The premises, assumptions, and implications of Van Gend en Loos: Viewed from the perspectives of democracy and legitimacy of international institutions

Eyal Benvenisti, George W. Downs

Research output: Contribution to journalArticlepeer-review

Abstract

In its Van Gend en Loos judgment, the ECJ assigned citizens directly enforceable rights vis-à-vis their respective state executives, and authorized national courts to protect those rights. What explains the Court's suspicion of state executives as the sole actors to implement Community law (acting directly or through the Commission)? What justifies its confidence in the ability of the national courts to protect the individuals? We submit that the ECJ was informed by the premise that national courts acting in unison could withstand political pressures and protect individuals while implementing the Treaty. Moreover, the ECJ understood that its interaction with national courts would put it in a position potentially to offer significant support for citizens of relatively weaker countries against various predatory policies employed by the more powerful states in the organization. In this article we explore these premises and present evidence to support them. More generally, we argue that there is good reason to endorse this model of judicial activism as a means to ensure democracy as judged by the effective and informed participation of individuals in public decision-making that affects them - within international organizations. This judgment demonstrates the promise of greater interaction and coordination between national and international tribunals in preventing democratic failures at both the national and international levels. Although judicial intervention often pre-empts public deliberation, it can also encourage it; although it may operate to pre-empt the vote, it can also function to ensure it.

Original languageEnglish
Pages (from-to)85-102
Number of pages18
JournalEuropean Journal of International Law
Volume25
Issue number1
DOIs
StatePublished - Feb 2014

Fingerprint

Dive into the research topics of 'The premises, assumptions, and implications of Van Gend en Loos: Viewed from the perspectives of democracy and legitimacy of international institutions'. Together they form a unique fingerprint.

Cite this