Judicial authority and the constitutional treaty

Abstract

The treatment of the European Court of Justice (ECJ) by the constitutional treaty presents a paradox. The Court received new powers of review over both the EU institutions and the member states. The authority of Union law was formalized and extended. The reach of the preliminary reference procedure was expanded. Yet the Court was not discussed until the latter part of the Convention on the Future of Europe, with no documents formally introduced until three months before the end. 1 The reason for this incongruity lies in both the convention and the intergovernmental conference (IGC) buying the doctrine of judicial supremacy: government by law requires nonjudicial officials to carry out their legal powers and duties in the manner set out by the judiciary. 2 As judicial supremacy has been a central seam of the EU legal order, it would seem uncontroversial for it to occupy a similar place within the constitutional treaty. Judicial supremacy within EU law has historically rested, however, upon a dialectic. Whilst a very broad interpretation of the legal powers of judges has been taken in EC law, institutional practice suggests that the impact of both the central courts and the national courts on the application of EU law is actually extremely limited. It focused on a few narrow sectors and its normative statements, notwithstanding their broader symbolic importance, attached legal obligations to a limited range of activities. Indeed, the organizational structures and normative claims of the EU judicial system have only been effective in a generally satisfactory manner because of this limited judicial presence. As the scope of the judicial remit has expanded, pressures have emerged. This expansion has not been so great, however, as to generate unmanageable tensions. Resistance by national judges to either the formal or substantive claims of EU law is still rare and, when the matter was addressed