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Parliament are held within the individual countries. The election system is basi­cally proportionality, but Great Britain insists on using for the European elections, too, its usual winner-take-all system in single districts.

The European Court of Justice

frhe European Court of Justice—located in Luxembourg—has 13 judges, who are appointed by "common accord" of the national governments of the member countries. Political scientists Anne-Marie Burley and Walter Mattii call the Court of Justice "an unsung hero" in the process of European integration:

The thirteen judges quietly working in Luxembourg managed to trans­form the Treaty of Rome into a constitution. They thereby laid the legal foundation for an integrated European economy and polity.⁶

The judges take an oath to decide cases independently of national loyalties. They are able to follow this oath to a large extent. Two aspects of the court's decision-making process help them to do so: first, the secrecy of their delibera­tions and, second, the absence of the recording of dissenting opinions in the court. As a consequence, the judges can free themselves to a large extent from accountability to their home governments. (

A first landmark decision came in 1963 in Van Gend & Zoos v. Nederlandse Administrate der Belastingen. A private Dutch importer invoked the common market provisions of the Treaty of Rome against the Dutch government, which attempted to impose customs duties on specified imports. The court proclaimed:

the Community constitutes a new legal order . . . 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 nationals. Independently of the legislation of the Member States, Community law therefore not only imposes obligations on individuals but it also intended to confer upon them rights which become part of their legal heritage.⁷

With this ruling, the court established that individuals in the European Commu­nity have rights that they can enforce against their own national governments. The Dutch government had argued that the application of the Treaty of Rome over Dutch law was solely a question for the Dutch national courts. The Euro­pean Court of Justice ruled otherwise, so that "henceforth importers around the community who objected to paying customs duties on their imports could invoke the Treaty of Rome to force their governments to live up to their com­mitments to create a common market."⁸

A second landmark "constitutional" decision of the European Court of Justice was Costa v. ENEL, which established that where a term of the Treaty of Rome conflicts with a national statute, the treaty must prevail. In a later

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Box 17.3 ec Court Ruling Is Setback for u.K. Cigarette Makers

BRUSSELS—The European Court of Justice in Luxembourg ruled that Brit­ain didn't breach European Community law by requiring larger health warn­ings on domestically produced cigarette packs than those called for by the EC. At the same time, however, the EC court decided against Italy requir­ing two health warnings on the same side of a cigarette package. The rul­ings were in response to two separate cases brought by the tobacco industry. The British case marked a setback for British tobacco companies, which had argued that the U.K. government went too far by requiring that health warnings and information on tar and nicotine levels take up 6% of the surface they are printed on. A ruling adopted by the EC in 1989 calls for such warnings to cover at least 4% of the surface. The British law was challenged by Gallaher Ltd., a unit of American Brands; Imperial Tobacco Ltd., which is part of the Hanson group; and Rothmans International Tobacco (UK) Ltd., a unit of Rothmans International PLC.

source: Wall Street Journal, June 23, 1993

publication, Judge Federico Mancini justified the decision with the argument that the supremacy clause "was not only an indispensable development, it was also a logical development."⁹ His logic was that in a supranational organization, com­munity law must prevail over member state law in cases of conflict. With the ratification of the Maastricht Treaty, the European Court of Justice even received the right to impose a penalty payment on a member country that fails to com­ply with its judgment.

Box 17.3 shows how in 1993 the European Court of Justice ruled in two cases where individuals challenged decisions of their national governments. Both cases make clear that individuals can bring national governments to court and that European Union law prevails. The individuals were in both cases tobacco companies, and the issue involved health warnings on cigarette packs. In 1989, EC legislation had ordered that such warnings should cover at least 4 percent of the surface. Subsequently, British law went further and ordered that 6 percent be covered; Italian law required that the health warning be printed twice on the same side of a cigarette package. The European Court of Justice ruled in the first case for the British government, and in the second case against the Italian gov­ernment. These cases illustrate how much in detail the European Court intervenes in national legislation.

The court has also broadened the range of issues it deals with, as described by Burley and Mattii:

EC law is today no longer as dominantly economic in character as in the 1960s. It has spilled over into a variety of domains dealing with

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issues such as health and safety at work, entitlements to social welfare benefits, mutual recognition of educational and professional qualification, and, most recently, even political participation rights. Two notable examples are equal treatment with respect to social benefits of workers, a field developed almost entirely as a result of Court decisions, and the general system of community trademark law—again formed entirely by the Court's case law. In both areas the Court gradually extended its reach by grounding each new decision on the necessity of securing the common market.¹⁰

Overall, the European Court of Justice has become very important in the legal system of the European Union. Individuals, national governments, and the insti­tutions of the Union must respect the rulings of the court. For Italy, Mary L. Volcansek writes that "in the space of three decades, the Italian Constitutional Court accorded supremacy to European Community law in the Italian legal system.""

Do national governments bring each other to court in Luxembourg? On the basis of Article 170 of the Treaty of Rome they can do so, but this article is rarely applied. The reason is that confrontations between member countries are poten­tially dangerous for the stability of the European Union. To prevent such inflam­matory disputes, the court has actively and successfully encouraged the increased use of Article 169 procedures, whereby it is the European Commission that ini­tiates action against a particular member country for not following community legal obligations. This device has a more objective character and allows a mem­ber country more easily to accept a ruling of the court than if it is directly con­fronted with another member country. To depoliticize its rulings even further, the European Court of Justice often tries to settle an issue on the basis of Article 177, which allows to define it not in terms of a dispute between national governments but between private parties of the respective countries. All this shows once again the great influence of the Court for the internal life of the European Union. Lawyers in the member countries increasingly pay attention to the rulings in Luxembourg. Burley and Mattii show that "a bar" at the European level has begun to flourish:

Groups of private practitioners receive regular invitations to visit the Court and attend seminars. They get further encouragement and support from private associations such as the International Federation for Euro­pean Law, which has branches in the member states that include both academics and private practitioners. . . . the proliferation of community lawyers laid the foundation for the development of a specialized and highly interdependent community above and below the level of mem­ber state governments. . . . community law professors divide their time between participation as private consultants on cases before the court and extensive commentary on the Court's decisions. In addition to book-length treaties, they edit and contribute articles to a growing number of specialized journals devoted exclusively to EC law. As leading figures

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in their own national legal and political communities, they play a criti­cal role in bolstering the legitimacy of the Court.¹²

In some areas such as criminal law, national law is still supreme, but in many other areas European Union law has taken precedence over national law. There is no European police or European National Guard to enforce European Union law, but the European Court of Justice can rely quite well on the member coun­tries to enforce its rulings. To be sure, the national governments may sometimes protest over a particular ruling of the court, but ultimately, they will accept the legitimacy of the ruling. One of the most celebrated instances of a member coun­try defying the court was the Sheepmeat case in 1979, in which the court ruled against the French government for imposing restrictions on the import of sheepmeat from Great Britain. At first, France defied the ruling. But after losing in the first two instances, it accepted a third ruling of the court and asked merely for a delay in implementing its obligations.