the european court of justice as a federator

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The European Court ofJustice as a F ederator

Donna Starr-DeelenFlinders University La w SchoolBart Deelen

University of MelbourneThe European Court of Justice is often seen as the motor of European leg al integration because it

"constitutionalized " the treaties establishing the European Com munities (EC) through its jurisprudence.In reality though, the Court's role has rather been that of a promotor or provocateur because the memberstates and the national courts have been, by an d large, cooperativepartners in this process, and many ofthe political consequences of the Court's rulings h ave been hidden in its legal language. The Court willlikely be careful in the uture about continuing its udicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentially open to the Court's interpretation. Inaddition, the cooperative attitude, by member states and the national courts, is no longer guaranteed.

A nal yzi ng the role of the Euro pean Cou rt of Justice (ECJ) in fe deratingthe European Comm unity is a challenging enter prise. It raises a num berof fundamental questions, each of which is a source of considerabledebate. First, there is a serious gap between the formal role of the Euro peanCourt of Justice as outlined by the treaties establishing the Eur opea nCommunities 1 and the much more active de facto role the ECJ has playedover the last decades. The literatu re abou t whethe r this judicial activismwas justified in legal terms has been abun dant . Second, there is disagree-me nt about the importan ce of this activism. Was the Court, throu gh itsrulings, responsible for many steps toward a more federal Europ e since t he1950s? Or, did the Cour t somehow operat e within a certain m argin ofmaneuver set out by oth er centers of power within the European Community?In other words, was the C ourt active or r ath er reactive? Third, how far canthe C ourt go in its pursuit of a federal E urope, and is it likely to do so in t hefuture?It is difficult to analyze the ECJ's role as a federator without a definiteroad map outlining the shape of a federal Euro pe. Given that the m em berstates of the Europ ean U nion (EU) do no t even agree on the desirability ofAUTHORS' NOTE: We dedicate this article to our daugh ter, Elayne, who has brought m uch joy and a fewcomplications into our lives.'We mainly concentrate on the role that the ECJ has played within the framework of the EEC and,later, the EC because it is within those frameworks, rather than within the ECSC or EURATOM, that theCou rt has assumed its most active role.

Publius: The Journal of Federalism 26:4 (Fall 1996)81

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82 Publiu s/Fall 1996a federal Eu rop e, such a road ma p is unavailable. Some underly ingpremises of this article are that a federator is a mechanism that furthersfederalism within a particular political system and that the legal system ofthe EU is un iqu e and still evolving, further complicating analysis. Federalism,as used h ere, is defined as a system of "divided powers," which is based o n aconstitutional d ocu m ent and judicially enforced.2 The United States is usedas a mo del of federalism for com parison because the Un ited States and theEuropean Union face some of the same problems caused by divided pow-ers and com petencies. In addition, the role assumed by the European Courtof Justice as inter pre ter of a developing legal system is similar to the rolethe U.S. Supre me Cou rt played in the formative years of the United States.3As the Intergov ernme ntal Conference (IGC) opene d in Turin on29 March 1996, it was clear that th e future directions of the EU in g eneraland t he ECJ in particu lar were not settled. Structural questions such as theviability of the three-pillar approach of the Treaty on European Union(TEU), legitimacy issues such as the de mo cratic deficit, and futurechallenges such as enlargem ent, pres ent the EU with many problem s. Ona more manageable plane, the conference was asked to examine "whetherand how to improve the role and functioning of the European Court ofJustice and the Court of Auditors."4 This article attem pts to survey wherethe ECJ has been and to predict where it may go regarding its role as afederator in European integration.

JUDICIAL ACTIVISM BY THEEUROPEAN CO URT OF JUSTICEAn exam ination of the Europ ean Court of Justice as a federator necessarilyentails a review of some of the Court's most impo rtant juri spru den ce. TheCo urt's formal role, acco rding to Article 164 of the EEC Treaty, is simply to"ensure that in the interpretation and application of this Treaty the law isobserved." Moreover, the Treaty of Rome, like other intern ational conven-tions, is governed by international law and was not explicitly intended tobecome a constitution for the peoples of Europe. As George Bermannconcisely put it, the "EEC Treaty.. .was conceived as an international agree-m ent, and only later came to be viewed as a constitutional d ocum ent," so itdid not definitely deal with issues of federalism, such as enumeration ofpowers, implied powers, and preemption.5!Koen Lenaerts, "Constitutionalism and the Many Faces of Federalism," The American Journal ofComparative Law 38 (Spring 1990): 205.'Lord Mackenzie Stuart, "Problems of the EC: Transatlantic Parallels," International an d ComparativeLa w Quarterly 36 (January 1987): 187, wrote that the problems inherent in the American federal systemand resolved by the U.S. Suprem e Court have "lessons for those of us who have to interpret and apply thetreaties which founded the European C ommunities."4Turin European Council, Presidency Conclusions, 29 March 1996, p. 3.5George A. Bermann, "Taking Subsidiarity Seriously: Federalism in the European Community and theUnited States," Columbia La w Review 94 (March 1994): 355. The best available accounts of the negotia-tions of the Rome Treaty seem to indicate that the signatories "intended the Treaty of Rome to operatelike any other Treaty." See Walter Mattli and Anne Marie S laughter, "Law and P olitics in the E uropeanUnion : A Reply to Garrett," International Organization 49 (Winter 1985): 183, note 3.



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The European Court of Justice 83In a series of landmark decisions throughout the 1960s and 1970s, theECJ sought to reduce or remove the international law character of the RomeTreaty. By doin g so, the Co urt "constitutionalize d" the treaty in that itfashioned a constitu tional framework for a federal-type str uctu re inEuro pe. Judg e Federico Mancini himself admits, "if one were asked tosynthetise the direction in which the case law produced in Luxembourghas moved since 1957, one would have to say that it coincides with themaking of a constitution for Europe." 6 This constitutionalization wasacquired through both the structural and the material constitutionaldoctrines of the Court.7Material constitutionalism is the doctrine whereby the Court madefar-reaching decisions in the policymaking area within the EC, particularlyin the area of econom ic integration. The Cou rt has, for exam ple,promoted "negative" integration, the removal of barriers to trade, by or-dering the nonapplication of national regulations that hinder economicintegration.8 The Court's role in fostering economic integration has notreceived much attention because after all, economic integration was theraison d'etat of the common m arket. It started with the Dassonville case,9though the best known example is the Cassis de Dijon1" ruling, where theCour t suggested a policy of mutual recognition und er which goods lawfullyprod uced in one m em ber state would be allowed to circulate freely withinthe Europe an m arket. This decision has often been seen as vital to thecreation of the new approach to harmonization , which em erged as the cor-nerstone of the 1985 Single European Act.11 Furthermore, the Court hasalso promoted "positive" integration, the construction of policies thatadvance integration, by creating de acto policies to respond to the failure ofthe Council or mem ber states to pass implem enting legislation to give lifeto the treaty.The ECJ, however, is more renowned for its structural constitutionalism,through which it has tried to lay down the norms for the appropriaterelationship between the EC and its me mb er states. It did this in manyways, but direct effect, supremacy of EC law, preemption, judicial review,and the protection of fundam ental rights must be seen as the corne rstonesof the doctrine.

6G. Federico Mancini, "The Making of a Constitution for Europe," Common Market La w Review 26(Winter 1989): 595.'Volcansek c alk this the rules regulating center-periphery relations and economic integration respectively.Mary L. Volcansek, "The Eur opean Court of Justice: Supra nation al Policymaking," Western EuropeanPolitics 15 (March 1992): 111, 113.'Particularly throug h its interp retatio n of EEC Article 30 (regarding quan titative restrictions onimports) and Article 36 (regarding acceptable prohibitions on imports).'Procureur du Roi v. Dassonville, case 8/74, (1974) ECR 837."Rewe-Zentral AC v. Bundesmonopolverwaltung/urBranntwein (Cassis de Dijon), case 120/78, (1979) ECR 649."Juliet Lodge, ed. The European Community and the Challenge of the Future (Londo n: P inte r Publ ica t ions,1993), p. 54.



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84 Publius/Fall 1996When, in 1963, the Court held in Van Gend en Loos that, under certainconditions, provisions of the treaty could have direct effect in the me mb erstates of the Co mm unity, it immediately gave the EEC Treaty the characte rof a constitution as opposed to an international convention. 12 From nowon, member states that were not honoring their Community obligationscould face legal actions in their own national courts by individuals enforcingCommunity law. The Court later expanded the scope of the direct effectsdoct rine w hen it declared treaty rights to be enforceable between individuals(horizontal direct effect), and extended it in Van Duyn to other types ofCommunity legislation such as directives.13As a result of the notion of direct effect, individuals in real cases andcontroversies became the principal guardians of the legal integrity ofCommunity law within Europe. This is the same way tha t individuals in, forexample, the United States have been the principal actors in ensuring thatthe Un ited States governm ent hon ors its obligations un de r th e U.S. Bill ofRights and other federal laws. Yet, in a fully de velop ed federal system suchas the Uni ted States, the problem addressed by the dire ct effect doctri ne isresolved through other means. In other words, the question of whether anindividual can bring an action based on the U.S. Constitution depends onfactors such as the existence of a real case or controversy, standing, and theripeness or mootness of an issue. Barriers to bringing an action exist, butthey are less restrictive than those facing the private litigant in the EC, whoseeks to enforce a Comm unity law in a nationa l court.The judicial technique of enabling a litigant in the EC to raise Com munitylaw issues in member states' courts is similar to the American notion of a"private attorney general."14 This device grants individuals the power tobring an action under certain federal statutes, which increases the likeli-hoo d of their enforcemen t. Thus, in the EU and the Un ited States, thosewith the most incentive to enforce a particular law (that is, individuals whoare most directly affected) are given access to a forum in which to do so.Dur ing the same period that the direct effect do ctrine evolved, the Courtestablished the supremacy doctrine. According to this doctr ine, Communitylaw is superior to member state law, even if the national norm is subse-quently en acted and even if it is of a constitutional nature. It encapsulatesa major aspect of a fully fledged federal system, because it involves a hierarchy

of norms.Given that the Treaty of Rome does no t explicidy set forth the suprem acyof Com munity law over incompatible m ember-state law, the judicial formu-lation of the doctrine of supremacy, like the doctrine of direct effect,nVan Gend en Loos v. Nederlandse AdministratederBelastingen, case 26/62, (1963) ECR 1." S e e Van Duyn v. Hom e Office, case 41 /74 , (1974) ECR 137.'"Ra lph H. Folsom, European C ommunity Business Law (St. Paul, MN: West Publishers, 1993), p. 72 andRalph H. Folsom, European Community Law in a Nutshell (St. Paul, MN: West Publishers, 1992), p. 68.



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The European Court of Justice 85depended on a constitutional rather than an international law interpretationof the treaties. Specifically, in the landmark case of Costa v. ENEL,15 TheECJ stated :

The transfer by the states from their domestic legal systems tothe Community legal system of the righ ts and obligations arisingunder the Treaty carries with it a permanent limitation of theirsovereign rights, against which a subsequent unilateral act in-compatible with the concept of the Community cannot prevail.Such judicial creativity was not necessary in the American federal sys-tem, because the question of priority was addressed explicitly by Article VIof the U.S. Constitution. Clause 2, of this article, isknown as the "supremacyclause" because it unequivocally makes the U.S. Constitution, all laws mad epursuant to die U.S. Constitution, and all treaties made un der the authority ofthe United States the "supreme law of the land."16 Thus, for better or forworse, what was ma de explicit by the supremacy clause of the U.S. Constitu-tion had to be judicially crea ted in th e EC. In both legal systems, the issueof the priority of legal norms had to be resolved and, notably, the ECJ choosethe alternative characteristic of a federal system.

The third principal doct rine encapsulating the judicial constitutional-ization of the treaties is pr eem pt ion ." Preem ption is a dilemma for anyfederal structure because it determines "whether a whole policy area hasbeen actually or potentially occupied by the central authority so as toinfluence the intervention of the states in that area."18 In other words, afederation must decide how policymaking competencies are allocatedbetween the general and constituent governments. The foundation ofthe American preemption doctrine is the supremacy clause of the U.S.Constitution. Furt herm ore, in the United States, the presump tion in th eU.S. Supreme Courtjurisprudence is that the "Congress does not intend topreempt state legislation unless there is a clear indication from thelanguage or purposes of the federal action or regulation."19In contrast, preemption in the EC lacks an explicit foundation in theTreaty of Rome, because the treaty was drafted as an inte rnatio nal agree-me nt to be governed by interna tional law. The ECJ has generally ruled thatwhen C ommunity law substantially regulates an area, it preemp ts nationallegislation in that area excep t where the EC law provides otherwise. Forexample, in the area of a common commercial policy toward third countries,the argument for Community action preempting member-state action wasso compelling t hat it was treated as "constitutional" by the ECJ and thereby

''Costa v. ENEL, case 6/64, (1964) ECR 585."The United States Constitution, Article 6, Clause 2.1;See Eugene D. Cross, "Pre-emption of Member State Law in the European Economic Community: AFramework for Analysis," Common Market Law Review 29 (June 1992): 447, for a general discussion of the issue."Mancini, "The Making of a Constitution for Europe," 603."John E. Nowak and Ronald D. Rotunda, Constitutional Law (St. Paul: West Publishers, 1991), p. 3 15.



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86 Publius/Fall 1996prevents action on the national level, whether or not the Community hasacted.20 The principle of subsidiarity, found in the new Article 3b of theMaastricht Treaty, is relevant here because it introduces a normative aspectto this issue. It attemp ts to state a Comm unity preference for action at thelowest level possible. In other words, the princip le is that th e Comm unityshou ld n ot re gula te an area unless it can be shown to be necessary. Howthe ECJ will rule on subsidiarity remains an important, but unanswered,question regarding the allocation of policymaking competences. 21

Fou rth, t he system of judicial review developed by the C ourt m adedoctrines such as direct effect and supremacy relevant to the political insti-tutions of the Community. Judicial review is an essential feature of federalsystems because it enables a higher court to review the constitutionality ofacts of the executive and legislative branches of government and, in thismanner, maintain the allocation of competencies. Like the doctrines ofdirect effect, supremacy, and preem ptio n, th e Rome Treaty was not explicitabou t th e Eu rop ean Court of Justice's right to judicial review.22 Yet, theCo urt used Article 177 to review nat ion al laws, checking for inc ompa tibilitywith the treaty or with secondary legislation.Article 177 advanced the uniform application of Community law,because private individuals use it to challenge their national legislation forincom patibility with EC law norms. In the end , however, the referralprocess und er A rticle 177 rests on th e n ational courts' willingness to m akereferrals to the ECJ, and this has been present.23 The question, addressedbelow, the n becom es why the national co urts have shown such cooperationand goodwill.Finally, the C ourt constitutionalized the Treaty of Rome and subsequenttreaties by gradually addressing the lack of a "bill of rights" in these docu-men ts. The treaty does not confer a right to Eur opea n citizenship onEuropeans or expressly protect the fundamental rights of Europeansaffected by it. However, faced with disc ontent from some nationa l courts,particularly in Germany and Italy regarding th e protection of human rights,the Court inserted fundamental rights into the acquis communautaire*4 byexamining the "constitutional traditions common to the Member States"

'"Berm ann, "Taking Subsidiarity Seriously," 358."See Ber man n, "Taking Subsidiarity Seriously," 358, for a discussion of subsidiarity and federalism.Bermann argues that "the Community has good reason to rely on subsidiarity, not only despite the claimthat the concept has been oversold in Europe, but also despite the claim that other federal systems (likethe Am erican) appe ar to do very nicely without it." Berm ann, "Taking Subsidiarity Seriously," 403."Article 177 merely states that the Cou rt has the jurisdiction to give preliminary rulings on the follow-ing: "the interpretation of the Treaty, the validity and interpretation of acts of the institutions of theCommunity; and the interpretation of the statutes of bodies established by an act of the Council.""Simon Bronitt, Fiona Burns, and David Kinley, Principles of European Community Law (Sydney: TheLaw Book Company, 1995), pp. 156-160." T h e acquis communaulaire has been defined by A. G. Toth as "[t]he Communitypatrimony: the whole body of rules, principles, agreements, declarations, resolutions, positions,opinions, objectives and practices concerning the European Communities...", A. G. Toth, The Oxford Ency-clopedia of European Com munity Lawl,9 (1 9 9 0 ) .



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The European Court of Justice 87and the international human rights treaties ratified by the member states.25For some, "reading an unwritten bill of rights into Community law isindeed the most striking contribution the Court has made to the develop-ment of a constitution for Europe."26

INTERPRETING THE COURT'S ACTIVISMConsidering the impact th e Europ ean Court of Justice has had on the legalstructure of the European Union, one has to wonder why the Court'sactions have not m et with greater opposition . After all, had t here be en aconsensus within the European Community about the wisdom ofconstitutionalizing the treaties, a comprehensive constitution for theCommunity would have been achieved some time ago.Legislative and Political Inertia

Certainly, the C ourt's creative juri spr ude nce as outline d above has no tbeen undisputed from a legal point of view. Because it constitutionalizedwhat was not explicitly intended to become a constitution, the Court hasbeen accused of violating the line between interpretation of the treatiesand legislation, thereby en gaging in supr anational judicial policymaking27and confusing what is with what ought to be. This has been criticized oftenas going beyond the p rop er function of a Court and conflicting with generallyaccepted legal principles.28 Even in its so-called teleological interpretationof the treaties, the Court has been accused of being inconsistent andundermining a European architecture based on the rule of law.29

Even while being co ncer ned abo ut the C ourt's activism from a legal pointof view, traditionally, most observers have stopped short of openly criticizingthe Court.30 The argum ent that the European C ourt am ounte d to a"government of jud ges " has been coun tered by the view that the real law-making institutions within the European Union lack a true democraticman date as well. Deirdre Curtin, for example, rightly worries about thedemocratic legitimacy of many of the protocols attached to the Treaty on

'The Court did this in Noli v. EC Commission, case 4/73, (1973) ECR 491 and Cowan v. Tresor Public,case 186/87, (1990) 2 CML R613.26Mancini, "The Making of a Constitution for Europe," 611.27For a good summary of the legal critique of the ECJ's activism, see Volcansek, "The E uropean Courtof Justice," 108 and 117-118.^Trevor Hartley, Th e Foundations of European Community Law, 2nd ed. (Oxford: Clarendon Press, 1988), p. 81."Hartley, Th e Foundations of European Community Law, p. 80 and particularly Hjalte Rasmussen,"Towards a Normative Theory of Interpretation of Community Law," University of Chicago Legal Forum(1992): 143-153."Though exceptions exist, Hjalte Rasmussen has been an outspoken critic of the Court's activism.See, for exam ple, Rasmussen, "Towards a Normative T heory," 135-178; Hjalte Rasmussen, "Between Self-Restraint and Activism: A Judicial Policy for the European Court," European La w Review 13 (February1988): 28-39. Rasmussen's works have drawn a lot of criticism. See, for exam ple, Mau ro Ca ppelletti, "Isthe European Court ofjustice R unning Wild?" European Law Review 12 (February 1987): 3-17; Joseph H.H. Weiler, "The Court ofjustice on Trial," Common Market Law Review^ (June 1987): 555-589.



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88 Publius/Fall 1996European Union.31 Moreover, a legitimate European Union is not onlydemocratically accountable, but it also relies on the rule of law and theprote ction of individual rights. He re, the Cour t has assumed a vital role. Ifit had not, for exa mp le, established the supremacy of Com munity law, "otherfields of Community policy could have been affected adversely, for eachMem ber State could have accepted or rejected C omm unity decisions in anad hoc manner."32 Without the constitutional doctrines mentioned above,"the Treaties and secondary legislation could have been easily accepted orrejected at the whim of each national court."33 In other words, the Courthelpe d to ensu re the bin ding natu re of Comm unity law and increased legalcertainty within the EC.34The Council of Minister's failure to promote integration throughlegislation created a perceived duty for the Court to translate the integra-tionist objective into operative law thro ughjudic ial decisions. Simply stated,the Court stepped in where there was a political vacuum and legislativeinertia, which was not that surprising: "the judicial arm of the EC (...) couldhave been expected to engage in policymaking by the simple act of inter-preting the Treaties, for it was clearly writing on an empty tablet."35 Facedwith a vigorous legislature in the EC, the Court would have had a muchharder time assuming the role it did.36 In addition , it would n ot be neces-sary to do so.Finally, the political institutions in the EU, under Article 100 and Article235, have from the beginn ing tried to intervene in areas that seemed to falloutside the scope of the treaty. In a ma nne r similar to the Comm ission,Council, and Parliament, the ECJ interpreted the powers granted to it inthe treaty broadly. For example, the Court clearly chose to emphasize thefirst section of Article 4 of the EEC Treaty, which states that "the tasks en-trusted on the Community shall be carried out by the political branchesand the E urop ean Cou rt of Justice," rather tha n th e second section, whichdeclares that "each institution shall act within the limits of the powers con-ferred up on it by the Treaty."A small com parison to the U.S. Supreme Court's judicial activism in the1950s illustrates that the controversy surrounding the ECJ's activism hasno t bee n uniq ue . In 1954, in Brown v. Board of Education?1 the U.S.

"De irdre Curtin, "The Constitutional Structure of the Union: A Europe of Bits and Pieces," CommonMarket Law Review 30 (February 1993): 65.32Volcansek, "The Euro pean Court of Justice," 113."Ibi d., 112. See also, Jenny S iourthas, "Supranational F ederation s: the European Comm unity as aModel," Monash University Law Review 19 (February 1993): 280."It was a role appreciated by the member states and it explains partly why their opposition to theCourt's activism was relatively low.KVolcansek, "T he E uropean Court of Justice," 109."Rasm ussen co ntests that the ECJ merely tried to comp ensate for political inertia. The C ourt wentmuch further than that, as illustrated by impo rtant parts of the case law regarding direct effect, supremacy,extern al relat ions, and the ECJ's protection of fundamental rights and freedoms. Rasmussen, "Towards aNormative Theory," 155-156.^Brown v. Board of Education, 347 U.S . 483 (1 954).



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The European Court of Justice 89Supreme Court ruled that the doctrine of "separate but equal" treatmentfor black school children was inherently un equal; therefore, it was unlaw-ful for public school districts to segregate black and white chi ldre n. Th eCourt was criticized for this decision, because it seemed to many that theCourt was legislating, not adjudicating.38 Yet, many others have pointed outthat, at the time, the legislative and executive branches of the U.S. govern-me nt were either un able or unwilling politically to move the country in thedirection of desegregation. Faced with fundamental issues and lethargicinstitutional counterparts, both the ECJ and the U.S. Supreme Court havetaken controversial steps to solve the problem, which then broadens theirformal roles in the political system. Whether this renews the system orcorrupts its institutional framework isbeyond the scope of this article. Whatexperts might bemoan as judicial interference, the average citizen mightapplaud as the protection of core goals of the system.Cooperation by the Court's Potential Adversaries

Assuming that the legislative and political inertia maintained by themem ber states allowed the Court to be so activist, it is remarkable that themember states received the results of that activism (the Court's constitu-tional doctrines) in a cooperative, nonconflictual way. Obviously, the Cou rt'sactions did not remain totally unno ticed by the m emb er states. At times,however, they have tried to protect themselves from further activism or cou ldsee some self-interest in it.First, Jos eph W eiler correctly distinguishes b etween the decisional andthe normative aspects of the relationship between the Community and themember states.39 While the Court had a great impact on the Community'snormative structures, the m emb er states increasingly defederalised the de-cisionmaking structure of the EC through the creation of the EuropeanCouncil, COREPER, and national working groups and comm ittees, as wellas a retr eat from majority voting in the Coun cil of Ministers. These con-flicting processes may repre sent "a certain balance of action and reaction,whereby the permeation a nd expansion of Comm unity influenceexpansionin breadth expressed by the constitutionalizationis matched by an evercloser national control exercised in the decisionm aking process (which hasenabled Member States to 'digest' the federal-type constitutional frame-work entrusted upon them)."40Second, to be acceptable for the member states, it was vital that theimpact of the Court on the normative structures of the Community did notappe ar to interfere with interstate politics. The Cou rt effectively rem ained

"Bernard H. Siegan, The Supreme Court's Constitution (New Brunswick, NJ: Transaction Publishers,1993), chapter 4."Joseph H. H. Weiler, "Community, Member States, and European Integration: Is the Law Relevant?"Journal of Common Market Studies 21 (Septemb er/Decem ber 1982): 46.'"Ibid.



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90 Publius/Fall 1996

nonpartisan in its judicial policymaking, and no fixed "winners" or "losers"could be identif ied over a long period of time.41 This perception isprobably enhanced by the strong belief in Europe, which is stronger thanin the United States, in the politically neutral nature of the judicial pro-cess.42 Also, it was in the interest of the member states to operate in ajuridical climate where bargains struck would be honored. As the Courthelped to create this climate, it established a sense of legal certainty forthem, where long-term benefits outweighed inconvenient Court rulings inthe short term. Finally, the member states' low-key response to the Court'sactivism was facilitated by the fact that its jurisprudence enjoyed low visibility interms of the general public opinion.By and large, the national courts have been willing partners of the ECJin the use of Article 177 against national public authorities. Many explana-tions can be given for this cooperative role, including a great respect by thecourts for the prestige of the European Court and the legal quality of itsrulings.43 Other reasons are: (1) the legal community at large in the EChaving a self-interest in accepting this new and growing source of law intheir national legal orders; (2) the importance for the national courts infeeling part of a general trend across the EC member states and not beingdisadvantaged versus courts in other member states; and (3) the apprecia-tion by the lower national courts in gaining the power of judicial reviewover the national executive and legislative branches.44 To summarize thisargument , the Court was effective, because it remained respected by andrespectful of its potential adversaries, not because of its nominal power.What the Court did was socially legitimate rather than formally legitimate.45The C ourt as the Motor ofEuropean Integration ?

The Court's ability to constitutionalize the treaty, because it had poten-tial adversaries as cooperative partners, qualifies the view of the Court as apowerful autonomous actor within the EC imposing its doctrines on oth-ers. Moreover, the Court's activism has met with some opposition on vari-ous occasions. Legally, the extension of direct effect by the Court todirectives, for example, met with bitter opposition, particularly by the FrenchConseil d'Etat and the German Bundesjlnanzhof. The Court subsequentlylimited the direct effect of directives by declaring in Ratti,46 and confirming

"Joseph H. H. Weiler, "Journey to an Unknown Destination: A Retrospective and Prospective of theEuropean Court of Justice in the Arena of Political Integration," Journal of Common Market Studies 31(December 1993): 427.*^Jean-Louis Seurin, "Towards a European Constitution? Problems of Political Integration," PublicLa w (Winter 1994): 634."Mancini, "The Making of a Constitution for Europe," 605."Weiler, "Journey to an Unknown Destination," 421-425."Paul Marcquardt, "Deficit Reduction in the European Union," Duke Journal of Comparative an dInternational Law 4 (Spring 1994): 274-275."Pubblico Ministerio v. Ralti, case 148/78, (1979) ECR 1629.



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The European Court of Justice 91it in Marshall17 and subsequent cases48 that directives, unlike provisions inthe EC Treaty, could not be invoked by an individual against anotherindividual or, in oth er words, could not have horizontal direct effect. Thesupremacy doctrine also was contested on procedural grounds in Italiancourts, and in Italian and Germ an courts on the basis of the possible th reatof Comm unity law to fundamental rights. In France, some mem bers of thejudicial branch accepted the supremacy doctrine, while others did not.An interesting example of political resistance by the member states tothe ECJ's activism is the Cassis de Dijon case, because it is often used tosupport hypotheses about the Court's real role in promoting Europeanlegal integration. What is certain is that the doctrine of mutual reco gnition asphrased in this ruling would have created severe policy consequences forthe member states, if the Court could have imposed the doctrine uponthem simply by its legal authority. In fact, however, the ru ling m et withbitter opposition in various member states, and the Court qualified thedoctrine a bit in subsequent rulings.According to Karen Alter and Sophie Meunier-Aitsahalia, Cassis de Dijondid not come out of the blue, but followed attempts by the EuropeanCommission and interest groups at the end of the 1970s to bring mutualrecognition into the political arena. Both actors used the Court ruling fortheir own purposes, but only when more liberal economic policies wereadopted a few years later by dominant member states did mutual recogni-tion become ripe for the political bargaining that led to the SingleEuropean Act. The Court's role must be seen here as that of a catalyst anda provocateur rather than that of an initiator of further integration.49 Theprincipal forces of legal integration are supranational (the Commission)or subnational (interest groups) with member states subordinating theirimmediate individual interests (the short-term economic pains caused byCassis de Dijon) to expected collective interests over the long term (by theimplementation of the Single European Market).Realists, like Geoffrey Garrett, deny the ECJ even any autonomous rolein the legal inte grat ion process . Realists argue that th e crucial variable inthe process is the me mbe r states' national policies. Only when the m em berstates perceive the rulings of the Co urt to be in their own interests can theCourt successfully introduce new legal doctrines.50 Ultimately, the member

t7Marshallv. Southampton and South-West Hampshire Area Health Authority, case 152 /84, (1986) ECR 723."Fosterv. British GasPlc, case C-188/89, (1990) ECR3313; MarleasingSA v. La Comercial International deAlimentacion SA, case C-106/89, (1990) ECR 4157; Faccini Dori v. Recreb Sri, case C-91/92, (1994) ECR3325. For a review of the ECJ's case law in this matter, see Takis Tridimas, "Horizontal Direct Effect ofDirectives: A Missed Opportunity?" European Law Review 19 (December 1994): 621-636.49Karen J. Alter and So phie M eunier-Aitsahalia, "Judicial Politics in the Euro pean Com mun ity:European Integration and the Pathbreaking Cassis de Dijon Decision," Comparative Political Studies 26(January 1994): 554."Geoffrey Garrett, "The Politics of Legal Integration in the European Union," International Organization49 (Winter 1995): 177.



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92 Publius/FaU 1996states can ignor e th e rulings of the Court o r am end the legal order, if theywish to d o so. Using the European Commission as a bellwether,51 the Courttakes into account the likely responses of the member states most affectedby a par ticu lar ru ling . Garrett's assertion tha t the ECJ takes likely responsesof the member states into account is doubtful, because it would certainlyjeopardize a European Community based on the rule of law.The fact tha t the m ember states have perceived rulings of the E uropeanCou rt to be in the ir interests, for the reasons outlined above, explains whythe C ourt has been able to be such an activist, though probably perceivedlong-term interests matter more than the short-term approach dictated bythe specifics of a particular ruling (which Garrett seems to suggest). Wherethe m em ber states were really concer ned abou t the constitutional doctrinesof the Cour t, it was, as Walter Mattli and Anne-Marie Slaughter argue, prob -ably crucial that the Court "couched its rulings in apolitical and technicalterms."52 This m ean t that the real integration ist effects of its rulings wereoften concealed. Thus, it made it politically more difficult for hostile memberstates to try to am end the legal orde r or to ignore the decisions.

A recent illustration is the controversy caused by the ECJ's ruling inBosman.5i Using Article 48 of the EEC Treaty on the free movement ofworkers, the ECJ effectively rendered illegal some rules of the Europeansoccer federation on transfers between clubs and on the nationality of players.Bosnian indicates that where the ECJ cannot couch its rulings in technicalterms and legalistic logic, and the visibility of a ru ling is also high , the ruling ismu ch m ore likely to be met with opposition . Prime m inisters from tradi-tionally integrationist countries, such as Belgium, have even suggested writingan exception to the free movement of workers for soccer players into thenew Treaty on European Union, and thus amend the European legalorder, to safeguard certain national interests.54No m atter how one interprets possible resistance to the Co urt's activism,the fact remains that for a few decades, resistance was the exception to therule and ad hoc rather than systematic.55 There is still a widespreadacknow ledgm ent that there must be limits to the judicial activism of theCou rt because "too much dissonance between judicial decisions by the ECJ51Mancini admits the use of the European Comm ission as a bellwether by the European Court. Mancini,"The Making of a Constitution for Europe," 605."Walter Mattli and Anne-Marie Slaughter, "Law and Politics in the European Un ion: A Reply to Garrett,"International Organization 49 (Winter 1995): 185."Union Royale Beige des Societes deFootball Association ASBL and others v. Jean-Marc Bosman an d others, caseC-41 5/93, repo rts of cases before the C ourt of Justice and the Court of First Instance, Section I(December 1995): 5040."Belgian Prime M inister Jean-Luc Dehaene in th e Belgian daily, DeSlandaard, 22 December 1995, p. 3.KRasm ussen, however, found that irritation, dismay, and wrath with regard to the ECJ has been accu-mulating since the 1970s in national court rooms and within national governments and parliaments.One often ignores, he argues, an oral tradition of scholars and practitioners who in private haveexpressed criticism, often severe, of the Court's activism. The mem ber states' slow implem entation of theCourt's Article 169 rulings would also reflect this evolution. Rasmussen, "Towards a Normative Theory," 159.



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The European Court of Justice 93and societal expectations could undermine the Court's legitimacy."56 Thequestion must be then, how activist can and should the Court be in theEuro pean Unio n of the future, if it does not want to see its legitimacy eroded?

THE EUROPEAN COURT OFJUSTICE IN THE FUTU REOne crucial factor affecting the ECJ's legitimacy is public opinion. Althoughit is often argued that the ECJ's moves to constitutionalize the Europeanlegal order coincided with the support of a majority of EC citizens forfurther European integration, few analysts give supportive data for thisthesis. The apparent mood swing by the European public against furtherintegration should make it more challenging for the ECJ to constitutionalizethe treaties further.On the basis of recent public opinion data in the Europ ean Commission'sEurobarometer, however, any challenge to the legitimacy of the EuropeanCour t is unlikely to come from the European public. For the average EUcitizen, the ECJ still seems to be a largely invisible institution, which isnevertheless trusted by many people to make decisions that are right forthe European Community. About 50 percent of all EC citizens find thateveryone should obey the decisions of the European Court, whether theyagree with it or not, whereas only 22 percent seem to disagree with thisstatement. Support for compliance is even highest among Danish andBritish citizens (respectively 75 percent and 60 percent), who are not tradi-tionally known for their support for further integration. It is fair to say,then, that respect and regard for the European Court are still high on thepart of the general public. Yet, faith in the ECJ is not unlimited; an over-whelm ing majority of citizens also believe that if the ECJ were to rule againstthe will of the majority of citizens, it would be better to do away with theCourt altogether. The conclusion h ere is that the ECJ has not been per-ceived yet as doing this, but this must be seen against a background of verylow awareness by most citizens of the ECJ's existence. 37

The ECJ is still largely viewed with respect, but changes to other EUinstitutions' com petencies could alter the percep tion. As Paul Dubinskypoints out, the "absence of a powerful, democratically elected EuropeanParliament" has aided accep tance of the belief that th e rule of law requiresthe ECJ to resolve "all asserted violations of Com mun ity Law."38 He furthernotes that, if the Am erican experienc e has any relevance, challenges to the

MMattli and Slaughter, "Law and Politics in the European Union," 185, note 8."Data from EUROBAROMETER No. 38 (December 1992), p. 81 and EUROBAROMETER No. 40(December 1993), p. 85.^Paul R. Dubinsky, "The Essential Function of Federal Courts: the European Union and the UnitedStates Compared," American Journal ofComparative Law 42 (Spring 1994): 344.



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94 Publius/Fall 1996democratic legitimacy of the ECJ may come in the future from theEuropean Parliament, if it assumes the true powers of a parliamentaryassembly.59Several factors indicate th at the days when th e Eur ope an C ourt ofJustice could, in relative peace and quiet, engage in judicial activism maybe over. First, the Treaty on European Union (TEU) signalled more diffi-cult times for th e C ourt. For example, in some of the new competences ofthe European Community (formerly EEC), such as culture, educa tion, an dhealth, severe limits were put on Community legislation, thus making itm ore difficult for th e ECJ to expand on these competences. Th e Court wasalso excluded from adjudicating on matters from pillars two and three ofthe TEU . More ominously, the so-called "Barber Protocol" attached to thetreaty can be seen as an attempt by the member states to interpret ECArticle 119 in light of the ECJ's ruling in Barber v. Royal Guardian ExchangeAssurance Group,60 which was about equality in pension schemes. Curtindiscusses this pr otoco l as a poten tial case of the acquis communautaire beinghijacked without public debate and in a manner which threatens the ECJ'sindependence.61 Also, the European P arliament had deman ded the rightto veto the ap poin tm ent of jud ges to the ECJ, a request based on the fearthat the C ourt would become the subject of more intense political debate.62

Although it is possible, as Hjalte Rasmussen suggests, that the restric-tions on the ECJ in the TEU are the result of criticisms levied against itduring the negotiations leading up to the Treaty,63 it is more likely that themember states wanted merely to protect themselves in key areas againstfurther Court activism and Community influence by keeping enoughnation al control over the decisionmaking process. In oth er words, our viewfollows Weiler's po int on th e traditional pattern of integrationist action bythe ECJ and intergovernmental reaction by the member states discussedearlier. After all, the TEU expand ed the competencies of the ECJ intooth er areas such as econom ic and monetary un ion (Articles 173, 175-177,180, and 184 of the new EC Treaty) where the Court seems to be givenmore competence than the German courts ever had in thisfield vis-a-visthe B undesbank.64 The new EC Articles 171 and 172, which grant the ECJthe power to fine mem ber, states that if they fail to fulfill a treaty obligatio n,it also constitutes new major powers for the ECJ.65M Ib id . , 344."Barber v. Royal Guardian Exchange Assurance Group, case 262/88, (1990) ECR 1889.61Curtin, "The Constitutional Structure of the Union," 50-51. The Barber Protocol also raised con-cern in editorial com ment, "Quies Custodiet the European C ourt ofJustice?" Common Market Law Review30 (Oc tober 1993): 902.62See European Parliament Resolution on the constitutional basis of the European Union of12 December 1990 (Colombo Resolution, Agence Europe, 19 December 1990), quoted in Curtin, "TheConstitutional Structure of the Union," 66."Rasmussen, "Towards a Normative Theory," 163.wReimer Voss, "The National Perception of the Court of First Instance and the European Court ofJustice," Common Market Law Review 30 (December 1993): 1134.^Except in cases brought under Article 170.



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The European Court of Justice 95The difference with the pre-Maastricht era is, however, that the cooperativeattitude from the mem ber states and the nation al judiciaries, m enti one dabove, cannot be taken for granted any more . In this climate, the C ourtwill probably find it increasingly difficult to maintain its freedom to inter-pret the treaties broadly and creatively. Within the context of lower publicsupport for European integration, the European Court has already comeund er closer scrutiny from national governments. Chancellor Helm ut Kohl,for example, has asserted that the Court "nat only exerts its competencesin legal matters, but goes far further. We have an example of so meth ingthat was not wanted in the begin ning. This should be discussed so that the

necessary measures may be taken later."66 Other voices have expressed dis-cont ent with the European Court too; at times, this has led to proposals tocurtail the power of the Europ ean Court,67 such as restricting access to thepreliminary proce dure und er Article 177 EEC. The power to refer ques-tions to the European Court would only be granted to national courts wherethere is no judicial remedy un der national law. Considering that ab outtwo-thirds of the referrals to the ECJ have come from the lower nationalcourts, removing the right to refer would not only curtail opp ortunitie s forthe ECJ to ensure that EC law is observed, bu t also restrict access to the ECJto litigants and lawyers able and willing to exhaust all legal remedies na-tionally.68Within this context, it is ironic that the ECJ has still been given manyoppo rtunities to be activist in the future. The "Europe of bits and pieces,"which has emerged from the Treaty on European Union (TEU), hascreated various constitutional "grey zones" for the E uropean Union which,as Curtin points out, threaten the cohesiveness and the unity of its legalsystem.69 Based on past experi ence, the E urope an Court of Justice couldact creatively to ensure the uniformity of Community law. To accomplishthis, it could clarify the notion of subsidiarity, the relationship between thevarious "pillars" of the TEU, or the legal status of the various protocolsannexed to the TEU, such as the Social Policy Protocol. 70 Certainly theincreasing complexity of the EU's decisionmaking procedures (an evolu-tion that goes back to the Single European Act) forms another excellentdom ain for judicial activism. More and m ore, th e Court will have to ruleon the legal basis of a dispu ted me asure. By doing so, it will often deter-mine the voting procedure used to enact a particular piece of legislation,and because some of these procedures have more of a supranational

''HelmutKohl, "Chancellor Kohl Accuses the Court of Going Beyond its Competences: The 'Paletta'and 'Boetel' Cases," Europe 5835 (October 1992): 9.6;See, for exam ple, German Minister for Social Affairs, "Die leise Uberm acht," DerSpiegel (November1992): 102, quoted in "Quies Custodiet the European Court ofjustice?" 900."Carl Otto Lenz, "The Role and Mechanism of the Preliminary Ruling Procedure," Fordham Interna-tional La w Journal 18 (December 1994): 409.KCurtin, "The Constitutional Structure of the Union," 67.7frThe main issue is whether these protocols form an integral part of EC law.



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96 Publius/Fall 1996natu re than other s, the rulings are likely to be more controversial. Also,the increased competences of the Union will involve rulings in more andmore sensitive policy areas, which will get more attention from the publicat large and, there fore, receive more hostile criticism. Fur therm ore, in thevery near future, clear answers detailing the limits of the EU's competenceswill be necessary. It is not certain , however, that the national cour ts willallow the ECJ to determine this, perhaps reserving the authority to deter-mi ne com petences for themselves. As a result, cooperation between thenational courts and the ECJ might be imperilled.

Finally, rulings on subsidiarity or the legal basis of a policy measuredetermine fundamental questions, such as whether the Union should act,an d by which decisionm aking me chan ism. Obviously, these are all verydivisive issues tha t ca nno t be resolved by obtu se legal rationale s. It is uncer-tain but not improbable that these factors have persuaded the Court toadopt a more cautious approach in recent rulings.71 Francis Jacobs evenwonders if the Court could not reverse the trend of its previous jurispru-dence by increasing its protection of the rights of member states againstalleged en cro achm ent by TEU institutions as more and m ore powers aretransferred to the center of the European Union.72Th e C our t of First Instance (CFI), which was set up in 1989 to relieve theburden on the ECJ, may prove to be a mixed blessing for the ECJ if itsjur ispr ud enc e conflicts with the ECJ. By Council Decision 93/350 of 8June1993 and 94 /14 9 of 7 March 1994, the CFI expanded its jurisdiction tohea r all direct actions broug ht by natural and legal persons. This expandedjurisd iction is evidence that the EU is moving toward a federal court systemwith the lower tier deciding questions of fact and the highest tier reviewingrulings on the law. In this regard , however, it is imp ortant to note th at theCFI has, in its repo rt to the Inte rgov ernm ental Conference (IGC) of17 May 1995, recommended against the establishment of new courts on areg ion al or specialized subject-matter basis. Nevertheless, divisive issuesabout the TEU or problems resulting from enlargement of the EU maymake the establishment of new courts inevitable as the case loads on theECJ and CFI prove unmanageable.

In summary, the ECJ has done what it could to create a federal constitutionfor Western Euro pe. Any attem pt to create a federation requ ires publicdebate at some point about what federal structures should be created andthe respective powers of its various governm ents. Some, such as Curtin,hop e a constitutional blueprint will emerge from the IGC, a blueprint that

''See "Safeguarding the Union's Legal Order?" editorial comment, Common Market IMW Review 31(August 1994): 688. See also Tridimas, "Horizontal D irect Effect of Directives," 625. Tridimas illustratesthe ECJ's reluctance to depart from the literal wording of the EEC Treat)' with regard to the possiblehorizo ntal direc t effect of directives. Oth ers, like Judge Mancini argued, however, that the Court's self-restraint started earlier, particularly in Cinetheque v. Federation Nalionale des Cinemas Francais, cases 6 0 - 6 1 /84, (1985) ECR 2605, pa ra 26. Manc ini , "The Making of a Const i tu t ion for Eu rope , " 613.^Francis G .Jacobs, "Eur ope After 1992: The Legal Ch allenge," University of Chicago Legal Forum (1992): 16.



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The European Court of Justice 97would settle some of the constitutional issues mentioned above withoutcompromising the legitimacy or independence of the ECJ.73 Yet, as Weile rnotes, a serious challenge to a systematic concent ration of more powers atthe federal level is in itself essentially federal, 74 indicating that aconstitutional bluepri nt may not be necessary. The indications are th atthis challenge has arrived in the post-Maastricht era.

73Curtin, "The Constitutional Structure of the Union," 69.T4Weiler, "Journey to an Unknown Destination," 435.



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the european court of justice as a federator

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