53
Second working session — The impact
Union law (
15
), has widely opened the gates of the Courts to individual claim-
ants. The Court has secured for itself a place right at the hub of the integration
process. No detailed explanation is needed to corroborate this proposition.
Under the current circumstances, there is hardly any issue which cannot be
brought to the cognizance of the Court. The scope of its competence under
Article 267 TFEU is so broad that it has necessarily the last word on (almost)
all controversial issues of interpretation of Union law. Governments may in
many instances hesitate, on grounds of political expediency, to institute ju-
dicial proceedings for the settlement of a controversial issue, believing that a
kind of political arrangement would serve their interests much better than a
judgment of the Court. Private litigants do not have to take into account such
political considerations. They may, free from any inhibitions, vindicate their
rights, not caring about the political background of the case they are initiating
or of any sensitive repercussions of a financial or economic nature.
This statement is closely connected to my fourth constitutional observa-
tion, the secondary role assigned to European legislation. Lawyers and or-
dinary citizens in the Western world are generally aware of the fact that a
legislative enactment does not necessarily constitute the last word but can be
challenged, in whatever form, before a judicial body. As a rule, the yardstick
for assessing the lawfulness of a legislative enactment is the human rights
enshrined in a constitutional document. In the European Union, one may
indeed note a growing tendency to introduce procedures of constitutional
review. Even countries that for decades had fought that tendency, fearing a
gouvernement des juges
like France, eventually accepted a mechanism of con-
stitutional jurisdiction and have even strengthened its grip in recent years (
16
).
However, in the EU, legislation is subordinated to many more and stricter
requirements. In addition to having to respect human rights, it must be based
on a power explicitly provided for in a treaty provision (principle of confer-
ral), and those treaty provisions control in a narrow fashion the exercise of
the relevant power. Legislative discretion is strictly confined. At any time, the
primary treaty law, not relegated to a sleeping beauty as soon as secondary
legislation has been enacted, takes precedence over regulations and directives,
and the primary law is what the Luxemburg judges say it is. One may squarely
state that no true balance of power exists between the Court and the legis-
lative organs, in particular the European Parliament. The Court is indeed a
(
15
) Case 6-64
Costa
v
ENEL
[1964] ECR 585.
(
16
) Reference is made to Article 61-1 of the French Constitution, introduced by Constitutional
Law No 2008-724, of 23 July 2008.
