The Making of the European Union’s Constitutional Foundations: The Brokering Role of Legal Entrepreneurs and Networks

Abstract

Ever since the 1960s, three closely related legal doctrines have been held key to conceptualizing and accounting for the specific nature of the European Union (EU) polity: ‘direct effect’ — the principle that EU law creates rights for individuals, which must be upheld by the member states’ national courts; ‘supremacy’ — the principle that within the area of the jurisdiction of the European Court of Justice (ECJ), EU law is superior to the national laws of the member states; and ‘preliminary ruling’ — the procedure, which allows a national judge ruling on a case involving EU law to refer to the ECJ for an interpretation of the legal issue concerned. Crucially, the EU’s ‘magic triangle’ has been interpreted to form the basis for the de facto constitution of Europe providing the EU polity not only with a rationale, but also an engine for further political, economic and social integration.1 According to the prevalent political science and law literature, the origins of this de facto constitution are to be found in the ECJ’s decisions in Van Gend en Loos of 5 February 19632 and Costa v. ENEL of 15 July 1964. Solidly linked together today, these two judgments are usually regarded as a moment of revelation of the constitutional foundations of the EU polity associating the two principles of direct effect and supremacy with the judicial mechanism of preliminary ruling before the ECJ. Accordingly, the EU’s legal order would fall apart if one of its core dimensions were compromised.3