54
Christian Tomuschat
Deuxième séance de travail — Les retombées
super-court, without any effective countervailing power. In the long run, this
state of affairs cannot but lead to frictions. Viewed from a democratic view-
point,
Van Gend en Loos
is therefore highly ambiguous. On the one hand, the
increased role of the individual in being able to vindicate strict observance of
the law can be called a true democratic achievement. On the other, to entrust
invariably the Court with the last word and not a parliamentary body must
also give rise to doubts under the auspices of democratic rule.
I take it that the Court itself would be happy if it did not invariably have
to assume the responsibility for decisions close to the political domain. But it
cannot hide away. And it does not have at its disposal a political question doc-
trine to avoid having to address issues that are not only delicate, but may raise
highly sensitive issues of foreign policy or even jeopardize the existence of
the European Union as such. As long as the Court was essentially confined to
economic matters and specific rights of individual claimants, including cor-
porate bodies, the principle of judicial protection required unfettered respect.
However, the relevant perspective changes – or has already changed – when
the Court is called upon to make general determinations on matters related to
the general political position of the EU in the world, notwithstanding the ex-
clusion clause of Article 275 TFEU. Then, consideration must be given anew to
the pros and cons of a judicial review body with comprehensive competences.
This is no plea for restricting the scope of the Court’s jurisdiction. However,
any observer must be aware of the fact that with the expansion of the mandate
and powers of the EU the role of the Court almost inevitably expands as well
and gains increased weight in matters that are located in a border zone area
between law and politics.
I shall leave it at these fragmentary observations, hoping to have provided
some food for reflection and discussion.
