Who Are the ‘‘Masters of the Treaty’’?: European Governments and the European Court of Justice

Few contest that the European Court of Justice (ECJ) is an unusually influential international court.1 The Court can declare illegal European Union (EU) laws and national laws that violate the Treaty of Rome in areas traditionally considered to be purely the prerogative of national governments, including social policy, gender equality, industrial relations, and competition policy, and its decisions are respected. Nevertheless, there is significant disagreement about the extent of the Court’s political autonomy from member states and the extent to which it can decide cases against their interests. Legal and neofunctionalist scholars have asserted that the ECJ has significant autonomy by virtue of the separation of law and politics and the inherent legitimacy of courts as legal actors, and that it can use this autonomy to rule against the interests of member states.2 Such an analysis implies that virtually any court, international or national, can decide against a government’s interests because it is a legal body.3 Neorealist analysts have argued that member states have sufficient control over the Court so that it lacks the autonomy to decide against the interests of powerful member states.4 This implies that the ECJ, as an international court, is particularly dependent on national governments and must bend to their interests.