The Silent Power Grabbers at the European Court of Justice
The European Court of Justice has systematically transferred power from EU member states to Brussels through binding rulings since its founding, transforming the bloc into a supranational entity.
Legal scholar Eric Stein opened his landmark 1981 essay in the American Journal of International Law with a stark warning about the European Court of Justice’s power grab, as Junge Freiheit reports: hidden away in Luxembourg, a court overlooked by politicians and media had constructed the constitutional framework for a federal Europe. The European Parliament still officially praises the ECJ as a driving force for European integration and celebrates the disempowerment of member states as an achievement.
From its inception, the ECJ has served as an instrument of silent dispossession. Its rulings are binding and irrevocable for all EU member states. The court has been instrumental in transferring national competencies step by step from member states to Brussels. Constitutional law scholar Joseph Weiler described this in 1994 as a “quiet revolution,” though the breathtaking details could fill an entire lecture series.
Herzog’s Early Warning Went Unheeded
These details are now being examined by the largely toothless Committee on Constitutional Affairs in the European Parliament, led by EU parliamentarian Sven Simon of the CDU. The committee is addressing what future awaits the interaction between ECJ jurisprudence and respect for the national identity of individual member states with their fundamental political and constitutional structures. The rapporteur is Simon’s political opponent, right-wing Sweden Democrat Charlie Weimers of the ECR group—a pairing that reflects the so-called firewall against conservative forces.
Nearly twenty years ago, on September 8, 2008, former German President Roman Herzog and Lüder Gerken of the Centre for European Policy in Freiburg published their appeal “Stop the European Court of Justice” in the Frankfurter Allgemeine Zeitung. At that time, both Weimers and Simon were just beginning their political careers.
Today, Weimers sits in the European Parliament as vice-chair of the right-conservative ECR group and is presenting the AFCO committee with a report on precisely those questions of ECJ power and competence that Herzog and Gerken once warned about. Simon leads this committee with a reputation that extends across party lines, earning praise even from influential French colleagues who typically judge German parliamentarians rather severely.
Court Explicitly Designed to Drive European Statehood
Barely established, the Court of Justice of the European Coal and Steel Community created in 1956—five years before the construction of the Berlin Wall—the principle of the “useful effect” of Community law in case C-8/55. Since then, national law must fundamentally be interpreted and applied in such a way that Community law achieves its full effect. The court also granted the institutions of the European Economic Community extensive “implied powers”—authorizations that appear in no treaty article but which EU institutions can invoke whenever they deem it helpful to achieve their objectives. The still-young Community law was thus granted from the outset what would decades later be called constitutional rank.
The death blow to the independence of nation-states fell in 1963. In the Van Gend & Loos case, the ECJ ruled that interstate Community law now had direct effect for private individuals. Since then, EU law applies in every bedroom. Germany, Belgium, and the Netherlands argued against this in court and lost. Under President André Donner, judges Louis Delvaux, Rino Rossi, Otto Riese, Charles-Léon Hammes, Alberto Trabucchi, and Robert Lecourt delivered the judgment, with Karl Roemer serving as the first German Advocate General.
Riese and Roemer were the highest representatives of the young Federal Republic at the ECJ. No one was held accountable. One year later, the Costa/ENEL ruling created the primacy of EU law over all national law, even though no treaty article provided for this at the time. Today, this primacy is still not codified in the EU Treaty. ECJ Judge Federico Mancini provided the explanation in the Modern Law Review in 1994: the preference for Europe follows the genetic code that the founding fathers transmitted to the court to guarantee the ever-closer union of the peoples of Europe. In short, the ECJ cannot help but drive forward the statehood of Europe.
National Constitutions Downgraded to Secondary Texts
No one stopped it. Protest remained absent. The ECJ then declared in the “Internationale Handelsgesellschaft” ruling absolute primacy of Community law even over national constitutions and national fundamental rights, since the validity of EU law could only be measured against Union law itself. This made the German Basic Law effectively a subordinate legal text, and the ECJ created its own self-referential autonomy. It was never held accountable for this, because the founding states did not rebel against the devaluation of their own national constitutions and institutions, which have since been downgraded within the EU multilevel system. Since then, the Basic Law has been a subordinate legal text whose EU-compliant application is decided on the Kirchberg hill in the Grand Duchy of Luxembourg.
The German supermarket chain Rewe had its concrete share in this development. In 1978, the company wanted nothing less than to import a French blackcurrant liqueur into Germany.
With information from Junge Freiheit
