14
Joseph H. H. Weiler
Introduction générale
First, the constitution of the individual as a European subject, alongside
his or her national identity, decades before the institution of formal European
Citizenship. And second, the symbiotic relationship between domestic courts
and the European Court of Justice in the operationalisation of the Direct
Effect/Supremacy confluence.
It is worth dwelling on this symbiotic relationship.
Van Gend en Loos
it-
self is both constitutive and reflective. In the 1950s the theologian Abraham
Joshua Heschel published two path-breaking books:
Man is not Alone
; and
God in Search of Man
. They can stand as perfect metaphors for the relation-
ship between the European Court and Member State courts.
It is possible to find in the constitutional order of many states a variety of
‘self executing’ doctrines which would enable domestic courts to give Direct
Effect to international treaty provisions. And yet, until quite recently, domes-
tic courts were extremely reluctant to take advantage of such provisions. There
are two principal reasons for such judicial reticence to give Direct Effect even
when possible by domestic constitutional arrangements: First, it is a herme-
neutic reluctance – almost an insecurity and timidity of a domestic court in
the face of international norms with the interpretation of which the domes-
tic court is unfamiliar. Even if constitutionally they might be ‘the law of the
land’, they feel to the domestic judge as ‘foreign law’. Coupled with this her-
meneutic reticence there is an understandable political reticence: Typically,
Direct Effect gives a right to an individual which is enforced against his or
her government. A national norm is made to bend before an international
norm. What if, the domestic court reasons, it will interpret a treaty against its
government and a court in another country will take the opposite interpreta-
tion of the same norms? Would not the domestic court be compromising the
national interest in the international arena?
What makes Direct Effect so effective and seductive to national courts in
the European system is the fact that the Preliminary Reference system elimi-
nates both those impediments: the Member State Court does not have to grap-
ple with hermeneutic uncertainty as to the correct interpretation of the treaty
norm. It receives an authoritative interpretation from the European Court of
Justice. And, what is more, that interpretation is
de facto
valid,
erga omnes,
i.e. binding equally on all. The Member States’ Courts ‘are not alone’ when
confronted with the higher norm of the international treaty.
