The Government and Politics of the European Community

This decision was backed up in the later cases of Case C-177/88 Dekker v Stichtung voor Jong Volwassenen Plus [1990] ECR I-3941 and Case C-377/89 Cotter and McDermott v Minister for Social Welfare [1991] ECR I-1155. It was therefore clear that the ECJ sought to remove national barriers in order to ensure the protection of EC rights. This principle was extended beyond the enforcement of directives in Case C-213/89 R v Secretary of State for Transport ex parte Factortame [1990] ECR I-2433. The ECJ decided that it was an obligation of the UK courts to set aside the national rule which disallowed interim injunctions against the crown.

Such a rule would prevent EC law from having "full force and effect" and so must be set aside. Such a removal of national barriers showed the ECJ's willingness to get involved in the field of remedies in order to promote integration and uniformity throughout the EC. This willingness was taken even further during the 1990's when the ECJ not only sought to integrate remedies negatively, through the removal of national barriers, but also positively, by actually creating new remedies. This positive integration of remedies came to fruition in the landmark, Cases C-6/90, 9/90 Francovich and others v Italian State [1991] ECR I-5357.

Here the Italian government had failed to implement an EC directive allowing for compensation to be given to workers made redundant following the insolvency of their employers. The ECJ therefore created a Community law remedy for state liability, again using the abiguous Article 5 EC to partly justify the measure. The ECJ held that, "the principle whereby a state must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the state can be held responsible is inherent in the system of the Treaty.

" It then set down three conditions; 1) the directive must entail the granting of rights to individuals 2) the contents of those rights must be discernible from the directive 3) there must be a casual link between the loss suffered and the breach of the state's obligation. It was also stated in this case that the scope of the principle extends to the Treaty, regulations and directives. This decision was especially important as it was given just before 1992 and the internal market program which required the implementation of 282 directives.

Obviously the quicker and more efficiently these directives were implemented by each Member State, the quicker European integration could develop. Also to be noted when considering the decision in Francovich is the criticism from various authorities(13) that the Commission is weak when it comes to dealing with Member States that have failed to implement Treaty obligations. This weakness may derive from a desire not to appear too heavy-handed or simply due to lack of resources. It is therefore clear that the onus has been left on the ECJ to act where the Commission has failed or been unable to do so.

Following the ECJ's decisions in the field of remedies the Commission has finally become more concerned with the matter. It published a communication on the matter in 1995 and is also thinking putting 'penalty clauses' in directives specifically designed to deal with remedies so that the member states will have to notify the Commission what form of penalties they intend to use. However it must be noted that it was the ECJ that paved the way for clauses of this type, thus helping the integration process. Conclusion. Synder points out two disadvantages of having a judicial system ensuring the effectiveness of Community law.

He states, "there is a real question whether the effectiveness of law can be ensured adequately by a system triggered solely by individual claims… [such a system] is likely to be less normatively coherent and less comprehensive than a legislative scheme"(14). I certainly have no argument with the first disadvantage. It is clear that the ECJ has no power to initiate proceedings or legislate in an area unless in the context of a case brought before them. So if the ECJ feels the need to legislate in a particular area it must wait for a relevant case to occur.

However to say that rules created by the ECJ are "less… coherent and… comprehensive than a legislative scheme"(ibid. ) is not, in my view, entirely true. One only has to look at the often ambiguous and vague Community legislation compared with the often clear and precise judgements of the ECJ to see this. Whilst I admit that the Commission regulates a far wider area that the ECJ, in those areas which the ECJ operates it often seems to do so in a clear and extensive manner. It has also been argued by Burley and Mattli, "that the ECJ uses the EC Commission as a political bellwether.

In any given case, the ECJ looks to the Commission's position as an indicator of political acceptability to the member states of a particular result or a line of reasoning. "(15) This would suggest that the ECJ relies on the Commission, as an objective supranational body, to form a balanced perspective on political matters and to establish boundaries of acceptability. This partnership is the key to European integration. No institution, whether it be the ECJ, the Commission or any of the other institutions, operates in a vacuum. Each institution relies upon each other in its functioning and operation.

But here we seem to be forgetting a fundamental fact. The basic idea behind courts must surely be that they decide legal and not political issues. Yet more and more the ECJ is being called upon to decide matters of politics rather than law. This point is emphasised by Burley and Mattli who claim that, "Law functions as a mask for politics" and that "political outcomes are debated and decided on the language and logic of law". (16) What they are saying here is that although decisions of the ECJ are part of a legal procedure, using legal language, the basic outcome is a political one.

This clearly seems to be new territory for a legal court and is a subject of much debate. Whether the ECJ has emerged as the dominant supranational institution is a difficult question to answer The ECJ is can certainly be described as a dominant supranational institution. It is called upon to interpret provisions of EC law, helping to ensure uniformity and consistency which in turn helps ensure the idea of common policies, an idea at the very heart of the Community. The harmonisation or replacement of national laws also helps ensure such a consistency.

The ECJ has been responsible for the creation and development of doctrines such as the supremacy of EC law, direct effect, indirect effect and state liability. The Commission for its part has a key role to play in initiating legislation as well as the equally, if not more, important role of acting as the Community watchdog. In this way it ensures that the Community objectives, set out in the Treaty of Rome, are pursued and obtained. To say one institution is more powerful or dominant than the other would be wrong.

The only thing that is clear is that both the Commission and the European Court of Justice have played, and will no doubt continue to play, a vital role in the promotion of integration. This process of integration is down to each institution working together to create a unified Europe.


1. Nugent, N: The Government and Politics of the European Community, 3rd edition. p. 85 2. Church, C. H. and Phinnemore, D: European Union and European Community. p. 277 3. Nugent, N: The Government and Politics of the European Community, 3rd edition. p. 99 4. Pinder, J: European Community-The Building of a Union, 1995. p. 26