The European Court of Justice as a federator

Publius: The Journal of Federalism

Volumn 26, Issue 4, 1996, Pages 81-97

  Starr Deelen, Donna ^a   Deelen, Bart ^a  

^a NONE

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EID: 0041195509     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a029885     Document Type: Article

References (87)

1. 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.
2. Koen Lenaerts, "Constitutionalism and the Many Faces of Federalism," The American Journal of Comparative Law 38 (Spring 1990): 205.
3. Lord Mackenzie Stuart, "Problems of the EC: Transatlantic Parallels," International and Comparative Law Quarttrly 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 ohter 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.
6. 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 ohter 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.
7. G. Federico Mancini, "The Making of a Constitution for Europe," Common Market Law Review 26 (Winter 1989): 592.
8. Volcansek calls 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.
9. Particularly through its interpretation of EEC Article 30 (regarding quantitative restrictions on imports) and Article 36 (regarding acceptable prohibitions on imports).
10. Procureur du Roi v. Dassonville, case 8/74, (1974) ECR 837.
11. Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon), case 129/78, (1979) ECR 649.
12. Juliet Lodge, ed. The European Community and the Challenge of the Future (London: Pinter Publications, 1993), p. 54.
13. Van Gend en Loos v. Nederlandse Administratie der Belastingen, case 26/62, (1963) ECR 1.
14. See Van Duyn v. Ham, Office, case 41/74, (1974) ECR 137.
15. 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.
16. 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.
17. Costa v. ENEL, case 6/64, (1964) ECR 585.
18. The United States Constitution, Article 6, Clause 2.
19. 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.
20. Mancini, "The Mating of a Constitution for Europe," 603.
21. John E. Nowak and Ronald D. Rotunda, Constitutional Law (St. Paul: West Publishers, 1991), p. 315.
22. Bermann, "Taking Subsidiarity Seriously," 358.
23. 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.
24. 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.
25. 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."
26. Simon Bronitt, Fiona Burns, and David Kinley, Principle of European Community Law (Sydney: The Law Book Company, 1995), pp. 156-160.
27. The acquis communautaire 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 Law 1, 9 (1990).
28. The Court did this in Nold v. EC Commission, case 4/73, (1973) ECR 491 and Cowan v. Tresor Public, case 186/87, (1990) 2 CMLR 613.
29. Mancini, "The Making of a Constitution for Europe," 611.
30. For a good summary of the legal critique of the ECJ's activism, see Vocansek, "The European Court of Justice," 108 and 117-118.
31. Trevor Hartley, The Foundations of European Community Law, 2nd ed. (Oxford: Clarendon Press, 1988), p. 81.
32. Hartley, The Foundations of Eurofran Community Law, p. 80 and particularly Hjalet Rasmussen, "Towards a Normative Theory of Interpretation of Community Law," University of Chicago Legal Forum (1992): 143-153.
33. Hartley, The Foundations of Eurofran Community Law, p. 80 and particularly Hjalet Rasmussen, "Towards a Normative Theory of Interpretation of Community Law," University of Chicago Legal Forum (1992): 143-153.
34. Though exceptons 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 Self-Restraint 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 critism. See, for example, Mauro Cappelletti, "Is the European Court of Justice Running Wild?" European Law Review 12 (February 1987): 3-17; Joseph H. H Weiler. "The Court of Justice on Trial," Common Market Law Review 24 (June 1987): 555-589.
35. Though exceptons 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 Self-Restraint 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 critism. See, for example, Mauro Cappelletti, "Is the European Court of Justice Running Wild?" European Law Review 12 (February 1987): 3-17; Joseph H. H Weiler. "The Court of Justice on Trial," Common Market Law Review 24 (June 1987): 555-589.
36. Though exceptons 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 Self-Restraint 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 critism. See, for example, Mauro Cappelletti, "Is the European Court of Justice Running Wild?" European Law Review 12 (February 1987): 3-17; Joseph H. H Weiler. "The Court of Justice on Trial," Common Market Law Review 24 (June 1987): 555-589.
37. Though exceptons 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 Self-Restraint 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 critism. See, for example, Mauro Cappelletti, "Is the European Court of Justice Running Wild?" European Law Review 12 (February 1987): 3-17; Joseph H. H Weiler. "The Court of Justice on Trial," Common Market Law Review 24 (June 1987): 555-589.
38. Deirdre Curtin, "The Constitutional Structure of the Union: A Europe of Bits and Pieces," Common Market Law Review 30 (February 1993): 65.
39. Volcansek, "The European Court of Justice," 113.
40. Ibid., 112. See also, Jenny Siourthas, "Supranational Federations: the European Community as a Model," Moncuh University Law Review 19 (February 1993): 280.
41. Ibid., 112. See also, Jenny Siourthas, "Supranational Federations: the European Community as a Model," Moncuh University Law Review 19 (February 1993): 280.
42. It was a role appreciated by the member states and it explains partly why their opposition to the Court's activism was relatively low.
43. Volcansek, "The European Court of Justice," 109.
44. 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.
45. Braum v. Board of Education, 347 U.S. 483 (1954).
46. Bernard H. Siegan, The Supreme Court's Constitution (New Brunswjck, NJ: Transaction Pubhshers, 1993), chapter 4.
47. Joseph H. H. Weiler, "Community, Member States, and European Integration: Is the Law Relevant?" Journal of Common Market Studies 21 (September/December 1982): 46.
48. Ibid.
49. 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.
50. Jean-Louis Seurin, "Towards a European Constitution? Problems of Political Integration," Public Law (Winter 1994): 634.
51. Mancini, "The Making of a Constitution for Europe," 605.
52. Weiler, "Journey to an Unknown Destination," 421-425.
53. Paul Marcquardt, "Deficit Reduction in the European Union," Duke Journal of Comparative and International Law 4 (Spring 1994): 274-275.
54. Pubblico Ministerio v. Ratti, case 148/78, (1979) ECR 1629.
55. Marshall v. Southampton and South-West Hampshire Area Health Authority, case 152/84, (1986) ECR 723.
56. Foster v. British Gas Plc., case C-188/89, (1990) ECR 3313; Marleasing SA v. La Comercial International de Alimentation SA, case C-106/89, (1990) ECR 4157; Faccini Dori v. Recreb Srl., 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.
57. 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.
58. Geoffrey Garrett, "The Politics of Legal Integration in the European Union," International Organization 49 (Winter 1995): 177.
59. Mancini admits the use of the European Commission as a bellwether by the European Court. Mancini, "The Making of a Constitution for Europe," 605.
60. Walter Mattli and Anne-Marie Slaughter, "Law and Politics in the European Union: A Reply to Garrett," International Organization 49 (Winter 1995): 185.
61. Union Royale Belge des Societes de Football 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.
62. Belgian Prime Minister Jean-Luc Dehaene in the Belgian daily, De Standaard, 22 December 1995, p. 3.
63. 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 Arucle 169 rulings would also reflect this evolution. Rasmussen, "Towards a Normative Theory," 159.
64. Mattli and Slaughter, "Law and Politics in the European Union," 185, note 8.
65. Data from EUROBAROMETER No. 38 (December 1992), p. 81 and EUROBAROMETER No. 40 (December 1993), p. 85.
66. Data from EUROBAROMETER No. 38 (December 1992), p. 81 and EUROBAROMETER No. 40 (December 1993), p. 85.
67. Paul R. Dubinsky, "The Essential Function of Federal Courts: the European Union and the United States Compared." American Journal of Comparative Law 42 (Spring 1994): 344.
68. Ibid., 344.
69. Barbar v. Royal Guardian Exchange Assurance Group, case 262/88, (1990) ECR 1889.
70. Curtin, "The Constitutional Structure of the Union," 50-51. The Barber Protocol also raised concern in editorial comment, "Quies Custodiet the European Court of Justice?" Common Market Law Review 30 (October 1993): 902.
71. Curtin, "The Constitutional Structure of the Union," 50-51. The Barber Protocol also raised concern in editorial comment, "Quies Custodiet the European Court of Justice?" Common Market Law Review 30 (October 1993): 902.
72. 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.
73. Rasmussen, "Towards a Normative Theory," 163.
74. Reimer Voss, "The National Perception of the Court of First Instance and the European Court of Justice," Common Market Law Revins 30 (December 1993): 1134.
75. Except in cases brought under Article 170.
76. Helmut Kohl, "Chancellor Kohl Accuses the Court of Going Beyond its Competences: The 'Paletta' and 'Boetel' Cases," Europe 5835 (October 1992): 9.
77. See, for example, German Minister for Social Affairs, "Die leise Ubermacht," Der Spiegel (November 1992. 102, quoted in "Quies Custodiet the European Court of Justice?" 900.
78. See, for example, German Minister for Social Affairs, "Die leise Ubermacht," Der Spiegel (November 1992. 102, quoted in "Quies Custodiet the European Court of Justice?" 900.
79. Carl Otto Lenz, "The Role and Mechanism of the Preliminary Ruling Procedure," Fordham International Law Journal 18 (December 1994): 409.
80. Curtin, "The Constitutional Structure of the Union," 67.
81. The main issue is whether these protocols form an integral part of EC law.
82. See "Safeguarding the Union's Legal Order?" editorial comment, Common Market Law 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 Treaty with regard to the possible horizontal direct effect of directives. Others, like Judge Mancini argued, however, that the Court's selfrejtraint started earlier, particularly in Cinetheque v. Federation Nationale des Cinemas Francais, cases 60-61/ 84, (1985) ECR 2605, para 26. Mancini, "The Making of a Constitution for Europe," 613.
83. See "Safeguarding the Union's Legal Order?" editorial comment, Common Market Law 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 Treaty with regard to the possible horizontal direct effect of directives. Others, like Judge Mancini argued, however, that the Court's selfrejtraint started earlier, particularly in Cinetheque v. Federation Nationale des Cinemas Francais, cases 60-61/ 84, (1985) ECR 2605, para 26. Mancini, "The Making of a Constitution for Europe," 613.
84. See "Safeguarding the Union's Legal Order?" editorial comment, Common Market Law 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 Treaty with regard to the possible horizontal direct effect of directives. Others, like Judge Mancini argued, however, that the Court's selfrejtraint started earlier, particularly in Cinetheque v. Federation Nationale des Cinemas Francais, cases 60-61/ 84, (1985) ECR 2605, para 26. Mancini, "The Making of a Constitution for Europe," 613.
85. Francis G. Jacobs, "Europe After 1992: The Legal Challenge," University of Chicago Legal Forum (1992): 16.
86. Curtin, "The Constitutional Structure of the Union," 69.
87. Weiler, "Journey to an Unknown Destination," 435.