’ The European Court of Justice is an important motor of European integration ’ . Discuss
The question of the role of the European Court of Justice (ECJ) in the process of European integration has been a matter of long-standing academic dispute between neo-functionalists and intergovernmentalists. In this essay it will be argued that the ECJ can be seen as an engine of European integration but the court - founded along with the other core institutions of the European Union (EU) in the 1950s - depends on the assistance of other actors. The explanation of this assertion is unfolded in three steps. At first this paper will provide a brief overview of neo-functionalism and intergovernmentalism and their dispute concerning the ECJ. Secondly, the ‘magic triangle’ (Vauchez 2008, p. 8) consisting of ‘direct effect’, ‘supremacy’ and ‘preliminary ruling’ - which allows the ECJ to have an impact on the integration process - will be examined and it will be explained why these three mentioned rules are so important for the European legal order. Thirdly, it is claimed that there are limits of the court’s judicial law-making and thus its role in the process of European integration should not be overestimated.
More than twenty years ago, political scientists began to evaluate the judiciary’s role in European integration (Wasserfallen 2010, p. 1131). Generally, political integration means that previously independent and sovereign states transmit parts of their legal power to supranational institutions, or organizations. They are placed under a common political authority, which can make legally binding decisions for political organs, as well as natural persons. These decisions bind its constituent parts without the consent of those whom they are applied. One can understand political integration as a process, or a result of it (Green 1969, pp. 9-10). The two ‘dominant schools of European integration’ (Pollack 2015 p. 14) are neo- functionalism and intergovernmentalism. Intergovernmentalists like Alan Milward supported the view that national governments played the central role in the historical development of the European Union (Pollack 2015 p. 16). In contrast, the fundamental argument of neo- functionalists is that states are not the only important actors on the international scene. Thus they focus their attention on the role of supranational institutions and non-state actors, who, they argue, are the driving force behind integration efforts (Jensen 2016, p. 54). As a consequence, the two schools promoted fundamentally different accounts on the importance of the judiciary and the ECJ as the supreme legal body of the EU. Neo-functionalists argued that the ECJ could almost independently pursue its own agenda, whereas for intergovernmentalists the judiciary has no autonomous influence on integration whatsoever (Wasserfallen 2010, p. 1131).
Burley and Mattli presented the first neo-functional arguments about the judiciary. In their view the ECJ was a ‘hero’ (Burley and Mattli 1993, p. 41) signalling and paving the way on which the political actors can further integrate (Burley and Mattli 1993, p. 48). Consequently, they see the ECJ as a strongly independent court that can and does promote European integration. Indeed, the ECJ played a particularly important role in the 1970s and 80s when it demonstrated in several judgements its willingness and ability to advance integration and established important principles of EU law by activist interpretations of the Treaty.
The principle of was developed by the ECJ in 1963 at the van Gend en Loos v.
Nederlandse Administratie der Belastingen Case. In this judgment the Court ruled that European law not only engenders obligations for EU countries - but also rights for individuals. Therefore the ECJ authorized private litigants to take advantage of these rights and immediately invoke European acts before national and European courts (Alter 2012, p. 82). Kaya argues that the direct effect doctrine has increased the effectiveness of the EU law and integration process because it ‘fostered a kind of alliance between private litigants and pro-integration forces’ (Kaya 2010, p. 218).
In 1964 the ECJ declared the supremacy of European law over conflicting national law (Costa v. ENEL). The judges ruled that national courts as well as national administrative authorities are required to ignore any national law, which could impede the application of European law and give immediate effect to the provisions of the latter one in cases which arise before them. All European law irrespective of its rank has to be obeyed by all national institutions and concerns all national law, even if it has a constitutional nature (Thienel 2010, p. 83). As a result, member states, which have enacted policies and laws contradicting European legal order, are forced by the ECJ to enforce European law within their national boundaries (Kaya 2010, p. 220).
Both van Gend en Loos and Costa v. ENEL are classic examples of preliminary rulings. A preliminary ruling can be defined as a ruling by the ECJ on the interpretation or validity of an EU law that arises in a national court case (McCormick 2015, p. 219). According to Alter, preliminary ruling procedure can be perceived as a loophole, thanks to which transformation of European legal system was possible (Alter 2001, p. 9). Together with supremacy or direct effect the EU’s preliminary ruling allows the individual to invoke the European law in the national courts to challenge national laws. Alter notes that preliminary ruling has increased the member states’ obligations under the European law and thus the ECJ has played an important role in increasing legalization in the EU (Alter 2000, pp. 491-492). Moreover, Kaya emphasizes that it serves as a ‘legal integration tool in the EU law’ (Kaya 2010, p. 223). To support his claim, he lists three implications that it has for individuals and member states. Firstly, it helps the national courts to make legally correct judgments. Secondly, it ensures consistency in the application EU law within the member states and promotes uniform interpretation.
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- ECJ European Court of Justice Europäische Integration EuGH Europäische Gerichtshof EU Europäische Union neo-functionalism intergovernmentalism direct effect supremacy preliminary ruling