12
Joseph H. H. Weiler
Introduction générale
We should also, I would respectfully submit, abandon the thesis that
Van
Gend en Loos
represented a new hermeneutic, a different way of interpreting
treaties or international law in general. I do not like that thesis because it sug-
gests that somehow the Court changed the rules about construing rules as
it went along, rendering
Van Gend en Loos
a revolutionary interpretation. I
contest that: the case which, indeed, had a revolutionary impact was brought
about, rhetorical flashes aside, by an impeccable classical hermeneutic which
was rooted in the treaty before the Court.
Van Gend en Loos
is not the work of
an Activist Court – if the concept of Activist Court has any meaning, which
I doubt. The fact that it was a different result to what international tribunals
and courts were doing elsewhere is surely in large part due to some special
features of the Treaty – which other treaty had a Preliminary Reference pro-
cedure, to give but one critical example, a feature which played a major role
in the reasoning of the Court. This is not to deny the audacity of the Court
and the internal actors within it which are responsible for the outcome. Had
it wished, the Advocate General gave it an escape root and the intervening
Member States pressed it too. But my point is that it managed to make the
audacious root by very respectable and solid hermeneutics.
To be sure, the European Court of Justice is a central player in this
legal drama but, here too, we miss something if we place all our attention on
this one, so called hero.
Van Gend en Loos
is a case with more than a single
protagonist – central both to its genesis and its subsequent impact. The very
decision by the Dutch court to make a preliminary reference (and the law-
yers who pleaded before it) was not only procedurally and politically bold but
conceptually, from a legal perspective was, inevitably, predicated on the exist-
ence of Direct Effect, which the European Court of Justice then confirmed,
articulated and made a Community wide norm. Put differently, by asking the
question and making the reference as regards Article 12, the Dutch court was
already opening the conceptual (and political) door to the Court.
The key, then, to the genesis and profound impact was the confluence of
two sets of elements the interaction of which explains the gravitas of the case.
The first is the confluence of the doctrine of Direct Effect with the (unin-
tended and at the time unappreciated) genius of the Preliminary Reference
system. Take away the Preliminary Reference and Direct Effect in a trans
national system loses much of its impact.
