European Court of Justices Activism in European Integration - Essay Example

European Court of Justice’s Activism in European Integration Essay Question: It has been claimed that the European Court of Justice has demonstrated excessive activism in pushing forward European Integration. Looking at the evidence, do you think the ECJ’s behaviour and rulings support this claim? Introduction to the European Court of Justice: The European Court of Justice (ECJ) is a Luxembourg based international legal body, responsible for upholding the “process of economic integration” among different states (Scheeck 2005:843). This institution has certain distinctive characteristics concerning several aspects as an international body encompassing “supranational and intergovernmental” traits (Waele & Vleuten 2011:639). One of the major features of ECJ reflects in its weakness as compared to the courts on national levels, especially so far it relates to “compliance” with the judgements it passes (639). On the other hand, its power transcends that of other tribunals of international level such as the International Court of Justice and, therefore, it always remains as the centre of “scholarly attention” (640). Though from a political perspective, the court has come under a volley of criticism from various sources for its activism and “political role” its position as an international legal framework has been pivotal in the settlement of various issues (640). The former ECJ Judge Federico Mancini while admitting that judges are often “incompetent” when it comes to the question of law making contends, referring to the stagnation in the process of European integration, that it has been the judicial activism of the ECJ that helped salvage this situation (640). In the melee of debates revolving around the functioning of ECJ and its relation with the member nations of European Union, it transpires that on the one hand legal fraternity focuses on the relationship between national law and European law, while on the other, political discussions often revolve around the notion that ECJ’s conduct rather serves the “interests of the most powerful” EU member nations (640). Introduction to Judicial Activism: Judicial activism can be perceived as a process by which judges redefine or modify a law from its original position as envisaged in legal sources whereby they substitute their decisions for that of “elected, representative bodies” (Popovic 2009:363). This definition of Judicial Activism, proposed by Justice Paul Mahoney, condemns judicial actions which are intended or required to “achieve justice” in specific cases (363). Thus, this definition will preclude courts from trying to correct an error in “previous jurisprudence” thus disallow them from changing the “interpretation of legislation” in view of changes in social conditions (363). On the other hand, some authors believe that judicial activism is an “American institution,” which has transcended into Europe, and contend that this phenomenon becomes highly valuable when the “legislative machinery practically comes to a halt” (364). In other words, they believe that when the legislative organ ceases to function, “judicial creativity” will take over and fill the void (364). There are also other views on judicial activism that perceive it as an instrument for the “change in existing laws” (364). Thus, overall, the phenomenon of judicial activism comprises three major viewpoints such as: previous statutes being held as unconstitutional by the Supreme Court, overruling of previous rulings by the judges and “judicial departures” from the original meaning of the Constitution (364). However, critics of judicial activism contend that it can entail “improper law-making by judges” and though judges only interpret law and do not make them, sometimes law gets made through interpretations (364). On the other hand, the idea of “judicial self-restraint” purports that judges should exercise discretion and caution and not transgress their role as interpreters of law (365). Besides, it also transpires that the purpose of legal interpretation is to remove any anomalies or ambiguities in the legislation and not to have a role in the “law’s creation” (365). Introduction to European Integration: European integration can be seen as a complex process both structurally and procedurally and it seeks to advance the welfare as well as security of a “transnational society” that comes under their jurisdiction (Puchala 1999:318). On the other hand, economic integration refers to the process by which a group of nations seeks to “increase their welfare” by establishing free trade, “customs unions, common markets” or single markets (Fiess & Fugazza 2002:1). Traditional concept of sovereignty focuses on the independence of a country and its recognition by the “international community,” without having to submit to power of another nation (Tokar 2001:2). Though the history of European Integration dates back to long back, the received a major thrust in the “first half” of the 20th century but nations were still vying to destroy one another (Spolaore 2013:1-2). The subsequent trade integration within the European continent also has benefitted “peace and security,” which further accentuated the benefits of integration of European nations (17). Thus, despite the hostility among several nations within the continent, the concept of the European integration has been successful in bringing cooperation and evidence suggests that European Union (EU) can be considered as the “most ambitious and successful” venture towards willing cooperation among nations (19). Analysis of European Court of Justice’s Judicial Activism in European Integration: The first allegations of the judicial activism of ECJ have surfaced in 1990 and its waves kept rippling throughout the course of a decade, only to die out recently without being “properly concluded” (Waele 2010:3). It appears that the interest of the legal fraternity on the topic has waned so totally that any “critical comments” are hardly forthcoming in the present day (3). Thus, it would be an interesting proposition to attempt to either validate or nullify the propriety of the contention that ECJ has, in fact, “exceeded the limits” of its judicial function in European integration (3). Basically, the EU law is not merely a text compiled by various political actors but it has much practical application as an “instrument or tool” designed to facilitate and advance European integration through the judicial interpretation of various aspects, with ECJ acting as its main promoter (Grimmel 2011: 4). On the other hand, evidence points to a dearth of “substantial examination” of relevant laws and, thereby, causing a lack of proper analysis of the decisions and actions of ECJ (4). Besides, there also exists an absence of clear appreciation of the various “possibilities and limitations” that are characteristic of Europe’s legal community and, hence, the ECJ has often been dubbed as “political and rational actor” (4). ECJ’s Behaviour Demonstrating Judicial Activism: The ECJ, by virtue of its being a legal framework for interpreting international law, has to expand its jurisdiction on various aspects that encompass the process of European integration. On the other hand, the so called integration needs to be understood as a highly complex process wherein nations have to shed some areas of their national control and to embrace the concept of common welfare. Thus, ECJ has a key role to play in interpreting various laws that relates to the member nations as well as those in the EC law and deal with the situations accordingly. In the 1970s, the ECJ has come under severe criticism of German Constitutional Court for alleged “human-rights deficit” in EC law but the ECJ has taken note of this allegation and in the course of the following years elaborated upon human rights jurisprudence to an exhaustive extent that the GCC, in acknowledgement of this fact, and “abandoned” their claim for a judicial review of the EC law (Zarbiyev, 2012:252). This episode illustrates the fact that the ECJ does not make any interpretations arbitrarily and it does listen to the member nations, besides interpreting the law from the right perspective. ECJ’s more recent behaviours in the early part of the 21st century have shown a tendency to transcend their initial roles and permeate its competence in the areas of regulating “hospital sector as well” (Obermaier 2008:20). Thus, the court has ruled that “prior authorisation” should not be refused if an individual is not offered effective treatment without “undue delay” (20). In its jurisprudence of many cases, however, the ECJ has displayed elements of activism as well as self-restraint as can be evidenced from Kohler Vs Decker. Thus, while in its application of the concepts of “basic freedoms of services and goods” in the field of healthcare it has ruled against the “unified interests” of member nations, in so far as it relates to the intrusion of their national interest, the court has demonstrated self-restraint by limiting it to mostly less costly services (26). Therefore, it transpires that on the one hand, the court has considered the integration of the EU nations for the welfare of their citizens; while on the other hand, the court has intended to ensure that national interests are not put in jeopardy. Similarly, evidence also indicates that the ECJ has absorbed the “scholarly and political criticism” relating to some case when adjudicating many cases that in the later stages by fine tuning the processes and procedures (34). ECJ’s Rulings Illustrating Judicial Activism: One of the most remarkable rulings of the ECJ that reflects its judicial activism is Costa Vs ENEL, which involves a conflict between national law and UC law, where the court has ruled by upholding the supremacy of international law over national law that “absolute priority” must be accorded to supranational rules that apply in a given situation (Waele 2010:5). Similarly, as its role in the European Union kept evolving with the passage of time, the ECJ has engineered a lot of innovations by “transforming and constitutionalising” the Treaty framework (5). Les Verts (1986), Chernobyl (1990) and Francovich (1991) can be perceived as some of the model cases that represent a few of the most “modern paradigm” instances of such activism (5). Similarly, even though the Treaties originally have not contained any references to the power of the ECJ for jurisprudence on fundamental rights, the ECJ has been successful in progressively fleshing out a “bill of rights” in many cases including Stauder (1969), Hauer (1979) as well as Omega (2004), which is a relatively recent example (6). On the other hand, the ECJ has effortlessly imposed its “preliminary reference competence” in so far as it relates to the ‘Third Pillar’ (hitherto known as Title VI of the EU Treaty) in the case of Segi and Advocaten Voor de Wereld of 2007 (6). In yet another demonstration of its activism, the ECJ has broken “newer grounds” by extending its jurisdiction also into the ‘Second Pillar’ and established its competence for reviewing the legal validity of instruments that are adopted into the framework of the Common Foreign and Security Policy, as can be evidenced from the recent case of ECOWAS (6). However, evidence suggests that the interpretations and jurisprudences of the ECJ, like other legal frameworks, have been based on “precedence” also though there is still controversy on the conceptualisation of what constitutes such precedence (Obermaier 2008:10). Similarly, the court’s efforts of foraging into fresher meadows have rather been termed as the result of its inclination to “find specific answers to specific questions” than interpreting various laws based on generalisations (10). Another controversy surrounding the rulings of the ECJ is that on certain occasions the court has deferred its rulings based on “Member State preferences,” which forces them to regulate their activism to conform to the requirements of powerful governments within the EU (11). On the contrary, most of the evidence tends to suggest that ECJ enjoys immense “autonomy” that equips them with the power to add pace to the process of European integration (12). However, despite this perceived autonomy there have been instances when the member states have exercised their power to overrule the rulings of the ECJ, as can be evidenced from “Peirik” and “Barber” rulings (12). The former relates to healthcare in respect of treatment in a foreign country, in which the ECJ has held that when foreign treatment is considered necessary, it should be authorised irrespective of whether it is offered in the “health package” under the relevant state insurance (12). In the latter case, the ECJ has ruled that any differentiation based on sex in “pensionable ages” is a violation of Article 119 of EC Treaty and, concerned with the huge financial implications, the member states have added a clause to the relevant rules to limit retrospective effect (12). The court’s intervention in issues like these stands testimony to the fact of their activism in various matters of the member states, which were earlier considered beyond the purview of the ECJ. Thus, it transpires that the ECJ has taken a keen interest not only in the economic and political integration of the EU but also in matters of violation of rights of the citizens of the member nations, through their judicial activism. Conclusion: The history of ECJ, right from the early years of its inception, is marked with events of international relevance where the court has often broadened its authority and scope dealing with its intended purpose of facilitating the European integration but also transcending to other areas of legal interest. Severe criticism has surfaced both in scholarly, political and legal contexts on the judicial activism of this institution, especially allegations levelled against it about the perceived support it extends to powerful member states of the European Union, to serve their vested interests. On the other hand, evidence emerging from a large body of literature published on the topic, it transpires that the court has always accorded priority on its primary task of the European integration. Similarly, it also becomes evident that the court has taken a keen interest in safeguarding the rights of the citizens of the member nations and has ensured that the nation within the union do not compromise the rights of the individuals. On the other hand, the court has also taken pain to make sure that its judgements, interpretations of relevant laws as well as the jurisprudence of related regulations and Treaties in no way compromises the security or the financial stability of the member nations. Thus, it can be stated that the court has demonstrated a tendency for judicial activism in many of its jurisprudence but in keeping primarily with the interest of safeguarding the citizens of the member nations and secondarily the countries that are involved. On the flip side, the court has also always exercised a reasonable amount self restraint to make sure that its interpretations of various legal aspects in no way hampers the functioning of a state in political, economic or legal perspectives. The ECJ has been established primarily with the intention of expediting the integration of the European countries by coordinating the legal aspects of various member nations and to align them with a singular body of EC law. The court, as an international body with the powers to decide on various aspects of transnational and supranational nature, has acquitted itself quite well in the previous decades. Thus, the process of European integration, despite the criticism of varying nature and magnitude from various corners, has culminated into a successful endeavour mainly owning to the contributions of the ECJ. However, in order to attain its objectives of safeguarding the welfare of the citizens of member nations as well as to protect the interests of the national governments, the court often has had to go beyond its perceived authority and scope in many cases of adjudication. Thus, it has come under flake from both political and legal circles for the so called judicial activism. However, despite the criticism the court has been able to attain its objectives and complete its mission successfully as expected from a body of its standing. In the process, the court has on occasions illustrated judicial activism in both its behaviour as well as jurisprudence in terms of various rulings. On other hand, the court has displayed a reasonable amount of self-restraint also on several occasions, as demanded by the situation in hand. Overall, in a nutshell, evidence emerging from various sources confirms that ECJ has been instrumental in bringing the process of European in its successful culmination, albeit through judicial activism where necessary and appropriate. Therefore, it can be construed that the ECJ has demonstrated activism in pushing forward European Integration. However, in view of the self-restraint that it has displayed on different situations, the activism cannot be termed as excessive. References Fiess, N. & Fugazza, M. 2002. European Integration: A Review of the Literature and Lessons for NAFTA. Retrieved March 9, 2014, from Read More