21
General introduction
Procedurally we find a similar story. The secret of the Rule of Law in
the legal order of the European Union rests, as stated, in the genius of the
Preliminary Reference procedure. The Compliance Pull of law in liberal
Western Democracies does not rest on the gun and coercion. It rests on a
political culture which internalises, especially public authorities, obedience
to the law rather than to expediency. Not a perfect, but one good measure of
the rule of law is the extent to which public authorities in a country obey the
decisions, even if uncomfortable, of their own courts.
It is by this very measure that international regimes are, as I stated, so
often found wanting: Why we cannot quite in the same way speak about the
Rule of International Law. All too frequently, when a State is faced with a dis-
comfiting international norm or decision of an international tribunal, it finds
ways to evade them.
Statistically, as we know, the Preliminary Reference in more than 80 % of
the cases, is a device for judicial review of Member State compliance with their
obligations under the Treaties. However, it is precisely in this context that we
can see the dark side of this moon. The situation implicated in the Preliminary
Reference always posits an individual vindicating a personal, private interest
against the national public good. That is why it works, that is part of its genius,
but that is also why this wonderful value also constitutes another building
block in that construct which places the individual in the centre but turns him
into a self-centred individual.
As I stated – the reasoning of the Court was impeccable. As argued in the
first part of the paper, the impact was profound and even noble. But we would
be eschewing our critical duties if we did not see that
Van Gend en Loos
and its
progeny also accentuate the enduring legitimacy crisis of the Union.
