During the period of the EU’s foundation, no decisions were made on how to adjudicate between contradictory commitments between EU law and national law. Which set of rules should be prioritized? Usually, the state itself decides how to accord with international law: if other state parties find it to be in violation, it can be tried before an international court (indirect effect). This would have been the role of the European Commission and the member states in the EU anno 1960 (Van Middelaar 2009, 49; Scharpf 1999, 55). There were disadvantages to this ‘classical’ way of settling affairs, notably the time and resources required for the Commission’s pronouncements (ibid). But without clear political directives, it was difficult to envisage an alternative solution. In 1963, one such solution did emerge: it was an ECJ verdict on a private firm’s case against the Dutch taxation agency, a couple of pages long.
Legal and political analyses of the European Union have tended to diverge. For instance, general moods concerning the fate of European unification during the rule of De Gaulle in France are not at all in accordance with the huge legal steps towards integration that were made during the same period – not even “the framers of the Treaties” could have envisaged the supranational nature of these steps (Weiler 1982, 40). According to Joseph Weiler, this divergence tracks a perceived distinction between, on the one hand, the input-oriented interactions between political actors in terms of policy decision-making, and, on the other hand, the output of that process in terms of policy, norms, and law (ibid, 41). Weiler was among the first to point out that this distinction rests on a misunderstanding of the role of law in the EU’s political processes.
The first clue that legal and political processes in Europe intertwine to a high degree was to be found in “self-executing measures”, at first limited to the steel and coal sectors (Weiler 1982, 42). Greatly extending this principe in the above-mentioned court case, the firm Van Gend & Loos claimed that its having to pay more taxes for its imports of plastics as a result of national political decisions was a direct violation of the treaty, directly invoking article 12 of the EEC Treaty. This article reads:
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. (Treaty Establishing the European Union 2002)
In its verdict, the ECJ judged that Van Gend & Loos was being discriminated against on the grounds of its being a Dutch firm. The implication, which was the subject of legal elaboration during the decade after the verdict, was that European citizens held rights qua European citizens, and that these rights could be invoked against the member states themselves and against other European citizens [inter se] (Weiler 1991, 2413-2414) . Because of this implication, Van Gend & Loos is often seen as a ‘ground-breaking decision’ in European law; simultaneously, however, analysts emphasize that there was nothing in the verdict that was not an inference from the Treaty itself. It seems paradoxical that an application of a rule is also a reinvention of the fundamental text; but “this paradox touches the heart of the matter” (Van Middelaar 2009, 50). Let us look further into this.
For the member states who had obliged themselves to act in accordance with the Treaty, it was highly unattractive to allow their citizens to be able to meet them in court, invoking a higher authority (ibid). There were two factors that ended up pushing the ESJ in the opposite direction. First, the fact that the Treaty had been ratified by the legislative powers of the member states. Assuming that the Treaty itself assumed direct effect within the member states themselves, it was clear that the clauses of the Treaty should take precedence over the earlier national acts of legislation (Scharpf 1999, 55). Second, the highly general logic of the Treaty text itself, as evidenced by Article 12 above, allowed the ECJ to interpret the “spirit, the general scheme and the wording of these provisions” (ECJ, 1963). Directly after this invocation, it is stated that:
The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. (…) In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that 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. (European Court of Justice, Judgment of 5. 2. 1963 — Case 26/62, emphases added)
Thus, in a few sentences, the ECJ creates a new legal order (Van Middelaar 2009, 51). The conclusion that is mostly attached to Van Gend & Loos is the doctrine of direct effect, which is of course an important legal development, creating a direct link between international law and national citizens. Arguably, however, the real importance of the legal order now called into existence is the diminished role of the states that results from it. In the verdict, the implicit will of the states (which, as discussed, would not have wanted to be held to account by a higher authority) and even their explicit will, given the protest by three of the founders during the court case, was contrasted with the spirit of the Treaty. “Almost in passing, the [ECJ] became the spokesperson for the spirit of the foundation” (ibid, 51-52).
For the sake of clarity, we should add that the ECJ actively ascribed the role of spokesperson to itself, in retro-active and performative fashion. Recall the way in which Jacques Rancière described French revolutionary Olympe de Gouges: she laid claim to a right she did not have (Rancière 2010, 69). While hers was a political claim since it extended the assembly so that it would include women, the ECJ presents a more complicated case. Van Gend & Loos presents the dawn of a new legal subject, the European citizen, that could not have been heard before: this is similar to the role of women in De Gouges’ times. However, this is a decision taken by ‘activist judges’ rather than the European citizens themselves (Alter 1996). In that sense, the implications of the court case are not so much a performative claim of citizenship rights, but the abstract ascription of the same rights to a diffuse group that has not yet appeared sufficiently unified to stake such a claim in its own voice. To the extent that the implications of the ECJ’s verdict have placed the really existing (national) peoples of Europe at a further remove, this verdict must constitute an extension of police logic. After all, does the removed status of the ECJ not, in Rancière’s strong phrase, reflect the “oligarch’s intense wish”: to rule without the people, without politics (Rancière 2007a, 80)?
Although this practically establishes the supremacy of EU law at the same time as its direct effect, the ECJ left the former to be resolved later; more on that in the next post.