Gaudin, Hélène (2024) Who is the Master of the Treaties ? On the dysfunctional Interplay between the European Court of Justice and the European Parliament in The European Union reexamined. In: The EU Reexamined: A governance model in transition Basu, Kaushik, Kämmerer, Jörn Axel and Schäfer, Hans-Bernd (eds.) Edward Elgar Publishing. Chapter n° 8. Cheltenham pp. 147-158. ISBN 978 1 03531 485 0

Abstract

Many questions arise reading the subject. Trying to answer will be the challenge of this presentation.
1st question: who is the master of the Treaties? This formula refers to the decisions of the German Constitutional Court which recalled that Member States are the Masters of the Treaties and not the European institutions, in particular not the European Court of Justice.
2nd question: ECJ and European Parliament? The Court of Justice and the European Parliament certainly do not have the same powers, considering treaty revisions. ECJ has been accused of 'judicial revision' of the treaties or of ultra vires concerning its interpretations. EP has actually developed its constitutional powers with regard to the revision of the treaties (in particular the various procedures of Article 48 TEU). Above all, EP has developed a political force of proposal (1984, 2022, for ex.), traces of which can be found before the Court of Justice (notably, 1986, Les Verts, and various observations of the EP before the CJEU).
3rd question : which interactions? There is a main trend – EP as a proposing force for constructive interpretations by the ECJ – and a second trend – ECJ as judicial control of the EP’s attempts to go beyond the treaties. I will focus on the first trend.
4th question: dysfunctional interactions? The good question is probably: dysfunctional to which criteria? Let’s assume that “dysfunctional” refers to the assertion that member states are the Masters of the Treaties and neither the ECJ nor the EP nor both together. However, the “dysfunctional” term should be put in other perspectives. In particular, in a constitutional perspective, Member States are not the only masters of the treaties. Their sovereignety is based on values including democracy and the rule of law. In the European Union, these values are embodied by the EP and the ECJ. The interaction between the EP and the Court of Justice regarding the revision of the treaties means that in the European Union, to oppose democracy and “gouvernement des juges” is not quite possible. From both an international and a constitutional perspective, Members states are obviously the primary Masters of Treaties but there are not alone. They should understand and accept that subsidiary Masters exist, such as EP (democracy) and ECJ (rule of law), alone or together.