Explain what is meant by judicial activism. Was activism on the part of the ECJ ever justified and is it a feature of the ECJ's current jurisprudence? Use relevant case law to illustrate your answer. "Judicial agencies have a peculiar power to enlist obedience and impose control, essentially . . . because they meet a deeply felt and constant need for trustworthy neutrals. "1 This quote is an appropriate starting point for a discussion on judicial activism. It may explain why in many parts of the world today courts are becoming more important political actors, making more important policy decisions as they gain more power and respect.
In the words of Lord Diplock: "courts by the very nature of their function are compelled to act as legislators. "3 Tate and Vallinder refer to the growing use of judicial activism around the world as the "judicialisation of politics. "4 Generally, judical activism refers to the willingness of the courts to create public policy when the political institutions of government either cannot or will not. In other words, it is "[the] transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts.
"5 However, the crucial question is whether the court, by assuming for itself these powers, is going beyond its judicial capacity? The main focus of this discussion will be in relation to the European Court of Justice, which seems to have taken an extremely activist approach in its attempts to create a constitutional foundation for the European Union. 6 It is a court of extraordinary power and yet this power seems to be underestimated or unrecognized.
As Stein has so aptly stated: "tucked away in the fairy Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. "7 Therefore, it seems that the European Court of Justice is pursuing the policy of furthering European federalism but it has been suggested that 'the Court promotes the interest of the Community to the detriment of the interests of the Member States. '8 However, it must be noted that a cautious approach was adopted by the court in Werner9 and in Leifer10 when they gave a broad interpretation to the common commercial policy and the principle of proportionality.
This may suggest that the Court does not have a desire to promote integration at all costs. It must be remembered throughout this discussion that "the informed impartial choices open to judges, especially in matters of constitutional importance, are often difficult. "11 On the one hand, the Court is criticized for being judicially active by developing the principle of direct effect and it is also criticized for limiting the retrospective effect of its judgment in Defrenne. 12 It is, therefore, not clear when a decision ceases to become 'passive' and becomes 'active'.
If one looks at the English courts, it is clear that they have been influenced by the 'new' approach of the European court. This was discussed in Stock v Frank Jones (Tipton) Ltd13 by Viscount Dilhorne: "It is now fashionable to talk of a purposive construction of a statute, but it has been recognized since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it. "14 Lord Denning favours this purposive or teleological approach of interpretation as he believed that it brings our method of interpretation into line with those adopted by the European Court.
He compared the two methods in Bulmer Ltd v Bollinger SA:15 "But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute… " Therefore, Lord Denning submits that the gaps inherent in the Treaty have to be filled in by the judges and the English courts must now deduce "from the wording and the spirit of the Treaty the meaning of the community rules.
" The English courts, though, are not familiar with this 'European way' since the judges hold that they have no power to fill the gap. To do so would be a "naked usurpation of the legislative function… The gap must remain open until Parliament finds time to fill it. "16 This upholds our deeply entrenched notion of parliamentary supremacy. An additional marked difference between the two courts is that the European Court of justice exercises a constitutional function, which provides for a different balance of power between the legislature and the judiciary from that known to English law.
This type of jurisdiction which the Court of Justice exercises appears to lend itself to increased judicial activism because both the Member States and the institutions are bound by the constitutional principles developed by the Court when they act within the Community sphere. However, some commentators have argued that 'the debate on judicial activism fails in effect to capture the underlying rationale of judicial contribution to the building of a "constitutional order of States. "'17 "The Court's constitutional role is enormous".
Parallels have been drawn between the European Court and the American court, the latter of which seems to have survived all attacks on its constitutional role and today, its prestige in American society is enormous and its authority is largely unchallenged. This may suggest that the European Court will follow suit but one may question whether this a safe position for justice within the European Member States. The Court's current omnipotence may extend beyond its original authority set out in Article 164 of the EEC Treaty and may lead to an 'usurpation of power.
However, Tridimas doubts whether 'comparison with other legal systems where an identical power does not exist are conclusive, since the Community is a new legal order with distinct characteristics. '20 It is relevant that although the judges in the United Kingdom show reluctance to part from their traditional methods, they have not yet refused to implement any ruling of the European Court of Justice. 21 Joseph Weiler has argued that the national judges of the Member States see the supremacy of the European Court's decisions as a way to increase their own power.
Where the Treaty provides little or no guidance on issues raised before the Court, consideration is given to the need to ensure the effectiveness of Community law. In addition, guidance is sought from the unwritten general principles of Community law. It has been submitted that 'both are legitimate techniques and do not lead the Court to exceed its judicial function. '23 This legitimacy many be supported by the fact that both techniques are derived from the Treaty.
The case of Les Verts24 demonstrated that protection of the individual is a theme regarded as fundamental by the Courts. Dutheillet de Lamothe AG in Internationale Handelsgesellschaft also manifested this25: "The fundamental principles of national legal systems… contribute to forming the philosophical, political and legal substratum common to the Member States from which through the case law an unwritten Community law emerges, one of the essential aims of which is… to ensure the respect of the fundamental rights of the individual. "
