The European Court Of Justice And Its Interlocutors

2356 words - 9 pages

Member state governments of the European Community began with a fundamental role in making EC policies and standards; but throughout the 1960s and 1970s the European Court of Justice gradually began to expand its role and developed an unprecedented regime comparable to the constitutional order of a federal state. The ECJ permitted itself to decide on matters traditionally considered to be the exclusive competence of member states; including social policy, gender equality and competition policy. Remarkably, the majority of national courts and governments of the member states have conformed to ECJ rulings and have harmoniously surrendered their jurisdiction over key policy areas – deferring to the ECJ’s authority. Consequently, the member states have struggled to enjoy international legal latitude of compliance in their relationship with the ECJ and commentators such as Weiler J.A have labelled the process a “quiet revolution. ”
It is necessary to address the means and opportunities the Court of Justice employed in order to inaugurate itself as a superior court to that of the members’. In pursuance of this objective, it should be borne in mind whether member states desired ECJ supremacy and thus voluntarily handed the ECJ their competences; or whether a “competence creep” materialised, gradually increasing the superiority of the ECJ. The answer is not easily deciphered; ample EU scholars have proposed explanations for the apparent gift of superiority. ‘Neo-functionalists’ notably argue that the early choice of national governments to place determined areas within the power of European institutions produced pressure to extend the powers of these institutions to further policy areas. The phrase ‘functional spill-over’ was coined by Ernst Haas to describe this process. This theory is not without criticism; A Moravscik described it as a “framework of unrelated claims,” however ‘neo-functionalism’ is still the most widely analysed theory used to explain the dynamics of legal integration and thus for the purposes of this essay it is assumed that the shift in superiority from national courts to the ECJ was uncontrolled. The logical extension of this conclusion is to determine how the ECJ achieved its dominance.
In M Finnemore’s bountiful literature on ‘National Interests in International Society,’ she proposes a resemblance in the relationship between domestic courts and the ECJ and that between teacher and learner. Finnemore suggests that member states are “socialised to accept new norms, values and perceptions of interest by international organizations” and thus the ECJ has taught the member states to accept norms regarding the role of supra-national law. The national courts have internalised these norms in a yearning to become part of the alluring ideology of the EU and in this way have unconsciously positioned themselves as inferior to the ECJ through role. Distending this theory, it could be argued that the ECJ deliberately used this technique to...

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