Yes, through astute interpretation of the treaty base the ECJ has expanded its powers beyond a tolerable level. Largely unnoticed by the public it has eroded democratic legitimacy and favoured private interest over the common good. Allowedly, this is a bold claim but we will see that there is a strong case to support it. Let us first examine how the ECJ turned the soft legal order intended by the Treaty of Rome into an enforceable hard one. We shall then consider the resulting legal bias of European politics before we finally look at its ramifications for democracy in the member states.

In 1957, the fathers of the Rome Treaty envisaged only limited authority for the ECJ. As we learn from the rules regarding the enforcement of verdicts, its intended main function was the supervision of community institutions. While it has the power to void legal acts adopted by the European law-making bodies, it lacks authority to directly enforce its decisions against member states. Additionally, cases against national governments should preferably be settled in a pre-judicial phase, whereas community institutions face court proceedings immediately upon indictment. This is hardly surprising if

Evidently, cases against member states are mostly based on supposed violations of the market freedoms (trade in goods and services, movement of capital and labour) guaranteed by the treaty. Relying on those, as it were, political commitments, individual litigants may now enforce the liberalization of markets on all levels of national regulation. Evidently, the sheer number of actors interested in enforcing market freedoms caused a legal revolution. Forced by the ruling of the ECJ, member states had to remove a great number of laws, which could be interpreted as a barrier to free trade and competition. The detrimental effect on the mixed economies of the member states is apparent. After all, protecting the interests of its own citizens against excessive international trade competition had been a major objective of the modern welfare state since the Great Depression at the latest. However, European legal integration vastly diminished the capacity of member states to shield their economies when they deem it necessary.

One might now argue that on the European level politicians are equally free to correct market outcomes as on the national level. And indeed, the current version of the treaty includes clauses stressing the social rights of individuals and the need to protect the environment. Yet, provisions pertaining to these issues are formulated much less unequivocal than those on market liberalization. Not surprisingly so, if we keep in mind that against the background of economic and ideological differences among member states, national governments have very different ideas about the adequate extent of market regul

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