Perhaps its not a good sign that my first written contribution to this magazine is a reaction against an article published in it, but I cant help reacting to what Andrea di Caccamo said about the ECJ. Its a reaction against the root of the question, doing my bit in a debate that has been forgotten just like the role of this Court in the construction of Europe has been forgotten. I hope that everyone shares my opinion on these issues. In other words, I hope that establishing a debate in a forum of free expression like this magazine doesnt impinge on their interests, but, on the contrary, feeds them. We are not a political party we can show our differences!
A silenced debate
Before clarifying why I dont agree with what Andrea said, I would like to thank him/her for having raised the issue of the role of the ECJ. Its something that is very rarely talked about, although in reality it is, probably, the element that determines the originality of this unidentified political object (J. Delors) that, for several years, we have been calling the EU.
To clarify, also, that at the root of what I believe concerns him/her, I am in agreement with Andrea: the importance that the ECJ has acquired reflects the alarming weaknesses of the EU in terms of political integration. If political construction were to advance, the judicial facet of the Union would lose importance, and with it the ECJ. This is exactly what I, and without doubt Andrea, want.
A key actor in the integration process
But, as they say in France il faut bien faire avec. If political construction doesnt progress, it is the Member States responsibility. But, is in a large extent thanks to the ECJ that, despite the reserve of governments tied to their various sovereignties, the EU is what it is today.
What is the EU? I regret to have to reply that its an international organisation, an association between Member States, with certain specified objectives and strictly limited by the framework of a treaty (although, in this case there are three treaties that share the same components). The originality of the Union, however, resides in the fact that the Heads of State meet regularly and modify these treaties, and that the famous treaties of Amsterdam, Maastricht or Nice are not just modifications of the initial treaties. But, the current situation, in which the whole future depends on the will of 5 million Irish people, clearly shows the absurdity of a situation in which the Treaties modifications depend on everyone agreeing.
But, fortunately, the treaties are a source of law and in law there is no way back. In any international organisation, a Member State can undertake to do anything and not give a toss about this commitment months later, without anyone saying anything, because, quite simply, a state is sovereign. Full stop. Not in the EU. In our Europe there exists something that doesnt exist in the UN or in any other organisation of this type. Europe has a Court with correctional powers, with the capacity to sentence and strongly sanction Member States. If a Member State undertakes to do something, it has to do it, or face the consequences. How many European Heads of State would have liked to undo things signed by their predecessors or by themselves, and were unable to because they had the threat of the ECJ hanging over their heads?
Without the threat of sanctions, the Commission would also not be much more than a run of the mill administration that everyone would treat with condescending kindness. In fact, the Commission has had to resort to trials on numerous occasions so that member States honour their commitments. So, without a powerful ECJ like the one we have, there would be no integration and everyone would do what they liked.
An extensive interpretation
But, what is also important is that the judges of the ECJ have a strong dislike of giving Community law a very open interpretation, being more in favour of stronger integration. Thanks to the ECJ, the Member States have sometimes committed themselves much further than they themselves would have believed. They have also seen how the citizens from their own country can turn against them via a community institution. In effect, anyone can report their own State for non-compliance of Community law, and this is something that wasnt in the Treaties, but that the Court has deduced from an extensive interpretation of them.
The successive sentences of the ECJ are really what have forced the States to accept that purely economic integration is impossible. The freedom of movement that the Single Market needs involves a series of rights and guarantees, which has resulted in the slow construction of a European citizenship. Theres a famous case in which a Euro diplomat refused to show his passport at a customs post, claiming that Community law allowed him to do so. He ended up in jail for resisting the authorities, but on leaving jail he reported the Member State in question and obtained financial reparations. Anyone can report his country or the Commission or the Council if he considers that his interests have been held in violation of Community law. The list of advantages that the evolution of the jurisprudence of the ECJ will give us, you and me, is very long.
As I see it, the EU was something that the Member States though theyd be able to completely control, but the ECJ reminds them of their responsibilities. It was the ECJ who really gave an autonomous life to the European Communities.
Adding finer detail
Apart from the basic issues, there are various things in Andreas article that I completely disagree with.
Firstly, the ECJ is not a source of law. The law is made by the Council, basically, and more recently, by the Parliament to a small extent. The ECJ is limited to interpreting the law just like any other judge in a democratic country. What happens is that the ECJ acts upon the Treaties and Community judicial acts and not against the laws of the Member States. Sometimes, although more and more frequently now, these acts are voluntarily not too precise, so that the Member States have a margin of freedom in the adaptation of their national legislations. This follows a complaint by the National Parliaments that they feel removed from their legislative power, because of the precision of the Community texts. A legitimate demand, in my opinion, and because of this I dont think that you can complain that the texts are not perfectly clear and precise, without remembering that no legislative or judicial text is perfectly clear and precise.
Secondly, it seems incredible to me that anyone can complain of the lack of democratic legitimacy of judges, who are not elected bodies. Imagine, in a Europe invaded by populist racism, that judges were chosen by universal suffrage! Not now or ever would I be disposed to accept the legitimacy of a judge passed by vote, as it would be leaving the door open to demography and abuse. This is the sort of situation that the USA lives in, where many judges are elected, and the popularity of a judge is sometimes measured by the number of death penalties they give out.
So, I suppose now there will be to talk of the role of the ECJ in the future Europe. However, if there is any community institution that I, personally, wouldnt change it is the ECJ.