The European Court of Justice

The European Court, set up for political reasons, originated in the ECSC. In line with the French legal system, which had a body to protect citizens against government wrongdoing, the Court was meant to protect companies and states against decisions by the High Authority and was authorized to reverse these. During its conversion to a single court for the three Communities, the legal system was moderated, as the High Authority had been authorized to impose fines while the EEC Commission did not have this power and, as a consequence, neither did the new Court. However, the Court would play an exceptional role within the Community because of the open-textured character of many Treaty provisions and its daring judgments in cases submitted to it by national courts under article 177, which allowed it to make so-called ‘prejudicial judgments.’ Several of the judgments based on this procedure had a far-reaching effect. The 1963 Van Gend en Loos case, for instance, led to Community law being directly applicable in the member states, without any legal action required first by the state in question. The ‘direct effect’ principle meant that European Treaties created individual citizens’ rights which national courts then had to protect.The 1964 Costa/ENEL case led the European Court to establish the principle of precedence of Community law over national law. Judgments such as these went against the wishes of the governments, but they nevertheless accepted European Court rulings. This demonstrates how strongly

European integration is based on a legal order with authorities, treaties, and the power of the Court.

The appointment of the judges is by common accord, but they are proposed by the country of origin (in practice an undisputed choice) and the judges themselves elect the president of the Court. So-called ‘advocates general’ assist the judges by making reasoned submissions on cases brought before the Court. They have the same status as judges but have somewhat more autonomy, which helps when discussing a variety of opinions. Judges and advocates general each are assisted by some ‘legal secretaries’ who help in the drafting of opinions and judgments. The registrar has judicial functions, being in charge of the Court’s record and the traffic of cases, but is also responsible for the administration, financial management, and accounts of the Court. Given its overload of work, a Court of First Instance was created in 1989.

The internal negotiating game and external activities of the EEC

The Commission’s initiating function (making recommendations or giving opinions on matters resulting from the Treaty) was performed in cooperation with the Council, in which ministers could accept or reject Commission proposals. This led to a new form of negotiating among the member states, as the Council could reject a proposal by a two-thirds majority but could not amend it (albeit only unanimously). The two organs engaged in a newly developing negotiating game in which the Commission was able to contribute detailed proposals, but from an early stage had to take account of the political wishes of the member states. This happened as early as when drafting proposals, because the Commission had to consult with the permanent representatives. If the relations within the Council were such that voting by qualified majority was impossible, the initiating function would then continue to play a ‘pushing’ role, but there would be intergovernmental negotiations in the Council at the same time as negotiations between the Commission and the Council.

While this internal negotiating game was developing, the Commission elaborated an external trade policy, as it was the formal organ to conduct GATT negotiations. The Commission found itself supported by GATT executive secretary Eric Wyndham White, who felt that negotiations with the Commission on behalf of the EEC added to GATT prestige.¹⁹ As the Commission had taken the lead in proposing tariff reductions for both OEEC and other GATT members, had shown a flexible attitude toward the UK, and had acted as the ‘EEC,’ the Commission enhanced its position within the GATT. After a while, it effectively replaced the member states, as it negotiated for both the Community and its member states. An original procedure evolved, with a special committee appointed by the Council to assist the Commission in its negotiations. The so-called ‘article 133 mechanism’ created its own dynamic, in which the Commission had to consult with the committee during the negotiations, but in order to negotiate effectively the Commission needed some autonomy. It therefore shielded its activities from continuous member-state scrutiny, but in order to ensure that member states understood the rationale for concessions, it also needed to expose their representatives to parts of the negotiating process. When meeting at the GATT in Geneva, the Commission representative had to seek a ‘coordination’ of individual member-state positions, which took place in a building known as ‘the bunker.’ However, the Commission profited from this linking of internal and external developments.²⁰

Given former colonial interests, member states did not allow the Commission to be the sole representative at the first UNCTAD conferences, or agree on a common policy regarding global commodity agreements.The fact that Commission staff for development aid was small and physically removed from the other directorates-general in Brussels also mattered. The disappointment did not keep the Commission from establishing its own instruments to move forward in the North-South dimension.The High Authority and two Commissions had played an active part in transforming the OEEC into the OECD in 1960. A special protocol was signed governing OECD-Communities relations.The Communities were not full members but their status, characterized as ‘active participants,’ outranked that of observers. The Commission, however, found it difficult to contribute to the OECD process due to differing national needs and policies. Several times, when the issue was raised whether a topic was a matter for the member states or the Commission, the European Court was asked for an opinion, sometimes responding positively but also negatively. At the invitation of the UN secretary-general, the Commission participated in the work of ECOSOC and its Economic Commission for Latin America in 1958, but it was not invited to the Economic Commission for Africa. In 1974, the EEC was accorded observer status at the UN General Assembly, which was the outcome of an internal debate in the Community that had lasted for years. As a consequence of the new status, the EEC Information Bureau at the UN acquired a new and stronger position. As an observer, the EEC was allowed two representatives, as the delegation list for the General Assembly mentioned both the European Commission and the Presidency, represented by the state that held the rotating chair of the three European Communities. An exchange of letters between the Commission president and the FAO director-general in 1962, setting ways and means for liaison and collaboration, was followed by the European Union becoming a FAO member, which for IGOs proved exceptional.