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 out the significance of market access: trading rules could be officially equivalent in the preceding logic, and continue function so as to reduce market access. It would, therefore, be wrong to eliminate them from Article 28. This argument has been highly developed judicially and in the educational literature.
Keck exploded the idea that there might be a personal right to trade able of vindication by means of EC internal market law, but Keck itself produced a danger of toppling too far in the opposite way, thus imperilling the internal market, by concentrating on factual and legal fairness of application to the elimination of questions of market entrance and obstruction to the structure of the cross-border commercial plans. The major meaning of the post-Keck amendment is the welcome verification that internal market law is not restricted to supervision of ways that are legally or factually uneven in application.
In Keck, Leclerc-Siplec and some related cases, the boundary on commercial autonomy could not be straight linked to any cross-border feature of the activity. In Alpine Investments, the cross-border aspect was of direct importance; moreover in Bosman, whose entrance to employment in a different state was affected by the rules.
The injection of a sufficient cross-border factor allows a claim not merely to equality right, but instead to the active safety of Community law on free movement, matter simply to the ability of the regulator to demonstrate justification for the boundaries. ‘The academic argument in favour of market access was reinforced by Barnard who, like Weatherili, drew on case law from persons and services, as well as goods’.
Originally, it is vital to be obvious concerning the meaning accorded to market entrance in the ECJ’s case law on products. In Keck prevention or impediment to market right of entry came out to be merely the result of a national rule that used differentially as among domestic traders and importers. The focal point in post-Keck case law was on the ‘existence of such factual or legal differentiation’. The ECJ has more lately finely moved its place, according bigger status to market entrance in its own right. In Gourmet International the ECJ held that selling arrangements would be out of Article 28 simply if they did not avoid entrance to the market by imported products or impede entrance by imports more than they impeded entrance by domestic goods.
At last, we must be cognizant of the complications of using an experiment focused on direct and substantial impact of entrance to the market. Proponents of the test identify that this can be complex to assess. A court may have to get into account the variety of products affected, the existence or not of optional selling arrangements, and the character of the limitation itself. This will not be a simple assignment for the ECJ. It will be even further complex for national courts. However, the ECJ may offer assistance to the national court, as in de Agostini, or it may go further and state there has been an impediment to market entrance, as in Gourmet International. It is a fact that the ECJ, CFI, and national courts have to solve not the same tasks in the framework of competition law, when making a decision whether an agreement has a result on competition. However, there are true dissimilarities among the two regions. In competition law the backdrop to the inquiry is a developed micro-economic assumption about cartels which diverge from ideal or imperfect competition. In free movement of products there is no complete consensus on what does or does not come inside the meaning of market entrance. In competition law personal agreements are at stake; in free movement it is national regulations. It was for some point in time uncertain whether Article 39 applied to national measures which limited the freedom of movement of EC workers, but which were neither directly nor indirectly discriminatory on basis of nationality. This is a fundamental matter that has occurred in relation to every one of the ‘freedoms’, but maybe with biggest frequency in the ground of free movement of products. In the framework of each of the freedoms, the ECJ has ruled that yet non-discriminatory restrictions may violate the treaty if they comprise an unnecessary obstacle to freedom of movement. Whereas it is from time to time hard to differentiate among cases of indirect discrimination and those where the ECJ get involved to defend entrance to the employment market, there are nevertheless cases that fall obviously inside the last group. The matter was primary addressed straight in the framework of free movement of workers in the famous Bosman ruling, in which the transport system developed by national and transnational football associations was found to be in violation of Article 39. In the case of Bosman himself, who had been employed by a Belgian football club, this rule successfully disallowed him from securing employment with a French club. The matter that the transfer system used evenly to players moving from one club to another within a Member State as to players moving between States, and that a player’s nationality was completely unimportant, did not stop the system, according to the ECJ, from falling out of Article 39. This was so notwithstanding the reliance sited by the football associations on the Keck ruling which had lowered the scope of the treaty provisions on free movement of products. In the lack of any adequately believable public interest justification for the rule, it was found by the ECJ to be contrary to Article 39. The issue that there was no discrimination was immaterial; the existence of an obstacle to the entrance of workers from one Member State to employment in another Member State was sufficient to be a magnet for the application of Article 39.
The principle recognized in Bosman, that non discriminatory rules which nevertheless impede entrance of workers to the employment market of another State are caught by Article 39 and has been continually used in several cases, including De Groot, Schilling, Rockier, Commission v. Portugal, and Lyyski.
It is now obvious that if there was no judicial activism in the context of the free movement of goods, it is almost sure that there was going to be a lot of unfairness in the world. Furthermore, it is acceptable that we need the courts to act ‘in their own way’ in order to protect the people and to make a better system. On the other hand, the judiciary must not overuse their powers and they have to know the limits.
General Principles of European Law
The General Principles of European Law were established by the ECJ in order to protect the Human Rights. It is clear that the ECJ recognises the Human Rights, although they are not included in the treaties. Later, we will see from several cases this important issue through the Charter of Fundamental Rights which was established in the Treaty of Nice. The Court of Justice has stated that the ‘general principles of EC law’ comprise protection for fundamental rights which are branch of the common constitutional traditions of the Member States and comprised in international human rights treaties on which they have worked together or which they have signed, and this has been confirmed in the EU Treaty. The ECJ in a premature series of cases primarily opposed efforts by litigants to appeal to rights and principles accepted by domestic law and was unenthusiastic to treat them as part of the Community’s legal order, even where they were basic principles common to the legal systems of most or all Member States. Afterwards, however, the Court’s approach changed. In the case of Internationale Handelsgesellschaft the applicant said that a Community regulation under which a deposit would be forfeited if the products were not exported in time was contrary to principles of national constitutional law, comprising freedom of action and of disposition, economic independence and proportionality. This ruling gave rise for some period to a potentially severe argument in the relationship among the German Constitutional Court and the Court of Justice. Whereas the ECJ has wanted to stay away from a direct constitutional disagreement with a national court, it has never withdrawn from its claims.
The ECJ faced the reversal type of disagreement in Ciola, where the Austrian government stated that the principle of primacy should not automatically apply ‘to specific individual administrative acts’. The Court sent away this argument, reaffirming that any provision of national law which conflicted with directly efficient Community law should not be used. Therefore the principle of primacy is evenly asserted and obligatory by the ECJ whenever directly efficient EC law is concerned, and regardless of whether basic national constitutional norms or minor administrative acts are at issue. The ECJ in Simmenthal developed more its supremacy principle, by creating obvious that the supremacy of Community law used irrespective of whether the national law pre-dated or post-dated the appropriate Community law. A Community measure rendered unsuitable any contradictory provision of national law and prohibited the approval of new national law that would disagree with Community law. The facts are placed in Internationale Handelsgesellschaft before the ECJ. On receiving the ECJ’s ruling, the German Administrative Court decided that as Article 24 could not be linked with an alteration of the German Constitution the Federal legislature could not, when ratifying the EEC Treaty; disclaim the observance of basic rights in the Constitution. It furthermore expressed anxiety that if Community law were given priority over divergent constitutional provisions, national constitutional law would be reduced as the maximum national check on European legislation that did not have corresponding legal protection. Accordingly the Administrative Court ruled, in the face of the ECJ’s contradictory ruling, that the Community’s deposit system violated fundamental doctrines of German constitutional law, and it demanded a ruling from the Federal Constitutional Court, the Bundesverfassungsgericht (BVerfG).This judgment was given by the BVerfG in 1974 , which known as the ‘Solange I’ decision. However Article 24 of the Constitution limits this chance in that it nullifies any amendment of the Treaty which would destroy the character of the legal constitutional organization of the Federal Republic of Germany by encroaching on the structures which go to build it up.
Temporarily, in the theoretical case of a disagreement among Community law and the assurances of fundamental rights in the Constitution, the assurance of fundamental rights in the Constitution triumphs as long as the capable organs of the Community have not separated the disagreement of norms in relation with the Treaty mechanism.
In 1986, in a situation in which an EC import licensing organization was challenged even with an ECJ judgment on its legality, the BVerfG distributed Solange II ruling, which qualified the 1974 Solange I judgment to a significant extent. Solange means ‘so long as’ and it refers to the report of the BVerfG that so long as the Community had not separated the probable ‘conflict of norms’ among Community law and national constitutional rights, the German court would guarantee that those rights got precedence.
In 1969 in Stauder the Court reacted confidently to a disagreement stood on the fundamental right to human dignity, which the claimant assumed had been violated by the domestic implementation of an EC provision regarding a subsidized butter scheme for benefit recipients. Having interpreted the EC measure in a way reliable with security for human dignity, the ECJ affirmed that ‘the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court’. Stauder therefore characterized a different change of approach, establishing the inspiration of general principles of EC law which comprise protection for fundamental human rights. The recent approach was established and elaborated upon in the well known Internationale Handesgesellschaft case, in which the German Constitutional Court was requested to leave in the margin an EC measure regarding forfeiture of an export licence deposit, which may disagreed with German constitutional rights and doctrines such as economic freedom and proportionality. Ever since the Handelsgesellschaft judgment, the ECJ has repeatedly highlighted the independence of Community ‘general principles’ of law, although at the same time pressured that the basis of these general principles is not completely autonomous of the lawful cultures and customs of the Member States. In Nold, regarding the extreme impact on the claimant’s right to a livelihood of the Community regulation of the market in coal, the Court pointed to that there were two basic sources of ‘inspiration’ for the general principles of EC law: first, the common national constitutional traditions, and secondly, international human rights agreements.
This fundamental concept of judicial activism 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 soon. However, the General Principles of European Law were established by the ECJ in order to protect the Human Rights. It is clear that the ECJ recognises the Human Rights, although they are not included in the treaties. Therefore, it is obvious that the ECJ is delivering judgments that are inconsistent with the treaties.
CRITICISM
The advocate general’s view is not binding on the judges, and the Court has occasionally moved in opposition to it, as in the early seminal cases of Van Gend and Costa. The Court usually refers to these opinions further, just depending on them, with no giving its personal reasoning, as in Hauptzollamt Hamburg.
As a result of the requirements of multilinguism and unanimity, the European Court’s rulings used not to be understandable, or they often have the ‘flatness associated with a Government report’. In difficult cases, the Court’s explanation may possibly be hard to understand, as the Court could have been capable to safe agreement on various matters only, leaving uncertain the basis for its judgment.
The course of interpretation in the direction of the Court’s judgment may be hard to understand, yet if there has not been disagreement. For example, in the seminal case of Dassonville, the Court did not produce any clarification as to why ‘all trading rules, either direct or indirect, actual or potential, which hinder the free movement of goods’ could be classified as ‘measures having an equivalent effect to quantitative restriction’, a ruling which went in opposition to several of the Court’s earlier judgments, which needed discrimination for the provision to bite. Moreover, it can be said that there is little analysis by the Court of its own earlier case law. Therefore, the Court varies from the advocates general, who used to be more expansive; it is instructive to compare the totally reasoned view of AG Tesauro in Hunermund with that of the court in Keck, both of which constrain the scope of Article 28 EC. The ECJ’s approach to precedent is not that of the orthodox Anglo-Saxon lawyer. In Keck, the Court adapted more or less a gnomic approach to precedent, holding that its ruling was ‘contrary to what had previously been decided’, but weakening to identify to which cases its ruling was opposite. Nevertheless, what Brown and Jacobs call ‘leitmotifs’ do arise in case after case for example, the Plaumann assessment for locus standi. In this means it has been said that ‘By constant rehearsals, the Court, like a Welsh choir finds the exact note it wants to sound’. The EC texts are frequently really unclear and general in their language, different to British statutes, the treaties offer no definitions of the provisions used, there is no glossary. So conditions of such generality as ‘worker’ or ‘measure having an equivalent effect to a quantitative restriction’ have been left to the Court to make a decision.
In addition, there is a lot differing in good faith regarding the sense and appropriate scope of EC law, particularly as the vagueness of EC legislation has also been augmented by special problems faced by the EC legislature, where a text could be decided with not a great harmony on its sense and scope. Therefore, it may possibly have been a deliberate option to allow the Court to amplify more a hard topic. As Lord Denning said, ‘the Treaty lacks precision... It uses words and phrases without defining what they mean. All the way through the Treaty, there are gaps and lacunae. They have to be filled by the judges, or by regulations and directives. It is the European way’. The ECJ has not preferred the historical way but it has regularly applied contextual interpretation. As the ECJ held in the CILFIT case, ‘Every provision of EC law must be placed in its context and interpreted in the light of Community law as a whole…’. Teleological interpretation is related to this. The expression ‘teleological’ is regularly applied for a method of interpretation applied by the ECJ, where it will interpret that provision on the source of its idea or objective; a way which the Court frequently applies in order to fill up the gaps in the treaty. Application of these methods has been quite openly approved by members of the Court. Hans Kutscher, the previous President of the Court, said, ‘How else should the Court of Justice carry out this function which it has been assigned except by an interpretation of Community law geared to the aims of the Treaty, that is to say, one which is dynamic and teleological’? This approach is recognizable in continental law, where generally drafted codes frequently leave a lot of gap filling for the judiciary. Similarly, there are too many gaps in the broad traite cadre structure of the EC Treaty, a lot of them purposely so, as in Article 44, which places the Council with some tasks in order to get about freedom of establishment. In 1986 Hjalte Rasmussen blamed the Court of engaging in ‘a dangerous social evil’, by grabbing authority by its political activism. He pointed three sets of situations in which he considered ‘adjudicative lawmaking’ took place. Primarily, where authorized provisions provide a broad discretion, so the Court’s interpretation, nevertheless seemingly broad, still stays inside the textual restrictions recognized by the language of the passage, yet if motivated by the treaty’s character of integration. Rasmussen found this kind of interpretation to be ‘judicially perfectly justifiable’ however a work out in ‘Community policy-making by judicial fiat’. Second, anywhere the treaty was quiet, as in the case of supremacy and direct effect, he rejected of the application of a purposive and contextual interpretation, where the Court elicited the ideas of direct effect and supremacy in Van Gend and Costa. Third, and generally terrible for Rasmussen, was the Court’s capability to achieve a judgment in spite of textual indications to the contrary. This he took to be an ‘activism uncontrolled’ giving the Reyners and Defrenne II cases as paradigms. Recently, in 1998, Rasmussen blamed the Court of ‘federalising’ the treaties in lack of respect of the ‘legal commands of the treaties texts’.
Hartley is as well a strict critic of the Court’s ‘judicial activism’. For Hartley, a case such as Chernobyl engages a purposeful removal from the objective sense of the treaty. Such behaviour matters ethically, politically and constitutionally, since it engages a breach of the rule of law and also an enlargement of the authorities of the EC at the cost of the member states. Additionally, in reply to the disagreement that EC law is wide and programmatic. Hartley argues that a gap does not survive to be filled simply because a subject is not covered. Therefore he criticises Judge Mancini’s claim85 that ‘the preference for Europe is determined by the genetic code transmitted to the Court by the founding fathers’, a claim done by Mancini in reply to blames that the ECJ constantly chose for a ‘European’ solution.
A dissimilar criticism of the European Court is done by Aiden O’Neill. He shares with Rasmussen the grievance that, although the ECJ began its way of life as a kind of administrative court all along the form of the French Conseil d’Etat, its past demonstrates its expansion into a constitutional court all along the form of the US Supreme Court, a progress which O’Neill states was not predicted by the EC treaties, however one which was supported by the Court’s open analysis of Article 220 (previously Art. 164) and also by its case by case growth stood on purposive interpretation, and more application of terms such as the doctrine of effectiveness of EC law. In this manner, he argues that the ECJ produced a federal legal system not harmonized by a federal development at political level. And he discovers no persuasive justification for the Court’s manner in so doing, disallowing statements like Mancini’s reference to the constitutional traditions of member states, natural law or the European common legal heritage.
Furthermore, Martin Shapiro is more confident in his argument of the ECJ’s development. He finds it predictable that the creators of the ECSC and EEC must have been unconcerned regarding the view of judicial activism, as there had been little familiarity of it at this point. The Court has certainly ‘added flesh to the barish bones of the treaty’. Occasionally it has not merely ‘added flesh but clothed it too, as in its expansive case law on equal treatment and pay, or on free movement of goods (perhaps only to unclothe them with the Keck decision)’. This has regularly been so as of the insufficiency of the Community legislature which must have been satisfying and widening Community integration itself, however for different reasons was powerless. The ECJ as a result sustained the pace of European integration. Judgment like Kalanke, in which the court ruled that positive discrimination was opposite to the equal treatment directive, threaten acceptable rulings taken regarding social practice by chosen majorities. It was possibly a consciousness of this threat which caused the Court to restrict its Kalanke decision in Marschall before the member states themselves got the initiative by including Article 141(4) in the Treaty of Amsterdam.
Nevertheless, if human beings or corporations had anything to achieve from the ECJ’s progressive jurisprudence the query is present why other institutions must go all along through it. Why should national courts or the member states for so long have accepted the ECJ so silently? An assumption proposes that it was in the concern of several national courts to collaborate and that they were giving power to themselves by so performing; mainly by the making of preliminary references to the European Court under Article 234, that allowed them to assert themselves in opposition to the will of superior domestic courts. The ideas of citizen empowerment and court empowerment are characteristics of later day neo-functionalist ideas of integration, that do not offer wholly acceptable responding to the query of why the Court’s wide jurisprudence must have been for the bigger part unresisted. There can be another less realistic reason why hypothetically activist holdings have been faced with approval, the prevalence of a certain form of lawful reasoning, supported on a form of official reasoning and neutrality. Montesquieu characterized the judge as ‘un etre inanime’, an individual which could simply discover the law but not make it. Unite this with the prevalence of formalism and we have an image of unexpected adhesiveness. Therefore, judges seem to be doing law rather than politics. Such a perception of lawful reasoning legitimises the effort of the courts, which are seen to be sticking to the law. Such an idea is too naive and was previously seen as impracticable in the early nineteenth century; John Austin, a legal positivist but not a formalist, discharged Montesquieu’s vision as ‘a childish fiction’. Undeniably, such formalism appears unworkable to use in the case of ECJ law, in which such broadly planned; open textured provisions leave a large amount of scope for judicial discretion at the extremely least. Nonetheless, we should not, as Weiler repeats us, undervalue the compliance pull of the ECJ’s jurisprudence supported on the formalist idea to law and legal reasoning taken by several still.
The ECJ was criticised by many, and up to a point they had right, since the ECJ was inconsistent with the treaties. However, as we have seen in the concepts of Free Movement of Goods and the General Principles of European Law, it is sure that we were going to live in unfairness if the ECJ was not allowed to be judicially activist.
CONCLUSION
The Dassonville case once more offers us with a pattern of no background justification, no line of reasoning, legal or other is given as to why this special description of a measure having equal consequence to a quantitative restriction is at this point taken by the Court, any further than the Court sets out its background reasoning to the finding of abortion to be a service in Grogan. Cass Sunstein believes that we do not require having great reasoning or articulation in order to give the circumstances of legitimate adjudication. Though, weakening to do so occasionally simply seems insufficient.
Law is not neutral. Every court, not merely the ECJ, should be mixed up in controversial judgments, where there is no obvious answer, and therefore some kind of political rulings seems to be taken by the Court. So much of law is undefined or unfinished, or even differing. The ECJ is not exclusion to rhetoric of coherence covering a dissimilar, further clouded philosophy. Jerome Frank said in 1930 that ‘At times, indeed [the denial of the fact of judge-made law] seems to resemble an outright benevolent lie, a professional falsehood designed actually to deceive the laity for their own good’.
Possibly the actual grievance is not that the ECJ connects in judicial activism however that it was unsuccessful to state the sources and basis of its activism. Whatever the substance of the accusation of activism, it seems that, the ECJ turn into further prone to ‘self-restraint’. The Keck decision of 1993 is one, where the Court stated that, opposing to what had earlier been decided, some kinds of trading rules would not be inside the scope of Article 28, therefore significantly narrowing the range of the law in that region, leaving a bigger quantity of national economic regulation unaffected by EC law.
While the Treaty of Amsterdam changed the position further, this was maybe not at all times in the Court’s goodwill. Article 141(4) was established to knock over the Court’s Kalanke judgment.
These alterations carried by latest treaty amendments might be seen as an effort to assert further manage on the judicial area, even to get ‘a kind of revenge’, or, if not revenge, then at least a ‘more matured and structured role for the Court’ in which it will not have ‘the freedom of its glory days to interpret EC law into new dimensions, but a different kind of freedom to act within clearer and more obvious confines.’ In any situation, it seems that the ECJ will no more have the interpretative independence which it has so lengthy held in the history of the EC and so carefully safeguarded. However, we must not overlook that the identical ECJ of the 1990s which was blamed of moving away from activism furthermore shaped Francovich and Factortame, which definitely got the purview of EC law, and particularly its so-called efficient protection of individual rights, so greatly so that the UK government arranged a memorandum to deal with this theme. Certainly, several of the ECJ’s case law on remedies looks in front to a united, common European organization, a challenging notion. Even Keck cannot be sent away as a withdrawal as Shapiro says, ‘Once the dragon of open protectionism and discrimination was slain…the ECJ could not go on slaying it over and over again’.
It is now obvious that if there was no judicial activism in the context of the free movement of goods, there was going to be much unfairness in the world. Again, it is clear that the ECJ recognises the Human Rights, although they are not included in the treaties. Furthermore, it is acceptable that we need the courts to act freely in order to protect the people and to establish a better system. On the other hand, the judiciary must not overuse their powers and they have to know the limits.
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Cases C-34-36/95 de Agostini.
Case C-405/98 Gourmet International, n. 19 above.
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Cases C-267 and 268/91 Keck and Mithouard [1993] ECR 1-6097.
L. Daniele, ‘Non-Discriminatory Restrictions to the Free Movement of Persons’ (1997)22 BLRev. 191.
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K Alter, 'The European Court's Political Power' (1996 19 West European Politics) 458.
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