Creative approach Essay Example

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Lecturer

Judicial Activism at the ECJ

Introduction

, Treaty on European Union and other written provision. However, the ECJ has on occasions stuck to a narrow interpretation of written provisions; effectively some of its judgements are restricted to the plain meaning of the written provisions that guide its decisions. The preference for narrow interpretation in some situations has seen the court’s credibility being called into question by some analyst. Treaty on the Functioning of the European Union (TFEU)The European Court of Justice (ECJ) is used in the European Union as a guardian to the treaties that are the foundation to the Union. Some key decisions made by the ECJ in its history can be described as judicial activism. The court has used creative ways to dispense justice that departs from the plain sense meaning of various provisions of the

This paper traces the history of ECJ activism from its early days. Secondly, it analyzes opposition that arose to the courts activism and how member states reacted to limit the courts powers. Thirdly, it discusses the cases, the ECJ has judged by using a restrictive approach to written provisions. Notably, the paper links the ECJ activism and restrictive approaches to interpretation of written provisions to its pro-integrationist philosophy. Moreover, the paper discusses the ECJ recent return to creative ways of interpreting written provisions and giving individual rights and community interest primacy over member states interests.

Judicial Activism

Judicial activism is defined as the increasing participation of courts in the making of policy1. Across the world courts are becoming important policy makers taking the power away from parliament, the civil service and the executive. Courts are more willing to create policy and interpret provisions according to their intended effect instead of the plain sense meaning of the written provisions. At the ECJ judicial activism seems to be driven by the philosophy of bringing about closer integration of the European Union.

Judicial activism in the early days

In its early day the ECJ set to establish its right to intervene in the legal relationship between the community and member states, and the community and ordinary citizens. The 1963 case of van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 established that the Treaty Establishing the European Economic Community created new legal rights that could be enjoyed by both natural and legal persons within the community2. The Benelux countries had reclassified a chemical into a different customs category meaning it attracted higher customs. The court held that this was a breach of the provisions that called for a gradual reduction of tariffs between member states. Most importantly, the court held that individuals were conferred rights by the Treaty which they could seek enforcement3. It creatively argued that since the treaty limited the rights of individuals and placed obligation upon them, it was only fair to confer them with rights. The court in this case created the principle of direct effect which is not contained in the written provision of the TFEU treaty4.

Although the Benelux states in Van Gend en Loos were of the opinion that national laws took primacy over the community law in case of a conflict the ECJ judgement run counter to these views5. From an economic point of view, the ECJ decisions prevented the economic policies of member countries from undermining the common market. If the treaty only took direct effect and was primal in only some countries then it would produce different effects in different countries. Further in Joined Cases 6/90 and 8/90, Francovich and Others v. Italian Republic, [1991] E.C.R., p.5414 the court obligated member states to compensate individual show suffer from any breach of the community by member states6. The court was of the view that vesting individual’s with a right to seek redress increases the effectiveness of the Union rules. The court stated; “the full effectiveness of Community rules would be impaired and the protection of the rights they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible…” 7. The Advocate General Kger supported this view arguing that such liability cemented the primacy of Community rules over national laws. This ensures that governments proceeded cautiously in legislating laws that were in breach of the Treaty.

While Van Gend en Loos, had implied that community law took primacy over national law in case of conflict, Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR, p. 593 made the Supremacy Doctrine explicit8. In the case, the ECJ ruled that the treaty had in effect irreversibly transferred legal powers to the community9. The ECJ outlined the supremacy doctrine as follows; “ on the entry into force of the Treaty, it became the integral part of the legal systems of the Member States and which their courts are bound to apply”10. According to the ECJ both member states and their national were now bound by the Community’s laws as the States had limited their sovereignty and transferred power to the community.

In Defrenne v Sabena (No 2) (1976) C-43/75 the creative approach was used in the social policy area of law11. In the case, Gabrielle Defrenne who worked as a flight attendant with Sabena airlines argued that her right to equal treatment was violated as the airline paid her male colleagues more while they did the same work. She argued that this anomaly was a violation of Article 119 of the former Treaty of the European Community which called for equal pay of all genders12. The ECJ agreed with her argument and gave two policy grounds for the decision. According to the ECJ article 119 has a horizontal direct effect on all member states, individuals and private parties. Article 157 EC clearly established that where individuals of different gender do work of equal value they were entitled to equal pay. ECJ used the effects- analysis approach that it has widely applied in most of its activists decisions13. It argued that Article 119 had an economic and social aim. Applying Article 119 uniformly in member states would mean that states that had implemented the principle of equal pay would not suffer a competitive disadvantage14. The ruling forced all community states and private parties to eliminate pay discrimination of female workers. The social aim of the equal pay principle was to uplift the social welfare of European women as they would get the same pay as fellow men employees. The Judgment in the Defrenne case was a major victory for women rights in the European Union and may explain the superior quality of life enjoyed by European women.

Opposition to ECJ Activism

In the last half of the 1970s the judicial activism of the ECJ faced growing opposition. One of its critics Rasmussen argued that the court had significantly violated European legal traditions and was on on “Teleological crusade”15. In his views, the ECJ was pursuing a pro-integrationist approach which meant any cases that were a barrier to closer integration would lose. Opponents of the ECJ’s activism called for greater protection through greater certainty in interpretation of provisions16. The activism was criticized as being guided by prevailing political policy rather than the provisions of the TFEU. It is little wonder that the ECJ in the next two decades took a more conservative approach to the interpretation of the community treaties17. The power of the court to make laws was further limited in the Maastricht treaty of 1992.

The Maastricht Treaty of 1992 removed the second and third pillar from the ambit of the ECJ18. However, the ECJ could hear matters of justice and home affairs as endorsed by the Treaty of Amsterdam as long as a national court of last resort referred the issue to the ECJ19. On third pillar on judicial and police co-operation the ECJ was required to get competence from member-states. This curtailment of the ECJ’s powers meant it could no longer interpret provisions as broadly as in its early days. However, the ECJ has made forays into the areas of law the two treaties meant to constraint its jurisdiction.

ECJ Judges Restrictively

. This approach significantly constrained the rights of European citizens who would like to do business with nations that do not have cordial relationships with their home countries. 21. In the case, Werner had contested the refusal of an export license by German authorities for a cast oven, vacuum induction smelting and an induction spool for the oven. Germany contested that the goods would be used by Libya in it missile development program therefore compromising German security. Germany argued that it had the right to refuse export licences for goods in order to guard its own security, Maintain peaceful co-existence with other nation, and avoid a disturbance of it external relations with other nations. Germany argued that Article 113 EC did not preclude member states from interfering in trade to protect their security interest. The ECJ went along with the German government’s argument and ruled that Article 113 did not preclude national rules on export meant to protect the foreign relation interest of a member states20, the ECJ adopted a restrictive approach that favoured the state over the individual Case C-70/94, Fritz Werner Industrie-Ausrüstungen GmbH v. Federal Republic of Germany, [1995] ECR I-3189In

ruled that it was unlawful to offer a woman preferential treatment in an employment opportunity while competing with an equally qualified man. In the case both Mr. Eckhard Kalanke and Mrs. Heike Glibmann had applied for promotion to the position of manager at Parks Department of the City of Bremen where they were both employed. Kalanke was a graduate in Horticulture and Landscape Gardening while Glibmann had a degree in horticulture, both held almost equal experience and were equal qualified. When both candidates were evaluated, Mr. Kalanke emerged as the better candidate for the position. However, the personnel department opposed his candidacy. The matter was referred to the ECJ for a preliminary ruling. Kalenke. In contrast, The ECJ in23. In previous cases the ECJ had gained the reputation of an astute defender of women rights22 has been widely criticized as one of the courts most restrictive and retrogressive interpretation of written provisionsKalanke v Freie Hansestadt Bremen (1995) C-450/93The ECJ decisions in

. The ECJ held that national rules that seek to give priority to women over men when both candidates are equal qualified are precluded by article 2(1) and 4 of the Equal treatment Directive. Strictly interpreting Article 2(4), the ECJ found that an absolute and unconditional priority for women in promotion and employment opportunities were beyond the affirmative action’s allowed by article 2(4). 25. According to AG only affirmative action that is non-discriminatory and that is meant to restore conditions of equality are relevant under Article 2(4). The Advocate general held that affirmative action should not guarantee women “equal results from occupying a job”24The Advocate General for the case Giuseppe Tesauro outlined a comprehensive argument for the rejection of the City’s affirmative action

Individual and Direct Concern

The ECJ has taken a restrictive approach in deciding action for annulment of community decisions brought by legal and natural persons26. A person is unlikely to succeed in proving that a measure of general application is direct and individual concern as required by Article 230 (4) TFEU. The ECJ only allows for a person to file for annulment of community measures of general applicability if they are of direct concern to him27. Where community decisions apply automatically with no discretion for member states, individual who are affected directly can bring actions for annulment. However, the ECJ in Plaumann v Commission 25/62 [1963] ECR 199 the test for the kind of annulment actions that can be brought by individual under Article 230(4) was made complex28. Plaumann required that annulment be permitted for measures that were of individual concern to a natural or legal person. In Plaumann v Commission the applicant contested the commission’s refusals to allow Germany reduce import duty to Clementines29. The applicant argued that the decision was of direct concern to him as an importer of Clementines. The ECJ argued that since the import duty of Clementines affected other importers of Clementines it was not of individual concern to him and consequently his appeal for annulment was inadmissible. The Plaumann test requirement for individual concern is almost impossible to fulfil meaning that people who are affected directly by commission measure cannot apply for annulment. The ECJ has continued to follow the restrictive interpretations of Plaumann v Commission30. However, in Codorníu v Council C-309/89 [1994] ECR I-1853, the ECJ significantly departed from Plaumann31. Unfortunately, the less restrictive test established in the case has not been used in later cases.

In contrast, The CFI in T177/01 JégoQuéré & Cie SA v Commission [2002] ECR II-2365 interpreted individual concern more liberally32. It was held that a self-executing Community decision of general applicability was of individual concern if it directly affects the legal position of a person, limits their rights and imposes obligations on him. The CFI called for the abandoning of the Plaumann test as it significantly affected individuals rights to judicial review. Rightly so, the CFI argued that the number of people affected by a measure was irrelevant in deciding whether it is of individual concern33. Surprising, in the appeal to JégoQuéré, the ECJ stuck to the Plaumann test. InUnión de Pequeños Agricultores v Council, the ECJ held that the right to judicial review was not affected by interpreting article 230 (4) restrictively34. The ECJ contradicted itself by accepting that article 230 (4) is inadequate in protecting individual rights. However, the ECJ applying the self-restraint concept and argued the Jégo-Quéré approach would amount to deviation from legislative intent.

ECJ and Trademark Law
brings the credibility of the ECJ into disrepute. Clearly the ECJ has failed to stick to its reputation as defender of individual rights. The ECJ cannot give a good reason to continue sticking with the restrive approach developed in Plaumann. The real reason the ECJ has stuck with a restrictive approach is to make it harder for individuals to challenge community self-executing directives. The ECJ achieves two policy objectives in sticking to this approach. First, the approach works to limit the workload of the ECJ as few individual can succed to bring actions of annulment under article 230(4). Secondly, the ECJ does not want to adopt an approach that runs counter to its pro-integrationist philosophy.Council,v Unión de Pequeños Agricultores approach used in Plaumann and A closer analysis of the

Recently, the ECJ has taken both a creative and a restrictive approach to the interpretation of trademark law. In the P Proctor & Gamble Co. v OHIM Case C-383/99 [2001] (Baby-Dry) decision the ECJ adopted a creative approach that was a departure from the established tradition on descriptive trademarks35. The Court held that a trademark could only be said to be descriptive if it was the normal way of referring to good or services of that category. The ECJ ruled that «syntactically unusual juxtaposition» of ‘baby’ and ‘dry’ in the contested trademark BABY-DRY was not normal way of referring to a dry baby in English language36. Therefore, the ECJ ruled that BABY_DRY was non-descriptive of the baby diapers.

In contrast, the ECJ in OHIM v Wm. Wrigley Jr. Company Case C-191/01 [2003] (DOUBLEMINT) 37, the ECJ found the trademark to be descriptive of the product trademark was being sought for. The decision was a stricter interpretation of the Article 7(1) of the Community Trade Mark (CTM) Regulation and inconsistent with the approach in the Baby-dry decisions. In later decision, in Koninklijke KPN Nederland NV v Benelux Merkenbureau (Case C-363/99 [2004]) and Campina Melkunie BV v Benelux Merkenbureau (Case C-265/00 [2004] the ECJ adopted the more restrictive approach and it is now considered that the Baby-Dry decision is not good case law38.

ECJ Returns to Liberal Interpretation

The ECJ in recent cases has interpreted written provisions more liberally. In the Case C-105/03, Criminal Proceedings against Maria Pupino, the ECJ held that national laws must be interpreted in conformity with Community law (indirect effect)39. In Chen v Secretary of State for the
Home Department (Case C-200/02) [2005] QB 325 the ECJ used a creative approach showing it readiness to defend the rights of individuals from challenge by national authorities40. In the case two Chinese nationals working in Great Britain gave birth to Kunqian Catherine Zhu in Belfast Northern Ireland. The child was eligible for Northern Ireland citizenship by virtue of being born there. The parents obtained a Northern Ireland passport for the baby and used it to apply for a permanent residence permit in Britain. The British Immigration Appellate authority referred the matter to the ECJ after British Authorities rejected their application. The ECJ ruled that Catherine Chen is a citizen of the European Union and she had the right to reside anywhere within the Union under Article 18 TEU. The only condition on her parent was that they had to have medical insurance and would not be a burden to national authorities. It ruled that it is a denial of his basic rights refusing his parents residence in the EU at a point in time when it is only them who could take care of her.

Conclusion

The ECJ has fluctuated between the two extremes of judicial activism and restrictive approaches to interpretation of written provisions. In its early days, the ECJ judicial activism seems to have been aimed a bringing about a stronger integration of the Community. However, some of the court’s decisions were fiercely protective of individual rights. The ECJ at this point became a champion of individual rights but it was an greater proponent of European integration. Most of the courts most restrictive interpretation are informed by it pro-integrationist philosophy. As seen with the problem of direct concern the ECJ will rarely make decisions that are against the interests of the community. Despite these shortcomings the ECJ has returned to judicial activisms that afford EU citizens greater protection as seen in the Chen ruling. The ECJ and its mechanism for interpreting written provisions remains inconsistent but rarely runs counter to the pro-integrationist agenda.

Bibliography

  1. Articles/Books/Reports

Case C-70/94, Fritz Werner Industrie-Ausrüstungen GmbH v. Federal Republic of Germany, [1995] ECR I-3189

Douglas-Scott, S.: Constitutional Law of the European Union, Pearson, 2002, p. 220.

Kalanke v Freie Hansestadt Bremen (1995) C-450/93

L.N. / Kennedy, T, The Court of Justice of the European Communities (Sweet & Maxwell, 1995 ) p. 404.

Olivier, C. ,The European Court of Justice and democratic control in the European Union.» 10 (2003) Journal of European Public Policy 5, 740-761

Oreste. P «Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint 5 (2004) German LJ 5: 283.van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62

Raitio, Juha, The Principle of Legal Certainty in EC Law (Kluwer Academic Publishers, 2003)

Rasmussen, H., On law and policy in the European Court of Justice : a comparative study in judicial policymaking ( Martinus Nijhoff, 1986)

Tridimas,T., «The Court of Justice and Judicial Activism» 21 (1996) EL Rev 199

(Koninklijke KPN Nederland NV v Benelux Merkenbureau (Case C-363/99 [2004]) and Campina Melkunie BV v Benelux Merkenbureau (Case C-265/00 [2004])

Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR, p. 593

Case C-105/03, Criminal Proceedings against Maria Pupino

case C-50/00 P, Unión de Pequeños Agricultores v. Council [2002]. ECR I-6677

Chen v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325

Codorníu v Council C-309/89 [1994] ECR I-1853

Defrenne v Sabena (No 2) (1976) C-43/75

JégoQuéré & Cie SA v Commission [2002] ECR II-2365

OHIM v Wm. Wrigley Jr. Company Case C-191/01 [2003]

P Proctor & Gamble Co. v OHIM Case C-383/99 [2001]

Plaumann v Commission 25/62 [1963] ECR 199

  1. Treaties

The Treaty on European Union (TEU), signed in Maastricht on 7 February 1992, entered into force on 1 November 1993.

Treaty on the Functioning of the European Union (signed in Rome on 25 March …, entered into force 1958)

1 Oreste. P «Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint 5 (2004) German LJ 5: 283.

2
van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62

3
See Oreste, above, n 1

6
van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62

7
Ibid, 593

8
Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR, p. 593

9
Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] ECR

10
Ibid, 593

11
Defrenne v Sabena (No 2) (1976) C-43/75

12 B, L.N. / Kennedy, T, The Court of Justice of the European Communities (Sweet & Maxwell, 1995 ) p.

13
See Oreste, above, n

14 Tridimas,T., «The Court of Justice and Judicial Activism» 21 (1996) EL Rev 199

15 Rasmussen, H., On law and policy in the European Court of Justice : a comparative study in

judicial policymaking ( Martinus Nijhoff, 1986)

16
See Oreste, above, n

18 The Treaty on European Union (TEU), signed in Maastricht on 7 February 1992, entered into force on 1 November 1993.

19 Raitio, Juha, The Principle of Legal Certainty in EC Law (Kluwer Academic Publishers, 2003)

20
Case C-70/94, Fritz Werner Industrie-Ausrüstungen GmbH v. Federal Republic of Germany, [1995] ECR I-3189

21
See Oreste, above, n

22
Kalanke v Freie Hansestadt Bremen (1995) C-450/93

23 Douglas-Scott, S.: Constitutional Law of the European Union, Pearson, 2002, p. 220.

25
Kalanke v Freie Hansestadt Bremen (1995) C-450/93

26 Olivier, C. ,The European Court of Justice and democratic control in the European Union.» 10 (2003) Journal of European Public Policy 5, 740-761.

27
See Oreste, above, n 1

28
Plaumann v Commission 25/62 [1963] ECR 199

30
See Oreste, above, n 1

31 Codorníu v Council C-309/89 [1994] ECR I-1853

32
JégoQuéré & Cie SA v Commission [2002] ECR II-2365

33 See, Olivier, above n

34 case C-50/00 P, Unión de Pequeños Agricultores v. Council [2002]. ECR I-6677

35
P Proctor & Gamble Co. v OHIM Case C-383/99 [2001]

37
OHIM v Wm. Wrigley Jr. Company Case C-191/01 [2003]

38
(Koninklijke KPN Nederland NV v Benelux Merkenbureau (Case C-363/99 [2004]) and Campina Melkunie BV v Benelux Merkenbureau (Case C-265/00 [2004])

39
Case C-105/03, Criminal Proceedings against Maria Pupino

40
Chen v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325