European law has an increasing influence on national legislation provoking the ire of Eurosceptics. It is the Court of Justice, based in Luxembourg, that has been given the delicate responsibility to ensure respect working with the national judges. Its case law has introduced fundamental principles into the workings of the European Union. A new work (1) by Melchior Wathelet, Assitant public prosecutor at the Court, itemizes the architecture of the court system very specific to the European Union.
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Created in 1952, the Court of justice is the judicial authority in the European Union (EU). It controls the legality of the acts of the European institutions and ensures respect for European law by the Member States. On the application of national courts, its mission also includes interpreting this law to ensure consistent application. These applications for interpretation are the subject of preliminary rulings that have been referred by national judges when they have doubts on how to apply a European standard.
The new work published in the collection of the Faculty of Law at the University of Liège offers an in-depth description of how the Court of Justice functions and the actions that can be brought before it. The principal author, Melchior Wathelet, professor at the University of Liège, is one of the nine advocates general at the Court of Justice, which also has 28 judges (one per Member State). He explains from the very outset that the application of the law of the EU relies first and foremost on national courts and tribunals, to avoid the congestion of the Court. “The genius of the European system is that the first court of European Law is the court at Liège, Athens or Lisbon, by applying the case law from the Court of Justice that develops year after year. This case law is well known by judges, even in the newer countries of the EU, because the Roman, Bulgarian or Cypriot judges have already integrated the old case law of the Court.”
The Court decides on the supremacy and the direct effect of European law
The case law from the Court of Justice has introduced a few fundamental principles into the functioning of the European Union. Thus, in 1963 in the Van Gend en Loos decision, it proclaimed the direct effect of European rights, that is, the rights of each litigant when involved in a dispute with his or her State or against another natural or legal person. While the Treaty stated very clearly that customs duties were prohibited between Member States, the Van Gend en Loos business was asked to pay such duties when crossing the Belgian/Dutch border. Clearly without contesting the existence of the text, the Netherlands argued that the text of this Treaty was nothing more than the equivalent of an agreement between the States themselves and it did not create obligations vis-à-vis citizens or businesses. This denial of the direct effect was the rule in classical international law but the Court of Justice held that because of the specificity of the new European legal order, of the creation of a new community based on the rule of law, the direct effect had become the rule and not the exception otherwise the system would fall apart.
In the following year, in the 1964 Costa v. Enel ruling, the Court established the supremacy of European law over the internal laws of Member States. It was thus necessary to wait for a judicial decision to have the superiority of international law over national law recognised. Surprising? “The supremacy of European law over national law is not automatic while it should be the case,” Melchior Wathelet notes. “The States are very particular legal beings. They do not have the same legal conception of the respect of rights and commitments as that which they impose on their citizens. In law, generally, it is not the wish to introduce postative clauses in contracts. The tenant of a property may not, for example, specify in a contract that he’ll pay the rent “if he wants to”. In international law, by contrast, when a State signs a treaty with others, it considers that if one of its national laws were to subsequently contravene the treaty, it would take priority in their relations. This strange situation is unique to international law, and one of the innovations of the Court of Justice is its statement in 1964 that, in the European Community, this sort of rule cannot be accepted. The Community may only function if the whole world recognises the supremacy of the commonly accepted rule. There were reservations on the part of the States and some supreme Courts in the face of this supremacy, but it is now accepted.”
