When it enters into force on 1 May 1999, the Treaty of Amsterdam will bring amendments to, among other things, the legislative process of the European Community. There will be no change as far-reaching as the introduction of the so-called “co-decision procedure” by the Treaty on European Union (TEU), but a genuine attempt is made to streamline the process, to render it more transparent and to enhance democratic accountability. Inevitably, though, not all the changes will be for the better. Two steps forwards and one back is, as ever, the favoured locomotive style of the Union’s constitution-makers.

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.

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.

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.

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:

Various provisions of the Treaty on European Union (“TEU”) and of the EC Treaty specifically require action to be taken, at the definitive stage or at some preparatory or intermediate stage of decision-making, by the European Council, or by the Council of the European Union meeting in the composition of Heads of State or Government (“the HSG Council”); and there is one instance of an appointing power exercisable by an intergovernmental conference at the level of Heads of State or Government (“an HSG Conference”). Reserving a role for the political leaders of the Union in the adoption of particular decisions was an innovation of the TEU, more especially in the Title of the EC Treaty on economic and monetary policy, and further instances have been added by the Treaty of Amsterdam (“TA”) and the Treaty of Nice (“TN”).

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.

A debate is under way about the future of the European Union. It was started by the Declaration adopted by the European Council of Nice in December 2000, was given more substance by the Declaration of Laeken in December 2001, and received a formal focus in the Convention which has been brought together in Brussels under the chairmanship of former President Giscard d’Estaing. The Nice Declaration referred to, among other things, ‘the simplification of the Treaties with a view to making them clearer and better understood without changing their meaning’, but the Laeken Declaration goes considerably further. There is a section in the Declaration entitled, ‘Towards a constitution for European citizens’, which contemplates possible changes to the structure not only of the Treaties but of the Union itself, including perhaps the abolition of the division into three so-called ‘pillars’, and the distinction between the European Union and the European Communities. The Declaration also raises the matter of the legal status of the Charter of Fundamental Rights which was proclaimed in Nice, and speculates as to the possible adoption ‘in the long run’ of what it calls a ‘constitutional text’. A reordering of the primary instruments of the Union is, therefore, very much on the agenda of the Convention, and the idea has heavyweight political supporters.