English Courts

Explain what is meant by Judicial Activism. Was activism on 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. There is no clear or accurate definition of 'judicial activism' Therefore a sensible, if little inaccurate, definition of the term could be 'as the judges going beyond their powers when interpreting legislation, often treaties'. It often takes place in three situations, (1) When the court is explicitly given policy discretion to the treaty.

(2) When it 'fills' gaps. (3) When it engages in policy decision-making, which in some sense strikes against the clear language of the treaty. These consequences usually arise when there is an inability or unwillingness to act on the part of the legislative. There has been much discussion as to whether 'activism' is justifiable and more specifically there has been much concern regarding the subject in relation to European Community law, especially 'The European Court of Justice' (ECJ). The question focuses on whether it has gone beyond its jurisprudence.

The ECJ was traditionally established as a 'traditional Continental European type of administrative court' to perform major policy-making functions. The main function, as stated by Article 220 (ex 164) E. C, is 'to ensure that in the interpretation and application of the Treaty, the law is observed. ' The court deals also with 'Preliminary References' and 'Judicial Review'. The work load that the ECJ is required deal with is large, and they have little ability to know the type of case that they are later to hear, thus they cannot be selective.

The cases may be in any of the 11 official languages recognized by the ECJ. This has a great influence on the approach to interpretation. When considering Judicial Activism it is important that European interpretation is viewed as being different from common law methods. English courts rely on the literal/ordinary meanings of words, in distinct comparison European texts are usually vague. Vague because there are no definitions or glossary. This is deliberate as to allow the court to amplify on a difficult subject. Lord Denning has talked of ' treaty's totally lack precision…

they use words and phrases without defining what they mean… there are gaps and lacunas. ' Judicial Activism has been subjected to much criticism, for example, 'The Court has undoubtedly added flesh to the bearish bones of the Treaty, sometimes it has not only added flesh but clothed it to'. Therefore, on the one hand judges have been criticized for exceeding their powers and further criticized for giving in to 'countervailing forces'. Hjalte Rasmussen produced a 'test' to evaluate judicial activism and distinguish three situations of judicial interpretation:

Situation one, Judicial interpretation operates within textual limits of the disputed, and even though law making is preceded by 'a conscious or unconscious choice between options of public policy, it is unlikely to result in judicial activism'. Situation two '… pertains to silences in the Treaty on important points of law' Rasmussen concluded here that this could be suspect to 'gap filling' so may be activism. An example of this would be Case 142/77, Article 95 was extended to exports as well as imports.

Another example is the case of Case 26/62 Van Gend Loos [1963] E. C. R. 1. Where the court was asked whether Article 12 of the Treaty, which concerned the elimination of custom duties between member states might have direct effect. Thus, this Treaty is silent on the relationship with domestic law. To decide this, the court considered the spirit, general scheme and wording of the provision. The court concluded this that Article 12, 'produces direct effects and creates individual rights which national courts must protect'.

Professor Hartley said this; 'cannot be regarded as founded on the text' has criticized this finding for judicial activism. Advocate General Roemer said, 'Article 12 did not confer any rights directly on individuals'. Situation three, Judges are disrespectful of textual indications in the constitutional document and activism is obvious and unacceptable. Prime examples of this are Case C-70/88 European Parliament v Council (Chernobyl) [1990] ECR I-2041 where the ECJ ignored the intention of the Single European Act so there was a deliberate departure from the objective meaning of the Treaty.

Also Cases such as (Case 2/74) Reyners v Belgium [1974] ECR 631 and (Case 43/75) Defreene v Sabena (No 2) [1976] ERC 455 have been criticized for 'federalizing' the treaties disrespecting the treaty texts. Rasmussen has suggested in these cases the Courts are using a 'style and logic of legal argument' and the myth of judicial neutrality to hide its policy-making. By Looking at the approach taken by Rasmussen , one is able to see that there is acceptable activism, which is justified to a certain level, and unacceptable activism especially where 'gap filling' is going against the clear language of the treaty.

Although Judicial Activism does seem to function largely in the ECJ jurisprudence it could be argued that by following a teleological interpretation of the founding Treaties, the court has not exceeded their judicial functions. This is a method which interprets and takes into account the purpose, aim and objective. This method is not used in English Courts thus, is an accepted method in international law. This approach seems to be suited to Community law, as Judge Pescatore has wrote, '…

the Treaties establishing the European Communities are based upon the concept of objectives to be attained… In this context the teleological method is not simply one method of interpretation amongst others: far from it. It constitutes a method, which is particularly suited to the special characteristics of the Treaties establishing the Communities'. Many Treaties's are drafted broadly, in a range of languages, therefore its unrealistic to expect the text to always provide the 'right' answer.

This would mean the judges are not going beyond their functions, as long they are looking at the consequences in a wider view as long as they are not being looked at in abstract. To determine whether judicial activism has occurred in a case will depend on a persons 'viewpoint', the majority of society will accept some activism as it seems nearly impossible to avoid when interpreting European Community law as it is so broadly drafted the main reason for these loose wording in the Treaty is because of the large amounts of languages in the community.

Though when a judge seems to be filling in 'gaps' widely away from the Treaty true meaning which the drafters intended, many would say this is undemocratic since judges are not democratically accountable and this constitutional adjudication is extremely difficult to overturn. In fact it would involve Treaty amendments of 12 national parliaments. Another problem with activism is that it causes a decline in judicial authority, problems with neutrality, and a need for judges to be seen as 'trustworthy' in society. For this the judge's rules need to be controlled strictly.

Judicial activism is letting the judge's rules have little control. In the future this could have much effect. For example the attempt to 'fill gaps' in French political institutions, this brought disaster causing a lasting impairment of their own functions whose effect in France are not yet 'spent'. Thus, there are these problems with judicial activism, it would be wrong to stop activism, as there are many situations where it is completely reasonable. Although there are many cases which show it's unjustifiable to.

In Case 25/62 Plaumann v Commission [1963] ECR 95 it was stated, 'By constant rehearsals, the court, like a Welsh Choir finds the exact note it wants to sound'. Meaning that the more cases going before the court the better they are becoming at reaching the judgments they want to come to. For Judicial Activism to become fully acceptable the correct balance needs to be struck, activism is needed to interpret Community law, as a literal meaning would undoubtedly cause an absurdity. Thus a provision is needed to stop the judges going so far beyond their powers as this is totally undemocratic.