187
Third working session — The future prospects
towards a more process driven type of legitimacy would put arguably the le-
gitimacy of the Court and the
Van Gend en Loos
heritage on perhaps more
stable footing in the longer run. It would establish, not only in fact but also in
philosophy, a genuine supreme court for the Union, which even-handedly de-
cides in favour as well as against further integration. Such court would draw
its legitimacy from the impartial judicial process itself, not from one-sided
‘corruption by rights’ for the individuals coupled with messianic (
12
) promises
of a ‘Community of Destiny’ to come. It may be suggested that the time is ripe
for taking such a step, certainly in view of the changed social context of the
Union today. A genuine and sharp guardian of the EU institutions who puts
the rule of law and individual protection firmly before fostering further inte-
gration at any cost, in particular by rubberstamping questionable and not well
thought-through legislative adventures, would certainly gain more in terms of
trust and correlating legitimacy.
The coming years will show whether the approach of the Court could be
transformed in such a way. One last, to some extent pre-emptive, remark: a
greater reliance on process-based legitimacy for a court within a certain social
context means in no way an automatic resignation or abdication. It means
adaptation and evolution. There might be suggestions that the Court should,
in order to honour the fiftieth anniversary of the
Van Gend en Loos
judg-
ment, start making new quantum leaps forward with new bold judgments,
yet again re-launching the process of the European integration in view of the
current political malaise. Such suggestions appear to be grounded in an acute
variety of modernism illness, which allows only for bi-polar linear thinking.
If something is not growing, expanding, enhancing, multiplying, or deepen-
ing, it must automatically be declining, decaying or disintegrating. However,
in spite of this modernist linear delusion, evolution and time in the human
history have always been cyclic. No body or organism can support permanent
growth, permanent quantum leaps or permanent revolutions. If it is to survive
in a longer term, it naturally needs time to consolidate, to stabilize, and even
to decline a bit from time to time. Otherwise, as the history teaches us, organ-
isms or institutions which always and only expand are bound to either im-
plode or start lying to themselves, as the official linear growth rhetoric ceases
to have anything to do with the reality.
(
12
) For the notion of messianic legitimacy within the EU, see J.H.H. Weiler, ‘The Political and
Legal Culture of European Integration: an Exploratory Essay’ (2011) 9,
ICON
678, 682.
