The Changing Constitutional Role of the European Court of Justice

The process through which the founding Treaties of the European Communities came to function and be regarded as a constitution and the role of the Court of Justice in that process are well known. According to a widespread view, the Court would have been the main or even the only actor in the constitutionalization of the Treaties, transforming them into constitutional entities by virtue of some judgments of the 60s and 70s. For many, in those judgments the Court would have been excessively prointegrationist, too audacious, almost “running wild”. At some point, a number of constitutional courts, in particular the German Constitutional Court with its Maastricht decision of 1993, would have voiced their concerns, tracing potential limits to judicially driven integration. As a result, the Court of the 90s would have become wiser, more self-restrained, at times even minimalistic – more like a court and less like an omnipotent legislator or “pouvoir constituent.” With the calling of the European Convention and the drafting of the Treaty establishing a Constitution for Europe, the Court would have been more than ever on a second plane, as if constitutional matters had finally returned to the political actors to which they belong. For all its appeal, it seems to me that this view is exaggerated and partly misguided, that we need a less spectacular and more realistic account of the role of the Court in the constitutional dimensions of European integration. I will try to sketch it here, referring to a few judgments which are representative of the main four periods in the Court’s history: the 60s (foundational period), the 70s and 80s (consolidation), the 90s (in which a turning point clearly took place), and the new century. These leading cases stand for a predominant general trend that, in spite of some “eccentric” decisions, can be discerned in many other judgments of each period