119
Second working session — The impact
two Treaties – the ESM and the TCSG – not signed up to by all Member States
and a challenge to the legality of the ESM Treaty in
Pringle
(
3
).
Where do these major shifts in the tectonic plates leave the Court of
Justice? In difficulty. Should it be defending, as far as possible, the old world
order – with
Van Gend en Loos
at the core? Should it instead be looking to fos-
ter a new legal order which recognises and responds to the increasingly frag-
mented reality? Might it recognise that the world has changed so much that
the settlement in the Treaty of Rome, based on the idea that the technocratic
elites know what is best for the citizens, needs reshaping entirely? Or should
the Court of Justice be doing a combination of all of the above? I am uncertain
of the answer to my own question but I will briefly sketch out some thoughts.
The world beyond
Van Gend en Loos
One answer to the question – where to for the Court of Justice? – may be to
continue applying the ‘old’ rules – direct effect, supremacy, effectiveness – to
the core of the EU project. Of course defining ‘the core’ is difficult and is an
exercise that the British government is trying to undertake at the moment as
regards the single market (
4
). But as a simple rule of thumb, it would cover the
rules (and their successors) adopted under the provisions of the Lisbon Treaty
and its predecessors, but not the CFSP and, possibly, the PJC.
This means that a new legal reality might have to be developed for the
CFSP, PJC, TCSG and the ESM. Reference to the ESM would also include de-
cisions made under the previous bail-out funds such as the EFSF.
Pringle
(
5
)
suggests that the Court is already sensitive to this. Cases where the Court has
refused even to consider applying the Charter to reforms to national labour
law required (
6
) by the EU institutions as a condition for financial assistance to
(
3
) Case C-370/12
Pringle,
judgment of 27 November 2012.
(
4
)
(
5
) Case C-370/12
Pringle,
judgment of 27 November 2012.
(
6
) This verb is used with caution because the precise legal nature of the conditionality criteria
is not clear.
