number 1 - Centre d'études et de recherches européennes Robert ...

The Court of Justice and its Role as a driving Force in European Integration 115
traced back not to French law but rather to German law, which establishes the principle
in Article 100 of the Grundgesetz (Basic Law).
The Court of Justice of the ECSC drew its inspiration very much –,as regards
the extent of its powers and its modus operandi -from French administrative justice
and yet, in its general concepts, it was not so far removed either from the administrative
law of the other Member States. When the Treaty was signed, the ECSC
Court of Justice was brand new within a legal system that was itself new and –,this
is fundamental for any jurisdiction –,had no body of case law by which it was
bound. So it is hardly surprising that it was able to exert such a strong influence on
its own role within the Community system.
Setting up the Court
In exactly the same way as the members of the High Authority, the Court's judges
are appointed by the governments acting upon common accord and for a renewable
term of six years.
In order to guarantee the independence of the Court's judges, it was decided not
to follow the example of the International Court of Justice, whose members are
elected for a period of nine years by the General Assembly and the Council, after a
delicate procedure for proposals has been gone through. What prevailed was rather
the model for domestic administrative courts. Hence, the judges of the ECSC court
were appointed by the executive "from among persons whose independence was
beyond doubt" (Article 32).
This goes to show that, in the minds of the negotiators, the Court had most certainly
not yet been assigned the role of constitutional court that it gradually
acquired in the course of the thirty-odd years which followed. If this had been the
case, there is no doubt at all that at least the German and Italian delegations would
have raised the issue of appointing judges by agreement with a representative
assembly. However, in 1951, it was still early days, and some countries, headed by
France, were far from taking such a step 8 .
The judges were required to possess all the requisite qualifications. It was not
until the advent of the Rome treaties that this concept was defined further, whereby
the form of words in Article 2 of the Statutes of the International Court of Justice
was taken over almost word for word 9 .
The Court is made up of seven judges, an uneven number intended to make it
possible to take majority decisions 10 . However in reality, the Court, like the High
8. At that time already the system whereby supreme court judges are appointed by a parliamentary authority
was known, the judges at the constitutional Court in Karlsruhe being appointed by the Bundestag
and the Bundesrat. Without going so far as to follow the example of the US Supreme Court
whose members are life-time appointees, Germany's constitutional judges are appointed for a period
of twelve years, not renewable, while in Italy one third of the Constitutional Court's judges are
appointed by Parliament for a period of nine years, not renewable.