Rescue Package for Fundamental Rights: Further Comments by DANIEL HALBERSTAM

Peter Lindseth’s post directed at my own intervention on the Heidelberg proposal deserves a response, if only because it opens up debate about a basic divide in scholarship on the European Union. Do we understand the Union as an administrative or a constitutional construct? This has important consequences for both democracy and how we understand the “reverse-Solange” approach.

The Lens of Judicial Interpretation: Administrative or Constitutional?

Peter points to the non-delegation doctrine in the United States. It no longer declares administrative delegation unconstitutional but provides a canon of interpretation to limit authority from shifting away from the U.S. Congress towards agencies and courts. So far, so good. Those are exactly the “remnants” of the non-delegation doctrine I had in mind in my last post. But this is not the place to debate the success of this doctrine in the United States. Our focus, after all, is Europe. And the trouble with Peter’s argument is that – regardless of whether and how that canon of construction has operated in the United States or elsewhere – such a canon of construction has not been in operation at the European Court of Justice.

The foundational decisions of the European Court of Justice have resisted the idea of delegation, at least delegation in the administrative sense. There is no doubt the ECJ/CJEU construes the Union as one of enumerated powers. But this is delegation in a “constitutional register” to use Neil Walker’s felicitous phrase, not in the register of administrative law.

Had the ECJ been applying Peter’s administrative canon of construction, the Court would scarcely have ruled the way it did in Van Gend, Costa, Simmenthal, Les Verts, Martinez Sala, Chen, Zambrano, or Kadi – to name to just a few decisions ...

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