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The Changing Constitutional Role of the European Court of Justice

Published online by Cambridge University Press:  28 February 2019


The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong.

Copyright © 2006 by the International Association of Law Libraries 

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1 For the conventional view on the role of the Court in the constitutionalization of the Treaty, see, for example, E. Stein, “Lawyers, Judges, and the Making of a Transnational Constitution”, American Journal of International Law, 1981, p. 1; H. Rasmussen, On Law and Policy in the European Court of Justice, Nijhoff, Dordrecht, 1986; J. H. H. Weiler, “The Transformation of Europe”, Yale Law Journal, 1991, p. 2403; K. Alter, Establishing the Supremacy of European Law: the Making of an International Rule of Law in Europe, OUP, Oxford, 2001; A. Stone Sweet, The Judicial Construction of Europe, OUP, Oxford, 2004. For my own perspective, see my Between Competition and Free Movement: the Economic Constitutional Law of the European Community, Hart, Oxford, 2002, pp. 3962.Google Scholar

2 Curiously, that deformed view may have had some influence on how the Court sees itself and also on the case law.Google Scholar

3 Case 26/62, Van Gend en Loos [1963] ECR 1, at p. 12.Google Scholar

4 Case 6/64 Costa v ENEL [1964] ECR 585, at pp. 593594.Google Scholar

5 See, for example, the book of A. Stone Sweet cited in note 1, p. 66: “the Court initiated and sustained [the constitutionalization process] in the absence of express authorisation of the Treaty, and despite the declared opposition of Member State governments.” See also the book of K. Alter cited in note 1, passim, and her article “Who are the ‘Masters of the Treaty'? European Governments and the European Court of Justice?”, International Organization, 2000, p. 489 (with this author the language of “transformation orchestrated by the ECJ”, “bold”, “revolutionary”, “provocative” or “extremely controversial legal interpretations”, etc., is recurrent).Google Scholar

6 But they were quite conscious of the importance of Article 177 (for a reminiscence of the drafting of this provision, see P. Pescatore, “Les travaux du ‘groupe juridique’ dans la négociation des traités de Rome”, Studia Diplomatica, 1981, vol. XXXIV, p. 159, at p. 173).Google Scholar

7 In this and the next section, I follow the argument of S. Acierno in “The European Court of Justice as a Constitutional Actor: A Reassessment” (unpublished paper).Google Scholar

8 See G. Isaac, Droit communautaire général (7th edition, Colin, Paris, 1999), p. 228: “Les négociateurs du traité C.E.C.A., sous l'influence allemande, semble-t-il, abandonnèrent très rapidement l'idée d'un tribunal arbitral conçu dans un esprit internationaliste au profit d'une juridiction qui se comporterait, au contraire, comme un juge interne de la Communauté”; J. Monnet, Mémoires (Fayard, Paris, 1976), p. 380: “l'arbitre et la procédure en deux temps que nous avions prévue disparaîtraient bientôt sous la pression des měmes petits pays”.Google Scholar

9 With the exception of the Benelux (in which there is a preliminary rulings procedure; but it is a system inspired in ideas of integration and uniformity close to those of the Treaties of Paris and Rome). The “quasi-judicial” systems of the WTO and of regional organisations such as MERCOSUR and NAFTA seem quite “underdeveloped” when compared with the Community judicial system.Google Scholar

10 For these categories, see J. L. Austin, How to Do Things with Words (Clarendon Press, Oxford, 1975).Google Scholar

11 For a similar argument, see B. de Witte, “Direct Effect, Supremacy, and the Nature of the Legal Order”, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (OUP, Oxford, 1999, p. 178, at p. 195).Google Scholar

12 M. Kumm and V. Ferreres Cornella, “The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union”, I-CON, International Journal of Constitutional Law, 2005, p. 473, at p. 478 (note, however, that those national constitutional courts do not “evaluate” supremacy; they have merely threatened to do so in very exceptional cases).Google Scholar

13 Ibid., p. 478.Google Scholar

14 That is, without reservations or potential limits, and including national constitutional law. In their article, Kumm and Ferreres Cornella surprisingly gloss over this important provision of primary law.Google Scholar

15 Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125, paragraphs 3–4. See also Case 29/69, Stauder [1969] ECR 419; Case 4/73, Nold [1974] ECR 491; Case 44/79, Hauer [1979] 3727Google Scholar

16 Case 22/70, Commission v Council [1971] ECR 263, paragraph 17.Google Scholar

17 See, for example, Joined Cases 3/76, 4/76 and 6/76, Kramer [1976] ECR 1308; Case 41/76, Donckerwolcke [1976] ECR 1934; Opinion 1/76 [1977] ECR 741; Opinion 1/78 [1979] ECR 2871.Google Scholar

18 Case 792/79 R, Camera Care v Commission [1980] ECR 119 (recognising the implicit power of the Commission to adopt interim measures in the context of Regulation 17/62, on the application of the competition rules to undertakings).Google Scholar

19 See, for example, J. Coppel and A. O'Neill, “The European Court of Justice: Taking Rights Seriously?”, Common Market Law Review, 1992, p. 669. See also the response by J. H. H. Weiler and N. Lockhart, “‘Taking Rights Seriously’ Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence”, Common Market Law Review, 1995, pp. 5194 and pp. 579627.Google Scholar

20 See R. Joliet, Le droit institutionnel des Communautés européennes, Université de Liège, Liège, 1983, at p. 231.Google Scholar

21 On these issues, see my article “Constitutional Gaps in Community Law”, in Melanges en hommage à Jean-Victor Louis, Editions de l'Université de Bruxelles, Brussels, 2003, p. 29.Google Scholar

22 See, for example, the Fragd decision of the Italian Constitutional Court (judgment 232/1989, Foro italiano, 1990, I, p. 1855). Comparable lines of case law exist in Denmark, France, Germany, Spain and Poland.Google Scholar

23 See its Maastricht decision of 1993 (BVerfGE, 89, 155).Google Scholar

24 Case C-70/88, Parliament v Council (Chernobyl) [1990] ECR 1-2041. The earlier judgment is Case 302/87, Parliament v Council (Comitology) [1988] ECR 5615.Google Scholar

25 T. C. Hartley, Constitutional Problems of the European Union, Hart, Oxford, 1999, p. 36: “the Treaty provides no authority for the judgment”; “the Court is prepared to go against the Treaties where it feels that the constitutional development of the Community so requires.”Google Scholar

26 Parliament v Council, cited in note 24, paragraph 25.Google Scholar

27 Opinion 2/94 [1996] ECR 1-1759.Google Scholar

28 Case C-376/98, Germany v Council [2000] ECR 1-8419.Google Scholar

29 Opinion 1/94 [1994] ECR 1-5281. On this Opinion, see my “Disintegration of the Law of Integration in the External Economic Relations of the European Community”, Columbia Journal of European Law, 1997, p. 257.Google Scholar

30 Decision cited in note 23. See, for example, A. Peters, Elemente einer Theorie der Verfassung Europas, Duncker & Humblot, Berlin, 2001, p. 425: describing Opinion 2/92 as a reaction to the Maastricht decision of the German Constitutional Court (“möglicherweise in Reaktion auf das Maastricht-Urteil”).Google Scholar

31 For these approaches, see, for example, N. MacCormick, “Beyond the Sovereign State”, Modern Law Review, 1993, p. 1; M. Kumm, “Who is the Final Arbiter of Constitutionality in Europe?”, Common Market Law Review, 1999, 356; N. Walker, “The Idea of Constitutional Pluralism”, Modern Law Review, 2002, p. 317; M. Maduro: “Contrapunctual Law: Europe's Constitutional Pluralism in Action”, in N. Walker (ed.), Sovereignty in Transition, Hart, Oxford, 2003, p. 501.Google Scholar

32 For a practical example, see the judgment of 27 April 2005 of the Polish Constitutional Court on the European arrest warrant (Case P 1/05), paragraph 9: “The Tribunal is not relieved of [its] obligation [to review the conformity of normative acts with the Polish Constitution] where the allegation of non-conformity with the Constitution concerns the scope of a statute implementing European Union law.” This statement seems to extend to European Union law as a whole, not being limited to the third pillar, in which the lack of judicial protection (to my knowledge Poland has not yet accepted the jurisdiction of the Court pursuant to Article 35 EU) may justify the exceptional intervention of the Constitutional Court.Google Scholar

33 Judgment of 13 July 2005 (No 124/2005), paragraph B.10 (my translation): “Des différences d'interprétation entre les instances judiciaires concernant la validité d'actes communautaires et la validité de la législation qui en constitue la mise en œuvre en droit interne compromettraient l'unité de l'ordre juridique communautaire et porteraient atteinte au principe général du droit communautaire de la sécurité juridique.”Google Scholar

34 I have developed these ideas in more detail in my article “Constitutional Gaps in Community Law”, cited in footnote 21.Google Scholar

35 See, for example, J. H. H. Weiler, The Constitution of Europe, Cambridge University Press, Cambridge, 1999, p. 326 (questioning the “added value” of European citizenship and arguing that most of the rights attached to it “predated Maastricht”).Google Scholar

36 For a detailed analysis, see S. O'Leary, “Solidarity and Citizenship Rights in the Charter of Fundamental Rights of the European Union”, in G. de Búrca (ed.), EU Law and the Welfare State, OUP, Oxford, 2005, p. 39, at pp. 6676. See, in particular, Case C-184/99, Grzelczyk [2001] ECR 1-6193; Case C-456/02, Trojani [2004] ECR I-7573; C-224/02, Pusa [2004] 1-5763 (with a very interesting Opinion of Advocate General Jacobs).Google Scholar

37 Case C-413/99, Baumbast [2002] 1-7091, paragraphs 84 to 94.Google Scholar

38 Case C-95/99, Khalil and others [2001] ECR 1-7413 (interpreting restrictively Regulation 1408/71, on social security, in a case involving stateless persons and refugees; see my note “Khalil e.a.: les réfugiés et les apatrides face au droit communautaire”, Cahiers de droit européen, 2002, p. 501); Case C-327/02, Panayotova [2004] 1-11055 (interpreting restrictively the establishment provisions of the Europe Agreements, against the Opinion of Advocate General Maduro); Case 109/01, Akrich [2003] 1-9607 (implicitly overruling C-370/90, Singh [1992] ECR I-4265, which favoured third-country nationals married to Community nationals).Google Scholar

39 See, for example, C-60/00, Carpenter [2002] 1-6279 (interpreting Community law as to prevent the deportation of the Philippine wife of a European citizen; on this judgment, see S. Acierno, “Fundamental Rights and the Limits of the Community Legal Order, European Law Review, 2003, p. 399); C-200/02, Zhu and Chen [2004] I-9925 (protecting the rights of the third-country parents to stay with their child, who is a European citizen).Google Scholar

40 With regard to free movement law, see Case C-416/00, Morellato [2003] I-9343 (applying Keck in a very dubious manner) and Case C-71/02, Karner [2004] I-3025 (declaring that there is no restriction and yet providing guidance to the national court on Community fundamental rights outside of the scope of Community law). With regard to competition law, see Case C-2/01 P, BAI and Commission v Bayer [2004] 1–23 (a judgment rendered on appeal that did not really clarify or consistently develop the notion of agreement within the meaning of Article 81 EC nor resolve the contradictions among chambers of the Court of First Instance in Case T-41/96, Bayer v Commission [2000] ECR 11-3383 and Joined Cases T-123/96 and T-143/96, Volkswagen v Commission [1999] ECR 11-3663).Google Scholar

41 On the importance of economic law for the constitutional law of the European Union, see my book cited in note 1, Pp. 63 to 103.Google Scholar

42 Case C-256/01 Allonby [2004] ECR 1-873. See also Case C-320/00, Lawrence and others [2002] 1-7325; and Case C-191/03, McKenna, judgment of 8 September 2005, not yet reported (also interpreting restrictively Article 141 EC).Google Scholar

43 Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677; Case T-177701, Jégo-Quéré/Commission [2002] ECR 11-2365.Google Scholar

44 Ibid. (Unión de Pequeños Agricultores), paragraph 45: “While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force.”Google Scholar

45 See Article III-365(4) of the Treaty establishing a Constitution for Europe.Google Scholar

46 Case C-160/93, Eurojust, judgment of 15 March 2005 (not yet reported; see the Opinion of Advocate General Maduro, which was not followed by the Court).Google Scholar

47 See Article 111-365(1) of the Treaty establishing a Constitution for Europe.Google Scholar

48 See Case 105/03, Pupino, judgment of 16 June 2005, not yet reported (an important development concerning Title VI of the EU Treaty) and Case C-176/03, Commission v Council, judgment of 13 September 2005, not yet reported (annulling a framework decision adopted under Title VI of the EU Treaty because it should have been adopted pursuant to the EC Treaty).Google Scholar

49 See Article 11ter of the Rules of Procedure of the Court.Google Scholar

50 By “poor” or “thin” jurisprudence I refer to those judgments in preliminary cases in which the answer and reasoning of the Court are so scant that the case is almost left undecided and the Community law provision is given a vague interpretation. Judgments on appeal may also be “thin” or “poor” as a result of the Court's formalistic approach to its review of judgments of the Court of First Instance. These judgments may reflect the need to accommodate a great number of opinions within the Court. Diluting the normative content of judgments, more judges may agree with them. But this may serve justice badly, and national judges may no longer use the preliminary rulings procedure when they should, for they will not want to wait two years or more to receive an answer that does not get them closer to the solution than they were when they referred the preliminary question. On these issues, see my article “De la cuestión prejudicial a la casación europea: Reflexiones sobre la eficacia y la uniformidad del Derecho de la Unión”, Revista Española de Derecho Europeo, 2005, p. 35.Google Scholar

51 I use “tame” in the fourth sense of the Shorter OED: “Lacking animation, force or effectiveness; having no striking features; uninspiring, insipid, dull.” For “packing”, reminiscent of a famous episode in US constitutional law, see the fourth definition of the Shorter OED: “Select or make up (a jury, deliberative body, etc.) in such as way as to secure a biased decision or further a particular end.”Google Scholar

52 See A. Moravcsik, “The European Constitutional Compromise and the Neofunctionalist Legacy”, Journal of European Public Policy, 2005, p. 349, at p. 363: “the ECJ — a rare area in which neofunctional claims have consistently been validated empirically.” On this issue, see G. de Burca, “Rethinking Law in Neofunctionalist Theory”, Journal of European Public Policy, 2005, p. 310.Google Scholar

53 Rather than a remedy to these deficiencies, Kobler (Case C-224/01 [2003] I-10239), which confirmed the principle of State liability for decisions of national courts of last resort in manifest breach of Community law, seems to me a reflection of the deep crisis affecting the Community judicial system. For a detailed analysis and a “utopian” proposal to resolve them introducing a “European appeal” as a complement to preliminary references, see my article cited in note 50.Google Scholar

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