Evaluate the relevance of ECJ (now CJEU) decisions Costa vs. ENEL and Van Gend en Loos on the EU’s current form.
The direct effect and supremacy of European Union (EU) law is now an established facet of European jurisprudence. The judgments of the European Court of Justice (ECJ) in Van Gend en Loos and Costa v ENEL is widely accredited for laying the doctrinaire foundations for the primacy of EU law. Though few would dispute the two cases as having been influential in shaping the current form of the EU, contention arises as to the extent of their relevance. Did the cases have an instrumental bearing on the EU’s current form, or were they merely logical extensions of a complex set of earlier precedents and treaties? This essay attempts to shed a more balanced light on the relevance of the two cases by evaluating them within their broader historical context. Analysing the cases in such a framework allows us to gain a fuller understanding of the impact they had on the current EU legal structure. The essay is divided into two parts, evaluating the relevance of Van Gend en Loos and Costa v ENEL in respective order but treating them as interrelated parts.
Van Gend en Loos and Direct Effect
From a glance at the established literature on the effect of EU laws, Van Gend en Loos stands out as one of the most appraised of cases in the European legal canon. The common wisdom holds that the principle of direct effect now firmly rooted in the EU constitutional architecture arose from the decision of the ECJ in Van Gend en Loos. Indeed, such a doctrine is not formally articulated in any of the EU treaties themselves. Rather, it was the ECJ’s interpretation of the treaties that held European laws as capable of providing direct rights upon citizens of member states. From a socio-political perspective, Van Gend en Loos is widely portrayed as a pivotal moment in the process of European integration and development of a transnational constitution. As Eric Stein puts it, in Van Gend en Loos direct effect was widely perceived as taking concrete form and ‘operationalized’ from a vague concept into practice. Concomitantly, it is viewed as having ‘transformed’ the national individual to a European subject decades before the Maastricht Treaty in 1993 formalised European Citizenship.
Though considered a landmark, even radical decision at the time, claims that it heralded a new legal order is a somewhat questionable and problematic one. As Derrick Wyatt points out, at least from a doctrinal perspective, direct effect was neither new nor a particularly innovative principle. The national constitutions of most European states already contained self-executing principles that gave direct effect to treaty provisions. ECJ judges for their part have consistently denied accusations of judicial activism, insisting that the reasoning in Van Gend en Loos derived from a strictly ‘logical’ interpretation of the Treaty establishing the European Economic Community (TEEC). Former ECJ judge, David Edwards, has argued that Van Gend en Loos merely affirmed, albeit in an explicitly articulated manner, a set of pre-existing doctrines on which the case rested. Based on earlier case law precedents and inferences, Edwards cites the existence of four major principles that informed the decision in Van Gend en Loos. The first involved the vertical and horizontal direct effect of directives and treaty articles, in that they are ‘binding as to the result to be achieved’. This binding nature was not conditional on the passage of an implementing legislation, nor subject to the exclusive competence of national parliaments. Second, the principle of effet utile – that an interpretation will prevail which best guarantees the practical effect of existing community law – had a long history as a ‘canon of interpretation’. A third key principle was the so-called ‘objectives-oriented’ interpretative approach to treaties. According to Edwards, it was a principle long held by the ECJ that a law ‘presupposes the rules without which that treaty or law would have no meaning or could not be reasonably and usefully applied’. Finally, it was an established practice of international law whereby provisions of ratified treaties took precedence over national laws on issues that directly infringed upon the ratified provisions.
In a similar vein, Joseph Weiler, the head of the European University Institute, has argued that Van Gend en Loos represented, at its core, a manifestation of earlier case law and European treaties. It was an “inevitable” development that simply gave cohesion and structure to the patchwork of pre-existing principles hitherto applied in a piecemeal fashion. In Weiler’s words, the decision was ‘predicated on the [prior] existence of direct effect’, which the ECJ merely ‘confirmed, articulated and made a Community-wide norm’. According to Weiler, the significance of Van Gend en Loos lies neither in the case itself nor in the direct effect doctrine simpliciter, but in a “confluence” of structural factors. He cites two key sets of elements, the interaction of which explains the “gravitas” of the case. The first was the confluence of the doctrine of direct effect with the preliminary reference system (hereafter ‘PR’). The PR system gave effective powers to the ECJ on the interpretation of EU law at the request of a national court. In practice, this left little room for domestic courts to rule other than within the ECJ’s interpretative framework. Such procedural context was itself dependent on the very existence of direct effect. The second was the confluence of direct effect and supremacy. Though the ECJ did not adjudicate on this nexus until Costa v ENEL (discussed below), the Court in Van Gend en Loos was already aware that the application of direct effect would be dubious and inconsistent in the absence of supremacy. The only remedy, in Weiler’s words, was for the Court to simply ‘insist on supremacy of European Community law as well as its direct effect, indeed, because of its direct effect’.
In short, Weiler contends that Van Gend en Loos did not represent a ‘new hermeneutic’ or a different way of interpreting treaties or international law. He takes issue with the ‘revolutionary interpretation’ of Van Gend en Loos and the idea that ‘somehow the Court changed the rules about construing rules as it went along’. Far from being revolutionary, Van Gend en Loos was the result of an “impeccable classical hermeneutic” derived from the special legal and institutional mechanisms already “rooted” in the TEEC.
Costa v ENEL and Supremacy
Following on the heels of Van Gend en Loos, the ECJ in Costa v ENEL took the firm position that Community law limited the national governments’ ability to introduce laws that conflicted with the TEEC. National laws found to be inconsistent with the TEEC was deemed invalid. In holding that domestic courts were obliged to treat European law as taking precedence over its domestic laws, the ECJ in effect gave practical life to the doctrine of supremacy. The significance of the case, argues Christoph Sasse, must be appreciated in the context in which the decision was made; at the time, the widely held assumption was that national constitutions and courts, not the ECJ, ultimately governed the relationship between European and national law. The proper role of the ECJ was seen, at best, as a ‘supplementary guidance mechanism’.
According to Morten Rasmussen, it was not until Costa v ENEL that the ECJ finally addressed the fundamental challenge of getting national courts to apply European law. Prior to Costa v ENEL, Rasmussen contends that the ECJ left key questions regarding the general nature of European law unanswered, and ‘never addressed the key question of the extent to which the European legal order was autonomous vis-à-vis national legal orders’. Before Costa v ENEL, the TEEC remained a ‘fundamentally ambiguous text’. The enforcement of European legislation was still based on the competence and continuing support of member states, while compliance was monitored by national governments. Although the TEEC gave the ECJ exclusive competence to interpret the validity and the general nature of European legal norms, it remained unclear how national courts would apply those interpretative norms. As discussed earlier, systems like PR guaranteed neither the enforcement of European law northe uniformity of interpretation and application.
The ECJ’s decision in Costa v ENEL, then, was certainly an important step in the development of the supremacy doctrine in European jurisprudence. But without detracting from the significance of Costa v ENEL, it should be noted that the case did not develop in isolation from the broader historical context in which it was situated. If the case was indeed influential, this was itself owed to the influence of socio-historical developments that shaped and informed the ECJ’s reasoning. From a sociological standpoint, Antonin Cohen argued that the very ‘social fabric’ of the ECJ was one that was deeply imbued with a constitutional ideology. Almost from its very inception since the Treaty of Paris (1951) that created it, the ECJ developed a far more practical approach to European jurisprudence with clear references to internal law, as oppose to a body of principles in the tradition of international law. For the ECJ the ultimate goal of a federal Europe always loomed in the background, and it came to regard itself as the “elite” judicial body of European community. As Michel Gaudet, a leading figure of the High Authority (HA) notes, the ECJ ‘assumed a constitutional responsibility and developed a teleological interpretation of the Treaty of Paris focusing on its inherent federal spirit’. It was this ‘professional ideology of the Court’, rather than the cases themselves, that shaped the very reasoning behind the establishment of the doctrines of direct effect and supremacy.
The ECJ thus developed a constitutional interpretation of the nature of European law almost a decade before Van Gend en Loos and Costa v ENEL presented themselves to the Court. In this sense, the two cases were far from ‘groundbreaking’ or ‘revolutionary’. Rather, they represented continuity from a long line of interpretation based on the federal aims and spirit of the Treaty of Paris. It may be more helpful, then, to understand Van Gend en Loos and Costa v ENEL as simply turning points that facilitated, but did not fall out of sequence with, the underlying nature of an already federally constituted ECJ. It was within this backdrop that the ECJ in Van Gend en Loos and Costa v ENEL expanded its jurisdictional authority by establishing legal principles, namely by declaring the supremacy and direct effect of European law over national legislation. But whilst these principles do not represent a radical break from the past, and indeed cannot be divorced from the historical context that informed the reasoning behind them, they did however represent an elucidation of, and extension of the ECJ’s federally oriented ideology, the treaties provisions and principles of earlier case law that preceded the two cases.
Alter J, Karen, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (OUP 2001).
Arnull, Anthony, ‘Judicial Activism and the European Court of Justice: How Should Academics Respond?’in Dawson, Mark, Witte, Bruno De and Muir, Elise (eds), Judicial Activism at the European Court of Justice: Causes, response and solutions (Edward Elgar 2013)
Cohen, Antonin, ‘Scarlet Robes, Dark Suits; The Social Recruitment of the European Court of Justice’ (2008) European University Institute Working Papers RSCAS 2008/35, 10 <http://cadmus.eui.eu/bitstream/handle/1814/10029/EUI_RSCAS_2008_35.pdf?sequence=1> accessed 21 October 2014
Edwards, David, ‘Judicial Activism—Myth or Reality? Van Gend en Loos, Costa v. ENEL and the Van Duyn Family Revisited’ in Campbell, Angus and Voyatzi, Meropi (eds), Legal Reasoning and Judicial Interpretation of European Law: Essays in the Honour of Lord Mackenzie-Stuart (Trenton Publishing 1996)
Rasmussen, Morten, ‘Revolutionizing European law: A history of the Van Gend en Loos judgment’ (2014) International Journal of Constitutional Law 136
Sasse, Christoph, ‘The Common Market: Between International and Municipal Law’ (1965) The Yale Law Journal 695
Stein, Eric, ‘Lawyers, Judges, and the Making of a Transnational Constitution’  75 American Journal of International Law 1
Weiler, Joseph, ‘Van Gend en Loos: The individual as subject and object and the dilemma of European legitimacy’ (2014) International Journal of Constitutional Law 94
Witte, Bruno de, ‘Direct Effect, Primacy, and the Nature of the Legal Order’, in Craig, Paul and Búrca, Gráinne de (eds) The Evolution of EU Law (2nd edn, OUP 2011)
Wyatt, Derrick, ‘New Legal Order, or Old?’ (1982) 7 European Law Review147
Now the Court of Justice of the European Union (CJEU)
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1; Case 6/64 Flaminio Costa v ENEL  ECR 585.
See Karen J Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (OUP 2001).
Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’  75 American Journal of International Law 1.
SeeDerrick Wyatt, ‘New Legal Order, or Old?’ (1982) 7 European Law Review147.
For a good recent overview of the various claims of judicial activism leveled at the ECJ judiciary, see Anthony Arnull, ‘Judicial Activism and the European Court of Justice: How Should Academics Respond?’in Mark Dawson, Bruno De Witte and Elise Muir (eds), Judicial Activism at the European Court of Justice: Causes, response and solutions (Edward Elgar 2013).
David Edwards, ‘Judicial Activism—Myth or Reality? Van Gend en Loos, Costa v. ENEL and the Van Duyn Family Revisited’ in Angus Campbell and Meropi Voyatzi (eds), Legal Reasoning and Judicial Interpretation of European Law: Essays in the Honour of Lord Mackenzie-Stuart (Trenton Publishing 1996), 36.
See Joseph Weiler, ‘Van Gend en Loos: The individual as subject and object and the dilemma of European legitimacy’ (2014) International Journal of Constitutional Law 94.
This was made effective by the TEEC since 1958 (now Article 267 of the Treaty on the Functioning of the European Union (TFEU)).
Case 6/64 (n 2) 586.
For a discussion on the evolution of this doctrine, see Bruno de Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’, in Paul Craig and Gráinne de Búrca (eds) The Evolution of EU Law (2nd edn, OUP 2011), 346–348.
See Christoph Sasse, ‘The Common Market: Between International and Municipal Law’ (1965) The Yale Law Journal 695.
Morten Rasmussen, ‘Revolutionizing European law: A history of the Van Gend en Loos judgment’ (2014) International Journal of Constitutional Law 136, 141.
Antonin Cohen, ‘Scarlet Robes, Dark Suits; The Social Recruitment of the European Court of Justice’ (2008) European University Institute Working Papers RSCAS 2008/35, 10 <http://cadmus.eui.eu/bitstream/handle/1814/10029/EUI_RSCAS_2008_35.pdf?sequence=1> accessed 21 October 2014.
The HA functioned as the executive branch of the then European Coal and Steel Community (ECSC) prior to its merger into the European Commission in 1967.
Cited in Rammussen (n 26), 140.
Cohen (n 32), 11.
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