La constitutionalisation des traités par la CEJ (Cour Européenne de Justice)

"Revolting judicial behaviour" . With these words, professor Rassmusen criticized the French courts' "grumbling" attitude to the theory of direct effect issued by the European court of justice (ECJ). This harsh statement correctly sums up the criticized behaviour of the French courts that long refused to surrender the French legal system to the European legal order.
Indeed, the Founding States of the Community didn't make any express agreement about the development of the Community legal system, and there was no detailed plan of an integrated process. Much of the development of the Community's legal system has been brought about through the interpretative practice and influence of the judges of the ECJ. Thus, the case law produced in Luxembourg since 1957 may be regarded as a kind of European Constitution, which some authors name the constitutionalisation of the Treaties by the ECJ.
The Community has developed with an inexorable dynamism of enhanced supranationalism. As a result, it has first been ruled by general principles of public international law to become today an interstate governmental structure "per se " ruled by a "Constitutional Charter" .
The constitutionalisation is the process by which the court of Luxembourg conferred a Constitutional power to the Treaties . In the national order, a Constitution is defined by the fundamental political principles on which a state is governed. This means that the Founding Treaties have became the supreme law of the European Union (EU), over national Constitutions.
To reach such a goal, the court established a few doctrines that render the relationship between Community law and Member States indistinguishable from analogous legal relationship in Constitutional federal states . The two theories of direct effect and the supremacy of Community law over national law are of greatest importance. The doctrine of direct effect is a concept that determines the effects of Community law within the domestic legal system of the Member States. It implies that the provisions of the Treaties that are clear, precise and self-sufficient are capable of producing legal effects in the Member States without any implementing measures. Regarding the theory of supremacy, it is a principle in which in a case of conflict between Community law and national law, Community law should take precedence irrespective of which is later in time.
According to J.H.H. Weiler, this process started in the early 1960's and was almost finished about ten years later. Indeed, all major constitutional doctrines were already in place. However, this process is still improving. Every case law that deals with a European concept of both national courts and the ECJ enhances the constitutionalisation venture. Today, most of the national judges apply the twin doctrines of direct effect and supremacy, effectively.
Nevertheless, this great achievement has not been easily reached. A few national courts, amongst them the French Conseil d'Etat have long refused to implement the supranational point of view of the ECJ.