ECJ takes its place in major league

Date: 14/03/1996

THE European Court of Justice (ECJ) is the ultimate EU referee. It ensures rules are respected and rights and obligations honoured.

But, as in sport, referees cannot fail to spark controversy and the Court increasingly finds itself used as a political football in the wider debate between supporters and opponents of a more integrated Union.

That buffeting is set to increase as the EU uses the imminent Intergovernmental Conference (IGC) to take stock of its health and consider changes to current practices.

Criticism of the Luxembourg-based Court ranges from allegations that it exploits its judicial authority in order to effectively make legislation, to administrative complaints that it takes too long to process cases.

These attacks - particularly when the ECJ is wrongly condemned for decisions taken by its Strasbourg neighbour, the European Court of Human Rights - annoy, but no longer surprise, the Union's highest legal authority. It has developed a thick skin after ruling on key aspects of Community law over four decades.

Francovich, Factortame, Brasserie du Pêcheur, Kalanke, Barber and Bosman are names which mean little to the average member of the public. But each has sparked off a widespread debate, led to major changes in daily life and spawned principles which member state national courts must now enforce.

They have confirmed that people can sue governments when they fail to respect EU law, prompted changes to positive discrimination measures designed to help women climb the career ladder, led to reforms in old-age pensions and caused an upheaval in professional sport.

Despite the controversy these, and other cases, have aroused, the Court's British judge David Edward argues that a lot of criticism of the ECJ is ill-founded.

“The Court suffers, in relation to the bulk of its work, from the criticism directed at a very small proportion of its work. This is not to say that high-profile decisions are not important. They are to some extent high profile because they are important. But the tendency is to give the general public the impression that the Court only deals with high-profile cases and to forget the other cases which form a majority of its work,” he explains.

One of the Court's central tasks is to police the single market. It is a function on which the institution spends a considerable amount of time, dealing with cases of extreme technicality which generate little general public interest, but are of central importance to the operation of EU rules.

“The Court is the keystone of the single market. Without a uniform interpretation and application of the single market rules, we would not have a working single market and that is not understood,” says Edward.

These cases involve dry issues like taxation, customs duties, customs classification and the free movement of professionals, but as Edward stresses: “They make the single market work and that represents at least 90&percent; of our work, the unseen 90&percent;.”

As an example of the Court's efforts to ensure the proverbial playing field is level for all players, he cites last year's ruling on German lawyer Reinhard Gebhart's ability to practise in Italy - a case which had wider implications for the freedom to provide services and the right of establishment.

A Brussels-based lawyer with extensive experience of the Court's work is equally quick to defend its record. “I feel the ECJ, of all the Union's institutions, is still the one that works most closely in line with the model devised by the original founding fathers,” he says.

Despite this defence, challenges to the Court as the supreme judicial arbiter of Union behaviour are set to continue.

The German Bundesverfassungsgericht set the pace in 1993 when the more Eurosceptical of its two chambers effectively put down a marker on the government's ability to transfer responsibilities to the Union.

Carl Otto Lenz, an advocate-general at the ECJ, disputes suggestions that the German court has issued a challenge to its Luxembourg counterpart.

“The German Constitutional Court ruling has not questioned the supremacy of Community law in the field of competence of the Community, but it has reserved to itself the right to determine what is the competence of the Community. That is a point of view I do not share and I have made my views public,” he says.

But Greek Christian Democrat MEP Georges Anastassopoulos believes the trend is spreading and recently warned that the supremacy of Community law, established as an accepted maxim over years, is now being questioned.

This trend was underlined last year by Prof Dr Paul Kirchhof, a member of Germany's Constitutional Court in Karlsruhe, who wrote: “European law is by no means always stronger than the law of the member states”. Its application, he explained, was dependent on decisions by national parliaments.

The Court, with its unique combination of diverse national styles reflecting German administrative law, French hierarchy and Anglo-Saxon oral debate, is also accused of being inconsistent in some of its judgements and of generally siding with the beneficiaries of benefit systems.

Guiseppe Tesauro, another of the Court's advocates-general, believes that the diversity of legal traditions which meet in the Court is one of its greatest strengths, with each contributing to the development of Community law.

He also counters charges of inconsistency. “We should not freeze the Court's jurisprudence in a fridge. We should respond to the changing demands of society. There are values and ideas which change, and we should recognise that. Our court room has no windows, but we must have the ability to look beyond our walls and consider the new demands of consumers and individuals. Community law is a living thing,” he explains.

While the ECJ's most vociferous critics are to be found in the UK, the Court has strong political and legal allies in many other EU countries who believe that the institution provides the glue necessary to keep the Union together.

These radically diverging views emerge most starkly in the current debate over the role of the ECJ in a host of EU conventions ranging from the Europol intelligence agency to the organisation of the Union's external frontiers.

With unanimity required to extend the Court's competencies to these areas, UK opposition continues to block a deal.

Recent years have also witnessed a visible evolution in the ECJ's relationship with the Commission, largely prompted by the work of its sister body, the Court of First Instance (CFI).

With competence for competition issues, the CFI sprung to prominence when it overturned Commission condemnation of a cartel of PVC manufacturers. The judges ruled that the decision did not 'exist' since it had not been signed by the then Commission President Jacques Delors or by the Commission's Secretary-General David Williamson.

The ruling sparked off mutual antagonism between the Luxembourg Court and the Commission, but most legal observers believe the presence of the Court has been beneficial to the Union.

“The most important thing is the CFI has had time to devote to proper control of the executive. That is a symbol of the Union growing up and maturing. Submitting the EU's executive to efficient judicial control is one of the CFI's main achievements, “ said one experienced European lawyer.