Rule of law or judicial activism - two perspectives on the European Court of Justice

Sammanfattning: The role and activities of the European Court of Justice (EJC) have been discussed for couple of decades now. Without any doubt the role that ECJ fulfils today in the European Community is not what it was in the beginning of its existence and perhaps not even what was strictly prescribed by the EC Treaty. In the present thesis will be firstly examined, how the present role of the ECJ, as a quasi-constitutional court was established and secondly if there are any limits for ECJ's Community and thereby also self-developing activities. At the beginning the European Community was governed primarily by international law, this view was upheld even by ECJ in case 26/62 known as van Gend en Loos, according to which ''...the Community constitutes a new legal order of international law...''. But it took only a year until the ECJ changed its opinion, stating in its decision in case 6/64 known as Costa vs ENEL in 1964, that ''By contrast with ordinary international treaties, the EC Treaty has created its own legal system...''. As 20 more years had passed, ECJ was ready to take the ultimate step - in case 294/83 known as ''Les Verts'' the ECJ declared the Treaty to be ''constitutional charter'', result of which made the ECJ the apex of the Community court system. Ever since the ECJ started to break free from the limits set by the Founding Fathers, the existence of the separation of powers on Community level has been a disputed topic. Despite of the fact, that the principle of separation of powers is the traditional structural guarantee of democracy, it is difficult to apply the same principle to the Community institutional system, as there is no clear separation between a legislative and executive branch, but rather a complex system of checks and balances between different institutions performing a number of roles. Therefore it is rather the balance of powers or institutional balance doctrine that applies on Community level. The ECJ seems to be the only institution having quite clear functions being the judicial power, at many aspects similar to the one known under the full separation of powers concept. But the ECJ has not always very keenly followed the principle stipulated in article 7 (1) of the Treaty. On the contrary, the ECJ has not in the past hesitated to arrogate itself a legislative power in judicial clothing, not expressly foreseen in the Treaties. This kind of action by the ECJ has raised questions about the legitimacy of such a judge-made higher law. Since Costa vs ENEL it has been the ECJ that chose the constitutional law road, stating in Opinion 1/91, that the Treaty, although concluded in the form of international agreement, is nevertheless the Constitutional Charter of a Community law, a legal order for the sake of which the Member States have limited their sovereign rights in ever wider fields and the subjects of which are not only the Member States, but also the individuals. This constitutional order is characterised by the twin pillars of Community law - supremacy and direct effect&semic and it is exclusively the ECJ, who has to assure the respect towards the autonomy of the Community legal order. These developments were not always very warmly welcomed by the Member States. In Germany the Bundesverfassungsgericht in its famous Maastricht-judgement indicated very clearly the constitutional possibilities and limits of Germany's participation in European integration by putting quite harsh restraints upon the future development of the European Union by its members, its political organs and mostly the ECJ. BVerfG declared, that if not acting in accordance with the powers expressly stipulated in the Treaty, the European Union and its institutions act ultra vires. Such legal acts would not be binding in Germany and even more - German state organs would be constitutionally prohibited to implement them. According to the doctrine of co-operation, the BVerfG will examine itself, whether the legal acts of the European institutions and organs, including those of the ECJ, are within or exceed the sovereign powers transferred to them, being, with respect to Germany, itself, instead of the ECJ, thereby the final arbiter of the disputes concerning the division of powers between the Community and Member States and decide, when those legal acts are ultra vires. The ECJ, while being the watchdog over the compliance with the Community law, was the first one who started to break free from the usual boundaries set by the concept of institutional balance. As a result the Member States responded with the automatic sovereignty-protection reflex. Therefore - whatever high-visions about the Europe and its role in there the ECJ may invent, in the end of the day it is for the Member States to decide about the future of Europe. There are really only two possibilities to choose from - whether to continue the integration in growing amount, in which case the goal would be ''the United States of Europe'' or to declare, that the intentions of the Member States have never been more ambitious, than co-operation under the international agreement. Until no clear decisions are made, the ECJ should keep and protect the institutional balance in Community and for preserving the respect towards itself, it should take a pace back and be again more of an interpreter than a creator, that is start dealing again more with law than politics.