Explain what is meant by judicial activism. Was activism on the part of the ECJ ever justified and is it a feature of the ECJ's current jurisprudence? Use relevant case law to illustrate your answer.

If one looks at the English courts, it is clear that they have been influenced by the ‘new’ approach of the European court.  This was discussed in Stock v Frank Jones (Tipton) Ltd by Viscount Dilhorne:

     “It is now fashionable to talk of a purposive construction of a statute, but it has been recognized since

      the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it “according

      to the intent of them that made it.” 

Lord Denning favours this purposive or teleological approach of interpretation as he believed that it brings our method of interpretation into line with those adopted by the European Court.  He compared the two methods in Bulmer Ltd v Bollinger SA:

     “But when we come to matters with a European element, the Treaty is like an incoming tide.  It flows

      into the estuaries and up the rivers.  It cannot be held back. Parliament has decreed that the Treaty is

      henceforward to be part of our law.  It is equal in force to any statute…”

Therefore, Lord Denning submits that the gaps inherent in the Treaty have to be filled in by the judges and the English courts must now deduce “from the wording and the spirit of the Treaty the meaning of the community rules.”  The English courts, though, are not familiar with this ‘European way’ since the judges hold that they have no power to fill the gap.  To do so would be a “naked usurpation of the legislative function… The gap must remain open until Parliament finds time to fill it.”  This upholds our deeply entrenched notion of parliamentary supremacy.

An additional marked difference between the two courts is that the European Court of justice exercises a constitutional function, which provides for a different balance of power between the legislature and the judiciary from that known to English law.  This type of jurisdiction which the Court of Justice exercises appears to lend itself to increased judicial activism because both the Member States and the institutions are bound by the constitutional principles developed by the Court when they act within the Community sphere.  However, some commentators have argued that ‘the debate on judicial activism fails in effect to capture the underlying rationale of judicial contribution to the building of a “constitutional order of States.”’  “The Court’s constitutional role is enormous”. Parallels have been drawn between the European Court and the American court, the latter of which seems to have survived all attacks on its constitutional role and today, its prestige in American society is enormous and its authority is largely unchallenged.  This may suggest that the European Court will follow suit but one may question whether this a safe position for justice within the European Member States.  The Court’s current omnipotence may extend beyond its original authority set out in Article 164 of the EEC Treaty and may lead to an ‘usurpation of power.’

However, Tridimas doubts whether ‘comparison with other legal systems where an identical power does not exist are conclusive, since the Community is a new legal order with distinct characteristics.’  It is relevant that although the judges in the United Kingdom show reluctance to part from their traditional methods, they have not yet refused to implement any ruling of the European Court of Justice.  Joseph Weiler has argued that the national judges of the Member States see the supremacy of the European Court’s decisions as a way to increase their own power.

Where the Treaty provides little or no guidance on issues raised before the Court, consideration is given to the need to ensure the effectiveness of Community law.  In addition, guidance is sought from the unwritten general principles of Community law.  It has been submitted that ‘both are legitimate techniques and do not lead the Court to exceed its judicial function.’  This legitimacy many be supported by the fact that both techniques are derived from the Treaty.  The case of Les Verts demonstrated that protection of the individual is a theme regarded as fundamental by the Courts.  Dutheillet de Lamothe AG in Internationale Handelsgesellschaft also manifested this:

     “The fundamental principles of national legal systems…contribute to forming the philosophical,

       political and legal substratum common to the Member States from which through the case law an

       unwritten Community law emerges, one of the essential aims of which is…to ensure the respect of the

       fundamental rights of the individual.”

It must be noted that the Courts have considered many general principles in the cases that have come before them.  In Defrenne, legal certainty was referred to and Van Duyn v Home Office established the direct effect of directives.  Les Verts & Chernobyl considered the need to provide judicial protection and the complementary right to seek judicial review.

Therefore, there seems to be a good argument for activism on the part of the Court since the language of the Treaty is often unhelpful and so the Courts need to develop these general principles in order to fill a “procedural gap”.  However, some argue that the Court has ‘sought inspiration in guidelines which are essentially political of nature and hence, not judicially applicable.’ 

Despite the Court’s apparent efforts to uphold the maxim that ‘society should be governed by law, not by man’, the European Court and its judges seem to have “une certaine idée de l’Europe” of their own in creating an “ever-closer-union.”  Sir Patrick Neill criticized the methodology of the European Court of Justice and argued that the Court was ‘a dangerous institution, skewed by its own policy considerations and driven by an elite mission.’  Therefore, this suggests that the judicial philosophies dominate the court’s rulings, which poses a significant problem because the judges are non-elected individuals who are governing the policy of the European Union.  

The Court must calculate its activism but the question has been raised as to how this activism can be technically calculated.  Hjalte Rasmussen submitted that there was no normative theory of interpretation of community law but propounded a more objective level of activism analysis.  This operates by collecting the known reactions to the jurisprudence of the European Court given by society’s countervailing powers.  These are known as the positive or negative policy-inputs.  Rasmussen proposed that the judges should collect these policy-inputs in order to decide whether his case-law is acceptable or unacceptable and if it is unacceptable, whether it ought to be modified or not.

Mauro Cappelletti praises Rasmussen’s work but then proposes a number of criticisms ‘with the intent to provoke further discussion on a topic of tremendous importance for anyone who cares for the future of Europe.’  He believes that Rasmussen’s “impact study” is “a valuable scholarly contribution to the study of Community law action” but to make the impact study the yardstick of the “legitimacy” of the European Court’s activism has been “unwise”.  Cappelletti suggests that the test does not provide a really objective criterion and that it ignores the fact that judges should not be bound to the environment’s powers and pressures.  Thus, Rasmussen’s argument lacks a historical dimension:

     “But the vision of a great judiciary has to go much beyond the temporary, occasional whims and  

       pressures, even defiances, rebellions and outbursts, of the social and political environment in which it

       operates.  No great court has ever existed without a sense of an historical purpose and a mission,

       capable of resisting the pressures of the day.”

Cappelletti criticizes Rasmussen further when he states that the choice of elements of inputs for the policy input analysis depends largely on the author’s biases with Rasmussen clearly being influenced by pro-integration activism.  The European Court’s activism in cases such as Van Gend en Loos, Costa v ENEL and ERTA appears abusive but the policy input for this can hardly be classed as negative.  It is relevant that the Member States have produced more positive than negative inputs and the highest national courts have accepted important doctrines established by the activist court.  Cappelletti believes that the Court’s activism could be justified if “it were authorized to base its rulings on the guidelines of the Preamble and Article 2 when difficult choices between competing public policies are to be made.”

There may be some justifications for the court delivering judgments that are outside or contrary to the text of the Treaties.  Firstly, it may be acceptable in certain very special cases on the basis of necessity.  Another justification may be the doctrine of natural law, which allows a court to appeal to unwritten rules higher in the legal hierarchy than any man-made law.  However, some argue that any justification must be based on considerations specific to the European Court and not those that apply to courts generally.  Attempts have been made to justify the Court’s activism on the basis of the difficulty of amendment to the Treaties.  However, frequent amendments have been made to the Community constitution, some of which have been adopted by the member States in the form of actual amendments, for example in Les Verts and Chernobyl.  This seems to demonstrate that the Court of Justice should not be acting out this quasi-legislative role but the Member States regard it as acceptable nonetheless.

In conclusion, it should be acknowledged that the European Court of Justice is not purely a judicial body but in adopting an activist role, the judges appear to believe that they are doing no more than their duty in developing the law in the desired direction.  There has been much admiration but also irritation regarding the methodology of the Court of Justice.  The serious attacks that are mounted upon the court should not be dismissed because, to use Rasmussen’s wonderfully apt metaphor: “few cancer cells are, indeed, under favourable growth conditions, able to ruin completely the healthiest body.”  One may contend that the European Union would not be anywhere near the stage of development it is at now, without the judicial activism of the European Court of Justice.  However, this does not necessarily excuse the apparent wrongfulness associated with the concept of judicial activism.  Thus, the European Court should act with greater care in order to prevent its activism “running wild” to the point of seriously risking disrepute and ruin.

   

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