Introduction
The ECJ has undoubtedly made a significant contribution to European Union integration, Through judicial activism, setting of precedent, the declaration of supremacy of EU law , the introduction of the doctrines of direct effect and indirect effect, the imposition of state liability and non-contractual liability, the use of the principle of mutual recognition and the use of the preliminary reference procedure the E.C.J has developed, and has at its disposal a ‘set of tools’ which have been used to great effect to shape the process of integrating the European Union through its legal system.
But how did it get to be such an actor in the integration process;
Was it mandated to carry out such a role, has it merely pushed the boundaries of its jurisdiction, or is it assuming a role that was never intended by the Member States for it to have.
How did the development of these ‘tools’ come about and in what manner have they been used?
If it continues to develop and expand its judgments a pace in the same manner, where will this road lead, will it result in a de-facto federal legal system or the disintegration of the ‘integration process’?
These are questions which come to mind when considering the E.C.J’s contribution to ‘European Integration’. All of which would require extensive expansion to address fully within this paper. However due to the constraints on the length of this essay and the emphasis which has been placed on the ‘contribution’ of the E.C.J to European integration in the title. I will place most focus on question (ii) above in my attempt to discuss the title posed.
However to contextualise this discussion, rather than looking solely at the chronology and ratio of the cases which proved so influential to the integration process, which is of course central to the Essay title and as stated will be given most focus.
I think the other questions I have posed above should also be briefly given some consideration to hopefully add some depth to this paper .
The E.C.J
How did it come about, and what is its mandate? I think this fundamental question merits some discussion to illuminate the foundations which underpin the E.C.J as a central actor in the integration process [or not!].
Back in the post war 1950’s, the E.C.J was conceived as a ‘third power’ between Member States and what was then the European Coal and Steel Community (E.C.S.C) [1] , when the Economic Community (E.C) was formed the Court was given what was thought to be a very limited mandate which was ;
“ensure that in the interpretation and application of the Treaty, the law is observed.” [2] .
The E.C was solely concerned with the promotion of economic activity through common trade areas & rules, the application and interpretation of which fell to the E.C.J. where a question arose between Member States or the institutions.
At that point in time, it is widely accepted that there was no intent on the part of Member States to progress political integration to the levels which exist today, nor was it envisaged that the ECJ would become the engine for political, economic and legal integration that was to follow.
The ECJ has at times been accused by some commentators of ‘blatant political decision making that has increased the power of the Court and the Community and limited the sovereignty of the Member States” [3] , something which apparently is admitted by former Members of the E.C.J. [4]
As the separation of powers is a common feature of most democratic legal systems, This is something which ordinarily in a democratic system, would set alarm bells ringing, so one must ask the legitimate question , why is a Court of law making political decisions, why have Member States accepted it, and how did this turn of events come about?
I propose that it is a reasonable assumption that the ECJ is not pre-occupied with its own self importance and powers, engaged in a solo crusade to impose its vision of euro-land on the masses.
Nor does it operate in a vacuum, The ECJ must operate within the legal framework of its powers as stated in the treaties, and is bound to apply fundamental legal principles such as reasonableness & proportionality to its findings, when interpreting the treaties and applying the law , whilst all the while being congnisent of public policy considerations. It is also fettered by the other actors in the union, i.e. the Commission, the Council , the Parliament, National Governments and EU Citizens.
So I suggest that if the Court has indeed been involved in decision making influenced by political considerations then it is not without at least subsequent implied consent from the other E.U actors whose co-operation and compliance is required to give effect to the E.C.J’s rulings.
Case Law Considered.
I stated earlier that the E.C.J has at its disposal a ‘set of tools’ which have been used to great effect to shape the process of integrating the European Union through its legal system. I will now discuss how the creation of these instruments came about through case law and the consequential effects that the ECJ’s rulings have had not only directly on the E.U’s legal system and that of its Member States but also the wider effects on the Union as a whole.
It is generally accepted that the ECJ’s judicial activism can be traced back to the 1960’s and the Courts rulings since then have incrementally but broadly expanded the reach of E.U Law into Member States national affairs over the past 50 years with a ever greater unifying effect.
The now seminal case of Van Gend en Loos [5] is where this story begins, at the time ground breaking declarations were made by the E.C.J which set the E.C.J on a journey as central actor in the ‘European Project’ which no one foresaw, and which even today is unclear where the destination maybe.
The E.C.J in this case created both the principles of Direct Effect and the Supremacy of E.U Law. Neither of which were referred to in the Treaty of Rome nor discussed by the original Member States at a political level prior to its creation.
The principles were controversial, this was judge made law in a primarily civil law union which declared the existence of a legal system separate to conventional international law & and superior to domestic law.
This would in time have profound effects on the interactions between Member States and the E.U and changed the legal understanding of Member States towards the E.U Treaties from being on a par with other Treaties of International Law [i.e. domestic effects were discretionary to the State], to an elevated position which was supranational and superior to the domestic law of Member States and their Constitutions.
In this case a Dutch company challenged the validity of an import duty on the grounds that it was contrary to Article 12 of the EEC Treaty, a question of law arose whether the company could rely directly on the treaty provisions in a national Court, the convention being that International Law is only actionable by a party to the agreement i.e. the Member state, and could only be relied on domestically in a national Court where its provisions had been transferred into domestic law under its monist or dualist system, this had not happened in this case and thus for the action to succeed the Treaty would need to fall outside of these normative conventions into a new category of law.
The ECJ held that the Treaty conferred obligations & thus rights on the individual, these rights and obligations were independent of domestic law and could be relied on separately [directly effective], it also declared that the Member States had limited their sovereign rights under the treaty within limited fields [competencies of the EU under the Treaty provisions].
Although the case established the principle of the Supremacy of EU Law, when treaty provisions would be directly effective on the national stage was construed narrowly by the Court, the Court held that not all treaty provisions were capable of being relied upon in the national Courts, only those provisions that were clear, unconditional, negatively phrased and required no legislative intervention fell within the criteria. Also there was no consideration given to the status of other EU law such as directives and regulations.
It was perhaps this narrow interpretation which muted the responses of Member States at the time with no government challenging the finding directly, though there were some challenges from some state institutions, but the die was cast.
The ECJ went on to incrementally expand the criteria for the when treaty provisions would take direct effect, in Van Dun [6] the Court removed the requirement that a provision be conditional, it stated that a provision could be directly effective where any condition was the subject to judicial control [review], as no EU law has ever been found not to be subject to such review, the requirement that a provision be conditional was effectively removed. It also in one swell swoop gave direct effect to directives.
In Reyners [7] the Court held that what is now Article 48 TFEU imposed positive obligations on Member States to enable freedom of establishment was directly effective, which removed the requirement that only negative provision could be invoked in national Courts.
In Defrenne [8] the ECJ significantly relaxed the requirement for legal clarity, in this case Defreene sought a declaration from the national court that her employer Sabena was in breach of what is now Art 157[1] TFEU which set out the principle that Member States shall ensure that men & women should receive equal pay for work of equal value.
Sabena argued the provision only set out a general principle and lacked sufficient legal clarity and certainty, On referral the ECJ held that the impugned provision could be interpreted broadly [as a policy objective] or narrowly [as a specific requirement to prevent pay discrimination between men and women in the individual workplace].
Thus the provision was at best ambiguous but the Court found that it was directly effective all the same. It was also the first case where the ECJ allowed horizontal direct effect to occur, i.e. it allowed a private party to invoke E.U law in a national court against another private party, the corollary being that the ECJ also decided private parties had a duty to comply with E.U Law or be held liable in national courts for breach of duty.
The Doctrine of supremacy was revisited shortly after Van Gend en Loos [9] , in Costa v E.N.E.L [10] , the question of law being referred whether a Member State could continue to practice lex posterior derogat priori, i.e. more recent law trumps conflicting previous law, which was a civil law rule of Member States.
Here the Italian State had introduced a domestic law contrary to Article 177 of the Treaty of Rome which had previously taken effect, the Italians argued that the matter was one on Italian law as it post dated the EU Treaty provisions.
The ECJ reasoned that the integration of EU Law into national law made it impossible for subsequent domestic law to claim precedence over the pre-existing community law. The transfer by Member States from their domestic legal system to the Community legal system of the rights and obligations arising directly from the treaty carries with it a permanent limitation of their sovereign rights.
With Costa, the ECJ was discreetly limiting the ability of member states to retaliate against negative decisions and take back lost sovereignty in the future.
The supremacy doctrine was further reinforced by the ECJ in the Handelsgesellschaft [11] case, which dealt with the distribution of free import deposits under an E.U scheme, which the Germans considered was incompatible with its Constitution, the underlying issue being whether the Supremacy of EU law extend over national legislation to a Members Constitution. The ECJ held that it did indeed, relying on the reasoning that to resort to national legal rules or legal concepts to interpret Community measures would adversely affect the uniformity and efficacy of Community Law.
The ECJ moved up a gear in its activism in the early 1990’s, when along came the Francovich case [12] , which involved actions against the State by employees who considered they were owed unpaid wages following the closure of their Employers insolvent businesses, under community welfare directive 80/987 which had not been implemented directly by their State, It was by now settled case law that such a directive would have direct effect, The issue which the ECJ had to consider was whether a Member State could be held financially liable for the loss suffered by the employees because it did not implement the provisions of the directive at national level which would have allowed the Employees to recover from the State.
The Court cited Article 5 of the Treaty of Rome (Art 10 EC) which required all member states ‘to take all appropriate measures’ to give effect to the Treaty, and decided that when considered in the light of ‘fundamental principles and the general system of the treaty’ a State must be liable for loss caused to individuals as a result of breaches of Community law for which the State can be held responsible. Thus the doctrine of State Liability within the EU Legal order was declared by the ECJ.
Conclusion
The above case law is but a sample of the body of law which exemplifies the judicial activism of the E.C.J, the doctrines declared and reasoning used by the E.C.J cannot be found in any express provisions of the Treaties or E..U legislation, but the effectiveness of E.U law appears be an overarching precept used by the E.C.J to justify its decisions.
The treaties make no direct provision which mandates the ECJ to promote European integration, Perhaps it is from the public policy arena that the Court has drawn its willingness to promote European integration, through its reading of the preambles and first articles of the treaties which set out policy objectives. or perhaps it is an indirect consequence of what it sees as a legal necessity to have consistency of interpretation and application of E.U law throughout the union.
Rasmussen has postulated that Art 7 EC which mandates the Court ‘to carry out the tasks entrusted to the community’ compels the Court to ‘interpret rules of primary and secondary law as boldly and as expansively as possible’ [13] in order to strengthen and expand the E.U legal order.
I think it is a combination of all these factors which guides the ECJ in its quest for legal consistency throughout the Union, it is this which indirectly promotes European Integration on a grander scale through the rulings of the E.C.J.
So I conclude that in relation to the first question I posed earlier the E.C.J has certainly pushed the boundaries of its jurisdiction, it has taken on a role that was not envisaged by its founding Members, its actions are most likely mandated indirectly by the treaty articles and impliedly are consented to by the co-operation of the other actors in the E.U. Project.
I relation to the second question I posed, I have given an outline of the cases above, which gave rise to some of the tools in the ‘toolbox’ of the E.C.J and how they have been applied to effect uniformity of E.U law application and interpretation.
In respect of the third question I have posed, i.e. if the E.C.J retains or expands its activism in a similar vein , where will this road lead, will it result in a de-facto federal legal system or the disintegration of the ‘integration process’
There are signs that there is tension between the E.C.J and Member States over its willingness to expand its jurisdiction into other pillars where it has been expressly excluded as an E.U competency, In Commission v Council 03 [14] the Council sought an annulment of Council Framework Decision 2003/80/JHA regarding the provision of criminal penalties for breach of environmental laws, at issue was the sovereignty of criminal law, as the question was who could force Member States to impose criminal sanctions , the Council of Ministers or the European Commission, The Court stated in its judgment that;
“As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence….. However, the last-mentioned finding does not prevent the Community legislature…from taking measures which relate to the criminal law of member states which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective” [15] .
Thus it appears the ECJ is now willing to venture outside of its own pillar of E.U Law, and ‘take measures’ which will interfere with other Community pillars.
Euro-skeptic members such as the UK Government have called this wholly inappropriate [16] ,
While there is implied consent to most the ECJ’s declarations , such declarations are dependent on the co-operation of national courts for their effectiveness, and there appears to be scant case law in euro-skeptic members national courts where they have clearly accepted the ECJ’s declarations of supremacy, rather they have applied E.U interpretations of law to the facts of the case before them , without bowing their heads to the supremacy of the E.C.J.
In other words there is co-operation but not subjection in all matters of E.U law by member states, the nexus being the tensions under the Supremacy doctrine and all that followed it, and it is not outside the realm of possibility that should the E.C.J continue to push its envelope of influence and expand its repertoire of judge made law in the interests of ‘efficacy’ of E.U Law, that there may come a day when such intervention will become counter productive and push member states to withdraw support for a Court far removed from the tribunal it was originally founded to be.
End.
Cases cited:
Case 26/62, NV Algamene Transport-En Expeditie Onderneming van Gend enLoos v Netherlands Inland Revenue Administration
Case-6/64, Flaminio Costa v E.N.E.L.(Costa)
C-11/70,Internationale Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel
Case 2/74 Reyners v Belgium [1974] ECR 631
Case 41/74 Van Dun v Home Office [1974] ECR 1337
Case 43/75 Defrenne v Sabena (No.2) [1976] ECR 455
Case 9/90, Andrea Francovich and Danila Bonifaci and others v Italian Republic
C-176/03,Commission of the European Union v Council of Europe