No place for the private citizen

Date: 23/01/1997

IT IS a truism that the European Union suffers from a democratic deficit.

Nevertheless, is there sufficient judicial protection against Union interference in our economic lives? Do the Courts in Luxembourg the European Court of Justice and, since 1989, the Court of First Instance take individual rights seriously, or do they simply promote the vague notion of 'Community interest'?

Even raising these questions is considered heresy by those for whom 'Europe' has become a worldly religion. However, since the judicial branch of the EU government is perceived to be independent, legal criticism is the only admissible form of control.

The first shortcoming of the Courts is that, because of their European aura, they are the recipients of less criticism than courts in any national system that

I know. Their decisions constitute authority; this authority is interpreted, summarised or distinguished but seldom rejected outright.

So what are the deficiencies of the European Courts?

Difficulties begin with access to them. As a rule, an enterprise cannot act against 'Community interference' unless that interference occurs by way of a decision addressed to that organisation.

Where the EU interferes in any other way, for example by granting benefits to competitors or by market regulation, the Courts will not usually hear the enterprise's case.

This stubborn and decade-long practice probably stems from fears that European integration would otherwise be hampered, and that the institutions should not be intimidated by actions brought by those ultimately concerned.

The Treaty of Rome and the Courts favour actions being taken by member states and by the institutions. Member states, it is said, should take the interests of their citizens under their wing.

However, this approach denies a fundamental legal maxim, namely that every person with whom the government interferes should have an independent right to be heard.

It is no excuse to refer such people to the national courts. The EU has made it a dogma that these courts have no power to invalidate Union action. Thus, national courts can only refer preliminary questions to the ECJ. However, they often refuse this, resulting in plaintiffs having no right of appeal to the European Courts.

Also, the ECJ deals with preliminary questions in the abstract. Where a private party attempts to invoke its individual grievances in respect of a preliminary question, the Court will not hear it.

This situation poses certain undeniable questions, and perhaps the Intergovernmental Conference will provide answers. If the EU is to be governed by the rule of law, why should it fear private plaintiffs? Are not private plaintiffs best suited to ensure that their rights are given full force and effect? Is it not high time to widen the narrow concept of access to the European Courts?

Substantive justice is traditionally seen as the quiet and impartial weighing up of those public and private interests which the legal order deems worthy of protection.

As classic as this concept might seem, it may become a pitfall before the European Courts. Anyone wishing to assess his or her chances of success should consider for a moment that the leading ethos of the courts is 'integration through law': EU law was not intended to protect the individual, but is a tool to eliminate barriers between member states, to open markets and integrate them, and to achieve irreversible coherence among those states.

To attain this, the European Courts give Union law the fullest possible effect (effet utile), whatever the laws of the member states may be.

Furthermore, the Courts have a marked bias in favour of the institutions and, in particular, the Commission, whom they see as the driving force of integration. This is illustrated, firstly, by the fact that the Courts interpret the powers of the institutions widely. Where the treaty provides for no express power, the Courts look for an implied one. This contrasts with the principles of limited powers, subsidiarity and proportionality enshrined in Article 3b of the EC Treaty.

Next, the standards of judicial review are often extremely limited. Concerning fact-finding, where the procedural requirements are met the Courts will not easily discard the findings of the institutions.

With regard to evaluation of facts, the institutions often enjoy a margin of discretion that, except for manifest injustice, seems to have no boundaries. Agriculture and international trade are prominent examples.

Another illustration of such wide discretion is the Commission's almost unreviewable power to grant exemption from the broad prohibitions on enterprise or state conduct set out in the treaty provisions on anti-competitive practices and state aid.

Finally, even though the European Courts do not expressly say so, they have cultivated a 'political question doctrine'. They have a tendency to refrain from reviewing 'sensitive' decisions which involve complex economic issues. Again, the underlying policy seems to be that the institutions should be encouraged rather than hindered.

Where does this approach leave individuals and their rights? In my experience, substantive private interests that do not somehow coincide with integration are not easily welcomed by the bench. The European Courts focus on the 'Community interest', and often do not sufficiently weigh this against private interests.

It follows that lawyers must give their cases a European spin or lose. One example was the highly visible banana dispute where the ECJ failed to safeguard the interests of European importers trading with third countries and ignored the interests of European consumers.

The issue of citizens' fundamental rights against EU interference is a painful one. As far as I know, the ECJ has never invalidated a poor Union statute on account of a violation of fundamental rights. Often, it disposes of those rights by using standard formulations and by relying on allegations by the institutions rather than on a thorough scrutiny of the facts.

In the banana case, this kind of lip- service to fundamental rights may lead to a constitutional conflict between the ECJ and the German federal constitutional court. This clash may prove fruitful. On the continent, fundamental rights and the right of the judicial branch to determine the constitutionality of the acts of the legislator are a tradition which has been adopted from another union, the United States. Member states should not tolerate the EU casually discrediting this tradition.

In short, the main thrust of Union jurisprudence is one of deployment of governmental powers. Will it ever begin, like national jurisprudence, to develop another objective, namely to domesticate governmental powers in favour of the protection of the individual?

With the exception of physical enforcement of decisions, a court's authority can only rest on popular acceptance. The European Courts, however, are not people's courts. There is input by the lawyers and limited output by the Courts, and this output, at the ECJ, is often cast in mysterious succinctness, alienating language and condescending dismissiveness.

What is missing is a dialogue between the parties and the members of the Court, to be used as a method to establish the law (Rechtsgespräch). As the French adage puts it: La Cour tranche, la Cour ne discute pas.

Also, the European Courts do not attempt to reconcile the parties and to reestablish harmony. They never suggest a settlement. They do not follow the premise that judicial opinions should synthesise the parties' standpoints ('contraries comprehended'), where possible, and be drafted in such a way that even the losing party can accept the judgement in order to resolve the dispute.

Finally, the efforts expected from the lawyers and the length of the procedures are extensive. Actions do not dispense with the obligation of the applicant to comply with the act under attack (without a specific order, which is rare). Private parties and member states may have to spend years in conditions which may finally be determined to be unlawful.

It would be unjust to conclude without a note of hope. The Court of First Instance has adopted a painstakingly factual approach: decisions by the institutions must be based on facts and vigorous market analysis or risk being quashed. Mere allegations, fudged figures or standard EU-talk will not hold water any longer.

Also, the Court of First Instance has strengthened private parties' procedural rights. Fact-finding and fair procedure are important ingredients of impartial substantive justice.

We as lawyers should work hard to ensure that disputes with the Union are settled on this basis and not merely under the dictate of “integration through law”.

Gerrit Schohe is a partner with the German law firm of Feddersen Laule Scherzberg & Ohle Hansen Ewerwahn, Brussels.