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The European Court of Justice as a Federator

Donna Starr-Deelen
Flinders University Law School

Bart Deelen
University of Melbourne
Downloaded from http://publius.oxfordjournals.org/ by adam marshall on January 2, 2012 The European Court ofJustice is often seen as the motor of European legal integration because it "constitutionalized " the treaties establishing the European Communities (EC) through its jurisprudence. In reality though, the Court's role has rather been that of a promotor or provocateur because the member states and the national courts have been, by and large, cooperative partners in this process, and many of the political consequences of the Court's rulings have been hidden in its legal language. The Court will likely be careful in thefuture about continuing itsjudicial activism with the same vigor. Since the Treaty on European Union, many politically divisive issues are potentially open to the Court's interpretation. In addition, the cooperative attitude, by member states and the national courts, is no longer guaranteed.

Analyzing the role of the European Court ofJustice (ECJ) in federating the European Community is a challenging enterprise. It raises a number of fundamental questions, each of which is a source of considerable debate. First, there is a serious gap between the formal role of the European Court of Justice as outlined by the treaties establishing the European Communities1 and the much more active de facto role the ECJ has played over the last decades. The literature about whether this judicial activism was justified in legal terms has been abundant. Second, there is disagreement about the importance of this activism. Was the Court, through its rulings, responsible for many steps toward a more federal Europe since the 1950s? Or, did the Court somehow operate within a certain margin of maneuver set out by other centers of power within the European Community? In other words, was the Court active or rather reactive? Third, how far can the Court go in its pursuit of a federal Europe, and is it likely to do so in the future? It is difficult to analyze the ECJ's role as a federator without a definite road map outlining the shape of a federal Europe. Given that the member states of the European Union (EU) do not even agree on the desirability of
AUTHORS' NOTE: We dedicate this article to our daughter, Elayne, who has brought much joy and a few complications 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 the Court has assumed its most active role. Publius: The Journal of Federalism 26:4 (Fall 1996)

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a federal Europe, such a road map is unavailable. Some underlying premises of this article are that a federator is a mechanism that furthers federalism within a particular political system and that the legal system of the EU is unique and still evolving, further complicating analysis. Federalism, as used here, is defined as a system of "divided powers," which is based on a constitutional document and judicially enforced.2 The United States is used as a model of federalism for comparison because the United States and the European Union face some of the same problems caused by divided powers and competencies. In addition, the role assumed by the European Court of Justice as interpreter of a developing legal system is similar to the role the U.S. Supreme Court played in the formative years of the United States.3 As the Intergovernmental Conference (IGC) opened in Turin on 29 March 1996, it was clear that the future directions of the EU in general and the ECJ in particular were not settled. Structural questions such as the viability of the three-pillar approach of the Treaty on European Union (TEU), legitimacy issues such as the democratic deficit, and future challenges such as enlargement, present the EU with many problems. On a more manageable plane, the conference was asked to examine "whether and how to improve the role and functioning of the European Court of Justice and the Court of Auditors."4 This article attempts to survey where the ECJ has been and to predict where it may go regarding its role as a federator in European integration. JUDICIAL ACTIVISM BY THE EUROPEAN COURT OF JUSTICE An examination of the European Court ofJustice as a federator necessarily entails a review of some of the Court's most important jurisprudence. The Court's formal role, according to Article 164 of the EEC Treaty, is simply to "ensure that in the interpretation and application of this Treaty the law is observed." Moreover, the Treaty of Rome, like other international conventions, is governed by international law and was not explicitly intended to become a constitution for the peoples of Europe. As George Bermann concisely put it, the "EEC Treaty.. .was conceived as an international agreement, and only later came to be viewed as a constitutional document," so it did not definitely deal with issues of federalism, such as enumeration of powers, implied powers, and preemption.5
! Koen Lenaerts, "Constitutionalism and the Many Faces of Federalism," The American Journal of Comparative Law 38 (Spring 1990): 205. 'Lord Mackenzie Stuart, "Problems of the EC: Transatlantic Parallels," International and Comparative Law Quarterly 36 (January 1987): 187, wrote that the problems inherent in the American federal system and resolved by the U.S. Supreme Court have "lessons for those of us who have to interpret and apply the treaties which founded the European Communities." 4 Turin European Council, Presidency Conclusions, 29 March 1996, p. 3. 5 George A. Bermann, "Taking Subsidiarity Seriously: Federalism in the European Community and the United States," Columbia Law Review 94 (March 1994): 355. The best available accounts of the negotiations of the Rome Treaty seem to indicate that the signatories "intended the Treaty of Rome to operate like any other Treaty." See Walter Mattli and Anne Marie Slaughter, "Law and Politics in the European Union: A Reply to Garrett," International Organization 49 (Winter 1985): 183, note 3.

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In a series of landmark decisions throughout the 1960s and 1970s, the ECJ sought to reduce or remove the international law character of the Rome Treaty. By doing so, the Court "constitutionalized" the treaty in that it fashioned a constitutional framework for a federal-type structure in Europe. Judge Federico Mancini himself admits, "if one were asked to synthetise the direction in which the case law produced in Luxembourg has moved since 1957, one would have to say that it coincides with the making of a constitution for Europe."6 This constitutionalization was acquired through both the structural and the material constitutional doctrines of the Court.7 Material constitutionalism is the doctrine whereby the Court made far-reaching decisions in the policymaking area within the EC, particularly in the area of economic integration. The Court has, for example, promoted "negative" integration, the removal of barriers to trade, by ordering the nonapplication of national regulations that hinder economic integration.8 The Court's role in fostering economic integration has not received much attention because after all, economic integration was the raison d'etat of the common market. It started with the Dassonville case,9 though the best known example is the Cassis de Dijon1" ruling, where the Court suggested a policy of mutual recognition under which goods lawfully produced in one member state would be allowed to circulate freely within the European market. This decision has often been seen as vital to the creation of the new approach to harmonization, which emerged as the cornerstone of the 1985 Single European Act.11 Furthermore, the Court has also promoted "positive" integration, the construction of policies that advance integration, by creating defacto policies to respond to the failure of the Council or member states to pass implementing legislation to give life to the treaty. The ECJ, however, is more renowned for its structural constitutionalism, through which it has tried to lay down the norms for the appropriate relationship between the EC and its member states. It did this in many ways, but direct effect, supremacy of EC law, preemption, judicial review, and the protection of fundamental rights must be seen as the cornerstones of the doctrine.

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6 G. Federico Mancini, "The Making of a Constitution for Europe," Common Market Law Review 26 (Winter 1989): 595. 'Volcansek calk this the rules regulating center-periphery relations and economic integration respectively. Mary L. Volcansek, "The European Court of Justice: Supranational Policymaking," Western European Politics 15 (March 1992): 111, 113. 'Particularly through its interpretation of EEC Article 30 (regarding quantitative restrictions on imports) 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 (London: Pinter Publications,

1993), p. 54.

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When, in 1963, the Court held in Van Gend en Loos that, under certain conditions, provisions of the treaty could have direct effect in the member states of the Community, it immediately gave the EEC Treaty the character of a constitution as opposed to an international convention.12 From now on, member states that were not honoring their Community obligations could face legal actions in their own national courts by individuals enforcing Community law. The Court later expanded the scope of the direct effects doctrine when it declared treaty rights to be enforceable between individuals (horizontal direct effect), and extended it in Van Duyn to other types of Community legislation such as directives.13 As a result of the notion of direct effect, individuals in real cases and controversies became the principal guardians of the legal integrity of Community law within Europe. This is the same way that individuals in, for example, the United States have been the principal actors in ensuring that the United States government honors its obligations under the U.S. Bill of Rights and other federal laws. Yet, in a fully developed federal system such as the United States, the problem addressed by the direct effect doctrine is resolved through other means. In other words, the question of whether an individual can bring an action based on the U.S. Constitution depends on factors such as the existence of a real case or controversy, standing, and the ripeness or mootness of an issue. Barriers to bringing an action exist, but they are less restrictive than those facing the private litigant in the EC, who seeks to enforce a Community law in a national court. The judicial technique of enabling a litigant in the EC to raise Community law issues in member states' courts is similar to the American notion of a "private attorney general."14 This device grants individuals the power to bring an action under certain federal statutes, which increases the likelihood of their enforcement. Thus, in the EU and the United States, those with the most incentive to enforce a particular law (that is, individuals who are most directly affected) are given access to a forum in which to do so. During the same period that the direct effect doctrine evolved, the Court established the supremacy doctrine. According to this doctrine, Community law is superior to member state law, even if the national norm is subsequently enacted and even if it is of a constitutional nature. It encapsulates a major aspect of a fully fledged federal system, because it involves a hierarchy of norms. Given that the Treaty of Rome does not explicidy set forth the supremacy of Community law over incompatible member-state law, the judicial formulation of the doctrine of supremacy, like the doctrine of direct effect,
n Van Gend en Loos v. Nederlandse AdministratederBelastingen, case 26/62, (1963) ECR 1. "See Van Duyn v. Home Office, case 41/74, (1974) ECR 137. '"Ralph H. Folsom, European Community Business Law (St. Paul, MN: West Publishers, 1993), p. 72 and Ralph H. Folsom, European Community Law in a Nutshell (St. Paul, MN: West Publishers, 1992), p. 68.

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depended on a constitutional rather than an international law interpretation of the treaties. Specifically, in the landmark case of Costa v. ENEL,15 The ECJ stated: The transfer by the states from their domestic legal systems to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Such judicial creativity was not necessary in the American federal system, because the question of priority was addressed explicitly by Article VI of the U.S. Constitution. Clause 2, of this article, is known as the "supremacy clause" because it unequivocally makes the U.S. Constitution, all laws made pursuant to die U.S. Constitution, and all treaties made under the authority of the United States the "supreme law of the land."16 Thus, for better or for worse, what was made explicit by the supremacy clause of the U.S. Constitution had to be judicially created in the EC. In both legal systems, the issue of the priority of legal norms had to be resolved and, notably, the ECJ choose the alternative characteristic of a federal system. The third principal doctrine encapsulating the judicial constitutionalization of the treaties is preemption." Preemption is a dilemma for any federal structure because it determines "whether a whole policy area has been actually or potentially occupied by the central authority so as to influence the intervention of the states in that area."18 In other words, a federation must decide how policymaking competencies are allocated between the general and constituent governments. The foundation of the American preemption doctrine is the supremacy clause of the U.S. Constitution. Furthermore, in the United States, the presumption in the U.S. Supreme Courtjurisprudence is that the "Congress does not intend to preempt state legislation unless there is a clear indication from the language or purposes of the federal action or regulation."19 In contrast, preemption in the EC lacks an explicit foundation in the Treaty of Rome, because the treaty was drafted as an international agreement to be governed by international law. The ECJ has generally ruled that when Community law substantially regulates an area, it preempts national legislation in that area except where the EC law provides otherwise. For example, in the area of a common commercial policy toward third countries, the argument for Community action preempting member-state action was so compelling that 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: A Framework 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. 315.

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prevents action on the national level, whether or not the Community has acted.20 The principle of subsidiarity, found in the new Article 3b of the Maastricht Treaty, is relevant here because it introduces a normative aspect to this issue. It attempts to state a Community preference for action at the lowest level possible. In other words, the principle is that the Community should not regulate an area unless it can be shown to be necessary. How the ECJ will rule on subsidiarity remains an important, but unanswered, question regarding the allocation of policymaking competences.21 Fourth, the system of judicial review developed by the Court made doctrines such as direct effect and supremacy relevant to the political institutions of the Community. Judicial review is an essential feature of federal systems because it enables a higher court to review the constitutionality of acts of the executive and legislative branches of government and, in this manner, maintain the allocation of competencies. Like the doctrines of direct effect, supremacy, and preemption, the Rome Treaty was not explicit about the European Court of Justice's right to judicial review.22 Yet, the Court used Article 177 to review national laws, checking for incompatibility with 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 for incompatibility with EC law norms. In the end, however, the referral process under Article 177 rests on the national courts' willingness to make referrals to the ECJ, and this has been present.23 The question, addressed below, then becomes why the national courts have shown such cooperation and goodwill. Finally, the Court constitutionalized the Treaty of Rome and subsequent treaties by gradually addressing the lack of a "bill of rights" in these documents. The treaty does not confer a right to European citizenship on Europeans or expressly protect the fundamental rights of Europeans affected by it. However, faced with discontent from some national courts, particularly in Germany and Italy regarding the protection of human rights, the Court inserted fundamental rights into the acquis communautaire*4 by examining the "constitutional traditions common to the Member States"
'"Bermann, "Taking Subsidiarity Seriously," 358. "See Bermann, "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 claim that the concept has been oversold in Europe, but also despite the claim that other federal systems (like the American) appear to do very nicely without it." Bermann, "Taking Subsidiarity Seriously," 403. "Article 177 merely states that the Court has the jurisdiction to give preliminary rulings on the following: "the interpretation of the Treaty, the validity and interpretation of acts of the institutions of the Community; 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: The Law Book Company, 1995), pp. 156-160. "The acquis communaulaire has been defined by A. G. Toth as "[t]he Community patrimony: the whole body of rules, principles, agreements, declarations, resolutions, positions, opinions, objectives and practices concerning the European Communities...", A. G. Toth, The Oxford Encyclopedia of European Community Lawl,9 (1990).

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and the international human rights treaties ratified by the member states.25 For some, "reading an unwritten bill of rights into Community law is indeed the most striking contribution the Court has made to the development of a constitution for Europe."26 INTERPRETING THE COURT'S ACTIVISM Considering the impact the European Court ofJustice has had on the legal structure of the European Union, one has to wonder why the Court's actions have not met with greater opposition. After all, had there been a consensus within the European Community about the wisdom of constitutionalizing the treaties, a comprehensive constitution for the Community would have been achieved some time ago.
Legislative and Political Inertia

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Certainly, the Court's creative jurisprudence as outlined above has not been undisputed from a legal point of view. Because it constitutionalized what was not explicitly intended to become a constitution, the Court has been accused of violating the line between interpretation of the treaties and legislation, thereby engaging in supranational judicial policymaking27 and confusing what is with what ought to be. This has been criticized often as going beyond the proper function of a Court and conflicting with generally accepted legal principles.28 Even in its so-called teleological interpretation of the treaties, the Court has been accused of being inconsistent and undermining a European architecture based on the rule of law.29 Even while being concerned about the Court's activism from a legal point of view, traditionally, most observers have stopped short of openly criticizing the Court.30 The argument that the European Court amounted to a "government of judges" has been countered by the view that the real lawmaking institutions within the European Union lack a true democratic mandate as well. Deirdre Curtin, for example, rightly worries about the democratic 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 CMLR613. 26 Mancini, "The Making of a Constitution for Europe," 611. 27 For a good summary of the legal critique of the ECJ's activism, see Volcansek, "The European Court ofJustice," 108 and 117-118. ^Trevor Hartley, The Foundations ofEuropean Community Law, 2nd ed. (Oxford: Clarendon Press, 1988), p. 81. "Hartley, The 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 example, Rasmussen, "Towards a Normative Theory," 135-178; Hjalte Rasmussen, "Between SelfRestraint and Activism: A Judicial Policy for the European Court," European Law Review 13 (February 1988): 28-39. Rasmussen's works have drawn a lot of criticism. See, for example, Mauro Cappelletti, "Is the European Court ofjustice Running 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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European Union.31 Moreover, a legitimate European Union is not only democratically accountable, but it also relies on the rule of law and the protection of individual rights. Here, the Court has assumed a vital role. If it had not, for example, established the supremacy of Community law, "other fields of Community policy could have been affected adversely, for each Member State could have accepted or rejected Community decisions in an ad hoc manner."32 Without the constitutional doctrines mentioned above, "the Treaties and secondary legislation could have been easily accepted or rejected at the whim of each national court."33 In other words, the Court helped to ensure the binding nature of Community law and increased legal certainty within the EC.34 The Council of Minister's failure to promote integration through legislation created a perceived duty for the Court to translate the integrationist objective into operative law throughjudicial decisions. Simply stated, the Court stepped in where there was a political vacuum and legislative inertia, which was not that surprising: "the judicial arm of the EC (...) could have been expected to engage in policymaking by the simple act of interpreting the Treaties, for it was clearly writing on an empty tablet."35 Faced with a vigorous legislature in the EC, the Court would have had a much harder time assuming the role it did.36 In addition, it would not be necessary to do so. Finally, the political institutions in the EU, under Article 100 and Article 235, have from the beginning tried to intervene in areas that seemed to fall outside the scope of the treaty. In a manner similar to the Commission, Council, and Parliament, the ECJ interpreted the powers granted to it in the treaty broadly. For example, the Court clearly chose to emphasize the first section of Article 4 of the EEC Treaty, which states that "the tasks entrusted on the Community shall be carried out by the political branches and the European Court ofJustice," rather than the second section, which declares that "each institution shall act within the limits of the powers conferred upon it by the Treaty." A small comparison to the U.S. Supreme Court's judicial activism in the 1950s illustrates that the controversy surrounding the ECJ's activism has not been unique. In 1954, in Brown v. Board of Education?1 the U.S.
"Deirdre Curtin, "The Constitutional Structure of the Union: A Europe of Bits and Pieces," Common Market Law Review 30 (February 1993): 65. 32 Volcansek, "The European Court of Justice," 113. "Ibid., 112. See also, Jenny Siourthas, "Supranational Federations: the European Community as a Model," 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 the Court's activism was relatively low. K Volcansek, "The European Court of Justice," 109. "Rasmussen contests that the ECJ merely tried to compensate for political inertia. The Court went much further than that, as illustrated by important parts of the case law regarding direct effect, supremacy, external relations, and the ECJ's protection of fundamental rights and freedoms. Rasmussen, "Towards a Normative Theory," 155-156.
^Brown v. Board of Education, 347 U.S. 483 (1954).

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Supreme Court ruled that the doctrine of "separate but equal" treatment for black school children was inherently unequal; therefore, it was unlawful for public school districts to segregate black and white children. The Court was criticized for this decision, because it seemed to many that the Court was legislating, not adjudicating.38 Yet, many others have pointed out that, at the time, the legislative and executive branches of the U.S. government were either unable or unwilling politically to move the country in the direction of desegregation. Faced with fundamental issues and lethargic institutional counterparts, both the ECJ and the U.S. Supreme Court have taken controversial steps to solve the problem, which then broadens their formal roles in the political system. Whether this renews the system or corrupts its institutional framework is beyond the scope of this article. What experts might bemoan as judicial interference, the average citizen might applaud as the protection of core goals of the system.
Cooperation by the Court's Potential Adversaries

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Assuming that the legislative and political inertia maintained by the member states allowed the Court to be so activist, it is remarkable that the member states received the results of that activism (the Court's constitutional doctrines) in a cooperative, nonconflictual way. Obviously, the Court's actions did not remain totally unnoticed by the member states. At times, however, they have tried to protect themselves from further activism or could see some self-interest in it. First, Joseph Weiler correctly distinguishes between the decisional and the normative aspects of the relationship between the Community and the member states.39 While the Court had a great impact on the Community's normative structures, the member states increasingly defederalised the decisionmaking structure of the EC through the creation of the European Council, COREPER, and national working groups and committees, as well as a retreat from majority voting in the Council of Ministers. These conflicting processes may represent "a certain balance of action and reaction, whereby the permeation and expansion of Community influenceexpansion in breadth expressed by the constitutionalizationis matched by an ever closer national control exercised in the decisionmaking process (which has enabled Member States to 'digest' the federal-type constitutional framework entrusted upon them)."40 Second, to be acceptable for the member states, it was vital that the impact of the Court on the normative structures of the Community did not appear to interfere with interstate politics. The Court effectively remained
"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 (September/December 1982): 46. '"Ibid.

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nonpartisan in its judicial policymaking, and no fixed "winners" or "losers" could be identified over a long period of time.41 This perception is probably enhanced by the strong belief in Europe, which is stronger than in the United States, in the politically neutral nature of the judicial process.42 Also, it was in the interest of the member states to operate in a juridical climate where bargains struck would be honored. As the Court helped to create this climate, it established a sense of legal certainty for them, where long-term benefits outweighed inconvenient Court rulings in the short term. Finally, the member states' low-key response to the Court's activism was facilitated by the fact that its jurisprudence enjoyed low visibility in terms of the general public opinion. By and large, the national courts have been willing partners of the ECJ in the use of Article 177 against national public authorities. Many explanations can be given for this cooperative role, including a great respect by the courts for the prestige of the European Court and the legal quality of its rulings.43 Other reasons are: (1) the legal community at large in the EC having a self-interest in accepting this new and growing source of law in their national legal orders; (2) the importance for the national courts in feeling part of a general trend across the EC member states and not being disadvantaged versus courts in other member states; and (3) the appreciation by the lower national courts in gaining the power of judicial review over the national executive and legislative branches.44 To summarize this argument, the Court was effective, because it remained respected by and respectful of its potential adversaries, not because of its nominal power. What the Court did was socially legitimate rather than formally legitimate.45 The Court as the Motor of European Integration ? The Court's ability to constitutionalize the treaty, because it had potential adversaries as cooperative partners, qualifies the view of the Court as a powerful autonomous actor within the EC imposing its doctrines on others. Moreover, the Court's activism has met with some opposition on various occasions. Legally, the extension of direct effect by the Court to directives, for example, met with bitter opposition, particularly by the French Conseil d'Etat and the German Bundesjlnanzhof. The Court subsequently limited the direct effect of directives by declaring in Ratti,46 and confirming

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"Joseph H. H. Weiler, "Journey to an Unknown Destination: A Retrospective and Prospective of the European 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," Public Law (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 and International Law 4 (Spring 1994): 274-275.
"Pubblico Ministerio v. Ralti, case 148/78, (1979) ECR 1629.

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it in Marshall17 and subsequent cases48 that directives, unlike provisions in the EC Treaty, could not be invoked by an individual against another individual or, in other words, could not have horizontal direct effect. The supremacy doctrine also was contested on procedural grounds in Italian courts, and in Italian and German courts on the basis of the possible threat of Community law to fundamental rights. In France, some members of the judicial branch accepted the supremacy doctrine, while others did not. An interesting example of political resistance by the member states to the ECJ's activism is the Cassis de Dijon case, because it is often used to support hypotheses about the Court's real role in promoting European legal integration. What is certain is that the doctrine of mutual recognition as phrased in this ruling would have created severe policy consequences for the member states, if the Court could have imposed the doctrine upon them simply by its legal authority. In fact, however, the ruling met with bitter opposition in various member states, and the Court qualified the doctrine a bit in subsequent rulings. According to Karen Alter and Sophie Meunier-Aitsahalia, Cassis de Dijon did not come out of the blue, but followed attempts by the European Commission and interest groups at the end of the 1970s to bring mutual recognition into the political arena. Both actors used the Court ruling for their own purposes, but only when more liberal economic policies were adopted a few years later by dominant member states did mutual recognition become ripe for the political bargaining that led to the Single European Act. The Court's role must be seen here as that of a catalyst and a provocateur rather than that of an initiator of further integration.49 The principal forces of legal integration are supranational (the Commission) or subnational (interest groups) with member states subordinating their immediate individual interests (the short-term economic pains caused by Cassis de Dijon) to expected collective interests over the long term (by the implementation of the Single European Market). Realists, like Geoffrey Garrett, deny the ECJ even any autonomous role in the legal integration process. Realists argue that the crucial variable in the process is the member states' national policies. Only when the member states perceive the rulings of the Court to be in their own interests can the Court successfully introduce new legal doctrines.50 Ultimately, the member
Marshallv. Southampton and South-West Hampshire Area Health Authority, case 152/84, (1986) ECR723. "Fosterv. British GasPlc, case C-188/89, (1990) ECR3313; MarleasingSA v. La Comercial International de Alimentacion SA, case C-106/89, (1990) ECR 4157; Faccini Dori v. Recreb Sri, case C-91/92, (1994) ECR 3325. For a review of the ECJ's case law in this matter, see Takis Tridimas, "Horizontal Direct Effect of Directives: A Missed Opportunity?" European Law Review 19 (December 1994): 621-636. 49 Karen J. Alter and Sophie Meunier-Aitsahalia, "Judicial Politics in the European Community: 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 Organization 49 (Winter 1995): 177.
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states can ignore the rulings of the Court or amend the legal order, if they wish to do so. Using the European Commission as a bellwether,51 the Court takes into account the likely responses of the member states most affected by a particular ruling. Garrett's assertion that the ECJ takes likely responses of the member states into account is doubtful, because it would certainly jeopardize a European Community based on the rule of law. The fact that the member states have perceived rulings of the European Court to be in their interests, for the reasons outlined above, explains why the Court has been able to be such an activist, though probably perceived long-term interests matter more than the short-term approach dictated by the specifics of a particular ruling (which Garrett seems to suggest). Where the member states were really concerned about the constitutional doctrines of the Court, it was, as Walter Mattli and Anne-Marie Slaughter argue, probably crucial that the Court "couched its rulings in apolitical and technical terms."52 This meant that the real integrationist effects of its rulings were often concealed. Thus, it made it politically more difficult for hostile member states to try to amend the legal order or to ignore the decisions. A recent illustration is the controversy caused by the ECJ's ruling in Bosman.5i Using Article 48 of the EEC Treaty on the free movement of workers, the ECJ effectively rendered illegal some rules of the European soccer federation on transfers between clubs and on the nationality of players. Bosnian indicates that where the ECJ cannot couch its rulings in technical terms and legalistic logic, and the visibility of a ruling is also high, the ruling is much more likely to be met with opposition. Prime ministers from traditionally integrationist countries, such as Belgium, have even suggested writing an exception to the free movement of workers for soccer players into the new Treaty on European Union, and thus amend the European legal order, to safeguard certain national interests.54 No matter how one interprets possible resistance to the Court's activism, the fact remains that for a few decades, resistance was the exception to the rule and ad hoc rather than systematic.55 There is still a widespread acknowledgment that there must be limits to the judicial activism of the Court because "too much dissonance between judicial decisions by the ECJ
51 Mancini admits the use of the European Commission 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 Union: A Reply to Garrett,"

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International Organization 49 (Winter 1995): 185. "Union Royale Beige des Societes deFootball Association ASBL and others v. Jean-Marc Bosman and others, case

C-415/93, reports of cases before the Court of Justice and the Court of First Instance, Section I (December 1995): 5040. "Belgian Prime Minister Jean-Luc Dehaene in the Belgian daily, DeSlandaard, 22 December 1995, p. 3. K Rasmussen, however, found that irritation, dismay, and wrath with regard to the ECJ has been accumulating 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 have expressed criticism, often severe, of the Court's activism. The member states' slow implementation of the Court's Article 169 rulings would also reflect this evolution. Rasmussen, "Towards a Normative Theory," 159.

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and societal expectations could undermine the Court's legitimacy."56 The question must be then, how activist can and should the Court be in the European Union of the future, if it does not want to see its legitimacy eroded? THE EUROPEAN COURT OF JUSTICE IN THE FUTURE One crucial factor affecting the ECJ's legitimacy is public opinion. Although it is often argued that the ECJ's moves to constitutionalize the European legal order coincided with the support of a majority of EC citizens for further European integration, few analysts give supportive data for this thesis. The apparent mood swing by the European public against further integration should make it more challenging for the ECJ to constitutionalize the treaties further. On the basis of recent public opinion data in the European Commission's Eurobarometer, however, any challenge to the legitimacy of the European Court is unlikely to come from the European public. For the average EU citizen, the ECJ still seems to be a largely invisible institution, which is nevertheless trusted by many people to make decisions that are right for the European Community. About 50 percent of all EC citizens find that everyone should obey the decisions of the European Court, whether they agree with it or not, whereas only 22 percent seem to disagree with this statement. Support for compliance is even highest among Danish and British citizens (respectively 75 percent and 60 percent), who are not traditionally 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 the part of the general public. Yet, faith in the ECJ is not unlimited; an overwhelming majority of citizens also believe that if the ECJ were to rule against the will of the majority of citizens, it would be better to do away with the Court altogether. The conclusion here is that the ECJ has not been perceived yet as doing this, but this must be seen against a background of very low awareness by most citizens of the ECJ's existence.37 The ECJ is still largely viewed with respect, but changes to other EU institutions' competencies could alter the perception. As Paul Dubinsky points out, the "absence of a powerful, democratically elected European Parliament" has aided acceptance of the belief that the rule of law requires the ECJ to resolve "all asserted violations of Community Law."38 He further notes that, if the American experience has any relevance, challenges to the

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Mattli 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 United States Compared," American Journal ofComparative Law 42 (Spring 1994): 344.

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democratic legitimacy of the ECJ may come in the future from the European Parliament, if it assumes the true powers of a parliamentary assembly.59 Several factors indicate that the days when the European Court of Justice could, in relative peace and quiet, engage in judicial activism may be over. First, the Treaty on European Union (TEU) signalled more difficult times for the Court. For example, in some of the new competences of the European Community (formerly EEC), such as culture, education, and health, severe limits were put on Community legislation, thus making it more difficult for the ECJ to expand on these competences. The Court was also excluded from adjudicating on matters from pillars two and three of the TEU. More ominously, the so-called "Barber Protocol" attached to the treaty can be seen as an attempt by the member states to interpret EC Article 119 in light of the ECJ's ruling in Barber v. Royal Guardian Exchange Assurance Group,60 which was about equality in pension schemes. Curtin discusses this protocol as a potential case of the acquis communautaire being hijacked without public debate and in a manner which threatens the ECJ's independence.61 Also, the European Parliament had demanded the right to veto the appointment of judges to the ECJ, a request based on the fear that the Court would become the subject of more intense political debate.62 Although it is possible, as Hjalte Rasmussen suggests, that the restrictions on the ECJ in the TEU are the result of criticisms levied against it during the negotiations leading up to the Treaty,63 it is more likely that the member states wanted merely to protect themselves in key areas against further Court activism and Community influence by keeping enough national control over the decisionmaking process. In other words, our view follows Weiler's point on the traditional pattern of integrationist action by the ECJ and intergovernmental reaction by the member states discussed earlier. After all, the TEU expanded the competencies of the ECJ into other areas such as economic and monetary union (Articles 173, 175-177, 180, and 184 of the new EC Treaty) where the Court seems to be given more competence than the German courts ever had in thisfieldvis-a-vis the Bundesbank.64 The new EC Articles 171 and 172, which grant the ECJ the power to fine member, states that if they fail to fulfill a treaty obligation, it also constitutes new major powers for the ECJ.65
M

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61 Curtin, "The Constitutional Structure of the Union," 50-51. The Barber Protocol also raised concern in editorial comment, "Quies Custodiet the European Court ofJustice?" Common Market Law Review 30 (October 1993): 902. 62 See European Parliament Resolution on the constitutional basis of the European Union of 12 December 1990 (Colombo Resolution, Agence Europe, 19 December 1990), quoted in Curtin, "The Constitutional Structure of the Union," 66. "Rasmussen, "Towards a Normative Theory," 163. w Reimer Voss, "The National Perception of the Court of First Instance and the European Court of Justice," Common Market Law Review 30 (December 1993): 1134. ^Except in cases brought under Article 170.

Ibid., 344. "Barber v. Royal Guardian Exchange Assurance Group, case 262/88, (1990) ECR 1889.

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The difference with the pre-Maastricht era is, however, that the cooperative attitude from the member states and the national judiciaries, mentioned above, cannot be taken for granted any more. In this climate, the Court will probably find it increasingly difficult to maintain its freedom to interpret the treaties broadly and creatively. Within the context of lower public support for European integration, the European Court has already come under closer scrutiny from national governments. Chancellor Helmut Kohl, for example, has asserted that the Court "nat only exerts its competences in legal matters, but goes far further. We have an example of something that was not wanted in the beginning. This should be discussed so that the necessary measures may be taken later."66 Other voices have expressed discontent with the European Court too; at times, this has led to proposals to curtail the power of the European Court,67 such as restricting access to the preliminary procedure under Article 177 EEC. The power to refer questions to the European Court would only be granted to national courts where there is no judicial remedy under national law. Considering that about two-thirds of the referrals to the ECJ have come from the lower national courts, removing the right to refer would not only curtail opportunities for the ECJ to ensure that EC law is observed, but also restrict access to the ECJ to litigants and lawyers able and willing to exhaust all legal remedies nationally.68 Within this context, it is ironic that the ECJ has still been given many opportunities to be activist in the future. The "Europe of bits and pieces," which has emerged from the Treaty on European Union (TEU), has created various constitutional "grey zones" for the European Union which, as Curtin points out, threaten the cohesiveness and the unity of its legal system.69 Based on past experience, the European Court of Justice could act creatively to ensure the uniformity of Community law. To accomplish this, it could clarify the notion of subsidiarity, the relationship between the various "pillars" of the TEU, or the legal status of the various protocols annexed to the TEU, such as the Social Policy Protocol.70 Certainly the increasing complexity of the EU's decisionmaking procedures (an evolution that goes back to the Single European Act) forms another excellent domain for judicial activism. More and more, the Court will have to rule on the legal basis of a disputed measure. By doing so, it will often determine 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 example, German Minister for Social Affairs, "Die leise Ubermacht," DerSpiegel (November 1992): 102, quoted in "Quies Custodiet the European Court ofjustice?" 900. "Carl Otto Lenz, "The Role and Mechanism of the Preliminary Ruling Procedure," Fordham International Law Journal 18 (December 1994): 409. K Curtin, "The Constitutional Structure of the Union," 67. 7fr The main issue is whether these protocols form an integral part of EC law.

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nature than others, the rulings are likely to be more controversial. Also, the increased competences of the Union will involve rulings in more and more sensitive policy areas, which will get more attention from the public at large and, therefore, receive more hostile criticism. Furthermore, in the very near future, clear answers detailing the limits of the EU's competences will be necessary. It is not certain, however, that the national courts will allow the ECJ to determine this, perhaps reserving the authority to determine competences for themselves. As a result, cooperation between the national courts and the ECJ might be imperilled. Finally, rulings on subsidiarity or the legal basis of a policy measure determine fundamental questions, such as whether the Union should act, and by which decisionmaking mechanism. Obviously, these are all very divisive issues that cannot be resolved by obtuse legal rationales. It is uncertain but not improbable that these factors have persuaded the Court to adopt a more cautious approach in recent rulings.71 Francis Jacobs even wonders if the Court could not reverse the trend of its previous jurisprudence by increasing its protection of the rights of member states against alleged encroachment by TEU institutions as more and more powers are transferred to the center of the European Union.72 The Court of First Instance (CFI), which was set up in 1989 to relieve the burden on the ECJ, may prove to be a mixed blessing for the ECJ if its jurisprudence conflicts with the ECJ. By Council Decision 93/350 of 8June 1993 and 94/149 of 7 March 1994, the CFI expanded its jurisdiction to hear all direct actions brought by natural and legal persons. This expanded jurisdiction is evidence that the EU is moving toward a federal court system with the lower tier deciding questions of fact and the highest tier reviewing rulings on the law. In this regard, however, it is important to note that the CFI has, in its report to the Intergovernmental Conference (IGC) of 17 May 1995, recommended against the establishment of new courts on a regional or specialized subject-matter basis. Nevertheless, divisive issues about the TEU or problems resulting from enlargement of the EU may make the establishment of new courts inevitable as the case loads on the ECJ and CFI prove unmanageable. In summary, the ECJ has done what it could to create a federal constitution for Western Europe. Any attempt to create a federation requires public debate at some point about what federal structures should be created and the respective powers of its various governments. Some, such as Curtin, hope 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 Direct Effect of Directives," 625. Tridimas illustrates the ECJ's reluctance to depart from the literal wording of the EEC Treat)' with regard to the possible horizontal direct effect of directives. Others, like Judge Mancini argued, however, that the Court's selfrestraint started earlier, particularly in Cinetheque v. Federation Nalionale des Cinemas Francais, cases 60-61/ 84, (1985) ECR 2605, para 26. Mancini, "The Making of a Constitution for Europe," 613. ^Francis G.Jacobs, "Europe After 1992: The Legal Challenge," University of Chicago Legal Forum (1992): 16.

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would settle some of the constitutional issues mentioned above without compromising the legitimacy or independence of the ECJ.73 Yet, as Weiler notes, a serious challenge to a systematic concentration of more powers at the federal level is in itself essentially federal, 74 indicating that a constitutional blueprint may not be necessary. The indications are that this challenge has arrived in the post-Maastricht era.

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

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