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At national level, public law operates in the framework of a working democracy. This is not the case in the EU where the institutional environment of the legal order is not securely embedded. The Community has never become a state, though it does possess some statal characteristics, nor have the Member States been able to decide whether they are moving towards or away from federation or whether the ultimate destination of Europe is "union" or, as this author prefers, "community" 59. The institutional structure is in a state of flux, revolving around inter-governmental conferences at which the Treaties undergo an irregular process of incremental change. More important, the structure of the Community fails properly to mirror the democratic beliefs and cultures which characterise the institutions of the Member States. It could be said to profess democracy without being democratic.
Although the fragility of the democratic structure and political institutions can today be seen as reflecting on the legitimacy of the EC legal order 60, at first the actual consequence for the Court of Justice was an unusual degree of autonomy. In contrast to national judicial organs, the ECJ became accustomed to operating in a political vacuum, secure from institutional competition and largely insulated from public opinion. A tight epistemic community of court, legal services and commentators 61 helped to foster easy acceptance of the ECJ as constitution-maker 62 - hardly a late twentieth-century conception - with little reflection as to whether any mandate for such a role existed.
Even if it was not born into an established constitutional culture, the infant legal order was quick to develop one. At one and the same time the Court was engaged in manufacturing for itself a constitutional jurisdiction, transforming the Treaties into a Community constitution, concretising the rules of the new legal order and legitimating each in terms of the other 63. Integrationism - "a genetic code transmitted to the Court of Justice by the founding fathers 64" - emerged as a central feature of its mindset, while concern for "top down" reception of the infant Community legal order promoted the doctrine of supremacy.
A significant step in the evolution of a constitutional culture was the
conceptualisation of the Treaties as the "basic constitutional charter" of a
"Community based on the rule of law" 65 - at best a contestable claim.
The plural
construction of the Community was less often noted, nor did the Court's
confident judgements tend to reflect uncertainty surrounding the ultimate
constitutional destination. For Member States and national jurisdictions, the
effect was restrictive and exclusive 66:
[B]y declaring the supremacy of Community law on the basis of a teleological reading of the Treaties and without reference to the constitutions of the Member States, the European Court saw the question of the scope of the competence of this new legal order as one which could be answered exclusively by reference to the Treaties, of which it was the sole, authoritative interpreter...
Assuming that the Treaties are accepted to be constitutional in character 67, then its origins have led to an unusually one-sided constitution. At its heart we find the ideology of market crucial to the conception, first of the common market, and later of the European Economic Community which supplanted it. As Seidel puts it, it is 68:
The Treaty [which] obligates Member States to ensure their economies are organised and run in accordance with the principles of the market and competition.
The move to constitutionalise the Treaties has thus been driven equally by the desire to promote deeper integration; to entrench economic values at constitutional level, thus rendering them incontrovertible; and by a wish to legitimate free market economic doctrine as a value of "constitutional" rank. In this the influence of German ordo-liberal doctrine has been very marked 69. As John Gray remarks 70:
The late-twentieth-century free market experiment is an attempt to legitimate through democratic institutions severe limits on the scope and content of democratic control over economic life.
What opponents fear is the entrenchment of a political credo at a level beyond political reach. Hostility thus extends beyond the substance to procedure, here the claims of constitutionality and of legal supremacy.
Buttressing the economic constitution stand the "four freedoms", which possess for some the mantra and status of the civic and political rights often found in constitutional bills of rights. The early priority given to economic, commercial and property rights was hardly surprising, but their dominance helped to point up the absence of formal protection for civil and political rights in the EC "constitution". Failure to recognise human rights more widely emerged as a significant ground of conflict with the German Constitutional Court 71. It also created the potential for significant argument over values, when economic rights were seen as taking precedence over other rights valued at least as highly by national communities. Value pluralism and national identity were moving on to the legal agenda (Below, Section IV).
The foundations of the EC legal order rest in the Treaty, more especially the rule of law ideal embedded in the Preamble. This Treaty status of "high constitutional principle" provides a theoretical legitimation for the whole judge-made construction of EC law; in addition, EC Art 220 (ex 164) establishes the Court as guardian of the Treaty, its duty being to see the law observed.
In line with the requirements and liberal ideology of the EC constitutional culture, the rule of law principle early acquired an unashamedly formalist and procedural interpretation - the classic liberal model. Cotterell reminds us of the cultural link between this "thin" interpretation of the rule of law principle and capitalist societies 72, in which category the Community stands. The "thin" version of the rule of law requires a legal order with fixed and stable general principles; formal rights of access to courts for the resolution of disputes are also necessary. Both have been provided and flourished.
A further tenet of the formal rule of law principle is the doctrine of equality before the law. Here we have the kernel of the "level playing field" of EC legal rights. Equality as a facet of the rule of law legitimates the EC legal order. The Court itself has argued that 73:
The success of Community law in embedding itself so thoroughly in the legal life of the Member States is due to its having been perceived, interpreted and applied by the nationals, the administrations and the courts and tribunals of all the Member States as a uniform body of rules upon which individuals may rely in their national courts.
Formal equality pays no heed to outcomes. No attempt need be made to clothe the bare bones of the concept in reality. Friedman's wider, socio-legal definition of law 74 and his admonition to consider the use made of the legal system and the purposes for which people turn to lawyers can be ignored. Not only does the formal version of the rule of law flourish in capitalist societies but it is particularly attractive to economic actors. Because of 75:
the stability and predictability that legal-political, as opposed to purely political, institutions have to offer... Legalization, and thus judicialization, fits an 'economic community' particularly well.
Galanter makes the same point when he observes how the dominance of American multi-national commercial concerns has created a pressure to judicialisation in Europe 76.
Ami Barav lists 77 as fundamental doctrines of the EC legal order: supremacy, irreversibility, direct applicability and the binding force of EC law, all of which are aspects of legal supremacy. Supremacy is the fundamental doctrine of EC law, essential to integration. Supremacy is buttressed by the ingenious use made by the ECJ of the simple obligation imposed on Member States by EC Art 10 (ex 5) "to take all appropriate measures" to fulfil their Treaty obligations. This has been transmuted into a novel legal principle of fidelity 78. A "command and control" idea of law is being set in place and with it a connection between the rule of law and the power of command (sovereignty).
Command is carried into the doctrine of "effectiveness", another notion to feature centrally in the case law of the ECJ. The link between the principles is spelt out in an extraordinary extra-judicial statement by the ECJ 79:
Any weakening, even if only potential, of the uniform application and interpretation of Community law throughout the Union would be liable to give rise to distortions of competition and discrimination between economic operators, thus jeopardising equality of opportunity between economic operators and consequently the proper functioning of the internal market.
An "effective" judicial system starts with the articulation of legal principle. Principles must next be transposed by national courts. In building the new legal order, the ECJ borrowed heavily from the conceptual vocabulary of national legal systems: e.g., from France, the concept of principes généraux with constitutional weight; from Germany, the proportionality principle; from England the audi alteram partem principle; and so on 80. In borrowing, the ECJ looked naturally for solutions 81
most compatible with the legal order of Community law and that most closely correspond to the functional capacity and the goals of the Community.
Awkward problems of "horizontal divergence" were then created when a principle borrowed from a national system or compounded of elements from several was re-introduced in a reformulation devised by the ECJ. The impact of the "superior" legal order on national legal systems might then be detrimental and contested. The contribution of national legal systems to EC law has been by no means equal. Some national systems may thus find greater difficulty in adaptation than others. Though France had a head-start, the Six came from the same or similar legal families. Diversity increased sharply in 1972, when the accession of the UK and Ireland for the first time introduced the common law family and the entry of Denmark brought in the Scandinavian family. If Pierre Legrand is right 82, the mindset of common law judges would introduce a particular problem. That new Member States are deemed to accept on accession an acquis created before their arrival leads to further difficulties. Heavy use of preliminary reference procedure means that differential patterns of reference 83 may influence a national contribution. To attempt "convergence" by judicial process is, in short, always a complex and essentially haphazard process of "approximation". It satisfies the formal equality requirement of the rule of law principle but cannot guarantee real equality or effectiveness.
Because effectiveness does not stop with transposition; implementation is also necessary, creating a need for enforceable remedies. The case begins to be made for a Community-wide system of judicial remedies, obtainable from all national courts. In the well-known case of Factortame, where the applicants applied for interim relief to English courts, the ECJ argued that 84:
[T]he full effectiveness of Community law would be... impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgement to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.
In the controversial Francovich case, the Court justified the creation of a new remedy in damages, unauthorised by the Treaties, in identical language 85:
The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.
But no system of judicial remedies is complete in itself. Neither Court nor Commission is 86:
sufficient alone to ensure the effectiveness of Community law in the broader social sense, in particular in so far as it entails the commitment of citizens, popular participation and political legitimacy. For this purpose, it may be suggested, other institutions, processes, tools and techniques are also required.
In other words, implementation depends on national administrative authorities, a dependence likely, as argued in an earlier section, to produce very variable outcomes.
59 J. Weiler, "The Community System: The Dual Character of Supranationalism" (1981) 1 Yearbook of European Law 267.
60 D. Wincott, "The Role of Law or the Rule of the Court of Justice?" (1995) 2 Journal of European Public Policy 583.
61 The phrase is borrowed from M. Shapiro, "Comparative Law and Comparative Politics" (1980) 53 S. California Law Review 537, 538. For the make up, see H. Schepel and R. Wesseling, "The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe" (1997) 3 European Law Journal 165.
62 F. Mancini, "The Making of a Constitution for Europe" (1989) 26 Common Market Law Review 595.
63 R. Dehousse, The European Court of Justice, Macmillan, 1998.
64 F. Mancini and D. Keeling, "Democracy and the European Court of Justice" (1994) 57 Modern Law Review 175, 186. On the role of the Court in integration, see J. Weiler, "A Quiet Revolution - The European Court of Justice and its Interlocutors" (1994) Comparative Political Studies 510.
65 R.Cooter and D. Schmidtchen, "Introduction", in Special Issue: Conference on the Constitutional Law and Economics of the European Union (1996) 16 International Review of Law and Economics 277.
66 I. Maher, "Community Law in the National Legal Order: A Systems Analysis" (1998) 36 Journal of Common Market Studies 217, 244. See also B. de Witte, "The Nature of the Legal Order", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford, 1999, pp. 196-8.
67 Further discussed by T. Schilling, "The Autonomy of the Community Legal Order: An Analysis of Possible Foundations" (1996) 37 Harvard International Law Journal 389; P. Eleftheriadis, "Aspects of European Constitutionalism" (1996) 21 European Law Review 32; K. Armstrong, "Theorizing the Legal Dimension of European Integration" (1998) 36 Journal of Common Market Studies 155, 161; B. de Witte, "International Agreement or European Constitution?", in J. Winter et al (eds), Reforming the Treaty on European Union - The Legal Debate, Kluwer Law Int, 1996.
68 M. Seidel, "Constitutional Aspects of the Economic and Monetary Union", in F. Snyder (ed), Constitutional Dimensions of European Economic Integration, Kluwer, 1996, p. 476 (emphasis mine). See also M. Streit and W. Mussler, "The Economic Constitution of the European Community: "From Rome to Maastricht"", ibid.
69 D. Chalmers, "The Single Market: From Prima Donna to Journeyman", in J. Shaw and G. More (eds) New Legal Dynamics of European Union, Clarendon Press, 1995, pp.56-66. And see E-J. von Mestmacker, "On the Legitimacy of European Law" (1994) 58 RabelsZ 617.
70 J. Gray, False Dawn, The Delusions of Global Capitalism, Granta Books, 1998, p. 9.
71 J. Kokott, "Report on Germany", in A-M. Slaughter, A. Stone Sweet, J. Weiler (eds), The European Courts and National Courts - Doctrine and Jurisprudence, Hart Publishing, 1998, pp. 81-102.
72 R. Cotterell, Law's Community. Legal Theory in Sociological Perspective, Clarendon, 1995, pp. 164-177, discussing F. Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society, Berg, 1986. This is not a novel argument of course.
73 Report of the Court of Justice (and Court of First Instance) on Certain Aspects of the Application of the Treaty on European Union, Luxembourg, May 1995, para.4.
74 Above note 38.
75 M. Shapiro, "The European Court of Justice", in P. Craig and G. de Burca, The Evolution of EU Law, Oxford, 1999, pp. 328, 330. See also H. Schermers, "The Role of the European Court of Justice in the Free Movement of Goods", in T. Sandalow and E. Stein, Courts and Free Markets, Clarendon Press, 1982.
76 M. Galanter, "Predators and Parasites", above note 59.
77 A. Barav, "Ominpotent Courts", in D. Curtin and T. Heukels (eds), Institutional Dynamics of European Integration, Martinus Nijhoff, 1994, vol II, p. 268. See similarly, P. Pescatore, "Aspects judiciaires de l'acquis communautaire" (1981) 17 Revue trimestrielle de droit europeen 617, 649.
78 See M. Blanquet, "Acceptation et Consecration d'un Concept Communautaire: La Fidelite Communautaire", in S. Poillot-Peruzzetto (ed), Vers une culture juridique europeenne?, Montchrestien, 1998.
79 The Future of the Judicial System of the European Union, (Proposals and Reflections), 1999.
80 T. Koopmans, "The birth of European law at the cross-roads of legal traditions" (1991) American Journal of Comparative Law 493. Emergent general principles of EC law are explored more fully by J. Schwarze, European Administrative Law, Sweet and Maxwell, 1992 (English edition) and J. Schwarze (ed.) Administrative Law under European Influence, Sweet & Maxwell/Nomos, 1996.
81 J. Schwarze, "European Administrative Law", p. 17.
82 Above, note 30.
83 For statistics, see A. Stone Sweet and T. Brunell, "The European Courts and National Courts: A Statistical Analysis of Preliminary References, 1961-95" (1998) 5 Journal of European Public Policy 66.
84 Case C213/89 R v Secretary of State for Transport ex p Factortame (No 3) [1990] ECR I-2433.
85 Joined Cases 6, 9/90 Francovich and Bonafaci v Italy [1991] ECR I-5357.
86 F. Snyder, "The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques" (1993) 56 Modern Law Review 19, 52.