The Malta Independent 26 March 2023, Sunday
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Herzog’s Warning: the ECJ must be restrained

Malta Independent Sunday, 14 September 2008, 00:00 Last update: about 10 years ago

“Stop the European Court of Justice”, writes former German President Roman Herzog in an article with that title, which he co-wrote for Frankfurter Allgemeine Zeitung on 8 September. Not to be confused with the European Court of Human Rights (Strasbourg), Herzog was referring to the Luxembourg-based ECJ’s gradual metamorphosis from a court that was to act as an arbiter over conflicting interpretation of EU legislation by member States and the Union, to an actual legislature that is self-empowered to overturn national legislation and enact new EU law in areas where the Union has no competence.

“Judicial decision-making in Europe is in deep trouble,” writes Herzog. “The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving member States of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing.”

Herzog went on to explain why “the German Federal Constitutional Court recently decided to intervene,” citing a pending judgement by the federal court “that will be of fundamental importance for the further development of European jurisdiction, since it concerns the question of whether the excessive legal practice of the ECJ should in future once again be subject to stricter controls by the German Federal Constitutional Court, or whether the Federal Constitutional Court should resign once and for all from its watchdog position.”

I will not venture into the actual pending judgement, which concerns Germany’s labour market reforms introduced by the red-green coalition at the end of 2002 and which were subsequently declared “null and void” by the ECJ. The gist here is that whereas labour market policy and social policy, among others, are still core competences of member States, EU regulation and EU jurisdiction interferes with these competences through decisions taken by the ECJ, thwarting the competences of the member States and ignoring the principle of subsidiarity which entails the EU to take action only if it could provide better solutions than the member States, usually measures that have a cross-border impact.

In most cases, the ECJ infringement concerns politically correct decisions, such as the 2006 statutory ban on tobacco ads in newspapers, related to the area of health care policy where the EU has no legislative competence. In this case, when Germany sued the EU, the ECJ dismissed the case on the supposition that the single market would be impeded without an EU-wide ban, even though local newspapers are hardly ever sold abroad.

Herzog also cites two judgements of 2005 and 2007 establishing an EU competence in the area of criminal law by way of environmental policy. Here, the ECJ had dismissed member States’ arguments that such a competence did not exist. Herzog quotes from the ECJ’s legal interpretation of the treaties:

“As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence. However, the last-mentioned finding does not prevent the Community legislature from taking measures which relate to the criminal law of the member states that it considers necessary” (in order to enforce EU law, in this case in the field of environmental policy, and to oblige the Member States) “to introduce such penalties.”

Herzog gives a number of examples where the ECJ overturns the will of national legislators in areas where the Union has no competence or jurisdiction – anyone interested in the legal arguments should read the translated article on EUobserver (see link below). Herzog and Gerken lament that “at the European level, such incapacitation of the ‘Masters of the Treaties’ appears to go unresisted!”

The “Masters of the Treaties” are in fact the member States, yet it is becoming more and more evident that it is the unelected ECJ in collusion with the unelected Commission that have become the masters not only of the treaties, but also of national legislation, overruling it whenever it suits the Union.

Herzog and Gerken reiterate that the cases they describe “show that the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, that its decisions are based on sloppy argumentation, that it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgements. They show that the ECJ undermines the competences of the member states even in the core fields of national powers.”

They conclude that “the ECJ is not suitable as a subsidiarity controller” and as “a protector of the member States’ interests”, adding that this comes as no surprise since according to the EU treaties the ECJ is obliged to take part in the “process of creating an ever closer union” (Articles 1 and 5, TEU). This makes the ECJ an officially biased court for it is expected to decide “in the spirit of the union”.

The warning is clear: “An EU-biased jurisdiction of the ECJ leads to the situation that the areas where the ECJ may judge are also growing, thereby displacing member States’ courts, which means that the ECJ is constantly gaining influence.”

If the German federal court decides in favour of the litigants, “the ECJ would be restrained”, they write. This means that by applying EU regulation in accordance with the interpretation of the ECJ, fundamental rights as guaranteed by the German legal order could be encroached upon in a way which could entail the competence of the German jurisdiction to decide whether EU laws are in conformity with the supreme legal order of Germany. That would be a tremendous blow to the principle of unconditional supremacy of EU law over national laws; a principle established by the ECJ itself and which would have been officially accepted by the member States through the Treaty of Lisbon.

Yet if the constitutional case is dismissed it “would make it much more difficult, probably impossible, for the Federal Constitutional Court to control the ECJ in the future.”

It is not only Roman Herzog who is concerned about the ECJ’s usurpation of power. A ruling by the ECJ concerning Irish legislation on the residency rights of non-EU citizens who are married to EU citizens is having a negative impact on similar Danish legislation. Last July, Ralf Pittelkow, who was a legal adviser to the then Danish Prime Minister Poul Nyrup Rasmussen (today an MEP and President of the Party of European Socialists), wrote in the Danish daily Jyllands-Posten, “The judges are crafting a lot of policies because the politicians allow them the margin to do so. Political decisions that ought to be the responsibility of elected representatives are left with the court.”

Likewise, former Austrian Chancellor Wolfgang Schussel argued in 2006 that the ECJ was interfering in education, “a clear national competence”, after forcing Austrian universities to receive more foreign students.

There is little doubt that the ECJ will fight back over its implied right to infringe on national competences. But if the Treaty of Lisbon takes effect, this infringement would become an established right. The ECJ would then be able to grow faster and more influential. There could even come a time when we would not even need our constitutional courts, while our legislative bodies are rendered no more competent than today’s local councils, with an administrative rather than a legislative role.

Sharon Ellul-Bonici is a prospective MEP candidate with the Malta Labour Party and currently works in the European Parliament.

Link to article by

Roman Herzog and Lüder Gerken:

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