The constitutional jurisprudence of the ECJ is a paradigm of judicial activism. Discuss in relation to either State Liability Or Art. 234 EC. (This discussion shall be in regard to Article 234 EC.)

It is important to note that a great deal of major principles established by the ECJ, have been decided in the context of a reference to the court for a preliminary ruling under Art234. Moreover, it is obvious through previous case law, that this Article is an important part in the fundamental expansion and upkeep of Community law. With this in mind, the ECJ must maintain a strict approach in order for the community to achieve these objectives but must keep within a certain degree of legitimacy and legal certainty.

With Art234 available to national courts this possibility of varying approaches to Community law can be kept to a minimum. Indeed it creates a mutual regard for all respective national jurisdictions, and encourages collaboration within each respective legal system. Further to this it acts as a vital tool to enable the equal application of the law, and is supported by the ECJ in the achievement that the law is the same “in all States of the Community”. Art234 allows national courts to seek advice from the ECJ regarding; EC Treaty provisions and acts of each of the Community institutions, including non-binding acts using the Article as an interpretative tool. Moreover international treaties concluded by the Community and general principles of laws common to the constitutional traditions of the Member States were also judged to come under the sway of the court. Thusly the ECJ gave Art234 a wide application regarding its use by each Member State, but furthermore maintained its control and supremacy as ultimately the national court would be seeking advice and interpretation given by the ECJ itself on a point of Community law. Having said this however, the court is only empowered to give interpretation rulings on Community law, and has no jurisdiction to interpret domestic law. This acts as a restraint on the ECJ’s power restricting it from becoming an appellate court, but enabling it to further its objective of maintaining the legal order and continuity of the Community, but ultimately preserving the authority within each state.  

In this way, it could be argued that Art234 has become a unique principle within the context of European law. Upon a referral to the ECJ, the proceedings at the national level become suspended until an interpretation has been provided to assist the court or tribunal dealing with the case, an interpretation that becomes binding therein on the national court. The ECJ subsequently has taken an active role in the creation of the constitutional order of the European Community through the almost indirect approach of providing interpretation. As shall be discussed, this could be seen as a sense of judicial activism, namely letting the ECJ judges take the law unto their own hands. Furthermore this principle has led to a surge in the European court’s caseload which perhaps the court may be ill-equipped to manage and require a level of reform. Indeed preliminary references account for almost half of all cases heard.

Having said this however, the court has often repeated that it is not superior to any national court, but rather regards the preliminary ruling as a co-operation between, as such, equal actors within separate jurisdictions.  According to Rasmussen, the ECJ’s choice to promote this co-operative approach, rather than the alternative of a hierarchical structure, was based on the theory of convincing national courts to eventually prefer this model of subsequent co-operation to avoid discrepancies between both. This can be further supported in the Brunner-case. Further to this, if after a reference has been made to the ECJ the national court finds the response unclear or unsatisfactory, it may seek for a new or additional interpretation. This helps to maintain the relations between the two judicial authorities especially relevant when it comes to national judges deciding cases in relation to Community principles. In this way, national courts within this system still have the possibility to dissent against the co-operative structure. In CILFIT, the Court held that article 234 does not constitute a means of redress for individuals and that it is thus for the national court to decide whether or not to refer a question to the ECJ. Moreover, the national court may even be free to make a reference contrary to the wishes of the parties. In a way this still retains a degree of supremacy and discretion for the national courts, and helps to protect the rights of the individuals, an objective the ECJ ranks highly. Although it can be seen that the ECJ has taken a strict activist stance previously with case law, still gives the jurisdictions of Member States a certain a mount of application where they see it is necessary.

Having said this, the European Court has defined that any body or tribunal has the jurisdiction to challenge the community’s principles from within the nation state, which embodies the judicial authority or its capacity. Therein so as to include judicial panels that are not necessarily considered as ordinary courts under the laws of the respective member state such as a tribunal as mentioned, increasing the range of application that Art234 is concerned with. Yet on the reverse side, in the first preliminary ruling, Bosch, the Court held that national and European law:

        “Constitute two separate and distinct legal orders”

Therefore, the ECJ did not consider it competent to evaluate why the national court deemed it necessary to refer a question of interpretation, since the ECJ’s role was simply to respond to the interpretation question. In Foglia, this has been described as a duty of the ECJ to “supply all courts in the Community with the information on the interpretation of Community law which is necessary to enable them to settle genuine disputes”, subsequently extending the reasons for not giving a ruling and thereby enhancing its control over which cases it will rule on. This is also supported by the general prerogative power that the ECJ has to determine whether a body qualifies under Art234 to refer in the first place. This power to promote Community law uniformly can be seen within the use of Art234 also. In this section, a duty to refer falls upon a national court against whose decision there is no judicial remedy available (for example the House of Lords). These examples given of the control that the ECJ seems to have over individual Member States, are important to illustrate how Art.234 needs to be in constant check in order for the European Court to maintain a degree of legitimacy and legal certainty. It could also be interpreted at this stage that this use of power poses the initial danger of European judges taking the law into their own hands, reviewing some cases but not others where they see fit. A possible example of judicial activism. In Meilicke, the ECJ were seen to depart to a large extent from its previous cooperative attitude with nation’s judiciaries, an attitude that it had been adamant was one of the main reasons and objectives for having such a preliminary reference procedure in the first place. Furthermore the Court has also commented that nation states referring cases must give reasons as to why they are referring the case in the first place, and include more specific facts therein. Moreover, it was further supported by academics alike; that the ECJ seemed to be increasingly analysing individual cases on their facts and perhaps becoming more involved in the individual cases than their jurisdiction should be allowing. This could point to yet another example that the ECJ were beginning to take the reference procedure beyond its original conception of just providing interpretation to Member States.

The obligation in article 234(3) is such that it is deemed as being absolute, that where there is no judicial remedy higher than that court, they must refer the question to the ECJ. However, the Court early on introduced exceptions to this obligation, one such being the doctrine of acte clair, which was first discussed by the ECJ in Da Costa. Here the case was referred to the ECJ under 234(3) as an obligation to do so, but the point that required interpretation had been previously answered already. The ECJ held that if a materially identical question had already been answered then the obligation no longer existed and no reference should be made. This partially activist doctrine suggested to national courts that perhaps there was an acceptance of limitations of the obligation, indicating that Art234 should not necessarily always be interpreted literally. Supported especially by a decision such as this by the ECJ. According to Rasmussen, the introduction of very limited discretion for courts of last instance was, however, not the primary feature of the case. Instead, and as suggested, he states that the ECJ may when creating such a judgement take the law into their own hands, subsequently creating precedent outside this case, making law rather than interpreting it. This is recognised by Craig as perhaps the start of a system of precedent in the Community legal order, but questions should be raised as to whether this procedure of ignoring the obligation to refer is efficient.  

This jurisprudence by the ECJ was not developed until twenty years later when the doctrine above was supported and approved in CILFIT. Here the ECJ quoted the same reasons as in Da Costa, but developed the principle to state that where previous decisions of the ECJ had already dealt with the point of law in question, a reference was meaningless, irrespective of the nature of the proceedings. Importantly, the Court adds that the opportunity to refer any question of Community law still remains for all national courts, even if an established jurisprudence already exists. This seems to support the development theory of precedent, further shifting the structure between the ECJ and national courts towards a hierarchical relation.

Having said this, each national court in the EC has a very different method of interpretation and a distinctly unique judiciary. This presents problems when it comes to national courts deciding and interpreting on Community law, and could lead to possibilities of misapplication, and problems regarding legal certainty. This in itself can be related to judicial activism but in the sphere of the Member States themselves rather than the ECJ. Therefore in CILFIT, the ECJ stated that three characteristics ought to be taken into account to reach the best decision regarding a preliminary reference. Yet these are extremely difficult to apply, but are useful in that they act as a control, stopping the abuse of the principle. Firstly the different languages of the Community in the translation of case law ( although at the time of CILFIT there were far less than at present). Secondly that the facts of the law are equally obvious in all Community courts and also obvious to the ECJ itself. Yet this is hard to prove as mentioned due to the varying interpretative styles of the nations’ vast number of courts. And lastly a strict test of beyond reasonable doubt. These requirements, described as “intimidating” indeed put a great deal of pressure national Courts wishing to use the acte clair doctrine in accordance with Community law. Rasmussen states that on one part the ECJ seems to give national courts discretion, but on the other it is taken away through the introduction of these 3 intimidating conditions.  

When it comes to concluding this discussion, it is useful to note that the ECJ is composed of 15 judges, one from each state, and not a randomly created independent judiciary. In this way, when it rules on a case, it is doing so for the benefit of the Community as a whole, and (apart from reasons mentioned) for the good of said Community. Moreover, the Commission of Europe holds Art.234 as an “undeniable success”, but following a reform report states a number of modest changes should be made. These include a change in the Court’s rules of procedure, making it easier to respond to references where the answer is obvious; better information to national courts encouraging and enabling them to make more decisions on their own regarding Community law and the then reasonable doubt criteria esthablished in CILFIT.

In this way, if any doubts existed that the ECJ were trying to remove a degree of supremacy from national courts, the Due Report seems to suggest that they are willing to let nation states interpret cases generally on their own, but perhaps with the ECJ in the background if necessary. Having said this however, some of the case law mentioned above does seem to propose that the European Court can at times be willing to take the law unto its own hands. On one side possibly because of an intention to maintain the legal order within the Community and ensure that it is uniformed and maintains legal certainty. Yet on the other, and perhaps more sinisterly, forcing and putting a stop to national courts from deciding their own decisions, and choosing which path of Community integration they wish to follow if it does not fit into the general community legal system. To sum up,

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Ecj made up by nation state judges, but not democratic?

Can leave union at any time

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