Has the European Court of Justice been involved in “Judicial Leglisation”?




Det har sagts att EU-domstolen har ägnat sig åt judicielllagstiftning och överskridit sina befogenheter som domstol för att tänka ut nya rättsregler. I SvJT 2011 s. 129 framhölls att de flesta domar som kritiserats på detta sätt var den logiska följden av fördragens bestämmelser eller av medlemsstaternas skyldigheter enligt Europeiska konventionen om skydd förde mänskliga rättigheterna. Viss del avkritiken grundar sig på missförstånd. Fördragen har ändrats ett flertal gånger men inga av de kritiserade domarna har upphävts. Fördragen skapade en helt ny rättsordning och det är inte förvånande att de inte förutsåg varje tänkbar situation. Men ett viktigt problem kvarstår: när bör EU-domstolen "lagstifta" för att åtgärda brister i EUlagstiftningen?


In the previous paper1, a number of leading cases decided by the European Court of Justice were discussed, and it was argued that they were mostly the logical implications of Treaty provisions, and not “judicial legislation”.
    In 1995, Sir Patrick Neill2 published a paper “The European Court of Justice: A Case Study In Judicial Activism”3 in which he criticised the judgments in most of the cases discussed and some others, essentially on the grounds that the Court had failed to limit itself in one previous article, to the literal words of the Treaties. The force of his criticism, however, was greatly lessened by the one-sided and biased tone of the paper, and also for the following reasons:


• He did not refer to Article 31 of the Vienna Convention on the Law of Treaties, which provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (emphasis supplied). The “context” comprises the text, “including its preamble and annexes”, and “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. The preamble and objectives of the Treaty were well-known and far-reaching, and by 1995 when Neill


1 Temple Lang, Basic Principles of European Law Applying to National Courts, SvJT 2011 s. 129. 2 Then Warden of All Souls College, Oxford, now Lord Neill. 3 London, 1995, European Policy Forum.

300 John Temple Lang SvJT 2011 was writing there was a great deal of practice indicating how the Member States considered the Treaties should be interpreted. The most striking statement was that in the first major judgment, Van
Gend & Loos, in 1963, with which no Member State ever officially or formally disagreed. It is true that the Court of Justice uses a more far reaching method of interpretation than that stated by the Vienna Convention, but the Convention would allow much of what the Court has done. • The Member States have never taken any of the opportunities that arose each time that the Treaty was altered to make any changes that would alter or reverse the judgments that he criticized. • He admitted in his paper and subsequently that he had no solutions to propose. • He did not discuss the situations or the unfortunate practical consequences that would have arisen if the Court had decided the cases in the way that he would have preferred, which would certainly have made the legal system of the EU ineffective or unsatisfactory. • He criticised the power of the Court to decide in exceptional cases that its judgment should take effect only from the date of the judgment, and not retroactively, as in the Defrenne case.4 He did not mention that this power is also exercised by other supreme courts and constitutional courts. But it seems clear that he would have strongly (and correctly) criticised the Court if it had decided e.g. that all the millions of women who had received less than equal pay for many years were entitled to make individual claims for everything that they were owed. • He misunderstood the Court’s first Opinion on the European Economic Area.5 He said that the Opinion implies that it is no longer within the powers of Member States to amend the Treaty Articles concerning the Court. In that case the Commission had said that if the proposed EEA Agreement was not compatible with the Treaty, the Treaty Article dealing with Association Agreements could if necessary be amended. The Court responded by pointing out, correctly, that the system of courts set up by the Treaty could not be modified indirectly by amending the Treaty Article on agreements with non-Member States. The judgment does not suggest that the basic Articles setting up the Court of Justice could never be amended, as indeed they have been, without objection from the Court, since then. • He misunderstood a reference by Judge Mancini to the “mission” of the Court. But Judge Mancini was writing extra-judicially, and was clearly using the word “mission” in the sense in which it is understood in several European languages, as meaning task, responsibility or job, not in the sense of an ideal to be aimed for or a policy to be pursued. • His criticism of the Foto-Frost judgment6 is unreasonable and incorrect. He wrote that the Court said “national courts may declare Community acts valid but not invalid...the national court must remain silent if it considers” that the act is invalid. But that clearly misrepresents the judgment. As is well known, what the Court said was that if the nat-


4 Case 43/75, [1976] ECR 547. 5 Opinion 1/91, [1991] ECRI-6079. 6 Case 314/85, Foto Frost [1987] ECR 4199.

SvJT 2011 Has the European Court of Justice been involved in… 301 ional court has no reason to believe the act to be defective, it can apply it. If however it believes that it may be invalid, it does not have to “remain silent”, but should refer the question to the Court of Justice, whose judgment will apply throughout the EU, which the judgment of a national court could not do. The national court may, and should, give its reasons for believing that the act is invalid. The International Air Transport Association judgment7 has now confirmed that Neill’s comment on Foto-Frost is incorrect. • He avoided criticising what many lawyers regard as the most striking example of “judicial activism”, the case-law ruling that fundamental rights were part of Community law, before that was stated in the Treaty.

In other words, Neill seems to have described as “activism” only the judgments that he disagreed with. He was more ideological than the judges whom he criticised. His paper is advocacy, and can hardly have been intended to be objective.
    Neill was perhaps wise not to discuss the principle that national courts are obliged by what is now Article 4(3) TEU to give “effective” protection to rights given or guaranteed by Community law. He presumably would not have wanted to argue that only ineffective protection should be given, or that it was left to Member States to decide whether and how far to protect these rights. But this principle has led inevitably to some of the most important developments in European law.
    It is perhaps worth mentioning that the European Policy Forum, which published Neill’s paper, had shortly before published an astonishing “Proposal for a European constitution — Report of the European Constitutional group” (1993)8, which proposed no less than three new additional institutions, a Chamber of National Parliaments (apparently to withdraw powers from the Community), a Union Court of Review (to be a court of appeal from the Court of Justice, because it “has a vested interest in the extension of a single superior law”, and to prevent “judicial activism”) and a so-called Competition Authority for both trade and competition matters, but which would be staffed entirely by representatives of Member States. Sir Patrick Neill was not in the best or the wisest company, and even from an academic perspective his views were controversial, and they have never been generally accepted.9


7 Case C-344/04, International Air Transport Association [2006] ECR I-403 paras. 28– 32 and Advocate General’s opinion paras. 147–155. 8Report by the European Constitutional Group, European Policy Forum, London. Buchanan, J.M. and Lee, D.R., 1994. 9See Hartley, 'The European Court, Judicial Objectivity and the Constitution of the European Union' (1996) 112 LQR 95 and Arnull, 'The European Court and Judicial Objectivity: A Reply to Professor Hartley' (1996) 112 LQR 411: Tridimas, The Court of Justice and Judicial Activitism, 21 European Law Review (1996) 199– 210.


302 John Temple Lang SvJT 2011 On reading Neill’s paper, one gets a strong impression that he was opposed to the Court of Justice deciding any of the “thousand unexpected questions” envisaged by Jean-Etienne-Marie Portalis in the Discours préliminaire to the French Civil Code. Neill appeared to be opposed to any filling of gaps, even procedural gaps and even for the purpose of ensuring that “the law is observed”. He would not approve of Chief Justice John Marshall’s statement in McCulloch v. Maryland that the US Constitution was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs”.10 He would be much less shocked than e.g. a French lawyer at the idea that a court might refuse to decide a case at all on the grounds that the law was silent, obscure, or insufficient. In any case it is odd to find a distinguished lawyer from a common law country objecting to judge-made law, since so much of English law has always been made by judges. Sir Patrick Neill seems not to have recognised that the traditional British style of legislation drafting in which everything is said as explicitly as possible, so as to permit literal interpretation, is not the only way to draft legislation. It is certainly not the way in which the Treaties were drafted. Since they were drafted in the way they were, an entirely literal interpretation would have been entirely incorrect. Statutory interpretation must be appropriate to the way in which legislation is drafted. Sir Patrick might also have recognized that in a wholly new kind of legal system, unlike anything established before, some unforeseen problems were sure to arise. Also “Great judges are in their different ways judicial activists”11 .


So why is the European Court of Justice criticised for “judicial legislation”?
Drawing some general conclusions, it is clear that some of the criticism of the Court can be explained by saying that the critic had not expected the questions to arise, and therefore had not expected the answers given by the Court. Some criticisms can be explained by prejudices against anything connected with the European Union. But some of the other reasons are more interesting.
    One important reason is that the Treaties were not originally written as a constitution, and therefore did not say all of the things that a constitution would be expected to say. This is in spite of the fact that the Treaties were largely traités-cadres, framework treaties, not traitéslois, treaties laying down substantial rules. This meant that the Court was obliged to decide, one way or the other, certain questions that would have been answered if the Treaty had been written as a constitution. The result, once the Court had decided that it would not make the Treaties ineffective, was that the Court developed purposeful


10 17 U.S. 316 (1819) at p. 415. 11 Lord Scarman, [1980], Weekly Law Reports 142–169.

SvJT 2011 Has the European Court of Justice been involved in… 303 methods of interpretation similar to those of national constitutional courts and Supreme Courts. Once the Court determined that Community law created rights for private persons, it was inevitable that the Court would have to decide what those rights were, and how they had to be protected. That initial determination, made in Van Gend & Loos, was the source of most of the case-law summarised here. The underlying theme of this case-law is the need, as the Court always saw it, to make Community law “effective”. This is not surprising. Article 31 of the Vienna Convention on the Law of Treaties provides that any treaty shall be interpreted “in the light of its object and purpose”. That is particularly necessary in the case of a framework treaty, a traité-cadre, which by definition will develop and be supplemented, and will give rise to questions not anticipated by those who drafted it.
    It will be seen that a number of the judgments summarised here were based, at least in part, on Article 10 EC (now Article 4 TEU), which states the duty of national authorities to facilitate the Community’s tasks. The many judgments which have referred to Article 10 have been summarised by saying that national authorities are obliged to make the Community legal system work in the way that it was objectively intended to work.12 Because of the key role of national courts in


12Skouris, The Principle of Procedural Autonomy and the Duty of Loyal Cooperation of National Judges under Article 10 EC, in Andenas & Fairgrieve (eds.) Tom Bingham and the Transformation of Law (2009 Oxford U.P.) 493–507 : General Report, XIX FIDE Congress (2000 Helsinki), Sundström and Kauppi (eds.) Vol. I, The duties of cooperation of national authorities and courts and the Community Institutions under Article 10 EC, and Vol. IV 65–72. See generally Kapteyn, Verloren van Themaat and Gormley, Introduction to the Law of the European Communities (3rd ed., 1998) 148–163. By the time of the Helsinki Congress there was a substantial body of published comment of Article 10. On Article 10 generally, see Durand, in Commentaire Mégret: Le Droit de la CEE (2nd edition, Brussels, 1992) Vol. 1, 25–43; Temple Lang, Article 5 of the EEC Treaty: the emergence of constitutional principles in the case law of the Court of Justice, 10 Fordham International Law Journal (1987) 503–537; Schermers & Waelbroeck, Judicial protection in the European Union (6th ed., 2001) pp. 112–115 and 330; Blanquet, L’article 5 du traité CEE — Recherche sur les obligations de fidélité des Etats Membres de la Communauté (Paris, 1994); Due, Article 5 du traité CEE — une disposition de caractère fédérale?, Schumann lecture (Florence, 1991); Temple Lang, Community constitutional law: Article 5 EEC Treaty, 27 Common Market Law Review (1990) 645–682; Lenaerts, Le devoir de loyauté communautaire, in Verhoeven (ed.), La loyauté — mélange offert à Etienne Cerexhe (1997) 229–247; Temple Lang, The core of the constitutional law of the Community — Article 5 EC, in Gormley (ed.), Current and future perspectives on EC competition law (1997, Kluwer) 41–72; Van Raepenbusch, Le devoir de loyauté dans l’ordre juridique communautaire, Droit social, No. 11, November 1999, 908–915; Gormley, The development of general principles of law within Article 10 (ex Article 5) EC, in Bernitz (ed.), General principles of European Community Law (Kluwer, 2000) 113–118; Temple Lang, The duties of national courts under Community constitutional law, 22 European Law Review (1997) 3–18; Temple Lang, The duties of national authorities under Community constitutional law, 23 European Law Review (1998) 109–131; Temple Lang, The duties of cooperation on national authorities and courts under Article 10 EC, two more reflections, European Law Review (2001) 84–93; Temple Lang, Developments, issues and new remedies — the duties of national authorities and courts under Article 10 of the EC Treaty, 27 Fordham International Law Journal


304 John Temple Lang SvJT 2011 the legal system, they have many responsibilities in order to achieve this. Another way of expressing this is to say that national courts are required to give effect to the “teleological” (objective driven) approach of the Court.
    Tridimas concluded13 that the teleological interpretation is particularly suited to the Community Treaties, and so the Court can look to the objectives and scheme of the Treaties. If this is accepted, the only issue is whether the Court’s reasoning in any particular case is persuasive. He said that “it is not correct to say that, by having regard to the objectives of the Treaty that seeks further integration, the Court oversteps its power as a judicial body”. This examination of what I think are the most important and controversial of the Court’s judgments confirms Tridimas’ conclusion. It is also confirmed by the fact that neither the repeated revisions of the Treaties nor the new EU Treaties have reversed or overruled any of the judgments summarised here. They were accepted as reasonable and necessary to make the European legal system effective.


Advocate General Kokott’s comments on development of general principles of law
In her Opinion in a case on legal professional privilege for employed lawyers (Akzo), Advocate General Kokott made interesting and important comments on some of the circumstances in which the Court has developed or clarified general legal principles in connection with fundamental rights and analogous rights.14 The right to be protected against discrimination on the basis of age emerged from developments in the national laws of Member States. The right of access to the file of the Commission in competition cases was developed and stated because the Commission both investigates and decides such cases, and it was therefore essential that the company investigated should be able to see essentially all the information in the possession of the Commission.


(2004) 1904–1939; Lenaerts & Van Nuffel, Constitutional Law of the European Union (2nd ed., 2005) 115–123; Temple Lang, “The Principle of Loyal Cooperation and the Role of the National Judge in Community, Union and EEA Law”, in 4/2006, ERA-Forum (Academy of European Law, Trier) 476–501: Temple Lang, The Development by the Court of Justice of the Duties of cooperation of national authorities and Community institutions under Article 10 EC,31 Fordham International Law Journal (2008) 1483–1532. See generally Claes, The National Courts’ Mandate in the European Constitution (2006, Hart) in particular ch.3; Halberstam, The political morality of federal systems, (2004) Virginia Law Review 101, 104. 13 The Court of Justice and Judicial Activism, 21 European Law Review (1996) 199, 210: Everling. On the Judge-made Law of the European Community’s Courts, and Constanlinesco, The ECJ as a Law-maker, both in O’Keeffe & Bavasso, Liber Amicorum in Honour of Lord Slynn of Hadley (2000) Vol. I, 29–44 and 73–79 respectively. 14 Case C-550/07P, Opinion dated 29 April 2010.

SvJT 2011 Has the European Court of Justice been involved in… 305 At paragraphs 93 to 96 of the Opinion, Advocate General Kokott said:


“93. Where the Court of Justice answers questions concerning the existence or non-existence of a general legal principle by reference to the laws of the Member States, it generally draws on the constitutional traditions15 or legal principles common to the Member States.16 94. Such recourse to common constitutional traditions or legal principles is not necessarily subject to the precondition that the practice in question should constitute a tendency which is uniform or has clear majority support. It depends rather on an evaluative comparison of the legal systems which must take due account, in particular, not only of the aims and tasks of the European Union but also of the special nature of European integration and of EU law.17 95. Accordingly, it is by no means inconceivable that even a legal principle which is recognised or even firmly established in only a minority of national legal systems will be identified by the Courts of the European Union as forming part of EU law. This is the case in particular where, in view of the special characteristics of EU law, the aims and tasks of the Union and the activities of its institutions, such a legal principle is of particular significance,18 or where it constitutes a growing trend. 96. Thus, only recently, the Court held the prohibition of discrimination on grounds of age to be a general principle of EU law19, even though, at that time, that prohibition did not appear to constitute a tendency which was uniform or had clear majority support in the national legal systems or even in the constitutional law of the Member States.20However, that principle was consistent with a specific task incumbent on the European Union in combating discrimination (Article 19 TFEU, formerly Article 13 EC) and had also been given specific expression by the Union legislature in the form


15Footnote 73 of the Opinion reads: See, for example, Internationale Handelsgesellschaft (cited in footnote 72, para. 4); Case 4/73 Nold v Commission [1974] ECR 491, para. 13; Case 44/79 Hauer [1979] ECR 3727, para. 15; Joined Cases 46/87 and 227/88 Hoechst v Commission [1989]E CR 2859, para. 13; Joined Cases C-387/02, C-391/02 and C-403/02 Berlusconi and others [2005] ECR I-3565, paras. 68 and 69; Advocaten voor de Wereld (cited in footnote 62, para. 45); and Case C-555/07 Kücükdeveci [2010] ECR I-0000, para. 20. 16 Footnote 74 of the Opinion reads: See, for example, Algera (cited in footnote 72, at p. 56); AM & S (cited in footnote 32, paras. 18 to 21); and Joined Cases C120/06 P and C-121/06 P FIAMM and FIAMM Technologies v Council and Commission (‘FIAMM’) [2008] ECR I-6513, paras. 170, 171 and 176. 17Footnote 75 of the Opinion reads: See to this effect, for example, Internationale Handelsgesellschaft (cited in footnote 72, para. 4) and the Opinions of Advocate General Roemer in Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975, at p. 989, and of Advocate General Poiares Maduro in FIAMM (cited in footnote 74, points 55 and 56). 18 Footnote 76 of the Opinion reads: See to this effect the Opinions of Advocate General Roemer in Zuckerfabrik Schöppenstedt v Council (cited in footnote 75, at p.1989) and of Advocate General Poiares Maduro in FIAMM (cited in footnote 74, points 55 and 56). 19Footnote 77 of the Opinion reads: Case C-144/04 Mangold [2005] ECR I-9981, para. 75, and Kücükdeveci (cited in footnote 73, para. 21). 20Footnote 78 of the Opinion reads: The prohibition of age discrimination is enshrined in particular in Article 6 of the Finnish Constitution and — specifically in relation to employment — in Article 59(1) of the Portuguese Constitution.

306 John Temple Lang SvJT 2011 of a directive;21 moreover, it mirrored a more recent trend in the protection of fundamental rights at Union level, to which the European Parliament, the Council and the Commission had jointly given expression on the occasion of the solemn proclamation of the Charter of Fundamental Rights (see, in particular, Article 21 thereof),22 the Heads of State and Government of the Member States having previously given their endorsement at the Biarritz European Council (October 2008). 97. The right of access to the file referred to by some of the parties to the proceedings at the hearing, as recognised by the Courts of the European Union in the context of antitrust proceedings conducted by the Commission in its capacity as competition authority,23 may likewise not have been recognised in this form in all the Member States. This might have been because some Member States did not previously have competition authorities of their own and, in others, because the competition authorities appeared only as prosecutor in court proceedings. The Commission, on the other hand, is entrusted with both the investigation and the decision concluding the proceedings; in administrative proceedings of this kind, the right of access to the file is an essential component of the rights of defence and, therefore, the expression of a basic procedural guarantee based on the rule of law. It was therefore logical that the Courts of the European Union should recognise the right of access to documents at European level.”

Is occasional “judicial legislation” surprising in a new legal system?
It will be seen that in the cases summarized here there are several examples of what can perhaps be described as judicial legislation that almost every lawyer would regard as reasonable and wise, such as in particular the judgments on fundamental human rights. It has been argued, above, that the fundamental rights case-law could have been deduced from the Treaty provisions and the structure of the Community (in the sense that the Community’s powers were conferred on it by Member States), and that it therefore did little more than set out the logical and practical implications of what was already expressly stated. The judgments establishing the exclusive competence of the Community over the whole field of commercial policy were, in retrospect, less foreseeable, and perhaps more striking. They were based on practical considerations of effectiveness, rather than legal arguments. Although the extent of the exclusive competence was later controversial, the basic principle was not.


21Footnote 79 of the Opinion reads: Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303 p. 16); see in this regard Kücükdeveci (cited in footnote 73, para. 21). 22 Footnote 80 of the Opinion reads: Again, see expressly to this express effect now Kücükdeveci (cited in footnote 73, para. 22). 23 Footnote 81 of the Opinion reads: Fundamental in this regard are Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, para. 54; Joined Cases T-10/92 to T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II2667, para. 38; and Case T-65/89 BPB Industries and British B Industries and British
Gypsum v Commission [1995] ECR I-865. Gypsum v Commission [1993] ECR II-389, paras. 29 and 30, the latter confirmed in Case C-310/93 P BP paras. 29 and 30, the latter confirmed in Case C-310/93 P BP.

SvJT 2011 Has the European Court of Justice been involved in… 307 In short, in all the cases in which the Court has been criticized for “legislating”, it was acting on clearly identifiable legal principles and not on extraneous considerations. The criticism of what is said to be judicial legislation has come primarily from States that are not accustomed to having an active constitutional court, and which are therefore less familiar with the idea that from time to time a court may be obliged to answer a new and important question with many implications and consequences. In a Community such as the EU which set out to do many things that had never previously been attempted, it was inevitable that entirely new issues would arise. As the original Treaties were not intended to be the permanent nec plus ultra for the Community, and were drafted as treaties and not as a constitution, it was inevitable that as the Community developed and changed, questions would arise that were not expressly resolved by the words of the Treaties. An entirely literal interpretation of the Treaties would have made them unworkable.
    A distinction should perhaps be drawn between apparent gaps in procedural rules, which a court may be obliged to fill if the law is to be applied at all, and gaps or apparent gaps in substantive law. A court may not change to law as laid down by the legislature, or invent entirely new rules or policies on issues on which the legislature has taken no action. A court is however surely entitled and indeed obliged to make explicit the implications of existing substantive rules that have been clearly laid down by the legislature, in particular in cases in which two principles combine or conflict in ways not foreseen. Finally, it seems reasonable for the Court to explain the duties of national courts and authorities in specific situations, in the light of their explicit (even if generally expressed) duties under what is now Article 4(3) TEU, to “take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the Institutions of the Union” and “to facilitate the achievement of the Union’s tasks”.24 A Real Problem: “Judicial legislation” to solve problems of defective drafting of EU measures
EU legislation is not always well drafted. Sometimes it seems that a compromise has been agreed which is deliberately ambiguous: some Member States can say it means one thing, others that it means another. The result, when this occurs, may be that the Court of Justice is obliged to choose between equally convincing interpretations, when that choice should have been made by the Parliament and Council on policy grounds when the legislation was being adopted. An apparent diplomatic success is then a legislative failure. When the Court ultima-


24See Simpson, The Reflections of a Craftsman, in Andenas and Fairgrieve (eds.), Tom Bingham and the Transformation of Law (2009, Oxford U.P.) 193–205: Bingham, The Judges: Active or Passive (2006) 139 Proceedings of the British Academy 55.

308 John Temple Lang SvJT 2011 tely decides, one group of Member States or the other is likely to feel aggrieved — and to blame the Court for a situation for which it is not responsible. The Commission, in theory, should withdraw a proposal if it has been poorly drafted or unwisely altered, but the Commission is normally reluctant to prevent the adoption of even badly drafted measures. This kind of defect may be more serious in a Regulation than in a directive, because each Member State will implement the directive in accordance with its view of what the directive said, or is thought to have said. The national law may be clear, even if it is not necessarily correct. But even in the case of a directive the result may be that some Member States will ultimately be held to have failed to implement the directive correctly (whether or not they are liable to pay compensation as a result). In the case of a Regulation, there may be a serious argument that the Regulation is void because it is contrary to the principle of legal certainty, which requires legislation to be clear, precise and predictable.
    A recent and clear example of a situation in which the Court considered that it was obliged to solve the problem of bad drafting arose in Sturgeon.25 Reg. 261/2004 gave air passengers a right to compensation when their flights are “cancelled”, but not when the flights are “delayed”. But the Regulation did not say when a long-delayed flight should be treated as if it was “cancelled”, and the explanatory memorandum confused the question by suggesting different criteria based on the responsibility of the airline, which might be relevant to both delay or cancellation. Both the Advocate General and the Court criticised the Regulation. The Court said that there was “no objective ground capable of justifying such a difference in treatment” between delay and cancellation (para. 59) and that passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed. The Court, to remedy the defect in the Regulation, and to make the Regulation less discriminatory, determined that passengers whose flights are “delayed” may recover compensation if they reach their destination three hours or more after the scheduled arrival time. In other words, the Court did not interpret the Regulation in a way needed to make it completely non-discriminatory, it added to the Regulation. The Court did this, in spite of the fact that the Advocate General had stated:



25 Joined Cases C-402/07 and C-432/07, [2009] ECR I-0000, Nov. 19, 2009. See also Advocate General Sharpston’s comments in Case C-391/07, Glencore Grain Rotterdam, opinion dated Sept. 18, 2008, paras. 74–75. Reg. 261/2004 had already been considered by the Court in Case C-344/04, International Air Transport Association [2006] ECR I-403. It is interesting that the Court did not merely say that the Regulation should be interpreted to mean that if a flight arrives three hours or more after the scheduled arrival time, it should be considered to have been cancelled.

SvJT 2011 Has the European Court of Justice been involved in… 309 “…the Community legislator can select a particular time limit (23 and a half hours, 24 hours, 25 hours, or 48 hours — whatever it be) triggering a right to compensation. The Court cannot. Any figure one cared to pick would involve reading into the Regulation something it plainly does not contain and would be a judicial usurpation of the legislative prerogative.” (para. 94)

This may be “judicial legislation”, but clearly it is not a task that the Court should be obliged to undertake. It is understandable that neither the Court nor the Advocate General wished to declare the Regulation invalid because it was discriminatory, because that would have deprived many airline passengers of a right to compensation. But the Council and Parliament, and the Commission, should have done a better job.


“Judicial legislation” and the responsibility of the EFTA Court under the European Economic Area Agreement
It will be seen from this paper that a number of the cases in which the European Court of Justice has been said to have engaged in “judicial legislation” have involved obligations of national courts under Article 4(3) TEU, (ex-Art. 10 EC). Article 3 of the European Economic Area Agreement is in substantially the same terms, and one would therefore expect it to have at least some of the same consequences. However, the consequences cannot be the same in all respects, for several reasons. The objectives of the EEA are narrower in scope than those of the European Community, and clearly narrower than those of the EU. In the EEA even national courts of final appeal are said not to be obliged to refer questions of EEA law to the EFTA Court in all cases. One of the objectives of the EEA Agreement is to bring about a degree of homogeneity between the national laws of EEA States and the laws of EU Member States. However, it is said that this does not imply absolute or strict obligations in all respects for national courts in EEA States. Also, the rulings of the EFTA Court on questions referred to it by national courts are described as Advisory Opinions. It is not clear whether this phrase is merely a concession to constitutional sensitivity in some EEA States, or whether it will be held to mean that even the national court that has asked the EFTA Court for a ruling is not bound to accept the result, which would be odd. The objective of homogeneity is a general overriding one, and Article 3 must mean something (indeed, in several cases the EFTA Court has already drawn important consequences from it, corresponding to the consequences drawn by the Court of Justice).26


26See, e.g., Case E-9/97 Erla Maria Sveinbjörnsdóttir v. Iceland [1998] EFTA Ct. Rep. 95, where the Court noted at para. 58 that, “According to Articles 105 and 106 EEA, an EEA Joint Committee shall keep under constant review the development of the case law of the ECJ and the EFTA Court, and there shall be established a system of exchange of information concerning judgments between the EFTA Court, the ECJ and the Court of First Instance. The EC Commission and the


310 John Temple Lang SvJT 2011 The EEA Agreement is more complex legally than it may appear at first sight, and it may be logically and legally impossible for it to be interpreted in a way that guarantees that all of its objectives will be achieved fully and completely. In particular, it may be impossible to reconcile in theory and absolutely the two basic principles of national sovereignty and homogeneity. Homogeneity is not guaranteed, because the EEA States were understandably unwilling to commit themselves in advance to follow in all respects either the legislation of the EU (insofar as it might be relevant in the EEA) or the case-law of the Court of Justice. It follows that the EFTA Court has faced both questions corresponding to those decided by the Court of Justice, as described above, and also with very difficult questions unique to the EEA. Both kinds of questions may require the EFTA Court to give rulings that cannot be based on the express words of the EEA Agreement. As in the case of the original EC Treaties, the EEA Agreement left unanswered a number of fundamental legal questions about the EEA legal order, which only the EFTA Court can answer. The EFTA Court therefore is required to decide how far to act on, in particular, the principles of homogeneity and of effectiveness. When it does so, the question whether it is merely deducing the logical implications of the EEA legal order or whether it is adding obligations not implicit in the EEA Agreement will inevitably arise. Presumably the EFTA Court will decide, when it considers it appropriate, that although the principle of homogeneity may not imply absolute obligations in all cases, it does imply obligations at least (1) where the failure to achieve homogeneity would be likely to cause significant inconvenience or difficulty, or distortion of competition, or to make the legal order of the EEA ineffective, or would fail to protect individual rights, and (2) where the legislature of the EEA State in question has not deliberately adopted any measures inconsistent with homogeneity on the question before the national court. In another words, there should be a strong presumption in favor of homogeneity.
    It should be remembered that if the EFTA Court does rule that homogeneity or effectiveness require a given result, in theory it is implicit in the EEA legal system that sovereignty would allow a national legislature in an EEA State knowingly to reverse that result, or to achieve it in a different way, at the risk of infringing the homogeneity principle. (It seems significant that this has not happened, because it implies that national legislatures have ultimately accepted the judgments of the EFTA Court as the best solutions, or at least accepted that homogeneity requires them to be followed). At least in theory, the apparent responsibility of the EFTA Court is therefore not

EFTA Surveillance Authority shall co-operate, exchange information and consult each other on surveillance policy issues and individual cases.” In that case, the Court established State liability for breach of an unimplemented directive, equivalent to the Francovich principle in EU law. See Fredriksen, The EFTA Court 15 years on, 59 International and Comparative Law Quarterly (2010) 731–760.

SvJT 2011 Has the European Court of Justice been involved in… 311 as great as the responsibility of the Court of Justice, because EU Member States are not free to opt out of the consequences of judgments of the Court of Justice. Nevertheless, the EFTA Court, like the Court of Justice, has also been occasionally criticised for “judicial legislation”, even if there may be equally little justification for the criticism.
    Several conclusions can be drawn from the case-law of the EFTA Court. First, that Court has agreed with and confirmed most of the most important principles discussed in this paper (some others have not yet arisen before the EFTA Court, and others cannot arise). This confirms the correctness of the case-law of the Court of Justice, in particular because in some cases the EFTA Court has given clearer reasons for its conclusion than the Court of Justice had given27. Second, the principles are fully justified on legal grounds: nobody has seriously accused the EFTA Court of having a “mission” to extend its power (although the EEA Agreement imposes expressly a duty on the EFTA Court to preserve the “homogeneity” of the EEA and EU legal systems). The third conclusion is that some degree of judicial creativity is to be expected from any court of the high quality and standing of the EFTA Court and the Court of Justice, at least in the context of a legal system based on the Treaties that could not be expected to anticipate and provide in advance for every conceivable situation. A fourth conclusion is even more interesting: the EFTA Court has, by closely argued judicial reasoning, without overt policy statements, arrived at results substantially the same as those reached by the Court of Justice, without slavishly copying the reasoning of that Court, and without having all of the Treaty provisions available which the Court of Justice has used. The achievement of the EFTA Court is more remarkable because it has achieved these results in a relatively small number of judgments, and in spite of arguments made by some EEA States that disregarded the objective of homogeneity that the States themselves had stated in the EEA Agreement Article 6, and in Article 3 of the Agreement on the Surveillance Authority and a Court of Justice. This EFTA Court case-law therefore confirms, as stated above, the correctness of the case-law of the Court of Justice discussed here, in an important and valuable way.


The role of national courts in EU Law
Every national court in its own jurisdiction is a court of general jurisdiction to apply EU law when appropriate to the cases before it. Every national judge is now an EU law judge. National legal orders should not be contrasted with the European legal system: they should be combined and not opposed. The two kinds of legal systems interlock and are interdependent. European law is not a source of law external


27 Temple Lang, The Importance of the EFTA Court, in European Current Law, March 2006, xii.

312 John Temple Lang SvJT 2011 to national legal systems28. National judges are primarily responsible for applying EU Law. This is their law.


28 Sauvé, Judging the Administration in France: Changes Ahead? In Andenas & Fairgrieve (eds.), Tom Bingham and the Transformation of Law (2009, Oxford U.P.) 313–328.