The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order

Ole Spiermann*

Full text available: PDF format ^*

Abstract

The founding fathers of the European Community contributed one of the most exciting chapters to the book of international law in the twentieth century. The 1950s saw three Communities emerge, with a remarkably wide range of activities, procedures and powers, as constituent parts of an international organization. It was the first treaty-based order to be rooted in the rule of law. The European Court of Justice was established in order to provide a forum for adjudication on future disputes in relation to the Community and it rapidly generated the largest bulk of case-law ever seen in international law. However, almost the first word in this developing case-law was a claim that it differed from international law. The making of the `new legal order' is the subject of a two-sided story. In addition to the popular side of the story, there is the other side - a side which is too important for international lawyers to miss.

^* This essay is based on a dissertation submitted to the University of Copenhagen in 1997, `An Unpopular Essay on the European Community Legal Order - A Chronological Analysis of the Case-law of the European Court of Justice, 1954-1979'. The main ideas were delivered as a paper to a conference under the Swedish Network for European Legal Studies, which was convened at the University of Uppsala on 16 January 1998. I am pleased to acknowledge my debt to Professor James Crawford and Professor and sometime President and Judge of the European Court of Justice Ole Due. I am also grateful to Professor Trevor Hartley for having encouraged me to produce a final draft of ideas which are somewhat different from his own. Professor Joseph H. H. Weiler made some highly appreciated suggestions on how to improve the essay. Many other people have commented on drafts. Thanks to Karina Bahrenscheer, Kurt Haegeman, Pär Hallström, Joanna Harrington, Thomas Holst Laursen, Göran Lysén and Jaan Paju.

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