Is the Ecj an Activist Court

At times, criticism has become stronger and extends beyond the professional circles of lawyers and specialists in European integration to the general public (Basedow 2012). Interestingly, the debate has been particularly intense in Germany, despite the country`s tradition of having a powerful constitutional court. Here, the former president of the country and also of the Constitutional Court, Roman Herzog, publicly promised in 2008 to “stop the CJEU” (Pop 2008). Controversial decisions such as those of Laval and Viking, which restricted union activities by arguing that strikes impeded the economic freedoms of the contract, were met with great criticism, particularly in northern European countries (Seikel 2014b; Blauberger, 2012). Other cases, such as Case C-372/04 Watts, which allowed a British patient to circumvent waiting times at the UK`s National Health Service, have demonstrated the profound national implications of supranational competence. In fact, Kelemen (2016: 139) perceives an “increase in critical voices” and asks: “Could the European judicial area, which has supported the authority of the CJEU for so long, act as an external coercion of the Court of Justice?” Two other qualitative findings are interesting in the context of Member States` influence on the decisions of the Court of Justice. Maduro (1998) analyses the case-law on the free movement of goods and argues that the Court adopts a majority militant position on the basis of information on the regulatory status quo in the Member States. It considers that the Court is only prepared to abolish Member States` rules if they do not comply with the rules of the majority of Member States. A kind of process of judicial harmonization results from majority activism.

As far as I know, there has been no parallel examination of other freedoms to test this argument. In fact, when we discuss the Court`s tax jurisprudence in Chapter 5, we will see authors arguing explicitly against Maduro`s view (Graetz and Warren Jr 2006: 1193). It could also mean that the Court has become less cautious since the 1990s. An indicator of this is that some authors dispute that the Court still takes a majoritarian approach in other areas of case-law (Barnard 2009: 598-9). This may mean that other considerations have become stronger for the Court, such as its desire to enhance the EU`s legitimacy by strengthening individual rights (see Cichowski 2013). In this book, I explain how the constitutional status of the case law of the Court of Justice of the European Union (CJEU) affects policy-making at European and Member State level. This chapter summarises how political science views courts in general and the CJEU in particular. In this way, I can map the added value of my own approach in this area of research. Specifically, I argue that the literature in this area has so far ignored “overconstitutionalization” (Grimm 2015: 469). This concept implies the way in which the detailed political provisions of the Treaty offer many possibilities for judicial interpretation: the case-law not only reveals the constitutional limits of public authority, but also gives an interpretation of the policy which is then incorporated into secondary legislation. Codification in secondary legislation generalises case law.

Although the Court often pays attention to government preferences, small steps in constitutionalized jurisprudence go a long way. A common criticism of the Court of Justice of the European Union (CJEU) is that it engages in “activist” rulings aimed at strengthening its own power as an institution. Andreas Grimmel argues that many of these criticisms do not place the CJEU judgments in the context of wider European integration. In the area of fundamental rights, for example, the CJEU has to rule on a number of conflicts between different EU objectives. Moreover, many EU decisions are deliberately left politically unclear, assuming that the CJEU will “close the gaps” at a later stage. These examples reflect problems related to the general nature of EU decision-making, not just CJEU judgments. However, most of the task has been left to the Court of Justice. It was for the Court to determine the scope of the prohibition in Article 30. It is for the Court of Justice to decide in what circumstances a measure falling under Article 30 is justified on the grounds set out in Article 36. The term “creative jurisprudence”, which is often used to bogus denigrate courts that give non-obvious answers to questions to which there are no obvious answers, is particularly absurd in this context; for whatever the Court does with such sparse documents, its case-law must be creative. However, Member States have preferences not only in terms of policy, but also in terms of the institutional balance of the European Union. Governments may oppose judgments that favour their political interests, knowing that an overly strict tribunal may violate their own preferences in the future (Moravcsik, 1995).

It is difficult to predict whether Member States will pursue more homogeneous institutional interests or more heterogeneous political interests. From this point of view, the independence of the Court of Justice, which results from the heterogeneous political preferences of the Member States, is limited by the homogeneous institutional preferences of the Member States. Carrubba and Gabel (2014) show in their book that CJEU judgments do reflect observations made by Member States in judicial proceedings. Larsson and Naurin (2016) argue the same. On the basis of a model of separation of powers, they show that the Court is influenced by the possibility of a legislative derogation. Focusing on the executive branch and its means of non-compliance, Conant (2002) argued that the justice administered by the CJEU is “contained” because member states comply with it only to the extent that there is a coalition of support promoting these rights. Consequently, the Court can only count on respect by the Member States if the judgments are close to their preferences. The importers challenged the payment before the Dutch courts on the grounds that the additional duty was contrary to Article 25(ex) of the EC Treaty.

The Netherlands court referred questions of interpretation under Article 234 (ex 177) to the Court of Justice. The Court has been criticised for its judicial activities, which influence the process of European integration. The CJEU was claimed to be a political decision-making body and proved this with its ruling in the 1960s. First, there was the Van Gend en Loos case in 1963, when the CJEU ruled that it had direct effect: European Community law applies directly to individuals, even if it has not been implemented by the state, and it must be applied by national courts. Secondly, there was the Costa v. ENEL case in 1964, when the CJEU ruled that EU law took precedence over national law. In addition, the 1979 Cassis de Dijon judgment introduced the principle of mutual recognition – goods lawfully manufactured and sold in one Member State can also be sold in all other Member States – which fostered the development of an internal market (Corbett, Peterson & Bomberg, 2012, p. 65).

Given the strength of the Court of Justice, it is essential to bear in mind that it operates in a multi-level political system and that the CJEU receives direct support from litigants and courts in the Member States. As I have explained, the support of litigants for alternative policies at EU level is also important for the electoral considerations of Member State governments. And because of the preliminary ruling procedure, Member States can hardly ignore European law. By openly opposing it, they would call into question not only the independence of the EU`s judiciary, which is so central to the rule of law, but also its national judicial system. However, critics of the CJEU must consider the role of the CJEU. It was created to interpret treaties whose texts were approved by politicians, not lawyers, through negotiation and compromise. The texts of the treaties are therefore often very general and do not contain the precise definitions and explanations that legislation should contain. Loopholes in existing legislation are therefore filled by the Court of Justice in the “spirit of the Treaties”. Since the spirit of the Treaties can be more pro-European than the Member States and their representatives themselves, the CJEU must find a balance in its interpretation. This is never easy in the complex environment of national political and economic interests (Cini, 2007, p. 199).

Despite this support for the CJEU, the relationship with national courts is not necessarily easy, especially when it comes to higher or constitutional courts. The CJEU counts on their cooperation, but the courts of the Member States are not always interested in promoting the applicability of EU law when dealing with the CJEU. Beach (2001) cites the example of the abortion case in Ireland (C-159/90), which asked whether the freedom to provide services could undermine the Irish ban on abortion. Irish student associations had published information about abortion clinics in the UK that were illegal under Irish law. In their defence, they referred to the freedom to provide services, which allows them to disseminate information on services in other Member States (Beach 2001: 20; see also Nyikos 2006: 528-9). When the Irish High Court appealed to the CJEU, it was clear that it would not have followed a decision that would undermine Ireland`s abortion ban.