origins and development of the Court of Justice

The Treaty establishing the European Coal and Steel Community (ECSC) created the Court of Justice of the European Community (ECJ) in 1951. The purpose of the ECJ was to interpret the Treaty of Rome. Since then the ECJ has been refined, is constantly expanding, and has become an important integral part of the European Community. The interpretation of the Treaty of Rome has created two of the most important legal concepts in the Community, the doctrine of direct effect and the notion of supremacy. These two principles have developed the Community into what it is today.

In 1958, the Treaty of Rome established the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), and under Articles 3 and 4 created the ‘single Court of Justice’ of the three European Communities. In 1997, the Treaty of Amsterdam under Article 9 established the Court of Justice as a single institution exercising its powers and competences assigned to it. According to Article 220 of the EC Treaty, “The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed".

In 1963, there was a significant shift in European Community Law, as the Community up till then was subject to and governed by international law doctrines, similar to the United Nations and World Trade Organisation. The ECJ had no regard to Member States laws; the first time it became apparent was in the judgement of van Gend en Loos [1] , stating, that:

“…the Community constitutes a new legal order of international law, for the benefit of which the states have limited their sovereign right…".

The European Community no longer regarded its self as a sub-system of international law. One year later the ECJ in Costa vs ENEL [2] stated that:

“By contrast with ordinary international treaties, the EC Treaty has created its own legal system…".

Twenty years later the ECJ in Les Verts [3] stated:

“…the European Economic Community is a community based on rule of law, inasmuch as neither its Member States, nor its institutions can avoid a review of the question whether the provisions adopted by them are in conformity with the basic constitutional charter, the Treaty."

The structure of the European Union (EU) and the body of law empowers the ECJ, one of the most influential institutions of the Union. The ECJ case law since 1963 has established very important principles namely, the rules of direct effect, supremacy and preliminary ruling. The EU would not be able to function without these common rules and directives. The sole purpose is to maintain communality between all Member States and equal opportunities for citizens of the Union.

1.0 The European Court of Justice

The European Court of Justice (ECJ) is an international judicial body with the same constitutional attributes as national courts of member states. Member states have given up part of their sovereignty to the European Community to achieve a commonality among all member states of the Union. The ECJ is part of a framework that maintains and promotes the integration of the European Union. All member states have accepted the ECJs authority and accede to the court through the Treaties, all member states are forbidden to resort to any other jurisdiction.

Member states and individuals can seek a remedy where they perceive there is a breach of European law, the ECJ supervises member states and ensures there is compliance with the community law and corrects all infringements. Article 234 in the Treaty of Rome makes it possible for national courts to have dialogue with the ECJ. The rule of preliminary ruling is a fundamental principle and is important to the community’s integration. This process in later years has been utilised by national courts more so than in the earlier years, allows national courts to be more susceptible to community law and to the judgements of the ECJ. European Law has evolved due to the preliminary application rule in the interpretation of community law for the benefit of Member States and individuals who seek a remedy.

Member States chose the Court’s Judges there is one judge from each Member State, it has been argued that the way judges are appointed could directly harm the autonomy of the court, as they will not be independent. Judges can feel pressurised by political policy of their own governments, as they might not be re-elected. The ECJ pre-empting this might happen ensures that judges’ judgements are deliberated in private and as a principle, a judge will not rule in a case where it concerns their own country, maintaining the status quo of the ‘separation of powers.’

1.1 Interpretation of European law

As is common in our own jurisdiction the interpretation of laws may vary from judge to judge, after all they are rational human beings. However if judges are given the same information judges are capable of giving the same judgement throughout multiple cases without corrupting the rule of law with their own personal opinions. Judges select several possible meanings of one rule; the interpretation is sometimes muddied as judges come from a multitude of legal backgrounds where they have very different views and experiences. The judiciary have due regard to precedent judgements and in what context they where made. The ECJ judgements are a process of law making that affect the parties involved and all the other Member States these judgements or more commonly known as decisions will be used in future cases that will come before the court. Dissenting judgements are seen as a threat to the unity of the court as a collegial body; [4] “institutional loyalty to the Court of which the judge is a member, and devotion to the law whose servant he remains". [5] There is an institutional culture of loyalty and collegiality to maintain the cohesion and objectives of the EU namely the “acquis communautaire", the “aquis" consists of Inter alia legislation adopted by virtue of the Treaties and decisions from the ECJ. In the opinion Vlad Perju in his paper "Reason and Authority in the European Court of Justice",

“The ECJ is prepared to strike an effective balance between institutional considerations and open discourse. It is precisely the civility instilled by the institutional culture that rules out, at least in the foreseeable future, a development along the lines that have become associated with the style of the U.S. Supreme Court." [6] 

1.2 Interpreting the Treaty

The purpose of the ECJ is to interpret the Treaty and to give decisions concerning EU law; the Courts decisions give effect to EU law within the national legal order of the member states a concept of supranational governance. The principle of effectiveness established through case law has supported the Courts teleological interpretation and that any other interpretation would erode the effectiveness of Community Law. [7] Effectiveness has been used to the Treaty as a whole where Member states have failed to transpose a Community directive, in Defrenne v. Societe Anonyme Belge Sabena, [8] under Article 119 had horizontal direct effect and in Angolese SpA v. Cassa di Risparmio, [9] under Article 39 had vertical direct effect. In Francovich [10] , the Court judgment laid down the principle of the liability of the State with regard to individuals for damages deriving from the failure to transpose a directive. The obligation of the State to make reparation applies regardless of the direct effect of the directive: even if the provisions which confer rights on individuals are not sufficiently precise and unconditional for them to be directly invoked, damage is considered to have been caused to the individual owing to the non compliance of the State it was held: “that a denial of liability would undermine the effectiveness of the directives as a form of Community action and thus the full effectiveness of Community rules." [11] 

To justify the Courts decisions the ECJ takes into account different reasoning regarding to legal norms, values, policies, principles and balancing the interests within the Treaty proportionately.

The Treaty demands that the Court interprets the provisions within its framework, to interpret and define and the intention of the provisions in the Treaty. The Court in the Danish bottle case, ADBHU [12] ruled on Community environmental issues other than the traditional economic issues.

The Court interpretation of the Treaty is wide and generalised; the ECJ being an international type court uses the general international norms of other international institutions. However, the court is restricted to the Treaty as the only source of law giving it some latitude to be creative in its decisions to ensure the integration of the European Union.

1.3 Case law of the ECJ

The Courts influence in the harmonisation of the EU is a process that is divided into two branches, direct and indirect. Direct is case law derived from the court it is the interpretation of the Treaty. Indirect is the different ways the Court rules on, the rights and obligations that derive from the Treaty. Both are legitimate rulings that cause the Commission to legislate.

Cases like Van Gend en Loos [13] and Cassis de Dijon [14] judgment was the development of case law relative to the prohibition of quantitative restrictions on imports and of measures having equivalent effect on the free movement of goods (Article 30 of the EEC Treaty, now Article 28 of the EC Treaty). The rulings in the above cases have changed the relationship between Member States within the Community. The ECJ tries to harmonise the Community ensuring that national regulations are subject to Community Law, that the law is uniform in its application. The Court has established policies and principles regarding the free movement of goods as to achieve equality between all Member States. The Court has recognised a lack of policy in this area and has encouraged the Commission to legislate or set out policies to address this area. After suggesting the lack of policy, the Court introduced a new concept of mutual recognition. The ECJ has been innovative and progressive in its role in the Community that has created a new process of law making. It was never envisaged at the time of the Treaty of Rome that the ECJ would have developed its self and Community Law to the extent that it has.

2.0 Separate legal order

According to Mancini, in “The making of a constitution for Europe" ‘despite of the bold opinions, that ECJ has given within last 40 years, pushing Community away form the sphere of international law, the nature of the Community is still actively debated. If trying to classify the Community’s legal order under the constitutional law point of view, for example, we have to make a checklist of characteristics illustrating that point of view. It is commonly shared view that the three principal doctrines describing the constitutionalisation are supremacy, direct effect and pre-emption.’ [15] 

1. The doctrine of supremacy. According to this doctrine the Community norms, including the Treaty and other legislative acts, are above the conflicting national law, including the constitution. It has to be mentioned, that the Treaty itself does not contain such a clause prescribing the supremacy of Community law. Doctrine of supremacy was created by the ECJ in 1964 in case Costa vs ENEL [16] .

2. The doctrine of direct effect. According to that doctrine, the Community law has even without being transformed into national law an authority that can be invoked by Member State nationals before national courts. Doctrine applies to Treaty and secondary legislation under the presumption, that these norms are clear, precise and self-sufficient. This doctrine was introduced by the ECJ in 1963 in case van Gend en Loos [17] and developed afterwards [18] .

3. The doctrine of pre-emption. This doctrine plays a decisive role in the allocation of power and it is an essential complement of the supremacy doctrine, since it determines, whether a whole policy area has been actually or potentially occupied by the central authority so as to influence the intervention of the States in that area. One of the most important decisions in this area was made in year 1977 in case Simmenthal [19] .

2.1 Supremacy

The concept of supremacy guarantees that the principle of direct effect has its intended harmonised effect that makes EU law uniform. The supremacy principle is not set out in the Treaty; ECJ case law has ruled that the Community law is superior to national law of Member States. This means that whenever a conflict arises between national law and Community law, the Community law has precedence over national law. This principle was first seen in the case of Costa v. ENEL [20] the Court judgment shows that the EEC Treaty has created its own legal system, which has become an integral part of the legal systems of the Member States, and that Community law takes precedence over national law it held:

“The integration into the laws of each member state of provisions which derive from the Community and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore not be inconsistent with that legal system. The law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question."

The acceptance and application of the primacy of EU law is dependent on the national constitutional adaptation. As Weiler [21] states ‘in the community system, the dual character of supranationalism; the courts’ reasoning that supremacy was enshrined in the treaty was questioned by member states; acceptance amounts to a quiet revolution: evolution of supremacy is necessarily bi-dimensional’.

The ECJ has declared that for the Community to survive a united cooperation has to be adopted, unification is important to the legal security, legitimacy and democracy of the Union. The ECJ’s decisions have made Community law superior to national provisions even over national constitutional provisions. The Court went further, and “…made it clear that the integrational thought in the Treaty had to be regarded as one of the fundamental ideas of the Community, and that the process of harmonizing the Community and its member states´ different laws by creating Community law should not be stopped, or even hampered, by the unwillingness of some states to fulfil their obligations in time". [22] 

In practise, this means that the member states have given up part of their national sovereignty to the Community. It means that every Member States National Courts are bound by the decisions of the ECJ, and that Community Law is to be complied with, without exception. In the Maastricht, Amsterdam and Nice Treaties Member States sought to define more clearly the scope of Union powers and introduced the principle of subsidiarity to ensure that the Union would not adopt any new laws unless strictly necessary.

On any area where power is not conferred upon the European Union or Communities, such as abortion, the Irish Constitution, Bunreacht na hÉireann, continues to exercise an unqualified jurisdiction. The primacy of EU law is essential for the protection of citizens’ rights enshrined in the Treaty and EU legislation. The Constitutional Treaty merely sets out in express terms the basic principle that has prevailed for over forty years.

2.2 Direct Effect

Direct effect was established by case law the ECJ interpreted the Treaty in the famous case van Gend en Loos, [23] the Treaty its self does not make any clear reference to direct effect. This doctrine applies to the Treaty, Regulations and Directives. In van Duyn v Home Office [24] set out three criteria that national courts have to follow; that the rule that is to have direct effect must be clear and precisely stated, it must be unconditional or non-dependent and it must deliberate a certain right for individuals to base their claim. The Court when interpreting the Treaty looked at the spirit and the intention of the harmonisation of the Community. In this judgment, the Court recognises the direct effect not only of the provisions of the Treaties (Article 39 –ex Article 48– of the EC Treaty), but also of the directives laid down for their application (Article 3 of Directive No 64/221 of the Council). It interprets the notion of 'public policy' as a justification for derogating from a fundamental principle of Community law: the freedom of movement of workers.The interpretation of the Court in the case of van Gend en Loos, [25] the Court judgment is one of the most important judgments in the development of the Community legal order. The European Court of Justice specifies that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals. The Court concludes from this a fundamental principle: that of the direct effect of Community law it held:

“...the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community."

By interpreting the Treaty, the Court established the principle of direct effect and gave individuals new rights at international level. Individuals could now hold their countries to account for breaches of Community law. The Treaty and the whole idea of an integrated united European Community inspired the ECJ giving individuals of Member States the right to be guardians of the integrity of the Community. Changing the dynamics of the intergational process and contributing to the effectiveness of Community Law.

2.3 Fundamental Human Rights

Fundamental Human Rights prior to the Lisbon Treaty were not mentioned, the objectives of the Court is to ensure effectiveness which depends on supremacy. There was doubt as to whether Fundamental Human rights could prevail over provisions of the Constitution; there is no doubt of supremacy of EU law over national legislation. In Re. Internationale Handelsgesellschaft [26] the Court supplements the Stauder precedent by stating that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice and that the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community. It was argued in German Courts that the system ran counter to freedom of action, economic liberty and proportionality arising from basic law the court stated: that validity of Community measures must be interpreted in light of community law ‘law stemming from treaty couldn’t be overridden by national law... it would deprive community law of character and undermine effectiveness’ and went on to state that ‘respect for fundamental rights forms integral part of general principles of law.’

Dinah Shelton, in “The Boundaries of Human Rights Jurisdiction in Europe", [27] The ECJ has also developed jurisprudence concerning its role within the Union to ensure respect for human rights by Member States and Community institutions. The treaties themselves, while containing references to human rights and provisions for the enforcement of obligations by Member States and Community institutions, do not provide broad standing for individual actions. Yet the ECJ has developed and gradually expanded doctrines of direct effect and state liability that allow individuals to rely on sufficiently precise Community legislation in national courts notwithstanding non-incorporation or implementation of the Community law. [28] Most cases will come on referral from national courts. Comparing, M.H. Marshall v. Southampton and South-West Hampshire Area Health Authority [29] , with Duke v. Reliance, [30] In the first case the EC Equal Treatment Directive gave the applicant a remedy against a public authority that failed to comply with EC law. In the second case, the applicant could not rely upon the directive in an action against a private company. The Francovich [31] case fills this gap by allowing applicants to hold the state liable for failing to impose the directive on private parties through transposition into domestic law. A teleological emphasis on the object and purpose of a treaty allows a dynamic or evolving interpretation that can move a treaty away from the original intent of its drafters. The ECHR and other human rights instruments are usually drafted with considerable generality, however, making it difficult to determine original intent. Judicial bodies thus exercise their authority by weighing the conflicting interests of the parties in the context of contemporary regional or global concerns. [32] 

We have seen some effects of the Human Rights in the Treaty in a recent case J. McB. V L. E., [33] preliminary ruling concerns the interpretation of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

“First, according to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing European Union law. Under Article 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not ‘establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it."

Joint communication from Presidents Costa and Skouris, (Strasbourg and Luxembourg, 24 January 2011) has come to realise that the area of Human Rights and EU law could conflict in the interpretation. Both being international courts and although they are both in the same jurisdiction is independent from each other. [34] As stated in this paper it would be possible for the ECHR to avail of Article 267 of the Lisbon Treaty regarding preliminary reference. (See footnote 34)


The ECJ has to be given credit for enforcing the integration of the European Community, a process that Member States now often enforce at national level. The doctrine of direct effect and the notion of supremacy with the provision of preliminary ruling, member states have accepted these doctrines. The ECJ opened the legal system to individuals through these doctrines allowing the private individual to become the watchdog of community law.

The concept of the rule of law and the concept of politics can only be separated in theory, and cannot be kept separate in practise. The ECJ has played an important roll in the Community interconnecting policy making and legislation by its interpretation of the Treaty’s, it is an integrational catalyst within the Community. Member states have now been given the tools to perform the tasks necessary to integrate with the Community.

The integrational process has spread from the economic sphere to and including areas, such as environmental regulations, University grades and the size of bananas. In this paper, the term integration means the interconnectedness and effectiveness between the different institutions on the different levels of the Union. The primary reform, that the ECJ has done and is still doing, is its fundamental contribution to the ideals of “a united, peaceful and federal Europe" [35] 

‘The judicial legislation may be even somewhat better, than the usual one, as the judicial decisions must be rationally argued and justified in relation to existing sources of law’. [36] Being the custodians of the Treaties and the integrators of a united Europe would not have been able to be achieved without the Court of Justice of the European Union at its centre.