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©Copyright: J.W.R. Reed, 1995.
I. A Separation of Powers?
II.
Political Review of the Judicial Process?
III.
Ratification by legislative silence?
IV. The
determinacy of Political and Economic Dynamics of Necessity
V. Uniform Application as Ultimate Economic Necessity
VI. New Legitimacy?
The principle of separate powers is so engrained into the legal consciousness of the Common Lawyer, that its dual fictions of 'pure' doctrines of Law and Political Science can be rendered dogmatic. Even in the recent debate over subsidiarity, there has been an apparent impatience to determine its identity either as a legal norm operative in the adjudicative process [ex post facto] or as a political principle determinative of problems of governance [ex ante] [1]. The dual functions of such European Union organs as the Commission suggest that the hermetic seal between powers, so beloved of generations of English Constitutional jurists, has never been a supreme political good. In England, the separation of powers is at last being submitted to more exacting scrutiny, prompted in part by realization that the British jurisdictions now form an integral part of a larger, more modern legal order, the European Union.
In his study, 'Judicial Discretion' [2], Aharon Barak proclaims the multidimensional quality of democracy, which represents both government on majoritarian principles and the realization of certain fundamental values. Where there is no constitution, and by implication where the constitution establishing the 'delicate balance between majority rule and certain fundamental values' [3] is open-textured, then it is the Court which must guarantee that balance. The judge who seeks to restrain the majority, and who 'adopts policy on the basis of fundamental values, makes the democracy faithful to itself'. The model that Barak evolves is one of mutual policing, whereby the Court enforces legislative respect for the fundamental democratic values, while the Legislature retains the ability to re-establish the balance. In Barak's words, the Political State has always the final authority to challenge the judicial determination of the 'borderline...between the power of the majority and its self-restraint', to 'move it into the zone that it believes appropriate' [4].
Thus both Judiciary and Legislature, in a relationship of mutual supervision, have an important contribution to the process of democratic governance, through their respective independence and lack thereof. Where the Political State is freed from judicial constraint and unburdened with a culture of self-restraint, the totalitarian potential of the resulting legal system is well evidenced in history. The regime may initially claim 'democratic' legitimacy, but before long it needs refer to a more abstact and diffuse majoritarian norm, whether that be Robespierre's 'popular will', Lenin's 'defence of the Proletariat', or Hitler's allegiance to the historic greatness of the 'Fatherland'. When revolutionary frenzy has finally burnt itself out, legitimacy rests on a might that defies democracy in both Barak's dimensions.
Judicial contribution to the overall normative system is therefore both imperative and inevitable, for example in filling gaps left in rules handed down by the Legislature by reference to its principles. Moreover, in examining the constitutional text as one which both asserts and restrains rule of the majority, and in defending those constitutional values which legitimise the polity, the Court must give them content and interpretatively shape their substance. This is especially the case where the text allocating sovereignty and competences within the polity is open-textured and incomprehensive in its normative structure [5].
For centuries English courts have struggled to avoid the exercise of discretionary powers of which they have been made the 'unenthusiastic recipients' [6]. Sir Roger Ormrod has given an entertaining account of the ways in which successive judges have rushed to clothe naked judicial discretions. In the words of Lord Penzance, a discretion unfettered 'invites public criticism and shakes confidence in the justice of the tribunal' [7]; the judge would be sucked inextricably into the realm of moral and political values. Ormrod notes wryly the English predilection for 'the fantasy of the judge as a detached observer, reaching inevitably right conclusions by processes of impeccable logic, in conformity with the decisions of others' [8]. It is thus unsurprising that the same English courts accepted so wholeheartedly Diceyan notions of the unfettered sovereignty of Parliament.
Since the ruling of the House of Lords in Factortame [9], however, there has been a rude awakening to the existence of a new power of judicial review, for compatibility with Community Law, of legislation on the 'Parliamentary roll'. Even within the United Kingdom, acknowledgement is following that in other Common Law jurisdictions, in Canada, Israel and most recently South Africa, that unfettered Parliamentary sovereignty, as historically recognised by the Courts, is an abnegation of judicial responsibility. Put simply, we do not feel confident in the ability of the legislative branch of national government to restrain itself from violating the fundamental values of the European Communities. Within Europe there is no political culture of self-restraint by the agencies of the national majorities before such values. Further, the damage that could be inflicted upon the economic stucture of the Union by such violation requires extensive judicial protection of those values.
However, to address the concerns of the intellectual progeny of Lord Penzance, we need to recultivate a sense that, even where English Parliamentary legislation can be subject to judicial review, the ultimate authority rests in hands political. Given the open-textured nature of the Treaties, this will only be achieved through the development of a meaningful and actual dialogue between Legislature and Court. Just as legal acts of the Union's political institutions are subject to judicial review, so such evaluative decisions as the Court is obliged to take should be perceived to have been adopted or rejected in an an ongoing process of political review. The more animated this dialogue is allowed to become, the closer the European polity be be to achieving Barak's model of ongoing mutual supervision.
The history of European integration can be viewed as a process of the constitutionalization of the Treaties of the Communities. From its very inception and ratification the Treaty of Rome was undeniably a political act, constitutive of the allocation of sovereign powers within the Economic Community, based upon assumptions that were unambiguously monist in inspiration. In his piece, 'Transformation of Europe' [10], Professor Weiler has applied Hirshman's model of 'exit and voice' [11] to the development of the Communities, citing this process of constitutionalization as one of the means by which 'selective exit' has gradually been foreclosed. He suggests that the federalisation of the Union has occurred through the doctrines of direct effect, supremacy, implied powers and human rights by which the Court has 'hardened' a treaty into the 'constitutional charter' [12] of the New Legal Order. In establishing principles of legitimacy, means of interpretation of the Treaty norms, the framers provided mechanisms for the constitutional development of the polity where necessary for the survival of its integrative project. The stasis of a public international law treaty regime had been explicitly rejected for its continuing reaffirmation of the undivided sovereignty of the Contracting States.
Evidence of such constitutionalization might suggest that ultimate legal authority rests with the Courts. Such crude anatomy, however, is at best theoretical and myopic in its focus on individual legislative acts, and at worst blind to the political and economic context in which the Court of Justice performs its judicial functions. That Kelsenian theory locates the basic norm in political fact [13] indicates that power should reside ultimately where there is political accountability, that is in the Legislature.
Yet this does not deny the legitimacy of a significant power of judicial challenge. For it is by rendering the assertion of final political authority daunting, even forbidding, that a constitutional order impresses upon its political actors the importance of introspection and self-justification to their respective constituencies. The disincentive is both instigated in the requirement of an explicit act of political review and conditioned by the procedural requirements laid down for such revocatory legislation. On one hand, the Court should resist temptation to fawn to majority opinion. On the other hand, and looking to the political environment (itself once removed from pure majority popular opinion by the 'inefficiencies' of political representation), there should be significant disincentives to political revision of judicial decisions. By this means Barak's reliance on political self-restraint is much reduced.
The emphasis placed by Barak upon the ultimate authority of the Political State in no way militates against the Courts' protection of a polity's fundamental values. Indeed, any activist judicial discretion is justified precisely where there is authorisation implied by a(n unexercised) legislative power of repeal. For example, if the Court might be criticized for awarding itself 'kompetenz-kompetenz' in defining the parameters of its powers under Article 173 [14], it could surely argue that such Communitarian constitutional jurisprudence merely amplifies and never contradicts the language of the Treaty, and that it has received the acquiescence of the political sovereign.
In other words the Court's ability to derive principle from the 'basic constitutional charter' [15] is founded upon a recognition of the final sovereignty of the legislative Community organs when acting in conformity with the procedure required for Treaty amendment. This relationship was recently conveyed by Barak in a succint linguistic distinction; '[t]he people are sovereign, and the Basic Laws are supreme' [16]. Justice Sussman of the Israeli Supreme Court has suggested a further authorisation for judicial activism in political orders where a powerful Legislature is not tightly constrained by a formal written constitution [17]. Yet the strength of that Legislature is surely consonant with a greater implied power of repeal.
There are substantial difficulties in applying this notion of implied legitimisation through the existence of a legislative power of repeal. On a theoretical level, even Barak acknowledges that there might be a problem of onus; 'the claim is that the court should not determine policy in the first place and thereby impose on the legislature the obligation to change the court's determination' [18]. It should be observed, however, that claims of implied legitimisation are often strongest where the Legislature has visited normative jurisprudence in order to change one rule, but has left another untouched, as shall be observed of the American 'acquiescence doctrine'. On a practical level, and looking now to the European Communities, we see that the political structures have faced difficulties discharging that onus. At least until the advent of majority voting in the Cooperation Procedure institued under the Single European Act (SEA 1986), the Luxembourg Accords' requirement of unanimous support for any legislative act has rendered repeal of the judicially-determined legal norm largely theoretical.
Such hierarchical models can, however, prove misleading. Above all they suffer from the limitations of a static enumeration of respective competences which ignores the systemic-dynamic of any system of governance. More sophisticated legal-historical analysis is now beginning to focus on the continuum of power relationships between the Political State, combining Executive and Legislative, and the Judicial branch of Government. The separation of powers requires a degree of mutual supervision by the various organs of government, without which Barak foresees a 'dictatorship of each branch within its own confines' [19].
While much has been written on the judicial review of acts of the Communitarian institutions, directly and indirectly under Articles 173 and 177b respectively, the subject of political review of the Luxembourgeois judiciary is largely unexplored. The mutuality of inter-institutional supervision is essential to an understanding of its dynamic. In a balanced system of governance, the power of the Court is balanced with ongoing political supervision of its jurisprudence, looking to prevent arbitrariness or straying from the 'zone of legitimacy'. Our new and dynamic model of Legislative and Judicial interaction is thus also based upon some notion of dialogue. The Political Institutions scrutinise the jurisprudence of the Court of Justice and adapt to the new legislative conditions brought about by the Court's rulings. The Court subjects to judicial review the legislative achievement of the political institutions, according to the constitutional norms of the Treaty as amended under Article 236.
In some Common Law jurisdictions, there is a long history of legislative reaction, both positive and negative, to the judicial decisions of the Supreme Court. We might take the example of Israeli constitutionalization [20]. In Israel the mutual supervision between court and Knesset has at times been acrimonious, as the last branch of Government to be created, the Judiciary, struggled for legitimacy. Pnina Lahav has observed [21] that during the first years of the State's existence British Mandate majoritarian notions of Parliamentary sovereignty prevailed over theories of supreme constitutional democracy. The Legislature made no secret of its belief in itself as the final authority in law. For example, when the Court in Bergman [22] declared an Act of the Knesset void for violation of a Basic Law, recognizing the latter's supremacy, the Legislature responded with a legislative attempt to immunize earlier statutes from judicial review [23].
After the political deadlock of the 1980's, where the balance of the power was in the hands of a vociferous religious minority opposed to the passage of further Basic Laws, it was clear that any constitutional normative development would have to be effected by the Court. To this effect, the Knesset passed two broadly-defined and initially uncontroversial Basic Laws in 1992. Describing the new 'tools of justice' with which the Court would perform its 'task', Barak has remarked extra-judicially that 'the revolution is not one of content so much as one of force' [24]. Yet the legitimacy of the constitutional revolution was ensured by the shallowness of its entrenchment, requiring only a majority of the Knesset members to amend the new Basic Laws [25]. In other words, although there was an effective quorum requirement, it was one within the reach of any Government in power.
To take a recent example, the Supreme Court held obiter in Mitral [26] that the 'Basic Law: Freedom of Occupation - 1992' [27] would render the Government's refusal to authorize the private importation of non-kosher meat or any law passed to similar effect void for violation of the Basic Law [28], unless either it expressly overrode the Basic Law [29] or came within the limitation article [30]. The Knesset 's reaction to such use of the legislative 'tool' reflects a curious mixture of approval at the development or the judicial bill of rights, and of simultaneous Government concern to humor its religious bedfellows, who saw the Court's decision as championing 'freedom from religion'.
In particular, the 'Shas' party [31] awoke to the secularizing potential of such legislation and insisted on the insertion of an override provision, where legislation is explicitly declared to be 'valid despite the provisions of this Basic Law' [32]. At the same time, however, the Knesset limited the duration of any such overriding legislation to a maximum of four years, so that such 'exceptional' legislation, for example preventing non-kosher meat imports, would have to be periodically repassed. The Knesset, acting by majority, has made it very clear that it will not hesitate to return to the legislative drawing-board where judicial activism offends the political consensus of its own constitutional vision.
Within the Israeli and European legal orders we find a similarity of legal and political mechanisms. An example might be the request made by the Israeli Court in Shalit [33], sometimes called the case of 'Who is a Jew?'. The issue involved was intensely political, going to the heart of an old debate as to whether the religious authorities or the individual should determine the latter's national identity. The Court, confronted with a case involving a highly sensitive political question manifestly requiring legislative resolution, rightly exercised self-restraint and deferred to the maintenance of the separation of powers. Indeed, Chief Justice Agranat went so far as to write to the Government urging legislative intervention [34], before handing down the Court's decision. The European legal order has not yet been faced by such acute political crisis surrounding a matter before the Court, and we have yet to see a direct and public judicial appeal for legislative intervention. Yet there are instances in which it might be argued that the Court of Justice is signalling to the political institutions its belief that it is confronted with issues that could better be dealt with by the Commission and Council.
The most obvious case is that in which the Court is obliged to perform the double balancing test laid down in Cassis de Dijon [35] for justifying a facial obstacle to the free movement of goods (under Article 30 and the Dassonville principle [36]). Commentators have compared the ECJ's test to the American 'Rule of Reason' analysis applied for certain categories of alleged antitrust violation. Just as the US Antitrust Court weighs the restraint of trade and the Defendant's market significance against the legitimate objective claimed by the Defendant, so the Court of Justice weighs the restriction to Free Movement against the claimed exigencies of public policy. The second step is not strictly analogous [37], but in general terms the European Court decides whether the Member State's measure is proportionate to its purported policy objective, in a manner similar to that by which the Antitrust Court determines whether there exists a 'less restrictive alternative' that achieves the objective reasonably well.
The complexity of these tests and their entanglement with major issues of policy at both European and national level clearly suggests that the determinations of justified restriction of intra-Community trade are not ideally made by a chamber of judges in an adversarial hearing. The Court has displayed a certain nervous inclination to stand off when confronted with the purported defence of national cultural heritage [38]. The dicta in Recital 14 of Cassis de Dijon [39] that goods lawfully produced and marketed in one Member State should be permitted freely to move in other Member States, has ultimately proved flimsy in the fight against fragmentation. Such an approach would succeed in the absence of harmonization only where the legislation in the two Member States was functionally parallel. In seeking to persuade themselves of such functional parallelism, usually in application of the proportionality test [40], the judges were obliged to externalize a matter of social choice, and decide, for example, on appropriate levels of risk/paternalism. The resulting jurisprudence suggests that they were willing so to substitute their own judgement only when the risk was marginal [41]. A more glaring problem for the Court was that even when different national approaches are functionally parallel, a variance in standards can exist, where there are different possible approaches to the particular risk.
The Court was in a dilemma. Bound to apply the prohibition on non-tariff barriers in Article 30, but with an obscelete list of justified derogations in Article 36, and very little substantive harmonization legislation passed by the Commission and Council, the Court was forced into judicial activism. Yet from the outset, the Court of Justice signalled to the other institutions its dissatisfaction with its more political role. The very first requirement laid down in the Cassis de Dijon test [42] that the matter came under consideration '[i]n the absence of common rules relating to the production and marketing of alcohol' can be read on two levels.
As a substantive legal requirement, addressed to the Member State, it is a simple reminder of the basic jurisdictional principles of exclusive competence and preemption. However, from the broader perspective of our constitutional analysis, it is plain that even in establishing this jurisprudence it was confronted by problems more appropriate for decision by the Legislature of the Communities. In other words, the Court was signalling to the Council and Commission that, while it was willing to explore the notions of functional parallelism later adopted in the legislative harmonizing strategy of the 1980's [43], the approximation of regulatory regimes was a supremely political issue. By this reading, when the Member States wrote Article 100a into the SEA 1986 in order to allow voting by qualified majority to further the achievement of the internal market, they finally accepted that the mechanisms of Article 189[b] provide a more appropriate forum for decisions regarding levels of public choice and social protection. The contentiousness of these highly political issues is hinted at by the Member States' attempts to re-establish their own control both through the Article 100a(4) derogation on grounds of 'major need', and in the specific exceptions insisted upon by the UK [44].
This narrative of the problems inherent to legislative harmonization has demonstrated the shortcomings of Barak's constitutional model of the separation of powers. While the Court of Justice could have restrained itself from judicial activism and from its straying into a political sphere, the results would have been disastrous for the Internal Market to which the Treaty ultimately aspires. Such self-restraint could have taken the form of a laissez faire acquiescence to any piece of Member State regulation, as long as the relevant authorities went to the minimal trouble of providing nominal justification under one of the Article 36 heads. The potential for abuse and fragmentation of the common market is manifest. Alternatively, the Court could have required conformity with the highest standards of paternalism in Europe, and its own particular choices as to how they should be achieved. But this would do little more than precipitate explosive political crisis in the Council. The more measured 'middle way' would require the Court to decide on political issues of social choice. Yet the judges adopted a further compromise, in rejecting the futility of 'self-restraint', while incorporating into their test a clear signal of their dissatisfaction at being obliged to effect it.
There is growing recognition, even in Britain, that political debate and review of the Court's role is both legitimate and constructive. Sir Patrick Neill, formerly Vice-Chancellor of Oxford University, recently warned us of the 'creeping intention of the power of the European Court' and is reported to have urged that this problem be tackled at the Intergovernmental Conference (IGC) of 1996 [45]. It is reported by the same source that the Home Secretary, Michael Howard, claimed 'a great deal of sympathy' for Neill's call for a reversal of the growing powers of the Court. Curiously, Sir Patrick supposes that the judicial activism of the ECJ has established it as a 'legislative body over which there is no control of higher authority' (emphasis added).
The processes of which Sir Patrick Neill appears ignorant are alternative means of legitimisation of judicial activism. Later we will examine service of the political and economic objectives articulated in the Treaty Preamble and in Article 2 as bestowing legitimacy on the Court's more radical jurisprudence. Yet our Israeli example has suggested a more powerful means of legitimisation, by political acceptance, whether explicit or implicit. Indeed, Neill's acceptance that the Political State, as represented by the IGC, has the power to revise the Court's jurisprudence, must suggest that the Council's failure thus far so to do implies a tacit endorsement of that jurisprudence.
The clearest form of endorsement by the Political State occurs when the Treaty is explicity amended to incorporate normative changes within the Court's jurisprudence. For example, Article 173 EC (and Article 146 Euratom) was amended at Maastricht to accord with recent ECJ rulings on the existence of rights of action for and against the European Parliament under that article. In Les Verts [46], the Court found that the principle of the rule of Law (Article 164) required that wherever a Community institution could pass acts with legal effects vis-à-vis third parties, those powers should be subject to judicial review under Article 173 [47]. Accordingly, that section was amended explicitly to include within the scope of judicial review 'acts of the European Parliament intended to produce legal effects vis-à-vis third parties'.
Likewise in the 'Chernobyl Regulation case' [48], the Court filled a procedural gap in the Treaty by ruling that 'an action for annulment brought by the Parliament against an act of the Council or the Commission is admissible provided that the action seeks only to safeguard its prerogatives...' [49]. Consequently the Council, in the Treaty on European Union, added a new paragraph to Article 173, establishing the Court's 'jurisdiction under the same conditions in actions brought by the European Parliament and the ECB for the purpose of protecting their prerogatives'.
That the Council in both cases adopted the Court's formulations in almost identical wording surely implies strong endorsement, and arguably prospective encouragement of the jurisprudence that will in future determine the boundaries of its distinctions. So fundamental were these decisions to the paradigmatic norms of the Rule of Law, the constitutionality of acts of legal effect, and the maintenance of the institutional balance of the Communities, that it was felt necessary to lift them from the reach of subsequent Courts and secondary E.U. legislation. Perhaps more importantly for this study, the apparent willingness of the European legislature to visit important areas of the Court's jurisprudence surely suggests that implied political review of judicial decisions should contribute to any systematic interpretative theory constructed for Community Law.
Whenever the ECJ makes a controversial decision, it does so under the shadow of Article 236. By that provision 'the Government of any Member State or the Commission may submit to the Council proposals for the amendment of this Treaty'. Although the Council must not only determine these amendments 'by common accord' after the convening of a conference, but also ensure ratification within the Member States, the proposal of such a conference would clearly embarrass the Court. The spectre of reversal could have a significant effect of delegitimization. Thus the difficulty of Treaty amendment under Article 236 does not detract from the persuasiveness of assertions that there exists a real power of political review. Indeed Barak's models of mutual supervision suggest that precisely where an important judgement has condemned the constitutional invalidity of a legislative act, greater deterrents should be established against the Legislature's simply 'fixing' the constitutional text.
The more real threat to the Court's jurisprudence, however, is clearly implied repeal by the legislative means to be found in Articles 189(a), 189(b) and 189(c). When Joxerramon Bengoetxea writes of the early constitutional rulings of the 1960's and early 1970's as being 'bold rulings which had an element of experimentation and testing-out of reactions from the environment of the Court' [50], we can presume that he refers to a reaction of political protest at a governmental level. Given the legislative procedures in existence since the SEA, repeal of the Court's jurisprudence is now a very real possibility. The Council's failure to repeal normative departures within that jurisprudence might therefore be read as political legitimization by legislative omission.
Evidence exists that the Court is aware of the significance of the implied political review of its jurisprudence, for example in the Court's insistence that the EEA Treaty could not guarantee its regime's normative consistency with Community Law [51]. Quite apart from the obvious distinction of the EEA's teloi and their economic necessities, the Court seemed particularly concerned with the institutional arrangements of the EEA and the impact these would have on the homogenity of a wider legal system. Arguably it is implicit in the Court's remarking that the Treaty 'provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up' [52] that the mechanisms for political review of and acquiescence to the legal acts of the EEA will be fundamentally different from those of the EU.
An alternative view, adopted by Rasmussen [53], assumes that judicial policy-making maintains its legitimacy as long as it remains within socially-acceptable boundaries, fixed by examining an assortment of the reaction of the Court's countervailing powers [54]. These negative policy-inputs include all the branches of Member States' government and the Council of Ministers. Yet Rasmussen still sees legislative reactions in terms of protest, and his attention is turned to its justification, citing the Court's isolation from socio-political fact, it lack of the techniques and methods for exerting a political role, and its use of fundamental principles intended only for political consumption.
His failure to define the mechanisms by which the 'countervailing powers' communicate their belief that the Court is ruling outside the boundaries of legitimacy suggests that he was unable fully to consider the revocatory mechanisms made possible by the recent Treaty amendments. More fundamentally, Professor Weiler has objected that Rasmussen's call for socio-political responsiveness on the Court's part would have the judges 'become themselves political opportunists following and serving popular and establishment sentiment and interests' [55]. The totalitarian evils of such judicial subservience and political whim-hanging should be evident from the more abstract constitutional analysis explored above. In the European context, the Court has long had to protect the Union's fundamental values, for example its commitment to a functioning internal market, from sectarian interests which can boast temporary political ascendance.
Rasmussen's principal criticism of the Court is that in its definition of the Member States' relationship with the Communities the ECJ accepted 'deep involvement in making choices between competing public policies for which the available sources of law did not offer...judicially applicable guidelines' [56]. If this is not insidious enough, he would have us believe that the Court is perpetuating a 'pernicious myth' that its teleological reasoning 'is a legal inevitability and not the outcome of a continuous policy process' [57]. For Rasmussen the primary audience of the ECJ is the national courts, to whose sense of 'persuasive legal argument and analysis' [58] the Court must appeal, by reference to the intention of the original framers of the Treaty. His analysis of the Court's tacit appeal to the political institutions of the Union and the National Governments, by reference to the economic and political exigencies of the present is kept distinct. This may be of political or historical interest, but is not seen to contribute to the development of any legal interpretative criterion.
The reason that Rasmussen can find mere scholarly interest in the reactions of the Court's political environment is his preoccupation with the negative political inputs. Fascinating they may be as evidence of constitutional dysfunction, of political or judicial transgression and failure to exercise appropriate self-restraint, often in exploiting the structural infirmities of the Communities; but as legal criteria to guide future jurisprudence of the Court of Justice they offer ready cannon-fodder for Weiler's howitzer [59]. How, for example, would the Court determine the relative significance of conflicting negative inputs, as where the Commission finds itself confronting the interests of a Member State, or the Danish pygmy the might of the German giant? Can a Court be expected to take judicial cognisance of such 'impressionistic data' as Rasmussen's 'oral tradition' of scholars and practitioners or general assessments of sociological impact? How are judges to anticipate ex ante the various political reactions to a particular ruling? In short Weiler averts us to the grave methodological dilemmas inherent to any assessment of the detriment caused to general acceptance by individual instances of rejection.
Weiler's critique finds less force, however, if we examine positive political inputs, whether by legislative enactment or ratification by acquiescence of judicial decisions, as a means of legitimization. Gone are the problems of assessing the comparative weights of different inputs - the legislative procedure incorporates just such relativization. 'Impressionistic' data is replaced by a simple binary response from the Legislative, acceptance or amendment/repeal, the latter providing an unequivocal means of dissent. The legal world is not expected to work with the social scientist's 'surveys' and statistical systematizations. Its actors are spared the agony of anticipation, and may rely on legitimization or abrogation ex post. Existing political and constitutional structures have been mobilised to provide the most efficient articulation of societal expectations.
It is submitted that in making important determinations of policy the Court was not entirely deprived of normative criteria. Implicitly, legislative suffrance of existing jurisprudence offered precisely the judicial guideline that any tribunal requires. It is all too easy to read the Court's teleological motivation as a confession that it had 'transgressed the borderline of ... [its] judicial function' [60] by turning to the Schuman's political vision as outlined in the Preamble. It will be argued below that the Court was not resolutely engaged in advancing the integrative project sketched in the Preamble and Article 2. Rather the Court was preserving the normative edifice already constructed in the Treaties, relying not only on judicially applicable constructions of necessary intent of the Treaty's framers, but also on a sense of legitimacy conferred by legislative acceptance of it efforts to sure up and reinforce that edifice.
At this stage a brief comparative study of the 'Acquiescence Doctrine' [61] as it exists in American Law might suggest the direction in which this legitimizing mechanism might develop in future European jusisprudence. Given the European interest in implied private rights of action, it is perhaps instructive to take as an example judicial consideration of the various rights implied from the Securities Exchange Act 1934 and the derivative SEC Rules. Recent case-law of the Supreme Court seems to suggest at least two [62] circumstances in which the inference of Congressional Ratification by silence of existing decisions is strong enough to warrant judicial self-restraint [63].
First, where Congress has undertaken a comprehensive review of a particular area of substantive law, and left untouched implied rights of action, 'legislating around them', then legislative ratification is implied [64]. Within a single piece of legislation silence can cut both ways. Arguments of constructed Congressional intention regarding today's dilemma [65] are countered by the timeless ripost that 'Congress knew how to impose liability when it chose to do so' [66]. Finding an implied federal remedy now appears to depend on the Court's increasingly narrow construction of legislative intent [67]. Where Congress has visited an area of law, its failure explicitly to repeal a judicially implied cause of action simply strengthens the inference that Congress had or would have intended such a cause of action. Thus the strong minority in Central Bankof Denver [68] emphasise that 'the available evidence suggests congressional approval of aider and abettor liability ...[i]n its comprehensive revision of the [Securities] Exchange Act 1975, Congress left untouched the sizeable body of case law approving aiding and abetting liability in private actions under § 10(b) and Rule 10b-5' [69]. Justice Stevens vigorously asserted that 'even where there is no affirmative evidence of ratification, the Legislature's failure to reject a consistent judicial or administrative construction counsels hesitation from a court asked to invalidate it' [70].
Second, where Congress has passed legislation which would be meaningless without reference to existing jurisprudence, then acquiescence may be implied by necessity. The best example is Congressional legislation which defines such elements of the private liability scheme as the rules of standing, of limitation, or of contribution for a particular judicially implied cause of action. In some cases, the first and second means of ratification are conflated. For instance in the recent case of Musick, Peeler [71] the Court derived its right to find a right to contribution within the contours of SEC Rule 10b-5antifraud action on the apparent restriction of recent Congressional intervention to the narrow limitation issues. In the words of Justice Kennedy [72], writing for the majority, 'we infer from those references an acknowledgement of the 10b-5 action [itself a creature of the Court's case-law] without any further expression of legislative intent to define it. [...]Indeed, the latter statute [73] not only treats the 10b-5 action as an accepted part of our securities law, but avoids entangling Congress in its formulation. That task, it would appear, Congress has left to us'.
Once we have established Barak's notion of mutual supervision and balancing between the branches of government, then we are permitted a fuller understanding of elements of the Court's jurisprudence that may have seemed problematic. Take for example the Courts decision, in a number of cases, to limit the 'retroactive effect' of its judgement, as in the case in which the direct effect of Article 119 (equal pay for equal work) was first established, Defrenne v. Sabena [74]. For some this is an unashamed admission by the Court that it is indulging in judicial law-making without any democratic accountability or attempt to preserve the distinction between the legal and real worlds. Others, however, commend the 'honest' [75] indication by the Court of its awareness of the political, social and economic consequences of its rulings, lacking the judicial mauvaise foi attacked by the Critical Legal Studies School in judicial claims to objective or autonomous legal determinacy.
Such limitation of a judicial ruling may serve a dual function within our construct of dialogue between the Court of Justice and the legislative institutions of the Union. First, it provides a mechanism by which the Court signals to its interlocutors that its ruling may effect some normative change within the Community Legal System. This is at variance with the traditional approach of English judges, who purport merely to 'recognize' an existing rule of Law, as if it had always been there, awaiting the Court's computation of the appropriate result in given circumstances. In the words of Lord Reid's indignant rebuke to counsel: 'We cannot say that the law was one thing yesterday but is to be something different tomorrow' [76]. In the European legal order, with its distinct policy objectives and imperatives, and a different basis of legitimacy, the Court respectfully dissents.
Scholarly analysis of purely prospective ruling has established a complex balancing test which considers two countervailing dangers [77]. On the one hand, judges must guard against damage to the system by the injustice of retroactively applying a rule previously unrecognized. This first danger is particularly acute where there is rapid normative development to serve particular economic and political ends, and is significant where the parties principally affected are key political actors within the Communities. [This can later be tied to the second function of the prospective rule, discussed below.] On the other hand, the judges face the risk of distorting the public conception of the judicial function by overt judicial law-making.
Lord Devlin analogised this means of crossing the Rubicon that divides the legislative and judicial powers to 'the bridging of the river by an army in uniform and with bands playing' [78]. Empirical evidence suggests low public visibility of the Court [79], and our analysis that the primary audience of the Court is fact political. It is therefore conducive to a healthy institutional dialogue that the Court throw off its various disguises, and that the bands strike up. For the Commission and Council are effectively informed of the normative change occurring; more significantly their reaction is implicitly invited. Thus when there is no legislative repeal of the change, the subjects of the New Legal Order have a stronger sense of the legitimacy of the new jurisprudence.
The second function of the prospective rule, when declared by the Court, is to limit the injustice that may be caused by retroactively applying a rule, and thereby to make that decision more palatable to the political actors who will ex hypothesi be reviewing it. The Court thereby avoids unnecessary confrontation with the Member States who still ultimately control the legislative process. For example in Defrenne [80], the UK and Ireland successfully appealed to the primary economic exigencies of the Treaty teleology. The UK argued that the cumulative effects of resulting retroactive labour costs would lead to a serious aggravation of inflationary problems and would have a disparate impact, affecting some industries far worse than others [81]. The government of Eire went further and submitted that a ruling of retroactive effect would place a burden on the Irish economy that it simply could not support [82].
Subsequent explanations by the Court of its ruling [83] are frankly self-contradictory. On one hand they point piously to mandatory considerations of legal certainty. On the other hand, their evocation of Member States persistently engaging in practices violative of Article 119 seem to imply that Community Law was already certain. This was a case not of general principles of law in the face of rapid normative development; rather it concerned longstanding violation by members of the Court's political audience whose interests would be gravely imperilled by the repercussions of a more legally correct judicial decision. Significantly it is the Commission, in arguing against ex tunc restriction of declaratory rulings, that has emphasised the requirement of serious economic or political consequences in the event of retroactive application [84]. In upholding this threshold in its consequentialist criteria, the Court is ensuring the acceptability of its decisions to the very political institutions who could overrule them.
Here we see the Court of Justice acting within its political and economic context, free from the mythology of a judicial discovery of common law that had 'always' existed. The ECJ's legitimacy does not rest upon the sanction of such sacred tradition, but rather on its loyalty to political and economic teloi first expounded in the Schuman Plan of 1950, and now set in the Preamble. Given the real risk of intervention in the Council by the new Community members, who had effectively signalled the strength of their legitimate concerns, the Court realised that integrative dynamic of the Treaty norms would require mitigation of its immediate effects. An orthodox response, ignoring the ambivalence of arguments of legal certainty, would object on the grounds that 'the consequences of exercising a right do not provide proper grounds for the denial of that right'. Such a rebuke would reflect an ignorance of the political and economic realities of the Union, in which the consequences would include both a political attempt to reverse the norm established, and considerable economic damage to the internal market.
The inevitability of some form of political review is apparent both from the Court's systemic criteria of interpretation, drawing contextual justification from the coherence of the Treaty's structure, and from its dynamic criteria, reflecting its engagement in the economic and political objectives of the Union. Academic interest often focuses on the legal doctrines underpinning the Court's 'attempt to achieve legitimation amongst the audiences to which such justifications are adressed' [85], the best example being the Court's celebrated espousal of the estoppel doctrine in Ratti [86].
And yet the same cases in which the Court established the existence and extent of direct effect can be read as laying down broader tests of legislative intent. Often the Legislature has made a legal rule clear, precise and unconditional (to the extent of there being minimal risk of divergent applicaton) 'subject to no reservation' [87] , but only to an expressed desire to select the appropriate national legislative instrument. Here the Court essentially evinces a common intent to give the individual an ascertainable right, and declines to allow the Member States to withdraw from the bargain they have negotiated. The construction of legislative intent is further extended where the Court presumes that the Legislature must reasonably have intended such normative development as is necessary for the effectuation of the Court's primary projects set out in Articles 2, (8a,) and 102a, and the normative edifice which must support them. Where the first intent is implied by rule of construction, the second is constructive, by reference to argument of necessary implication.
Given the crisis of supranationalism at a political and decisional level in the Council until the SEA 1986 reformulation of Member State 'voice', the Court was obliged to decide many issues which would normally be considered political [88]. As Hans Kutscher observed, the Community judge found himself obliged to consider interpretational criteria in terms of the 'existential necessities' of the Communities, and the maintenance of their capacity to function [89]. Weiler echoes Kutscher's analysis in his sardonic comment that without such principles as supremacy, direct effect and proportionality, developed in the jurisprudence of the ECJ, 'we could hardly have spoken of a Community as we know it today; substantive achievements would be perhaps no more than, say, those of the GATT' [90]. It might be argued that these political, economic and constitutional exigencies provide the European legal order with the 'fundamental values' that contain the majoritarian will in Barak's analysis [91].
Similar theories have been proposed in the field of public international law. Reisman has argued that international tribunals should be afforded greater interpretative freedom in dealing with the constituent instruments of international organizations. A limited competence of judicial supplementation would be recognised in the 'constitutive' interpretation of 'the instruments whose drafting and conclusion might be facilitated and encouraged by the expectation that what was argued, bargained over and ceremoniously concluded will be given subsequent effect' [92].
Lord Slynn, in evoking the inevitable divergence of different national tribunals in the absence of a central court [93], refers obliquely to these notions of necessity. The Court's jurisprudence establishing the supremacy of Community Law is explained in terms of 'the compelling need to endow the new legal order with 'effet utile'' [94]. He observes that the Court's motivation in Foto-Frost [95], in which the ECJ reserved to itself the power to declare Community acts invalid, explicitly adopts such consequentialist reasoning; 'conflicting national decisions on validity would place in jeopardy the very unity of the Community legal order' [96]. Likewise the Court has recognised Community competences, for example to participate in international trade agreements within the Common Commercial Policy, as being 'justified in the interests of making the Community work' [97].
The Court's centralized interpretation is guided by these 'existential necessities' of the Communities. Just as terms might be implied into a contract by virtue of their necessity to the effectuation of the contractual purpose, so the presupposed customary norms of any treaty system (for example 'pacta sunt servanda'), themselves drawn from contractual theory, have been adapted in order to permit the survival of the Union. Hence the notion of directly effective Community Law, violative of the principle of contractual privity in a formal sense, but essential to ensuring the paradigmatic nature of that law. Whereas customary Treaty arrangements such as the ECHR reaffirm the sovereignty of the contracting parties while limiting it, the EC Treaty purports definitively to transfer elements of that sovereignty in order to succeed in the Treaty's program for legal action.
The European legislators have long failed adequately to distinguish relative effectiveness and necessity in the tests they offer the judicial community, as for example in the Maastricht articulation of the subsidiarity norm. In the same Article [3B EC], we are told both that the Community should take action only where an action's objectives can 'be better achieved by the Community' and that any Community action 'shall not go bejond what is necessary to achieve the objectives of the Treaty'. It is a small wonder that Lord Slynn, in discussing subsidiarity, has declared that 'this principle calls, in the first place, for a political decision and a legislative definition' [98]. It is submitted that the final authority of an administrable legal test might depend rather on political indecision, to be interpreted as endorsement of impending judicial judgement or even future judicial review on the basis of subsidiarity. But the Court would only give such a judgement upon evidence of the necessity of judicial pronouncement on the vertical division of powers.
Recently, however, the academic literature seems to have moved away from citing the necessity of a given interpretation or application of Community Law. For example, Rasmussen has suggested one interpretative criteria in addition to the intentions of the Treaty Framers in asserting the legitimacy of 'activism' intended to 'alleviate the structural infirmities of the legislative and executive branches of Community government' [99]. Surely a test of existential necessity provides justiciable limits to this duty to alleviate. Otherwise the Court would find itself sinking into Rasmussen's quagmire of the 'evaluation of all the nuanced reactions, acceptances as well as criticisms, defiances and rejections that are channeled from society to the Court' [100]. Bengoetxea's refinement of Rasmussen's 'environmental' analysis proposes that the Court, in order to show that it has not overstepped its judicial role, 'will try to persuade its political audiences that its interpretations are respectful to the EC project' [101]. Interpretation according to the existential necessities of the Union surely implies firm commitment not just to the Communitarian project but also to its very survival.
Likewise Mancini's approach to legitimisation is based upon purpose; activism may be legitimate if it develops in order to compensate society for the social consequences of legislative deficit [102]. This suggestion is somewhat problematic, as it both diminishes any claim of self-restraint that the Court may have before the separation of powers, and implies that the Court may have no political role once the legislative deficit has been remedied. Even when the Community legislature is properly performing its role by qualified majority, situations will still arise where intrerpretation with political content is essential to the functional efficacy of the Union.
Writing on the implication of implied rights of action by U.S. Federal Courts, Frank Easterbrook has demonstrated the naivety of lazy arguments of legislative or Treaty purpose. He colorfully summarizes the assumption of American Courts between the 1930's and late 1970's; '[o]nce Congress has marked the golden path, judges may take additional steps in the same direction ...as if all laws were public-interest laws' [103]. Suggesting that it was the legislative intent to deter or incentivize does not answer the more problematic issue of the intended level of deterrence or incentivization [104], which can better be achieved in terms of necessity, given a particular legislative objective. Implying private rights of action where there was no legislative intent runs the risk Easterbrook's 'overenforcement' with its concomitant costs, and this wider casting of the net can upset the sophisticated economic calculations underlying the existing legislative regime. In the first exposition of the 'overenforcement theorem' Landes and Posner had already explored the risk that private enforcement precludes the adoption of low-cost deterrence by a high penalty - low probability strategy [105].
To a large extent the Court itself is responsible for this academic neglect of the arguable necessity of its more controversial jurisprudence. Functional and teleological arguments have been constructed in terms of advancing the purposes of the Treaty as defined in the Preamble and early articles. To take a well known example, the Court's decision in Simmenthal [106] that any national court should consider itself competent to disregard national law inconsistent with Community Law was justified upon the functional criteria of 'effet utile'. Specifically the usefulness of Article 177 would be eroded if lower courts felt that only a higher national court would have jurisdiction to act upon the eventual preliminary ruling.
A more powerful argument was implicit but unarticulated; that the very existence of a common market required that the full consequences of any piece of Community law could not be impeded by domestic legal obstacles. Justification in terms of such Treaty purposes as the Preamble's 'ever closer union among the peoples of Europe' certainly contributes to the internal coherence of the European Legal Order. Judicial decisions can be shown to serve the general principle of legal certainty and are invested with the legitimacy of Article 164 and the observance of 'the Law'.
And yet such vague purposive justification also exposes the Court's jurisprudence to accusations of the type mouthed by Sir Patrick Neill, that it is self-serving in its teleological devotion to dim horizons merely foreseen in the Treaty preamble but never agreed upon by the High Contracting Parties. Such criticism is beginning to rear its head in national courts. In a recent English case [107], for example, the judge made a novel distinction between ECJ decisions regarding 'the interpretation of the Treaty and the obligations of Member States under it' which are not susceptible to the Parliamentary process, and 'the law as determined by the Court' which 'by virtue of its constitutional supremacy Parliament is entitled by legislation to amend or alter' [108].
In most instances motivation of judicial decision-making in terms of existential necessity is not problematic. For example, the construction of a common market by the liberalization of the elements of production and the harmonization of regulatory regimes carries in its very success the seeds of its own destruction by cartelisation and private exclusionary practices leading to monopolization. Where government has dismantled trade barriers, there will always be private individuals willing to reconstruct them in seeking the supracompetitive profits they allow. Antitrust Law, in its decisive impact on market concentration and the optimum size of its operators has unavoidable political dimensions [109].
The American Congress of the 1890's further realized nevertheless that it had to give the Courts a flexible tool [110] with which to defend a competitive economy; hence the expansive elaboration of the 'Rule of Reason' permitted by the brevity of §. 1 of the Sherman Act, and its prohibition of '[every] contract, combination ...and conspiracy in restraint of trade'. Without such essential licence to the Courts, it was inevitable that a more detailed prohibition would simply offer a blueprint for its own evasion, or alternatively that normal competitive practices would unwittingly be criminalized. The legislature has not, however, resigned all responsibility to the Courts and such regulatory bodies as the Federal Trade Commission. Where Congress has perceived a risk of the Court's analysis developing to the detriment of the economy, it has been quick to intervene, for example with the National Cooperative Research Act 1984, which requires that 'R. & D.' joint ventures are scrutinised under the Rule of Reason.
The framers of the Treaty of Rome equally gave the European Court of Justice a flexible tool in what the latter has described as the 'basic constitutional charter' [111]. Given the regulatory complexity of the world's free trade areas one would be hard pressed to assert that the thirty-six words of Article 12 offer precise guidance regarding such issues as the creation of private rights of action, standing to claim such rights, and the remedies they may provide. Having laid down the Treaty objective of Europe without tariff boundaries, the framers left it to the Court to build such jurisprudence as was necessary to ensure that Member States did indeed refrain from introducing new customs duties or charges having equivalent effect. Such vague legislative language as 'Member States shall refrain...' left the option to the Court and later Legislatures, by act or acquiescence, to find the basic prohibition directly effective, for example where the 'private attorney-general' was found to provide the best means of enforcement.
Likewise the complexity of many national legal regimes in their treatment of state immunity and breach of statutory duty would surely rebut any asserion that Article 189 provides an exhaustive codification of direct effect. In Van Duyn, the Court of Justice rejected British claims of the exclusivity of systemic determinations of intent as interpretative criteria [112]. It could equally be argued that the legislative silence regarding the existence of private rights of action, in stark contrast with the precision of the parties bound by directives, reflects an intent to leave the matter to judicial discretion. The Court declined 'to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned' [113], where such direct effect may be essential to achieve the undeniably intended binding effect of particular secondary legislation and its uniform application.
The same necessity exists where the Court must enforce recent legislative expressions of distributive justice in departure from the original free market ideology enshrined in the Treaties. The Legislature can decide to allow a right of derogation, but this is a precise calculation based on the political difficulties in legislating, and the economic consequences of divergence across the Union. Where such derogation is rejected in bargaining at a political level, it becomes imperative that its exclusion is enforced by the Community's judicial authority.
Take for example Council Directive 80/987, which required the Member States to establish guarantee funds to cover the compensation claims of employees owed wages by insolvent employers, and which was to become the subject of the Francovich litigation [114]. In the latter case, the Court identified a dual system of norms laying upon the Member State both the duty to accord a particular right, which derived from the political act of legislating, and a duty to implement, deriving from Article 5 of the Treaty. This was made possible by a progressive 'hardening' of Article 5, as for example in the Zwartveld case [115], which had been accepted by the political organs. Article 5 had once been interpreted as a supra-systemic fundamental norm or principle of interpretation of the New Legal Order, to be accorded broad interpretation as a rule of recognition. It was now to be regarded as establishing a rule [116], whose normative content was capable only of narrow interpretation as to the beneficiary of its component duty.
An argument that the Court's judgement was necessary for the functioning of a single market can readily be constructed. Within any economic entity, 'corporate welfare' extends well beyond the traditional tax break. Non-implementation or failure to enforce social legislation costly to industry can also serve to make a particular jurisdiction a more attractive setting for business, distorting its optimum location. The resulting detriment to the allocative efficiencies underpinning the exigencies of a common market are manifest, quite apart from all consideration of economic justice within the larger polity.
In the case of Directive 80/987, it was clear that, whoever might finally be required to organize the guarantee funds, industry would end up footing a substantial part of the bill, whether directly or through corporate taxation. Thus non-implementing countries would become considerably more attractive in the eyes of incoming investment, particularly with respect to commercial and industrial undertakings that were labour-intensive or highly leveraged. The Court recognized the economic necessity of providing more uniform [117] incentivization to implement. Once we have understood the systemic economic necessity of amplifying Article 215, the Court's remark that State liability is 'inherent in the system of the Treaty' [118] assumes greater meaning.
It may at first seem surprising that a decision providing for State liability, and against which four Member States, including Britain, Germany and Italy, argued vehemently in Luxembourg, has seen no attempt at legislative repeal in the Council, even after the advent of the new legislative procedures. In terms of estoppel doctrine, already undermined by majority voting, the decision in Francovich is hard to explain [119] and constitutes a marked normative departure. In such a context it seems relatively easy to infer from the Council's silence legislative acquiescence. Such endorsement is not especially radical against the backdrop of lengthy discussion at the 1990 IGC for Political Union of the need for financial penalties for failure to give effect to a judgement. Indeed the Court felt no need to mitigate the effects of its ruling or to signal its normative departure to the political institutions, rejecting Advocate-General Mischo's plea for the limitation or retroactive liability. Conceivably, the once refractory powers have now perceived that where the Legislature provides for rights with ascertainable content and beneficiaries, the necessity of uniform application requires stronger incentive for compliance.
This process of 'concretization' by which, in Dworkinian terms, principles that once described rights become rules which bestow them, is effected by reference to the 'existential necessites' of the Communities. The open-textured simplicity of the Treaty text forcefully rejects those arguments based upon 'what the parties actually agreed' and which deny any means to construct intent by reference to necessity and/or strong evidence of political acquiescence. As a tissue of rights and duties, existing on different levels of generality and without any predetermined hierarchy of interests and rights, the Treaty text clearly provides what Barak would perceive as 'tools for justice'. Arguably it was the provision of such flexible tools which in fact constituted the intention of the Founding Fathers [120].
Bengoetxea has argued that the Communities lack a unique basic norm, usually identified in the State or Nation. He perceives the Union as existing as a 'social compact', 'grounded upon the goodwill of the Member States to cooperate and [...]more readily explainable on the model offered by social contract and consensus theories' [121]. Given this structure of shared sovereignty and competences, the preservation of a coherent legal order requires the validation of each legal norm. It is thus the political and economic exigencies of the New Legal Order and its coherence which shape the derivative norms used to give meaning to the expressive signs of the Treaty basic norm.
The obligation to ensure the uniform application of Community Law has become an important means for the Court to give concrete meaning to the norms established in the Treaty, and to fill its normative gaps [122] by reference to the imperatives of the Single Market. Normative incompleteness, coupled with the decentralized enforcement of sanctions, could have proven fatal to the coercive nature of Community Law. The existence of a distinct Communitarian and statalist interests necessitated the centralized systematization and interpretation of norms, against an evident risk of systemic economic failure.
The Court's judgement in Van Gend confirmed the dual necessity of the uniform interpretation and internalization of Community Law by the legal systems of the Member States [123]. As Advocate General Roemer had argued, and as the Court would concede the following year [124], such uniform application required a hierarchical supremacy for norms of Community Law. That supremacy is explicitly built by the Court upon the fundamental need to avoid 'jeopardising the attainment of the objectives of the Treaty set out in Article 5(2)' by allowing the executive force of Community Law to 'vary from one State to another in deference to subsequent national laws' [125]. Relying on the preliminary reference and developing such principles as supremacy and the CILFIT doctrine [126] to combat divergent national interpretations of Community Law, the Court has been able to encourage internalized interpretation without serious risk of disparate economic effect.
The Treaty itself is open-textured, to the point of constituting an 'apparent antinomy' in its internal tensions [127]. The content of the secondary norms must be determined both in the rules generated by secondary legislation, and in judicial interpretation. Thus the European legal system in its development cannot be operationally autonomous or normatively closed. As Bengoetxea comments regarding Luhmann's theory of closure [128]; 'Autonomy, which he sees as essential ot the legal system, is in danger once the legal coding (legal/illegal) as such is in danger of being replaced by criteria of economic utility and political expediency' [129], external to the legal system. Therefore, as long as the dynamic interpretative norms applied to the Treaty are faithful to its component and systemic principles, for example Articles 3 and 5, and as long as they are necessary to the efficacy of the legal system, they are invested with a degree of legitimacy. Bengoetxea simplifies this in his characterization of the 'normal' situation of a homoeostatic legal system, 'trying to maintain an equilibrium between internal and external stimuli and thus to maintain expectations regarding normative behaviour' [130].
Yet the institutional relationships of the Community provide for a second means of legitimization of derivative norms, which is less systemic than dynamic. As we have seen, where an evaluative choice in the interpretation or application of European law is made acceptable to the political audiences of the Court, then their suffrance of the resulting norm has a legitimizing effect a posteriori. This is crucial when so much of the Court's jurisprudence has as its foundation the existential necessities of the Single Market, whether with regard to its proper functioning or its ultimate survival. Judicial reference to such overtly political and economic assumptions surely requires some form of subsequent political review.
Article 164 of the Treaty requires the Court to 'ensure that in the interpretation and application of this Treaty the law is observed'. It may well be true that interpretative loyalty to the Treaty objectives and dynamics gives the Court's political audience a sense of the rule of Law. But the same audience is more likely to accept the legitimacy of specific judicial decisions where it consciously abstained from their abrogation, effectively acknowledging the Court's interpretative loyalty in the ruling at issue.
Moreover this political input is vital to eventual legitimacy before wider national political audiences. The Court has long been aware of the importance of judicial mindfulness of legitimate local policy not unreasonably detrimental to the single market. Yet there exist alternative means of legitimization by which fundamental chapters of the Court's jurisprudence might be 'insulated' from desperate accusations that they lack sound juridical basis. Whilst 'fidelity' to the goals of the Communities is a prerequisite to a sense of 'the law observed', the timing of the promotion from principle to rule is unquestionably a purely political decision left open in the Treaty for later legislative decision. Thus it is essential to justification of Community development at a statalist level that the political decision was approved both for its 'fidelity' as determined by independent judicial input, and for its political timeliness as accepted by the Union's legislative organs. Future European constitutional discussion should not pass the opportunity to debate precisely the mechanisms of such approval, both explicit and implicit.
The New Legal Order is not without its flaws. Perhaps the most infamous is the 'democratic deficit'. This affects not only the legislative process, but also the political supervision of the Court of Justice. Until there is legitimizing social agreement regarding the permissible level of judicial discretion, the Commission and Council in their revision of the Court's functioning can represent the majoritarian will only vis-a-vis substantive issues. They will be policing the parameters of the public consensus on a particular issue, but not on the wider issue of acceptable judicial law-making. Barak observes that he risk of damaging the social conception of the Court's function by inadequate judicial self-restraint provides a further control on judicial activism [131]. Such social agreement requires much greater awareness of Community Law issues both among lawyers (as translators) and among the European peoples [132] whose closer union is the ultimate end of the European 'constitutional charter'.
Given the existing shortfalls in the Union's democratic legitimacy, the societal consensus in which the Court of Justice can exercise its discretion must be expressed through the Council and its reactions to judicial normative pronouncements. If the Court cannot yet claim wide public confidence, it must endeavour to maintain the political confidence of the other institutions of the Communities. Defining public consensus is problematic, but in the European context it is relatively easy to express the political consensus, in terms of the fundamental values of the polity, identifiable in the economic and political teloi of the Treaties. For example, where the Court justifies a measure having equivalent effect to a quantitive restriction under the Cassis de Dijon principle [133], its determination of the appropriate balancing of the interest of Free Movement of Goods against that of consumer choice (for example) is rendered legitimate by due consideration of the Treaty objectives. As long as the Court remains within the Communitarian 'articles of faith', its application of law will be perceived as neutral.
Barak is surely right when he asserts that the public have a democratic right to know 'who creates laws and within what borders' [134].More involved political debate regarding the role of the Court is required to promote this education. Wider popular understanding of the judicial sublegislation of the Court of Justice would not only raise the public visibility of the Court in general but would generate a truly societal agreement regarding the acceptable area of judicial discretion. There would consequently be greater political awareness of the Court's role, and thus a stronger sense of implied legitimisation by the Legislature's failure to repeal, freeing the legislative process of issues on which there was wide consensus. The public awareness that its representatives could intervene and 'that such intervention does not harm judges or their status' [135] could only further serve to legitimise the Judicial branch of the European system of governance and its jurisprudence
The democratization of the legislative processes of the European Union, begun in the SEA, is now well under way. Not only has the 'voice' of the single objecting Member State been reduced under the Cooperation and 'Codecision' procedures to be found in Articles 189c and 189b of the Treaty as amended at Maastricht, but the increased Parliamentary input bestows greater direct democratic legitimacy. Thus the presence of an implied legislative power of repeal of judicial 'legislation' is very much stronger. Fears of a court which, by making policy determinations and extending its legislative competences, looks to the rule of an oligarchic judicial elite, are surely now archaic in their alarmism.
For too long, English lawyers have laboured under an archane conviction that the European Legal Order is essentially a classic Treaty regime, not far removed from the ECHR, in which there properly endures healthy deference to the abolute sovereignty of the Contracting States. This analysis ignores the transfers of sovereign powers to organs of the Communities, for example in allowing the passage of directly applicable instruments, to which the Court brought European attention as early as 1963 in Van Gend en Loos [136]. The 'intention of the parties' is not discernible merely from the text produced by the Original Six back in 1950, as revised in subsequent Treaty Amendments. All the present members are able to participate in the continuing exercise of transferred sovereignty by the Union's political organs, fully empowered to endorse or deny the normative pronouncements of the Court of Justice. That jurisprudence is hardly the Frankenstein's daemon that many would have us believe; for the political Victor never loses control of his monster and should never let him out of his sight.
Sir Patrick Neill's apparent view that the powers of the Court should be cut back, that the 'extra wheel on the coach' should unceremoniously be removed, ignores the fundamental essentials of democratic governance. Within any polity there must be dialogue between the Court's defence of the fundamental values of that polity, and the more majoritarian motivation of the Legislature. The Maastricht Treaty amendments have at last empowered the Legislature to play its role as the Court's interlocutory.