THE EVOLUTION
OF
THE
EUROPEAN
LEGAL
SYSTEM:
THE
EUROPEAN
COURT
OF
JUSTICE'S
ROLE
IN
THE HARMONIZATION
OF
LAWS
Yvonne
N.
Gierczyk"
1.
INTRODUCTION
.........................................
154
II.
THE
EUROPEAN
COURT
OF
JUSTICE
.........................
156
III.
ARTICLE
234
...........................................
157
A.
General Description
.................................
157
B.
How
Article
234
Functions
...........................
159
C.
Purpose
behind
Article 234
...........................
160
D.
Case
Law
Developing
Article 234
......................
161
1.
Da
Costa
v.
Nederlandse
Belastingadminstratie
........
161
2.
Srl
CILFIT
v. Ministry
of
Health
...................
162
IV.
How
THE
ECJ
GREW
POWERFUL
VIA
ARTICLE
234
.............
163
A.
Overview
.........................................
163
B.
Transforming
an International
Treaty
into
a
Constitutional
Treaty
................................
164
C.
Integration
by
Adjudication
...........................
165
D.
Building
Blocks
of
the
EU
Legal
System
.................
166
1.
Supremacy
of
EU
Law
...........................
167
2.
Doctrine
of
Direct
Effect-Giving
Private
Litigants
a
Voice
................................
169
E.
Expanding
the
Scope
of
its
Jurisdiction
..................
173
F.
Garnering
the
Support
of
National
Courts
................
174
V.
MEMBER
STATES
REACTION
...............................
177
A.
Background
.......................................
177
B. Low
Profile
Decisions
...............................
178
C.
Different
Time
Lines
for
Politicians
and
Judges
...........
179
D.
To
Deny
an
ECJ
Decision
is
Like
Denying
Membership
to
the
EU
...............................
179
E.
Difficulty
in
Reversing
or
Curtailing
the
ECJ's
Power
......
180
VI.
CONCLUSION
...........................................
180
"We
must
build
a
United
States
of
Europe."
Winston
Churchill'
J.D.
candidate,
May
2006, University
of
Houston
Law
Center;
B.A.,
Trinity
University,
2002.
1
want
to
thank
Professor
Zamora for
all
of
his
encouragement.
1.
Winston
Churchill,
Speech at
Zurich University
(Sept.
1946);
See
GEORGE
A.
BERMANN
ET
AL.,
154
ILSA
Journal
ofInternational
&
Comparative
Law
[Vol.
12:153
I.
INTRODUCTION
After
the
dust
settled
from
World
War
II,
Winston Churchill
declared
the
need
for
Europe
to
integrate
economically and
politically.
Integration
promised
not
only peace, but
the
means
by
which
Europe
could
remain
a
world
power.
The
European
Union
(EU)
is
considered
by
many
the
answer
to
Europe's
post-
war
condition.
2
The
creation
of
a
common market
in
1992,
a
single
monetary
unit
in
1999,
and the
latest
induction
of
Eastern European countries
in
2004
demonstrate the
success
of
the
EU.
3
With
the
impending ratification
of
the
Treaty
Establishing
a
Constitution
for
Europe,
4
it
is
clear
that
the
European
Union has
evolved
from
a
mere
free
trade agreement
5
to
an
economic
and
political
union.'
Fundamental to
the
formation
of
an
integrated Europe
has
been
the
creation
of
a
common
legal
system.'
CASES
AND
MATERIALS
ON
EUROPEAN
UNION
LAW
4
(West
Group
2d
ed. 2002)
(1993)
(giving context
to
Churchill's
speech);
See
also
JOHN CHARMLEY,
CHURCHILL'S
GRAND ALLIANCE
248
(1995).
2.
A
Divided
Union,
ECONOMIST,
Sept.
25,
2004,
at
14
[hereinafter
"A
Divided
Union"].
3.
JOHN
VAN
OUDENAREN,
UNITING
EUROPE:
AN
INTRODUCTION
TO
THE
EUROPEAN
UNION
I I
(Rowman
&
Littlefield,
Inc.
2d
ed.
20
05)
[hereinafter
UNITING
EUROPE];
see
generally
BERMANN,
supra
note
1
;
The
EU
at
a Glance,
http://www.europa.eu.int/abc/index-en.htm (last
visited
Feb.
13,
2005)
("[The
EU]
has
helped
to
raise
living
standards,
built
a
single
Europe-wide market,
launched
the
single
European currency, the
euro,
and
strengthened
Europe's
voice
in
the world.").
4.
See
generally
Treaty
Establishing
a
Constitution
for
Europe,
Dec.
16,
2004, 2004
O.J.
(C
310)
1;
see
also
A
Divided
Union,
supra
note
2,
at
10.
5.
The seeds
of
the
EU
were
planted
in 1952
with
the
creation
of
the
European
Coal
and
Steel
Treaty
(ECSC).
BERMANN,
supra
note
1,
at
5.
France,
Germany,
Italy,
and
the
three
Benelux
countries
designed
the
ECSC
Treaty
to
ensure
that Germany
would
not
develop
a
supply
of
weapons.
Id
6.
See
Reinhard Zimmermann,
The
"Europeanization"
of
Private
Law
Within
the
European
Community
and
the
Reemergence
of
a
European Legal
Science,
I
COLUM.
J.
EUR.
L.
63, 73 (1995)
(referring
to the
movement
towards
integration with the
passage
of
the
Single
European
Act,
the
Maastrich
Treaty,
and
stating "[o]bviously, therefore,
the
political
will
exists
to advance the
process
of
European
integration
on an
economic,
political,
and
cultural
level;
and
it
appears
to
be
perfectly
appropriate
to
facilitate this process
by
striving
towards
legal
unity.");
see
also
CATHERINE
BARNARD,
THE
SUBSTANTIVE LAW
OF THE
EU:
THE
FOUR
FREEDOMS,
6
(2004)
("The
history
of
the
EU
lends
support
for
neo-functionalism
as
an
explanation
for
the
integration
process
-
in
less than
fifty
years
the
EU
has
moved from
being merely
a coal
and
steel
community
to
now
a
major
economic
and
monetary union.").
7.
See
Vivian
Grosswald Curran,
Romantic
Common
Law,
Enlightened
Civil
Law:
Legal
Uniformity
and
the
Homogenization
of
the
European
Union,
7
COLUM.
J.
EUR.
L. 63,
121
(2001)
("The
feasibility
of
a
coherent
European
economic
system
inevitably depends
on
a
coherent
European
legal
order,"
quoting
Eric
Stein,
Assimilation
of
National
Laws
as
a
Function
of
European
Integration,
58
AM.
J.
INT'L
L.
1,
29
(1964));
see
also
George
Tridimas
&
Takis
Tridimas,
National
Courts
and
the
European
Court
of
Justice:
A
Public
Choice
Analysis
of
the
Preliminary
Reference
Procedure,
24
INT'L
REV.
L.
&
ECON.
125,
127
(2004)
("Uniform
interpretation
of
law
reduces
distortions
of
competition and
promotes economic
efficiency");
Historical
experience
has
demonstrated that
a
common
market
or free
trade area
cannot
operate smoothly
without
certain
generally
recognized rules
and procedures,
without
2005]
Gierczyk
The
task
of
unifying
European
nations
with different
languages,
legal
systems,
and
sordid
pasts
represents
a
significant
hurdle
to
achieving
harmoni-
zation
of
laws.
8
The
European
Court
of
Justice
(ECJ)
through
Article
234
(ex
Article
177)
of
the
Treaty
of
Rome,"
the
preliminary
ruling
procedure, has been
the main
facilitator
in
the
legal
integration
of
Europe.
l°
Although
grounded
in
the
civil
tradition,
the
ECJ's
interpretation
of
Article
234
bestows
its
decisions
with
the
power
of
precedents. Thus,
by
borrowing
from
the
common
law
tradition,
the
ECJ
has
created
a
system
of
integration
by
adjudication.
This
comment
seeks
to
illustrate
the
evolution
of
the
European
legal
system
as a
part
of
the
evolution
of
the
European
Union,
and
the
ECJ's
key role
in
the
harmonization
of
laws
via
Article
234.
Part
II
provides
a
background
on
the
ECJ.
Part
III
introduces Article
234
and
explains how
the preliminary ruling
system
functions.
Part IV
analyzes the
ECJ's
expansion
of
jurisdiction
by
giving
its
decisions
the
power
of
precedent
through
Article
234. Part
V
addresses
how
Member
States
allowed
for
this
expansion
of
power. Part
VI
concludes
by
discussing
the
evolution
and
harmonization
of
the
European
legal
system
as
part
of
globalization.
a
core
of
common legal
institutions
and
convictions
....
Legal
unification has also
always
been
both stimulus
for
and
consequence
of
political
unification,
and as
a
cultural
phenomenon
it
serves
to
strengthen
the
feeling
of
provincial,
national
or
supranational
identity.
Zimmermann,
supra
note
6,
at
73;
Geoffrey Garret,
R.
Daniel
Kelemen
&
Heiner
Schulz,
The
European Court
of
Justice,
National
Governments,
and
Legal
Integration
in
the
European
Union,
52
INT'L
ORG.
149
(1998).
8.
See
UNrrING
EUROPE,
supra
note
3,
at
15
(stating
that
"the
EU
of
today
has
twenty-five
members
and
twenty
official
languages
using
two
alphabets, the
Greek
and Roman.
Economically,
culturally,
and
socially it
is
far more
diverse
than
the
Carolingian
Europe
of
1957.");
see
also
Curran,
supra
note
7,
at
121.
("Scratching
the
surface
of
the
European
Union's
legal
system
might
bring
into
view
a
juridical
Tower
of
Babel,
due to the
clash
of
discordant
legal
cultures
between
the
two
principal,
divergent
legal
systems
coexisting
in
the
European Union:
namely,
the
common-law
and
civil-law
systems.");
see
also
Zimmermann,
supra
note
6,
at
65
(noting that
"for
the
past
two hundred
years or
so
there have been,
in
principle,
as
many
legal
systems
(and,
consequently,
legal
sciences)
in
Europe
as there
are
nation states.").
9.
Treaty
Establishing
the European
Community,
Feb.
7
1992,
U.J.
(C224)
1
(1992),
[1992]
3
C.M.L.R.
573
(1992)
[hereinafter
EEC
Treaty].
10.
Francis
G.
Jacobs,
Judicial
Dialogue
and
the
Cross-Fertilization
of
Legal
Systems:
The
European
Court
of
Justice,
38
TEx.
INT'L
L.J.
547,
550
(2003)
("It
is
probably
true
to
say
that,
over
the
first
thirty
years
of
the
EEC,
the case
law
of
the
ECJ
made
a
more significant
contribution
to
European
integration
than
any other
development
over
that
period.");
see
also
Matthew
T.
King,
Comment,
Towards
a
Practical
Convergence:
The
Dynamic
Uses
ofJudicial
Advice in
United
States
Federal
Courts
and
the
Court
of
Justice
of
the
European
Communities,
63 U.
PrrT.
L.
REV.
703,
723
(2002)
("Article
234
(then
177)
'is
essential
for
the
preservation
of
the
community
character
of
the law
established
by
the
treaty
and
has
the
object
of
ensuring
that
in
all
circumstances
this
law is
the
same
in
all
states
of
the
Community,"'
quoting
the
ECJ's
opinion
in
Case
166/73,
Rheinmuhlen-Dusseldorf
v. Einfuhr,
1974
E.C.R.
33)).
156
ILSA
Journal
of
International
& Comparative
Law
[Vol.
12:153
II.
THE
EUROPEAN
COURT
OF
JUSTICE
The
Treaty
of
Rome
created
the
ECJ
in
1957
to
resolve
disputes
concerning the
European
Community
(EC)
Treaties
and
assist
national
courts
in
the
uniform application
and interpretation
of
EU
laws."
The
ECJ
is
charged
with the
duty
of
interpreting
treaties
and
making
sure
that
Member
States
comply
with
EU
law.'
2
"The
over arching
obligation
of
the
ECJ
is, in
this view,
to
pursue
the
primary
objective
of
the EC
Treaty
as
set forth in
the
Preamble:
'an
ever
closer
union
among
the
peoples
of
Europe.'"13
The
ECJ
holds
four powers:
1)
judicial
review;
2)
answering
preliminary
questions
under
Article 234;
3)
answering
administrative
questions
regarding
EU
personnel;
and
4)
reviewing
decisions
of
the
Court
of
First
Instance
(CFI).
1
4
This
discussion
focuses
on
the
second
power,
the
preliminary
ruling procedure
under Article 234,
which
represents
the
majority
of
the
ECJ's
work.
5
While
it
might
seem
natural
to
draw
an
analogy
that the
ECJ
is to
the
EU
what
the
Supreme
Court
is
to
the United
States,
"the
Treaty
of
Rome
did
not
provide
for
the
establishment
of
a
Supreme
Court.'
6
Unlike
the
United
States
Supreme
Court,
which
hears
appeals from
lower
courts,
the
ECJ does
not
hear
appeals
from lower
courts because
there
are
no
lower courts,
with
the
exception
11.
Kevin
Andrew
Swartz, Note,
Powerful,
Unique,
and
Anonymous:
The
European
Court
of
Justice
and Its
Continuing
Impact
on
the
Formation
of
the
European
Community,
3
S.
CAL. INTERDISC.
L.J.
687,
691
(1994).
12.
See
BERMANN,
supra
note
1,
at
58
("Article
220
(ex
164)
of
the
EC
Treaty
gives
the Court
the
responsibility
for
'ensur[ing] that
the interpretation
and application
of
this
Treaty
the law is
observed."').
13.
Peter
L.
Lindseth,
Democratic
Legitimacy
and
the
Administrative
Character
of
Supranationalism:
The
Example
of
the
European
Community,
99
COLUM.
L.
REv.
628,
701
(1999)
(quoting
preamble
of
EEC
Treaty:
"The internal
market
is
the
cornerstone
of
that 'ever
closer
union,'
and
together
they constitute the
very
purpose-the
'telos'-of
the
EC.").
14.
See
generally
BERMANN,
supra
note
1,
at
58-71 (giving
a
detailed
account
of
the
ECJ
facts,
such
as
terms
of
judges,
the
composition
of
the court,
and the
Court
of
First
Instance
(CFI)). The
CFI
was created
in
1988
to deal
with
the
overload
in
the
ECJ's
docket).
Id.
at
65.
It
primarily
hears cases
dealing
with
private
litigants,
whereas the
ECJ
handles
cases
between
Member
States
and
EU institutions.
Id.
at
66.
See
also
Justice
Breyer,
Constitutionalism,
Privatization,
and
Globalization:
Changing Relationships
Among
European
Constitutional Courts,
21
CARDozo L.
REV.
1045,
1049-1051 (2000) (giving
a
simple explanation
and
background
to
the ECJ
and
how
it
works).
15.
Breyer,
supra
note
14,
at
1049;
see
also
BERMANN
supra
note
1,
at
352
(noting
that
referrals
compose about
half
of
the
ECJ's
case
docket).
16.
Tridimas,
supra
note
7.
of
the
CFI.
7
"This
is
hardly
surprising
since
the
Community was
not born
as
a
federation
but
rather
as a
sui
generic
supranational entity
with
an
open-ended
integrative
potential."'
8
Because
the
other
EC
institutions
exercise
powers
of
execution
and
legislation
to
enforce
the
Treaty
of
Rome,
it
was
"imperative
that
there
should
be
some
mechanism
to
ensure
the
uniform application
of
Community
law
throughout
the Member
States."'
9
The
possibility
of
national
courts
rendering
different
interpretations
of
the
EC
Treaties impedes
the
goal
of
economic
and
legal
harmonization.
2 °
The
only
way
for
the EU to
overcome
150
years
of
different constitutions
and
civil
codes was
to give the
ECJ
the
power
to
overrule
the
national courts
and establish
a
precedent
that
national
courts
would
be
obliged
to
follow.
2
"That
is,
the
EC
relied
on
its
adjudicative
authority
to
give
content,
on
a
case-by-case
basis,
to the
common
market
norms
set
forth
in
the
Treaty.,
22
Through Article
234's
preliminary
ruling
procedure,
the
ECJ was
given
"unifying
jurisdiction.
'23
m.
ARTICLE
234
A.
General Description
Article
234
provides:
1)
The
Court
of
Justice
shall
have
jurisdiction
to
give
preliminary
rulings
concerning:
a) the
interpretation
of
the
Treaty;
b)
the
validity
and
interpretation
of
acts
of
the
institutions
of
the
Community
and
of
the
ECB;
c)
The
interpretation
of
the statutes
of
bodies
established
by
an
act
of
the
Council,
where
those statutes
so
provide.
2)
Where such a question
is
raised
before
any
court
or
tribunal
of
a
Member
State,
that
court or
tribunal
may,
if
it
considers
that
a
decision
on
the
question
is
necessary
to
enable
it to give
judgment,
request
the
Court
of
Justice
to give
a
ruling
thereon
3)
Where any
such
question
is
raised
in
a
case
pending
before
a
court
or
tribunal
of
a
Member
State,
against
whose
decision
17.
See
BERMANN
supra
note
1,
at
65-70
(addressing
the
creation
of
the
CFI
to deal
with
the
ECJ's
overloaded docket).
18.
Tridimas,
supra
note
7.
19.
Id.
20.
See
id.
21.
Id.
22.
Lindseth,
supra
note
13,
at
662-63.
23.
Tridimas,
supra
note
7.
Gierczyk
2005]