Judicial Activism

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Module 1 – Question 1     

The European Court of Justice has been described as ‘judicially activist’ and has been accused by some critics of delivering judgments that are inconsistent with the Treaties. Are these criticisms fair?

CONTENTS

Introduction

Judge Robert Lecourt introduced the idea of a ‘people’s court’, an alleged concern for the safety of the weak by the ECJ. However surely, the Court’s activism has been useful to a number of individuals.                                                        The French Prime Minister, Michel Debre, said in 1979, ‘J'accuse la Cour de Justice de megalomanie maladive’. Moreover, Margaret Thatcher, at the Maastricht Treaty said that ‘some things at the Court are very much to our distaste’. Furthermore, attacks have been made by the German press and by Hjalte Rasmussen where it has been blamed of ‘revolting judicial behaviour’.

However, the European Court has been placed in the margin by the media, the lawyers and the academic community. Eric Stein described the court as being ‘tucked away in the fairyland Duchy of Luxembourg and blessed with benign neglect by the powers that be and the mass media’. The European Court therefore met with little criticism even after giving a number of its most radical case law.

‘Judicial activism’ is when courts do not confine themselves to reasonable interpretations of laws, but instead make law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead set up a new rule to use broadly to matters not presented in the specific action. Judicial activism is when judges replace their own political opinions for the applicable law, or when judges act like a legislature rather than like a traditional court. In so doing, the court takes for itself the powers of parliament rather than limiting itself to the powers traditionally given to the judiciary.

The topic of ‘Judicial Activism’ is a live one in most countries of the common law. The accusation that judges have gone above their appropriate function is frequently made by politicians, media commentators and even some lawyers. The accusers allege that judges should stick to applying the law, they should not make it.

The European Court of Justice in Luxembourg is frequently accused of being extremely activist in its rulings. Convincing scientific evidence for this position has, however, up until now been lacking. The research focuses on the matter of what activism accurately denotes, whether the European Court of Justice at any point in time transgresses or has transgressed the limits of its judicial function, and what the consequences thereof are. The target is to offer comprehensive, systematic legal analysis, which will furthermore in its theoretical framework take some elements of legal theory, argumentation theory, and political science into account.                                Upon one view, the common law is a continuous legacy of judicial activism more than 800 years. But when is judicial creativity in the construction of a written constitution, the interpretation of legislation or the creation of new principles of the common law a proper case of judicial reasoning? And when is it an impermissible instance of judicial activism that goes beyond the judge's function?                                In examining the judicial way, Justice Kirby suggests that the debate on judicial activism has so far largely passed the judiciary of the United Kingdom by. Nevertheless, he points out that modern developments make it unlikely that this state of affairs will persist. The developments he mentions include the proposed formation of a Supreme Court for the United Kingdom, the resulting identification of the Supreme Court judges as public figures, the bigger roles of the judge in reviewing legislation under the Humans Rights Act, the developments in judicial review of administrative action and the new procedures for choosing and educating judges and changes in the arrangements touching the senior members of the Bar from whom the judges are chosen. The role of the courts beneath the proposed European Constitution is another potential agent of change.

Justice Kirby suggests that the judges of the United Kingdom will not be immune from the discussion on judicial activism that affects judges on the whole world. This makes an examination of what is happening to the judicial method in other countries with identical legal systems and judicial traditions particularly timely.                                                                                                This issue of judicial activism seems to be extremely interesting especially within the European Union. This fundamental concept existed from the beginning of the life of the ECJ. This is the reason why the Court of First Instance has been introduced in order to help the ECJ to solve problems and cases. The ECJ had been accused of been judicially activist and it is almost certain that the CFI is going to be accused really soon. A number of lawyers believe that the ECJ had saved Europe by been judicially activist but on the other hand some other lawyers believe that this had destroyed Europe.                                It is true that there are several sectors in the Community law that we can discuss the issue of judicial activism. In my opinion, the most fundamental sectors are those of the Free Movement of Goods and the General Principles of European Law and I am willing to concentrate on them. The reason is that there are extremely important cases and decisions on both issues and secondly, it is because chronologically these issues where there from the establishment of Europe.                                                                         Of course, every human being can have a different opinion if the criticism to the ECJ is fair or not and if it is inconsistent with the treaties. Someone can say that the criticism is fair but without this, justice would not be given. One of the reasons for the criticism is that the Court is independent and nobody can control it. Moreover, the limit is unknown; we do not know up to what point the court and especially the judges can act. They have been given a lot of powers; however they must not overuse them.

Free Movement of Goods

Article 29 includes analogous provisions relating to exports, while Article 30 (ex Article 36) offers an exception for certain cases in which a State is authorized to set boundaries on the movement of goods.                                                                                Article 28 will grasp quantitative restrictions and all measures which have an equivalent effect (MEQR). It can apply to Community measures, as well as those took up by Member States. The view of a quantitative restriction was explained clearly in the Geddo case to mean ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’. MEQRs are further complicated to describe. The Commission and the Court have taken a broad view of such measures.                                         In the case of Dassonville, Belgian law presented that goods bearing a designation of origin could merely be traded in if they were accompanied by an official document from the government of the exporting country certifying their right to such a designation. Dassonville imported Scotch whisky into Belgium from France without being in possession of the certificate from the British authorities. The certificate would have been very difficult to obtain in respect of goods which were already in free circulation in a third country, as in this case. Dassonville was prosecuted in Belgium and argued by way of defence that the Belgian rule constituted a MEQR.                                                                        We can now consider regarding the application of Article 28 to cases relating to discrimination, both direct and indirect.

Keck and Mithouard were prosecuted in the French courts for selling products at a price which was lower than their actual purchase price, opposite to a French law of 1963 as amended in 1986. The law did not forbid sales at a loss by the manufacturer. Keck and Mithouard claimed that the French law was different to Community law regarding, inter alia, free movement of goods.

The ECJ’s wish to exclude selling arrangements from the ambit of Article 28 is apparent from later case law. In Tankstation  the Court held that national rules which offered for the compulsory closing of petrol stations were not included by Article 28. The ECJ repeated its ruling in Keck, and concluded that the rules linked to selling arrangements that applied evenly to all traders with no distinguishing the basis of the goods. In Punto Casa and Semeraro the Court achieved similar conclusion in relation to Italian legislation on the closure of retail outlets on Sundays. The rule enforced uniformly to domestic and imported goods, and therefore was not included in the scope of Article 28. An identical subject is noticeable in Hunermund, where the ECJ said that a rule eliminating pharmacists from promoting para-pharmaceutical goods that they were authorized to trade was not caught by Article 28. The Court noticed that the rule was not focussed in the direction of intra-Community trade, that it did not prevent traders other than pharmacists from promoting those products, and that it applied equally among all traders. Even though the rule might have a little impact on the general amount of sales, this was not adequate to render it an MEQR for the idea of Article 28. The ECJ moreover held that national provisions limiting the amount of outlets for a certain good, or imposing an authorizing condition, were out of Article 28. This was either for the reason that the rule connected to selling arrangements, or because the impact was excessively indirect and doubtful.                                                                Although someone is able to understand the ECJ’s aspiration to set boundaries to Article 28, the difference drawn in Keck among rules that go to the nature of the good itself and those which connect to the selling arrangements for that good is problematical. The difficulty resides in uncertainty regarding the definition of the term ‘selling arrangements’.                                                                                Nevertheless it is obvious from Keck that the Court considered various such rules as selling arrangements and therefore out of Article 28. Therefore in its ruling it confessed that a rule forbidding sales at a loss deprived traders of a way of sales-advertising, and consequently lowered the quantity of sales, and nevertheless ‘treated this rule as a selling arrangement which was outside Article 28’. While in Hunermund and Leclerc-Siplec a limited ban on promotion was categorized as a process of sales promotion and supposed to be outside Article 28, and in Schmidt ‘a prohibition on doorstep sales of silver jewellery was held prima facie to fall outside Article 28’.                It is obvious that if the challenged national rule needs the modification of ‘packaging or labelling’ of the imported goods this normally prevents it from being a selling arrangement inside Keck. The elimination of selling arrangements from the scope of Article 28 is furthermore matter to two significant qualifications.

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Primarily, it is there for the ECJ to define rules which concern selling as part of the good itself, and therefore inside the scope of Article 28. This is demonstrated by Familiapress.                                                                                Response to the Keck decision was not normally favourable. It was said that Keck sited excessively much weight on factual and legal fairness at the expenditure of market access. The idea in Keck was to reject that rules concerning to selling arrangements came inside Article 28, supplied that ‘such rules did not discriminate in law or fact between traders from different Member States’. It was said that this leave ...

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