186
Michal Bobek
Troisième séance de travail — Les perspectives
the simultaneous impossibility to carry out substantive review on the national
level, brings about certain EU-related disenchantment (
11
).
The above in no way implies that the characters and their cast are by now
completely reversed. That is certainly not the case. The cast has just became
somewhat mixed. Anakin Skywalker is no doubt still a Jedi, fighting for the
Light Side. One can just occasionally hear his somewhat heavy breathing in
the background. The cases outlined above evidence a different but increasing-
ly frequent scenario, within which the traditional narrative of decentralised
private enforcement and the overlap of individual and EU interest are lacking.
The social foundations on which
Van Gend en Loos
rested and the justification
for direct effect it offered have changed.
◊
What does all this mean for the lasting legacy of
Van Gend en Loos
and its
future prospects? When re-affirming the vows with national courts, and per-
haps further expanding them, within direct effect or elsewhere, it is vital to be
aware of this changed context. In both a substantively, as well as a geographi-
cally enlarged Union, the traditional interest alliance between the Court and
the individuals that has been providing a strong legitimizing element for the
Court’s judicial creations is considerably weakened.
However, this changed social context is not necessarily just bad news. It
also has a strong positive element. The Court is no longer the one-sided, just
rights-giving, economic court. It became, content-wise, a genuine supreme
court of the Union, adjudicating today in virtually all areas of law. This fact
ought to be, however, translated into a more balanced judicial method and
approach.
The strength and legitimacy of a genuinely supreme court lies in its im-
partiality and independence. The source of its legitimacy rests less in sub-
stance (result or outcome) and more in the process itself, which in turn must
be accessible, open and acknowledging of the conflicting interests. The move
(
11
) Or suggestions of actual drop in the level of protection for the individuals in the newMember
States. See notably Anneli Albi, ‘Ironies in human rights protection in the EU: pre-accession
conditionality and post-accession conundrums’, (2009) 15, in
European Law Journal
46,
or Anneli Albi, ‘An essay on how the discourse on sovereignty and the co-operativeness of
national courts has diverted attention from the erosion of classic constitutional rights in
the EU’ in Monica Claes and others (eds.),
Constitutional Conversations in Europe: Actors,
Topics and Procedures
(Cambridge, Intersentia, 2012).
