A la recherche d’un parcours d’autoconstitution de l’ordre juridique interindividuel européen: essai d’une lecture pluraliste 50 ans après Van Gend en Loos et Costa

In this paper, the Author tries to assess the establishment of an interindividual le- gal system in the EU by resorting to the theoretical assumptions of dualism (or pluralism). He assumes that pluralism is not only the best key to assess in general the relationship between international law and interindividual systems of law, but also helps very much in giving a correct appraisal of the contributions given by the ECJ, on one side, and national courts, on the other side, to the establishment of that interindividual legal system. Further, it is suggested that the effective establishment of such a legal system has produced a real modification of sovereignty in Europe. This has to be understood not as a direct consequence of the EU Treaties, nor of ECJ case law. Rather, at the centre of the stage is the auto-constituting process that took place in line with ECJ pretentions, thanks to the “retraction” of State sovereignties and the effective “occupation” of the field by the EU through the activities of its Institutions and Or- ganisms, combined with the “Europeanization” of a part of Member States’ apparat- uses. Such a process, it is submitted, has happened not only as for the sectors in which EU law is directly administered by the EU Commission, and upon which judicial control is centralized at the ECJ level. Also when the task of administering direct applicable EU law is left to member States’ authorities, and even in case of non directly applicable provisions of EU law, a decisive role is played by the structural principles of effectiveness of judicial protection, as a limit to the procedural autonomy of Member States in jurisdictional and enforcement tasks, and of internal (civil) liability of the State for the violation of EU law, as a conceptual limitation to the absolute character of sovereignty. The paper’s assumption is that, thanks to the abovementioned prin- ciples, and to the effective operation of the preliminary reference procedure – shaped by the ECJ case law and accepted by the national judiciaries, essentially as a federal tool – an independent EU system of interindividual law not subject to member States sovereignties operates in all areas where EU competences have been effectively im- plemented. Furthermore, the latitude and quality of EU law development, and the ef- fective resort to its provisions by citizens of Member States and of third countries even against the strongest choices of Member States political organs, and despite final decisions by their courts, causes in the Author’s view the effective appearing of a true relationship of allegiance between individuals in the EU and the Union. The system in place, however, substantially lacks transparency and democracy. Recognition of the present state of the art of the European integration, on one side, and consequent re- shaping of the governance in a truly (pan-European) democratic sense, on the other, are outlined in the conclusions as the obliged path the EU, its member States, and its citizens have to follow, in order not to see their common house collapse.