The Treaty Provisions Between European Union and European Court - Term Paper Example

 The role of the ECJ Abstract: The ECJ functions as the agent through which EU law is interpreted. However, since the provisions in the Treaty are not specific, this has often resulted in conflicts between EU law and national law, wherein the extent of jurisprudence that should be exercised by the ECJ remains subject to dispute. In the absence of specific regulatory provisions, the ECJ has been forced to adopt a pro active role rather than functioning in a non activist manner to ensure supremacy of national sovereignty whilst simultaneously enforcing uniform community law principles within the European Union. Introduction: The EU Treaty has been established largely based upon general principles that are to govern the functioning of the member States1. The ECJ is the supreme Court of the European Union which adjudicates on matters that concern the interpretation of EU law and with ultimate authority in the Community legal order to ensure observance of the law3 which gives it a wide ranging jurisdiction without specifying the limits of ECJ jurisprudence. The doctrine developed by the ECJ thus far has been that the rules of Community law may be derived from general law principles operating in conjunction with treaties and EC legislation4. According to Article 164 of the EC Treaty; "The Court of Justice shall ensure that in the interpretation of the Treaty the law is observed2". However, this does not clarify whether general principles of law will be valid for ECJ operation and which specific areas it is required to adjudicate upon8. Article 173 of the EC Treaty5 dealing with the process of judicial review states that an annulment may be based upon"... infringement of this Treaty, or of any rule of law relating to its application ...” The ECJ has used this article as the basis to decide that an act of the EC can be annulled if it infringes general principles of law6. The ECJ has been entrusted with the onerous responsibility of devising a common code of law for all the member states. The lack of clear delineation of the powers of the ECJ has resulted in EU law encroaching into national laws. For example, in early 2000, the ECJ ordered Germany to amend its Constitution to allow women to perform combat duties.7 (www.news.bbc.co.uk). The Court ordered in 2001 that parts of the German Constitution were incompatible with EU treaties. This raises the question of primacy : which law should prevail – national or European? The conflict first emerged in 1963, in the case of Van Gend en Loos v Nederlanse Administratie der Belastingen.9 The Court established that a conflict between EC law and national law was possible. The Treaty establishing the European Community10 states: “Any natural person may….institute legal proceedings….” in a decision which involves him even indirectly. This raises the issue of the role of the ECJ in terms of the supremacy of individual nations and the need to institute specific provisions delineating its role as the enforcer of community law. But recent trends indicate that the ECJ is not perceived to be playing a non activist role. According to a German Court in a recent decision; “I deeply regret that the court refuses to participate in a constructive way to establish European solutions.11 In the case of Van Gend12, the Court did not confirm which would prevail – EU law or national law. But in the case of Costa v ENEL13, the Court stated that European law would prevail, thereby taking up an activist posture. In the case of Internationale Handelsgesellschaft14, the ECJ stated: “The validity of a Community measure….cannot be affected by allegations that…..it runs counter to….. as formulated by the constitution of that state or the principles of a national constitutional structure”. Thus the issue of primacy of EU law has been established by the ECJ in accordance with the general principles of Community law rather than as an independent regulatory authority that conducts judicial review. In the case of Costa v E.N.E.L.15, the Court held that the EEC Treaty had created its own legal system which “became an integral part of the legal systems of the member states and which their courts are bound to apply”.16 The preferential position of Community law in the internal legal order is mandated by the economic constraints generated by the Common Market.17 By virtue of the Direct Effect, member States are now obligated to comply with Community Law as it has been framed according to European laws within the framework of their own internal laws. In fact, no room has been left for partial measures or partial implementation. In the case of Commission vs UK18, the ECJ stated that EU regulations were binding upon the member States “in their entirety” and they also stated that “a member state cannot choose to implement them piecemeal.” Moreover, because of the direct effect, the European Court of Justice can further influence the framework of internal law of a member state by ordering that State to change its laws in the event that a noncomplianace with the European regulations is found19. The Constitutional Treaty of 2004 with its Charter of Rights purports to establish fundamental rights of EU citizens, but it comprises 54 articles which have only generated more confusion about the role of the ECJ20 , although it sets out for the first time has set out the primacy of European law over national law. Uniform application of EU law is mandated21, however the question of who decides these limitations is unclear22. For example, the European Commission is the executive branch of the European Union, which proposes and implements legislation and is responsible for overseeing treaties and regulations that have been framed23. But this entity cannot be sued for failing to enforce an EU Directive.24 Moreover, the European Court of Justice will not be able to rule on all aspects of Justice and Home Affairs. The ECJ is endowed with the competence to only rule upon the adequacy of implementation of JHA measures within the scope of national law28. Therefore there is no clear delineation of the powers of the ECJ or of its role and it is therefore forced to adopt a pro active role. Membership in the European Union is an individual choice of the Member States however once they are subject to the treaties, they must adhere to the legal obligations flowing from these treaties and primacy from the position of a member state becomes untenable, and it cannot escape compliance with EU law on grounds of sovereignty25 The concept of the supreme primacy of the European law over national law has raised the question of an overstepping of the boundaries of the ECJ. Critics of the ECJ’s activist posture have contested the Court’s primacy posture.26 According to JUSTICE, a human rights organization in the UK, specific provisions in the EU treaties providing for clear competence of the ECJ are lacking. Human rights areas such as immigration policies and police cooperation are outside the jurisdiction of the ECJ, which has no clear basis upon which it may interpret and adjudicate community law and impose a uniform standard of human rights compliance among all member states27. Conclusion: Based on the foregoing, it may be noted that the ECJ is an international Court, therefore it must function mainly in a proactive yet non activist role in the process of judicial review. There are issues of sovereignty of individual nations and their freedom to implement procedural laws, which form the basis for the commonwealth of European States. Establishing a uniform set of rules and regulations that will apply to all member States is the responsibility of the Treaties, however individual compliance of Member States cannot be forced without due respect for national sovereignty. This is where the ECJ may be perceived to have an important role to play in the adjudication of disputes, through the performance of a regulatory function in a non activist manner. However, due to the lack of clear delineation of powers, coupled with the tendency of the ECJ to function on the basis of principles of general law, there have been encroachments to national sovereignty, with the ECJ taking on a role “larger than originally envisaged for it in the Treaty.”29 The new Treaty does not effectively address the need to clearly define the role of the ECJ, although it has established the issue of primacy whereby European law takes precedence over national law.30 Hence, there is a need to clearly address the need to establish the role of the ECJ in the resolution of conflicts, so that it is able to adopt a pro active role that will be in accordance with the consensus of the Member States31. In cases such as Van Gend Loos and Frankovich32 the ECJ has abrogated to itself, an overpowering role over the member States in enforcing individual rights, which in turn has created procedural conflicts and raised issues of sovereignty of national laws. The scope for disputes and conflicts is only likely to escalate as more States join the European Union, therefore it is vital that the ECJ adopt a non activist role. But in its rulings thus far, this has not been the case, since the absence of clear provisions have left the ECJ to function on a case by case basis, or on the basis of precedent without a clearly structured framework of law to reply upon. Read More