The judicial activism debate

Although the ECJ does not seem either a controversial or a very powerful institution of the European Union, as you remember from the European Parliament section, its decisions do have a significant influence on the functioning of other institutions and some argue that the ECJ has a pro-integration agenda.

The court has been criticised for its judicial activities influencing the European integration process.  It has been claimed that the ECJ has been a policy-making body and has proven so with its ruling from the 1960s. First, there was the Van Gend en Loos case in 1963, when the ECJ established the direct effect: European Community law applies directly to individuals, even if it was not implemented by the state, and it must be enforced by the national courts. Second, there was the Costa v ENEL case in 1964, when the ECJ established the supremacy of EU law: EU law takes precedence over national law. Also, in 1979 the ruling of the Cassis de Dijon case established the principle of mutual recognition – goods made and legally sold in one Member State may also be sold in all other Member States – that supported the development of a single market (Corbett, Peterson & Bomberg, 2012, p. 65).

The critics of the ECJ need to consider, however, the role that the ECJ plays. It has been created to interpret the Treaties, the texts of which have been agreed upon by the politicians, not lawyers, through negotiations and compromises. The texts of the Treaties are thus often very general and do not contain precise definitions and explanations that legislation should provide. The gaps in existing legislation are therefore filled by the court in the ’spirit of the Treaties’.  Since the spirit of the Treaties may be more pro-European integration than the Member States and their representatives themselves, the ECJ needs to find a balance in its interpretations. This is never easy in the complex environment of political and economic national interests (Cini, 2007, p. 199).

The debate around the activism of the ECJ is discussed by lawyers and political scientists. While lawyers see the law as neutral, political scientists stress the political attachment of all European legal acts. They ask questions about the legitimacy of the Court to act and make new laws: How far should the political and policy-making functions of the Court go? Does it have its own integration agenda? (Shuibhne, 2012, p. 161).

The ECJ’s acts are based on the Treaties negotiated and signed by the Member States. However, while fulfilling its duties, the Court has established its own role in the European integration. Although the ECJ’s contribution may seem controversial, ‘at least at the level of fact, it is uncontested’ (Shuibhne, 2012, p. 166).

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