Written by ‘Briefings for Britain’
This article was first published in ‘Briefings for Britain’ and we republish with their kind permission.
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Fealty to the principle of the ‘rule of law’ was jettisoned in the Court’s early years as it took an activist approach to its work e.g. the two most important aspects of the EU, which make it categorically different to other multilateral organisations – the supremacy of EU law[ix] and its direct effect[x], were created by judicial fiat. Neither were legal principles in the original Treaty of Rome agreed by the signatories.[xi] Once in-place these enabled – through subsequent case law – the consolidation and expansion of the EU’s supreme legal order and steady subjugation of the democratic processes within the member states and the erosion of the jurisdiction of domestic law.
Examples of this jurisprudential ‘growth’ include, but are not limited to, the cases of Les Verts (1986), Chernobyl (1990) and Francovich (1991) [where there was] little or no foothold…to be found in the Treaties for any of the decisions reached. In…Francovich…[the Court of Justice created the doctrine of]…liability of Member States for violations of EC law. All previous attempts at codifying such a rule having failed, the ECJ was happy to proclaim it a principle actually already ‘inherent’ in the Community legal order.[xii]
The Court of Justice has gone further than making-up new legal principles to suit its political agenda, it has actively ignored explicit prohibitions on actions by the EU, in order to aid help the EU continue to pursue its desired policies. In the Gauweiler judgment the politics of the Euro and ‘propping up’ the Eurozone economy took precedence over explicit injunctions in the Treaties against ‘monetary financing’.[xiii] In other words, clear limitations on the competences of the institutions in the Treaties of the EU were thrown aside for politics and its own benefit.
The radical historian E.P Thompson set out the key ingredients for a democratic socialist rule of law. He stated that for there to be a genuine ‘rule of law’ there needed to be a stable framework putting limitations on the exercise of power, with rules ‘exactly defined [based upon] consensual assent and subject to interrogation and reform’.[xiv]
Life under the Court of Justice does not meet any of Thompson’s criteria. On the contrary, the Court actively violates each of his conditions:
- Its rulings and therefore the law it creates are immune to ‘interrogation’ and ‘reform’ because of its ‘mastery’ of the Treaties and supremacy of the EU’s legal order.
- It adjudicates on the limits of its own powers (i.e. the jurisdiction of EU law and the EU’s institutions) and, as has been illustrated, the ECJ rarely constrains power but frequently expands the EU’s powers.
- There is no process for ensuring the judge-made law of the ECJ has ‘consensual assent’. Its absence is particularly notable when the Court of Justice makes sweeping constitutional changes, with wide-ranging consequences for the member states and their constitutional orders, through the technicalities of judicial decision-making.
The EU’s neo-liberal constitution
The political and legal developments described in the preceding two sections have enabled the Court to play a central role in establishing the EU’s Internal Market by ‘constitutionalising’ a neo-liberal political economy across all 28 member states.[xv]
Neo-liberalism valorises values that are anathema to democratic socialists. The former promotes the expansion of economistic utilitarian values into many aspects of political, social and cultural life and is relaxed about ‘justice’ being determined by market interactions, with little attention paid to issues of power and privilege with little time for alternative values such as solidarity and equality.
As a result of the Court of Justice’s strangulation of democracy and voiding of the ‘rule of law’ it has elevated neo-liberal tenets into constitutional principles, imposing upon the member states the dis-embedding of capitalism from its national moorings and creating a transnational space for capitalistic processes to function more freely and intensely.[xvi] As part of the process of ‘constitutionalising’ neo-liberalism and negating principles of equality and solidarity, the Court has made specific judgments which:[xvii]
- Attack collective bargaining, the terms and conditions of workers and the ‘right to strike’.
- Enable (and de facto encourage) tax avoidance (not least by undermining the powers of national tax authorities).
- Constrain the influence of governments over industry.
- Drive the marketisation of public services; and
- De-regulate goods and services markets.
If the UK were to re-join the EU it would be irrelevant whether the UK’s electorate wanted the economy run along democratic socialist lines. If – at the point of re-accession – it was already being so run, the UK would soon find its democratic socialist model of political economy being un-wound, due to the unlawfulness of many policies under the EU’s neo-liberal legal order.
To claim to be a democratic socialist and support re-joining the EU (and falling under the arbitrary ani-democratic neo-liberal authority of the Court of Justice) is paradoxical to put it at its politest. It would certainly be a profound example of cognitive dissonance. Ultimately, the only conclusion for an intellectually honest democratic socialist is that the UK must never return to the jurisdiction of the Court of Justice and thus membership of the EU.
[ix] Case 6/64 Costa v ENEL  ECR 585.
[x] Case C-26/62 Van Gen den Loos v Nederlandse Administratie der Belastingen  ECR I
[xi] de Waele, H. The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment. Hanse Law Review, Vol 6, No 1. (2010). P 5.
[xii] de Waele, H. The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment. Hanse Law Review. Vol 6. No 1. (2010). Pp 5-7.
[xiii] C-26/ 14 Peter Gauweiler and Others v Deutscher Bundestag .
[xiv] Thompson, E P. The State of the Nation. In Writing by Candlelight. (1980). Pp 230-231. Cited in Cole, D H. An Unqualified Human Good: E P Thompson and the Rule of Law. Journal of Law and Society. Volume 28. No 2. (2001). P 188.
[xv] Nicol, D. The Constitutional Protection of Capitalism. (2010). Pp 90 – 94.
[xvi] Scharpf, F W. The asymmetry of European integration, or why the EU cannot be a ‘social market economy’. Socio-Economic Review. Vol 8. (2010). P 211.
[xvii] This is not a comprehensive list of the areas where the Court of Justice has made rulings that enforce a neo-liberal approach. There are many others, including in areas such as: corporate governance, procurement and state aid.