17
General introduction
the case law, the social (in the sense of human dimension and communities)
has been far less understood.
How then is the Court implicated in the democratic deficit?
Van Gend en Loos
itself is the fountainhead. In arguing for the concept of
a new legal order, the Court reasoned in the two famous passages as follows:
‘The conclusion to be drawn from this is that the Community con-
stitutes a new legal order of international law for the benefit of which
the states have limited their sovereign rights, albeit within limited
fields, and the subjects of which comprise not only Member States but
also their nationals. Independently of the legislation of Member States,
Community law therefore not only imposes obligations on individuals
but is also intended to confer upon them rights which become part
of their legal heritage. These rights arise not only where they are ex-
pressly granted by the Treaty, but also by reason of obligations which
the Treaty imposes in a clearly defined way upon individuals as well as
upon the Member States and upon the institutions of the Community.
This view is confirmed by the preamble to the Treaty which re-
fers not only to governments but to peoples. It is also confirmed more
specifically by the establishment of institutions endowed with sover-
eign rights, the exercise of which affects Member States and also their
citizens.
Furthermore, it must be noted that the nationals of the states
brought together in the Community are called upon to cooperate in the
functioning of this Community through the intermediary of the European
Parliament and the Economic and Social Committee
.’ (Emphasis added)
The problem is that this ‘cooperation’ was extremely weak. This is, in truth,
a serious ‘dumbing down’ of democracy and its meaning by the European
Court. At the time, the European Parliament had the right to give its Opinion
– when asked, and it often was not asked. Even in areas where it was meant to
be asked, it was well known that the Commission and Council would tie up
their bargains ahead of such advice which thus became
pro-forma.
But can
that level of democratic representation and accountability, seen through the
lenses of normative political theory truly justify the immense power of direct
governance which the combined doctrines of Direct Effect and Supremacy
placed in the hands of the then Community institutions? Surely posing the
question is to give the answer.
