European Court Of Justice

Introduction:

We have chosen to write this assignment on the European Court of Justice (ECJ), looking into its role in the European integration process, and how its rulings and judgments have affected the business framework. We will also be looking into the effects of its rulings on state sovereignty, and how in some cases its rulings have limited states power over certain policy areas and handed them to the European Union.

We will start by looking at the radical jurisprudence of the European court of justice, and what political reactions have arisen to that, and how that has changed/affected the integration process. To get a better understanding, we will incorporate the use of neo-functionalism and rational choice new institutionalism theories. Finally we will include two cases, whose verdicts have had a major impact on the business framework in the EU, and its impact on the institutions of the EU.

Structure and functions:

It was established by the treaty of Paris in 1952 as an auxiliary institution. It became an institution when the treaties of Rome established the EEC and EUROATOM. The court of Justice is located in Luxembourg. Initially it consisted of 7 judges, today it consists of 25 judges and 8 advocates general, appointed in agreement with the member states, and their tenure has a duration of 6 years. They are chosen on the basis of professionalism, independence and competence. Among these one is chosen as the President of the Court for a renewable term of 3 years.

Establishing the issue:

In the past decades the ECJ has in several cases gone beyond its intended mandate and become an active player in the European integration process. This has in some cases given it a role that might put it in a position of conflict with the governments and the other institutions of the EU. Has the ECJ moved beyond its initial task of being a neutral trade arbitrator? We will incorporate different theoretical views while looking into this development, and how it might influence future EU integration. The theories that we will look into more closely will be the rational choice institutionalism and neo-functionalism, as we believe that these two are the most relevant.

The reason for choosing to look deeper into the role of the ECJ in the integration process is so we can analyse the uncertainties that this might create in future dealings within the Union. Could this be something that in the long run, might push the integration further then the states are willing to go, thus creating an integration-dilemma threatening the entire process?

This is not something new. Historically there have been many cases in which the ECJ has pushed the limits of the areas that fall under the treaties. Just to mention a few: Vand Gend en Loos (1963), Costa v. Enel (1964) and also Van Duyn v. the British Home Office (1974). These cases point to a trend in which state sovereignty has to some extent been reduced by the rulings of the ECJ. A major case which we believe has had crucial impact on the role of the ECJ and the member states, it the case known as Cassis de Dijon. We will look into this case in more detail later in the assignment, and analyse how it became a catalyst in the integration process.

Neo-Functionalism:

Functionalism was a shift away from the traditional realist view of international relations (IR) that had dominated until the 1950's. The state was the central actor, and it would not easily accept a decrease in its sovereignty. Neo-functionalism tries to explain the integration process, and why states are willing to relinquish sovereignty in some areas so that they can implement conflict resolving mechanisms more efficiently.(book page 9). The four important arguments of the neo-functionalists were:

1. The concept of the state is more complex than realist suggested.

2. The activities of interests groups and bureaucratic actors are not confined to the domestic political arena.

3. Non-state actors are important in international politics.

4. European integration is advanced through "spillover" pressures.

The concept of spillover is very important when looking at the ECJ and the effects of its rulings, and unlike realism, neofunctionalism also takes into consideration supranational actors such as the ECJ. The main reason behind the spillover effect is increased effectiveness. Two important spillovers here are functional and political. This allows institutions to expand their activities to areas not under their jurisdiction/mandate so they can function more effectively. In cases regarding free-trade there is bound to be an increasing amount of spillover, due to the wide-ranging nature of the economic issues, especially on issues such as trade barriers and tariffs. This has been evident from the verdict in the case of Cassis de Dijon which we will return to later on. Based on various rulings the ECJ could be seen as an active promoter of the spillover effect.

In the Maastricht treaty the principle of subsidiarity was incorporated into the treaty, which the British government pushed for. The reason for this was to limit the transfer of power from the member states to the EU institutions. The decisions should be taken at the lowest possible level, closest to the citizen. However, the concept of subsidiarity remains to be defined clearly, and thus holds immense ambiguity. As a consequence, subsidiarity can be used as an argument both by those who desire greater autonomy for member states and by those who want the EU to become a federation.

Neofunctionalism argues that actors, whether supranational organizations such as ECJ or sub national elites, act not in pursuit of an ideal or the greater good, but self interest. The expansion or limitation actions pursued by the ECJ are results of selfish quests, not a principal stance to an ideal.

In the case of the ECJ one could assume that self interest means two things; first of all its own survival, secondly an activist stance towards integration. The cases which we have mentioned previously, the Cassis de Dijon and Van Gend en Loos, point towards this fact. For its own survival it is important for the ECJ to constantly be involved actively in the European integration process, because without any process of European integration there would be no ECJ. Arguably, a mutually constitutive relationship exists between the two. The member states acknowledge the intervention of the ECJ in order to obtain the economic benefits of the EU, as ..."the ECJ safeguards all Member States by ensuring that partners meet their