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Judicial Reach: The Ever-Expanding European Court of Justice

Before the summer break, the European Court of Justice ruled that workers who get sick on vacation were entitled to compensatory time off with pay equal to the length of their illness. The European Union’s highest court also found in favor of a Chinese firm challenging EU anti-dumping penalties in the export to Europe of a basic herbicide chemical called glyphosate, widely used by farmers; and it told a Swiss company (Lindt) that its chocolate bunny wrapped in gold foil was not sufficiently different from other chocolate bunnies to qualify as an exclusive registered trademark. Furthermore, the court agreed to the American IT giant Microsoft Corporation’s request for a reduction from 899 million euros ($1.3 billion) to 860 million euros ($1.05 billion) of a fine imposed earlier by a lower court in a complicated 2007 anti-trust case.

After years in the shadows, the Luxembourg-based, two-tier European court system—the Court of Justice (ECJ) and the General Court (previously called the Court of First Instance), as distinct from the European Courts of Human Rights in Strasbourg—has emerged as what Lord Mance, a leading British judge, calls “a central achievement of the European Union, a court with unparalleled transnational power.”

That power has grown even as the European Union has increased in size to twenty-seven member states and more then five hundred million citizens for whom the court’s rulings are not only legally binding but have precedence over national laws where the two are in conflict. Because the EU is a body based on the rule of law, the courts are a necessary judicial oversight to ensure that the member states and the institutions concerned—for example, the European Commission, the EU’s executive arm in Brussels—act in accordance with the signed treaties, most recently the 2007 Lisbon Treaty, in effect the EU constitution.

That the courts play a significant role in the European Union is reflected in their sizable caseload. Last year, the ECJ completed six hundred and thirty-eight cases, its largest number to date and twelve percent more than in 2007; but it has a backlog of eight hundred and forty-nine cases pending, or fifteen percent more than four years earlier.

The General Court completed seven hundred and fourteen cases in 2011, compared to three hundred and ninety-seven in 2007; and the court had one thousand three hundred and eight cases pending (one thousand one hundred and fifty-four in 2007). The European Union website defines the court’s function as interpreting “EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU (member) governments and EU institutions. Individuals, companies, or organizations can also bring cases before the Court if they feel their rights have been infringed by an EU institution.”

Where did all this “European law” come from? It’s something of a hybrid rooted in the EU treaties, articles of those treaties, and broader principles of law as practiced in the courtrooms of Europe. A lot of the court’s work involves cases brought by Brussels against member states for failing to comply with regulations or treaty obligations. These cases are called “infringement proceedings.” For example, the European Union’s environmental commissioner has waged a running war through the courts with the government of Italy over the mountains of uncollected trash around Naples. And last year, in a suit filed by the commission, the ECJ ordered the French government to protect the rapidly vanishing Cricetus cricetus—commonly known as the European, or black-bellied, hamster.

 

It’s hardly surprising that the growing supremacy of EU law gets grudging acceptance at best from the government of many member states, who do not always eagerly embrace the court’s rulings. The United Kingdom is often vociferous in its criticism of the court’s decisions; the Economist magazine once noted that British critics of the European court regard it as “an unguarded back door through which national sovereignty was being carted away.” In reality, however, the UK’s record of compliance with court rulings on treaty obligations over the past five years is better than that of many other nations.

A way of determining how well EU rules are implemented by a member state is to see how many times infringement proceedings are slapped on that country by the European Court of Justice. According to the ECJ’s five-year statistics (2007–2011), the court lodged twenty-three cases against Britain for failure of compliance between 2007 and 2011, but Italy tops the list with sixty-nine such actions over the same period, followed by Greece with sixty-eight, Portugal with sixty-seven, and France with fifty-two. Latvia is the only member state with a record of total compliance.

The European Court of Justice generally acts as a court of appeals, and also handles “preliminary rulings.” There is an increasing tendency for the courts of the member states to request such rulings from the ECJ when a case involves European law and seems headed to Luxembourg anyway. This shortcut to an appeal has its critics in the EU, but in 2011, such requests totaled three hundred and thirty-eight of the ECJ’s six hundred and thirty-eight cases, compared to only one hundred and seventeen actual appeal hearings. The same pattern is taking shape this year.

A typical preliminary rulings case, still pending, would be the Spanish court’s request last spring for a ruling from the ECJ on an important new addition to Europe’s existing online privacy protection laws. Called “the right to be forgotten,” the new rule enlarges people’s right to request the removal of personal data from Google and other search engines. Though the action came from Madrid, the EU court’s reply, when it comes, will of course be applicable throughout the European Union.

Cases brought by individuals tend to capture the headlines because of their David-versus-Goliath flavor. In one, the court determined that an Italian dentist who piped music in his office did not have to pay royalties for the tunes because the music was not being performed publicly. In another case earlier this year, British pub owner Karen Murphy in Portsmouth, England, decided to bypass Sky Television, the Rupert Murdoch–owned cable television company that had an exclusive contract with the Premier League—the British soccer organization—to broadcast its games in the UK, and use a cheaper Greek satellite broadcaster to show a major international encounter. The Premier League filed and won a copyright infringement suit in Britain, and Murphy was fined 8,000 pounds ($12,400). But Murphy appealed to the ECJ and had the judgment annulled. The soccer authority’s exclusive deal with Sky, the court decided, was “contrary to EU law.”

The General Court does the heavy lifting in considering new cases, with a strong emphasis on industrial issues and questions arising from the EU’s single market. Out of a load of six thousand one hundred and thirty-one cases over the past five years, the two largest categories were one thousand one hundred and ninety-four dealing with competition, and one thousand one hundred and forty-five dealing with intellectual and industrial property. Social policy cases occupied third place (eight hundred and forty cases).

One of the cases that brought the court international notice was a 2007 ruling that massively fined Microsoft for violating European anti-trust laws. The European Commission had charged Microsoft with abusing its market dominance in operating systems to shut out the competition—and fined the software giant $1.3 billion. Microsoft appealed in the European court, but the court ruled in favor of the European Commission, saying Microsoft had to pay the fine (subsequently reduced to $1.05 billion). The monopolies commissioner at the time who initiated the EU action against Microsoft was Mario Monti, now Italy’s prime minister.

 

The Court of Justice consists of twenty-seven judges, one from each member state. Most come from the judiciaries in their respective countries and a few from universities and government. Unlike in the US Supreme Court, judges don’t serve for life, but for a six-year term, with the possibility of a renewal for a second term. The mandatory retirement age is seventy-five.

Party politics are often a factor in the appointments: the EU judges’ annual remuneration package of about 250,000 euros ($325,000—compared to $223,500 paid to the Chief Justice of the US Supreme Court) makes the job a sizable plum. However, a nomination to the court by an EU government doesn’t mean automatic acceptance to the bench: first there is the hurdle of a seven-member panel of judges and legal experts that vets each nominee.

The Lisbon Treaty specifies that each candidate be tested for “independence and impartiality, juridical capability, and ability to function in English and French.” Rejections are rare and unpublicized, but not unheard-of. In recent years, six candidates are known to have been deemed unacceptable by the General Court, most recently including one from Malta, according to the Maltese press, and another from Sweden. The same vetting procedure applies to the twenty-seven-member General Court. The judges of either court choose one of their number as president (currently Vassilios Skouris of Greece for the ECJ), and a judge can be dismissed from the bench by a unanimous peer vote.

The number of judges assigned to each case depends on its complexity. Of the cases brought to a close by judgments last year, a third were heard by three judges, and eleven percent by all twenty-seven members of the court, called the “Grand Chamber.” “At which point,” says a European lawyer who appears before the ECJ, “it becomes pointless to try and work out how the court would decide, based on the individual reputation
of each judge.”

Also part of the ECJ are the eight advocates general, legal counsel who do not take part in the court’s deliberations, but who, if the case raises a new point of European law, are required to give an opinion on the case at the end of the oral hearings, before the judges retire to deliberate the case in camera. Although often followed, this opinion is not binding on the judges whose verdict is then read out in open court. Any dissent among the judges is not disclosed, and the judgment is presented as unanimous. (In theory at least, this has the advantage of not revealing to the government that appointed the particular judge whether he or she was favoring its interests, thereby leaving open the judge’s chances of a second term.)

The ECJ was originally set up under the Treaty of Paris of 1951 and its competences (areas of control) have gradually expanded under the Treaties of Rome (1957), Maastricht (1992), Amsterdam (1997), Nice (2001), and Lisbon (2007). A series of landmark cases have progressively enlarged and defined its power. The case of Van Gend en Loos v. Nederlandse Administratie de Belastingen (1963) established the principle that EU law had a direct impact on the citizens of member states and not just the states themselves, and basically gave individuals recourse to the European courts.

In Costa v. ENEL (1964), the ECJ ruled that in cases where the national law is in conflict with EU law, the latter has primacy. Costa has far-reaching consequences, but once the existence of the court is recognized by the member states, its decisions must be as well. The 1990 Factortame case successfully challenged the authority of member states’ national legislatures: the court ruled that a law passed by the British Parliament protecting fishing in British waters was deemed to be counter to the EU’s Common Fisheries Policy regulations. The 1979 ruling in the case of Cassis de Dijon (the French cordial) declared that a product approved for sale in one European country must be accepted by other countries. The case established the principle of Europe-wide standards and underpinned the creation of the European single market.

 

Has the European Court of Justice accumulated too much power? Yes, says Michelle Everson, a University of London law professor specializing in European constitutional law. A “younger, and more ruthlessly European ECJ” is “pursuing its program of the integration of Europe through law without attracting much public or even expert notice,” she wrote in the Guardian newspaper recently.

One problem, says Damian Chalmers, professor of EU law at the London School of Economics, is that the European Court of Justice functions with hardly any scrutiny of its actions. “We should be concerned with how to reduce its role rather than how to augment it,” he says. Yet the ECJ has been given a key function in the European Social Compact signed by twenty-five member states (except Britain and the Czech Republic) on March 25th of this year in an attempt to bring national budgets under control. The compact mandates a maximum debt of less than three percent of GDP, and the court is charged with imposing fines of one tenth of one percent of GDP on countries that fail to comply.

The European Commission’s high success rate in court cases has also led to criticism that the ECJ is biased in favor of Brussels and against the member states. The court, says Lord Mance, “has too much institutional investment in the development of the EU to discharge the checks and balances role successfully.” Christopher Fretwell, an ECJ spokesman, responds that the commission’s success rate is explained by the fact that “it tends to pick the fights it knows it can win.”

But the court has its defenders too. “If today there exists something called European law, with its own particular features, characteristics, and issues, all this is due to the work of the European court,” Oreste Pollicino, law professor at the prestigious Bocconi University in Milan, wrote recently. And an American law professor and an Oxford University scholar called the ECJ “an unsung hero” of European unification. The two scholars—Anne-Marie Burley (now Anne-Marie Slaughter), law professor at the University of Chicago, and Walter Mattli, an Oxford economist—paid tribute, in a joint MIT paper, to “thirteen judges quietly working in Luxembourg.” In the early days of the European Economic Community, they “managed to transform the Treaty of Rome into a constitution. They thereby laid the legal foundation for an integrated European economy and polity.”

As the judges returned in September to their modern court building in Luxembourg, they faced a caseload that included such controversial issues as granting compensation of between 250 euros and 600 euros to passengers for airline delays. But the biggest case awaiting them was a challenge of their new fine-imposing role in the European Social Compact in a suit brought by an Irish parliamentarian, Thomas Pringle. In effect, the court is being asked to declare that its own recently acquired power is illegal.

Roland Flamini is a freelance journalist and former foreign correspondent and bureau chief for Time magazine in the Middle East, Europe, and elsewhere.

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