The Constitutional Jurisprudence of the European Court of Justice - Essay Example

Jurisprudence of the European Court of Justice Introduction: The formal role of the European Court of Justice, as set out in the Treaty, is merely to “ensure that in the interpretation and application of this Treaty, the law is observed.”1 According to George Bermann, the “EEC Treaty.....was conceived as an international agreement, and only later came to be viewed as a constitutional document.”2 The judicial rulings of the ECJ in the 1960s and 1970s have in effect resulted in a constitutionalization of the treaties establishing the European Union through its jurisprudence. In fact, according to D. Anderson, the judicial activism of the European Court of Justice has been one of the most intriguing aspects of the evolving legal and judicial framework in Europe, because it “appoints the European Court as meeting place between the legal order of the Community and those of its member states.”3 It has in fact, represented the driving force of European integration through the fashioning of a constitutional framework for a federal type of structure within the European Union.4 Judicial activism of the European Court of Justice: The legislative process within the European Union has often been characterized by inertia, as a result of which the ECJ has had to exercise judicial creativity, to address the gap between voter wishes and political decisions which is not well defined in the European Community as it is in a democracy.5 In the context of Article 234 of the EC Treaty that places the European Court of Justice in the role of interpreter of the aims and objectives of the Treaty, creative European jurisprudence has often required that the ECJ not send away an individual litigant or a national Judge without an answer, in order to avoid denial of justice. As a result, this has often required creative judicial interpretation that has caused it to be accused of judicial activism.6 The Court has adopted the teleological method in its approach to judicial interpretation, wherein a rule is interpreted by taking into account the purpose of the rule and the aim and objective it seeks to accomplish, as stated in the case of CIFLIT, “every provision of Community law must be placed in its context and interpreted in the light of the provisions of E.C. law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.”7 The factor that will determine when judicial activity strays into the field of judicial activism is determined by the extent to which the judicial function strays into the political realm. The European Court of Justice has handed down several landmark decisions, of which its decision in the case of Van Gend en Loos8 was notable in establishing the direct effect doctrine. In this case, the Court held that under certain conditions, the provisions of the EC treaty could have a direct effect in the member States and those states who were not honoring their Community obligations were liable to face legal action in their own national courts. This had the effect of constitutionalizing the EC Treaty rather than leaving it as an international Convention. Subsequently, the Court also established the horizontal direct effect doctrine by extending the Van Gend principle to the case of Sabrenna9, which emphasized the judicial activism of the ECJ, as it highlighted the fundamental aims of the EC Treaty as being geared towards securing the individual freedoms of European citizens. Further decisions of the ECJ had the effect of imparting a federal type structure to the EU with the ECJ in the role of interpreting the treaty provisions from this standpoint, in the absence of other effective political organizations. The judicial activism of the ECJ has produced the subordination of the subsidiarity principle upon which the Treaty was initially conceived, thereby yielding to a position wherein there are no areas that may be designated as off limits to the European Community and in fact, Community law has achieved a position of supremacy over national law10. However, in the process of establishment of the supremacy of Community law over incompatible member state law, it may be noted that the ECJ has adopted a constitutional approach in the interpretation of the treaties rather than the perspective of establishing the superiority of international law over national law. This may be noted especially in the case of Costa v ENEL, where the Court stated: “The transfer by the states from their domestic legal systems to the Community Legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.”11 Article 234 of the EC Treaty: Article 234 of the EC Treaty enables national Courts to refer to the European Court of Justice, any questions on community law and sets out the procedure for a preliminary ruling to be set out by the ECJ. Any national body that qualifies as a body functioning in any kind of judicial capacity, provided it is established by law and is permanent and independent with compulsory jurisdiction, may refer matters to the ECJ. A lower Court may also similarly refer matters to the ECJ, irrespective of the national hierarchical judicial system within the country. The Article sets out the following matters where European Court of Justice may set out preliminary rulings: (a) the interpretation of the EC treaty itself (b) interpreting the Acts of the Community and ECB, including Directives, regulations and decisions, to determine their validity (c) where statutes are set out by the council, the interpretation of the statutes will also fall within the jurisdiction of the ECJ. Non binding acts, such as recommendations or opinions may also be interpreted by the ECJ. Although a reference under Article 234 is largely discretionary, the major area where this Article is intended to apply is in cases where there is no effective judicial remedy available under national laws and such matters would qualify for the member State to approach the Court of Justice The purpose behind setting out the provisions of Article 234 (which was formerly Article 177) are set out in the case of Bosh v De Geus12 where it was stated that the intention was a fruitful collaboration between national courts and the Court of Justice without encroachment into their respective jurisdictions. It was intended to ensure that the Treaty was uniformly applied to all member states as follows: “Article 234 is essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances the law is the same in all States of the Community.”13 The Rheinmuhlen case also established the principle that ECJ rulings are very powerful because they are not bound by national precedents or by Court structure. Moreover, national Courts do not have the authority to declare that a Community Act is invalid14 and it was stated in the case of Foto-Frost that when the issue of validity of a community Act is challenged, uniformity and legal certainty are imperative across all the member States, without which the Act itself would be challenged and jeopardize Community unity. Not all cases are suitable for referral to the ECJ, since the jurisprudence of the Court has been geared towards establishing the independence of national Courts and encouraging them to apply the principles of the Treaty by themselves. One of the significant cases in this aspect is that of Foglia v Novello15, where the ECJ clarified that it would not interfere in matters that were referred to it purely on procedural disputes. This case concerned a dispute over a clause in a contract between the disputing parties, that produced a legal challenge for the ECJ to tackle, on what exactly was meant by Article 234. However the ECJ stated that it could only rule on a genuine dispute, and also scotched the same case when it was raised again16 on the same grounds, stating that it would not render a decision in cases where there was use of a “procedural device to induce a ruling.” Furthermore the ECJ has also stated that it would not allow an A234 reference in those instances of a purely academic dispute where hypothetical questions are raised in the absence of “those elements of fact and national law necessary for it to provide a useful answer to the questions.”17 Para 3 of article 234 establishes the fact that a reference needs to be made only where there is no national remedy available, and in the case of Cilfit18, spelt out the instances where a reference would not be necessary. These include: (a) when the subject matter of the question is identical to another A234 reference which the Court has already answered. However in the case of DaCosta19 the Court held that reference could be made even if Court has answered a materially identical question. (b) When the interpretation of community law has no bearing upon the adjudication of the case in question (c) Where the doctrine of acte clair is applicable, i.e, in a case where the correct application of EU community law as spelt out in the Treaty is so obvious “as to leave no scope for any reasonable doubt as to how the question raised is to be resolved.” In the case of HP Bulmer, it was held by the Court that a ruling by the ECJ would become necessary mainly in instances where such ruling would be essential for a judgment20 and the European Court of Justice would be the Court of last resort, and only in instances where there is a real doubt about the proper application of Community law. On the whole, a reference to the ECJ under Article 234 is largely as matter of discretion that is left up to the national Courts, although one of the essential aspects is the fact that it must be a reference where a judgment of a lower Court is such that “there is no judicial remedy under national law.”21 Therefore Article 234 specifically applies to those cases where the Court may declare a preliminary ruling, and as far as acts under the European Community are concerned, it is only the ECJ that has the power to declare an Act set out under the EC Treaty invalid. Once the ECJ however declares it invalid, it will be deemed to be universally invalid and all national courts of the Member States are to deem it as such. In a similar manner, when a preliminary ruling is made by the ECJ on a matter of community law, it will be binding upon the national courts and in future cases, such rulings may be relied upon as established precedents for national courts to follow. In the light of the above, it may be noted that the ECJ has functioned in a capacity that has set out basic constitutional concepts for the governance of the European Community. It enables the Court to clarify and explain the proper reach of EC law, so that any irregularity or anomaly in the Community Acts may be challenged by national Courts, in order that universal standards may be laid out for the entire European Union which will be followed by all of the members once the validity of an act has been established by the ECJ. However, it must be noted that inspite of the fact that the judicial activism of the ECJ has elevated it to the status of an authority that has mandated a federal constitutional framework for the European Union, nevertheless the application of Article 234 shows that the ECJ is not an appellate Court for the member states and ultimately, all judicial activity is intended to be restricted to the states themselves so that the validity of national law remains unchallenged. The ECJ does not have the prerogative to rule on issues of national law and it must restrict itself only to providing guidance on the enforcement of Community Law within the member states. Article 234 is thus only intended to provide a means for national courts to make a reference to the ECJ on the correct application of community law. The ECJ cannot function as an Appeals Court, neither is the invocation of Article 234 equivalent to an Appeals procedure. A national court that wishes to invoke the provisions of Article 234 in the event of a doubt about the correct application of EU law, must first make a reference to the ECJ and get its clarification before proceeding to complete its judgment on the case that is before it. Once the ECJ has completed the clarification process it is not expected to remain involved in the case, or get involved with any of the facts of the case22, neither is it to comment upon any aspect of the validity of the national law as it related to Community law. The function of the ECJ is restricted towards providing the necessary clarification and interpretation of community law. Therefore, on an overall basis, it has served to enforce Community law on a uniform basis across all the member states and ensure that its validity is preserved. Constitutional jurisprudence: a paradigm of judicial activism: Barner points out that subsidiarity or the prevalence of EC law was initially meant to prevail only when the states objectives of the Treaty could not be achieved by the Member States.23 Certain areas were designated as those where the States had exclusive competence and subsidiarity arose only in those areas where the community shared powers with those of the Member States24. However, in practice the EC has designated its areas of exclusive competence as deriving not only from the Treaty Provisions but a general duty to take upon itself the powers that relate to the regulation of actions that concern the free movement of goods, services, people and capital within the European Common market.25 Judge Mancini has highlighted how the decisions of the ECJ have led to the federalization of Europe and states that its case law since 1957 “coincides with the making of a Constitution for Europe.”26 Rasumssen contends that the ECJ has moved much further than the mere compensation for political intertia through its activist case law regarding direct effect, supremacy and the protection of individual rights and freedoms27 and he is a strong critic of its appropriation an extra-constitutional role through its activitism28. Volcansek however argues that the ECJ has assumed a vital role in the European Community and that if it had not effectively established the supremacy of community law, “other fields of community policy could have been affected adversely, for each member State would have accepted or rejected community decisions in an ad hoc manner.”28 She also points out that EU Treaties and secondary legislation arising out of it could have been accepted or rejected at the whim of every national court.29 Therefore, the ECJ by its judicial activisim has in effect helped to ensure that Community law becomes binding on the member states and increased legal certainty within the European union. Eugene Cross has focused on the principle of pre-emption of EC law over member state laws due to the decisions of the ECJ in cases such as those of Van Gend and Costa which has also contributed to the judicial constitutionalization of the EC treaties, so that the EU functions as a federation rather than an international convention. 30 Weiler however, makes a distinction between the decisional aspects vis a vis the normative aspects in the relationship between the European Community and the member states. The greatest sphere of influence of the ECJ may be noted in the normative structure of the Community, however it may be noted that as far as the decisional aspects are concerned, there has been an increasing tendency to de-federalise the decision making process with the European Community through the creations of organizations specifically geared towards re-aligning decision making powers, such as the European Council and national working groups and committees31. In this way, the increasing constitutionalization and Community influence that has been brought about by the judicial activism of the ECJ has been balanced to some extent by the growing national controls that are exercised at the decision making levels. This could help to explain why the Member States have acceded to the activism of the ECJ, since it has been perceived as a catalyst of integration, and a means to derive a common legal framework for the operation of Community law which was still a relatively new arena. Moreover, it may also be noted that Article 234 and the manner in which the European Court has exercised its powers of interpretation are significant, in that they serve to establish the fact that the jurisprudence of the ECJ has tended to promote the sovereignty of the member states rather than to appropriate to itself the role of a supranational authority and to encroach upon national laws. The Court has laid out the principle that its functions is one of interpretation alone, on the subject of the applicability of Community law within the national framework of the member states. Therefore, the effort of the ECJ has been geared towards encouraging the member states to incorporate community law into their national framework but not to mandate or dictate the rightness or wrongness of the national laws themselves. This could further serve to explain why the Member States of the European Union have not only accepted the judicial activism of the ECJ but have also acceded to its rulings on the supremacy of Directives and regulations and the pre-emption of Community law. Conclusion: Weiler highlights the fact that the constitutional jurisprudence of the ECJ has already provided the blue print of a federation for the European Union, at a time when the exact roles of the States and the Community was not clear. However, with the emergence of the European Parliament and executive bodies such as the European Commission, it appears that the judicial activism of the ECJ may not necessarily be set to continue, since the policy of division of powers between the executive and the judiciary are being more clear cut and it is likely that the future will bring in more power to the Member States as dictated by its electorate. However, the judicial activism of the ECJ has clearly served to establish the supremacy of Community law over national laws, while simultaneously refraining from appropriating a centralized control structure, which has thus retained the autonomy of the States. Bibliography * Anderson D, 1995. References to the European Court, London, Sweet and Maxwell, p. ix * Bermann, George A , 1994. "Taking Subsidiarity Seriously: Federalism in the European Community and the United States," Columbia Law Review 94 : 355 * Barner, N.W, 2005 . The limited modesty of subsidiarity . European Law Journal, 11(3): 308-325 * Bernard, N. 1996. "The Future of European Economic Law in the Light of the Principle of Subsidiarity" 33 CML Rev 633. * Cross, Eugene D, 1992. Pre-emption of member state law in the European Economic Community. A framework for analysis Common market law Review, 29: 447 * Jeffcoat, Harold G, The Subsidiarity principle in European Community Law. [Online] Available at: http://www.txwesleyan.edu/president/subsidiarity.htm * T. Koopmans, T, 1988. The Roots of Judicial Activism, in Protecting Human Rights: The European Dimension, Studies in Honour of Gerard J. Wiarda 327. Mather & H. Petzold eds * Mancini, Frederico, 1989. The Making of a Constitution for Europe Common Market Law Review, 26:595 * Rasmussen, Hjalte, 1992. Towards a Normative Theory Interpretation of Community Law, University of Chicago legal Forum, 135-178 * Rasmussen, Hjalte, 1988. Between self restraint and Activism: A judicial policy for the European Court 13, European Law review , 28 * Volcansek, Mary L, 1992. The European Court of Justice: Supranational policy making Western European Politics, 15:109 * Weiler, Joseph H. H, 1982. "Community, Member States, and European Integration: Is the Law Relevant" Journal of Common Market Studies 21: 46. * Weiler, JHH, 1981. The Court of Justice on trial. 24 Common Market law review 555 * Weatherill, Stephen, Better Competence Monitoring, European law review, 30(1), 2005, pp 23-41 Cases: * Bosh v De Geus (1962) ECR 45 * Costa v ENEL, Case 6/64 (1964) ECR 585 * Case No: 314/85 of Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199 * Case 43/75, Defrenne v Sabena, 1976 E.C.R. 455 * Case 26/62, VanGend en Loos v. Nederlandse Admistratie der Belastingen,1963 ECR. 1. * Cilfit srl v Ministro della Sanita [1982] ECR 3415 * Foglia v Novello [1980] ECR 745 * Foglia v Novello (1980) ECR 3045 * Rheinmuhlen-Dusseldorf v Einfuhr-Und Vorrasstelle fur Getreide und Furttermittel (NO.1) (1974) EC 33 * Telemarsicabruzzo v Circistel [1993] ECR I-393 Read More