The Contribution of International and Supranational Courts to the Rule of Law

The Contribution of International and Supranational Courts to the Rule of Law

Leuven Global Governance series

Edited by Geert De Baere and Jan Wouters

International and supranational courts are increasingly central to the development of a transnational rule of law. Except for insiders, the functioning and impact of these courts remain largely unknown. Addressing this gap, this innovative book examines the manner in which and the extent to which international courts and tribunals contribute to the rule of law at the national, regional, and international levels.

Chapter 8: The Court of Justice as the guarantor of the rule of law within the European Union

Koen Lenaerts

Subjects: law - academic, constitutional and administrative law, public international law, regulation and governance


In accordance with Article 19 of the Treaty on European Union (TEU), the European Court of Justice (the ECJ) ‘shall ensure that in the interpretation and application of the Treaties the law is observed’. It follows that all EU acts must be interpreted so as to guarantee that ‘the European Union is based on the rule of law’. However, as Koopmans notes, the original version of the EEC Treaty told ‘us nothing about its substantive principles’. It thus provided little guidance as to the content of the ‘law’ to be observed. Nonetheless, in the aftermath of World War II, legitimacy could not be based upon a formalistic conception of the rule of law. In order to reassure the Member States, the EU (or Community as it then was) legal order needed to embrace a particular conception of public morality reflecting both the universal values shared by mankind and, more specifically, the basic values of European liberal democracies. With a view to accomplishing this mission, the ECJ had to create new norms that would supplement and complete the legal order established by the Treaty, aligning it with both public international law and the fundamental constitutional tenets common to its Member States. Ever since the landmark decision in van Gend en Loos,the ECJ has consistently held that the Union is a distinct and autonomous legal order. Yet autonomy could hardly be achieved by a legal system that was not both self-sufficient and coherent.

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