Integration Through Law: The European Court of Justice and the European Integration Project
Essay Question: What is ‘integration through law’ and why does it matter?
The European Court of Justice (ECJ) has played a major role in the challenging drive towards the achievement of an ‘ever closer union.’ It has done so by exploiting its fairly ambiguous mandate, particularly its role in the interpretation of European Community (later European Union) laws as specified under Article 177 of the Treaty of Rome, also known as the preliminary ruling system. This was intended to create coherence in the implementation of European Community (EC) laws to all member states. Over the years, however, a calculated approach was developed by the ECJ which transformed its stature from a relatively marginal judicial body, to a powerful supranational one whose influence reaches into the lowest judicial courts of member states forcing the compliance of recalcitrant member states to the EC laws. The ECJ’s transformation was not without controversy, but its decisions and influence can certainly be described as effective in forging an ‘integration through law.’
The preliminary ruling system is required to maintain coherence in the implementation of European Community laws to all member states.[1] This system is supported by three principles; namely, the principle of supremacy, the principle of direct effect, and later, the principle of state liability. All these principles work together in such a way that the ECJ basically established a de facto federal form of supranational government rather than a mere intergovernmental one as envisioned by French President Charles de Gaulle. The combination of the two principles, direct effect and supremacy, means that the Community Law “constitutionalize, or federalized, EC law.”[2] However, the “constitutionalization claim regarding the treaties establishing the European Communities” only works when the ECJ works in tandem with the judicial branch in each member states.[3] Once the latter respects and enforces the decisions of the former, then it can be argued that the ECJ has effectively created a supranational judicial branch, able to advance the notion of integration through law.
Through the principle of direct effect, individuals are able to challenge their national laws in their national courts if seen to be in violation of the EC law — which is supreme over all national laws, as stipulated in the principle of supremacy. By providing individuals the capacity to challenge their governments’ power, they have also advanced the ECJ’s powers beyond what it was mandated to do. This is because under Article 177, national courts are obligated to seek the ECJ’s interpretation of the EC laws to maintain coherence. However, the ECJ mandated functions are oftentimes ignored by national courts by asking it instead to act as an arbiter for questions regarding things that are not within its mandate, such as determining whether or not a national law is compatible with EC law.[4] In response, the ECJ willfully obliges by actually pointing out whether or not a national law is compatible with the EC law simply because its role as an interpreter of EC law ultimately carries with it the role as an arbiter. This creates a partnership between the ECJ and the national courts which have proven to be instrumental in increasing the influence of the ECJ in the member states. Hence, the ECJ acquired more power than what the member states had originally intended.
Contrary to what became its eventual function (as described above), the original function of the ECJ was “to allow individuals to challenge EC law in national courts.”[5] This was intended by the member states to allow individuals to serve as check to the laws passed by the European Community — a function that allows the sovereignty of the state to be strengthened and not undermined by EC laws. Surprisingly, this function instead decreased the state sovereignty and strengthened the EC laws as individuals used the principles of direct effect and supremacy to force their states to comply with EC laws. What seems to have occurred was that the member states were unable to anticipate or predict the consequences of their decisions in a manner that would have given them the capacity to know beforehand the necessary limits imposed on “what they had consensually decided to accomplish in common”, such as the crafting of the ECJ’s mandate.[6] As a result, the increased powers garnered by the ECJ through the two principles has allowed the “common market provisions enforceable despite the lack of implementing legislation”. Without such a principle, member states would have been able to undermine EC laws if it did not suit them which would have meant the establishment of a semi-functional common market (or no common market at all) where states push for (what they perceive to be) their national interests with little regard for the common good. The common good, as perceived by the EC’s founding fathers, erodes the Westphalian notions of sovereignty by allowing a higher authority to override national sovereignty in respects that are of concern to their citizens.
The preliminary procedure has increased the ECJ’s power by positioning it in a less central/hegemonic role in relation to its influence of the member states’ judiciary. In addition, even though it is not explicitly described in the Treaty of Rome, its role has expanded thanks in part to the precedent set by the national courts. The ECJ was encouraged by the national judiciaries to go beyond mere interpretation of unclear EC laws and actually impart their judgement on whether or not a national law is compatible with EC laws. This extension of influence to national courts means that political manoeuvrings around certain undesirable ECJ interpretations became so restricted to the point that compliance was seen as the only way forward. Furthermore, the respected principle of judicial neutrality has essentially curtailed any political influence to their national court’s decisions. Moreover, national courts are institutions whose decisions are rarely fought by politicians for the very reason that they carry more respect than what would have been accorded to international tribunals, such as the ECJ.[8] By extension, the non-state actors who are reliant on judicial activism, and professionals such as lawyers, bankers, entrepreneurs and others with a stake to advance their goals (within a closer European economic and political integration) are more likely to align their views in a manner that contributes to the strengthening of the EC laws and the decrease in the autonomy of member state governments.[9] The power of judicial review has been accorded to even the lowest level courts, which are traditionally reserved to the highest courts, thus empowering the judiciary to actually become proactive in the enforcement of EC laws in their respective state. Finally, the most important element of Article 177 is that it has not sidelined or compromised the powers of the national judiciaries in favour of the ECJ; it empowered them instead. This partnership has proven to be so crucial to the powers of the ECJ that without it its powers would have been merely “illusory.”[10]
In all, integration through law is certainly not as smooth as the process described above. Some states have even opted out on certain aspects of integration, such as in social and monetary policies. Nonetheless, the preliminary ruling system has provided a way for the European economic, and later, political integration to move forward by eliminating the possible legislative and judicial impediments that would have been imposed by non-compliant member states to curtail the EC laws’ influence in its domestic laws. Similarly, the preliminary ruling system has allowed the ECJ to curtail the autonomy of the member states by having the national courts as its enforcer of compliance of EC laws. With a limited autonomy for member states and a more coherent implementation of EC laws, the supranational institutions, such as the European Commission and the European Parliament, have therefore been given a political space through which consensus has become a possibility. Such a leeway is essential if the goal of a common market was to be achieved. Thus, through the preliminary ruling system, the ECJ has expanded its role from simply providing interpretation of EC laws to national courts, to actually being a proactive supranational tribunal in promoting economic, political and social integration.
Footnotes
[1] J.H.H. Weiler, “A Quiet Revolution: The European Court of Justice and Its Interlocutors,” Comparative Political Studies 26, no. 4 (January 1994): 515, accessed October 17, 2014, doi:10.1177/0010414094026004006.
[2] Ibid., 514.
[3] Ibid., 515.
[4] Karen J. Alter, “Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice,” International Organization 52, no. 1 (Winter 1998): 126, accessed October 18, 2014, http://www.jstor.org/stable/2601329.
[5] Ibid., 122.
[6] Philippe C. Schmitter, “Ernst B. Haas and the Legacy of Neofunctionalism,” Journal of European Public Policy 12, no. 2 (April 2005): 263, accessed September 12, 2014, doi:10.1080/13501760500043951.
[7] Alter, “Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice,” 127–128.
[8] J.H.H. Weiler, “A Quiet Revolution: The European Court of Justice and Its Interlocutors,” 519.
[9] Ibid., 520.
[10] Ibid., 523.
Bibliography
Alter, Karen J. “Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice.” International Organization 52, no. 1 (Winter 1998): 121–47. Accessed October 18, 2014. http://www.jstor.org/stable/2601329.
Schmitter, Philippe C. “Ernst B. Haas and the Legacy of Neofunctionalism.” Journal of European Public Policy 12, no. 2 (April 2005): 255–72. Accessed September 12, 2014. doi:10.1080/13501760500043951.
Weiler, J.H.H. “A Quiet Revolution: The European Court of Justice and Its Interlocutors.” Comparative Political Studies 26, no. 4 (January 1994): 510–34. Accessed October 17, 2014. doi:10.1177/0010414094026004006.