The Court of Justice’s revolution: its effects and the conditions for its consummation. What Europe can learn from Fiji

Abstract:

Interpreting the Court of Justice's jurisprudence as revolutionary, this article discusses, first, the effects of this revolution. It accepts, from the point of view of an external observer, this revolution as having effectively created an autonomous Community legal system but also accepts, from the same point of view, that this revolution has not ended, and could not end, the Member State legal systems' rivalling claims to autonomy. From this finding, the article concludes that there are two incompatible constructions of the same legal material, which includes the norms of both community and Member State law, i.e.. a Community construction based ultimately on the European Treaties and Member State constructions based on the respective Member State constitutions. The article goes on to discuss the possible evolution of a unified Community legal system. Taking its inspiration from an important decision of the Fiji Court of Appeal, it discusses conditions for the consummation of the Court of Justice's revolution, by which it understands the submission of the Member State legal systems to that revolution. The Court of Justice's revolution, while not effective, as such, in the Member State legal systems, has given Member State courts the revolutionary power to subordinate their respective systems to the Community legal system. While no Member State court has expressly made use of that power, because of the effective co-operation between the Court of Justice and Member State courts it cannot be ascertained today that no Member State court has done so implicitly.