The European Union’s legal system was created, so the story goes, by two astonishing decisions of the European Court of Justice (the ‘ECJ’) in the early 1960s. In the Van Gend en Loos decision of 1963, the European Court declared the ‘direct effect’ of European law, insisting that European law created rights for private individuals that national courts must protect. In the Costa decision of 1964, the European Court followed up by declaring the ‘supremacy’ of European law, whereby all conflicts between European and national law must be resolved in favour of the application of the European law obligation. These two decisions are the universally acknowledged dual foundation stones of today’s remarkable European legal order, that brought European Community law into the national courts for the benefit of private individuals.
Indeed, in the last couple of years the fiftieth anniversaries of these two decisions have been the occasion for many celebrations and commemorations — including a huge event at the European Court of Justice itself in 2013 — in acknowledgment of the leadership displayed by a tiny group of lawyers and judges at the European Court in 1963 and 1964.
In 1965, however, when Robert Lecourt, French ECJ judge and (we now know) perhaps the main author of these decisions, wrote to explain the Court’s recent judgments in the French journal France-Forum to, he referred not to two, but instead to three of the Court’s recent decisions. The third decision took place on 13 November 1964, in the Court’s Dairy Products decision. That decision ostensibly related to barriers to trade in milk and cheeses, but, more significantly, the Court had used the occasion to declare that the European legal order completely ruled out any use by its member states of the ‘self-help’ enforcement mechanisms usually so important to the enforcement of international law. Lecourt, in fact, not only mentioned this third decision but linked it logically to the other two more famous decisions of the European Court. The European legal order, he explained, required direct effect (as in Van Gend) and supremacy (as in Costa) because the member states had renounced the power to enforce obligations through self-help retaliatory action (as the ECJ had explained in Dairy Products). The new European legal system was not just a mechanism for empowering private individuals and national courts: it was expected to act in place of inter-state retaliation.
Understanding the EU’s legal system as using enforcement by national courts to break with enforcement by threats of inter-state retaliation is therefore compatible with the understanding of perhaps that system’s most important author. It has other advantages too — it allows the development of the European legal order to be linked with wider trends in European politics and society.
Take, for example, the growth of the welfare state in many European countries after the Second World War. One of the distinctive features of the new member states of the then European Economic Community was their political commitment to unemployment insurance, public housing, and many other redistributive and risk-sharing policies. At first sight, these policies might appear to have little to do with the doctrinal claims of the European Court of Justice. However, threats of inter-state retaliation often occur in international trade regimes when state policy-makers cannot accept the obligations being imposed by international tribunals such as the dispute settlement institutions of the World Trade Organization. The reason, in turn, that state policy-makers cannot easily accept these obligations is that they threaten to impose severe adjustments on groups in their domestic societies. So the acceptance of a much more automatic and intrusive system of treaty enforcement — such as that created by the European Court of Justice from the early 1960s — can be facilitated where participating member states provide their businesses and citizens with generous domestic welfare systems — such as those created by Germany, France, and the other integrating states of postwar Europe. In this way, and indeed others, the doctrines of the European legal order created by a small group of judges and lawyers in the early 1960s were highly compatible with the political commitments and economic changes experienced across European democracies after 1945.