W. Phelan: Great Judgments of the European Court of Justice

Great Judgments of the European Court of Justice. Rethinking the Landmark Decision of the Foundational Period

Phelan, William
Anzahl Seiten
XX, 258 S.
£ 85.00
Rezensiert für H-Soz-Kult von
Vera Fritz, C2DH, Université du Luxembourg

“Great Judgments of the European Court of Justice” represents one of the latest efforts by scholars from various disciplines, most notably political science, history and sociology, to revisit the early history of the European Court of Justice (ECJ) by building on (new) empirical material and laying focus not just on its case law, but also on the actors behind it. The author, William Phelan, aims at provoking a shift in our analyses of the doctrines of direct effect and supremacy of European law, which the ECJ laid out for the first time in its famous rulings Van Gend en Loos (1963) and Costa v. ENEL (1964). Contrary to what conventional accounts have claimed, he argues that the European judges did with these two doctrines not primarily seek to empower private litigants and encourage national courts to enforce the application of the Treaty establishing the European Economic Community (EEC). Rather, they aimed at offering the member states of the EEC an alternative to the self-help measures which are traditionally used as dispute settlement and enforcement mechanisms in trade-related treaty regimes.

In order to sustain this new reading of the ECJ’s early activity, the book analyzes nine “foundational judgments”. Most of them are well-known (Van Gend en Loos, 1963; Costa v. ENEL, 1964; Internationale Handelsgesellschaft, 1970; International Fruit, 1972; Van Duyn, 1974; Simmenthal, 1978), but some have received less scholarly attention (Pork Products, 1961; Dairy Products, 1964; Sheep Meat, 1979). Phelan aims at showing that the latter three are equally important in the Court’s legal construction. Each case analysis makes up one chapter and explains how the judgment fits into the author’s new perspective on the Court’s legal construction, building both on a comparison with other treaty systems and an analysis of the writings of, among others, the former ECJ president Robert Lecourt.

The argument which Phelan develops throughout his case analyses takes the following starting point: international economic treaties are meant to organize a relationship between contracting states. The EEC, now European Union, was no exception. However, when it came to the regulation of this relationship, the EEC regime, as crafted in 1957, was fundamentally different from other international trade agreements, because it did not foresee any self-help (retaliation) measures for states to use in the case that their partners did not respect their treaty obligations. Violations of the Treaty had to be established by the EEC Commission or brought before the Court of Justice. However, since none of these two institutions could pronounce effective sanctions, the overall enforcement system was weak.

Phelan draws our attention to the fact that while the EEC Treaty did not foresee any self-help dispute settlement mechanisms, it also did not explicitly exclude their use. It was the Court of Justice which, in its 1964 Dairy Products ruling, “a profound, even revolutionary decision” (p. 102), explicitly rejected the use of retaliation measures within the EEC legal order. The judges argued that “the basic concept of the Treaty requires that the Member States shall not take the law into their own hands”. Their decision followed in the footsteps of the 1961 Pork Products ruling, in which they had already excluded the possibility for states to adopt safeguard measures without the prior authorization of the Commission. Phelan argues that the Court was able to exclude retaliation measures because it had offered the member states an alternative: by establishing the doctrines of direct effect and supremacy, it had constructed a system in which private litigants were going to force states to apply the EEC rules. Thus, there existed a direct link between the rejection of self-help and individual rights. What has been perceived as a foundational duo was, in fact, a trio (Van Gend en Loos, Costa v. ENEL, Dairy Products), and created an original Treaty regime in which the member states could cooperate without having to resort to costly retaliatory measures. This new regime was consolidated through later extensions of the principles of direct effect and supremacy, as well as the ruling Sheep Meat of 1979, in which the judges ruled that member states cannot, on their own authority, adopt any measures designed to prevent another member state’s failure to comply with the EEC rules.

Original in Phelan’s approach is that he connects his analysis to a number of passages drawn from the writings of Robert Lecourt, who is known to have played an authoritative role inside the institution.[1] For example, he shows that Lecourt explicitly rejected any form of self-help by French citizens in his dissertation on French property disputes. Lecourt’s argument was that “no one can take the law into their own hands”, which recalls the wording used by the Court in the Dairy Products decision.[2] Lecourt also associated the rejection of self-help with the doctrines of direct effect and supremacy in his famous book “L’Europe des juges”, as well as in an article on the judicial dynamics in the building of Europe. In Phelan’s view, the former President of the ECJ clearly brought his vision to the Court and it may even be possible that his commitment to the principle contained in Dairy Products was the main reason why he supported direct effect and supremacy (p. 118). Hence, the goal to offer the member states an alternative to classic dispute settlement appears as a plan laid out in three decisive steps, the last one of which entailed “the master principle of the entire European legal order” (pp. 232–233).

As this strong statement shows, Phelan wants us to completely rethink our understanding of the early activity of the Court of Justice. Comparing the EEC Treaty to other international trade treaties, he highlights that the legal revolution operated by the European judges did not reside in their creation of individual rights, but in their rejection of self-help mechanisms. This analysis is compelling and offers a refreshing new look on the beginnings of European legal integration. It also lays out convincingly that Robert Lecourt, a key actor behind the Court’s case law, cared strongly about the exclusion of self-help from the EEC Treaty system. However, one may question why the Dairy Products case does not occupy a (more) central position in his writings. In addition, one wonders about the views of his fellow judges at the Court, who are absent from the book. Phelan certainly could not provide a detailed overview of the scholarly work of all of the early ECJ judges, but it would have been of interest to offer a few supporting citations from other members of the bench. By not acknowledging the other judges’ points of view, we risk overemphasizing the influence of Lecourt’s personal views on the Court’s case law, especially considering that he had not been appointed as a judge yet, when the ECJ rejected the use of self-help measures for the first time in 1961. Thus, Phelan opens up a captivating new perspective on the beginnings of European law, which deserves to be investigated more in-depth in the future.

[1] Lecourt was a judge from 1962 to 1976 and presided over the Court from 1967 to 1976.
[2] Throughout the book, Phelan provides his own English translations of Lecourt’s original publications in French.

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