Creating a Quasi-Federal Judicial System of the European Communities

Institute for European Law at Stockholm University, No. 54, 2006

77 Pages Posted: 3 Oct 2006

See all articles by Jan Komárek

Jan Komárek

iCourts, Faculty of Law, University of Copenhagen


The Court of Justice's role is inherently difficult: it must ensure that when the Treaty is interpreted and applied, the law is observed. However, it was not given necessary powers to ensure this objective without reading the Treaty with a great deal of imagination, thus opening itself to the consequent accusation of inappropriate judicial activism.

Judgments delivered by the Court in Kobler, Kuhne & Heitz and Commission v. Italy represent this creativity. One possible way of reading Kobler is to see the referral sent in the context of the claim of liability for a judicial breach as a special kind of an appellate procedure whereby the questions of Community law, improperly treated by the national court the judgment of which gave rise to the liability action, may eventually reach the Court of Justice on the second attempt. Kobler moreover confirmed the Court's endeavours to strengthen the authority of its judgments by imposing a sanction for the failure to follow them. Both these outcomes of Kobler may be seen as elements of the federal nature of the Court of Justice's jurisdiction, showing that this court acts as a true Supreme Court of the Community. Kuhne & Heitz complement this quasi-federal judicial system. It motivates individuals to use the procedural paths given by Kobler and therefore bring to the Court of Justice questions of Community law otherwise locked within national legal orders. Lastly, Commission v. Italy closes the circle and shows the ambiguity of the Court's position: it strives to establish greater authority for itself within the Community judiciary; at the same time it still needs national courts as its partners, not inferiors.

Community law has become a part of the national laws of all Member States and the boundary between these two systems have become more invisible than at the time of the Communities' establishment more than fifty years ago. First critique of the system having been created by the Court focuses on some shortcomings of the Court of Justice's reasoning, which undermine its persuasiveness and prospective acceptance by national courts, since then Court did not take concerns of national legal orders seriously. The approach called 'judicial deliberative supranationalism' is then proposed for enhancing cooperation between different levels of Community judiciary. Another problem of the presented judgments lies in a fact that the Court of Justice failed to reformulate the duty of national courts to refer questions of Community law, set by the so called CILFIT test. Having not done this, the effectiveness of the presented judgments' federal elements is seriously undermined. It also allows the Court to take arbitrary decisions on national courts' failures. Since the judicial system is still developing, it is for the future to show, whether the Court succeeded in its creativity and whether national courts accepted it.

Keywords: European law, judicial system, constitutionalism, European Court of Justice, national courts, appeal, precedent, hierarchy, control

JEL Classification: K10

Suggested Citation

Komárek, Jan, Creating a Quasi-Federal Judicial System of the European Communities. Institute for European Law at Stockholm University, No. 54, 2006 , Available at SSRN:

Jan Komárek (Contact Author)

iCourts, Faculty of Law, University of Copenhagen ( email )

Studiestraede 6
Copenhagen, DK-1455


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