The Treaty of Nice: Arming the Courts to Defend a European Bill of Rights?

Abstract

I INTRODUCTION A. Background In December 2000, the European heads of government, meeting in Nice, took several momentous steps in the constitutional development of the European Union (E.U.). Chief among them was the creation of a Charter of Fundamental Rights, a strikingly broad catalogue of individual rights and freedoms drawn from both the civil and political, and economic and social rights traditions. (1) Consensus on the Charter's substantive guarantee was overshadowed by contention over its status in the E.U. legal order. In a compromise emblematic of European decision-making, the member states (2) adopted the Charter but left open the crucial issue of enforcement. Thus, for the time being, the Charter is no more than a non-binding declaration that copperfastens the E.U.'s existing commitment to human rights, as expressed in various treaty provisions and legislative measures, (3) and, above all, in the vibrant unenumerated rights tradition of the European Court of Justice. (4) Potentially, the Nice Summit will mark a major milepos t on the road to a European bill of rights. Assuming the member states ultimately enact remedial measures, including judicial protection, the transition may prove no less influential than the adoption of the Bill of Rights in the United States. In the immediate term, however, the Nice Summit will be remembered for a separate order of business, namely, the latest major revision to the various instruments comprising the Constitution of the Union. (5) The Treaty of Nice, (6) which will enter into force following ratification by each of the member states, (7) is designed to prepare the principal branches of government for enlargement to the east, which, according to current projections, could extend the membership from fifteen to twenty-seven states or more. In keeping with prior practice, the task of negotiating and finalizing the necessary amendments was entrusted to an intergovernmental conference (IGC 2000) made up of representatives of the member states. IGC 2000's central focus was reform of the political institutions, notably the Commission and the Council. (8) The European Community courts were a less conspicuous but ultimately no less important item on the agenda. (9) Projected changes to the judicial branch were inspired not only by the prospect of enlargement, but also by an urgent need to remedy overburdened dockets and inefficiencies in the administration of justice. In Luxembourg, the seat of the Community courts, the problem of docket control is by no means new. For several years, the Court of Justice has been waging a losing battle to keep pace with the organic growth of Community litigation. A Court of First Instance (CFI), created in 1989, has played its part in alleviating caseload pressures. (10) The benefit of this additional Community forum has been offset by several factors: the exponential growth of Community legislation, the accession of new member states, and the extension of Community competence to fields such as the environment, intel lectual property, and social policy. These days, the CFI, no less than the Court, is working at the limits of its capacity. Both courts are afflicted with burgeoning caseloads and the manifold side effects of congestion, including an increase in the length of proceedings. (11) Consequently, the Treaty of Nice is not only the latest chapter in constitution-building but also the Community's most ambitious docket-control initiative. Curiously, the E.U. institutions, national governments, and academic scholars view these reforms--the creation of a Charter of Fundamental Rights and docket-control measures for the Community courts--as two independently significant but essentially unrelated events. In fact, the Charter's prospects are intrinsically linked to the docket-control initiative, as the defense of a bill of rights rests ultimately in judicial hands, a truism demonstrated time and again by the United States Supreme Court. …