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16 Eur. L.J. 1 (2010)

handle is hein.journals/eurlj16 and id is 1 raw text is: 

European Law Journal, Vol. 16, No. 1, January 2010, pp. 1-28.
C 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA




The transnational politics of judicialization.

       Van Gend en Loos and the making of

                               EU polity


                             Antoine Vauchez*





Abstract: This article tracks the genesis of one of the EU's most established meta-
narratives, that of Europeanisation-through-case-law. Instead of studying this theory of
European integration as an explanatory frame, I consider what is at stake in its genesis as
a dominant frame  of understanding of Europeanisation. I trace its emergence in the
conflicting theorisations of the relationship between law and the European Communities
that come along with the ECJ's 'landmark' decisions (Van Gend en Loos and Costa v
ENEL).   This approach helps seize the genesis of a specific and at the time-rather
unlikely political model for Europe in which a Court (the ECJ) is regarded as the very
locus of European integration's dynamics as well as the best mediator and moderator of
both Member  States' 'conservatism' and individuals' 'potential excesses'.


I  Introduction
Among   Europe's foundational myths,  Van  Gend en Loos  and Costa  v ENEL-two
decisions delivered by the ECJ on 5 February 1963 and 15 July 1964-can easily claim
a very special position. Solidly linked together today, the latter appearing as a 'logical'
implication of the former, these two judgments stand as a unique moment of revela-
tion of Europe's nature (a unified legal order where EC norms have direct effect and
prevail over national norms) and future (a process of Europeanisation through case-
law). They appear as the defacto Constitution of Europe encapsulating all the succes-
sive developments of EU polity to which they are purported to have paved the way, if
not directly called for. As with any foundational myth, the principles 'uncovered' in
1963-1964  have been 'vindicated and validated again and again at each of the critical
steps of Europe, from  the 1973  enlargement to the various projects of European
Constitution from  1984 onwards,  and  from  the Maastricht Treaty to  the Lisbon
Reform  Treaty. The consequences of this judicial 'discovery' seem so far-reaching that
it has become almost impossible to imagine 'what EU law would have been without the

*  Senior Research Fellow at the CNRS (Centre national de la recherche scientifique). The author wishes to
   thank Karen Alter, St6phanie Hennette-Vauchez, Bruno de Witte and the two reviewers for their useful
   comments on this article. The article was written while a Marie Curie Fellow at the Robert Schuman
   Centre for Advanced Studies (European University Institute).
   J. Weiler, 'Rewriting Van Gend en Loos: Towards a Normative Theory of ECJ Hermeneutics', in
   0. Wiklund (ed), Judicial Discretion in European Perspective (Kluwer Law International, 2003), 151.

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