JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE - Essay Example

? JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE . Introduction The European Community Courts have played a decisive role in the integration process of the European Union. The European Court of Justice (ECJ) has especially assumed key role by constantly pursuing legal assimilation in the EU by offering flesh and substance to an outline Treaty, thereby plugging in loopholes in the European laws, and improving the effective implementation of Community law in the provinces of the member states1. In case of ambiguities in the text of the Treaties, ECJ has to employ its creative talents so as to accomplish an acceptable elucidation and application of Community law. ECJ has filled in the gaps and removed the imprecision in the provinces of Community law thereby removing the barrier of restricted jurisdiction and is able to develop its authority and role. The main aim of this research essay will be analysing in detail the activist strategy of the ECJ which appears to have initiated some courageous and bold efforts to establish a constitutional cornerstone for the EU2. “What is Judicial Activism?” Judicial activism connotes to the keenness of the courts to establish public policy if a State, and its political institutions is reluctant to do the same or may not in a position to execute the same. In real parlance, it can be called as the shifting of judicial decision making privileges from the administrative and legislative process to the courts. It is a well known fact that judicial activism at ECJ refers the political consequences of the policy preferences employed by the Court in its elucidation or interpretation role. Judicial activism may compel a court to function as legislators, or it can be referred as ‘judicialisation of politics3’. There is a need for judicial activism in EU as the language of the Treaty is not supportive and so the Courts require to establish some cannons so as to fill in a “procedural hole.” Language and Interpretation of EU Law It is to be observed that EC law cannot be comprehended without recognising its multilingual personality into account. While applying or interpreting Community laws, the peril of swerving meanings between various versions and the equal legitimacy of all language versions of community provisions. As there are about 23 working and authentic languages employed in the EU institutions, there is enormous strain on the EU’s translating services. Further, it is to be observed that daily application and interpretation of Community regulations actually occurs in various and different tribunals and courts of the Member States. ECJ employed teleological approach in cases where intellectual property is involved even when its relevance contravenes the precise and explicit factual meaning of clearly expressed words as it held in the case Davidoff & Cie SA v Gofkid Ltd4. General Activism As early as in 1963, in Van Gend en Loos5 case, it was held by ECJ that cannons of the Treaty could have a direct impact. Thus, the direct effect offers an individual citizen right to sue national government in their own national courts for not willing to implement the treaty6. In this case, the Court viewed that the Treaty is not an agreement and it more than that which establishes mutual responsibilities between the Contracting States, besides, the Community establishes a new legal setup of international law for the advantage of which the States have restricted their autonomous authority, despite within the restricted grounds. In the above case, ECJ created the doctrine of direct effect thereby restricting national courts from proclaiming the illogicalness of Community law. In Foto-Frost7 case, ECJ viewed that national courts do not have authority to invalidate the community law even though it is having such authority. In Costa v ENEL8, it was held by ECJ that EC law has primacy over the national laws. In this case, ECJ supremacy doctrine was established ,which connote that State transfers of legal authority were irrevocable and imposes a long -lasting restriction on sovereign authority. In Les Verts9 Case, ECJ expanded the Court’s authority in disregard of Treaty provisions, and ECJ has roped in European Parliament within its ambit of judicial evaluation though it was mentioned in the EC Treaty that the Commission and the Council can alone come under the scope of ECJ10. In Francovich 11case, ECJ created state accountability for the infringement of Community law. In this case, the Court established the failure of Member States to reversal of directives, which amounted to an infringement of Community law under which the Member States are obligated to defer compensation for injury suffered by citizens. Thus, in normal parlance, the Court’s means of elucidation of Community law which have been regarded as technological or purposive, although not in the sagacity of in search of the aim or purpose of the author of a text, where in the majority of the cases, the Court’s findings have been regarded as insufficient12. The Factortame13 litigation offers a debatable illustration of judicial activism. It focussed on the accessibility of interim relief against the Crown. ECJ confirmed that the House of Lord had authority , in the scenario assumed , to award provisional assistance for the safeguard of directly implementable rights under EC law and that there can be no restriction on that jurisdiction inflicted by any rule of national law that could remain as a sole barrier to the stop the payment of such compensation. So as to offer effect to the EC Act 1972, the House of Lords later discounted the obvious regulation of national law, which prevented grant of interim relief against the Crown and regarded the “‘balance of convenience ‘to decide whether a proper case for the award of compensation had been made out14. In Facini Dori15 case, the ECJ declined to offer horizontal impact to directives and thus to enlarge the scope of the Community law and its authority at the cost of national law, which remains as an illustration of this. Further, the Court observed self-restraint, especially in some politically sensitive problems touching upon social and economic policies of the Member States, where the Court has been not keen to mediate16. In Pupino17 case, ECJ was requested upon first time to elucidate a structure of the verdict adopted due to the field of EU Criminal cooperation. Thus, an extension of community principle as an “indirect impact” to the third pillar of the EU, ECJ found a probable relief to citizens who are trying to seek protection of their rights under the third pillar law. Due to “transformative constitutional effect “, Pupino verdict has been regarded as a pivotal constitutional significance18. Further, in Pupino case, the Court also emphasised that international treaties like EEA Agreement, EU Treaty and EC Treaty must be construed on the footing not only of their language and wording but also in the background of their aims19. Chen20 is another important case as regards to the style the Court extended the teleological stride to the needs of adequate resources. The issue in this case was whether a third country resident mother can act as a carer and whether she had the privilege to reside as a dependent on her new-born daughter. Thus, ECJs verdict in Chen case was footed upon the efficacy of baby’s privilege to residence. The court coming out from the self-restraint, held that the privilege to citizenship emanating from the residential status which is extended to a third-country carers of a member nation citizen’s child. This poignant case is significant as the Court gave the precedence to the notion of effect utile rather than non-abuse rights21. “Judicial Activism in Immigration Law” In Metock22 case , ECJ held that Union citizens who have enjoyed their privilege to free movement have a right to reunification with the third-nation citizen family members despite the fact, whether such family members have earlier resided legally in another Member State or not. This ECJs daring verdict created strong retorts in Denmark23. Judicial Activism in Free Movement of Students Bidar24 case is concerned with a French national who had been residing in UK along with his grandmother in the UK. He completed his secondary education in UK and then perused his university studies in UK and applied for financial assistance for his higher education in UK. Under national law, Bidar had the right to reside in UK; his application was turned down on the ground that he was not settled in the UK. Bidar approached UKs High Court for confronting the decision as it amounted to discrimination on grounds of nationality as per Article 12 of EC. UKs High Court referred this case to ECJ and ECJ by deviating from the decision held in Brown and Lair, held that this fell within the ambit of community law25. Thus , in Bidar case , ECJ held that a student who has inhabited in a host Member State for some period of time, which may be considered as adequately assimilated into the society , so that such student can receive the analogues’ maintenance financial assistance as what has been received by the students of the host country. In Forster case, which deals with the student’s right to receive maintenance financial assistance, which is analogues to home students while studying abroad (in another member state26. Criticism However, there has been allegation that the ECJ judicial activism has resulted in the disregard of Treaties and advancing the Court’s own political mileage of European integration. Hjalte Rasmussen criticised the judicial activism played by the ECJ which he considered as a perilous social malevolence and the ECJ’s too much activism was threatening to destabilise its power and legitimacy. ECJs judicial activism is also being condemned by critics for establishing the cannon of direct impact in an activist stride and also for restricting the retrospective impact of its verdict given in Defrenne v Sabena27. Some critics argue that ECJ present authority may surpass outside its earlier power as detailed in Article 164 of the EEC Treaty and this may result in a situation of “usurpation of authority28.” The composition of EU institutions with its breakdown of authority and large obstacles which the Member States are facing for decision-making makes it arduous for them to initiate action that might bar the ECJ in exercising its judicial activism. According to Kelemen (2012), even the critics of the ECJ admit that ECJ happens to be most trustworthy public institution in the whole of Europe. The Eurobarometer Survey taken between 1999 and 2010 reveal that European nations have greater confidence in the ECJ than in any other public organisation like national governments, national parliaments, national political parties and national justice system. Thus, Eurobarometer survey demonstrates that ECJ enjoys greater scale of confidence than national political parties that might criticise it. European political parties are of the view that ECJ always shows favouritism to general public so as to get reverence from them. The ECJs non-partisan approach thereby not yielding to mighty political actors in Europe demonstrate its power thereby corroborating the bold role played by the ECJ in establishment of the European legal structure. When Member States’ Constitutional courts as held in German Bundesver-fassungsgericht case, were of the opinion that European legal order did not offer enough protection for the basic rights ensured in the national constitutions , ECJ retorted by introducing its own jurisprudence on basic rights , thereby focussing on the “collective constitutional customs of the Member States. Further, as regards to superiority and the query of Kompetenz –Kompetenz, there is no sign of qualifications of superiority by Member State’s courts, which had no effect on the jurisdiction of ECJ. There is no sign from the ECJ that it has withdrawn from avowing its power to redressal of disputes pertaining to the frontiers of EU law29. It is argued that procedures which ECJ relied on were of theoretically political in nature and hence, not prudently applicable. Despite the axiom that society should not be administered by man but by law, the ECJ and its judges appear to have keenness in establishing an “ever-closer –union30. Conclusion As the EU is the union of about 27 countries with large population, varied political and legal setup, the confronts witnessing the EU judicial system should be given proper weight. The common notion that ECJ as a constitutional court encouraging the rule of law in such a community is likely to witness increasing pressure31. Judicial activism is employed to define the tradition of ECJ to fill up the holes and vagueness subsisting in the provinces of Community law as to enlarge the Court’s authority and its role in the Community. However, critics are of the opinion that the ECJ’s activism surpasses its judicial authority and falls into the provinces of policy-making. Nonetheless, the criticism is not a realistic one as the ECJ activism has not injured the objectives and tone of the Treaties. In some cases, ECJ has even shown a capability for self-control32. The EU Court with the help of judicial activism is trying to offer EU law with mechanisms to implement basic rights and standards as standards for democratic government in places wherein it might have been earlier infringed, suppressed, abused, extinguished or even unknown33. 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(Brill 2010) 125 Sarat, A, Studies in Law ,Politics and Society (Emerald Group Publishing 2012) 152 Ulf Bernitz , Joakim Nergelius & Cecilia Cardner, General Principles of EC Law in a Process of Development(Kluwer Law International 2008 ) 325 Journal Articles Maria Fletcher, ‘Extending “Indirect Effect “to the Third Pillar: The Significance of Pupino ‘(2005) E.L.Rev 30 (6) 862 Pierre, Pescatore, ‘The Doctrine of Direct Effect: An Infant Disease of Community Law ‘(1983) 8 E.L.Rev 157 Internet Sources Yuvuz Aydin, ECJ has Returned to its earlier days of Judicial Activism www.justice.gov.tr/e-journal/pdf/european_court.pdf > accessed 26 February 2013 Case Laws Criminal proceedings against Maria Pupino- 16 June 2005 Davidoff & Cie SA v Gofkid Ltd-19 January 2003 Faccini Dori v Recreb- 14 July 1994 Flaminio Costa v Ente Nazionale per l’Energia Elettrica (ENEL) - 15 July 1964 Foster v British Gas plc-12 July 1990 Foto-Frost v Hauptzollamt Lubeck-Ost -22 October 1987 Francovich and Others v. Italian Republic – 12 March 2007 Kunquian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department-19 October 2004 Metock and Others v. Minister for Justice, Equality and Law Reform Nederlandse Administratie der Belastingen-25 July 2008 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Others]-5 February 1963 R. v. Secretary of State for Transport, ex parte Factortame Ltd.-28 October 1999 The Queen, on the application of Dany Bidar v London Borough of Earling and Secretary of State for Education and Skills- 15 March 2005 Read More