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The Role of the European Court of Justice in the European Union Policy-making

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            The name European Union (EU) was ratified on the month of November of 1993 through the Treaty in Maastricht, Netherlands, otherwise known as the Maastricht Treaty. This is a treaty between the EU and the European Community (EC), a confederacy of European countries both political and economic. The EU is composed of fifteen member states including Austria, Belgium, Denmark, Finland, France, Germany, Great Britain, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and Sweden (Pollack, 2000:520 ; Columbia Encyclopedia, 2004:16140).

            The primary core of the EU is the EC. The EC is initially in reference to the group of countries in Western Europe that cooperated in three treaty organizations namely, the European Coal and Steel Community (ECSC), the European Economic Community (EEC), and the European Atomic Energy (Euratom). These organizations were consolidated in 1967 subjecting it to a governing body with representations from its member states. Four main divisions were made, the European Commission (formerly the Commission of the European Communities), the Council of the European Union (formerly the Council of Ministers of the European Communities), the European Parliament, and the European Court of Justice (Pollack, 2000:520; Columbia Encyclopedia, 2004:16140).

The concentration of the organizational offices of the EU is located in Brussels, Belgium. This is where the headquarters of the European Commission is found where it fulfills its executive and legislative functions. In preparation for the monthly sessions in Strasbourg, France, this is also where they committees organize themselves.

The EU also has an extended set of branches including the Court of Auditors (functions for the overseeing EU expenditures), the Economic and Social Committee (consulted concerning matters on labor, employers, farmers, consumers, etc.), and the European Council (highly influential body comprised of government heads of the member nations and the president of the Commission) (Pollack, 2000:521; Columbia Encyclopedia, 2004:16140).

            The EU is an institution based on treaties defining and managing the political and economic framework among member states. It formation commenced after the costly damages during the second World War through the signing of six charter nations, Belgium, France, Germany, Italy, Luxembourg, and the Netherlands. Through agreements on the economic integration in matters concerning production of coal and steel, trade, and even nuclear energy, the primary vision of the union is for the peoples of Europe to achieve a closer union and prevent another impetus for a third World War (Ahearn, 2002:1).

The fall of communism across central and Eastern Europe brought the European nations closer. In 1987, the creation of a stronger single internal market was further rectified by the amendment of the EC’s treaties through the Single European Act. It is completed with the Four Freedoms of movement of goods, services, people, and money. This allowed for a consolidated defence against environmental and security threats and it also allowed for a more convenient transit of people. Through the Schengen Agreements, named after a town in Luxembourg, people are allowed to freely cross borders and travel anywhere they please. Communication enhancements became possible and education in different nations was more accessible.

A central banking system for the European Union was included in the ratification of the European Union in 1993 that entailed a common currency for all member states that would serve in replacement to individual national currencies. Hence, the proposal of the Euro currency to be used in the European Monetary System came about. In 1999, 11 European Nations (which excluded Great Britain due to importation disputes on their beef products) established a European Central Bank and the currency came into circulation in 2002 (Pollack, 2000:521; Columbia Encyclopedia, 2004:16140).

In 2003, the EU welcomed the addition of ten other European nations including Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Cyprus, and Malta. The EU expanded both in terms of population and geographic scope (20% and 23% respectively). In 2007, Romania and Bulgaria gained admission while Turkey’s membership is still in the process of negotiations (Pollack, 2000:521; Columbia Encyclopedia, 2004:16140).

The EU as a Policy-Making State

            One of the primary features of a nation state is its ability to formulate and implement policies on their public for the purpose of societal governance. It is however still debatable whether the EU is a full-fledged state. Even though the EU is certainly a political system that characterizes a state, it does not however holds the monopoly on the legitimate use of coercion or enforcement that is common among states. But what cannot disputed is the fact that the EU possesses the policy-making attributes of a modern country across an increasingly broad coverage of policy sectors and it does have a certain degree of coercive power in enforcing its policy decisions.

Upon its inception during the Maastricht Treaty, it has received criticisms on its alleged excessive policy-making role. It is said to over-regulate both the economic and the social life of its member states. However, tides have changed during the 1990s when not only the quantity of the EU laws passed were challenged, but quality was also placed in question. It was noted that the Treaty in Amsterdam contains an entire title of on the quality of the EU legislation. It is therefore asserted that ‘good legislation requires consultation, regulatory impact assessment, and systematic evaluation of the results achieved by European public policies. But it also requires transparency’ (Radelli, 2003:5). In general, to prevent a nation state to formulate its own set of policies is the curtailment of its sovereignty and erosion of its power as they should have the exclusive rights to make domestic policies.

It was suggested that an approximately 80% of the rules that govern trade, services, and capital within the member states’ market is controlled by the EU (Hix 1999:2-5). Therefore, the power has shifted from the national level onto the European Union. This resulted to a more complex structure of policy-making. Policies are no longer matters to be concerned at the domestic level, as the EU has encompassed its influence all over its member states. The primary defining characteristic of the union is the combination of national and European policies (Richardson, 2005:4).

            It must be noted that the European Court of Justice is very essential in the policy-making of the European Union. It supports this function of the EU through its legal co-operation. The matters of the EU are much particular when it comes to details that are often technical. Eurolegislation (a mixture of Euro-regulation and softer policy instruments) as it is mainly concerned on highly political issues such as monetary union and the establishment of a European superstate. These issues are all considered crucial and are of national interests. This function of policy-making is not a simplistic matter on intergovernmental relations. It is a complex process that involves numerous actors (Richardson, 2005:6).

            The EU basically faces multinational policy systems that reflect individual national power structures. Each member state brings to the Brussels table their own traditions of governance. The EU is therefore an enormous cauldron of policy proposals, ideas and traditions from which one set of policies must be formulated. If indeed the objective is for the integration of European states, some of the national policies will be challenged therefore the EU must somehow reconcile these differences and synthesize a policy settlement amenable to everyone.

Although the EU tries to prevent biased policy-making by making all their policy formulation consensual, it cannot be prevented that it would be imposing policies in a way or another. As a result, the minority who opposed the passing of the law are imposed on. Conflicts that would arise from such instances and decisions of the ECJ are difficult to ignore. The legislation in the EU is not symbolic nor simplistic. It matters to the entire body comprising it, filled with many actors from national governments. Therefore, the unpredictable nature of the EU policy process is quite evident (Richardson, 2001:6).

Obviously questions of power are still important. But for a host of policy initiatives undertaken in the last twenty years it is all but impossible to identify clearly who the dominant actors are. Who is controlling those actions that go to make up our national policy on abortions, or on income redistribution, or consumer protection, or energy? Looking for the few who are powerful we tend to overlook the many whose webs of influence provoke and guide the exercise of power. These webs and confusing welfare policies that have been undertaken in recent years. (Heclo, 1978:102 )

Differential Impacts of European Policy-Making

            It has always been explained that the purpose of an integrated system of policy-making among member states of the European Union is for the relational deepening, harmonization, and convergence. However, some argue that it is instead the contrary that happens. Heritier et al. (2002:1) proposed that a European policy has relative impacts across various nation states belonging to the Union. There is a differential impact among the responses of the states due to the requirements of European policies. This represents a variegated process of change, both great and small. However, the extent of this variation is highly dependent on the states’ preexisting policies and the political process in which these policies are subjected. Therefore, the adjustment of agreed policies is needed, as there is a discrepancy between the demands of national policies and defined European policy (Heritier et al., 2002:1).

Legal Integration in the European Community

            The formation of a binding legal system that encompasses all member states of the European Union is otherwise termed as legal integration. This is a result of the collaborating efforts of three decision-makers, the litigants, national courts, and the European Court of Justice.

The three bodies have a certain causal relationship that allows for the generation of demand and supply for the subjective interpretation of the European Community’s set of laws. The litigants have an economic stake due to lack of integration. Basically they are the main cause of the demand for the ruling of law and their primary recipients. But this demand is only effective when national courts subject themselves to the ECJ, which is considered the source of ultimate supply (Tridimas and Tridimas, 2001:1).

The community law has evolved throughout the years, and this transformation is highly evident in the change of international treaties into a supra-national constitutional system of governance. This therefore implies that member states would have to give up a substantial part of their sovereignty. The Treaty of Rome did not include the formation of a body that would function similar to a Supreme Court that would be tasked to hear appeals on cases among national courts.

Since the European Community is not a federation and instead a supranational entity, it is natural that it has an open-ended integrative potential. But those who authored the Treaty wanted to ensure that there is a uniform enforcement of the Community law among member nations. Therefore, it necessitates the security of the rule of law and the promotion of equal treatment among citizens. With this standard interpretation of law, the community can prevent the distortions of competition and promotes economic efficiency (Tridimas and Tridimas, 2001:2).

            This said unifying jurisdiction is assigned to the European Court of Justice through the Article 234 of the European Union. This empowers the ECJ to decide on the interpretation and validity of community law. ‘Article 234 states that, where a question of Community law is raised before a national court or tribunal, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to provide a ruling.

This article provides that, where a question of Community law is raised before a national court against whose decision there is no judicial remedy, that court must bring the matter before the ECJ. Thus, Article 234 draws a distinction between lower national courts, which have a discretion to make a reference, and national courts of final instance, which are under an obligation to refer’ (Tridimas and Tridimas, 2001:2).

The European Court of Justice

            The European Court of Justice (ECJ) is the counterpart of a Supreme Court in the European Union. It is responsible for decision-making concerning legal matters under the founding Treaties. The ECJ may entertain cases from the Commission, the European Parliament, member governments, nationals of member states, or foreign entities. It has the mandate to interpret the provisions indicated in the treaties signed by the member states and to implement the policies agreed upon by the EU nations (Ahearn, 2002:5).

            This court has a crucial role in the policy-making decisions of the European Union especially on matter in the assignment of powers between the Commission and member states in different issues areas. It resolves the issues of competence in which it clarified that the trade in goods is under the exclusive competence of the EU, however, investments do remains within the competence of the member states. In 1994, the request of the Commission for the extension of competence for goods to services and intellectual property was rejected by the ECJ. By ruling that such areas of mixed competence are subjected to the principle of unanimity, the leverage of the Commission was reduced, thereby decreasing the competence of the member states during internal bargaining on the EU position (Ahearn, 2002:6).

            The ECJ passes decision on cases forwarded to it and provides the ruling to the national court. The ECJ has a deeply internalized concepts of justice also enforced by judges which reflects its own set of preferred policies. This court does not appreciate the overturning of its ruling by the political-legislative authorities, and rejection by nations’ individual courts. The cooperation of national courts is very crucial in the maintenance of the entire structure of the European Union. The ECJ does have preferences towards policies and it is independent of partisan or national interests.

This recognizes the influence and the significance of this court in the policy-making agenda and outcome of the European Union. On the other hand, in matters concerning setting of power, the ECJ cannot initiate legislation. Its only power is to rule on cases brought before it. Therefore, this results to its contribution of negatively integrated policy-making due to its primary function of removing and dismantling national restrictions to basic freedom of movement. On the other hand, its role in positive integration is that it constructs supranational rules of conduct instead of national legislation (Tridimas and Tridimas, 2001:12).

            The preliminary ruling system was transformed into a means to enforce EC law, which reflects the official autonomy of the ECJ from the individual courts of member states. The ECJ offers the empowerment of individuals and companies in challenging national laws, giving this court the privilege of pursuing its most preferred policies. This simultaneously accomplishes the reduction of its dependence to the different governments of the cooperating countries and the Commission to raise infringement cases (Tridimas and Tridimas, 2001:13).

            The autonomy of the ECJ is already established, however its practice of pursuing its own policy objectives is the next issue. Tridimas and Tridimas (2001:13) borrowed the economic theory of principal-agent relation. Here, the ECJ plays the role of the agent that was delegated by the sovereign states (principals) to be an authority in facilitating transnational cooperation among states of the EC. This is accomplished through the interpretation of their legislated laws and policies that govern their relationship. However, with the power vested on this institution in order to serve its purpose, it becomes independent and can serve its own interests by prioritizing its preferred policies than those of the principals. In practice, this takes the form of advancing pro-integration policies that would not have been the preference nor the favor of some member countries (Borras and Jacobson, 2004:202).

            Still continuing with the analogy, this institution as an agency can limit its losses through the employment of various mechanisms. There are sanctions imposed in order to minimize agency losses which includes budget cuts, retrenchment or dismissal of personnel, non compliance with the decision of the agency, and the introduction of a novel legislation with the purpose to overturn the decision of the agency and even a change of the charter of the agency.

However, there are limitations on effectiveness of the enforcement of these sanctions relative to the ECJ. Examples are that the budget cuts could lead to the undermining of the institution’s adjudication role. Another is that national governments are not granted the power to dismiss judges who are appointed for terms of six years. In cases when a government does not comply with given policies, it is singled out as a non-cooperative player. And most of all, reversal of the decision of the court is definitely not an option for member nations (Tridimas and Tridimas, 2001:14).


Responsibilities of the Court

            Since the primary function of the Court of Justice is to attend on cases brought before it, the following are the most common types encountered by the ECJ: First is the preliminary ruling procedure; next is the proceedings for failure to fulfill an obligation; then there are actions for annulment; and last is actions for failure to act. The preliminary ruling procedure is necessary to prevent the subjective interpretation of the EU law by the different courts across member states. In cases of doubt on the part of the national court regarding the interpretation or validity of an EU law, this necessitates the court to solicit the advice of the Court of Justice. Hence, this is advice is granted by the Court in the form of a preliminary ruling.

When a member nation fails to follow what was agreed upon in treaties and what was stated in the EU law, then the Commission can initiate the proceedings for failure to fulfill an obligation. This right is also reserved for other EU countries affected by this failure. In both cases an investigation on the allegations to the accused are conducted where a judgment is based upon. If a member state is found guilty or at fault, then measures against it are taken to address the issue. Fines can be imposed on member states that do not comply with the court’s judgment. Actions for annulment are done in cases when any of the nations that belong to the Union, the Commission, or Parliament have the belief that a certain law of the EU is illegal.

A petition to annul the law can be submitted. This case is also used by private individuals in order to protest a particular law and cancel it due to direct and adverse effects on them. The court may declare that a law is null and void in cases when the law is not properly adopted or does not comply with the Treaties. The fourth most common case is actions for failure to act. Under various circumstances, the Treaty allows and even required the European Parliament, the Council and the Commission to make decision. But in the event that they fail to fulfill this function, the member states, other institutions and even individuals or companies can file a complaint to the Court against this failure and officially record this action (European Union, 2007).


Organization of the Work Done by the European Court of Justice

            The registry accepts the cases filed by complainants to which specific judge and advocate-general are both assigned. There are generally two stages in the process: the written and the oral phase. The written stage involves the submission of written statements subjected for the judge’s review in order to draw a summary report to provide a background to the case. The oral phase is done through a public hearing. Relative to the importance and complexity of the case, the hearing could be conducted in the presence of three, five, 13 or even of a full court. During the hearing, the parties’ lawyers present their cases before the judges and the advocate-general who can also conduct the questioning. The advocate-general can then express his or her opinion.

After this, judges conduct a deliberation and delivery their verdict. This does not necessitate that the advocate-general’s opinion is to be followed, it is only considered. Since the year 2003, advocate generals are only required to give their opinions in instances where a new point of law is raised. The judgment passed by the Court is a result of a majority’s decision and is pronounced at a public hearing. Opinions of dissent are not welcomed nor expressed and decisions are published on the day that the verdict is passed (European Union, 2007).


The European Court of Justice and Individual Legal Systems

            There is evidently a case of diverging national and European legal systems. This is a complicated matter as the task of establishing a common set of principles adaptable to any member state is at and. The principles are needed to be in accordance to the incorporation of all the legal systems of the states admitted into the institution. It is rather difficult to compare which administrative law is to be used and which is not. Despite the complex nature of this matter, the ECJ has been successful in reconciling the different set of policies among states. A case law demonstrates that the Court was able to accomplish the injection of specific ideas and principles of British legal concepts into the European administrative law.

There is a synthesis common law standards and principles of continental administrative law. Another case demonstrated that there is a middle ground in settling legal impediments. The well-known AM-S case encountered by the court was a matter of an anti-dumping case on May 7, 1991. The argument of “estoppel” derived from the Anglo-American legal tradition has not direct equivalent in Europe. The ECJ responded by synthesizing the legal argument of estoppel into preexisting legal concepts and notions at the community level. This evidently illustrates that the ECJ has every intention of adequately integrating concepts of national law and use this for the promotion of the most appropriate standard of civil rights’ protection and procedural guarantees in Community Law (Schwarze, 1992:687).

            Another controversial case faced by the ECJ is the annulment of data deal with the United States. On May 2006, the Court has voided the deal between the European Union and the United States in requiring airlines to transfer passenger data to the US authorities. According to the Court, this data transfer has no appropriate legal basis, as it includes information regarding credit card details and addresses. The US claimed that this system would assist the identification of potential terrorists. Despite the decision, both EU and US officials are optimistic that a solution is available and can be found that would enable this transfer of information to push through. Demands stipulated in this proposal include the sending of European airlines to US authorities 34 items of personal information on the included passengers after 15 minutes of take-off. America threatened that it would implement fines and would not allow the landing of airlines that would refuse to comply to this agreement.

The US officials furthered by saying that in cases that the information asked were not sent in advance, the passengers would be subjected to long, therefore inconvenient, scrutiny from security checks on arrival terminals. Due to the 9/11 attacks, America has demanded a more rigorous security check by the airlines worldwide, as this attack was perpetrated through the use of hijacked airplanes as means to destroy key buildings in New York and Washington. The European Parliament however debated on the failure of the US in providing guarantees that adequate levels of data protection would be enforced and that the very process of submitting the personal information of the passengers would violate their right to privacy.

This is the reason that the European Union petitioned the European Court of Justice to annul the deal. This said argument however was not considered by the court and instead concentrated its decision through the examination of legal basis of data transfer. It argued that the EU Data Protection Directive, which was the basis of the decision made by the European Union and the European Commission in accepting the data collection, did not apply to data requested for security reasons.

Johannes Laitenberger, chief spokesperson of the European Commission, said that “the ruling ensure that there is no lowering of data protection standards, no effect on passengers, no disruption of transatlantic air traffic, and that a high level of security is maintained until 30 September. The Commission is committed to working with all parties involved to find an appropriate arrangement by that time.” (BBC News, 2006).


            The European Court of Justice is a body that is highly essential in the implementation of the agreements stipulated in the Treaties signed by member states. It is very esteemed and its power is recognized and must never be undermined. Its decisions are sought and are not contested, as it is the branch that serves to rule over disputes among concerned parties whether it be between nations, individuals, or even companies. It has a very significant role in the policy-making of the European Union member nations as it ensures that these countries would abide by what they have promised to do. It is the final court to be consulted in interpreting laws and implementing them, which consolidates a group of nations with individual identities and systems of governance.


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