Establishing a Constitutional Practice: The Role of the European Law Associations

Abstract

While the European Court of Justice (ECJ) is widely regarded as one of the key institutions of the European Union (EU) today, its central position was far from obvious to observers when the treaty founding the European Economic Community (EEC) came into force in 1958. While this treaty maintained the ECJ as an institution from its establishment in the European Coal and Steel Community (ECSC) of 1951–2, the legal order envisaged depended completely on the goodwill and cooperation of national courts because the latter alone had the competence to apply European law in the national legal orders. Even the system of judicial review established in Article 177 of the EEC treaty, which gave the ECJ sole competence to interpret European law, required the submission of preliminary references from national courts in the first place.’ To the European institutions, this structural dependence on national courts in European law posed a serious challenge because national legal elites were among the most conservative guardians of state sovereignty. This was all the more problematic because the establishment of a common market, which was the EEC’s core ambition, depended on the development of a European legal order that would ensure the enforcement of European law in the member states and thereby the provision of legal security and predictability needed to convince economic actors to invest in a European future.