183
Third working session — The future prospects
body of a baby, who keeps growing and is not entirely sure about the use and
direction of individual limbs.
Within the constitutional structure of the Union, direct effect remains
quite a
fragile
principle. The cohesion of EU law and the national legal systems
is still primarily a judicial construct. It is based on the case-law of the Court
and its ongoing acceptance, or, more precisely, on the absence of open revolts,
by the national courts. It is, in a way, a compromise, which is being constantly
renewed in current case-law.
As with any couple, also in the relationship between the Court and na-
tional courts, it is vital that their mutual vows are periodically renewed. In a
way, direct effect is a ‘vow to engage’ with each other, binding the Court and
the national courts. What the principle lacks in its legal precision, it gains
in the strength of its political message. When renewing this vow, and when
formulating further requirements of EU law on its basis, it is necessary to be
aware of changed circumstances on which the entire edifice has been built.
These changed circumstances affect the substantive legitimacy of Court’s de-
cisions at the national level.
This change can perhaps be best explained by the way of contrast. In 1963,
starting with
Van Gend en Loos
, it was chiefly economic operators, most fre-
quently legal persons – undertakings – who were put at the central stage in
justifying direct effect. Reading through the Court reports from the 1960s
well into the late 1980s or even 1990s, one encounters the same ‘usual sus-
pects’. The official narrative and the source of legitimacy for the Court’s ju-
dicial inventions henceforth developed is well known and often repeated. It
was the economic operators who actively vindicated their rights against the
Member States, with the Court upholding these rights and providing reme-
dies. The ‘private attorney’ or ‘private enforcement’ of EU law model narrative
was born, which has been providing a powerful justification for the Court’s
further judicial creativity, including the direct effect of EU law: ‘It was not our
invention, it was the individuals of Europe who came seeking legal protection
from us’. The characters and their cast were thus clear: the Member States
for the Dark Side, the E(E)C for the Light Side. At this stage, however, for
normal physical persons in the Member States, most of this was indeed Star
Wars: disputes happening between larger economic players and states, in a
Luxembourg galaxy far, far away.
