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⁴ This concept has been elaborated by Authors influenced by F. Geny. According to this view, deciding a case cannot merely consist of subsuming certain facts under a pre-existing rule of law; the decision itself will add to the interpretation of the rule to be applied, and may thus help to define its meaning.Google Scholar

⁵ This expression tended to accentuate the element of pure and mechanical logic in judicial decision making, while neglecting, or concealing, the voluntaristic, discretionary, element of choice.Google Scholar

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¹⁴ In this context, T. Tridimas uses an evocative metaphor when speaking of general principles as “children of national law, but as brought by the Court they became enfants terribles“. See Tridimas, T., The General Principles of EC Law 4 (Oxford 1999).Google Scholar

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¹⁹ It must be emphasized, in this context, a main difference, between the European Courts, particularly the European Court of Justice, where the jurisdiction is mandatory and the US Supreme Court, where most cases come to it by the procedure known as certiorari and over 95 per cent of these cases are dismissed without any review because they are considered as raising no issue of general importance nor representing major injustice. Thus, “the Washington Justices have the inestimable privilege of being able to decide what to decide.” See Mancini, G F., The US Supreme Court and the European Court of Justice, in Legal Aspects of Integration in the European Union 3 (Emiliou, & O'Keeffe, D. eds., London 1997). It must also be underlined, as brilliantly noted by O'Keeffe, D., that the European Court of Justice is sometime able to reach the same result by using the notion of inadmissibility under article 234. See O'Keeffe, D., Is the Spirit of Article 177 Under Attack? Preliminary Reference and Admissibility, 23 Eur. L. Rev. 509 (1998).Google Scholar

²⁰ A clear exemplification of this attitude is given by the obstinacy of the Court to apply the mandatory requirements doctrine only to indistinctly applicable measures, often manipulating the configuration of the facts of the case, transforming a clearly discriminating measure into an indistinctly applicable measure in order to be able to justify it on the grounds of the mandatory requirement. See Bengoextea, J., et al., Integration and Integrity in Legal Reasoning of the European Court of Justice, in The European Court of Justice 73 (G. De Burca & J.H.H. Wailer eds., Oxford 2001).Google Scholar

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²⁸ Some of them were underlined in the observations of the U.K. and Irish Governments.Google Scholar

²⁹ The judgment which gave direct horizontal effects to these provisions was the Case 36/74, Walrave v. Kock, 1974 E.C.R. 1405.Google Scholar

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⁴⁵ The Court reached its goal. In fact after the judgment the Commission started to do its job properly and brought a number of actions against the failing Member States. See Mancini, G.F. & Keeleng, D., From ERT to CIFLT: The Constitutional Challenge Facing the European Court, in Year Book of European Law 10 (1991).Google Scholar

⁴⁶ So called because it was introduced for the first time by Brandeis in the case of Muller v Oregon, 208 U.S. 412, when before becoming a Judge of the Supreme Court, he worked as a lawyer before the same Court. Brandeis managed to prove that the physical differences and differences to attitude regarding work between men and women were such as to permit a State to prohibit a working day of over 10 hours for women alone. Basically, by presenting for the defence of his argument a voluminous documentation of a medical, sociological and psychological nature, Brandeis convinced the Court that the measure in question was not discriminatory since there were significant differences between the two sexes which legitimated it, and it was thus not in conflict with the Federal Constitution.Google Scholar

⁴⁷ Defrenne, , supra note 23, at 492, AG conclusions: He referred to the Case 28-67, Molkerei-Zentrale Westfalen Lippe, 1968 E.C.R. 206, where the Court, in spite of the possible economical consequences, decided to not alter its interpretation of Article 90 (ex 95), declaring that the argument was not by itself of such a nature as to call in question the correctness of that interpretation.Google Scholar

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⁷⁰ A method that tends to emphasize the manifest significance of legal rights created by EC law.Google Scholar

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⁸⁶ This should be a concrete explication of what I affirmed in the first part of the paper, when I contested the common opinion according to which judicial creativity should be present only in activist or pro-integration decisions and not in the cases where the Court decides to adopt an approach of self-restraint. See, supra section 1.3.Google Scholar

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