The Court of Justice as a Constitutional Court

13.2.2.1. The Court of Justice’s Functions as a Constitutional Court

It may be useful to recapitulate what exactly it is that makes the Court of Justice a constitutional court in the general perception. Several of the Court’s functionsare similar to those of constitutional courts, or of consti- tutional or higher law judicial review courts.81As is usual in division of powers systems, the Court resolves conflicts between the central level and the lower levels (vertical division of powers)82and within the central level between the various institutions (horizontal division of powers). In pre- liminary rulings the Court rules on the validity of secondary Community law and ensures that Community law is interpreted uniformly through- out the Community. Attaining uniformity is a function of supreme courts in general, not only of constitutional courts. Perhaps it is the system of preliminary rulings itself that is crucial in the case of the Court of Justice.

Indeed, the landmark cases constitutionalising the Treaties are all cases referred to the Court by national courts, cases sometimes of a seemingly limited importance, but containing fundamental issues of constitutional significance. In addition, and again in common with most higher law judicial review courts,83the Court has declared to be a guardian of funda- mental rights.Yet, in contrast to many of its counterparts, human rights are not the main area of concern for the Court.84

80 For the view that these issues should be included in a basic document see P Craig,

‘Constitutions, Constitutionalism and the European Union’, ELJ, 2001, 125, esp at 143–45.

The point is developed further in Part 3.

81 See M Shapiro, ‘The European Court of Justice’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) 321.

82 For instance the American Supreme Court, the German Bundesverfassungsgerichtand the Belgian Cour d’arbitrage; for a comparison between the Supreme Court and the Court of Justice see PR Dubinsky, ‘The Essential Function of Federal Courts: The European Union and the United States Compared’, Am J Comp L, 1994, 295.

83 This is true even for constitutional review courts which have not expressly been estab- lished with a view to protect fundamental rights (the Conseil constitutionnel) or only to a limited extent (the Arbitragehof).

84 The US Supreme Court’s judicial review powers are now largely exercised in the realm of the Bill of Rights. Fundamental rights cases also make out the bulk of the case load of the Bundesverfassungsgericht.

All of these functions correspond to what (federal) constitutional courts do in national systems.

13.2.2.2. The Court of Justice’s Methods

Judicial review entails interpreting and developing the law, and announc- ing, formulating or refining the rules in order to resolve cases. It is a tru- ism to state that in interpretingand applyinglegal rules in order to decide cases, any court contributes to makingthe law. This is even more so for constitutional – or higher law – review courts.85 As is the case with Constitutions, while the European Treaties may be detailed and technical in some areas, they also contain many clauses in general language.

Moreover, the Treaties are difficult to amend which gives their interpreter more discretion and the political actors less inclination to initiate amend- ment procedures. In interpreting and applying the Treaties the Court of Justice has transformed the Treaty text into a self-generating body of case law, which states what the Treaties say at a given moment in time. It has turned the Constitution into constitutional law.86

The methods of interpretation used by the Court resemble those of con- stitutional courts.87 The Court has a preference for the teleological and contextual approaches to interpretation, sometimes straining the limits of the ordinary meaning of the words. In addition, the Court frequently takes recourse to general principles of Community law which it ‘discovers’

and builds on fundamental doctrines to find new principles ‘inherent in the Treaty’. The Court has on a regular basis been under attack for being overly active and has been accused of inventing rather than interpreting legal texts.88 Of course the Court has done more than apply text. It has developed new legal rules and principles which have helped at shaping Europe. It is not an exaggeration to state that Europe would have looked quite differently without the principles of direct effect and supremacy, the

85 As pointed out by M Shapiro, ‘The European Court of Justice’, art.cit., at 323–24.

86 Above, at 324.

87 This is of course a rather general statement and I am not going to develop it further, but see for a theoretical analysis of this and related issues J Bengoetxea, The Legal Reasoning of the Court of Justice: Towards a European Jurisprudence, (Oxford, Clarendon Press, 1993); see also A Arnull, The European Union and its Court of Justice, (Oxford, OUP, 1999) Ch 14; L Neville Brown and T Kennedy, The Court of Justice of the European Communities, 5th edn (London, Sweet & Maxwell, 2000), Ch 14–15; J Bengoetxea, N MacCormick and L Moral Soriano,

‘Integration and Integrity in the Legal Reasoning of the Court of Justice’, in G de Búrca and JHH Weiler (eds), The European Court of Justice, (Oxford, OUP, 2001), 43; for a very balanced and realistic view see T Koopmans, ‘The theory of interpretation and the Court of Justice’, in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol I, (The Hague, Kluwer Law International, 2000), 45.

88 Most notoriously H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Nijhoff, Dordrecht, 1987) and P Neil, The European Court of Justice: A Case Study in Judicial Activism (London, European Policy Forum, 1995).

general principles of Community law protecting the fundamental rights of the citizens and institutional principles such as institutional balance and the duty of sincere co-operation and the like, which were not as such included in the text of the Treaty but rather ‘discovered’ by the Court.

The Court may have crossed the lines between interpretation and cre- ation;89 some of its decisions are better than others; it has been creative and activist on some occasions, conservative and restrictive in its inter- pretation of the Treaty and its underlying principles on others. Yet, the modus operandiresembles that of other courts dealing with legal issues that have important political ramifications, most notably constitutional courts.90

13.2.2.3. The Court of Justice as Guardian of Fundamental Rights

The story of how the Court developed the general principles of Community law protecting fundamental rights is well known and a lot has been written about it. A few comments are in place here. Firstly, in cre- ating for itself the role of protecting fundamental rights where such role has not expressly been given, the Court of Justice is in the company of other constitutional courts, like the Belgian Cour d’arbitrageand the French Conseil constitutionnel. These courts too were given a rather limited con- stitutional role but developed into real constitutional courts, inter aliaby developing and elaborating their role of protector of fundamental rights.

Even courts set up as judicial review courts in the context of fundamental rights are most successful in mobilising support for and legitimising their power in the context of human rights.91Courts are most audacious in assert- ing their power when they serve as guardians of fundamental rights, but the good of the cause, the protection of fundamental rights, eclipses the empow- erment of the courts. It is in the area of fundamental right protection that the review powers of courts are most accepted even in the absence of democratic legitimation. After all, who could be opposed to enhancing protection of fundamental rights? While fundamental rights as standards for review of Community action may not have altered the role of the Court of Justice dra- matically in that they merely confirmed and added to its existing jurisdiction to review Community action,92they do give it the allure of a constitutional court, and this has been picked up by many commentators. Many national

89 It is of course a matter of interpretation or taste where the line is, and therefore also to find out whether or not it has been crossed.

90 B De Witte, ‘Interpreting the EC Treaty like a Constitution: The Role of the European Constitution in Comparative Perspective’, in R Bakker, AW Heringa and F Stroink (eds), Judicial Control. Comparative Essays on Judicial Review (Antwerp, Maklu, 1995) 133.

91 See J Weiler, ‘Human Rights, Constitutionalism and Integration: Iconography and Fetishism’, International Law FORUM du droit international, 2001, 227, at 228.

92 B De Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’, in P Alston (ed), The EU and Human Rights (Oxford, OUP, 1999) 859, at 866.

courts have expressed their agreement with the fact that the Court of Justice has assumed jurisdiction in the area of fundamental rights.93

Secondly, it has often been argued that the Court’s track record as guar- antor of fundamental rights is not very impressive. The numberof cases decided in the field of fundamental rights is much more limited than, say, those decided by the German, Italian or Belgian constitutional courts. The Court of Justice has also been accused of applying a low standard of review to Community action; some have even argued that the Court is not really interested in protecting fundamental rights, but that it merely uses them to promote the supremacy of Community law,94 or that it gives greater weight to the economic value of achieving the internal market over fun- damental rights, including even the most basic right to life.95Certainly, the fundamental rights jurisprudence of the Court of Justice has not matured to the standards of for instance that of the Italian or the German constitutional courts. Yet, it should be remembered that at the outset, the drafters of the Treaties had overlooked fundamental rights completely and that the Court has developed them from scratch.

Thirdly, the fundamental rights case law of the Court of Justice has also met with the approval of the political institutions96and the Member States who have codified it at the occasion of the revision of the Treaties in Maastricht and Amsterdam. Article 6(2) EU now states that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. But the Member States have at times hampered and obstructed the fundamental rights case law of the Court of Justice: it was they who excluded the Court of Justice from the second and third pillar in Maastricht and left those areas without a real and effective judicial review at the European level.97In the absence of a real judicial protection from the Court of Justice, the question will arise sooner or later whether it must instead be offered by the national courts or by the Strasbourg Court of Human Rights.98With respect to accession to

93 Examples are Conseil constitutionnel, decision n. 92–308 DC of 9 April 1992, Treaty on European Union (Maastricht I), Oppenheimer, The Cases, 384, at 390; the position of the Bundesverfassungsgerichthas varied over time. Its most recent position is that the protec- tion offered by the Court of Justice is sufficient, Bundesverfassungsgericht, decision of 7 June 2000, EC Regulation on Bananas, BverfGE 102,147; in Solange IIthe case law of the Court of Justice was the reason for the Court to put on hold its power of review of Community law, even if in Solange Iit seemed to require the introduction of a European Bill of Rights.

94 Eg.J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’, CML Rev, 1992, 669.

95 DR Phelan, ‘Right to Life of the Unborn v Promotion of Trade in Services: The European Court of Justice and the Normative Shaping of the European Union’, 55 MLR, 1992, 670.

96 Already Joint Declaration by the European Parliament, the Council and the Commission on Fundamental Rights of 5 April 1977, [1977] OJC103/1.

97 Seeeg S Peers, ‘Human Rights and the Third Pillar’, in Ph Alston (ed), The EU and Human Rights (Oxford, OUP, 1999) 167.

98 This question will be discussed further below.

the European Convention on Human Rights, the decision of the Court of Justice that the Communities could not, under the Treaties as they stood, adhere to the Convention may raise eyebrows, but the Member States did not mend that defect by adding a provision to that end in the Treaties.

Fourthly, by treading on the area of fundamental rights the Court enters one of the main fields of action of the national constitutional courts. It is a generally accepted theory that the Court introduced fundamental rights as general principles of Community law in order to convince the national courts, mainly the German and Italian constitutional courts, to embrace unconditional supremacy of Community law. At the end of the day, the constitutional courts have enticed the Court of Justice to develop into a con- stitutional court in the context of fundamental rights.99With the introduc- tion of the Court to the area of fundamental rights protection, the threat of a positive conflict of jurisdiction transpired, with both the Court of Justice and the constitutional courts possibly claiming jurisdiction in a particular case, and it is likely that there will be divergences of interpretation of rights and levels of protection. As said, a constitutional–constitutional dialogue has inbuilt conflictual elements. No real and lasting conflicts have occurred in practice, with either or both sides yielding in the end.100

A final remark concerns the way in which the Court of Justice approaches the main European codifications of fundamental rights, namely the ECHR and the newly adopted EU Charter on Fundamental Rights. The ECHR was for the first time mentioned expressis verbisby the Court in the Noldjudgment of 1974,101and is now considered as having special significance as a source of inspiration for the formulation and def- inition of the general principles of Community law, whose observance the Court guarantees.102Reference to the provisions of the ECHR is now stan- dard. It was thus inevitable that divergent or inconsistent interpretations between the two European Courts would emerge.103Legally, the Court of Justice is not obliged to follow the interpretation of the European Court of Human Rights. Indeed, the Community, and the Union for that matter, are

99 In fact, in Solange Ithe BVerfG still required the adoption of a European codified cata- logue of fundamental rights, the substance of which would be reliable and unambigu- ously fixed for the future in the same way as the substance of the German Basic Law and which would be adequate measured by the standard of the German Constitution, see Bundesverfassungsgericht, decision of 29 May 1974, Internationale Handelsgesellschaft (Solange I), 37 BverfGE 271, Oppenheimer, The Cases, 419, at 447–48. The BVerfG possibly did not expect the ECJ to come up with fundamental rights itself, but so it did. The BVerfG approved of that step in Solange II.

100See egthe Irish abortion issue, discussed below; and the German bananassaga.

101Case 4/73 Nold v Commission [1974] ECR 491; see also Case 44/79 Liselotte Hauer v Rheinland Pfalz[1979] ECR 3727.

102So for instance Case C–299/95 Friedrich Kremzow v Austrian State[1997] ECR I–2629, at para 14.

103D Spielmann, ‘Human Rights Case Law in the Strasbourg and Luxembourg Courts:

Conflicts, Inconsistencies, and Complementarities’, in Ph Alston (ed), The EU and Human Rights (Oxford, OUP, 1999) 757.

not party to the Convention. In its Opinion 2/94 on Accession to the ECHR104 the Court of Justice held that the Community did not have competence to adhere to the ECHR: no Treaty provision conferred on the Community institutions any general power to enact rules on human rights or to con- clude international agreements in this field; in the absence of express or implied powers for this purpose, the Court also analysed whether Article 235 of the EC Treaty might be used. The Court gave a conveniently lim- ited application of the provision, also in the light of the Maastricht deci- sion of the Bundesverfassungsgerichtrendered not long before, which had criticised the extensive use of that provision in the past, and stated that it could not serve as the basis for the accession. Such would amount to an amendment of the Treaty without following the appropriate procedures, and furthermore, did not appear necessary after all. The Opinion was heavily criticised and many commentators accused the Court of seeking to escape the supervision of a higher court.105Indeed, before that time, no reference had been made to the case law of the Strasbourg Court, which is the flesh and blood of the Convention,106 and the Court of Justice seemed to develop its own autonomous fundamental rights case law.

However, the Court of Justice has, possibly as a reaction to the fierce com- ments on Opinion 2/94,107made references to the case law of the Court of Human Rights.108 In recent cases, it has stated that for the purposes of determining the scope of general principles, regard must be had to the case law of the European Court of Human Rights, and that it may have to adjust its case law to align with decisions of the Strasbourg Court.109

With respect to the European Charter of Fundamental Rights solemnly proclaimed by the European Parliament, the Council and the Commission at Nice in December 2000, there is a striking discrepancy between the Court of Justice on the one hand and the Court of First Instance and sev- eral Advocates General on the other. So far, the former has never made any reference to the Charter, while the latter have on several occasions.

Obviously, the Charter is not a legally binding document. One British

104Opinion 2/94 Accession by the Community to the ECHR[1996] ECR I–1759.

105See e.g. P Wachsmann, ‘L’avis 2/94 de la Cour de justice relatif à l’adhésion de la Communauté européenne à la Convention de sauvegarde des droits de l’homme et des libertés fondamentales’, RTDeur, 1996, 467; L Mathieu, ‘L’adhésion de la Communauté à la CDEH: un problème de compétence ou un problème de soumission?’, RMUE, 1998, 31.

106So B De Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’, in Ph Alston (ed), The EU and Human Rights (Oxford, OUP, 1999) 859, at 878.

107Above, at 878.

108The reverse is true also: in European Court of Human Rights, decision of 24 September 2002, Posti and Rahko v Finland; where the ECtHR referred to the case law of the ECJ as an addi- tional argument.

109Case C–94/00 Roquette Frères SA v Directeur général de la concurrence, de la consommation et de la répression des fraudes [2002] ECR I–9011; Joined Cases C–238/99 P, C–244/99 P, C–245/99 P, C–247/99 P, C–250/99 P to C–252/99 P and C–254/99 PLimburgse Vinyl Maatschappij (LVM) and Others v Commission [2002] ECR I–8375; see also Case C–270/99 Z v Parliament[2001] ECR I–9197.

Minister was reported saying that for a lawyer to cite the Charter before the Court would be like coming to the Court with a copy of The Beano(a children’s comic).110And yet, the Court of First Instance has been willing to cite the Charter as a source of inspiration, or as proof of the existence of a common or general principle,111 and so have several Advocates General.112 The Court has opted to ignore the Charter. It consistently

110See FG Jacobs, ‘Human Rights in the European Union: the role of the Court of Justice’, 26 ELR, 2001, 331, at 338.

111 Case T–211/02 Tideland Signal Ltd v Commission[2002] ECR II-3781 (Art. 41 of the Charter, right to sound administration); Case T–177/01 Jégo-Quéré et Cie SA v Commission[2002]

ECR II-2365 (Art. 47 of the Charter, right to an effective remedy for everyone whose rights and freedoms guaranteed by the law of the Union are violated); Case T–54/99 max.mobil Telekommunikation Service GmbH v Commission[2002] ECR II-313 (Art. 41 of the Charter, the right to sound administration).

112AG Léger in Case C-353/99 PCouncil v Heidi Hautala[2001] ECR I-9565 (Art. 42, right of access to European Parliament, Council and Commission documents): ‘Naturally, the clearly-expressed wish of the authors of the Charter not to endow it with binding legal force should not be overlooked. However, aside from any consideration regarding its leg- islative scope, the nature of the rights set down in the Charter of Fundamental Rights precludes it from being regarded as a mere list of purely moral principles without any consequences. It should be noted that those values have in common the fact of being unanimously shared by the Member States, which have chosen to make them more visi- ble by placing them in a charter in order to increase their protection. The Charter has undeniably placed the rights which form its subject-matter at the highest level of values common to the Member States’; see also Opinion of AG Tizzano in Case C-173/99 Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) v Secretary of State for Trade and Industry[2001] ECR I-4881, at marginal numbers 27–28: ‘Admittedly, like some of the instruments cited above, the Charter of Fundamental Rights of the European Union has not been recognised as having genuine legislative scope in the strict sense. In other words, formally, it is not in itself binding. However, without wishing to participate here in the wide-ranging debate now going on as to the effects which, in other forms and by other means, the Charter may nevertheless produce, the fact remains that it includes statements which appear in large measure to reaffirm rights which are enshrined in other instruments. In its preamble, it is moreover stated that ‘this Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on European Union, the Community Treaties, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights. I think therefore that, in proceedings con- cerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved – Member States, institutions, natural and legal persons – in the Community context.

Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right’. See also AG Jacobs in Case C-377/98 The Netherlands v European Parliament and Council (Biotechnology)[2001] ECR I-7079 (Art. 1, right to human dignity) and AG Jacobs in Case C-50/00 PUniún de Pequeủos Agricultores v Council[2002] ECR I-6677 (Art. 47); AG Jacobs has also expressed his views extra-judicially, see FG Jacobs, ‘Human Rights in the European Union: the role of the Court of Justice’, 26 ELR, 2001, 331. While he admitted that there was no real need for the Charter, and that it may at times be misleadingly for- mulated, he did see it as a useful instrument, providing a convenient point of reference to identify the rights, to give them a lapidary formulation, and to set out the permissible limitations, and being more up to date than the ECHR.