European Court of Justice and European Integration - Essay Example

EUROPEAN COURT OF JUSTICE AND EUROPEAN INTEGRATION The history of the European Union presents one of the most complex, yet incredibly successful modern experiments in international cooperation. The experiment has resulted in what may be called the 'supranational' politico-economic integration of fifteen European nation-states, considered "traditionally jealous of their independence,"1 relinquishing part of their sovereignty for the sake of common economic and political interests. An analysis of the development of European integration - from the establishment of European Economic Community in 1957 through the creation of the European Union in 1993 and later, expanding in nature and scope, reveals the role and significance of many community institutions and organisations in shaping and strengthening the contours of integration - of particular significance is the role of European Court of Justice.2 "It can, and frequently is, argued that the Court has emerged as the most dynamic and purposeful of all Community institutions in furtherance of the idea of European integration,"3 observes Ian Ward, an expert in European law. Another scholar claims that by establishing several legal doctrines and setting important legal precedents in a series of preliminary rulings, the ECJ has essentially 'constitutionised' the EC laws and successfully laid "the [legal] foundation for a federal Europe."4 According to Kwan, today the ECJ "stands at the pinnacle of [the European] Community legal order with its rights to judicial review and to sanction European states for non-compliance with EU laws." 5 The present research is an attempt to understand the constitutional nature of the European Union and the role and significance of European law and the ECJ in establishing a legal order among member states and facilitating the legal integration of the European Union, thereby strengthening the politico-economic integration. The Constitution of the European Union and the ECJ- An Overview While many political theories - ranging from functionalism, neo-functionalism, neo-realism and neo-rationalism- have been applied in explaining the different phases of the integration process,6 the first significant step towards European integration can be traced back to the European Coal and Steel Community (ECSC) Treaty of 1951, for the establishment of a common market in coal and steel products. A Court of Justice, which was created as part of the European Coal and Steel Community (ECSC) agreements for adjudicating disputes and observing compliance by the member states, has over the years transformed into the "supranational" and powerful European Court of Justice.7 The 1957 Treaty of Rome was the next significant step towards integration, when the ECSC was expanded to form the European Economic Community (EEC), later called the European Community (EC), constituting five key community institutions - the European Commission, the Council of Ministers, the European Council, the European Parliament and the European Court of Justice.8 The establishment of EC represented a further step in economic integration by providing for the free movement of services, capital and labour in addition to the free movement of goods; however, for many political and economic reasons the 'single market' programme became effective only by 1992.9 Nonetheless, the jurisdiction and mandate of the ECJ was expanded by the 1957 Treaty - the ECJ was granted the right to judicial review, empowering the Court to hear cases raised by national governments or EC institutions regarding the validity of the EC laws. The national courts, which alone had access to the EC legal system could seek clarification from the ECJ, through a preliminary ruling procedure, in interpreting the meanings of EC laws in relation to the cases decided by them.10 While the Single European Act of 1986 provided an impetus to integration, the Maastricht Treaty of 1992 creating the European Union was perhaps the most significant step, facilitating economic, political and legal integration of the member states. The new European Union essentially consists of three "pillars" of cooperation, based on decision-making style and authority.11 The first pillar pertains to the existing 'supranational' European Community, with expanded policy responsibilities in areas including internal market policies, agriculture, regional, social and environmental policies, economic and monetary union; the 1997 Amsterdam Treaty expanded the list to include immigration, asylum and visas. The second pillar relates to Common Foreign and Security Policy, involving largely intergovernmental actions and decision-making to strengthen security of EU and promote international cooperation; and the third pillar pertains to policy responsibilities, usually intergovernmental, in the area of Justice and Home Affairs including cross border crime, criminal law and police cooperation.12 The jurisdiction of the ECJ is essentially limited to areas of cooperation included in the first pillar (the EC), the other two being largely intergovernmental responsibilities. Though the three pillar structure of cooperation suggests the reluctance of the member states to submit fully to supranational decision-making by the ECJ, the fact that a vast majority of policy responsibilities and areas of cooperation are covered in the first pillar, suggests the overriding significance of the ECJ in the functioning of the EU. The 1992 Treaty expanded the powers of the ECJ to penalise the non-compliance of EC Treaties and directives by member states by imposing fines and sanctions. 13 While the functions, role and response of each of the five key Community institutions under the European Union in strengthening the integration between the member states may be important, the response of the ECJ is of special significance, being the only 'supranational' institution under the Union.14 In order to understand the role and influence of the ECJ in European integration, it may be imperative to understand the meaning and implication of "supranationality" and supranational decision-making in international cooperation. Supranationality of the ECJ The word 'supranational' implies above nations or states; accordingly, supranational decisions are made by an institution or process, which is independent of national governments.15 While the term may be easy to understand, the implications of supranational decisions are not so easy and present many challenge to member states in international cooperation. Professor Schermers identifies five elements required for supranationality, the elements are also suggestive of its implications: the decisions of a supranational institution must be binding on the Member governments, the organs taking the decision should not be entirely dependent on the cooperation of all participating governments, the institution should be empowered to make rules which directly bind the inhabitants of Member states, the institution must have the power to enforce their decisions and finally the institution should have some financial autonomy.16 Originally established as "a system of checks and balances amongst EC institutions,"17 the European Court of Justice has over the years transformed into a powerful supranational institution fulfilling the above-said criteria of supranationality. Not only are the EC laws recognised by the member states of the European Union, the decisions of the ECJ are also binding on the member states, and enforced effectively through the imposition of fines and sanctions. Today, the ECJ is considered to be most powerful supranational legal institution in the world, perhaps the only supranational institution in the world in the true sense of the term. 18 It is important to know that the ECJ had acquired the supranational authority, not by the direct consent or resolve of member states, but through the effective applications of articles of the EC Treaty and setting important legal precedents and establishing vital legal doctrines in a series of preliminary rulings it made to the national courts during the 1960s and 1970s.19 While the reasons as to why the European states submitted themselves to the ECJ may be beyond the scope of this discussion, research suggests that many a times when the Community's political processes were redundant or in crisis, the ECJ has been contributed to the process of integration through the effective use of these legal measures and developments.20 Analysing and understanding the dynamic influence of the ECJ in furthering European integration essentially calls for an analysis of these articles, doctrines and legal decisions, which facilitated the supranational jurisdiction of the institution. The European Court of Justice and European Integration As a prelude to the analysis of the role and influence of the ECJ, an understanding of the organisation of the ECJ may be worthwhile. Located in Luxembourg, the ECJ presently consists of fifteen judges (one judge per member state) and six Advocate Generals who act like amici curiae presenting "independent and impartial opinion to the Court proposing the terms of decision, which would accord with the 'Community interest'"21. The ECJ is supported by the Court of First Instance (CFI), a lower tribunal established in 1989 to ease the increasing workload of the ECJ.22 The ECJ functions as final arbiter in disputes among EU institutions and between EU institutions and member states - in doing so the ECJ ensures that ensure that in the interpretation and application of Treaty the law is observed.23 Section 4 of the Treaty covering Articles 220 to 245 presents the constitution, jurisdiction and powers of ECJ and CFI.24 Of special significance in contributing to the supranational character of the ECJ and enabling European integration are Articles 227, 228, 230 and 234 of the EC Treaty.25 While Article 227 permits a member state to refer a breach of obligation by another member state to the Commission and to the Court, Article 228 confers ECJ with the power of levying fines from member states for failing to comply with the Court's decision. Article 230 confers ECJ with the power of judicial review: "The Court of Justice shall review the legality of acts.[other than recommendations and opinions] .intended to produce legal effects vis--vis third parties." Article 234 grants ECJ with the jurisdiction of preliminary ruling, which allows the Court to influence and guide the national courts in interpreting the Treaty in relation to the cases decided by them. Legal scholars and observers of the European integration have commented on the role of the Court in pushing the integration process, particularly during the period of crisis and political stagnation within the European Community in the 1960s and 1970s.26 During this time the ECJ, through two landmark decisions, established two vital legal doctrines -- the doctrine of 'direct effect' and the doctrine of 'supremacy' - on which the EU legal structure is founded; the two doctrines have greatly influenced the legal integration of the member states.27 The doctrine of direct effect was established in the 1963 Van Gend en Loos case28 - the Court ruled that the EU/EC citizens had a legal right to expect their governments to adhere to the EU regulations and obligations; direct effect being expressed as "the capacity of a provision of EC law to be invoked before the national court."29 By according "direct effect" to EU citizens, the Court emphasised that European law is distinct from regular public international law as individuals could seek remedy through their domestic courts. In Van Duyn v. Home Office30 and Pubblico Ministero v. Tullio Ratti31, the Court extended the "direct effect" doctrine to directives as well, despite the member states' discretion on the "choice of forms and methods" in implementing under Article 249. In advising the court, Advocate General Reischl, has commented that "under no circumstances can one say....that directives may also have the contents and effects of a regulations", yet, he asserted the obligation of the national courts to protect individuals relying on the directives.32 While the Court suggested the possibility of a direct conflict between European law and national law in Van Gend case, the decision as to which law shall prevail in the event of a conflict was not decided then. This decision establishing the supremacy of EU Law was made in the 1964 case, Flaminio Costa v. ENEL.33 The doctrine of 'supremacy' so established implies that if a national law contradicts the provisions of the EU Law, EU Law shall prevail. In 1972 Commission v. Italy34 case the ECJ held that the transfer of rights and powers to the Community results in definite limitation of sovereign rights of the Member States and that it is not possible to invoke any provisions whatsoever of national law to override this limitation. The ECJ went even further Parti cologiste "Les Verts" v. Parliament,35 to state that the constitution of the European Union may be explained by the precepts of constitutional law. Through these doctrines the ECJ effectively 'constitutionalised' the EU Law, enabling the Court to mediate effectively between member states, enhancing cooperation between them and thereby facilitating integration. Bomberg, Cram and Martin suggests that by establishing the direct effect and supremacy of EU law, the ECJ has effectively introduced important tools and key principles such as 'mutual recognition,' which helped other institutions in furthering the integration process.36 Court established the principle of 'mutual recognition' in 1979 Cassis de Dijon case37-- accordingly goods made or sold legally in one member state cannot be barred in another. The principle of mutual recognition has significantly helped the Commission in launching the single market programme in 1992, enabling greater economic integration. Article 23-25 of the EC Treaty, which establishes a custom union prohibiting custom duties on imports and exports and Articles 90 -93, which prevents the internal taxation of goods imported by a Member state38 are other significant Community strategies for an integrated Single Market; the supranational jurisdiction of the ECJ over these Treaty provisions have facilitated the process of integration. Conclusion The European Court of Justice, from its original jurisdiction of adjudicating and settling disputes among the member states, has emerged to be the most powerful supranational institution, influencing greater cooperation and integration within the European Union. While the different Treaty reforms have expanded the powers of the ECJ over the member states enabling supranational decision-making, by setting important legal precedents and establishing vital legal doctrines the Court had significantly contributed to European integration and international cooperation, perhaps like no other institution under the European Union. Bibliography 1. Arnull, A. 1999. The European Union and its Court of Justice Oxford: Oxford University Press 2. Bomberg, E. and Stubb A. [Ed] 2003. The European Union: How Does it Work Oxford: Oxford University Press 3. Buergenthal, T & Maier, H.G. 1991 Public International Law Minnesota: West Publishing Company 4. Case 294/83, Parti cologiste "Les Verts" v. European Parliament [1986] E.C.R. 1339. 5. Case 120/78. Rewe-Zentral AG v Bundesmonopolverwaltung fr Branntwein. [1979] E.C.R. 649 Available: http://law.pravri.hr/hr/zavodi/ielcl/040227/cassisdeDijon.pdf Accessed 27/12/05 6. Case 48/71, Comission v. Italy, [1972] E.C.R. 529. 7. Collier J. & Lowe V. 1999 The Settlement of Disputes in International Law: Institutions and Procedures New York: Oxford University Press 8. Craig P. & De Burca G. 2003 EU Law: Texts, Cases and Materials 3rd Edition Oxford: Oxford University Press 9. Kwan, T. [Winter 2000] "The European Court of Justice and European National Governments: Towards a Theory in Understanding Legal Integration in Europe" Euriditio Online Vol.20 (1) Available at http://www.duke.edu/web/eruditio/20_1/kwan.htm Accessed 17/12/05 10. Peterson. J. & Shackleton M. (eds) (2000) The Institutions of European Union Oxford: Oxford University Press 11. Peterson J. 1995, Decision making in the EU: Towards a Framework for Analysis' Journal of European Public Policy Vol. 2(1): 69-73 12. Treaty Establishing The European Community - Consolidated Version, 2002 Available at:http://europa.eu.int/eur-lex/lex/en/treaties/dat/12002E/htm/C_2002325EN.003301.html Accessed 22/12/06 13. Ward, I, 2003 A Critical Introduction To European Law, 2nd Edition, London: LexisNexis 14. Weiler, J. H. H. (1991, June 8). The Transformation of Europe. Yale Law Journal, 100: 2403-2483. 15. White N.D. 1996 The Law of International Organisations Melland Schill Studies in International Law, Manchester: Manchester University Press Read More