The Pathos of Politics (109) European Court of Justice

European Court of Justice

The European Court of Justice (ECJ) was established in 1952 by the Treaty of Paris (1951) which birthed the European Coal and Steel Community. The ECJ was legally indispensable but practically incidental at the time.

The founding of the European Economic Community (EEC) in 1957 via the Treaty of Rome carried the Court of Justice with it. The treaty was vague about the purview of the court: stating hopefully that “the law is observed” in applying the treaty.

Much like John Marshall’s pathbreaking American supreme court, the Court of Justice carved its authority through a series of decisions: defining its power by what it could get away with. The ECJ moved cautiously, but steadily, to make its case law supreme within the European Union.

In a seminal 1963 decision, the ECJ ruled that the 1957 Rome Treaty instituted a new legal order for its members not governed by international law; in effect, the court established that the EU would have its own internal system of law. The key question was whether a member state could retaliate in kind if it was injured by another member violating the Rome Treaty. Under international law, this was permissible. If the EU treaty were simply among sovereign states, a member could strike back. Instead, the court ruled that one member could not retaliate against another but must instead seek relief through the Union’s institutions. The ruling transformed the Treaty of Rome from a mere treaty into a constitution. Furthering that judgment, the Court of Justice ruled the next year (1964) that member states had transferred their sovereign rights to the EU, and that Union law could not be overridden by a nation.

Contemporaneously, the ECJ expanded its mandate by giving individuals and corporations in member states the right to bring cases to it. EU citizens could sue their own governments in the Court of Justice.

Most cases in the court have involved trade regulations. The EU was, after all, intended primarily to enforce free trade within its borders.

The most dramatic developments of case law by the Court of Justice have been in individual rights. This owes to omission in the Treaty of Rome to specify civil rights. The few rights mentioned were economic, such as the free movement of capital and the right of collective bargaining for labor.

Some of these cases have gone deeply into what would be considered the independent responsibilities of member states. ~ Phillips Shivley

As is common with courts expanding their powers, the ECJ followed a strategy of choosing rather inconsequential cases in which neither side could easily protest the outcome. Court self-empowerment slips through, only finding its expression in a later case, with precedent already established.

A basic potential problem for the ECJ has been enforcing its decisions. As the court has no effective power, the ECJ’s authority could never have developed if member states did not heed the court’s decisions.

The Court of Justice entitling itself through accretion of case law was accepted because it was seen as a constructive force, filling in gaps from vagueness in treaty provisions. The alternative would be chaos leading to dissolution, which no member state wants.

As such, there has been a remarkable record of compliance with Court of Justice rulings, with a few exceptions. In an exemplary instance, France defied a court order to stop restricting mutton imports for a couple of years, fearing domestic protests by farmers.

In general, states have followed ECJ decisions. Heeding Court of Justice rulings has, in time, solidified the court’s power, rooting compliance in habit and expectation.