The European Court of Justice - Assignment Example

Swarna1 Word count: 2765 P.Swarnalatha ID # 5448 Order 198454 d 14th December 2007 European Law To what extent has the European Court of Justice been justified in ruling that the EC Treaty incorporates a principle of supremacy? Introduction History reveals that the advantage of general principles of law was taken in all legal systems. The main objective of these general principles is clearly to assist in situations where written sources of law have failed to provide an answer. No doubt, there are several occasions when the written form of law provisions couldn’t justify the legal interpretation of all the questions which come before the Courts. The principle of supremacy mainly comes under this category. With out incorporating the principle of supremacy in the treaty of European Commission, answering all the related questions which involve the clash between the national law authorities and European Union law authorities cannot be properly addressed (Tamera Capeta, 2002). At the same time, the development of general principles didn’t take place suddenly. They have been developed after thorough discussion and interpretation over a period of time and hence have higher relevance in legal adjudication cases. Hence the incorporation of the principle of supremacy was well executed and was quite necessary according to the opinion of European Court of justice. In this way, the European Court of Justice (ECJ)1 has developed a theory that rules of Community law can be generated based on the general principles of law like the principle of supremacy. To make it more meaningful, it wished to incorporate the same in the treaty of European Union and in that process. Hence the principle of subsidiarity in Article 3b of EC treaty was well justified by the European Court of justice (Virginia Harrison, 1996). At the same time, it doesn’t mean that all the general principles can be incorporated in to the treaty of European 1: The Court of Justice of European Communities. http://curia.europa.eu/. Commission. In other words, only a few meaningful general principles may be incorporated into the law-making process of the EC (John Usher, 1998). As it has identified the principle of supremacy has a common assent due to their generality in tune with EC Treaty Articles, it was well integrated in to the treaty of the European Commission. The actual basis of supporting the incorporation of principle of supremacy in the treaty of European Commission is due to complex issue of the inter-relationship of EC law, and the laws of the member states of the EU. One may observe that the European Court of Justice has always held that EC law should take upper hand over national law and that, where ever the scope of conflict arises, national courts are given authority and directives to successfully implement EC law. The main reason behind this decision is that the creation of European Union was mainly intended to move towards an integrated unit for common benefits in trade. Unless there is an establishment of uniform system in legal interpretation at European Union level, there is no meaning of formation of European Union. In this regard, as mentioned earlier, the application of general principles like principle of supremacy holds higher relevance. However, these general principles should be incorporated in to the legal provisions of European Commission for necessary strength in legal interpretations. These factors made the European Court of Justice to justify the incorporation of principle of supremacy in to the treaty of European Commission. There were several occasions in which the law of European Union has clashed with the law of individual nations of European Union like Germany, United Kingdom, France and Italy (Margot Horspool, 2003). It was witnessed in several cases while reviewing by the judiciary. The interpretation of European law2 has created problems between other member countries and European Union in several contexts (Wetzel, Joseph R., 2003). For example, European Union law has faced several problems with its interpretation due to presence of two different 2: EUR-Lex. The access to European law. Court of Justice. Latest documents. http://eur-lex.europa.eu/JURISIndex.do?ihmlang=en. constitutional bodies i.e. German Federal Constitutional court and European Court of Justice in Germany. In several occasions, there appeared a clear difference in opinion regarding legal interpretation and people have been denied proper justice. In some cases, the German national laws prevailed over the laws of European Union and hence resulting in injustice to several people. Hence the incorporation of principle of supremacy in Treaty of European Commission was well justified by the European Court of Justice. One should also note that the principle of supremacy was incorporated in the form of Article 226 of EC which states the supremacy of community law. It also mentions about the ineffective means of enforcement of law, principle of direct effect, principle of indirect effect and principle of state liability. Earlier, the European Court of Justice has solved possible conflicts of law between the member nation and the European legal systems in favor of the Member States. It has opined that the supremacy of common law of European Union is essential in giving natural justice. It always suggested that the principle of supremacy of European Commission over individual nation laws is mandatory for bringing uniformity of judgment and other legal interpretations through out the European Union3. Hence here is a need to discuss and analyze the incorporation of principle of supremacy in European commission treaty as supported by the European Court of Justice. One should also verify or debate over the justification of European Court of justice for maintaining or incorporating principle of supremacy in the European Commission treaty. Some researchers argue that when there are several common areas or similarities between European law and individual nation laws, what is the need for incorporating the principle of supremacy in European commission treaty. As mentioned earlier, there are several similarities in interpretation of European law by European Court of Justice and German Federal Constitutional Court (Henkel, 2001). Their commonality in legal interpretation is mainly aimed at reducing the limitations on the majority principle with respect to the constitutions and fundamental interests of Member States. Supporting the principle of supremacy doesn’t mean that the laws of national governments would be neglected. It was felt to incorporate the principle of 3 Gate way to the European Union. Europa. http://europa. supremacy in charter of European Commission mainly to integrate the both laws in a meaningful manner and it also aims to provide maximum justice to the clients as far as legal interpretation is concerned. The incorporation of principle of supremacy of European Commission had long foundation (Nigel Foster, 2007). One should not forget the contribution of the genuine efforts of all the member countries in this direction by establishing Luxembourg compromise4 of 1966. This has paved the way for the principle of supremacy of European Union. The contribution of the Federal Constitutional Court which attempted to find a legal foundation for the compromise in the principle of loyalty to the community is also noteworthy in making the principle of supremacy under European Union treaty. No doubt, as a whole, these 4: Luxembourg compromise. Any reference to ‘the European Constitution’ is suspended until a new reform treaty has been adopted to replace the draft Constitutional Treaty. Europa glossary. http://europa.eu/scadplus/glossary/luxembourg_compromise_en.htm. initiatives have kept the interests of all the member states of European Union intact so that the legal interpretation has been given due importance. If one closely analyses the amendments made to German civil codes, their similarity with the European law (Raymond Youngs, 2002) would be clearly evident. Let us analyze one important legal case in which the similarity in interpretation of legal provisions is witnesses clearly. In June 1999, the doubts arose in Belgium and Germany that the meat produced in Belgium was contaminated with dioxin. Both Germany and Belgium are members of European Union and would be governed under common European law. As a result, in Germany, an ordinance for the protection of consumers from Belgian pork was issued in the same year in which the meat was declared to be unmarketable, insofar as no certificate was presented declaring the meat to be free of contaminants. The active role of European Union can be clearly found in this case. It issued an ordinance about the necessity of certificates of fitness for consumption, confirming dioxin-free goods. One month later, identical ministry ordinances were issued in Belgium about the confiscation of fresh meat and meat products from beef and pork that, among other things, also contained provisions regarding meat that had already been exported abroad at that point in time. Hence it reflects that the provisions of European Union are very much in tune with the provisions of Germany and Belgium. As there is a nature of similarity in provisions, one school of thought argues for the relevance of the incorporation of principle of supremacy in treaty of European Commission. They further conceptualize that the main objective of all these authorities has been the protection of interests of the customers and preventing sellers to follow unscrupulous commercial activities. This has been very much fulfilled in the above mentioned case where the seller of contaminated meat products was denied to be given any compensation by German constitutional court which is in proportionate with the views expressed by the European Court of Justice. However, another group of scholars argue in favor of relevance of incorporating the principle of supremacy in treaty of European Commision. They opine that in some specific matters, there arises a clash between the legal agencies of European Union and member nations (Tom Kennedy and Jacobs, 2000). It is further hypothesized that the exclusive jurisdiction of European Court of Justice has been severely affected by the powers of courts of member nations of European Union. In several cases, the supremacy of national courts over that of European commission jeopardized the interests of the people. This also led to interference of Parliaments of different member nations in interpretation of legal cases. Even in several occasions it was felt that the basic law of member nations of European Union is quite differently interpreted by the two legal authorities. This certainly makes the situation tough for the uniform legal interpretation. Hence there is strong necessity of one supreme authority at European Union level. This has been achieved by incorporating the principle of supremacy in the treaty of European Commission. If one analyzes the case of European arrest warrant, the Federal Constitutional Courts of European member nations would support the principle of the Basic law over that of European Union law. The similar situation was clearly witnessed in case of Basic Law5 of 5: German law archive. Article 38. Elections. http://www.iuscomp.org/gla/. Germany. There were several occasions when more support to interpretation of German federal constitutional court especially in European arrest warrant case was noticed. Moreover, it was postulated that while interpreting the basic law’s applicability, the court should not only see the provisions of European court of justice but also consider the provisions of Federal constitutional court of member nation of European Union. European court of justice would look in to the general issues of citizens of all the member countries (Vermeulen and Sanders, 1998). Hence it strongly supported a common legal system which would be more powerful than the national laws of members of European Union and hence it justified the incorporation of principle of supremacy in the treaty of European commission. In some specific member countries of the European Union, the differences between the European Court of Justice and Federal constitutional courts went to peak and the genuine interests of the people were affected severely during this process. For example, in Germany, there is a feeling that Bundestag is limited in its powers due to the fact that Germany is a member of the European Union, which has its own legislation. However that loss is compensated by Germanys participation in the process of European legislation. One should not forget the fact that Germany made it clear that it will not compromise in the legal decision making process where ever the elements of national laws and European laws generally clash with each other. In that process, Germany has safeguarded the national interests by keeping a legal clause that the at their democratic legitimation is only ensured by the Bundestags approval of the Maastricht Treaty even in cases where decisions of the Union will often be taken by a majority with out the consent of Germany. European Court of Justice justified the incorporation of the principle of supremacy in the treaty of European Commission by mentioning the bitter truth that the main differences between these legal institutions of European Union and the member nations is derived form the constitutional base it self. It further states that the necessity of keeping the mandatory clause of ratification of any integration process by the national legal authorities. However, it has not been amended at the required rate to achieve higher integration resulting in differences in legal interpretation. It even puts a more relevant question, how can we expect that full integration of Europe is possible when a provision is kept that any step to a further integrated Europe lacking the express consent of the national legal authority will not be binding for member nations. It is also unfortunate to find a situation in which legal authorities of European Union like European Court of Justice depend heavily on the approval of the powers that would be transferred by the national Parliaments. Hence, it is not the European Court of Justice but the Federal Constitutional Court of member nations will ultimately decide which powers the national parliament has transferred. For example, in Germany, citizens may challenge any act of the Union which they claim to be ultra vires, and which therefore violates their right under Article 38(1) of the Basic Law. In this context, the Court emphasizes the sovereignty of Germany. It has been strongly felt that the higher emphasis on the power of the Federal Constitutional Court relative to the European Court of Justice is mainly due to judicial activism of European Court of Justice. It is also due to the natural rivalry between Federal Constitutional Court and European Court of Justice. This necessitates the incorporation of principle of supremacy in the treaty of European Commission. The experience of substantial element of difference or clash in interpretation of European Arrest Warrant that allows Article 16(2) German Basic Law to be in superior proposition with Article 23(1) of Basic law of European Union further made the European court of Justice to incorporate the principle of supremacy of European Commission. Conclusion Though some researchers felt that the higher powers of the Federal Constitutional Court, was necessary to maintain the individual nation’s sovereignty, they limit the powers of the European Union and especially the European Court of Justice (John Fairhurst, 2007). It is therefore necessary to implement the provisions of principles of supremacy as mentioned in Article 226 of EC. No doubt, the European Union law must be well made to ensure successful implementation of human rights and maintenance of sovereignty. As there still exists a superior nature of national law authorities over the laws of European Union law authorities, the incorporation of principle of supremacy is highly essential and the justification of European Court of Justice is very much valid. Moreover, the European court of justice should be provided with more judicial powers for solving the cases of citizens of all the member countries of European Union in future and this requires more integrated judicial structure and extensive interaction of thoughts and legal framework among the member countries and incorporation of principle of supremacy in the treaty of European Commission. References Henkel, Cristoph. (2001). Constitutionalism of the European Union: judicial legislation and political decision-making by the European Court of Justice, Wisconsin International Law Journal, 19(2): 153. John Fairhurst.(2007). Law of the European Union. Pearson Education publication. P:872. ISBN13: 9781405846882. John Usher, A. (1998). General Principles of European Community Law. Longman Publication, P: 167, ISBN 0582277493. Morgot Horspool. (2003). European Union law. Lexis Nexis UK Publication. P: 608. ISBN-10: 0406950008. Nigel Foster. (2007). EU Law. P:256. Oxford University Press. ISBN-10: 0199299498. Raymond Youngs. (2002). Source book on German law. Cavendish Publication. P:764. Tamera Capeta. (2002). The Judiciary of the European Union. National Courts as European Courts. ISBN: 953-6096-27-7. Tom Kennedy, Brown and Jacobs. (2000). The Court of Justice of the European Communities. Sweet & Maxwell Publication. Vermeulen, A., & C.M.F. Sanders. (1998). Guide to the European Court of Justice, European Information Association. Virginia Harrison. (1996). Subsidiarity in Article 3b of the EC Treaty: Gobbledegook or Justiciable Principle? The International and Comparative Law Quarterly, 45 (2): 431-439. Read More