The transnational politics of judicialization. Van Gend en Loos and the making of EU polity

• DOI: http://doi.org/10.1111/j.1468-0386.2009.00494.x
• Published date: 01 January 2010
• Date: 01 January 2010
• Author: Antoine Vauchez

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The transnational politics of judicialization.

Van Gend en Loos and the making of

EU polity

Antoine Vauchez*

Abstract: This article tracks the genesis of one of the EU’s most established meta-

narratives, that of Europeanisation-through-case-law. Instead of studying this theory of

European integration as an explanatory frame, I consider what is at stake in its genesis as

a dominant frame of understanding of Europeanisation. I trace its emergence in the

conflicting theorisations of the relationship between law and the European Communities

that come along with the ECJ’s ‘landmark’ decisions (Van Gend en Loos and Costa v

ENEL). This approach helps seize the genesis of a specific and—at the time—rather

unlikely political model for Europe in which a Court (the ECJ) is regarded as the very

locus of European integration’s dynamics as well as the best mediator and moderator of

both Member States’ ‘conservatism’ and individuals’ ‘potential excesses’.

I Introduction

Among Europe’s foundational myths, Van Gend en Loos and Costa v ENEL—two

decisions delivered by the ECJ on 5 February 1963 and 15 July 1964—can easily claim

a very special position. Solidly linked together today, the latter appearing as a ‘logical’

implication of the former, these two judgments stand as a unique moment of revela-

tion of Europe’s nature (a unified legal order where EC norms have direct effect and

prevail over national norms) and future (a process of Europeanisation through case-

law). They appear as the de facto Constitution of Europe encapsulating all the succes-

sive developments of EU polity to which they are purported to have paved the way, if

not directly called for. As with any foundational myth, the principles ‘uncovered’ in

1963–1964 have been ‘vindicated and validated again and again’1at each of the critical

steps of Europe, from the 1973 enlargement to the various projects of European

Constitution from 1984 onwards, and from the Maastricht Treaty to the Lisbon

Reform Treaty. The consequences of this judicial ‘discovery’ seem so far-reaching that

it has become almost impossible to imagine ‘what EU law would have been without the

* Senior Research Fellow at the CNRS (Centre national de la recherche scientifique). The author wishes to

thank Karen Alter, Stéphanie Hennette-Vauchez, Bruno de Witte and the two reviewers for their useful

comments on this article. The article was written while a Marie Curie Fellow at the Robert Schuman

Centre for Advanced Studies (European University Institute).

1J. Weiler, ‘Rewriting Van Gend en Loos: Towards a Normative Theory of ECJ Hermeneutics’, in

O. Wiklund (ed), Judicial Discretion in European Perspective (Kluwer Law International, 2003), 151.

European Law Journal, Vol. 16, No. 1, January 2010, pp. 1–28.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

decisions of 1963 and 1964’2and, consequently, ‘what Europe would be without the

European Court of Justice?’.3It all occurs as if EC law scholarship and ECJ case-law

had essentially been about clarifying the scope of these two decisions and ascertaining

their general acceptance throughout Member States’ jurisdictions. Beyond the legal

realm, it seems that the very history of the European construction lies in the progressive

un-folding of these two cases’ ‘potentialities’. Over the years, neo-functionalist scholars

of various breeds4have contributed to produce a fully-fledged paradigm (‘integration-

through-case-law’) in which these two decisions, because of the new opportunities they

opened, are said to have prompted a whole process of Europeanisation involving a

variegated set of Euro-implicated actors (interest groups, multinational companies, EC

institutions, etc) before the ECJ.5As a consequence of this dense set of inter-related

narratives where these two decisions stand as cornerstones, it is virtually impossible

to reflect upon them without referring to their ‘logical’ outcomes, be they legal (the

formation of a highly integrated legal order), economic (the intense development of

intra-community exchanges) or political (the succession of treaties reinforcing Euro-

pean integration).6It seems that the whole European Community would fall apart,

were these decisions to be compromised or put in question.

The objective of this article is certainly not to deny the importance of these narra-

tives but to consider their very success as an object of research. To put it differently,

this Court-centred theory of Europeanisation is not taken as an explanatory frame

but rather as the phenomenon to be explained and accounted for. As it has been for

years, Europe’s most powerful and diffused meta-narrative, ‘Europeanisation through

case-law’ (hereafter ETCL), is an essential channel through which the EU polity has

been reflected upon by a variety of Euro-implicated actors. In other words, instead of

trying to assess how heuristic and explicative this theory of Europeanisation may be,

I analyse here its very genesis as Europe’s most established narrative, that is as a

frame central in defining contemporary visions and representations of Europe (ie as a

common sense). Such analysis requires looking back to the many academic and non-

academic struggles that took place over the years over the most appropriate theory of

law and Europe. Following the assumption that there are no natural reasons for

2R. Lecourt, ‘Qu’eut été le droit des Communautés sans les arrêts de 1963 et 1964?’, Mélanges Jean

Boulouis: l’Europe et le droit (Dalloz, 1991), 350.

3D. Simon, ‘Retour du mythe du gouvernement des juges?’, (2006) JurisClasseur—Europe 1. Here, and

throughout the article, the translations of the quotations are the author’s.

4On the saliency of this model, see U. Haltern, ‘Integration through Law’, in A. Wiener and T. Diez (eds),

European Integration Theory (Oxford University Press, 1997), 177–196; and, more recently, L. Conant,

‘The Politics of Legal Integration’, (2007) 20 Common Market Studies 39–56.

5For a review of this literature, see A. Vauchez, ‘Democratic Empowerment through Euro-law. Review

Article’ (2008) 7 European Political Science 444–452.

6As any foundational myth, the exegesis of Van Gend en Loos and Costa offers a selective reading of

history. Quite emblematically, the ECJ’s selection of its most important decisions presented in the

languages of the new Member States that joined the EU in 2004 starts with the decision Van Gend en Loos

of 5 February 1963. Available at http://curia.europa.eu/cs/content/juris/data57/liste.htm (accessed

25 September 2008). Highlighting those decisions that cast the purported emancipation of the ECJ

from classic inter-state politics, it neglects other ECJ’s decisions that could well be considered as equally

important in defining the Court’s jurisprudence. Among others, Confédération nationale des producteurs

de fruits et légumes v Council of the EEC, 14 December 1962 could also qualify as a ‘landmark decison’ as

it gave a very restrictive reading of the individual standing, therefore granting Member States with specific

privileges and rights within this new legal order.

European Law Journal Volume 16

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