The European Court of Justice and its activist approach

Term Paper, 2001

11 Pages, Grade: 1,0 (A)







The new legal order
State liability for breach of EC law
The right to challenge





1. Introduction

This Report should give the reader an overview of the judicial system of the EU in general and an in-depth analysis of the European Court of Justice (ECJ). The main emphasis in this essay is the activism of the ECJ because this is how the gaps in the EU Treaty are going to be filled. Furthermore it details the current situation of the ECJ, its environment and the recent development of the institution. The report also provides examples of activism and reforming plans of the European Court of Justice.

2. ECJ - What is it? What is its objectives?


Like any legal system, the EU needs a system of judicial safeguards maintained by an independent judiciary. In the European Union that is the task of the Court of Justice. The Court of Justice originated from the individual courts of justice established in the 1950s for the European Coal and Steel Community, the European Economic Community, and the European Atomic Energy Community. The function of these courts was to ensure the legal compliance with regard to those organisations' interpretation and application of their treaties. In 1958 a single, unified European Court of Justice was created to serve all three already existing bodies.


The Court of Justice is composed of 15 judges and 9 Advocates General appointed by common accord of the Member States. They are appointed for a term of six years which can be renewed. Their moral and professional credentials must be of the highest order and beyond any doubt to ensure their impartiality and independence and the quality of their decisions. They must be qualified for the highest judicial office in their own countries or be jurists of recognised competence. The Court is assisted by the Advocates General, whose task is to deliver independent and impartial opinions on cases brought before it.

The Court of Justice worked alone until 1 September 1989 when the Council attached to it the Court of First Instance (CFI) in order to improve the judicial protection of individual interests. This also enabled the Court of Justice to concentrate on its fundamental task of ensuring uniform interpretation of Community law.

The Court of First Instance has 15 judges appointed by the Member States for the same renewable term of office, namely 6 years.


The Court of First Instance now has jurisdiction to deal with all actions brought by individuals and companies against decisions of the Community institutions and agencies. In cases where a point of law is in question its judgements may be subject to an appeal brought before the Court of Justice.

The Court of Justice has jurisdiction to hear disputes to which the Member States, the EU institutions, companies or individuals may be parties. It may have to decide whether a Member State has infringed its obligations under the treaties, whether an institution has exceeded its powers or failed to follow correct procedures. It must also ensure that Community law is uniformly interpreted and applied by the national authorities and courts in the Member States. Community law and decisions made by the European Court of Justice ultimately overrule those of national courts.

3. Analysis of the European Court of Justice and its role

The Court of Justice promotes the creation of a genuine European Law to which all are subject: European institutions, Member States, national courts and each individual. It therefore has to be regarded as a key to the construction of Europe.

Abbildung in dieser Leseprobe nicht enthalten

Since 1954 over 9,000 cases have been brought before the Court of Justice which has delivered some 4,000 judgements. It can be observed that there is a trend towards workload.

The court has the power to invalidate the laws of EU member nations when those laws conflict with the law of the EU. The European Court of Justice serves as the final arbiter of the growing body of international law that accompanies the economic and political integration of member nations. Because EC Law is relatively new - historically speaking - every decision made by the Court of Justice puts more flesh on the bone of international law in the EU context. Most judgements are binding on all Member States - it speeds up the harmonisation process and knits Europe a little bit closer together.

Generally speaking, Brussels is far away for the man in the street. It may well be that he is not even aware that there exists a European body, which directly influences national. But what he does know is that there has been a major change to the football leagues. Now it doesn't matter how many football players in a game are from the home country and how many players are from `foreign' EU countries. All players have to be treated equally (Bosman Case C-415/93;1993).

Another illustration is the beer in Germany. Today Germany is allowed to import beer from other EU countries, even though it is not brewed in accordance with the German Beer Purity laws (Brasserie du Pêcheur S.A. Case C-46/93 and C-48/93;1996).

So EC law has a big impact on individuals even if they have not realised it - they are directly effected in their daily lives by the decisions of the ECJ.

The second point to bear in mind is that the national courts and governments are the real motivation behind the implementation on Community law. They have to apply it as a matter of policy in the cases brought before them. Through the preliminary reference procedure the national judges and courts have a channel of communication with the European Court of Justice. This procedure enables them to use their cases for a decision on the interpretation of Community law or on the validity of acts of the Community institutions.

It should be mentioned that the judges are appointed by Member States and not elected, despite the fact that they have tremendous power to change the life for the man in the street or member state enterprises.

4. Activism - What is it?

What exactly does activism mean? The Merriam-Webster dictionary gives a definition:

A doctrine or practice that emphasises direct vigorous action especially in support of or opposition to one side of a controversial issue.

Another definition comes from The American Heritage® Dictionary of the English Language and shows the word in a different light:

The use of direct, often confrontational action, such as a demonstration or strike, in opposition to or support of a cause.

But do these definitions match with the activism of the ECJ? Are the judges on strike or do they demonstrate to reach their aims? Hopefully not.

Activism, while speaking of the European Court of Justice means that judgement is made without the basis of the treaties. Because EC law is at an early stage, the treaties do not cover every aspect of life, sometimes they are silent. And that is when the ECJ is activist. In those cases where the Treaties are silent it goes beyond the normal decision making procedure in forming law and policy by their decisions without reference to national or European elected bodies.

5. Examples of activism

This report will show the activism of the European Court of Justice and highlight it with some examples from the past.

The new legal order

Van Gend en Loos v. Nederlande Admninistratie der Belastinge (Case 26/62) 1963 The Van Gend en Loos company had imported a quantity of chemical substance from Germany into the Netherlands. It was charged by Customs and Excise with an import duty which the company alleged had been increased since the time the EEC Treaty came into force.

The importers challenged the payment in the Dutch courts on the basis that the extra duty infringed Article 25 (ex 12) of the Treaty. The Dutch court referred questions to the Court of Justice for interpretation under Article 234 (ex 177) procedure.

Held: The EEC is a known legal order in international law, on behalf of which states have limited their sovereign rights in certain fields and whose subjects comprise not only Member States but also individuals; Article 25 (ex12) of the Treaty gives direct effect to EU law in that it imposes an obligation upon the government and the courts of the member states to implement the policy and individual rights embodied within the law.

Comment: Not all Member States were pleased with this judgement, for instance Germany, Belgium and the Netherlands because it establishes the supremacy of EC law over national law and therefore reduces sovereignty. The ECJ also implemented the concept of direct effect.

That means when provisions are directly effective, like in this case, the rights or duties are directly enforceable by individuals before the national courts.

This shows how the ECJ fills the gap where the Treaty is silent and interpret it in their way. Their judgements are binding to all Member States.

State liability for breach of EC law

Francovich, Bonifaci and others v Italy (Case C-6 & 9/90) 1991

Italy had failed to implement Directive 80/987 on the protection of workers in the event of insolvency.

Francovich and Bonifaci had outstanding claims against a company declared bankrupt in

1985. Unable to recover against the company they brought actions in the Italian courts against Italy, requesting that Italy should pay them compensation in the light of the obligation in the directive. National court referred questions to the ECJ to determine the extent of a Member State's liability.

Held: Member States are obliged to compensate individuals for breaches of EC law for which they are responsible if certain conditions are satisfied.

Comment: The ECJ stated that the implementation of EC law would be compromised if individuals were unable to obtain compensation when their rights were infringed by a breach attributable to a Member State. The principle of state liability is inherent in the scheme of the Treaty.

Francovich made it clear that states are liable to pay compensation if they fail to implement EC law which confers individual rights. This liability applies also to EC law that is not direct effective so that a member state can not argue no liability on the basis that they have not implemented the law.

The right to challenge

EP v. Council ("Chernobyl") (Case C-70/88) 1990

The EP challenged the legal basis of a Council regulation setting the permitted level of radioactive contamination in foodstuff following the Chernobyl explosion.

Held: The ECB and EP may challenge EC law where the purpose is to protect their prerogatives and the ECJ has jurisdiction to hear these challenges.

Comment: The position has now being clarified by the Maastricht Treaty amendments which incorporate the "Chernobyl" principle into (article 230 (ex173)).

6. Is activism justified?

From a legal point of view activism forms part of the duty of the ECJ under article 220. But is activism justified?

It could be argued that as the ECJ is not elected by the citizens of the Member States it should not have so much power to influence national law and individuals' rights. Furthermore the ECJ is the final arbiter and if a person or a Member State is not satisfied with the judgement there is no right of appeal. Is it justifiable that a body with such influence is unelected?

It should be noted that during periods of political stagnation - for example in the 70's - the ECJ is more activist but during periods of political initiative and change for example during the creation of the Single European Market, the activism of the ECJ is more subdued. It might be a good idea to refer matters of interpretation back to the. They initiated the legal policy. Why could the Commission not deal with the interpretation and application?

Justifiable could be argued for two reasons:

The commissioners are appointed by Member States and normally belong to political parties and therefore are not independent and they have little experience of interpreting and applying law. The Judges on the other hand are also appointed by Member States but are politically independent. Because of their past working experience, they have considerable knowledge in considering and applying issues of law and therefore they are well placed to interpret and apply law correctly.

Activism is needed to fill all the gaps which the Treaty left. It is an important role that someone must fulfil. To let the ECJ do this job may be questionable but it is understandable. The judges are clever, sometimes wise, and often visionary when they judge a case. So there exist worse options than the ECJ to put flesh on the "Treaty bone".

7. Are there any proposed reforms of the ECJ?

The court is in need of urgent reform, so that it can continue doing that which it has been doing since the European Communities were set up: to ensure the respect for the law.

But the fundamental problem, which lies at the root of the debate on institutional reform, is quantitative: the constant increase in the number of cases.

The near collapse, like a house of cards, has been created by the dramatic rise in case-load brought by the increase in the ECJ's powers introduced in the Amsterdam Treaty. These problems are likely to get worse with the enlargement of the EU.

Obviously the volume of cases pending has an effect on the length of time it takes to deal with each of them. For example the time taken to deal with preliminary reference was 17 month in 1988 and in 1999 it is 23.1 month.

Judgements cannot be delivered because of the lack of resources in the translation service. Each sheet of paper has to be translated into all Member States languages, this can cause a delay of several months.

The effectiveness of the preliminary reference procedure depends on the time the Court takes to give a ruling. If the Court takes too long national courts will be put off from asking preliminary questions.

There now exist a couple of proposals how to solve these problems:

One of them is to filter appeals from the Court of First Instance to the ECJ because, at present, 20% to 25% of the CFI's decisions are appealed. Reducing appeals will reduce caseload. The policy on granting permission to appeal might be tightened. Another way to decrease case- load is to set up a tribunal to handle disputes involving employees of the Member States. At present 1/3 of all cases which are brought to the CFI are employee issue cases. If the appeals for employee matters were dealt with by a specialised employment board instead of the ECJ then this drain on ECJ resources could be diverted. Clearly this would involve a fundamental change to the Community structure.

The system of references for preliminary ruling is also being questioned. These cases are about 50% of the cases the ECJ has to deal with and increased by roughly 10% in 1998, compared with the previous year, and by more than 85% compared with 1990.

One way of reducing the increase in preliminary ruling is to limit the power of the national courts to make references to the ECJ. A second measure might be an introduction of a filtering system which allows management of the work load by classifying cases into top priority and lesser priority cases. Another possibility might be to refer the preliminary ruling proceedings to the CFI.

There are obstacles to reform; One obstacle is ECJ policy that he number of judges should not be increased. This conflicts with council policy which is to increase the number of ECJ judges inline with the number of Member States and give judges nine-year non-renewable term of office.

Despite the possibilities discussed above there is no deadline for reform and nor was it dealt with as an urgent issue during the French Presidency. So it is unclear when and how reform will take place or how radical and effective it will be.

It is doubtful that all 15 Member States will agree to propose a radical reform which solves the problem effectively. It is more likely that only minor changes in the core of the judicial system of the EU will be established and that they will be slow. One may well question whether the ECJ can do its legal work properly in the future or if it will collapse under the heavy weight of all the upcoming cases.

8. Another possibility?

The problems of the Court are not exceptional; they are the same as those faced by national courts only at Community level.

Abbildung in dieser Leseprobe nicht enthalten

Another possibility to decrease the workload is to enlarge the ECJ. In the EU exist 15 national High Courts with an average member of 12 judges. It can therefore be foreseen that the volume of cases referred to the ECJ might become too much at any one time. A solution could be to increase the number of judges to 45 (3 x 15). They could form 9 chambers of 5 judges each.

Source: see Chapter 9

One of them would be the head who represents his chamber at a higher level. This is the communication level where all the head judges can exchange their opinions and standardise EC law. This measure will distribute referred cases across the nine chambers and thereby more capacity is made available. Even if the workload is becoming greater it is easy to appoint 15 more judges and as a result to establish three additional chambers.

To shorten the time before a judgement is given, one might consider a reduction in the number of official languages from 11, as is the case now, to one. In business everybody who wants to work or trade on an international level has to speak English. So it might be a good idea to drop all Member State languages except for English. This would maximise and free resources which could then be used more efficiently.

9. Bibliography


Craig and de Búrca (1998), EU Law - Text, Cases and Materials, 2nd edition, Oxford University Press, Oxford

Moussis, N (1997), Access to European Union, 7th edition, Euroconfidentiel, Genval

Cuthbert, M (2000), Nutshells - European Union Law, 3rd edition, Sweet and Maxwell, London

Kent, P (2000), Nutcases - European Union Law, 2nd edition, Sweet and Maxwell, London


Anonymous (1999), `The future of the judicial system of the European Union', Luxembourg

Anonymous (2000), `The EC Court of Justice and the Institutional reform of the EU', Luxembourg

Elwes, S (2000), `European Community Law', Luton


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The European Court of Justice and its activist approach
University of Bedfordshire
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Michael Giffels (Author), 2001, The European Court of Justice and its activist approach, Munich, GRIN Verlag,


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