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The European Court of Justice and the Legal Dynamics of Integration

Oxford Handbooks Online


The European Court of Justice and the Legal Dynamics of Integration
Loc Azoulay and Renaud Dehousse
The Oxford Handbook of the European Union
Print Publication Date: Aug 2012
Online Publication Date: Jan 2013

Subject: Political Science, European Union, Law and Politics


DOI: 10.1093/oxfordhb/9780199546282.013.0025

Abstract and Keywords


This article focuses on the European Court of Justice (ECJ). In the EU system, control powers have been granted in particular to a supranational
judicial body, the ECJ, which is a relatively small and isolated circle: less than 2,000 people currently work at the Court, located in Luxembourg.
However, it has gained a major role in the daily lives of most European citizens, and has played a leading role in the integration process. The ECJ has
decisively shaped the structure of the EU legal system and its relationships with national legal orders, and is now increasingly called upon to address
delicate issues involving fundamental choices between economic freedom and social justice. But the context in which it operates has changed: EU
competences have been substantially extended, as have the areas in which majority decision making is possible in the Council; the Parliament has
gained new powers; and there are growing fears of an unequal distribution of the costs and benefits of integration in an enlarged and less-homogenous
Union.
Keywords: EU legal system, ECJ, European integration

Since the launching of the ECSC in 1951, the logic of power which had essentially characterized the relations between European states until World War
II has gradually made way to a logic of cooperation. Calling into question the primacy of state sovereignty is the keystone of the European system of
regional integration. For the pioneers of the European cause, right after the two global conflicts which had bled Europe dry, with their trail of ruin and
barbarity, it was necessary to go beyond the system inherited from the Peace of Westphalia, constructed on the principle of unlimited state
sovereignty, and in which interstate relations were above all power struggles. The idea of a new system, in which the states would be subject to a set
of regulatory principles and common objectives, appeared as the only alternative to the state of nature in which the state apparatuses had coexisted until that point.
This idea required new legal techniques. Formally, the EU is an international organization. Established by treaty, it rests on the commitment of states to
confer limited powers to common organs in order to attain preset objectives, as is common to all international organizations. In the international system,
the transfer of competences is generally limited, and states retain a central role in the decision process, which limits possibilities for the organization to
impose a will of its own to member countries. On the contrary, the EU system is based on an unconditional transfer of power to institutions exercising
autonomous powers by adopting binding acts. This is what has been called, suggestively, a transfer of sovereign rights. The system of the EU is
characterized not only by the allocation of certain limits to states freedom, but also by the establishment of control mechanisms to ensure the
effectiveness of the decisions taken together at the supranational level.
In the EU system, control powers have been granted in particular to a supranational judicial body, the ECJ. This institution is a relatively small and
isolated circle: less than 2,000 people currently work at the Court, located in Luxembourg.1 However, it has gained a major role in the daily lives of
most European citizens. This is the result of two main factors: first, the action of the Court itself to fashion a new legal order and to give it the status of
the supreme law of the European land; second, the political context and the institutional configuration of the EU system which create incentives to
systematically turn to the Court as a means to solve problems that meet political blockades at the European or national level. Somewhat
unexpectedly, these factors have considerably enlarged the opportunities for private citizens to interfere in interstate relations by submitting cases
affecting their interests to the Court, which have ended up altering significantly both the scope and the pace of the integration process.

25.1 Structure and Functions of the Court


At first sight, the ECJ has features similar to that of most judicial bodies. The members of the Court are chosen among individuals whose
independence is beyond doubt and who possess the ability required for appointment to higher judicial offices (Article 253 TFEU), and must adhere to a
code of conduct meant to shield them from external pressure. Collegiality and the secret of their deliberations guarantee their independence, and
therefore the Court's authority. As regards it composition, however, some peculiarities emerge. Formally, the members of the Court are appointed by
common accord of the governments of the member states for a term of six years, which is renewable (Article 254 TFEU). As a matter of fact, each
country is to be represented by one judge. Despite recurrent criticisms, it has remained unchanged under the Lisbon Treaty, notwithstanding the fact
that it may appear incompatible with the necessary impartiality expected from such an institution.
True, a supranational court is unlike its domestic counterparts. Its conditions of legitimacy are partially different: first, it must be ensured that a
supranational jurisdiction understands properly the national context of the cases; second, governments and their electorates must be able to trust that
their legitimate concerns are taken into account in the process of creation of common rules; third, the fact that the different national legal cultures are
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The European Court of Justice and the Legal Dynamics of Integration


represented within the Court is an asset for the social acceptability of its judgments.2 However, two problems remain. On the one hand, as a
consequence of recent enlargements, the number of members has almost doubled in size and one must not ignore the impact this may have on the
coherence of case law. On the other hand, this allows each government to choose its judge, keeping an eye on him, and possibly to renew him, which
leaves the door open to possibilities of interference in the Court's work.3 To address this point, the Lisbon Treaty has introduced a new appointment
procedure. Any candidate for the post of member of the Court shall be examined by a panel of seven people, chosen from among former members of
the Court, members of national supreme courts, and lawyers of recognized competence. Nonetheless, this panel of experts is confined to giving an
opinion. Moreover, the European Parliament has no voice in the selection procedure, even though it may nominate one of the individuals who will sit on
the selection panel.
Under Article 19 of the Treaty on European Union, the Court shall ensure that in the interpretation and application of the Treaties the law is observed. It
is quite clear that the framers of the Treaty did not intend to establish a constitutional court as it exists in many member states, that is, a court charged
with protecting individual rights and preserving the balance of power within the political system. The Court was entrusted with more modest functions: it
was to be an administrative jurisdiction with power to decide on misuse of powers on the part of the Community institutions (in particular the High
Authority of the ECSC, and later the European Commission); an international jurisdiction with power to decide on disputes arising between member
states and to ensure that the obligations arising out of the Treaties are respected by those states.4 To this end, it was granted three types of power: the
power to review member countries fulfillment of their obligations, with the so-called infringement procedure, which is usually triggered by the
Commission (Article 258 TFEU); the power to assess the validity of EU acts when actions for annulment are brought forward (Article 263 TFUE) or
where preliminary questions on the validity of acts are referred by national courts (Article 267 al.1.b TFEU); the power to assist national courts in
ensuring a correct application of EU law through a system of preliminary rulings, enabling domestic courts, whenever they are confronted with a
problem involving an EU law dimension, to refer to it any questions they deem fit to ask (Article 267 TFEU).
However, the ECJ has gone far beyond these formal powers. The functions of review and assistance are only one aspect of its activity.5 First, the Court
has committed itself to further the progress of integration. In many cases, the Court pushes the political actors to promote the common goals of
integration.6 Second, the Court has conferred upon itself the task of ensuring the uniform application of EU law. Systematically, the Court insists that the
same rule should apply in the whole territory of the Union, irrespective of the peculiarities of national law. This has been made possible by a fairly
radical transformation of the main features of the European Community (now EU) legal order.

25.2 The Constitutionalization of the Treaties


Through its decisions, the ECJ has fashioned a new legal order, i.e. a system of norms distinct from national legal orders and common to all member
states. Originally, this creation was oriented toward the building, promotion, and protection of the common market. To translate the idea of the common
market into a reality, the technique of the transfer of competences, common to all international organizations, was not considered efficient enough. The
idea was to give the law of the common market a special status, different from that of standard international organizations. Therefore, the Court
decided to effectively submit all national measures adopted within the scope of EU law to a requirement of conformity with the objectives provided by
the treaties. Three main techniques were employed by the Court to constitutionalize the EU Treaties:7 direct effect, supremacy, and teleological
interpretation of EU legal provisions.
In its Van Gend en Loos ruling of 1963,8 the Court took the view that The objective of the EEC Treaty, which is to establish a common market, the
functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely
creates mutual obligations between the contracting states. Rights and obligations are not merely attributed to the states but also to individuals. The
Treaty is supposed to enable individuals to rely directly on EU law to challenge national measures contrary to EU law. Therefore, if the Treaty
establishes an obligation for member states, a subjective right should be derived from that obligation. The remedies granted to individuals amount to
creating new means of binding the states. This reasoning was partially instrumental: when an individual appears before the judge to defend the rights
he derives from the Treaties, that individual does not only act in his own interest, he immediately becomes an auxiliary agent of the Community.9
However, the Court is not in the position to enforce those rights on its own; it had to rely on national courts. The EU system not being a federal system, it
has no direct authority over national authorities. It cannot challenge the decisions of national authorities, as it can do with EU provisions. The solution
was therefore to empower national judges to enforce EU law. The principle of supremacy of EU law was invented in the 1964 Costa v. E.N.E.L. ruling10
to ensure that provisions of EU law prevail over any contrary provision. To guarantee its effectiveness, national courts were to be given specific powers
that could seem exorbitant within the context of the national legal system to which they belonged, such as the possibility to set aside laws passed by
the legislature when they contravene EU rules, or the possibility to short-circuit higher courts when this is required to ensure the effectiveness of EU
law.11 Thanks to the internal primacy EU law has been so granted, national judges can be regarded as European judges.12 Through the mechanism
of preliminary references, the Court has encouraged the gradual establishment, within the national legal systems, of Europeanized systems of judicial
review and of liability of national authorities. It has gone as far as it could along this imperfect path, that of a quasi-federal construction of EU law.13
In order to further establish the authority of EU provisions, the Court adopted teleological methods of interpretation. These methods are much closer to
those of constitutional courts than to those of international tribunals. Far from keeping to the real or supposed intention of the contracting partiesa
compulsory point of reference in the interpretation of international agreementsthe judges frequently drew inspiration from the ultimate objective of
integration, outlined in broad terms in the preamble of the Treaty. The teleological method of interpretation is a two-level construction: as the Court has
constantly emphasized in its judgments, in interpreting a provision of Community law it is necessary to consider not only its wording but also the
context in which it occurs and the objects of the rules of which it is part,14 provided that every provision of Community law must be placed in its
context and interpreted in the light of the provisions of Community law as a whole.15 The idea is to link each provision of EU law to the normative goals
of integration, giving to these provisions the coherence of a complete system of law. Basically, all the interpretative work of the Court was to create a
European teleology, which protects EU law against the dangers of dissolution within the various national legal orders. In constitutionalizing EU law, the
Court was seeking to protect EU standards from the national legal constraints, the risks of political negotiations, and all the bureaucratic complexities
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The European Court of Justice and the Legal Dynamics of Integration


that EU texts are likely to encounter when they enter the national arena. This case law greatly strengthened the authority of EU law, while at the same
time giving the EU judge an absolute control of this new legal order. Here is the paradox: this new sovereign legal order has its origins in a purely
subjective perspective, that of the ECJ.
The result of this construction is that EU law is behaving like an occupying authority in a foreign country, using internal procedures and mobilizing
state bodies to enforce the objectives of the Union. This occupation is not imposed by force; it depends entirely on the voluntary cooperation of national
actors. But since these actors are still bound by their constitutional order, it inevitably paves the way for conflicts of sovereignty in exceptional cases in
which constitutional norms are challenged by EU law. The Treaty establishing a constitution for Europe meant to consolidate this construction by
formally recognizing the supremacy of EU law but, after its defeat in the French and Dutch referendums of 2005, this ambition was abandoned, and
the Lisbon Treaty is silent on this issue.

25.3 The Juridification of the Political Sphere


The EU is a paradise for lawyers.16 Given the presence within the European Community system of a judicial body charged with arbitrating interinstitutional conflicts, one could think that the possibility of resorting to the judiciary would rapidly come to be seen as one of the basic features of the
European political process. Yet this possibility took some time to take shape in practice. Gradually, the main political actors realized that the legal route
could enable them to garner important results, which led to the development of several types of legal strategies. The European Commission, in charge
of safeguarding EU law according to the treaty, has not failed to utilize this possibility to compel reluctant states to fulfill their obligations. Some national
governments have sometimes accused it of seeking by this means to short-circuit negotiations in hand at the EU Council.17 This did not prevent them
from doing the same when their own interests were at stake, be it to react to what they saw as an intrusion by the Commission into their province,18 or
to correct the effects of a decision taken despite their contrary vote in Council.19 The importance of the legal battles is such that any actor hoping to
count has to join in. This explains the keenness with which the European Parliament, which at the outset had only limited access to the Court, fought for
its prerogatives to be extended. Now that its right to bring actions before the Court has been recognized, the European Parliament utilizes its legal
capacity to defend its own prerogatives or to promote the values that constitute the liberal European ethos.20
But inter-institutional disputes are only the tip of the iceberg. Even if not parties to a case before the ECJ, governments and institutions can take part in
proceedings through observations they bring before the Court. The closer these observations are to the formal language of law the Court has itself
adopted, the more likely it is that they will be well received. This explains why these memoranda are often cast in the rigid mould of legal argument.21
However, an observer aware of the issue at hand will generally not find it too hard to make out very specific political interests in the background. Of all
the political actors, the Commission is the keenest for this type of exercise, making it a point of honor to present its observations on all cases brought
before the ECJ by national jurisdictions. National governments have a habit of presenting their observations whenever a dispute raises a question of
compatibility of their law with Community law.22 Even where the Court of Justice is not called upon to intervene, legal considerations are far from being
absent from the political process. As a Canadian observer has very rightly pointed out, the juridification of the political game is reflected not just by a
change of forum but also by a change in form.23 The prospect, or sometimes even the mere possibility, of a legal dispute compels political actors to
incorporate legal parameters into their strategies so as to avoid possible legal censure. Such questions as the competence of EU institutions, the
choice of legal basis, and respect for fundamental principles recognized by the Court of Justice (human rights, the principle of proportionality) may thus
play an important part in the political process.
How is one to explain the central role of lawyers in the European political process? Some factors are structural in nature; they have to do with the
complex nature of the Community institutional system, where, with all the difficulties this implies, two sorts of distribution of power overlap: vertical
distribution between the EU and its member states, and horizontal distribution among the various EU institutions. As in most separation of powers
systems, the need for a judicial umpire has made itself felt, and its activity has enhanced the importance of legal questions. Other factors are of a
more political nature. In most systems where institutional conflicts can be submitted to adjudication by a constitutional court, this is only one way
among others of settling differences. Alternative proceedings may be used: political parties are often more inclined to favor a negotiated solution rather
than embark on legal proceedings where the outcome is always uncertain. This sort of alternative is missing at EU level, where the influence of the
political parties remains relatively slight.
Public institutions are not the only ones to have become aware of the potential of the legal sphere. Other actorsprivate companies, interest groups, or
even individualshave noticed that recourse to the courts could enable them to reach results the ordinary political process could not allow them to
aspire to, and they have not refrained from making use of it. A priori there was nothing to foreshadow this development. Reacting against what seemed
to them an over-liberal interpretation of the relevant provisions of the ECSC Treaty, the drafters of the Rome Treaty had opted for a formula that strictly
limited possibilities of individual appeals by private individuals against acts taken by the institutions. By Article 173 of the EC treaty (now Article 263 of
the Treaty on the functioning of the European Union24), only persons directly and individually concerned by Community acts could ask for them to be
set aside.
Two factors, however, enabled private interests to become very active on another front, namely the relationship between national law and EU law.
From the outset, with the 1963 Van Gend en Loos judgment,25 the Court of Justice gave a very broad interpretation to the bans on discrimination
contained in the treaty. As we said, the Court saw many of these provisions as a source of rights that plaintiffs could invoke before the national courts
for this is what is described as direct effect in EU laweven where the treaty wording clearly suggested they were chiefly addressed to member
states. This reading of the treaty, transforming it into a catalogue of individual rights, opened doors to individuals to an arsenal of argument they could
make use of whenever the national authorities seemed to them to breach the individual rights granted to them by Community law. Access to the Court
was further facilitated by a second revolutionthis time of a procedural nature. While the treaty had entrusted to the Commission the task of bringing
proceedings aimed at punishing breaches of Community law (Article 258 TFEU), the Court of Justice accepted the national courts using the channel of
the preliminary ruling (Article 267 TFEU) to ask itin terms often devoid of all ambiguityabout the compatibility of national provisions with EU law,
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The European Court of Justice and the Legal Dynamics of Integration


thus bringing about a true decentralization of judicial review of the way EU law was implemented.26
The combination of these two developments considerably broadened possibilities for private individuals to utilize the legal sphere. Where they feel that
Community rules are more favorable to their interests than national rules, they can in fact lodge an appeal before a national court and endeavor to
convince it to send a case to Luxembourg. Through this channel, private plaintiffs can launch a legal offensive at European level against regulatory
obstacles they come up against at national level. One has thus seen big shops challenging provisions banning Sunday opening as barriers to free
movement; pharmaceutical firms doing the same with rules on the marketing of medicines; women drawing on the principle of equal treatment laid
down in Article 157 TFEU to gain social advantages denied to them at national level; and so on. The development of this type of dispute is the fruit of a
convergence of specific motivations. Plaintiffs have found in EU law an instrument enabling them to promote their own interests, and the ECJ a way of
dismantling the many barriers to trade existing at national level, thus making up for the omissions of a Community legislator hampered by the uncertain
search for consensus.27 In the Marks & Spencer case,28 for instance, the Court had to deal with the problem of the transfer of losses within groups of
companies under the rule on the freedom of establishment of legal persons (Article 49 TFEU), a problem that the Commission had proposed for a long
time (but in vain) to settle through harmonization. In these circumstances, it is not surprising that strategic utilization of European legal procedures is
mostly a matter for big companies 29 or interest groups with sufficient resources to embark on costly legal battles with uncertain outcomes.

25.4 Explaining the Court's Role


While the ECJ's influence may have varied over time, it has always been felt. This is all the more remarkable considering governments traditional
reluctance to let judicial bodies interfere in interstate relations, for, despite occasional skirmishes, the ECJ has not met with systematic resistance on
the side of its direct interlocutors. Member states governments have occasionally mumbled against some of its rulings, but they have never attempted
to curtail the Court's powers. True, on several occasions they have given evidence of their unwillingness to allow a further expansion of judicial
activism. The pillars structure of the Maastricht Treaty owes much to the willingness to contain the ECJ, whose influence was to be confined to the
Community pillar. Specific protocols were appended to the Treaties to prevent an unwanted evolution of the Court's case law. But instances of
ratification of judicial inventions werent rare either: the Maastricht Treaty validated the Court's recognition of human rights and recognized the European
Parliament's right to bring annulment actions for the purpose of protecting its prerogatives which had been first introduced in an earlier ECJ ruling30
and, as was said, governments had initially envisaged to formally recognize the supremacy of EU law in the constitutional treaty. The creation by the
SEA (1986) of a Court of First Instance, to which law suits directly introduced by private parties were entrusted, was motivated by the necessity to
enable the ECJ to better perform its task, which can hardly be seen as a sign of mistrust. Similarly, national courts, called upon to play a key role in the
European legal order, could have reacted negatively against the rulings of the ECJ. Had they done so, the ECJ would have been faced with great
difficulties, since it definitely needs their support: some 47.9 percent of its rulings in 2008 find their origin in a preliminary reference from national courts.
Here again, much attention has gone to the vigorous reactions of some higher courts to the activism displayed by their somewhat intrusive European
counterpart. The decision of the German Bundesverfassungsgericht of June 30, 2009 on the Lisbon Treaty, for instance, was a clear warning that
further erosions of Germanys sovereignty would not be tolerated.31 But this should not obscure the fact that, on the whole, national courts (and in
particular lower courts) have by and large played their part with enthusiasm in the Euro-law game: they account for some 48.6 percent of the
references that reached the Court's docket in 2008. The first research question is therefore what has prompted most of the ECJ's interlocutors to
accept the quiet revolution it has operated with the constitutionalization of the European legal system, a process without any equivalent on the
international plane?32 Secondly, how can one account for the differences that may be discerned in their reactions?
Glancing at the academic literature, one can distinguish different kinds of responses to these questions. As has been noted, most of the legal literature
begins and ends with law, describing a legalist world that is hermetically closed to considerations of power and self-interest33 and has for long been
characterized by an uncritical acceptance of the European Court's performance.34 Legal formalism invites judges and scholars to regard judicial
rulings as revealing legal ruler's true meaning, downplaying the amount of discretion it may involve. And in its first years of activity, the ECJ has spared
no effort to win national courts confidence, be it by patiently explaining what it expected them to do and cultivating court-to-court dialogue through the
preliminary rulings procedure35 or by conducting what can be best described as a systematically planned public relations policy, aimed at
guaranteeing a smooth cooperation between national and European judges.36 It could also rely on the active support of the community of EU law
specialists, who contributed to spreading the Court's narrative of the necessary construction of an EU legal order.37
Some political science accounts offered a neo-institutionalist explanation of the emergence of the European legal system. Burley and Mattli suggested
that this process gave incentives to support the European court's case law to a wide range of domestic actors: by pursuing their own personal or
professional interests, individual litigants, their lawyers, and lower national courts participated in the construction of the Community legal system.38
Thus, the Court created a pro-Community constituency of private individuals by giving them a direct stake in promulgation and implementation of
Community law.39 Many courts, for instance, have seen their power increase under the influence of ECJ case law, which demands that they review the
conformity of domestic law with EU law, even though they may be denied a power of judicial review over legislation in their domestic legal order. In a
similar vein, Alec Stone Sweet and Thomas Brunel have shown that there is a correlation between the reference rates and trade flows, suggesting that
an increase in the latter results in more litigation, with more cases ending up before the ECJ.40 Yet, the limitation of those analyses is that they treat all
national courts alike, whereas there is ample evidence that higher courts do not display the same degree of enthusiasm vis--vis the EU as lower
courts. Constitutional courts in particular are notorious for their refusal to refer cases to Luxembourg, and several of them have issued clear warnings
indicating that they could not accept without qualifications the ECJ's claim to supremacy.41 Obviously, EU law does not offer the same kind of
incentives to all courts.
Turning to national governments, it has been suggested that their overall acceptance of the European Court's jurisprudence could be viewed as a clue
that judicial behavior was perhaps more concerned with political interests than it might seem at first sight. On this realist reading, because courts are
concerned about the prospect of non-compliance or possible hostile reactions, they tend to calculate how far they can go without eliciting too costly a
reaction from politicians.42 True, such strategic concerns can occasionally be discerned in the ECJ's behavior, witness its tendency to split the
43

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The European Court of Justice and the Legal Dynamics of Integration


difference between adverse claims or to use with moderation the broad powers it claims.43 But there is no shortage of evidence that it is at times
willing to challenge the dominant view among governments. Its landmark rulings in Van Gend and Loos and Costa v. ENEL were taken despite the
declared opposition of a majority of states, which had intervened before the Court. But the context of the first decades of integration may explain why
the latter's innovation did not meet with stronger resistance: the relative paralysis of the Council following the Luxembourg compromise, the prointegration stance of a majority of national governments, and the existence of a wide (even if shallow) support for integration within public opinion all
concurred to facilitate acceptance of the constitutionalization of the Community legal order.44

25.5 Market-Building and Social Integration


The EJC has been and remains the court of an international organization the primary objective of which is the creation of a common market by the
elimination of all obstacles to intra-community trade in order to merge the national markets into a single market bringing about conditions as close as
possible to those of a genuine internal market.45 The law of the common market is the law of cross-border exchanges. Its aims are to put an end to the
compartmentalization of national markets and to allow for the free flow of economic factors. The Court used two main bodies of rules to achieve that
objective: the free movement rules designed to eliminate public restrictions of trade; the competition rules designed to ensure conditions of relative
equality of opportunities within that market. These rules were promoted to the category of very foundations of the Community.46 This promotion was
important in establishing a framework in which all the actors engaged in integration must continuously justify themselves with regard to these
fundamental legal principles. By imposing this framework of justification, the Court has set up a constant vigilance over the behavior of EU institutions
and national governments. Within the EU context, national governments are subject to the continuous need to justify themselves, before EU bodies and
before domestic courts.
This does not mean that the case law of the Court is a closed system. It is also characterized by a certain vulnerability to external forces.47 The Court
had to take into account demands from the member states and from the constitutional courts. The problem was to take into consideration the states
demands without surrendering the autonomy of EU law. The solution was to devise new standards for a better protection of fundamental or social
rights, taking into account the needs and specific aims that the Court itself gave to the integration process. Thus, if respect for fundamental rights
forms an integral part of the general principles of law protected by the Court of Justice, it remains that the protection of such rights, whilst inspired by
the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community.48
The structure and the objectives of the common market are thus protected.
A Court acting in this way is a market-building court. Now, any establishment of a new order (economic, political, and legal) presupposes a rupture with
the previous order.49 Through its case law the Court allowed for the modification of the balance of power that was in place in Europe. Some argue that
this construction has had a liberalizing effect on national economies.50 What is certain is that it gives the Court an important, perhaps excessive
responsibility. It has indeed become the ultimate arbiter of the balance between economic and social concerns in the common market.51
From the Treaty of Maastricht onward, the context has changed. The political actors wish to bestow on the Unionfounded on pragmatic economic
growtha stronger social and value component. Evidence of this is the wording of Article 2 of the Treaty on European Union, as amended by the
Lisbon Treaty: the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and the introduction into this provision
of a reference to the social market economy. This concept in the new treaty clearly corresponds to the desire to create a social counterbalance to
market considerations. It contains the idea that European integration should not be pursued to the detriment of the integrity of the social systems of the
member states. The emphasis is placed on civil and social integration rather than on market integration. The Court cannot ignore this evolution. As a
matter of fact, a new integration regime is beginning to emerge in the case law of the Court. Rulings based on market rules reinterpreted in the light of
citizenship rights and fundamental rights are designed to ensure the access of Union citizens to those collective goods which are vectors of social
integration: markets, but also territories, professions, national systems of social protection, justice, or education.52
This seems to imply a reconstitutionalization of EU law.53 The classic type of constitutionalization consisted in establishing the supremacy of the
European Community treaty. It was hierarchical in nature. Now, the Court uses constitutional methods of adjudication based on the idea of conciliation
between opposing principles and values. In this way, one moves from a hierarchical way of resolving conflicts to a form of legal pluralism. This
presupposes a twofold change in the nature of legal integration: an enlargement of its scope and an alteration of its substance. First, it means that
virtually no area of economic and social life is, in principle, completely immune from the empire of EU law. The penetration of EU law in all the areas of
competence of the member states is perhaps the most important phenomenon in case law in the last ten years.54
Second, there is a pressure to reconcile the EU rules favoring free trade with the contradictory requirements of equal constitutional value that arise out
of the EU legal order, international law, and national constitutional law. A number of recent judgments bear witness to the birth of a new analytical
framework.55 But, just as the constitutionalization of the Treaties has engendered conflicts of sovereignty, this new trend in case law generates conflicts
between values and models. Member countries have espoused very divergent economic, cultural, and social models. In the situation following the
accession of twelve new member states, there is an increasing risk of competition between these models, which is potentially destructive for the Union.
In the absence of any competence to harmonize social standards transferred to the Union, the task to maintain an equilibrium between the divergent
requirements of the national models and the uniform requirements of the internal market is delegated to the Court.56 So far, it does not seem that the
technique of reconciliation used by the Court lives up to the ideal announced in the Lisbon Treaty.57 The legitimacy of the Court and the consequences
of its case law have been occasionally challenged.58

25.6 Conclusion
The ECJ has played a leading role in the integration process. It has decisively shaped the structure of the EU legal system and its relationships with
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The European Court of Justice and the Legal Dynamics of Integration


national legal orders. It is now increasingly called upon to address delicate issues involving fundamental choices between economic freedom and
social justice. But the context in which it operates has changed: EU competences have been substantially extended as well as the area is which a
majority decision-making is possible in the Council, the Parliament has gained new powers, and there are growing fears of an unequal distribution of
the costs and benefits of integration in an enlarged and less homogenous Union.59 Moreover, the description of a Court tucked away in the fairyland
Duchy of Luxemburg and blessed, until recently, with the benign neglect by the powers that be and the mass media is no longer true.60 The Court is
operating under greater public scrutiny. The turning point can be said to have occurred during the 1990s,61 as a consequence of a threefold
development: the growing importance of fundamental rights issues in case law; the extension of EU competences, in particular in the field of justice and
internal affairs; and the widespread recognition of the protection of the constitutional identity of the member states. Moreover, the EU system is above
all a system of checks and balances in which each institution enjoys considerable autonomy. Were the role of political groupings to expand, it is not
certain that all conflicts could be solved through a political decision. In the current context of crises and uncertainty about the objectives to be pursued
by the process of European integration, political negotiations lead to the development of deeply contested legislative agreements, which often represent
an uncertain compromise between opposed preferences. This de facto leaves it to the Court to adjudicate disputes and to give the practical meaning
of rules.62

Notes:
(1) .R. Grass, Les ressources humaines la Cour de justice des Communauts europennes, in Le droit la mesure de lhomme. Mlanges en
lhonneur de Philippe Lger (Paris, Pedone, 2006), 69.
(2) .C. Tomuschat.National Representation of Judges and Legitimacy of International Jurisdictions: Lessons from ICJ to ECJ? in I. Pernice, J. Kokott,
and C. Saunders, eds, The Future of the European Judicial System in a Comparative Perspective (Baden-Baden: Nomos Verlag, 2006).
(3) .J.-V. Louis, The Court in the Constitution: How Federal? in I. Pernice et al., The Future of the European Judicial System.
(4) .D. Simon, Les mcanismes juridictionnels dans la Communaut europenne, in Perspectives convergentes et divergentes sur lintgration
conomique, Colloque commun SFDI/SQDI de Qubec (Paris: Pedone, 1993), 6178.
(5) .J. Basedow, The Judge's Role in European IntegrationThe Court of Justice and its Critics, in H.-W. Micklitz and B. De Witte, eds. The European
Court of Justice and the Autonomy of the Member States (Cambridge-Antwerp-Portland: Intersentia, 2012).
(6) .For example, by ruling in favor of the mobility of students; see case C-147/03, Commission v. Austria.
(7) .J. H. H. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999).
(8) .Case 26/62.
(9) .R. Lecourt, LEurope des juges (Brussels: Bruylant, 1976), 260.
(10) .Case 6/64.
(11) .Case 106/77, Simmenthal.
(12) .B. de Witte, Retour Costa: La primaut du droit communautaire la lumire du droit international, Revue trimestrielle de droit europen
(1984), 425.
(13) .Joined Cases C-6/90 and C-9/90CJCE, Francovich, Bonifaci, and others v Italy.
(14) .Case C-83/94, Leifer.
(15) .Case 283/81, CILFIT.
(16) .A. Vauchez, Integration Through Law: Contribution to a Socio-History of EU Political Common Sense, EUI Working Paper RSCAS, no. 2008/10,
2008.
(17) .See e.g. case 205/84, Commission v. German Federal Republic.
(18) .Joined cases 281, 2835, 287/85, FRG et al. v. Commission.
(19) .Case 68/86, UK v. Council; case C-376/98, German Federal Republic v. Council.
(20) .Case C-540/03, Parliament v. Council; Joined cases C-317/04 et C-318/04, Parliament v. Council.
(21) .L. Azoulai, La fabrication de la jurisprudence communautaire, in P. Mbongo and A. Vauchez, eds, Dans la fabrique du droit europen. Scnes,
acteurs et publics de la Cour de justice des Communauts europennes (Brussels: Bruylant, 2009), 153.
(22.) M.-P. Granger, Les stratgies contentieuses des Etats devant la Cour de justice, in Mbongo and Vauchez, Dans la fabrique du droit europen.
Scnes, acteurs et publics de la Cour de justice des Communauts europennes (Brussels: Bruylant, 2009), 53.
(23.) M. Mandel, The Charter of Rights and the Legalization of Politics in Canada, second edition (Toronto: Thompson, 1994), 81.
(24.) Article 263 does not change this rule, it only provides an exception for persons acting against a regulatory act which is of direct concern to them
and does not entail implementing measures.
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The European Court of Justice and the Legal Dynamics of Integration


(25.) Case 26/62.
(26.) R. Dehousse, La Cour de justice des Communauts europennes, second edition (Paris: Montchrestien, 1997), 336.
(27.) Dehousse, La Cour de justice des Communauts europennes, 726.
(28.) C-446/03.
(29.) C. Harding, Who Goes to Court in Europe? An Analysis of Litigation Against the European Community, European Law Review 17 (1992), 10425.
(30.) Case C-70/88, European Parliament v. Council.
(31.) D. Halberstam and E. Stein, The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a
Plural World Order, Common Market Law Review 46, no. 1 (2009), 1372.
(32.) J. H. H. Weiler, A Quiet Revolution. The European Court of Justice and its Interlocutors, Comparative Political Studies 26 (1994), 51034.
(33.) A.-M. Burley and W. Mattli, Europe Before the Court: A Political Theory of Legal Integration, International Organization 47, no. 1 (1993), 4176, at
45.
(34.) M. Shapiro, Comparative Law and Comparative Politics, Southern California Law Review 53 (1980), 538.
(35.) F. Mancini, The Making of a Constitution of Europe, Common Market Law Review 26 (1989), 30316.
(36.) Lecourt, LEurope des juges.
(37.) K. Alter, The European Court's Political Power: Selected Essays (Oxford, Oxford University Press, 2009); A. Vauchez, Droit et politique, in C.
Belot, P. Magnette, and S. Saurugger, eds, Science politique de lUnion europenne (Paris: Economica, 2008).
(38.) Burley and Mattli, Europe Before the Court: A Political Theory of Legal Integration.
(39.) Burley and Mattli, Europe Before the Court: A Political Theory of Legal Integration, 60.
(40.) A. Stone Sweet and T. Brunell, Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community, The
American Political Science Review 92, no 1 (1998), 6381.
(41.) K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press,
2001).
(42.) G. Garrett and B. Weingast, Ideas, Interests, and Institutions: Constructing the EC's Internal Market, in J. Goldstein and R. Keohane, eds, Ideas
and Foreign Policy: Beliefs, Institutions, and Political Change (Ithaca: Cornell University Press, 1993), 173206.
(43.) Dehousse, La Cour de justice des Communauts europennes, 1305.
(44.) J. H. H. Weiler, The Community System: The Dual Character of Supranationalism, Yearbook of European Law 1 (1981), 267.
(45.) Case 15/81, Schul.
(46.) ECJ opinion, 1/91.
(47.) M. Rosenfeld, Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme Court, International Journal of
Constitutional Law 4, no. 4 (October 2006), 618.
(48.) Case 44/79, Liselotte Hauer v Land Rheinland-Pfalz.
(49.) H. Lindhal, Acquiring the Community: The Acquis and the Institution of European Legal Order, European Law Journal 9, no. 4 (2003), 43350.
(50.) F. Scharpf, The Double Asymmetry of European Integration, Or Why the EU Cannot Be a Social Market Economy, Max Planck Institute for the
Study of Societies Working Paper, no. 09/12, 2009.
(51.) M. Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Oxford: Hart Publishing, 1998).
(52.) See e.g. case C-212/97, Centros; case C-117/01, K.B.; case C-456/02, Trojani; joined cases C-76/05 a C-318/05, Schwarz; case C-353/06;
Grunkin & Paul; case C-127/08, Metock.
(53.) L. Azoulai, Le rle constitutionnel de la Cour de justice des Communauts europennes tel quil se dgage de sa jurisprudence, Revue
trimestrielle de droit europen, no. 1 (2008), 29.
(54.) See e.g. case C-73/08 [2010] 28. This extension is signalled by a recurrent formula in the Court's rulings: even if, in the areas which fall outside
the scope of the EU's competence [such as social protection, tax matters, education, civil status of persons] the Member States are still free, in
principle, to lay down the conditions governing the domain in question, the fact remains that, when exercising that competence, the Member States
must nevertheless comply with EU law.
(55.) See e.g. case C-280/00, Altmark; case C-309/99, Wouters; case C-112/00, Schmidberger; case C-36/02, Omega.
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The European Court of Justice and the Legal Dynamics of Integration


(56.) Case C-438/05, Viking Line; case C-341/05, Laval.
(57.) L. Azoulai, The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for its Realization, Common
Market Law Review 45 (2008), 1335.
(58.) See e.g. case C-144/04, Mangold; case C-127/08, Metock.
(59.) N. Fligstein, Euroclash: The EU, European Identity, and the Future of Europe (Oxford: Oxford University Press, 2008).
(60.) E. Stein, Lawyers, Judges and the Making of a Transnational Constitution, American Journal of International Law 75, no. 1 (1981), 127.
(61.) J. Baquero Cruz, The Changing Constitutional Role of the European Court of Justice, International Journal of Legal information 34, no. 2 (2006),
22345.
(62.) L. Azoulai, and M. Poiares Maduro, Introduction, in Azoulai and Poiares Maduro, eds, The Past and Future of EU Law. The Classics of EU Law
Revisited on the 50th Anniversary of the Rome Treaty (Oxford: Hart Publishing, 2010), xiiixx.
Loc Azoulay
Loc Azoulai, Professor of EU Law, European University Institute, Florence, Italy; Professor of EU Law, Panthon-Assas University (Paris
II), Paris, France.

Renaud Dehousse
Renaud Dehousse Jean Monnet Professor of EU Law and Politics and Director, Centre dtudes europennes, Sciences Po, Paris.

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