The power and position of the European Court of Justice today is often attributed to its landmark rulings establishing the primacy and direct effect of EU law, writes William Phelan. He argues, however, that its ban on inter-state retaliation between Member States was equally important, empowering national courts to enforce EU law and creating trade stability for states, businesses and individuals.
By William Phelan
These days, the European Court of Justice appears to
be constantly in the news. Whether considering the legality of denying voting
rights to prisoners, the European Central Bank’s actions during the financial
crisis or the shape of data protection, the Court is deeply involved in
disputes on a very wide range of topics. Where individuals and businesses are
dissatisfied with the outcomes of national or European law, they turn to the
European Court to seek redress.
Image Attribute: European
Court of Justice, Gwenael Piaser, CC-BY-NC-SA-2.0
The Court’s activity today may prompt many to wonder
how and why it was created and came to exercise such power over the EU’s Member
States, as well as individuals and businesses across Europe. After all, it is
far from clear that the founding Treaty of Rome explicitly provided that the
European Economic Community, as it then was, should possess such an influential
court.
Perhaps the most common answer to the question of
how the Court achieved its current position emphasises the judicial
‘revolution’ of 1963 and 1964. In its famous 1963 decision Van Gend en Loos,
the Court declared the ‘direct effect’ of European law, requiring it to be
enforced to the benefit of private parties in national courts.
In its equally famous 1964 decision Costa v ENEL,
the Court declared the ‘supremacy’ of European law, requiring that any conflict
between European law and national law be resolved in favour of the application
of European law.
With these two decisions, and their acceptance over
time by national courts, the Court made European law available to serve the
purposes of private individuals and businesses across Europe, beginning the
road to its broad influence that we see today. Litigants and national courts
benefitted from cooperating with the expanded reach of European law, and these
litigants and national courts embraced the opportunities that the European
Court’s doctrines had created.
Such an account of the European Court’s rise to
influence is, with varying interesting permutations, very widely accepted.
However, it should be considered incomplete.
European law does not provide benefits only for
litigating parties and for national judges seeking advantages from cooperating
with the European Court of Justice. Rather, it changes the relationship between
states in ways that benefit states, individuals and firms, whether they are
involved in litigation or not.
The starting point is to realise that, in many
international trade treaty systems, obligations can be enforced, in the last
resort, by the possibility that states will threaten or use retaliatory action
against other trading states that fail to fulfil their treaty obligations.
So in the World Trade Organisation (WTO), to take
perhaps the most obvious example, states that are found to have persisted in
policies inconsistent with their treaty obligations face the possibility that
their trading partners will be authorised to impose trade sanctions against
them. One EU-US dispute within the WTO, for example, eventually led to
retaliatory trade sanctions being imposed by the EU on imports of toilet paper,
forklift trucks, fishhooks, and jewellery from the US.
Now, from this starting point, it becomes clear that
the use of national courts to enforce trade obligations is not just, as many
understand, a mechanism to involve individuals and businesses in the
enforcement of treaty law. It is also a mechanism to remove any possible use of
inter-state retaliation between trading states.
That is to say, states can give up the right to
threaten retaliation against their trading partners, with all the disruption
that may bring to both trade and diplomacy, where those trading partners have
instead allowed the treaty obligations to be automatically enforced by their
domestic courts.
Van Gend en Loos and Costa must therefore be
considered as partners to another 1964 decision of the Court, the so-called
Dairy Products case of 13 November 1964, where the Court comprehensively ruled
out any use of the retaliatory enforcement mechanisms within the Community
system.
National courts and private parties needed to take
on a direct role in enforcing European law, even where it conflicted with other
national obligations, because the European legal order was removing any use of
inter-state retaliation to enforce its obligations. As new research has shown,
indeed, the influential French judge then on the Court, Robert Lecourt,
described the relationship between these three cases in exactly that way in
1965.
Understanding the fundamental principles of the
European legal order as combining national court enforcement with a ban on
inter-state retaliation allows us not only better to understand the Court’s
judicial revolution of 1963 and 1964, but also to understand the sources of the
power and influence of today’s Court.
The role of private litigants and national courts in
enforcing European law does not provide benefits for those litigants, and those
courts, alone. The likely alternative system, present in many other trade
regimes, would involve the potential of retaliatory action between states, with
all the associated threats of constant disruption to a very wide range of
businesses and individuals.
Correctly understood, avoiding such an outcome is
one of the great benefits of the system created by the European Court of
Justice. It is little surprise that it has proved acceptable to the highly
interdependent trading states of both post-war and contemporary Europe.
About The Author:
Dr William Phelan is Assistant Professor of
Political Science at Trinity College Dublin. His latest book on the European
Court of Justice is entitled In Place of Inter-State Retaliation (OUP, 2015)
and his paper discussing Robert Lecourt’s views on the Dairy Products decision
is Supremacy, Direct Effect and ‘Dairy Products’ in the Early History of
European Law.
The author recently spoke at an event hosted by the Edinburgh Europa Research Group and the Edinburgh Europa Institute
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Publication Details:
Published: 15 October 2015 at European Futures Website
Please note that this article represents the view of the author(s) alone and not European Futures, the Edinburgh Europa Institute nor the University of Edinburgh.
This article is licensed under a Creative
Commons (Attribution-NonCommercial-NoDerivatives 4.0 International) License.
