The Myth of Override

It is sometimes suggested that if the Court of Justice strays too far from the preferences of the Member States, or the EU legislature, then it would be subject to legislative override. This paper suggests that such arguments are based on a misunderstanding of how the EU legal system works, and of the role of the legislature. The Union's political arm cannot override the Court. It simply lacks the legal capacity. Secondary legislation which conflicts with the Court's vision of the Treaty will be annulled, or it will be interpreted to fit the Court's views, or the constraints that it purports to contain will be avoided by the continued application of the Treaty. By contrast, the Court can, and does, significantly constrain and override the legislature. The most accurate understanding of the role of the legislature in the EU legal system is as a subordinate body, confined to implementing goals and policies whose limits, and sometimes whose substance, are defined by the Court. Examples drawn from citizenship, free movement, and individual rights display this. This situation is not inevitable. American constitutional scholars would describe the EU situation as one of judicial supremacy, but it is also possible to have constitutional systems in which a degree of co-interpretation by both Courts and legislature is possible, and where a high degree of mutual deference exists. There is however little evidence of this in the EU system, and it can only come about with the consent of the Court.