Can the Court of Justice of the European Union Impose Unwanted National Policy Change? A Very Brief Introduction.

Commentary by Danaë LAZARI

Court of Justice of the European Union (CJEU) - by Ssolbergj licensed under CC BY-SA 3.0
Court of Justice of the European Union (CJEU) – by Ssolbergj licensed under CC BY-SA 3.0

The Court of Justice of the European Union (CJEU, formerly the European Court of Justice, see below note) made the headlines twice this week: firstly, for scrapping a translatlantic deal that allowed US technological companies to import wholesale personal information of EU citizens and, secondly, for delivering a ruling that contradicts existing UK policies on prisoner voting and intelligence collectionIn the same week as we saw the ‘In Campaign’ officially launch its bid to remain in the EU, a brief overview of the Court of Justice’s powers may be interesting for some of our readers.

A main concern for supporters of the ‘Out Campaign’ is to reduce the so-called imposition of unwanted EU policies at a domestic level. In EU Member States, EU law supersedes national law, and the CJEU is the Union’s highest court in matters of EU law. This puts it in the interesting position of being the only supranational actor that could potentially ‘impose’ policies, and gradual change in domestic policies as a by-product of CJEU rulings has found its place in academic literature under the concept of ‘judicial Europeanisation’.

The Court of Justice of the European Union

Not to be confused with the European Court of Human Rights (ECtHR), the CJEU ensures that “EU law is interpreted and applied the same in every EU country; [that] countries and EU institutions abide by EU law”. Established in 1951, the ECJ was an institution designed to: act as a check on the Commission; to settle disputes by interpreting EU law; and to act on charges of non-compliance of Member States. Comprising one judge per Member State, and nine Advocates-General (all nominated by their national governments) it has seen its workload increase from just 79 cases in 1970 to over 1500 in 2013, and its jurisdiction is now felt in the majority of EU policies.

Its powers lie mainly in three areas:

  1. It can commence infringement proceedings against Member States who have not fully complied with EU law.
  2. It can act against EU institutions for failure to act, and to annul a measure introduced by the institutions through judicial reviews.
  3. It clarifies EU law in cases handed up to it by national courts, thereby providing preliminary rulings.

Increase in powers since Lisbon Treaty

Headquarters of the CJEU in Luxembourg - by Cédric Puisney licensed under CC BY 2.0
Headquarters of the CJEU in Luxembourg – by Cédric Puisney licensed under CC BY 2.0

When the Lisbon Treaty came into effect in 2011, the competencies of the CJEU were extended to areas that were traditionally closely linked to national sovereignty, such as justice and home affairs (including welfare and immigration policies). It has been argued that the CJEU, as an independent body which naturally wishes to increase its power, has managed to create gaps between what was originally envisaged by the Member States and the EU institutions. Indeed, its rulings and empirical evidence suggests that the CJEU generally rules for policies that support more integration, which may go against the wishes of national governments.

One such controversial ruling was in the 2011 Zambrano case, when the Court of Justice ruled that residency rights should be granted to non-EU parents of EU citizenship-bearing children who were dependent on their parents’ care.  It was argued that not doing so went against the right of the children to ‘move and reside freely within the territory of the Member States’ – or, their fundamental right to the freedom of movement. Although the Court of Justice restricted its scope in the similar McCarthy case three years later, Zambrano represents a situation in which the Court of Justice was able to extend its power to areas that had, until then, been subject to national discretion, and therefore sparked a lot of response and debate from Member States on the subject.

Implications

In spite of such controversial rulings, to say that the CJEU can impose policy change on a Member State is to ignore the majority of its proceedings. Because the CJEU only interprets, and does not make law, when it is exercising its first two powers it is doing so on the basis of policies that have passed through the decision-making processes of the EU – and that therefore have been agreed upon by Member States. Furthermore, the CJEU is by nature a slow actor, burdened by massive amounts of bureaucracy, and consequently rulings often take years to be made.

The CJEU seems to have the most power to impose policy change when it exercises its third power and rules on cases brought to it by national courts. However, this does not necessarily mean that policy change is imposed. The effect of the Zambrano and McCarthy rulings are not greatly felt in Member States who do not exercise the principle of ius soli – which is indeed the majority of them. 
NOTE: Until 2009, the Court of Justice of the European Union was generally referred to in the UK as the European Court of Justice (ECJ).  When speaking historically of the Court’s decisions, the abbreviation ECJ is still applied.  However, the media tends to continue to use the abbreviation ECJ when it should refer to either the CJEU as a whole or the subsidiary Court of Justice within the CJEU.  For the purposes of accuracy, we have adopted the use of CJEU to refer to all Court proceedings after 2009. For more details see europa.eu.

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