The number of suggestions to negotiators of next year's Inter-Governmental conference (IGC) on the revision of the Maastricht Treaty on European Union (TEU) is increasing, and among them are strong calls for the European Court of Justice's (ECJ) powers to be curtailed.
While all recognise its great contribution to the development of a mature and accepted system of EC law, critics say the ECJ has given some judgments going beyond anything envisaged by the EC Treaty draftsmen or anticipated by the member States which signed it.
Some judgments even go against clear treaty language. Examples include the attribution of direct effect to directives, which the treaty gave only to regulations, and allowing the European Parliament to challenge acts of the council where the treaty envisaged that only the commission could do so. The ECJ has trespassed into the legislative arena and has, in effect, revised the treaty, a matter reserved for member States.
The treaties provide no means of reversing or limiting the effects of undesirable ECJ rulings, so such mechanisms should be inserted at the IGC. Others say that 'activist' and often inadequately reasoned judgments undermine the ECJ's authority and legitimacy.
Along similar lines are suggestions that the policing of the borderlines between European Community and national competence and the application of the subsidiarity principle should be entrusted not to the ECJ, but to another body, either judicial (a court of "competence conflict", raising the prospect of infinite regression) or political (made up of representatives of parliaments or governments).
However, it seems unlikely the IGC will adopt any
radical solutions. The inter-governmental 'reflection group' preparing the IGC agenda has reported that the majority of its members wish to maintain the ECJ's present functions, and extend its jurisdiction to inter-governmental matters such as international crime and terrorism. This mirrors the ECJ's paper for the IGC.
I think that calls for trimming the ECJ's powers are over-stated. All judges make law (particularly when dealing with open-textured material like the EC Treaty), and all judges make mistakes. The ECJ has delivered some poor judgments. But recently there has been criticism and the court has shown itself to be sensitive. Recent judgments are in-line with subsidiarity and States' rights. Think of the opinion on EC/member State competence for the Uruguay round agreements or the Keck judgment on free movement of goods.
While there have been landmark remedies pushing forward, others have pulled back: directives have no horizontal direct effect (Faccini Dori); national rules limiting the periods for which relief is claimed are acceptable (Johnson); and the least generous interpretation of Barber was adopted in follow-up rulings (in-line with the TEU Barber Protocol drafted by member States). Indeed the court has been severely criticised in other quarters for these interpretations. Those alarmed by its 'activist' pronouncements should take heart from this sensitivity to criticism.
The court can never satisfy everyone, but where all agree is that unreasoned judgments such as Keck are unacceptable. This tendency is probably a bigger threat to the court's authority than its so-called activism, and the remedy is in its own hands.
How to deal with the flow of cases while maintaining an open line to all national courts is the big issue. Whether the court should have power to filter references and appeals (on grounds of subject matter, not provenance), whether there should be regional or national "federal" courts or whether references could be entrusted to the Court of First Instance, are issues unlikely to be decided
at the IGC.