ECJ powers face reappraisal

Date: 02/11/1995

By Rory Watson

REASSESSMENT of the powers, composition and workings of the European Court of Justice (ECJ) was not originally foreseen as being a significant item on the agenda of next year's review of the Maastricht Treaty.

Nothing agreed in 1991 expressly committed the negotiators to such an exercise five years later, apart from a general consideration “of the mechanisms and the institutions of the Community”.

But now only the most naïve would suggest that the Court will not figure more prominently in the discussions. The jury has yet to give its verdict on the kind of European Union which will emerge from the Intergovernmental Conference (IGC). But the rival arguments are already being advanced and the future nature of the Court will depend on the outcome of those deliberations.

Within the past few days, Spanish European Affairs Minister Carlos Westendorp's Reflection Group has considered the future role of the ECJ for the first time. Stimulus for that specific examination was a memorandum from the British government on the supreme legal body of the EU.

But the Reflection Group had in mind a second, more general instruction issued by EU heads of state and government at their Brussels and Corfu European summits in December 1993 and June 1994. This was to look at ways of ensuring that the EU's institutions operated more efficiently and effectively, especially in the light of enlargement.

A third consideration is the pressure in some quarters to bring elements of the Maastricht Treaty - especially some of the current judicial and home affairs intergovernmental cooperation - within the ambit of European Community law.

It is inevitable that the ECJ, which many view as the glue keeping the EU system together, will come under scrutiny and could face a searching examination of its unique role. For the first time, thought is being given to restricting the scope of the ECJ's rulings. The suggestion has been formally tabled by the UK, which is now confident that it has firmly placed examination of the Court on the future IGC agenda. London insists its objective is not to weaken the position of the Court. “The government is a strong supporter of a court with strong powers which is there to ensure fair play in a single market,” stresses a British spokesman.

The UK is suggesting limiting the impact of a judgement like the Francovich ruling, which made member states liable for damages if they breach treaty obligations. It argues that there is a clear difference between cases where member states believe in good faith they are implementing EU legislation and those where there is a “grave and manifest disregard of their obligations”, and the Francovich principle should be limited to the latter category.

Similarly, London is aiming to limit the retrospective impact of ECJ rulings, clearly indicating in the new treaty where this should apply, and favours the idea of some national time-limits. Finally, the UK has raised the possibility of some form of appeal being introduced for the first time against judgements of the Luxembourg court, although how this would operate if the appeal body were the political Council of Ministers is unclear .

Britain's approach comes as little surprise to observers given the high-profile nature of some of the recent rulings from Luxembourg and the reaction of certain Euro-sceptic politicians in the UK.

But some consider it a contradiction, given that it was actually the UK which pressed for new powers for the judges during the Maastricht negotiations, giving judges the right to levy fines when their rulings are ignored.

At the other end of the scale are those who believe the Court's competencies should be extended, particularly in areas guaranteeing citizens' human rights and justice and home affairs cooperation between member states.

The Court itself, in its restrained and carefully couched submission to the Reflection Group - tabled by its president Gil Carlos Rodríguez Iglesias - points to the dangers of law in this area not being applied uniformly. “It is obvious that judicial protection of individuals affected by the activities of the Union, especially in the context of cooperation in the fields of justice and home affairs, must be guaranteed and structured in such a way as to ensure consistent interpretation and application both of Community law and of the provisions adopted within the framework of such cooperation,” it notes.

Other, more practical considerations will face the IGC. The first will be the appointment of the judges themselves, now entrusted to EU governments.

Luxembourg, which hosts the EU institution, wishes to keep the present system. The European Parliament would like to hold hearings similar to those organised earlier this year for European Commissioners - an idea being resisted by the ECJ - while others have suggested the MEPs be given a new consultative role.

Thought will also have to be given to the number of judges if more members join the Union.

As the ECJ itself has pointed out, one judge per country would ensure that national legal systems are represented and legitimise Community justice. But if there are too many judges, it would make it difficult to operate a college, while the creation of specialist chambers could undermine the unity of the law made.

The provision that judges are appointed for six years with the possibility of renewable mandates is also being challenged as the idea of nine- or 12-year non-renewable terms is mooted.

The IGC is also being urged to consider new ways in which the Court of First Instance and the ECJ may share the growing workload, with the first possibly acting as a filter and specialising in cases which would still have the possibility of being referred to the full court.

Pressure is growing from the European Parliament to enjoy the same rights as EU governments and the Commission to bring a case before the ECJ and from the Court of Auditors and the Committee of the Regions to have limited access to the judges for the first time. The first wants the right to bring an action when prevented from carrying out audits in a member state and the second when the principle of subsidiarity is breached.

The limited changes made to the Luxembourg Court's operations under the Maastricht Treaty are only now beginning to work through the system.

A similar time-lag is also likely for any future changes, but the ideas now being canvassed indicate that in future, it is likely that individuals and institutions will have even greater access to the courts than in the past.