The European Court of Justice - Case Study Example

Topic: The case law of the ECJ has had a far greater impact on the development of EC law than any of the various Treaties. I. Introduction: This paper seeks to explain whether there is basis to say that the case law of the European Court of Justice (ECJ) has had a far greater impact on the development of the European Community (EC) law than any of the various Treaties. It starts therefore with the case’s laws evidence of impact and ends with the possible explanation of the causes underlying the observed phenomenon. II. Definition of terms and attempt to establish impacts of ECJ case laws. When we say, evidence, we are referring to the means by which validity of the statement could be established. But before we could do so, we must first define the terms within the topical proposition. What are ECJ’s case laws and what do the ECJ case laws have to do with the EC Law? What are EC laws? What are treaties? Are there distinctions among these terms? The ECJ decisions are so called case laws. The case laws are the decisions of the ECJ in performing its function as a court while EC law refers to the laws governing the members of the European Community.Institutions created in the treaty like ECJ and the Council can act only within the limits of their powers ECJ produces EC case laws while the Council passes regulations. On the other hand, a treaty refers to an agreement entered into by states between or among themselves, if more than two, and the best example is the Treaty of Rome, which was used as basis for the integration of member states in the EC. Any other treaty in the proposition may refer to any other treaty that the ECJ may interpret in relation to its function as defined in the Treaty of Rome and as further amended by another treaty if there is any. Some EC laws have direct applicability but others have not. EC laws therefore create obligations which must be obeyed by member states and said obligations must be binding and implementing measure must meet legal certainty. Under the treaty of Rome, the ECJ is given the function of interpreting the Treaty. The effects of said decisions have been far reaching. Hence, we have the ECJ case laws as one of the sources of EU laws. In addition, ECJ in certain cases have applied the general principles of law < http://www.mifsudbonnici.com/lexnet/articles/artgenprinc.html> and applied the direct action. Direct Action is a type of action before the ECJ, which starts and ends before the ECJ against the EU institutions or against a Member State; usually initiated by an EU institution or Member State, and in exceptional circumstances by a private party against an EU institution. < http://faculty.law.ubc.ca/biukovic/EUlaw/EUglos1.htm#W > Moreover, ECJ applied the doctrine of supremacy in its decisions. This doctrine espouses that EU law is supreme over both prior and subsequent national law and such principle is not expressly stated in any of the treaties but is established by the ECJ. The doctrine also imposes a duty upon national courts to give immediate and automatic precedence to EU law and to set aside conflicting national provisions.< http://faculty.law.ubc.ca/biukovic/EUlaw/Top#Top> This application of the doctrine has generated debates where there are possible questions of loss of sovereignty of the member states. In substance the propositional statement is saying, the treaty that created is less influential than the court it created as far as the impact of these ECJ decisions on EC laws are concerned. Alternatively expressed, it also means that the effect is more controversial than the cause as far as the EC law is concerned. III. Possible Explanations of the Observed Phenomenon There are possible reasons that could explain such an observed phenomenon and they are: 1. The need to accomplish the purpose of the treaty The Treaty of Rome really aimed for economic and political integration of the different member states, which are located in Europe. The treaty could not function with out a court, hence the ECJ was created. The creation of the ECJ acknowledges the purposes for which it was created, that is to interpret the law. 2. The nature of judicial power Judicial decisions or interpretations give light to the law. Judicial interpretation dwells on gray areas. Gray areas exist because of legally contending rights between the parties. This is the reason why cases reach the court because the parties could not agree on the interpretation of the treaties under which the members states are bound to observe and with which the ECJ has jurisdictions clearly known to the contending parties. The legislative or the executive branch cannot interpret the law. It will violate the principle of separation of powers. In case of conflict between the legislative and executive branches, the court is in the best position to assert its independence for the working of the principle of checks and balances among the three departments. Hence, the courts are really expected to be independent and fair in the interpretation of the different provisions. Judicial power is different from the legislative and executive power. Each of three branches of powers of any government requires an exercise of independence. It is the independence that would provide each the distinction of each power and would give each power the due respect to function equally well in a human polity. This is observation is confirmed by IDEAS at UConn Economics using RePEc data, when it said, “Judicial Independence is a crucial aspect of the rule of law and the concept of separation of powers. It gives judges considerable leeway in interpreting and thereby modifying the constitution. In this paper, the role of the European Court of Justice (ECJ) as an actor in the strategic game played between the other actors on the European level as well as actors on the nation-state level (the respective governments, but also national courts, corporate actors and individuals) is inquired into.” There have been changes of the ECJ’s competence occurring since the middle of part of 1950’s. ECJ has been able to bring into effect constitutional changes through decisions it has made especially those which concerns on the doctrine of supremacy.< www.ecsanet.org/conferences/ecsaworld2/alter.htm > Closely related to this issue it the ECJ’ decision in the case of Case 6/64, Costa v. ENEL [1964] ECR 585 @ 603. In that case, Advocate General Lagrance had said, “Where the executive organs of the Community have the power to issue regulations, and make us of it, the incorporation in the domestic system takes place ipso jure the moment the regulations are published.” There is however an exception to the rule in the case Tachograph Regulation 1463/70. The observation is also confirmed by IDEAS at UConn Economics using RePEc when it said: “It is shown that the ECJ has been able to bring about implicit constitutional change because its members are constrained less stringently than most supreme court judges on the nation state level.”< http://ideas.repec.org/p/bep/dewple/2003-1-1066.html> (Emphasis supplied) 3. Treaty subject to different interpretations and only ECJ can give finality. The treaty is subject to interpretation of the contending parties. The law will not settle the issues if the ECJ will not uphold it. Jurisdiction is defined as the authority to hear and decide a case. Controversies created by different interpretations could not be left hanging in the air. The parties want a definitive interpretation of the state of law. Here is where ECJ find its unique function of really putting things to rest. A thing that has started must end. This reality is confirmed by a glossary that was prepared by Professor Ljiljana Biukovic and Professor Martha OBrien for use by students in European Union Law in the Faculty of Law, UBC and Faculty of Law, University of Victoria. Excerpt of the glossary said, “ The ECJ ensures consistent and uniform interpretation of EU law; jurisdiction includes references from national courts for preliminary rulings, actions by and against Member States and EU institutions, and appeals from the CFI. ECJ decisions are final.”< http://www.law.uvic.ca/law374/handouts/glossary.doc> 4. ECJ cannot refuse to rule citing as reason the absence of law. The ECJ can go beyond the Treaty provisions under the doctrine of supremacy and it is the ECJ will declare so. Here is where the charge of ECJ’s judicial activism may find its place. Imagine parties coming into the court and the court trying to say, “Let us wait on the legislative branch to enact a law particular to your case, so we will put the issue to rest.” The court could be thought as weak in this scenario. Hence, the probability is that court presumes that the treaty or laws that have been enacted must have really intended to attain justice of fairness among contending parties. The ECJ does rule based on general principles of law, for which they are thought of as doing some judicial legislation. Charges of judicial activism seem to exist even in the minds of some researchers. This is confirmed by the conclusion of a master’s thesis on judicial activism where the writer concluded: “Therefore - whatever high-divisions about the Europe and its role in there the ECJ may invent, in the end of the day it is for the Member States do decide about the future of Europe. Until no clear decisions are made, the ECJ should keep and protect the institutional balance in Community. If it chooses not to do so, the automatic sovereignty-protection reflex starts both by the courts of the Member States as well by the political circles. In addition, it is certainly the ECJ, who suffers the most in such a case, as it is fully dependent of the co-operation of the national courts. The concluding message, that can be made based on this work is, that for preserving the respect towards itself, the ECJ should take a pace back and be again more an interpreter than Creator, that is start dealing more with laws than politics.” 5. Court decisions have the force of law The court decisions, which settled the party’s conflict, became Europe law although they are not enacted by legislature. Case laws are so called jurisprudence and they define the law at a certain point in time. Hence, decision ECJ could change in relation to time. Jon Christian Ryter in his article, “Understanding the Constitutional Religious Freedom” confirms that court decisions have the force of law < http://www.jonchristianryter.com/2004/122504.html > 6. The ECJ gives justice to the interpretation of the treaty The object of the law is to prevent injustice from prevailing.< www.econlib.org/library/Bastiat/basEss2.html>. Injustice is prevented if implementation as interpreted by an independent court like ECJ could enhance the same. Having a jurisdiction, a court administers justice. (Journal of Student Publications, page 485-586, In Defense Of Our Law Of Sovereign Immunity by Alfred Hill 7. Nature of thing is governed by its end. A law is only as effective as its purpose. The purpose gives meaning. The purpose of the law may have been clearly written just like in the really but their interpretation lies only with the body which has the power. Although a treaty creates frame under which the law functions, a case law a scope of law < www.thompsons.law.co.uk/ltext/l1100002.htm >. It is judge-made law< http://faculty.icc.edu/pgasper/bus215/215unit199.html >, hence, it must accomplish its purpose of supplying what is meant by the law. IV. Conclusion We have seen how powerful the ECJ could be in making its decisions effective. It can even go as far as judicial activism in the absence of expressed Treaty provisions governing controversies brought to it. A court cannot refuse to rule in the absence of law. Hence, in such cases, court interpretations find their relevant purpose, that the court must fill in the gap that is missing in the law. If judges do so behave in such manner, they are criticized as judicial activists. However, the best option really under those circumstances was to have a ruling that would lead to future legislations and hence a constitutional change among member states under the principle of supremacy. The ECJ must accomplish the purpose to which it is created under the treaty. The very nature of judicial functions serves the purpose of the treaty for which gray areas must be made clear by a judicial action, which incidentally also bring controversies to their end. With the ECJ not having a better choice in the absence of a clear provision, it asserts itself by applying the general principles of law. From the point of some, it is judicial intervention or activism, but for others is judicial independence. Having performed its functions, the case laws could not be just made for the presently contending parties since in every case, there is a principle involved. Said principle does not die with the decision. The principle becomes case laws that will have the force of law. Bibliography: 1. < http://education.yahoo.com/reference/encyclopedia/entry?id=37122> 2. < http://lookwayup.com/lwu.exe//lwu/d?t=&h=&s=f&b=&w=judicial+decision&st=> 3. < http://www.econlib.org/library/Bastiat/basEss2.html> 4. < http://www.hri.org/docs/Rome57> 5. < http://www.lmtonline.com/focus/archive/0502/focus4.pdf> 6. < http://www.thompsons.law.co.uk/ltext/l1100002.htm> 7. < http://www.w3dictionary.com/executive+branch> 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Case 16, 17/62, Producers de Fruits v. Council. 18. Case 34/73, Variola v. Italian Finance Administration, [1973] ECR 981 19. Case 6/64, Costa v. ENEL [1964] ECR 585 @ 603 20. Cases 239/85, Commision v. Belgium [1986] ERC 364 21. Craig, P and De Burca, G. EC law Text Cases & Materials, 1/e Oxford: Clarendon Press 1995, page 98. 22. Glossary Of European Union Commonly Used Terms, < http://faculty.law.ubc.ca/biukovic/EUlaw/EUglos1.htm#W > 23. IDEAS at UConn Economics using RePEc data 24. Lasok, D., Lasok & Bridge: Law and Institutions of the European Union, London: Butterworths, 6/e 1994 25. MacLean, European Union law Textbook, ed, London: HLT Publications, 7/e 1995/1996. 26. Ryter, Jon Christian, Understanding the Constitutional Religious Freedom < http://www.jonchristianryter.com/2004/122504.html > 27. Tachograph Regulation 1463/70 28. Zetterquist, Ola , Master Thesis on Rule of Law or Judicial Activism- Two Perspective On the European Court of Justice, University of Lund, , {Accessed} December 16,2005) 29. Article 234 of the Treaty of Rome< http://www.lawteacher.net/ELS/Civil%20Process/European%20Courts.htm> Read More