European Community Law

To what extent can it be said that the European Court of Justice has “run wild” in its creation of the fundamental principles of European Community Law? Introduction The Court of Justice of the European Communities sits in Luxembourg. Arnull et al[1] accord this body a seminal role: “Some of the concepts which are fundamental to the way in which the Community functions are to be found, not in the Treaties themselves, but in the case law of the Court.” The composition of the Court is idiosyncratic and currently consists of 25 judges assisted by 8 Advocates General. The role of the latter has no equivalent in the UK legal system.

The Advocate General is to present an independent and impartial opinion to the Court after the parties have concluded their submissions. This opinion shares the character of a reserved judgment in the English courts but it would be incorrect to suppose that the Advocate is effectively sitting as a judge of first instance. His role is to make a recommendation. In practice, however, the views of the Advocate are usually adopted and currently the Court will frequently refer to the Advocate’s reasoning and conclusions in its own judgment. The role of the Advocate General in the development of the case law of the Union is therefore unique and highly influential. Criticism of the Court There has been frequent criticism of the Court on the basis that it is influenced by political and ideological considerations and that the role of the judges is therefore somehow “less pure” than that of the domestic judiciary. This criticism was acknowledged by the House of Lords Select Committee on the European Communities[2]: “A strong and independent Court of Justice is an essential part of the structure of the European Union…We note the criticisms of “judicial activism” which have been levelled against the Court but these appear to be based mainly on cases where the Court has made Community Law effective against defaulting Member States at the instance of individuals seeking to enforce their rights.” Therefore, is it correct to conclude that the developing jurisprudence of the European Court has exceeded appropriate bounds or might it be the case as the Select Committee suggests that such criticisms are more a matter of “sour grapes”? Interpretation v. Precedent There are some grounds upon which it might be argued that the Court is liberal in its interpretation of the instruments which are placed before it. For example, in CILFIT v Ministry of Health[3], the Court stated that it should interpret Community provisions by reference to “the characteristic features of Community law and the particular difficulties to which its interpretation gives rise”. This might be taken to be the Court allowing itself an inappropriate degree of latitude.

However, there is one immediate practical consideration that should be borne in mind. Community law is published in a number of different languages with no one language being regarded as more authentic than any other – this is bound, of itself, to give rise to contextual difficulties.

This was specifically acknowledged in Bouchereau[4] when the Court stated: “The different language versions of a Community text must be given a uniform interpretation and hence in the case of divergence between interpretations the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part [emphasis supplied].” It would, however, be erroneous to suppose that the Court will only take account of these more general factors in instances of linguistic difficulty. Indeed in CILFIT (supra) there was express reference to the need to place every provision of Community law in its context and to interpret it in the light of Community law as a whole having regard to the objectives of Community law and its present state of development. In addition, there are instances in which the Court will look to the domestic laws of Member States where a particular Community provision is silent on the issue. An example of this was A M & S Europe Ltd v Commission[5] in which the law of Members States was used to justify a finding of legal professional privilege in EC competition cases. Possibly the greatest concern in terms of the consistent operation of the ECJ is the approach to precedent. The Court of Justice is not bound by its own previous decisions. This has an unfortunate practical consequence in that under Article 234 EC national courts may request preliminary rulings from the Court. In the absence of a binding doctrine of precedent, this has the result that national courts may request such a ruling notwithstanding the fact that the point in issue may already have been considered.

However, it may be argued that an effective equivalent to a binding doctrine of precedent is emerging. Where in Article 234 proceedings the Court is asked to rule on an issue that has already come before it, it will simply repeat its earlier ruling: thus in Sheptonhurst Ltd v Newham Borough Council[6] the court repeated its ruling in Quietlynn Ltd v Southend Borough Council[7]. In an oblique fashion, the binding nature of precedent upon national courts was recognised in CILFIT (supra at para.21): “…a court or tribunal against whose decisions there is no judicial remedy under national law is required…to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt.” It is submitted that this raises an alarming prospect. While an form of precedent by which previous decisions of the European Court are effectively binding upon national courts is established. The Court of Justice remains free to depart from its own rulings. Perhaps, however, this is not so alarming as might appear at first sight: it creates a situation which is reminiscent of the much-loved debate among English constitutional lawyers as to whether the House of Lords can bind itself. It does however leave the way open for a considerable degree of judicial activism.

Arnull et al[8] observe somewhat wryly: “The reader of the Court’s judgments will be struck by the fact that previous decisions are often only cited by the Court where they support its argument. Authorities which point the other way are sometimes not mentioned at all, and sometimes even resented as if they support the line the Court has chosen to take.” Critics The leading critic of the judicial activism of the Court is, of course, Rasmussen[9] whose work although now somewhat antiquated still contains the valid criticism that the Court seeks “inspiration of guidelines which are essentially political of nature and hence, not judicially applicable. This is the root of judicial activism which may be an usurpation of power”. By contrast, Cappelletti[10] argued that the Court had a higher function as a constitutional court and should therefore look to a “higher law” and that the approach of the ECJ was fully legitimate since it was founded upon the wording and spirit of the EC Treaty itself. A robust defence has also been supplied by Advocate General Jacobs[11]: “If the, the Court sometimes performs the task of a Constitutional Court, and if it has developed constitutional principles in its case law, we can understand why, in some quarters, the Court’s activities have been misunderstood. The Court has sometimes been criticised as a ‘political court’.” He then proceeds to argue that principles of constitutional jurisprudence will not be familiar in all Member States and it is this which may give rise to the misunderstanding and concludes: “Yet, in the Community system, which is based on the notion of a division of powers, some form of constitutional adjudication is inescapable, if indeed the Community is to be based, as its founders intended, on the rule of law.” Another Advocate General[12] is defensive: “It is right to remark on the extent to which the existing jurisdictions of the Court have withstood the determined assaults upon its position…The fact that, over a number of years, even following what were at the time considered to be extremely far-reaching decisions, the Member States have again, and again unanimously both explicitly and implicitly given retrospective approbation to the Court’s case law cannot fail to be a matter for satisfaction.” A more reasoned response to this somewhat smug conclusion is expressed by Craig and de Burca[13]: “It is of course true that all constitutional courts must engage with political issues, but, given the unaccountability of courts, the nature and origin of the ‘unwritten’ values which they promote should undoubtedly be critically scrutinised, as should the extent to which their decisions seem to depart from what their express powers would appear to allow.

Perhaps more importantly, such judicial decision-making requires full and thorough justification, whereas the reasoning of the ECJ tends to be rather thin.” Conclusion Thus it will be observed that the European Court of Justice continues to excite controversy. The criticism that it has “run wild” in its creation of the fundamental principles of European Community law is therefore superficially attractive. Arguments can easily be marshalled in support of such a view. Of particular concern are the distinctions which will inevitably be drawn between this Court and the domestic courts of the Member States. Perhaps this is nowhere more so than in the UK. This country’s long-established common law system with its strict adherence to precedent and rigid rules in relation to statutory interpretation as well as its insistence upon Parliamentary sovereignty is bound to conflict with the somewhat freewheeling approach of the ECJ. There is also the deep-rooted suspicion (fuelled by the Euro-sceptic/Euro-phobe) that the European Court is an essentially political animal designed to achieve the implementation of the social engineering for which the Community is perceived to be responsible. In this regard it is true that the Court has done itself few favours; most notably by seeking to impose the following of precedent upon the national courts while continuing to regard itself as free of such constraints. While acknowledging the legitimacy of such concerns, a criticism as severe as that which forms the title hereof is probably not justified. In particular, two factors should be emphasised.

First, as has been seen above in the case of preliminary rulings, the Court does impose upon itself a degree of discipline. It cannot therefore be said that its rulings are entirely capricious or based to too great a degree upon political considerations. Second, the role of the ECJ as a constitutional court should be taken seriously.

While such an entity – familiar to those such as the Germans but somewhat alien to the English legal system – may be regarded with suspicion, this does not diminish its status or the need for a body to fulfil such a function within the European Community. Finally, it should be borne in mind that the EC is still a relatively young institution. Certainly, it would be unfair to judge its legal institutions and jurisprudence by comparison with those of countries which enjoy many centuries of legal heritage. If the infant or adolescent ECJ has “run wild”, greater maturity might be anticipated. Bibliography Arnull, A., Judicial architecture or judicial folly? The challenge facing the European Union (1999) 24 EL Rev 516 Arnull, A., Dashwood, A., Dougan, M., Ross, M., Spaventa, E. & Wyatt, D., European Union Law, (5th Ed., 2006) Craig, P. & de Burca, G., EU Law, Text, Cases and Materials, (3rd Ed., 2003) Fennelly, N., Preserving the Legal Coherence within the New Treaty: The ECJ after the Treaty of Amsterdam, (1998), 5 MJ 185 House of Lords Select Committee on the European Communities, 1996 Intergovernmental Conference (Session 1994-5, 21st Report, HL Paper 105) Jacobs, F., Is the Court of Justice of the European Communities a Constitutional Court? in Curtin, D. & O’Keefe (Eds.), Constitutional Adjudication in European Community and National Law (1992) 25 Rasmussen, H., On Law and Policy in the European Court of Justice, (1986)

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Footnotes

[1] Arnull, A., Dashwood, A., Dougan, M., Ross, M., Spaventa, E. & Wyatt, D., European Union Law, (5th Ed., 2006), p.388

[2] 1996 Intergovernmental Conference (Session 1994-5, 21st Report, HL Paper 105)

[3] Case 283/81 [1982] ECR 3415

[4] Case 30/77 [1977] ECT 1999

[5] Case 155/79 [1982] ECR 1575

[6] [1991] ECR I-2387

[7] [1990] ECR I-3059

[8] Op. Cit., p.409

[9] Rasmussen, H., On Law and Policy in the European Court of Justice, (1986) [10] Cappelletti, M., The Judicial Process in Comparative Perspective, (1989) [11] Jacobs, F., Is the Court of Justice of the European Communities a Constitutional Court? in Curtin, D. & O’Keefe (Eds.), Constitutional Adjudication in European Community and National Law (1992) 25 at 32 [12] Fennelly, N., Preserving the Legal Coherence within the New Treaty: The ECJ after the Treaty of Amsterdam, (1998), 5 MJ 185 at 198 [13] Craig, P. & de Burca, G., EU Law, Text, Cases and Materials, (3rd Ed., 2003), pp.99-100

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