Judicial Reach: The Ever-Expanding European Court of Justice

By Flamini, Roland | World Affairs, November-December 2012 | Go to article overview

Judicial Reach: The Ever-Expanding European Court of Justice


Flamini, Roland, World Affairs


Before the summer break, the European Court of Justice ruled that workers who get sick on vacation were entitled to compensatory time off with pay equal to the length of their illness. The European Union's highest court also found in favor of a Chinese firm challenging EU anti-dumping penalties in the export to Europe of a basic herbicide chemical called glyphosate, widely used by farmers; and it told a Swiss company (Lindt) that its chocolate bunny wrapped in gold foil was not sufficiently different from other chocolate bunnies to qualify as an exclusive registered trademark. Furthermore, the court agreed to the American IT giant Microsoft Corporation's request for a reduction from 899 million euros ($1.3 billion) to 860 million euros ($1.05 billion) of a fine imposed earlier by a lower court in a complicated 2007 anti-trust case.

After years in the shadows, the Luxembourg-based, two-tier European court system--the Court of Justice (ECJ) and the General Court (previously called the Court of First Instance), as distinct from the European Courts of Human Rights in Strasbourg--has emerged as what Lord Mance, a leading British judge, calls "a central achievement of the European Union, a court with unparalleled transnational power."

That power has grown even as the European Union has increased in size to twenty-seven member states and more then five hundred million citizens for whom the court's rulings are not only legally binding but have precedence over national laws where the two are in conflict. Because the EU is a body based on the rule of law, the courts are a necessary judicial oversight to ensure that the member states and the institutions concerned--for example, the European Commission, the EU's executive arm in Brussels--act in accordance with the signed treaties, most recently the 2007 Lisbon Treaty, in effect the EU constitution.

That the courts play a significant role in the European Union is reflected in their sizable caseload. Last yem; the ECJ completed six hundred and thirty-eight cases, its largest number to date and twelve percent more than in 2007; but it has a backlog of eight hundred and forty-nine cases pending, or fifteen percent more than four years earlier.

The General Court completed seven hundred and fourteen cases in 2011, compared to three hundred and ninety-seven in 2007; and the court had one thousand three hundred and eight cases pending (one thousand one hundred and fifty-four in 9007). The European Union website defines the court's traction as interpreting "EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU (member) governments and EU institutions. Individuals, companies, or organizations can also bring cases before the Court if they feel their rights have been infringed by an EU institution."

Where did all this "European law" come from? It's something of a hybrid rooted in the EU treaties, articles of those treaties, and broader principles of law as practiced in the courtrooms of Europe. A lot of the court's work involves cases brought by Brussels against member states for failing to comply with regulations or treaty obligations. These cases are called "infringement proceedings." For example, the European Union's environmental commissioner has waged a running war through the courts with the government of Italy over the mountains of uncollected trash around Naples. And last year, in a suit filed by the commission, the ECJ ordered the French government to protect the rapidly vanishing Cricetus cricetus--commonly known as the European, or black-bellied, hamster.

It's hardly surprising that the growing supremacy of EU law gets grudging acceptance at best from the government of many member states, who do not always eagerly embrace the court's rulings. The United Kingdom is often vociferous in its criticism of the court's decisions; the Economist magazine once noted that British critics of the European court regard it as "an unguarded back door through which national sovereignty was being carted away. …

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