It must be noted that the Courts have considered many general principles in the cases that have come before them. In Defrenne,26 legal certainty was referred to and Van Duyn v Home Office27 established the direct effect of directives. Les Verts28 & Chernobyl29 considered the need to provide judicial protection and the complementary right to seek judicial review. Therefore, there seems to be a good argument for activism on the part of the Court since the language of the Treaty is often unhelpful and so the Courts need to develop these general principles in order to fill a "procedural gap".
However, some argue that the Court has 'sought inspiration in guidelines which are essentially political of nature and hence, not judicially applicable. '30 Despite the Court's apparent efforts to uphold the maxim that 'society should be governed by law, not by man', the European Court and its judges seem to have "une certaine idi?? e de l'Europe"31 of their own in creating an "ever-closer-union. "32 Sir Patrick Neill criticized the methodology of the European Court of Justice and argued that the Court was 'a dangerous institution, skewed by its own policy considerations and driven by an elite mission.
Therefore, this suggests that the judicial philosophies dominate the court's rulings, which poses a significant problem because the judges are non-elected individuals who are governing the policy of the European Union. The Court must calculate its activism but the question has been raised as to how this activism can be technically calculated. Hjalte Rasmussen submitted that there was no normative theory of interpretation of community law but propounded a more objective level of activism analysis.
This operates by collecting the known reactions to the jurisprudence of the European Court given by society's countervailing powers. These are known as the positive or negative policy-inputs. Rasmussen proposed that the judges should collect these policy-inputs in order to decide whether his case-law is acceptable or unacceptable and if it is unacceptable, whether it ought to be modified or not. Mauro Cappelletti praises Rasmussen's work but then proposes a number of criticisms 'with the intent to provoke further discussion on a topic of tremendous importance for anyone who cares for the future of Europe.
He believes that Rasmussen's "impact study" is "a valuable scholarly contribution to the study of Community law action" but to make the impact study the yardstick of the "legitimacy" of the European Court's activism has been "unwise". Cappelletti suggests that the test does not provide a really objective criterion and that it ignores the fact that judges should not be bound to the environment's powers and pressures. Thus, Rasmussen's argument lacks a historical dimension:
"But the vision of a great judiciary has to go much beyond the temporary, occasional whims and pressures, even defiances, rebellions and outbursts, of the social and political environment in which it operates. No great court has ever existed without a sense of an historical purpose and a mission, capable of resisting the pressures of the day. " Cappelletti criticizes Rasmussen further when he states that the choice of elements of inputs for the policy input analysis depends largely on the author's biases with Rasmussen clearly being influenced by pro-integration activism.
The European Court's activism in cases such as Van Gend en Loos36, Costa v ENEL37 and ERTA38 appears abusive but the policy input for this can hardly be classed as negative. It is relevant that the Member States have produced more positive than negative inputs and the highest national courts have accepted important doctrines established by the activist court. Cappelletti believes that the Court's activism could be justified if "it were authorized to base its rulings on the guidelines of the Preamble and Article 2 when difficult choices between competing public policies are to be made.
There may be some justifications for the court delivering judgments that are outside or contrary to the text of the Treaties. Firstly, it may be acceptable in certain very special cases on the basis of necessity. Another justification may be the doctrine of natural law, which allows a court to appeal to unwritten rules higher in the legal hierarchy than any man-made law. However, some argue that any justification must be based on considerations specific to the European Court and not those that apply to courts generally.
Attempts have been made to justify the Court's activism on the basis of the difficulty of amendment to the Treaties. However, frequent amendments have been made to the Community constitution, some of which have been adopted by the member States in the form of actual amendments, for example in Les Verts40 and Chernobyl41. This seems to demonstrate that the Court of Justice should not be acting out this quasi-legislative role but the Member States regard it as acceptable nonetheless.
In conclusion, it should be acknowledged that the European Court of Justice is not purely a judicial body but in adopting an activist role, the judges appear to believe that they are doing no more than their duty in developing the law in the desired direction. There has been much admiration but also irritation regarding the methodology of the Court of Justice. The serious attacks that are mounted upon the court should not be dismissed because, to use Rasmussen's wonderfully apt metaphor: "few cancer cells are, indeed, under favourable growth conditions, able to ruin completely the healthiest body.
One may contend that the European Union would not be anywhere near the stage of development it is at now, without the judicial activism of the European Court of Justice. However, this does not necessarily excuse the apparent wrongfulness associated with the concept of judicial activism. Thus, the European Court should act with greater care in order to prevent its activism "running wild" to the point of seriously risking disrepute and ruin.
1 HjalteRasmussen "On Law and Policy in the European Court of Justice," at p. 9 2 Martin Shapiro & Alec Stone "The New Constitutional Politics of Europe," 26 Comp Pol Stud, 396 (1994) 3 Lord Diplock "The Courts as Legislators," in The Lawyer and Justice B. W. Harvey (ed. ), Sweet and Maxwell, 1978) on p. 266. 4 C. Neal Tate & Torbjorn Vallinder, The Global Expansion of Judicial Power (1995) at p. 2 5 ibid at p. 13 6 Mary L. Volcansek "Supranational Court in a Political Context," in Law Above Nations at p. 12 7 E. Stein "Lawyers, Judges, and the Making of a Transnational Constitution," 75 AM. J. Int'l. 1, 1 (1981) 8 T. Tridimas, "The Court of Justice and Judicial Activism" (1996) 21 EL Rev 199