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  • Level: GCSE
  • Subject: Law
  • Word count: 3748

The Constitutionalisation of the Treaties by the European Court of Justice.

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The Constitutionalisation of the Treaties by the European Court of Justice Introduction On it's formation in 1957 the European Economic Community Treaty1 was seemingly another international treaty to which the six original Member States2 had signed. In the realm of international law such treaties are binding merely on the governments of Member States which have signed them. In it's essential provisions, the Treaty made reference only to the Member States who themselves had no reason to believe this Treaty would be any different. However, it was latent from the start that this Treaty had the potential to extend beyond the reach of previous international treaties3. It provided for a unique institutional structure4 from which flowed unprecedented law-making and judicial powers. The focus of this essay will be on one of these institutions, the European Court of Justice (hereinafter referred to as the Court). According to the Treaty the purpose of the Court is to 'ensure that in the interpretation and application of this Treaty the law is observed'5. It was under the guise of 'interpretation' and in particular the use of Article 2346 that the court was able to attribute qualities to the Treaty that were not prima facie evident. This essay will trace how the court in conjunction with national courts used this Article to develop the doctrines of direct effect and supremacy, and how it expanded the use of such doctrines to law created under the Treaty which neither explicitly or impliedly warranted their ascription. The doctrines thus mentioned attributed to the Treaty, characteristics more in line with that of a national constitution than an international treaty7. However, as will be shown, it is the expansion of these doctrines to law created under the Treaty, that makes the constitutionalisation of the Treaties an empowering tool for the people of Europe as well as a symbolic statement of the Community's strength. ...read more.


'not qualified by any reservation on the part of States which would make its implementation conditional upon a positive legislative measure enacted under national law' These specifications have been considerably widened in a number of subsequent cases. In Lutticke v Hauptzollant Saarlouis15 the Court held that the fact that the Article in question contained a positive obligation as opposed to a negative prohibition did not prevent it from having direct effect. Hence requirement number two was dropped. Numbers two and four were rendered almost meaningless when in Reyners16, when the Court held what was then Article 52 to be directly effective in the absence of specifically required further implementing measures. The first requirement of clarity and precision was also questioned when in Defrenne v Sabena17 the Court gave direct effect to the principle of 'equal pay for equal work' contained in what was then Article 119. The so-called conditions for direct effect first enunciated in Van Gend en Loos have seemingly been whittled down to '...the minimum conditions for the application of almost any legal rule.'18. Only where direct effect would create serious practical problems is it likely that the provision will not be held to be directly effective19. In the wake on Van Gend en Loos not only did the Court apply the doctrine of direct effect to an increasing range of Treaty provisions but it also broadened the class against which such provisions could be used. Defrenne v Sabena is an example of how the Court has extended the use of a directly effective provision from being invoked against governmental action (vertically) to being invoked by one individual against another (horizontally). This mechanism was first acknowledged in Walrave & Koch v Union Cycliste Internationale20 where the Court held that the Article in question was not only ...read more.


This prevented directives being given the full carte-blanche regarding direct effect. It is additionally indicative of Member State views at the time that the granting of direct effect to directives stopped short of implying obligations on individuals i.e. directives could only be invoked vertically against the State and not horizontally against individuals32. Nonetheless, in spite of these later restrictions, Van Duyn had an immense practical impact on the constitutionalisation of the Treaty. Conclusion In conclusion it is hoped that this essay has demonstrated four indispensable aspects of the constitutionalisation of the Treaties. Firstly, without the broad use of Article 234, the landmark cases might never have had the opportunity to surface and even if they had, their principles could never have had a significant impact. Secondly, without the innovative judgements of Van Gend en Loos and it's sequel Costa, constitutionalisation in terms of direct effect and supremacy would simply not have happened, and finally, that without the application of these doctrines to directives the constitutionalisation itself would have had limited effects. The first and second points here have been graphically captured by Mancini and Keeling33, 'If the doctrines of direct effect and supremacy are... the 'twin pillars of the Community's legal system', the reference procedure laid down in Article 234 must surely be the keystone in the edifice; without it the roof would collapse and the two pillars would be left as a desolate ruin, evocative of the temple at Cape Sounion - beautiful but not of much practical utility.' Without the Van Duyn case it is submitted, that yes, these twin pillars would have existed and represented the superiority of Community law, but would not have had the sheer presence and impact which they have had to date. ...read more.

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