Au nom de qui? The European Court of Justice between Member States, Civil Society and Union Citizens

• Published date: 01 May 2007
• Date: 01 May 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00371.x

Au nom de qui? The European Court

of Justice between Member States,

Civil Society and Union Citizens

Stephan Wernicke*

Abstract: How does the quest for legitimacy of the European Union relate to the view the

European Court of Justice(ECJ) accords to Union citizens, civil society and to private

actors? It is submitted that the ECJ is currently developing a jurisprudence under which

citizens, as well as their organisations and corporate private actors, are gradually, and in

almost complete disregard of the public/private distinction, being included in the matrix of

rights and—a crucial point—obligations of the treaties. The ECJ incorporates civil

society actors and citizens, beyond notions of representative (citizenship) and participa-

tory (civil society) democracy, into the body of law and thereby reworks its own and the

Union’s identity. Two core aspects are explored: the f‌irst is the reconf‌iguration of Union

citizenship as a norm which triggers the application of the substantive norms of the EC

Treaty. The second aspect of this evolution is the creation of ‘private governance’ schemes,

i.e. processes in which, as a rule, private action is regarded as action that has to meet the

standards of the Treaty. The analysis shows that the court is disentangling itself from the

State-oriented Treaty situation and drawing legitimacy directly from citizens themselves

so that judgments should be pronounced ‘In the Name of the Citizens of the European

Union’.

‘Union Citizenship is destined to be the fundamental status of nationals of the Member States.’

1

In whose name?

This article is concerned with the question of how the quest for legitimacy of the EU

relates to the view the European Court of Justice (ECJ) accords to civil society and to

private actors in general and, more specif‌ically, to Union citizens. In particular, I ask

* Dr. iur., Visiting Senior Lecturer in Law, Humboldt University Berlin, Walter Hallstein Institute for

European Constitutional Law, former référendaire (senior clerk), European Court of Justice, Chambers

of the German Judge, Luxemburg. All views expressed are personal. I thank Susanne Sophia Spiliotis for

all her inspirations, John Keane for critical remarks, Maria Fotou and Clare Wynter for their editorial

support. This article was originally drafted as a research report for the European Civil Society Network

(CiSoNet, coordinated and managed by the Wissenschaftszentrum Berlin für Sozialforschung WZB) and

presented at the 2004 London conference on the ‘Future of the European Polity’ at the Centre for the

Study of Democracy at the University of Westminster.

1

European Court of Justice 20 September 2001, Case C-184/99, Grzelczyk [2001] ECR I-6193,

para. 31.

European Law Journal, Vol. 13, No. 3, May 2007, pp. 380–407.

© 2007 The Author

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

whether the court perceives itself as an institution that should ref‌lect the will of the

peoples, the citizens or the states, or somehow the combined will of all of these elements

together. Judges view themselves as the ‘pouvoir judiciaire’, ‘die dritte Gewalt’ in the

system of the separation of powers. However, in a multilevel Union there is no clear

division of powers, let alone a clear attribution of powers to the judiciary. In fact, the

Community was essentially created by law, as a ‘Rechtsgemeinschaft’.

2

From the outset, the court was therefore at the very basis of the integration process.

But do the judges know in whose name they rule? To paraphrase a famous dictum of

Judge Pescatore: do they not only have ‘une certaine idée de l’Europe’, but also an

understanding of their role as constitutional judges in this process? The immediate

answer is negative: judges do not seem to talk of their ideas of Europe, their mandate,

of their role or the way ahead, let alone act according to some or other common aim.

But they do something far more important: they decide individual cases—and by doing

so they add another piece to a framework for which there is no overall design, but

which is nevertheless constitutive of a union of law. These cases reveal their thinking

and provide the material to show where legitimacy is drawn from and what the

probable consequences are.

I submit that the ECJ is currently developing a jurisprudence under which citizens,

mainly Union citizens as private actors, as well as their organisations and corporate

private actors, are gradually being included in the matrix of rights and—this is a crucial

point—obligations of the treaties. Put in a different way, the ECJ is framing the

European Constitution, at least as regards aspects other than institutional or organi-

sational, in almost complete disregard of the public/private distinction. The ECJ is

thereby including ‘non governmental’ or non-state actors, that is, ‘the civil society’ in

the edif‌ice of integration.

3

It incorporates civil society actors and citizens, beyond

notions of representative (citizenship) and participatory (civil society) democracy, into

the body of law and thereby reworks its own and the Union’s identity.

I shall argue that in reconstructing the Constitution beyond the public/private divide,

the court offers a unique vision of a Union beyond dichotomist perceptions and seeks

to include a whole range of today’s actors in the matrix of rights and obligations, all the

while preserving a functioning system. The court seeks to guarantee that individuals are

protected from ‘misbehaviour’—be it legislative, executive or private.

Two core aspects will be explored: the f‌irst is the reconf‌iguration of Union citizenship

as a norm which triggers the application of the material norms of the Treaty—most

notably the genuine constitutional issue of non-discrimination. The second aspect of

this evolution is the creation of what I call ‘private governance’. Private governance

refers to processes in which, as a rule, private action is regarded as action that has to

meet the standards of the treaty. I shall brief‌ly outline this process when I present the

ways in which the rights and obligations of non-state actors have developed, def‌ining

2

According to Walter Hallstein, the EEC is ‘in dreifacher Hinsicht ein Phänomen des Rechts: Sie ist

Schöpfung des Rechts, sie ist Rechtsquelle und sie ist eine Verwirklichung der Rechtsidee’; W. Hallstein,

‘Die EWG—Eine Rechtsgemeinschaft’, in T. Oppermann (ed.), Europäische Reden (Deutsche Verlags-

Anstalt, 1979), quoted in I. Pernice, Der Beitrag Walter Hallsteins zur Zukunft Europas: Begründung und

Konsolidierung der Europäischen Gemeinschaft als Rechtsgemeinschaft, available at http://www.whi-

berlin.de/pernice-rechtsgemeinschaft.htm.

3

As such, this article challenges, at least with regard to the ECJ, Philippe Schmitter’s statement that Union

citizenship ‘most certainly will not be a panacea for resolving the EU’s democratic def‌icit and growing

legitimacy problems’; P. Schmitter, ‘Second thoughts on European Citizenship as Secondary Citizenship’

(2003) 28 Cuadernos europeos de Deusto 113.

May 2007 Au nom de qui?

© 2007 The Author 381

Journal compilation © 2007 Blackwell Publishing Ltd.