Judicial Activism of the European Court of Justice - Essay Example

Judicial activism of the European Court of Justice (ECJ) Introduction Judicial activism refers to the assumption of legislative powers by a court by way of creating policy. In this case, there is a transfer of decision making rights from the cabinet, the legislature or the civil service to the courts. This essay explores the perceived judicial activism of the (ECJ) in an attempt to create a constitutional foundation for the European Union (EU). Judicial activism in the case of ECJ refers to the political implications of the policies made by the court in its interpretative role (Rasmussen 45) The detractors of the ECJ feel that it promotes European federalism to the detriment of the interests of Member States. In spite of this, the ECJ tends to take a cautious approach in adopting the policy. It is worth noting that the ECJ has a constant need to develop general principles for procedural purposes, which can sometimes be interpreted as activism (Kelly 315). Unlike federal states, there is no hierarchy relation between European community laws and national laws. Therefore, these two sets of laws coexist in the European judicial environment. As such, there is a need for certain comprehensive principles to resolve problems arising from conflict between these two sets of laws and the ECJ took up this boundary-pushing duty of setting up principles such as the direct effect and primacy. The EU Treaty does not assign the ECJ federation duties and its assumption of this role can be interpreted as judicial activism (Kelly 315). Member states, institutions and individuals in the EU are bound by the constitutional principles developed by the ECJ when they act within the community. In a series of decisions, passed in the 1960s and 1970s, the ECJ established doctrines that have served as precedents of a theory of legal intervention into the relationship between Member States and the Community. In an apparently activist approach, the ECJ held that the provisions of the Treaty could have a direct effect in its ruling on the 1963 Van Gend en Loos case. This essentially means that individuals and private citizens could sue national governments in the national courts for failing to enforce the Treaty. In its declaration, the ECJ stipulated that the Treaty is superior to an agreement that creates mutual obligations between contracting states insisting that the Community constitutes a new legal order of international law limiting the sovereignty of states within limited fields (Abels and Joyce 59). In the case of Costa v. ENEL, the ECJ established the supremacy doctrine meaning that state transfers of legal powers were irreversible and permanently limited their sovereign rights. In its ruling, the ECJ decreed that the EEC treaty was no ordinary international treaty and had its own legal system which upon enforcement of the Treaty became an integral part of the legal systems of Member States and their courts were bound by the system. It further stated that the creation of a community of unlimited duration, with its own institutions, personality, legal capacity, capacity of representation on the international plane and most importantly, real powers limiting sovereignty of Member States or the transfer of power from the states to the Community, members had effectively limited their sovereign rights, within limited fields, creating a body of law binding their nationals and themselves(Abels and Joyce 59). In the Francovich case, the court resolute that the failure of Member States to swap orders amounts to a breach of Community law and as such were obliged to compensate harm suffered by individuals. The court in its ruling held that the complete efficiency of Community rules would be compromised, and the protection of the rights they grant weakened if individuals were denied redress when their rights were infringed by violation of Community law for which a Member State was responsible (Dougan 157). The ECJ developed the preemption doctrine in a series of cases. This doctrine implied that Community law preempts national legislation when it substantially regulates an area except where EC law provides otherwise. In the 1970s, the ECJ established the doctrine of judicial review in several cases. This enabled the ECJ to evaluate the constitutionality of executive and legislative acts of government and define their respective rights and powers (Conant 87). Judicial activism at the ECJ was at its highest in the 1970s as illustrated by the several doctrines highlighted above and in light of this situation Rasmussen noted that, in an attempt to define the EC legal status, the ECJ went too far and in defiance of much European tradition, engaged in a teleological crusade featuring a deep involvement that lent primacy to pro-integrationist public policies over competing ones outside the ring of losing litigants considered to be meriting protection(Rasmussen 45). Nevertheless, the highest national courts in member countries accepted the doctrines established by the ECJ. The courts activism would have been justified if the Treaty through the guidelines of Article 2 and the Preamble had authorized it to base its rulings on the pro-integrationist agenda when making difficult choices between competing public policies, but this was not the case (Waele 7). The ECJ seems to have shed the activist approach and adopted a more self-restraint tactic in the 1990s assuming the more of the role of a guardian of the constitution and less of a motor of integration. The Maastricht Treaty of 1992 also contributed to its retreat. This is in spite of the Maastricht Treaty being a cornerstone of further independent amalgamation and getting new elements to European diversity; it inhibited the control of the ECJ by eliminating the second and third pillar from the ambit of the court (Waele 7). The Amsterdam Treaty endorsed some competencies to the ECJ on matters of justice and home affairs, which were limited under article 68 EC allowing competence only after reference was made by a national court of final resort. The third pillar containing police and judicial cooperation in criminal matters further limited ECJ jurisdiction by requiring it to be given competence by Member States. These developments implied that the ECJ would not have the freedom to interpret EC laws into new dimensions (Parga 212). The very essence of judicial activism was to promote the integration of member countries into an overly federalist European Union, effectively taking precedence over domestic laws of Member States in a number of areas. The political impasse imposed by the Maastricht and Amsterdam treaties constrained the court to promote legal integration through judicial decisions. But political and legal integration were bound to come into conflict again and this saw the ECJ revert to activism in resolving such conflicts (Wolfe 86). The return to activism is well illustrated in the Pupino judgment, where the ECJ was called to interpret a framework decision adopted pursuant to the field of criminal cooperation. The ECJ extended the Community principle of indirect effect to the third pillar of EU, offering potential remedy to individuals seeking rights in the third pillar law. Thus, the Pupino judgment had a transformative constitutional impact. This judgment held the principle of interpretation in conformity with Community law or the indirect effect applicable to the third pillar framework decisions adopted under Art.34 EU. Interestingly, this concept had been inserted to the jurisprudence in the Von Colson case (Sadurski 127). In the Pupino judgment, the court held that the objective captured in Art.1 EU, could not be achieved in the absence of loyal cooperation. The court also stressed on interpretation of international treaties, that is, EC Treaty and EU Treaty, on the basis of both their wording and objectives. However, there is no clear textual support in the form of travaux preparatoires or in the Treaty for this justification. This promoted the court to state that although not provided explicitly by the authors of TEU, it was their intention that framework decisions give rise to indirect effects (Kelly 315). In the Chens case, the court applied teleological approach to the requirements of sufficient resources. The matter of the case was whether a third country citizen mother being the carer had the right to reside reliant on her new born baby. The court based its decision on the effectiveness (effect utile) of baby’s right to residence insisting on the right to residence flowing from citizenship provisions extending to third-country national carers of a national child of a Member State. This landmark ruling gave priority to the principle of effect utile over the provision of non-abuse of rights (Cichowski 89). The Commission v. Council, case was unique in that the ECJ went further than invoking the indirect effects of the framework of decisions on the third pillar by mandating Community legislators with competence to ensure harmonization of criminal laws in individual member states concerning extreme matters like environmental policies (Conway 239). This effectively established the third pillar as a supranational competence area rather than a being an intergovernmental cooperation area. This case was of constitutional importance as it alters the balance of sovereignty between the community and member states. In this case, the ECJ recognized the competence of Community legislators to form European criminal systems to be interpreted under principles of direct applicability and supremacy. Essentially, the ruling mandated the EU to compel governments to enforce Community Law though this was not captured in the Treaties (Conway 236). In the ECOWAS case, ECJ extended its jurisdiction into the second pillar by assuming competence to review the legality of instruments adopted in the scope of Common Foreign and Security Policy. This is in spite of its formal exclusion on the basis of Article 46 EU (has since been reviewed). While the motive of preserving the inalienable rights of individuals and ameliorating their legal predicament when faced with non-reviewable government acts is legitimate, these judgments are undeniably activist especially in view of the ECJ proprio motu legal rules and principles (Hatzopoulos 75). In the Kadi-judgment, the court considered the general principles of Community laws superior in hierarchy to international laws. It denounced the overriding authority of the UN Security Council Resolutions and the UN Charter and discarded the rational approach the CFI had adhered to. In this case, it ventured into previously uncharted grounds, asserted the independence of the Community legal system and underscored the unprecedented nature of European Community law (Hatzopoulos 75). Critiquing the ECJ; proponents and critics Even though the Van Gend & Loos, judgment is regarded as a diversion from the traditional roles of international courts, the doctrine of direct effect is not exclusive to EC law, for it exists under different guises manifest in the form of self- executing provisions in other forms of international law. Even Costa/ENEL is not much of a novelty as the cardinal rule of international law is its supremacy over national laws. On the other hand, Community law demands that in case of conflict, national legal systems are obliged to give priority to the applicable supranational rules. However these judgments have an activist blemish as the doctrines applied are not enshrined in the Treaties and are products of judge-invented laws created for the benefit of the effet utile of European law. The resulting case-law expanding these notions further is also activism (Waele 7). The doctrine of direct effect as applied to the Van Gend & Loos and Costa/ENEL cases tend to generate much contempt among scholars for branding the Community as a new legal order, special and original in nature. Some have contested the autonomy of the system, its perceived immunity to general rules and distinction from other international Communities pointing that the international legal order is host to many sub-systems. They also challenge the notion of a revolutionary organization with unlimited duration, its own institutions; legal personality and competencies noting that the basis of the EC and EU configurations is to be found on a traditional treaty arrangement and as such are firmly rooted in international law unable to break free into an unique autonomous legal order (Abels and Joyce 59). Proponents of the court’s activism claim that the very nature of treaties makes make judicial activism inevitable. They point at the original EC Treaty as a framework treaty regulating a few topics exhaustive detail. In any case, treaties are inherently products of a protracted negotiation process resulting in vague, open-ended patch works replete with obscure formulas that reflect hard earned compromises. For example, Article 19 TEU is believed to give the court exceptional mandate to lay down rules in accordance with its own preferences with provisions for inventing solutions to legal controversies not addressed by negotiating parties. As such the provisions not included in the treaties leave room for invention of new rules by the ECJ (Sunstein 275). Treaties like many instruments of secondary law come in a plethora of languages each of them equally authentic; therefore where provisions are not phrased in identical or similar wording, the court may employ different techniques to establish framers common intentions. This according to proponents makes activism understandable, almost inevitable. The wording in most provisions is terse and laconic leaving it to the judges to establish the best fit, in line with existing legal framework, in cases such as Dassonville and Sager where the court was required to shed light on the free movement provisions, the court was right with the decision reached (Burca and Weiler 92). However, in some cases the provision is clear and precise, in such cases the ECJ has no right to distort and twist words and phrases as was the case in Defrenne, Busseni and Grzelczyk. More significantly, Article 19 TEU emphasizes on adherence to the law by the ECJ and neatly delineates its tasks militating against such judgments as Chernobyl and ECOWAS where the court deliberately expanded its competence in order to review acts, hear claims and receive preliminary questions beyond its scope as outlined in the Treaties(Chalmers; Davies and Monti 67). While the Treaties provide the general direction of developing the law, and the Preamble together with Article 7 EC elaborately mandate the court to preserve and uphold the rule of law, there is a school of thought that contend that the court is legally obligated to steer a pro-integration course requiring it to deliver rulings that strengthen and expand the Community. Due to the shortcomings of institutional architecture and cumbersome legislative processes, the courts were mandated to ensure incessant continuation of integration by reacting to inaction of the other actors through bold and expansive interpretation of rules of primary and secondary law(Chalmers; Davies and Monti 67). For example, in the 1970s when the EC experienced a period of stagnation and inter-institutional lethargy, the judiciary, that is the ECJ, established crucial doctrines in judgment such as Cassis de Dijon and Reyners to compensate for legislative inertia. Due to the historical constellation of defects in the initial EC, the court was mandated to deliver rules needed for the proper functioning of the supranational franchise and conveniently claim equal legitimacy to other institutions (Waele 7). The counter argument is that the system functioned in the precise way it was designed, and it is natural for any legislative apparatus to stagnate once in a while. The demand for continuous progress is political and lacks legal foundation. There is lack of prove that the absence of judicial intervention would have resulted in permanent stagnation. The decision would have been sound and more acceptable in a democratic perspective if political institutions had been given the role of furthering integration. The court’s decision to adopt a more activist rather than a supranational stance might have encouraged other institutions to stall deliberately (Conant 87). Of recent other institutions have improved efficiency and democratization and, therefore, the need for the court act as a vehicle of European integration has dissipated. In any case, the agenda of integration ought to be sourced from the Treaties, but any such agenda if it exists must be vaguely reflected in the Treaties, in any case the policies in the Preamble and first Articles of the Treaties are more notable for generality than clarity (Parga 212). Some proponents of the ECJ’s stance dismiss criticism as selective analysis and are unfounded as they claim it occurred only in a few cases. However, lost to them is the fact that critics only pick a small number of decisions from the courts vast case-law to substantiate their accusation that it indulges in creative jurisprudence. In any case, the cases where it had been excessively activist bending clear and unequivocal rules remain reprehensible even if they would only make up half of all decided cases (Parga 212). the proponents claim of existence of a counterpart to every activist judgment equally subject the system to selective analysis just like the critics since it would be daunting to statistically analyze all judgments and produce scientifically valid data. Critics also accuse the court of lacking restraint, but where it exercised restraint, it was blatantly inconsistent, for example, in the Francovich and Les Verts cases it engaged in creative jurisprudence to guarantee access to a judicial remedy yet it was extremely reluctant in the Segi and Spain/Eurojust cases. Conversely, the evidence of restraint nullifies the defense of activism (Parga 212). Further defense of activism, is the assertion that no ruling has ever been reversed. For if the court was extremely activism. Member States would have corrected erroneous decisions and curtailed the courts powers, but this has rarely happened. The indication is that nothing was intrinsically wrong with the jurisdiction of the ECJ or the integrationist zeal. But, this argument is flawed as it fails to consider the complexity of Treaties amendment regime. Article 48 TEU stipulates that treaties can only be modified with the permission every member states and can only take effect after ratification by members in accordance with provisions of their national constitutions (Dougan 157). The high hurdle for amendments of the constitutional charter safeguards basic rights and fundamental legal principles. By allowing the Treaties to be amended through judicial decisions, the court risks harming sections of the EU fraternity who will be unable to let their objections prevail due to the unanimity requirement (Dougan 157). Conclusion The ECJ will always attempt to do justice while striking the right balance between the European legal order, citizens and institutions and claims of member states seeking to direct the direction of the EU’s development. It is also notable that the ECJ has demonstrated restraint in its long illustrious judicial history more recently it demonstrated restraint in the Forster case (Conant 87). On several, occasions the court has been criticized for its overzealous pro-integrationist stance, the reservations among critics are that it redraws rules in an attempt to interpret them attaching disproportionate amount of importance to their effectiveness to the detriment of other concerns. Works cited: Waele, Henri. The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment. Hanse Law Review 6.1(2010): 1-24. Print. Parga, Alicia. Judicial control in the European Union: reforming jurisdiction in the intergovernmental pillars. 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