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Published: Fri, 12 Oct 2018

Is the judicial activism of the ECCJ justified?



The European Court of Justice (hereafter ECJ) is a primary and founding institution of the European Union. It establishes the independent judicial function necessary to guarantee, as Article 220 EC (ex Art 164)[1] stipulates, 'that in the interpretation and application of this Treaty the law is observed.' The court ensures that Union Law is enforced, it provides a forum for the resolution of disputes between the EU and member states, between the EU and private undertakings and individuals, and between the EU institutions themselves. The main formative influences on the structure, composition and modus operandi of the ECJ was the French legal system and in particular the supreme French administrative court, the Counseil.

The Court is composed of judges drawn from the member states. Article 233 EC states that the individuals chosen to serve as judges must be persons whose independence is beyond doubt (ex Art 167) and either professional judges or respected legal academics in their own country. That said, it is a golden rule that ECJ judges must not be influenced in their deliberations by their own national origins.[2] Instead, they must strive at all times for a Community approach in reaching a decision. Arguably, in terms of the context of this discussion, these judges are on occasion over-enthusiastic in their efforts to invigorate EU law and sanction or even extend a Community line of policy or regulation.[3]


Over the years since its establishment, the European Court has often been criticised for stepping outside its interpretative role and flirting with the seductive notion of policy making. However, it is submitted that since the Treaty of Rome was drawn up as a framework treaty, it was always intended that substance and meaning would be given to its provisions by the Court.[4] In On Law and Policy in the European Court of Justice, Rasmussen explained that the ECJ may indeed make policy decisions in the following situations:

1. Where the law under scrutiny accords the judges expansive discretion;

2. Where the Treaty of Rome is silent on key legal issues;

3. Where decisions departing from the requirements of the text of the Treaty are made.

Expansive Discretion

The Treaty wording may leave it to the court to decide the exact meaning and scope of a provision. For example, Articles 25 and 28 (ex Articles 12 and 30)[5] which respectively address charges and measures having effects equivalent to customs duties and quantitative restrictions on imports. What precisely constitutes equivalent is a policy matter that has been left to the court to judge.

Treaty Silence

If the Treaty is silent on a point of law that has arisen in a case it is for the court to determine what the law should be.[6] The Treaty may give guidance as to what the law should be and Costa v ENEL [7] stands as a good example. Although not expressly stated in the Treaty the inference that EC law should be treated as taking precedence over national law was developed by the ECJ in Costa and the case has been celebrated for that reason ever since.[8]

Departure from the Treaty

On occasion the Court will avoid the literal interpretation of the wording of the Treaty, typically citing a fundamental legal tenet to justify its action. This occurred in Les Verts v European Parliament,[9] where the Court reviewed the legality of an act of Parliament, although on the face of Article 230 (Ex Article 173), the ECJ had no jurisdiction to do so. It is pertinent to note that this provision has long since been amended. Given that the Community is based on the rule of law the Court ruled that neither member states nor EC institutions could avoid the scrutiny of the Court to ensure Treaty compliance. This, in the eyes of the ECJ, justified its activism. Another lucid example can be found in European Parliament v EC Council.[10]


In December 1995 the ECJ delivered a wonderful Christmas present to every European professional footballer in the form of the Bosman judgment, which found the transfer fee system of top class football to be in contravention of the free movement provisions of the Treaty of Rome.[11] The decision was a relatively straightforward one, both for the presiding Advocate General Lenz and the panel of judges to whom he submitted his Opinion. Normally, and in line with the Court's own long established principle, that would have been the end of the matter, but another question had been submitted under the Article 177 preliminary reference procedure (now Art 234) alongside the question that directly addressed the problem of the litigant.

In the 1990s a rule was embedded in European football which prescribed that no more than three foreign plus two 'domesticated' foreign players could play in European (UEFA) competitions for any club side. This had the effect of prohibiting an English team such as Manchester United from fielding more than five non-British players in relevant matches. The additional question referred by the Belgian court in Bosman, which was utterly superfluous to the resolution of the case, concerned this rule and its compatibility with EU law.

In several cases, such as Foglia v Novello,[12] which involved a fabricated dispute, Meilicke,[13] which involved an academic and artificially constructed question, the Court refused to make a ruling. Indeed, in the second Foglia case the ECJ clarified that its function under Article 177 (now Art 234) was to assist in the administration of justice in the member states where such was necessary to inform a national judgment, not to give advisory opinions on general or hypothetical questions or any questions not directly pertinent to the resolution of the case.

This line was confirmed in Dias v Director da Alfandego do Porto[14] in which the ECJ held that it would not rule where the question referred appears to be 'manifestly irrelevant' to the decision. It therefore came as a surprise when the Court blatantly broke its own rules in Bosman and leapt at the chance to rule to prohibit the 3+2 rule. Commentators, in particular academic lawyers, were quick to point out this discrepancy. However, it is submitted that it can be explained as a supreme example of judicial activism.

The 3+2 rule, while it existed, constituted a high-profile slap in the face to the free movement of worker provisions central to the Treaty of Rome and the entire Single Market project. Almost everyday the rule was discussed in one context or other on the back pages of newspapers and other sporting media all around Europe. It made no difference to Jean-Marc Bosman's case whether the 3+2 rule survived or fell, but to the ECJ and the wider European Community the significance of the banishment of such a notorious infringement was both profound and far reaching. A desire to right a manifest wrong therefore took the Court outwith its own rules and prompted it to indulge in activism of the highest order.

One conclusion that can be drawn from Bosman is that, if the ends are seen to justify the means, the highest order of activism, namely an ostensibly ultra vires act, may be endorsed and wholeheartedly applied by the Court.[15]


If there is a fault in the question posed it is that it assumes the ECJ actually exhibits true judicial activism. This is a point that might be argued by some and perhaps a slightly more objective stance would have been apposite. However, it is submitted by this commentator that the question rests on fairly safe ground in this regard. There is considerable evidence to suggest the institution is a fertile field for judicial and perhaps even a species of jurisprudential activism.

It has been observed many times since the creation of the ECJ that the institution is a political entity first and a court second. It can come as no surprise that the Court, like all the other institutions, harbours a European vision and a policy agenda. There are many examples of judgments that serve to support such a conclusion. The question posed by the title of this work is a difficult one and one that demands a largely subjective response.

To what extent is the judicial activism of the European Court of Justice justified?

There are two broad camps. One school of thought argues that the law should develop outwith the arena of politics and the prevailing socio-economic context so as to preserve the integrity of legal principle in perpetuity.[16] Of course, it is the other, more pragmatic school, that invariably wins the day. There is nothing remotely magical or mysterious about the men and women called upon to adjudicate at the European Court. Judges are people, and people are merely people, not automatons. As such they are subject to precisely the same societal pressures and influences, be they transient or all-pervading, as anyone else. Activism is an inevitable and most would argue essential component of any legal system designed to administer an ever-changing society.

It is impossible to set in stone a system of law that could adequately meet the needs of a modern human society. Given the infinite number of justiciable issues that might conceivably be generated by such an evolving community, it would be a fruitless task to attempt to draw up an all-embracing, all-purpose code for blind application in every case. Day in and day out, people need to fill in the gaps in real legal systems. Those people are judges and the mortar they employ to patch the lacunas they encounter is derived from their knowledge, commonsense and experience as lawyers and human beings. Ergo, activism is a good thing and thus justifiable per se, but then one might argue that chocolate and rock music fall into the same broad category.

As with so many other things, it is a question of degree. Activism should only be employed where equity demands a resolution that is not adequately catered for within the existing legal frame. Equity in this sense must reflect and balance the needs of the community with the needs and obligations of the individuals or parties involved in the dispute.[17] It is also important to ensure the fluent and appropriate development of the law with an eye to its future integrity and application. Moreover, it is necessary to be vigilant to guard and preserve the critical democratic imperative of the law by ensuring that it is in substance seen to be made by elected and accountable politicians rather than unelected and unaccountable professional lawyers.

The answer to the question posed must thus be equivocal and based on pragmatism rather than the sanctity of principle. The judicial activism exhibited on the benches of the European Court of Justice is justified when well-founded and equitable, and unjustified when ill-founded or unfair. In simple terms, judicial activism must be judged on a case by case basis. Generalisation in this field, as in so many others, would prove dangerous and misleading.


WORD COUNT: 2017 words (Excluding footnotes)


EC Law, Weatherill and Beaumont, Penguin Books

Introduction to European Union Law, Cairns, Cavendish

EU Law – Text, Cases and Materials, Craig and De Burca, Oxford University Press

Textbook on EC Law, Steiner and Woods, Blackstone

Law of the European Community, Fairhurst and Vincenzi, Pearson Education

Flying the Flag: State-funded Advertising Campaigns, Spink, European Competition Law Review, Vol. 18, Issue 6, September 1997

EC Law, Foster, Blackstone

Basic Community Cases, Rudden and Phelan, Oxford University Press

Law of the European Union, Kent, P., Longman

Text, Cases and Materials on European Union Law, Tillotson and Foster, Cavendish

EU Law Statutes, Sweet and Maxwell

Cases and Materials on EC Law, Weatherill, Oxford University Press

On Law and Policy in the European Court of Justice, Rasmussen, (1986)

Calling Time on the Guest Beer Provision, Spink and Milne, European Competition Law Review Vol. 18 Issue 2, March 1997


The portal to European Union law: http://europa.eu.int/eur-lex/en/

Europa: Gateway to the European Union: http://europa.eu.int/index_en.htm.



[1] The Treaty of Rome was amended and renumbered by the Treaty of Amsterdam.

[2] Supporting comment can be found in Calling Time on the Guest Beer Provision, Spink and Milne, European Competition Law Review Vol. 18 Issue 2, March 1997.

[3] For insightful analysis see EU Law – Text, Cases and Materials, Craig and De Burca.

[4] See, for comment, Basic Community Cases, Rudden and Phelan.

[5] EU Law Statutes, Sweet and Maxwell.

[6] See the lucid analysis presented in Flying the Flag: State-funded Advertising Campaigns, Spink, European Competition Law Review, Vol. 18, Issue 6, September 1997.

[7] Case 6/64 [1964] ECR 545.

[8] See, inter alia, Introduction to European Union Law, Cairns.

[9] Case 294/83 [1986] ECR 1339.

[10] Case 70/88 [1990] ECR I-2041.

[11] Case C-415/93 URBSFA v Bosman [1995] ECR I-4921.

[12] No.1 Case 104/79 [1980] ECR 745 and No.2 Case 244/80 [1981] ECR 304.

[13] Case C-83/91 [1992] ECR I-4871.

[14] Case-343/90 [1992] ECR I-4673.

[15] For views on both sides see Law of the European Community, Fairhurst and Vincenzi.

[16] See, for this perspective, Law of the European Union, Kent, P.

[17] For supporting comment and cogent analysis see EC Law, Weatherill and Beaumont.

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