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Producing, constructing and implementing law: the EU integration experience

Speakers
Professor Joe Verhoeven, Professor at University Panthéon-Assas (Paris II), Director of the Institut des Hautes Etudes Internationales and Secretary General of the Institute of International Law.

 Date
24 Feb 2011

 Venue
NUS Bukit Timah Campus, Block B, Level 3, Executive Seminar Room 469 Bukit Timah Road, Singapore 259756

 Time
4.00pm – 5.30pm

 Downloads

Professor Verhoeven’s lecture on the success of the European integration story centred not around society and community, but on integration driven by the legal process, and he argued that central to this has been the European Court of Justice (ECJ). His lecture charted the trajectory of European Union integration as a process that went beyond coexistence. Thanks to the tools and means adopted by the ECJ. Amidst the many complexities in Europe following the wars, the decision to form a Union was made. While the role of the Commission, with its power of initiation was central in pushing towards integration, the ECJ was crucial in helping avoid difficulties that might have stalled the process. Hence, he opined that without the ECJ, integration would not have progressed so deeply and rapidly.

At the same time, he acknowledged the ‘non-democratic’ nature of the ECJ in that judges were appointed and not elected, and hence could appreciate that the roles of the judges in driving integration may not always be seen favourably. There would have been no question of legitimacy if the ECJ did its job as originally planned, but sometimes, it might have deviated from its original role and overstepped their boundaries. But usually because they took on a more active role, integration progressed and deepened as it has done.

The EU possessed certain legislative tools that were used to impose obligations or give rights to individuals in the Community. One of them, directives, was described by Prof. Verhoeven as “the perfect tool to balance the interests of the state and the EU” because this instrument respected state differences and as such, made legislative changes more palatable to them. States that were less inclined toward certain policy changes were afforded a certain degree of flexibility in choosing their own means to achieve the intended result that was laid out in the directive. At the same time, the concept of preliminary rulings prevented tribunals from freely interpreting Community law, and as such, prevented any divergence amongst Member States. This safeguarded the unity of legislation, but often, judges went beyond that which was being contemplated and in the process, constructed meaning and played the role of legislator. Often, this had an effect of deepening integration, as seen from the landmark cases Costa VS ENEL 6/64 [1964] ECR 585, which established the primacy of EC law, or Van Gend en Loos 26/62 [1963] ECR I, establishing the principle of direct effect, or Simmenthal II 106/77 [1978] ECR 629, creating a duty to set aside national law provisions incompatible with Community law.

During the Q&A session following the lecture, questions were raised about the balance between effectiveness and democracy. Prof. Verhoeven expressed his concern that at times, judges may have overstepped their authority by taking too much initiative, and that because of this, there had to be a certain degree of democratic legitimation, but stopped short of advocating that judges be popularly elected.