the European Communities’ (1991) 11 Yearbook of European Law 15, 26CrossRefGoogle Scholar; the procedure for the appointment of European Commissioners set out in Art I–26(2) of the draft Constitution.

¹²⁵ Above n 112, para 7.

¹²⁶ A member appointed as a replacement for someone who had died while in office or resigned should serve a full term from the date of his appointment; the terms of serving members should be extended to the length of the new term. Cf the report of the Discussion Circle, above n 112, 3.

¹²⁷ Cf the Explanatory Memorandum to the European Charter on the Statute for Judges drawn up in 1998 under the auspices of the Council of Europe, above n 120, 23.

¹²⁸ This is the number of candidates nominated by Contracting States when vacancies arise on the European Court of Human Rights: see Art 22(1) ECHR.

¹²⁹ Unless all the candidates on the list are appointable, the panel will not have a real choice: cf the Interights report, above n 92, 19.

¹³⁰ To facilitate comparison between candidates: cf the Interights report, above n 92 at 10.

¹³¹ Cf House of Commons Constitutional Affairs Committee, above n 12, para 132.

¹³² Which should in principle also be used for appointments to the CFI. However, a case could be made for preserving the possibility of renewing the term of office of CFI judges on the basis that their careers are generally less advanced. See the report of the Discussion Circle, above n 112, 3.

¹³³ This would result, not from the draft Constitution itself, but from an amendment to Art III–270(1) suggested by the Working Party of Legal Experts: see CIG 50/03, 210. Cf Case C–253/94 P Roujansky v Council [1995] ECR I–7.

¹³⁴ See Art I–18(2).

¹³⁵ See Art I–34(1).

¹³⁶ Cf Art 230 EC, first para; Case 294/83 Les Verts v Parliament [1986] ECR 1339.

¹³⁷ See Art III–270(1).

¹³⁸ But see Joined Cases 193 and 194/87 Maurissen and Others v Court of Auditors [1989] ECR 1045 (in particular AG Darmon at 1063-35).

¹³⁹ See ‘Right of Appeal Against Agencies Created by Secondary Legislation’ (Discussion Circle Working Document 09).

¹⁴⁰ Above n 112 at para 26.

¹⁴¹ Case C–50/00 P Unión de Pequeños Agricultores v Council [2002] 3 CMLR 1.

¹⁴² Case T–177/01 [2002] ECR II–2365 (reversed on appeal: Case C–263/02, judgment of 1 April 2004).

¹⁴³ See the final report of the Discussion Circle, above n 112.

¹⁴⁴ Proposed change in italics. See also Art III–270(3), which would enable the Committee of the Regions to bring proceedings for the purpose of protecting its prerogatives.

¹⁴⁵ See above n 101. CfAlston, P and Weiler, J The European Union and Human Rights: Final Project Report on an Agenda for the Year 2000 (Florence, European University Institute, 1998) para 181 Google Scholar.

¹⁴⁶ See the views expressed by AG Jacobs to the House of Lords EU Committee, ‘The Future Status of the EU Charter of Fundamental Rights’ (Session 2002–03, 6th Report, HL Paper 48), Minutes of Evidence, 30; the evidence of Judge Skouris of the ECJ to Working Group II of the Convention, Working Document 19, 4-5; the views of the then President of the ECJ, CONV 572/03, 5.

¹⁴⁷ See the Praesidium commentary on a previous draft, CONV 734/03, 20. See also the text of the oral intervention of the then President of the ECJ before the Discussion Circle, CONV 572/03, 4. The term ‘non-legislative act’ could not be used in Art III–270(4) because that is just one of the categories of act identified in the hierarchy which are not legislative: see Arts I–32 to I–36. The term ‘regulatory’ is also employed in Arts III–173 and III–217(5).

¹⁴⁸ [2002] 3 CMLR 1, 32.

¹⁴⁹ See Art I–33(2).

¹⁵⁰ Usher, J ‘Direct and Individual Concern — An Effective Remedy or a Conventional Solution?’ (2003) 28 ELR 575, 599 Google Scholar.

¹⁵¹ Case 294/83 [1986] ECR 1339, para 31.

¹⁵² See eg Case 113/77 NTN Toyo Bearing Company v Council [1979] ECR 1185.

¹⁵³ See eg Case 11/82 Piraiki-Patraiki v Commission [1985] ECR 207.

¹⁵⁴ See Arts III–204 and III–227(12). The latter provision corresponds to Art 300(6) EC. The draft Constitution reflects the view of most members of the Discussion Circle: see CONV 689/1/03 REV 1, 2 and 3.

¹⁵⁵ See Art I–27.

¹⁵⁶ It is a refinement of Art 47 TEU, which the Court applied in the ‘Airport Transit Visas’ case, Case C–170/96 Commission v Council [1998] ECR I–2763.

¹⁵⁷ As proposed by some members of the Discussion Circle: see CONV 689/1/03 REV 1, 2.

¹⁵⁸ See Tridimas, T, House of Lords EU Committee, above n 2, Minutes of Evidence, 102-3Google Scholar.

¹⁵⁹ Schermers, H and others, House of Lords EU Committee, above n 2, Minutes of Evidence, 95-6Google Scholar.

¹⁶⁰ Its deletion was called for by the House of Lords EU Committee, above n 2 at 34 and 46. Cf the amendments proposed by the Working Party of Legal Experts: CIG 50/03 ADD 1, 213.

¹⁶¹ Indeed, there is a risk following Matthews v United Kingdom (1999) 28 EHRR 361 that the Strasbourg Court might review such acts even before accession.

¹⁶² House of Lords EU Committee, above n 146, Minutes of Evidence, 29. See also Craig, P, House of Lords EU Committee, above n 2, Minutes of Evidence, 11–12 Google Scholar.

¹⁶³ See Kokott, J and Rüth, A ‘The European Convention and its Draft Treaty Establishing a Constitution for Europe: Appropriate Answers to the Laeken Questions?’ (2003) 40 CML Rev 1315, 1319-21Google Scholar. Cf Lenaerts, K and Gerard, D, above n 91, 293, 297-8.

¹⁶⁴ CfCraig, P, House of Lords EU Committee, above n 2, Minutes of Evidence, 1 Google Scholar.

¹⁶⁵ See Arnull, A, above n 107.

¹⁶⁶ Some legislative acts will not be adopted under the ordinary procedure: see Art I–33(2).

¹⁶⁷ Following a suggestion by the Legal Adviser to the IGC, the Italian Presidency proposed that the preamble to Part II should be amended to refer expressly to the updating of the explanations. It also suggested that the complete text of the explanations should be set out in a declaration annexed to the final act of the IGC. See CIG 52/03 ADD 1, 6.

¹⁶⁸ CONV 828/03, 41, emphasis added.

¹⁶⁹ Above n 168, 2.

¹⁷⁰ See ‘The Future of Europe—The Convention’s Draft Constitutional Treaty’ (Session 2002–03, 41st Report, HL Paper 169), para 257.

¹⁷¹ On 18 June 2004, after this article had gone to press, the Member States reached agreement on a Treaty establising a Constitution for Europe. For the provisional text, see CIG 87/1/04 REV 1; CIG 87/04 ADD 1 REV 1; CIG 87/04 ADD 2 REV 1.