“Judicial power is a brute fact of political life in the European Union.”1 This notion precisely captures the significant function performed by the Court of Justice of the European Union (CJEU) in the European Union (EU) legal system. For 60 years of being in action, the CJEU has a remarkable influence on the constitutional structure of the EU law and the Treaties. It has been said to devise some of the crucial features of the latter without an explicit textual basis, comprising: direct effect and the supremacy of the EU law along with a creative interpretation of the text. Subsequently, the Court has received constant admonition from the academic commentators “for its ruling by going further than barely interpretation of the Treaty and going into a sphere of policy-making.”2 Put differently, it has assumed a quasi-legislative role and has hence been awarded the titles like ‘activist’ and ‘undemocratic.’3 However, the purpose of this essay is in no way a thrashing exercise, to attack the legitimacy of the Court. Rather, it is an attempt to examine the accusations by the commentators and to see if they can outweigh the reasoning of the CJEU in its case laws.
The principle of direct effect – the Van Gend en Loos case
With the so-called origination of the principle of direct effect in the landmark decision of Van Gend en Loos (VGL),4 the academia first blamed CJEU for exercising judicial activism. The case concerned a Dutch organisation that challenged the import tariff levied by the Dutch Inland Revenue, as they were inconsistent with Article 12 of the European Economic Treaty. The treaty had forbidden any increase in import duties. The court asserted that “Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect” such that the doctrine of direct effect was recognised.5
Although the principle was formally established in this case, it was a result of a stern judicious interpretation of the Treaty establishing the European Economic Community (TEEC). As argued by the David Edwards, the former CJEU judge, VGL simply confirmed, though in an unequivocally pronounced way, the antecedent principles on which the case rested.6 In support, Derrick Wyatt took a doctrinal perspective to bring forward the fact that direct effect was neither new nor especially a groundbreaking principle.7 Rather, it was an ineluctable advancement that merely provided solidarity, continuity, and shape to the already enduring vaguely fragmented framework of doctrines in the treaties.
Conversely, it was contended that the doctrine of direct effect has not been expressly articulated in any of the European Treaties. CJEU, by consolidating the doctrine in the European law, and subsequently categorising it as to a greater extent a political actor, it gave no careful consideration to the peculiarities of treaties, nor to the element of Court being restricted by a craft-bound, legal rationality.8 The direct effect was an invention of the CJEU and an attempt to simply hide it behind the ‘façade of legalese.’9 VGL was therefore regarded as “unique judicial contribution to the making of Europe”10 by commentators.
However, sometimes the dividing line between the vital advancement of law by the judges and illicit adoption of a quasi-legislative role is difficult to draw and ought to be given specific consideration.11 Furthermore, the CJEU did nothing exceptional than the judicial lawmaking as practiced by other judges but at a higher scale and under greater scrutiny. It cannot be termed as an activist decision, since valid legal reasoning backs it up, and as acknowledged by Grimmel, “legal reasoning is not political law-making.”12 Thus, the principle of direct effect is revolutionary and not evolutionary. It is deemed to be the outcome of “impeccable classical hermeneutic”, obtained from special legalised institutional apparatus hitherto “rooted” in the TEEC.13
The legal aspect of this principle was, however, questionable as an immediate consequence of the decision was a more effective judicial review of the member state law. It, along these lines, transformed the national individuals into a European Subject14 by taking the “Community law out of the hands of politicians and bureaucrats to give it to the people.”15 This was evident from cases such as Francovich16 wherein the citizens relied upon CJEU’s principle of compliance with respect to employment rights in the EU for bringing a claim against their own country.
Furthermore, the doctrinal direct effect has robbed the national law of the member states of their sovereignty. Senior appellate judge of England, Lord Denning, depicted his concern by saying that the community law has made decisions infringing the statute laws and that, they are obliged to obey community law leaving theirs behind. He further fears a stronger European control by stating that, “no longer is European law an incoming tide owing up the estuaries of England. It is like a tidal wave bringing down our sea walls and flowing inland over our fields and houses- much to dismay of all.”17
Principle of supremacy – Costa v ENEL
With respect to the sovereignty of the member states, direct effect could not override the significance of national law alone. Not to be surprised, CJEU came up with the principle of ‘supremacy’ that was not mentioned in the treaties in the case of Costa v ENEL18 yet the judges emphasized that it was implied. The doctrine defined that the EU law will supersede the national laws of the member states. Further, in Internationale Handelsgesellschaft,19 the Court confirmed this supremacy, regardless of the legal status of the overridden law including fundamental constitutional provisions in national constitution. In other words, CJEU pointed out that “Community law takes precedence over national law and cannot be overridden by domestic legal provisions, however framed.”20
Criticisms directed at CJEU and possible justifications
It appears that the CJEU has acquired jurisprudence on areas that are not matters of transnational European importance, but of a local, national nature. Concerns have been raised as the CJEU can state illicit European laws and domestic laws that contravene the Treaty of Rome on subjects which were conventionally contemplated to be entirely the prerogative of the governments of the member states, including social policy, gender equality, industrial relations, and competition policy.21 It is thus, pointing towards the conclusion of the Court being an activist by undermining the sovereignty of the member states.
Time and again, in both VGL and Costa, the Court has restricted the scope of national law by using its power to expand and strengthen the scope of the EU regulations.22 The member state governments would never have voluntarily provided the treaty with such doctrines implying that the CJEU judges have crowned themselves as the masters of the treaties by dethroning the member states.23 Slaughter’s view fits here perfectly as he argues that the CJEU has diverted from its main aims that are engraved in the preamble to a self-centered one which holds “promotion of its own prestige and power by increasing the effectiveness of EU law”24 in a very provocative fashion under the seeming pretence of a wide interpretation of treaties.
In defence of the CJEU, a neo-realist approach would prompt the fact that “member states have sufficient control on the court so that it lacks autonomy to decide against the interest of the powerful member states.”25 They emphasise that the CJEU’s power is subject to the allowance given by the member states. As the power is delegated to the judges by the member states governments’, they are dedicated to preserving the interests of the member states.26 Indeed, in times of incredulity from the member states or the public, the “CJEU significantly tempered its position in the later rulings to satisfy the concerns of the member states”27 thereby increasing compliance. It is a depiction of the court’s inclination towards engagement with member states and not disagree, which is indeed not regarded by many academic commentators.28
One could also take the perspective that the CJEU has specified the function of “ensuring that in the interpretation and application of the Treaties the law is observed” as per Article 19 of the Treaty on the Functioning of the EU (TFEU), and ensuring that the European law is obeyed. Therefore, it can be viewed that the main purpose and subsequent role of the Court is to pledge the uniform appliance of the EU law, thereby assuring legal integration in the member states. To achieve this aim, the treaties, once passed, should be treated as a device for the facilitation and advancement of the federation of the European Union by using judicial interpretation.29
As it is well known that the treaties are multilingual, even a slight difference in the language of the treaties can be problematic and differences in meaning do occur regardless of the efforts. In addition, treaties are a product of negotiation by various political actors; there are gaps and lacunae that must be filled up by the court as per the facts of the concerned case. Moreover, the treaties lack precision as they use words and phrases without actually providing their definition. Contrasting with the properly defined English law, an English lawyer would look in vain trying to find an interpretation clause implying the level of difficulty faced by the CJEU judges.30
For the safe rescue of the CJEU judges, they find “inspiration in the civil law tradition, which favours broad interpretation of principle”31 using purposive interpretation i.e. teleological method to give effect to the EU law. This kind of purposive approach was clearly declared by the Court in the CILFIT case32, where it was affirmed that all aspects of Community law should be interpreted keeping in mind the provisions of the EU law as a whole. Tridimas further explains the use of this method “in areas where the law is unsettled or where there is no legislation dealing with the issues in dispute.”33
This aspect of interpretation is not free from criticism as well. Some scholars have condemned this approach, upholding that “the Court seeks inspiration in guidelines which are essentially political in nature, and hence not considered applicable; this is the root of judicial activism which may represent a usurpation of power.”34 Rasmussen has looked upon it as an illustration of wild judicial activism hidden behind the terminology.35
However, as a response to the criticisms, Oreste Pollicino affirmed the teleological method of decision making as a “physiological expression of European jurisprudence and not a political degeneration of it.” 36 Moreover, this method is perfectly consistent with the dynamic and evolving nature of the European Community. Therefore, it can be reviewed as an acknowledged method of interpretation in the domain of public international law.
Wide interpretation, may be, is a matter of concern for some, but a narrow approach to interpreting the text is not welcoming either. It is evident from the case of Deurz and Geldermann v Council37 wherein it was held that a person must “show that he is somehow singled out by the regulation and injured more severely than the category to which it belongs, he will be unable to challenge it directly before the European Court.”38 This clearly is a defective decision owing to the monetary loss and exploitation of the fundamental rights of the citizens.
To that effect, a broad interpretation method can be deemed to be the only option and hence acceptable. The Commission did not come up with any recent treaty to keep up with the dynamic European environment and as a result, the court has been forced to take up an activist approach due to lack of legislative activism.39 A broad interpretation approach must, therefore, be acceptable. It has been allowed by the member states themselves in the interest of EU in its entirety. Indeed, it implies a greater appliance and adherence to the European law, ensuring the member states with assistance and advantages.
To conclude, Rasmussen’s words that “in its endeavour to make Europe, the ECJ went too far”40 holds less significance as till date no convincing contention has been brought forward to accuse the CJEU of going beyond its judicial function and therefore exercising judicial activism.41 If at some time in future, there is a scope of doubt, a creative approach can then be adopted to reach to a positive reasoning that “the potential role of the Court is much more promising, be it an alternative to specific legislation”42 hence overweighing all its criticisms.
A recommendation can be made to change the status of the CJEU, possibly as the Supreme Court of the EU yet, the academia has put forth “the need for a fundamental rethink and rebuilding of the European Union’s judicial architecture.”43 Nevertheless, as of now, the 60 year history of the victorious performance of the CJEU cannot be annulled, thereby, strongly implying that the transformation can in no way be regarded as an answer to the problem which might not even prevail to the effect that the Court has heretofore been given the status of a Constitutional Court.44
1 A. Stone Sweet, The Judicial Construction of Europe (OUP, 2004), 9.
2 Martin Stiernstrom, ‘The Relationship between Community Law and National Law’ (2005) 5(33) Robert Schuman Paper Series.
3 Rasmussen, ‘Between Self-Restraint and Activism: A Judicial Policy for the European Court’
(1998) 13 European Law Review.
4 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1.
6 David Edwards, ‘Judicial Activism-Myth or Reality?’ (1996) Trenton Publishing.
7 Derrick Wyatt, ‘New Legal Order or Old?’ (1982) 7 ELR 147.
8 Andreas Grimmel, ‘Politics in Robes? The European Court of Justice and the Myth of Judicial Activism’ (2011) 11(2) Europa-Kolleg Hamburg.
9 Cohen and Vauchez, ‘Introduction: Law, Lawyers and Transnational Politics in the Production of Europe’ (2007) 32(1) Law and Social Inquiry 75-82.
10 Guiseppe Federico Mancini and David T. Keeling. ‘Democracy and the European Court of Justice’ (1994) 57(2) Modern Law Review 175-190.
11 n pg 21.
12 n pg 8.
13 Joseph Weiler, ‘Revisiting Van Gend en Loos: Subjectifying and Objectifying the Individual in Fiftieth Anniversary of the Judgment in Van Gend en Loos: 1963-2013’ (2013) Conference of the Court of Justice of the EU.
14 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (first published, CUP 2012).
16 Case C-9/90 Francovich and Bonifaci v Republic of Italy  ECR I-5357.
17 Lord Denning, ‘Introduction’, in G. Smith, The European Court of Justice: Judges or Policy Makers? (London, Bruges Group, 1990).
18 Case 6/64 Flaminio Costa v ENEL  ECR 585.
19 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel  ECR 1125.
21 Karen Alter, ‘Who are the Masters of the Treaty? European Governments and the European Court of Justice’  52(1) International Organisation 121.
22 Vauchez, ‘Keeping the dream alive: the European Court of Justice and the Transnational
fabric of Integrationist Jurisprudence’  4 European Political Science Review 51. 23 Cruz, ‘The Changing Constitutional Role of the European Court of Justice’,  34 International Journal of Legal Information 224.
24 W. Mattli and A. Slaughter, ‘Revisiting the European Court of Justice’  52(1) International Organisation 187.
27 C. Carruba, M. Gabel and C. Hankla, ‘Understanding the Role of the ECJ in European Integration’  106(1) America Political Science Review 217.
30 HP Bulmer v Bollinger  EWCA Civ 14.
31 Takis Tridimas, ‘The Court of Justice and Judicial Activism’  21(3) ELR 204.
32 Case 283/81 CILFIT SA v Italian Ministry of Health  ECR 3415.
34 Joseph Weiler, ‘The Court of Justice on Trial’  24 Common Market Law Review.
36 Oreste Pollicino, ‘Legal Reasoning of the Court of Justice in Context of the Principle of Equality between Judicial Activism and Self-Restraint’  5 German LJ 283.
37 Case 26/86 Deurz and Geldermann v Council  ECR 941.
42 E. Brooks, ‘Crossing Borders: A critical review of the role of the ECJ in EU Health policy’  105(1) Health Policy 33.
43 Editorial, ‘A Court Within a Court: Is it time to rebuild the ECJ?’  34 ELR 173.