The European Court of Justice: Imperial Yes, Impartial No

Courts do not merely interpret law: they make it. This statement holds true of all courts, notably higher courts, in all legal systems. Judges, it should be said, cannot escape making law because written laws are not always clear and unambiguous. In this sense, judicial discretion is unavoidable and part of the legitimate judicial process.

Legitimate judicial discretion, however, should be distinguished from judicial activism, which occurs when courts disregard the clear and precise wording of the relevant legal texts or resolve legal uncertainty to further certain political objectives or their own power. Courts may also be described as activist if, when faced with objective legal uncertainty, they systematically resolve such uncertainty in a specific direction only, again primarily to achieve specific political ends.

A prime example of an activist court is the European Court of Justice (ECJ), originally set up as an impartial arbiter to decide competence disputes between the EU and its member states, displays a distinct pro-EU bias in almost all its decisions. The origins of the ECJ’s judicial activism go back a long way: to the early years of the European Economic Community.

Last year EU institutions celebrated the 60th anniversary of the ECJ’s ruling in Costa v ENEL. In this early milestone case the ECJ proclaimed the doctrine of the primacy (commonly also referred to as ‘supremacy’) of Community law over national law, building on the doctrines of direct effect and binding force of ECJ case law which it had articulated only one year before, in the case of van Gend en Loos.

This year marks the 55th anniversary of the ECJ decision in Case C-11/70 Internationale Handelsgesellschaft mbH, which is the last of the ‘Big Three,’ the early transformative cases of the EU legal order. In this case the ECJ held that the doctrine of primacy applied without qualification and confirmed that, to ensure the uniform application of EU law, EU law reigned supreme even over national constitutional law.

In each of these cases the ECJ was presented with issues to which the EU Treaties provided no explicit or clear answer. Nonetheless, in all three cases, it reached an integrationist outcome which strengthened and extended the scope of EU law at the expense of national law to a point which is not evident from the treaty texts. The ECJ did so in defiance of established principles of public international law according to which i. the EU is not a superstate whose laws prevail over national law but simply an international treaty organisation, and ii. which only regulates legal relations between states and not between international organisations and natural persons.

The same holds for the ECJ’s decision in van Gend, namely, that the original European Community Treaties established a “new legal order of international law for the benefit of which the States have limited their sovereign rights.” The Community Treaties did not say so, nor does international law provide for, or authorise the proclamation, of such a new category of international treaty by the highest court of an international organisation such as the EU, which is itself a creation of a treaty between sovereign states.

The ECJ’s early decisions in Van Gend, Costa and the Internationale Handelsgesellschaft live on and inform its pro-EU decision-making to this date. The court’s activism is rooted in its distinctive ultra-flexible approach to treaty and legislative interpretation.

The general rules of treaty interpretation are set out in Articles 31(1) and 32(2) of the Vienna Convention on the Laws of Treaties (VCLT), designed to limit judicial discretion and to prevent activism.

While the VCLT is not free from uncertainty, Art 31 VCLT emphasises the crucial importance of the ordinary meaning of the treaty text, and that the words of the text must be interpreted in good faith. If this means anything at all, it must mean that purposes cannot simply be read into the text and that the text itself is the primary guide to meaning and purpose. Only if there is real uncertainty or ambiguity should other interpretative criteria be applied.

Although the EU is not a signatory to the VCLT, its member states have signed the convention. Indirectly, therefore, the EU and the ECJ too are under an obligation to follow its provisions. The ECJ has not disputed those facts.

Indeed, at first sight the ECJ’s own position appears to echo Art. 31 VCLT. The reality, however, is quite different: if the ECJ regarded itself as bound by the VCLT it would not decide as it does. Why?

First, although the ECJ frequently refers to the words used in the legal instrument it interprets, this in itself establishes little. The ECJ often cites the text without proper textual analysis. Crucially, compared to most, perhaps all other higher international and national courts, the ECJ is more likely to give priority to purposive criteria over linguistic criteria. These purposes to which the ECJ refers need not be explicit in the Treaties: they may be inferred.

Second, the ECJ extremely rarely uses historical arguments which interpret treaty provisions in the light of historical documents, the preparatory works and how they were understood when they were signed. The ECJ instead adapts its interpretation to the contemporary context.

Third, amongst the purposes the ECJ relies on are general ‘umbrella purposes’ which may not even be written into the treaty. For example, the ECJ has referred to the “spirit of the treaties” in dozens of cases. The spirit has an established place in Hegelian philosophy—but not in law. 

Fourth, any ECJ statement on the law may effectively become a precedent. The importance of de facto precedents in the ECJ’s argumentation is illustrated by the fact that there is now hardly any case in which the ECJ does not refer to at least one or two of its previous decisions. In referring back to its own case law, the ECJ implicitly also relies on meta-teleological considerations and the body of precedents itself acquires a communautaire flavour. Moreover, the appeal to precedent also lends later decisions the aura of legal objectivity, simply because in analysing a case not every relevant previous case is excavated and subjected to legal analysis.

Fifth, the ECJ does not apply a clear hierarchy of interpretative criteria. Instead, in departure from the VCLT, it adopts a variable interpretative approach which allows it to rely on purposive or literal criteria, depending on which outcome it favours. This ultra-flexible approach, combined with its meta-teleological dimension, gives its decision-making a distinctive pro-union tendency: a predisposition, in other words, to resolve legal uncertainty in favour of further integration and more EU power at the expense of national autonomy.

Finally, the ECJ operates in an extremely permissive political and judicial environment. ECJ judgments can be overruled only by the ECJ itself or by unanimous treaty amendment by the member states. In these circumstances general acceptance throughout the EU of the ECJ’s activist and integrationist approach to treaty interpretation means that the ECJ acquires a de facto power of amending and extending the EU Treaties.

The areas of substantive law where the court’s integrationism has been most evident include the free movement of persons, asylum & migration, fundamental rights & freedoms, and infringement cases. In these areas the ECJ has gradually but steadily extended the scope of Union law at the expense of national law. In other words, it has judicially amended the EU Treaties, in many cases beyond all recognition.