The European Court of Justice (hereafter referred to as ‘the ECJ’) is based in Luxembourg and consists of fifteen nominated judges, “chosen from persons whose independence is beyond doubt” (Article 167 EC). Its role is understated as being to “ensure that in the interpretation and application of [the] Treaty the law is observed” (Article 164 EC). Whilst it is true that the ECJ has very little input either in the process of initiating or implementing proposals it would be wrong to think that the ECJ is concerned merely with interpreting and applying Community law in a way that, for example, English courts act in respect of English law.
The ECJ has been described as “an unsung hero”(10) and “an actor with a powerful vision and remarkable influence in shaping key dimensions of the evolving Community”(11). I shall now look at examples of this power and influence. There are many types of action brought before the ECJ and as a result of this the Court is faced with a vast and ever increasing workload.
These actions include; infringement actions brought by the Commission (Article 169 EC), actions to review the legality of acts of the institutions (Article 173 EC), actions for failure to act (Article 175 EC) and requests by national courts on the interpretation or validity of Community Law (Article 177 EC). The EC Treaty leaves out details essential to the smooth running of the EC. Indeed Lord Denning MR pointed out in Bulmer v Bollinger  2 All ER 1226 that, “the Treaty [EC] is quite unlike any of the enactments to which we [in UK] have been accustomed…
It lays down general principles. It expresses aims and purposes… but it lacks precision. It uses words and phrases without defining what they mean. All the way through the Treaty there are gaps and lacunae. These have to be filled in by the judges, or by regulations or directives. It is the European way” As I have already looked at the creation of regulations and directives I shall now discuss some of the aforementioned gaps and lacunae that are filled by decisions of the ECJ.
Such a gap in the Treaty is on the question of the supremacy of Community law. The answer to this question can, to some extent, be inferred from Article 5 EC which requires Member States to abstain from any measures which jeopardise the attainment of Community objectives. However it has been left to the ECJ, for the most part, to articulate this doctrine. The first case on this issue was that of Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR I which decided that,
“the Community constitutes a new legal order of international law, for the benefit of which states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but their nationals. ” This decision has since been described by Burley and Mattli as one which, “singlehandedly transformed the Treaty of Rome from an essentially nonenforceable international treaty to a domestic charter with direct and enforceable effects”. (12) Another key case in this area was that of Case 6/64 Costa v ENEL  ECR 585.
Here the ECJ gave a direct statement on the supremacy of EC law. Many important issues, further to those in Van Gend en Loos, were decided. The judgement included; i) that Community law is binding in member states ii) that in the case of conflicts Community law prevails as, “the law stemming from the treaty… could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question”
The Court also made it clear that the doctrine of Community law supremacy was not one that it had merely invented but one that could be inferred from the treaty. It said that, “the precedence of Community law is confirmed by Article 189… this provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law”. Therefore laws passed by member states before treaty legislation are pre-empted.
The ECJ went further than this in Case 11/70 Internationale Handelsgesellschaft mbH  ECR 1125 in saying that Community Law even prevails over written constitutions such as that of Germany. The question still stood, however, as to what would happen if a national law, in conflict with EC law, is passed after treaty legislation. In Case 106/77 Amministrazione delle Finanze v Simmenthal  ECR 629 it was decided that such laws are treated in the same way as laws passed before treaty legislation otherwise this,
“would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and would imperil the very foundations of the Community”. A further development in the doctrine of the supremacy of Community law came in the relatively recent Case-213/89 R v Secretary of State for Transport ex. parte Factortame Ltd.  ECR I-2433 where the ECJ forced the UK to override a constitutional rule preventing interim relief against the crown as this would impair, “the full effectiveness of Community law”.
It is therefore possible to see how the ECJ has created this doctrine of the supremacy of Community law. It has done this to ensure uniformity and equal treatment within the EC and has thus helped to ensure the integration of member states within the Community. Another area in which the ECJ has played a crucial role is in the removal of barriers to trade, more specifically under Article 30 EC which states that, “Quantative restrictions on imports and all measures having equivalent effect shall… be prohibited between Member States”.
The most significant case in this field is Case 120/78 Rewe-Zentral AG v Budesmonopolverwaltung fur Branntwein  ECR 649, otherwise known as Cassis de Dijon. In this case the ECJ established the principle of ‘mutual recognition’. It decided that, “there is no valid reason why, provided that [goods] have been lawfully produced and marketed in one of the Member States, [they] should not be introduced into any other Member State.
” The Court accepted the exceptions to this rule, areas of so called “mandatory requirement” such as public health, public morality etc., a list which it has since gone on to extend and define. However, in general terms, the Court decided that Member States should not be allowed to restrict the importation of goods from other Member States. Such a restriction would be contrary to the idea of the internal market and the free movement of goods within the European Community and would hamper integration as a whole. In looking at the way the ECJ interpreted Article 30 EC, as well as many other articles, we can see that it does so in a goal orientated fashion, taking into account the broad agenda of social and political integration within the EC.
This interpretation by the ECJ of Treaty provisions is of key importance to the promotion of a united Europe. Moreover, it is not just the Treaty provisions that the ECJ is called on to interpret but additional legislation, such as Regulations or Directives. Such legislation, especially that in contentious areas, is often poorly or ambiguously drafted, allowing for subsequent interpretation by the ECJ. This therefore allows the ECJ to facilitate the integration process by placing the initial aims and objectives of the Treaty at the forefront of the European unity.
A further concept designed to ensure the direct application of Community law is that of direct effect, which allows the enforcement of Community legal rights through the national courts. This concept is a purely judicial one, having been created exclusively by the ECJ, and clearly demonstrates the role of the ECJ in constitutionalising the treaty. Direct effect first came to light in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR I.
Here the ECJ justified it by saying firstly that the functioning of the common market was of direct concern to individuals and the treaty didn’t just create a mutual obligation between member states. Secondly that the exercising of sovereign rights by the EC affects the citizens themselves so they should be allowed to rely on Community law in national courts. Therefore direct effect was established as a method of allowing EC law to penetrate into national legal systems and regulate not only the member states but their citizens as well.
Direct effect is responsible for widespread integration, especially in areas such as the free movement of goods and decentralisation. That said however direct effect is not the answer to everyone’s problems and although its scope is wide it is certainly not exhaustive. Therefore the situation arose whereby certain citizens were allowed to rely on Community law in national courts, yet others, because their particular issue did not fall under the scope of direct effect, had no recourse. This obviously did not go all the way to creating a uniform application of Community law.
The ECJ therefore created another new doctrine which it labelled indirect effect. This doctrine, created in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen  ECR 1891, means that national courts have a duty to interpret national law to give effect to Community obligations whether or not those obligations are directly effective. This doctrine was developed, by the ECJ, through a series of landmark cases including, Case C-106/89 Marleasing SA v La Commercial Internacional de Alimentacion SA  ECR I-4135.
Here the court decided that even national law which predates a Community obligation must be interpreted in the light of the subsequent obligation. The court gave as its reason for this, the obligations on Member States under Article 5 EC (obligation ‘not to jeopardise the attainment of… objectives’) and Article 189 EC (‘a directive shall be binding, as to the result to be achieved, upon each member state). Therefore by creating indirect effect the ECJ went some way further to filling the gaps created by direct effect and thus ensured greater uniformity and availability of Community law.
A final area in which the ECJ has taken huge steps to aid the full integration of Europe and European Community law is in the area of remedies and the protection of Community law rights. Although the Commission might be the institution that creates the rights, it has, especially in the past, not considered carefully enough what remedies might be available. Often there has either been no national remedy available or, even if there was, it was not adequate.
Moreover what if each of the fifteen member states have different systems to govern remedies. Where is uniform application there? It has therefore been left to the ECJ to rectify the situation. During the 1970s the ECJ was still cautious about getting involved with remedies but it finally moved towards a more active role in the Case 14/83 Von Colson and Kamman v Land Nordrhein-Westfalen  ECR 1891. Here the court decided that if national law remedies weren’t adequate they should be set aside. It drew up three standards governing remedies.