TWIN PILLARS

The twin pillars of the rule of law are government under the law and the protection of rights and freedoms

The twin pillars of the rule of law are government under the law and the protection of rights and freedoms.

Brought into existence by the postwar wish to establish a European economical integration, nowadays European legal system has attained characteristics, unforeseen at the time the Treaties were drafted. Most of these tendencies occurred in the first pillar where the ECJ was endowed by the drafters with a broad scope of prerogatives. Taking an advantage of that competence with a creative approach, slightly based on the actual Treaties provisions, the ECJ heralded the supremacy of EU law and other general principles of law, which were combined with the doctrines of direct, indirect effect and state liability. Thus, through ECJ's jurisprudence, the EC which was planned as an economical community became a superior legal order, with which the Member States (MSs) are obliged to comply. Meanwhile new tendencies occur in EU institutions and sources of law, producing their impact on the national legal systems.

The most important step made through ECJ's jurisprudence towards consistent and uniform application of EU law is the heralding of the supremacy doctrine. Apparently, when first referring to this doctrine in Van Gend en Loos [1963] and further developing its arguments on it in Costa v ENEL [1964], the ECJ used a purposive approach, not tied closely with the actual wording of the Treaty. Moreover in Internationale Handelsgesellshaft [1970], the referral to the goals before the EC (uniformity and efficacy of EC law) indicated divergence from the initial aim to "promote throughout the community a harmonious development of economic activities" (Article 2, the Treaty of Rome). Determined to ensure the stability of the supremacy doctrine, the court even required that national courts refuse to "apply conflicting national law (…) without the prior setting aside of such provisions" (Simmenthal No.2 [1978]). Thus the ECJ produced an impact on national legal systems in terms of procedural rules, which was an effect hardly predicted by the Treaties' drafters.

The postulating of this doctrine was sustained by developing on a little Treaty basis other general principles which form part of the evolving relationship between the ECJ and the national courts. What made MSs more willing to accept the Supremacy doctrine was the proclamation of their duty of cooperation under Article 10 as a general principle of EC law (Hilmar Killinghusen v Amt fur Land und Wasserwirtshaft Kiel [1998]). Most remarkable was the declaration of human rights as an inherent part of Community law. No matter that in Stauder v Ulm [1969] the ECJ used Treaty provisions (Articles 220,230 and 215) to enhance its arguments, these articles were formulated in an abstract and general fashion. Nevertheless the court was so persuasive in delivering this human-rights basis that it exceeded the scope of the Treaties in three main aspects. First, MSs became more willing to acknowledge the supremacy of EC law, which was essential for the ...