A Case of Disaggregated Sovereignty: The European Court of Justice and the Turn to Fundamental Rights Protection, 1969-1974

Abstract

This paper analyzes the decision of the European Court of Justice (ECJ) to protect fundamental human rights in a series of important cases between 1969 and 1974. It addresses the central question of what prompted this jurisdictional expansion – was the court simply channeling the preferences of member states, was it acting independently in the quest for self-empowerment, or is the narrative more complicated? Drawing from a case study of its Stauder (1969), Internationale Handelsgesellschaft (1970), and Nold (1974) decisions, I argue that the Court did not broaden its jurisdiction into the rights domain in an offensive burst of judicial activism; rather, the Court’s strategy was a defensive response to increased resistance towards ECJ jurisprudence from both domestic constitutional and administrative courts. Yet because domestic courts and governments are subject to different sets of preferences, I argue that the Court was not merely acting as an agent of EU member states. Rather, the Court’s decisions support a theory of disaggregated sovereignty that emphasizes the role of transnational judicial networks and the contentious relationship between domestic and supranational courts. Indeed, it was precisely because domestic courts threatened the existence of the EU legal order that the ECJ was forced to pronounce that EC law guaranteed protection for fundamental rights – an outcome that neither the ECJ nor member states independently sought to achieve at the time.