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75 Am. J. Int'l L. 1 (1981)
Lawyers, Judges, and the Making of a Transnational Constitution

handle is hein.journals/ajil75 and id is 7 raw text is: LAWYERS, JUDGES, AND THE MAKING OF A
TRANSNATIONAL CONSTITUTION
By Eric Stein*
Tucked away in the fairyland Duchy of Luxembourg and blessed, until
recently, with benign neglect by the powers that be and the mass media,
the Court of Justice of the European Communities has fashioned a con-
stitutional framework for a federal-type structure in Europe. From its
inception a mere quarter of a century ago, the Court has construed
the European Community Treaties in a constitutional mode rather than
employing the traditional international law methodology. Proceeding from
its fragile jurisdictional base, the Court has arrogated to itself the ultimate
authority to draw the line between Community law and national law.
Moreover, it has established and obtained acceptance of the broad principle
of direct integration of Community law into the national legal orders of the
member states and of the supremacy of Community law within its limited but
expanding area of competence over any conflicting national law.
The European judicial process, characterized by a symbiotic relationship
between national courts and the Court of Justice, is a complex dialectic
process-even more intricate than that of a divided-power national judicial
system such as in a federation. A great variety of participants interact in a
number of fora, but the dominant groups are clearly the legal elite:
1. The judges of the Court of Justice, acting as a collegium.1
2. The Advocates General of the Court, officers of the Court assigned
the principal task of stating in a public session their personal, independent
opinion for the benefit of the Court, not unlike the Commissaires du
Gouvernement at the French Conseil d'Etat.
3. The Legal Service of the executive Commission of the Communities,
headed by the Director General, which determines the position of the
Commission as plaintiff, defendant, or amicus curiae before the Court.'
4. The Legal Counsel and Director General at the Council of Ministers
with his staff, performing corresponding tasks for the ministers and for the
complex committee system under the Committee of the Permanent
Representatives.
5. Lawyers in the national ministries and other offices of the member
states, who advise their governments, and in effect formulate the positions
* Of the Board of Editors. I wish to acknowledge with appreciation the research assistance of
Sabine Hackspiel, Cologne University, LLM University of Michigan.
A version of this article was prepared as a contribution to a volume in honor of Prof. Dr.
Konrad Zweigert, Director of the Max Planck Institute for Foreign and Private International
Laws in Hamburg.
No dissenting or other separate opinions are allowed.
On the use of the term amicus curiae in this paper, see the penultimate paragraph of note 3
infra.

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