March 07
2021

We, EU lawyers, obviously know how the EU’s legal order was created, don’t we?

The combined effect of direct effect, supremacy and preliminary references by national courts allowed individuals to challenge norms in conflict with Community law. In sharp contrast, international law’s enforcement relies exclusively on reciprocity and inter-state retaliation. A State can enact unilateral countermeasures against another State infringing its international obligations. Yet, the new legal order, established by the Court of Justice, was based on the joint role of the individual and national courts. The institutionalised individual became the ‘agent’, or ‘guardian’ of Community law.

Well, William Phelan’s outstanding volume Great Judgments of the European Court of Justice – Rethinking the Landmark Decisions of the Foundational Period (Cambridge University Press 2019, £ 85.00 hardback) shows that this traditional account might be only a part of the story.

Comparing the EU with trade-treaty regimes, Phelan underlines that the EU’s true distinctive feature is the absence of inter-state retaliation. He too enquires into the EU’s initial fallacy: how to enforce its law? However, his approach is fundamentally different in searching for an alternative (or complementary) explanation of how this distinctive approach to enforcement came about; how the fundamental doctrines of EU law have affected the relationship between the Member States. This could not be more timely as Brexit and the call for border controls in the vaccination saga show figuratively the implications of retaliation (now) outside our legal order.

The Court of Justice’s early case law is indeed permeated by the prohibition of unilateral retaliation. Who would remember that this was one of only two justifications for supremacy in Costa v ENEL? It appears that the Court of Justice was convinced to rule out any possibility for retaliation and unilateral action in the common market. Its prohibition was, according to Phelan, the ‘master principle’, from which direct effect and supremacy derived and towards whose upholding they operated as they ensured the enforcement of Community law. This is a first sense in which, linking the three doctrines, this book might change our views on the EU’s legal order.

Still, how to prove such a claim that challenges the foundations of EU law? It is herein, in Phelan’s method, that lies an important part of his thoughtful analysis. Not only are the classics of EU case law revisited, but he also looks beyond them to cases that are usually neglected, such as Dairy Products (C-90 & 91/63), in which the Court linked the prohibition of retaliation and its foundational doctrines. These are welcome additions to how we should think about the foundations of the EU’s legal order.

Most interestingly, Phelan backs his account by references to the persons that wrote these judgments. In fact, a recent turn to the history of EU law has shown that some judges were essential for the foundational doctrines, including Robert Lecourt who was also the Court’s President. Phelan shows that Lecourt’s extra-judicial writings expressly link the foundational doctrines to the prohibition of retaliation. This nearly gives a sense of Lecourt’s role in the Court’s deliberations, one of the well-kept secrets of EU law.

Conversely, it is the same Robert Lecourt who considered Community law not only to drive integration but also to protect the rights of the person. The individual was the agent of integration and the one who derived protection from it.  Evidence for this is emphasised by Lecourt himself, available in the early case law on social security. Putting the person in the centre, not in its institutional role but as a protected right-holder, would be yet another story of European integration. How to fit this apparent opposition in Lecourt’s writings into Phelan’s account?

It is in this methodological limitation that lies the biggest strength of the volume as Phelan is crystal-clear that Lecourt’s writings cover a broad range of legal subjects. They prove indeed that retaliation and the foundational doctrines are connected but they also imply that there is more than one possible account of EU integration, whether for states or individuals. Far from limited to an account of retaliation and EU law, this volume should enter the reading lists of us, EU lawyers, EU law students and beyond, as, first, it shows that there is more than one rationale behind EU law and, second, that European integration was not only integration through law but also integration through people. Maybe, we, EU lawyers, do not know how the EU’s legal order was created.

 

Marc Steiert is a PhD Researcher in European Union and EU Social Law

 

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