The European Court of Justice - Essay Example

Critical Analysis: European Law Critically analyze: "The European Court of Justice (ECJ), via its jurisprudence on direct effect and other related concepts, has created a legal order in which individuals have as effective a stake hold in the European Community as the Member States". Once the ECJ had announced, and national judges had accepted, the 'constitutional' doctrines of the supremacy upholding the direct effect of jurisprudence within national legal orders the legal system became a privileged site of critical integration. The doctrine of direct effect enabled individuals to proceed against their own governments in national courts, but keeping in mind the doctrine of supremacy which referred to the notion that national judges had to resolve these conflicts with reference to EC law. Through proceedings, ECJ judges became deeply interested to take actions against conflicts creating depression for the transnational actors and other individuals who could claim that their rights under the Treaty of Rome were being violated by existing national law or administrative practice against national legal regimes and those actors, public and private, advantaged by national rules and practices 1. The ECJ is considered to be the most accurate jurisprudent body throughout the European community. So, there is no doubt that ECJ delegation in interpreting the treaties thereby ensuring that EU law is applied correctly in the member states is wrong. Similarly the European Parliament (EP) enjoys delegated powers in the legislative process through which EU policy is created, in the budgetary process through which the EU budget is shaped and adopted, under the control and supervision of the Commission. The empirical analysis demonstrates that the ECJ being a supranational institution have played an independent role in the development of a European enforcement system that is more constraining than national governments ever intended. Dissatisfied with existing means of enforcement at the European level and with governments' reluctance to delegate more powerful instruments, the ECJ and the Commission independently created and perfected a system of decentralized supervision, whereby individuals and national courts are engaged to monitor and enforce state compliance. This system of decentralized supervision is now an integral part of European governance which has influenced the course of European integration, not only by introducing new issues to the policy agenda, as is often argued, but also by securing a higher degree of compliance with the policy decisions that indeed are taken. What can one expect from close observation of such a system in which market integration has become the principle of ECJ policy-making as a result of non-majoritarian decisions taking into account only the contribution of Member States, for example, judicial law-making and Commission decisions. The best example is the implementation of such policies, which have been inclusive without much political attention, through interventions of the European Commission against infringements of Treaty obligations, and through the decisions that goes only in favour of the Member States with initial cooperation of the ECJ2. The doctrines of 'direct effect' and 'supremacy' have brought about the 'constitutionalization' in the ECJ law in the form of unseen competition and that even between individual stakeholders and Member States 3. It is considered those stakeholders' contribution matters the same way in policies implementation as that of Member States, however this is not the case. The ECJ along with the help of Commission has collectively sought out to shift the gravity in EU enforcement toward greater reliance on decentralized supervision through national courts. Exploiting its judicial independence and the absence of intrusive government control, it is said that the ECJ has strengthened the remedies available to individuals. ECJ has created a legal order in which individuals uphold the same rights as the Member States. However, the critical aspect lies in the notion that individuals despite of getting as many rights as the member states are still unable to make suggestions to the ECJ while Member state attempts to punish the ECJ by revising its powers and refusing to apply the principle at the national level were of varied, but altogether limited, effectiveness. Stakeholders are always determined to pressurize ECJ governments to support and back up the growth of European policies in EC policy domains. They also look forward to work and by any means contribute in order to get access to the EC organizations, especially the Commission and the European Court of Justice, in order to activate rule-making processes that might escape the control of any single national government or consortium of governments4. On the other hand, the Commission launched policy programs that supplemented the ECJ's efforts by raising the awareness of EU rights and law among citizens and in the legal professions. These initiatives were carefully monitored by member governments, with unsurprising effects on supranational autonomy of ECJ which lets the Commission not to stick to the proposals to government preferences as member states sanctioned the programs ex post. Yet the combined effect of the ECJ's new case law and the Commission's policy programs was to reinforce a system of decentralized supervision whose development and institutionalization governments had sought to prevent or undo on numerous occasions, a true case of supranational influence 5. Prescribed Rules: ECJ Rules vary in the specificity of the behavioural guidance they provide the individual or Member State. In some situations, ECJ provides broad spectrum for behaviour while in others, ECJ rules' tightly prescribe highly specific actions. So, one cannot distinguish between the rights of individuals and Member States. Formality: ECJ rules seems more formal and pertinent to a given social setting range of Member State from informal, customary standards of performing codified systems of law, than any other domain. Mostly ECJ rule systems embody complex and scarcely understood relationships between relatively formal and relatively informal domains. ECJ's rule is a more formal and organized to the extent that it has been made according to recognized procedures. Authority: The obligatory or compulsory nature of ECJ what one might call the normative weight of rules varies. Rules differ in the extent to which transgressions of them trigger social sanctions or other enforcement mechanisms. Even those sanctions that support sentences attached to non-compliance with rules also vary according to their relative formality. That rule that follows non-compliance nature with some rules carries no formal sanctions at all; in other cases, rules specify enforceable penalties for violation6. Practically, it is probably unusual to find examples of Commission officials relying solely on Euro-associations in the consultation process. Research suggests that officials habitually go directly to the source of technical expertise on which the ECJ usually draw. Even though 'consult the Euro-associations' is certainly a 'rule' which the Commission follows, there are other, more important, informal rules such as ensuring that proposals are technically robust and that all of the stakeholders have been mobilized. For example, one Commissioner after finding it necessary to survey and finding people who work in the markets had, formed, a 'Market Practitioners' Group'. According to Fligstein et al, (2001) "All he wanted was to meet such people 'whose earning and households was limited to work in the markets, who might come across the problems we identified in their day-to-day practices'. He admitted that this caused 'a lot of bad blood with the federations because we end up by-passing them'"7. It depended upon the ECJ Commission to wish; however, the individual members of Euro-associations, such as national associations and individual firms, increasingly spread their lobbying resources in a risk-avoidance strategy. Like other organizations, interest groups have a learning capacity and can act strategically. Another example is of 'Brussels' which being a policy-making maze, enable its' groups learn. They cannot be associated into working entirely via ECJ, even if the Commission wished it. Propagation of ad hoc coalitions focusing on single-issue politics and definitely an increase in the direct Euro lobbying by firms 8. Concentrating resources on one type of federal or confederal organ of representation is a very risky strategy and likely to fail. ECJ while creating ad hoc coalitions, has created among groups opposition that might pinch each other on different levels. Rational action demands direct lobbying in multiple venues, not a reliance on bodies which have cumbersome consensus-building processes. The problem for the Commission and for the Euro-associations is that direct lobbying is not conducive to the creation of the type of associations on which a corporatist or neo-corporatist system could be built. Promiscuity, rather than monogamy, is more rational interest-group behaviour. However, promiscuity can be difficult to institutionalize effectively 9. Case Study: The Court's Defrenne judgements in context with the second case, were critical in transforming Art. 119 by establishing its direct effect on stakeholders, and in doing so ECJ provided Community citizens with individual rights enforceable under EU law. The conditions that gave rise to these cases are as follows. Until 1966, Sabena's male flight stewards earned higher wages, were allowed to retire 15 years later, and were entitled to a special pension plan, all benefits that their female counterparts failed to receive. Job responsibilities of stewards and stewardesses were identical. Defrenne challenged these inequalities. The Defrenne I case questioned whether Sabena's pension system contravened the principle of non-discrimination embodied in Art. 119. The Court ruled against Defrenne stating that under EU law the Sabena pension did not constitute direct or indirect payment. However, Advocate General M. Dutheillet de Lamothe raised a critical point not addressed by the Court: did Art. 119 provide individuals with direct legal rights that were enforceable in national courts In his opinion it did. The ECJ thereby developing the scope and purpose of Art. 119 state that the principle was creative of both enforceable rights in national courts, regardless of national implementing legislation, and that the scope requires further clarification and development. In its reasoning, the Court emphasizes what it sees as the dual function of Art. 119 10. ECJ legislation in various Member States reveals that the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principle of equal pay suffer a competitive disadvantage in stakeholders' competition. No doubt, this provision forms part of the social objectives of the stakeholders, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples. This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the stakeholders11. The ECJ enabled the Member States found a decentralized and disjointed polity that gives individual members the power of veto but does not have a strong central power for coordinating its various decision-making bodies: actors and institutions are linked by increasingly complex rules in the legislating process. This aspect of institutional development of ECJ may well be accounted for by the claim that the new ECJ institutional arrangements were negotiated with regard to their likely distributional impacts (Knight, 1992). The main critical argument between stakeholders and Member States goes along with the specific institutional impacts which at stake here are decision-making competences and sovereignty, which the European supranational institutions would have taken over had they been granted significant and well-defined powers, a step which Member States were reluctant to take. Therefore ECJ allowed the founding Member States to create an institutional structure whose central decision-making influence lie with an intergovernmental body, the Council of Ministers, whose Parliament is vulnerable, and whose decision-making process is contingent on the simultaneous agreement of several institutions, making it a rather unwieldy and cumbersome process. No doubt the Member States founded a complex and isolated decision-making structure, rather it would be right to say that the founding members inadvertently created a power vacuum into which some actors moved, applying strategies of overt and covert institutionalization to overcome the frequent decision-making deadlocks; in particular in our case, these were an entrepreneurial Commission and the European Court of Justice (ECJ)12. Example: The Pregnancy Directive The Pregnancy Directive hereafter referred to as the Directive however minimalist, did introduce changes in national legislation governing pregnancy and maternity rights. Furthermore, the Directive may suggest a set of rights that come in conflict with the national laws in some Member States and also could be interpreted as conflicting with existing EU laws (CEC 1999). The three main areas of potential conflict surround the issues of night work, maternity leave pay, and general discrimination protection. Generally, all Member State governments provided some protection for pregnant workers before the adoption of the Directive. In Italy, the Netherlands, and France protection was higher than required, whereas in other Member States, primarily Sweden and Portugal, implementation of the Directive had the effect of increasing the health and safety protection and the employment rights of pregnant workers. In the UK, qualifying periods of maternity leave were reduced. Ireland experienced considerable improvements, in particular the possibility of 'health and safety' leave if a woman's work could not be altered in order to avoid an identified risk to the pregnancy. Finally, paid time off for ante-natal exams was introduced in Belgium, Austria, Denmark, Ireland, and Finland (CEC 1999) There are other dimensions that could have been singled out but were not, such as the coherence of an institutional construct the degree to which different parts fit together. (In) coherence can be a crucial problem in the legal arena, since legal reasoning commonly values consistency, precedent, and normative hierarchies. It can create tensions among political entrepreneurs, as when the jurisdiction of the various Directorate Generals in the Commission overlap enough on a given issue to bring then into open conflict with one another. The EU is typically viewed as a relatively incoherent polity in institutional terms. The Constitution propagates the vision of a Greek temple on the hill, with all of its structures balanced in harmonious symmetry; of course, the reality of governance is far messier 13. Beyond the Commission's argument for 'vertical' direct effect, that is, in relationships involving the state and the individual, the Court's ruling also established the 'horizontal' direct effect of Art. 119: granting enforceable rights in contracts between individuals. Art. 119 was no longer a distant obligation on Member State governments. Following the Court's interpretation of the Treaty, individuals, national courts, and public and private bodies were all bound into a tighter web of legal obligation 14. Community law enables the principle that flows from Article 10 EC, which obliges the Member States to "take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community." The ECJ has construed this obligation as part of the general requirement of good faith that binds Member States and Community 15. The responsibility obligates upon the Member State authorities i.e., legislative, executive, or judicial, as the case may be to implement the directive, at their own expense, within the period of time prescribed in the directive. Any Member State failing to fulfil that obligation correctly and in time may not only be pursued by the Commission (and other Member States) before the ECJ for such failure, but may also be held liable in compensation in a suit initiated before a national court by a private plaintiff who has sustained damage as a result of the state's failure to implement16. The ECJ is set up in Article 220 EC to ensure that in the understanding and claim of this treaty the law observance, and to fulfil that task, the Court of Justice and the adjacent Court of First Instance (CFI), are given various competences to arbitrate conflicts between the Community institutions and between the Community and the Member States, and to review the validity of legislative and administrative acts. However the Member state courts reserve the right to call upon in some cases to make a decision on the interpretation of Community laws, or on the validity of Community legislation, when those Member State courts need to resolve litigation pending before them in which a question of Community law arises 17. The method is not uncommon in the legal systems of the continental European states, especially in the interpretation of written constitutions, but it has been criticized by lawyers from the common law and Scandinavian countries, which blamed the court for being "activist." No doubt, it is arguable that the recent enhancement of the ECJ with ten new Member States will not only slow down the emergence of a transnational European identity (although the strong desire of the new states to become a member of the club points in the other direction) but would also create umpteen accentuated linguistic differences, as the number of official languages has grown from eleven to twenty. Of course that would create problems for the ECJ officials like they have to make translation into all languages, in the same manner, court proceedings and meetings at the ECJ institutions of the Union will require concurrent translation when they are free to the public. Under the ECJ's pillar, all Community institutions, including the legislature, and all Member State authorities implementing Community law must act in conformity with the law and can be brought before a court of law, either a Community court or a national court, if they do not comply. That is different, however, under the third pillar, where important limitations apply, and under the second pillar, where judicial review is virtually absent 18. References CEC (1999). On the Implementation of Council Directive 92785/EEC of 19 October 1992. COM (1999) 100. Luxembourg: Office for Official Publications of the European Community Coen, David (1997). "The Evolution of the Large Firm as a Political Actor in the European Union" In: Journal of European Public Policy, 4: 91-108 ECJ (1976). Defrenne v. Sabena (II), Case 43/75, ECR 1976: 455 Egan, Michelle (2001). Constructing a European Market: Trade Barriers, Regulatory Strategies and Corporate Responses. Oxford: Oxford University Press Fligstein Neil, Wayne Sandholtz & Stone Sweet Alec, (2001) The Institutionalization of Europe: Oxford University Press: Oxford. Gerven Van Walter, (2005) The European Union : a Polity of States and Peoples: Stanford University Press: Stanford, CA. Knight, Jack (1992). Institutions and Social Conflict. Cambridge: Cambridge University Press Pollack A. Mark, (2003) The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU: Oxford University Press: Oxford, England. Richardson Jeremy, (2001) European Union: Power and Policy-Making: Routledge: London. Scharpf (1999). "Dynamics of International Norm Change: The Case of Wartime Art Plunder". Unpublished. Tallberg Jonas, (2003) European Governance and Supranational Institutions: Making States Comply: Routledge: New York. Read More