This lecture offers a justification of the choice of a career as an EU lawyer, which was made at the beginning of the 1970s. Its 40-year perspective covers a variety of themes, beginning with the political aims and values that underpin the European project. This is followed by a section on the development of the Treaty and Union structure, from the three original Communities to the Union of the Lisbon Treaty. Other themes are: the progressive enlargement of the Union’s membership, including the legal challenges facing new Member States; the expansion of Union competences, from the original objective of establishing a general common market; and, finally, the Union’s functional constitution, described as the chef d’oeuvre of the Court of Justice.

It is more than 40 years since the Court of Justice first articulated in Van Gend en Loos the principle that has come to be known as the direct effect of Community law, and which means, in broad terms, that rules derived from the EC Treaty, so long as they are capable of being applied using ordinary judicial techniques, form part of the law available to courts and tribunals in the Member States for resolving disputes before them. As the Court famously stated:

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

So much disinformation about the Treaty establishing a Constitution for Europe—‘the Constitutional Treaty’, as I shall call it—has been disseminated by the media in this country (and not only here) that there is an urgent need to put the record straight. I am going to tackle the problem in two ways: first, by trying to assuage some false and exaggerated fears of changes that are either fictional or minor; and, secondly, by evaluating what seem to me to be the main changes the Constitutional Treaty is designed genuinely to bring about.

The convention on the Future of Europe, which came together in the spring of 2002, completed its work in June 2003. In the event, the various tasks that were set for the Convention by the Laeken Declaration of December 2001 on the Future of the European Union came to be subsumed in the overall task of devising a Constitution for the Union. A sufficient degree of consensus was achieved by the Convention to enable its President, Mr Valery Giscard d’Estaing, to present the outcome of the deliberations of the past 15 months, in the form of a Draft Treaty Establishing a Constitution for Europe, to the European Council of Thessaloniki. So it is through the proposed Constitutional Treaty (referred to hereinafter as ‘the Convention text’) that the specific objectives identified in the Nice and Laeken Declarations, such as those of re-legitimating the Union order and rendering the primary law of the Union more comprehensible to its subjects, now fall to be achieved.

In its Keck judgment—famous or notorious according to taste—the Court of Justice drew a distinction, for the purposes of the application of the prohibition in Article 28 EC against measures having equivalent effect to quantitative restrictions (“MEEQRs”), between two categories of national measures. On the one hand were “product requirements”: measures specifying requirements to be met, in order to obtain access to the market of a Member State, by products coming from other Member States where they are lawfully manufactured and marketed, like the minimum alcohol requirement for fruit liqueurs in Cassis de Dijon (Case 120/78 [1997] E.C.R. 649). Such product requirements are liable to constitute MEEQRs, and therefore require specific justification, in order to escape prohibition, on one of the public interest grounds recognised by Community law. On the other hand was the category of measures described in the judgment as “provisions restricting or prohibiting certain selling arrangements”. An example was the legislation at issue in the main proceedings in Keck, which prohibited the resale of products below their purchase price, thereby depriving retailers of a form of sales promotion. Other examples, attested by the case law post-Keck, are measures regulating advertising methods, the kind of shop in which goods of a certain description can be sold, shops’ opening hours and Sunday trading. National provisions in this latter category are not normally such as to hinder trade between Member States under the test formulated by the Court in Dassonville (Case 8/74 [1974] E.C.R. 837, at para. 5), and so do not call for justification; not, that is, “so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States”: see Joined Cases C-267 and 268/9 [1993] E.C.R. I-6097, at paras. 15–17.