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Second working session — The impact
was perfectly legitimate to give the interpretation of Community Law as it
done in the
Van Gend en Loos
decision.
Secondly, the judgment in
Van Gend en Loos
concerned the interpretation
of the Treaty itself. The reproach based on democratic deficit may only refer
the secondary legislation, but not the treaties. The treaties were ratified by all
Member States in accordance with appropriate constitutional procedures. I
would, therefore, say that it is rather the progeny of the
Van Gend en Loos
judgment that could eventually be blamed for these shadows. At that time
when the judgment was delivered, the number of secondary legislation was
extremely small.
Thirdly, I do not think that while deciding the case of
Van Gend en Loos
the
Court was aware of the huge (and undiscovered) potential of the preliminary
ruling procedure. Taking into account the facts of the case, the decision of the
Court was fair and reasonable: there is no reason why the prohibition of cus-
toms duties should not create rights for individuals. Professor Weiler praises
the reasoning of the Court, but criticises the outcome of the decision. Looking
from the perspective of fifty years, I would not call the reasoning in the
Van
Gend en Loos
decision unassailable. Especially the reference to ‘cooperation
through the intermediary of the European Parliament and the Economic and
Social Committee’ I find unfortunate. In my opinion this argument was based
on a questionable assumption and in any event it was superfluous. The Court
should have avoided any reference to democratic legitimacy that simply did
not exist at that time.
