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Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint

  • Oreste Pollicino


“Those with a taste for fairy tales seem to have thought that in some Aladdin's cave there is hidden the Community law in its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more.”

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1 Reid, Lord, The Judge as Law Maker, 12 Journ. Soc. Pub Teach Law 22 (1972).

2 Stein, E., Lawyers, Judges and the Making of a Transnational Constitution, A. J. Intn'l L. 1 (1981).

2 Rasmussen, H., On law and Policy in the European Court of Justice (Martinus Nijolf ed., Copenhagen 1986); H. Rasmussen, Between Self restraint and Activism: A Judicial Policy for the European Court, 13 Eur. L. Rev. 28 (1988); P. Neill, The European Court of Justice: a Case Study in Judicial Activism, 218, Intergovernmental Conference, Minutes of Evidence, House of Lords 1996.

3 Weiler, J.H.H., The Court of Justice on Trial, 24 Common Market L. Rev. 555 (1981); M. Cappelletti, Is the European Court of Justice Running Wild?, 12 Eur. L. Rev. 3 (1987); M. Cappelletti, The Law-Making Power of the Judges and its Limits, M. U. L. Rev. 15 (1981); D. Keeleng, In Praise of Judicial Activism, but What Does It Mean? And Has the European Court of Justice ever Practiced It?, in Scritti in onore di G.F. Mancini, 505 (Curti Gialdino ed., Milano 1998); T. Tridimas, The European Court of Justice and Judicial Activism, 21 Eur. L. Rev. 199 (1996); G.F. Mancini, Attivismo e Autocontollo nella Giurisprudenza della Corte di Giustizia, RDE 229 (1990); Lord Slynn of Hadley, What is a European Community Judge?, 52 C.L.J. 234 (1993).

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.

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.

In France, where the reaction against formalism started, the spokesman of the new generation of lawyers was Geny. He embodied the reaction of legal theory against the excessive legalism of the post-codification era.

6 Koopmans, T., The Theory of Interpretation and The Court of Justice, in Liber Amicorum in Honour of Lord Slynn of Hadley (D. O'Keeffe & A. Bavasso eds., 2000), Vol. I, Jud. Rev. in Eur. Union L., Kluwer L. Int'l 48 (2000).

7 See Cappelletti, M., supra, note 2, at 22. The importance of choice in judicial process is accentuated by the willingness of political branches of governments to pass responsibility for difficult decision to the judiciary.

8 Kutscer, H., Methods of Interpretation as Seen by a Judge of The Court of Justice 2, sect 6(a).2 (Luxemburg 1976).

9 Koopmans, T., The Roots of Judicial Activism, in Protecting Human Rights: The European Dimension, Studies in Honour of Gerard J. Wiarda 327 (Mather & H. Petzold eds., 1988).

10 Keeleng, D.T., supra note 3, at 510, where the Author uses the example of the construction of Article 28CE.

11 Id. at 512.

12 Case 283/ 81, Cilft v. Italian Ministry of Health, 1982 E.C.R. 3415, 3430.

13 See, Everling, U., On The Judge-Made Law of the European Community's Courts, supra note 6, at 38.

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).

15 Tridimas, supra note 14, at 4.

16 See, Everling, , supra note 13, at 28.

17 See, Diplock, Sir K., The Courts as Legislators, in The Lawyer and Justice 263 (B.W. Harvey ed., London 1978).

18 See, Cappelletti, M., supra note 3, at 43.

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).

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).

21 Case 13/94, P v.S and Cornwall County Council, 1996 E.C.R. I-2143.

22 C-249/96, Grant v. South West Trains Ltd, 1998 E.C.R. I-621.

23 Case 43/75, Defrenne v Sabena, 1976 E.C.R. 455.

24 Supra, note 20.

25 Supra, note 21.

26 Case 26/62, Van Gend en Loos v. Nederlandse Admistratie der Belastingen, 1963 E.C.R. 1.

27 Case 6/64, Costa v Enel, 1964 E.C.R. 585.

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

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

30 Defrenne, , supra note 23, at 460.

31 See Arnull, A., The European Union and Its Court of Justice, Oxford EC Law Library 460 (1999).

32 Supra, note 25, at 13, where the Court took in consideration the “spirit, the general scheme, and the wording” of the provision.

33 Defrenne, , supra note 23, para 7.

34 See, Bengoetxea, J., The Legal Reasoning of the European Court of Justice 233 (Oxford 1993).

35 Defrenne, , supra note 23, para 1.0

36 Rasmussen, H, supra note 3, at 62.

37 Rasmussen, H., supra note 3, 32.

38 Cappelletti, M., supra note 2, at 6.

39 Defrenne, , supra note 23, at 489.

40 Supra, note 26, at 12.

41 Rasmussen, H., supra on law. note 3, at 29.

42 Van Gend en Loos, supra note 25 at para. 13, where the Court indicated that a Treaty provision can be directly effective only if it is not “qualified by any reservation on the part of States which would make its implementation conditional upon a positive legislative measure enacted under national law”.

43 Hartley, T., Constitutional Problems of the European Union 42, note 70 (Oxford 1999).

44 See, Constantinesco, V., The ECJ as A Law Maker: Praeter aut Contra Legem?, in Liber Amicorum, supra note 5, at 79.

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).

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.

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.

48 Defrenne, , supra note 23, at 492, AG Conclusions.

49 Id. at para 71.

50 Id. at 72-73.

51 Id. at para 74.

52 Id. at para 75.

53 In other words, a ruling which has an effect ex nunc and not ex tunc.

54 See Wyatt, D., Prospective Effect of a Holding of Direct Applicability, Eur. L. Rev. 399 (1976).


56 See, Waelbroeck, M., Can the Court of Justice Limit the Retrospective Operation of its Judgements?, Year Book Eur. L. 115 (1981).

57 See, Gerven, W. Van, Contribution de l'Arret Defrenne au Developpment du Droit Communitaire, 13 C. D. E. 131 (1977); T. Hartley, The European Court, Judicial Objectivity and The Constitution of European Union, 112 L. Q. R. 97, n.10 (1995).

58 Great Northern Railway v. Sunburst Oil and Refining Co. 287 US 358 (1932).

59 Arnull, A., The European Court and Judicial Objectivity: A Reply to Professor Hartley, L. Q. L. R. 414 (1996).

60 Linklatter v. Walke,r 381 U.S. 618 (1964).

61 Mapp v. Ohio, 367 US 643 (1961).

62 Linklatter supra note 60. See Joiliet, R., Le Droit Instituionnel de Communitès Europeennes. 225 (Le Contieux, Liege, 1981); G. Gunther, Cases and Materials in Constitutional Law, 546 (New York 1975).

63 Hamson, C., “Methods of interpretation- a Critical Assessment of the Results” in Reports of a Judicial and Academic Conference (Luxemburg, 1976) p II-15.

64 Hartley, , supra note 43, at 41.

65 Hartley, , supra note 57, at 97.

66 Diplock, Sir K., The Courts as Legislators, in The Lawyer and Justice 281 (B. W. Harvey ed., 1978).

67 See, Lenaerts, K., Le Juge et la Constitution aux Etats-Unis d'Amerique et Dans L'Ordre Juridique Europeen 703 (Bruxelles 1988).

68 See, Tridimas, , supra note 3, at 201.

69 See, Keeling, , supra note 3, at 534.

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

71 See, Cappelletti, M. & Golay, D., Judicial Branch in the Federal and Transnational Union, in Integration Trough Law 333, note 281 (M. Cappelletti, et al, eds., Vol I, Berlin 1986).

72 Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions 1976 O.J. (L39/40).

73 Cambell, A. & Lardy, H., Discrimination Against Transsexuals in Employment, 21 Eur. L. Rev. 413 (1996).

74 For a deep analysis of these cases see Tridimas, supra note 14, at 69.

75 P v. S, supra note 20, at 2157.

76 It is a typical formula, as seen in Defrenne, which indicates the Court's will to adopt a teleological interpretative approach.

77 Flynn, L., Case Note on P.v.S. and Cornwall Council, 34 Common Market L. Rev. 384 (1997).

78 P v.S, supra note 21, at para 19.

79 See, Flynn, L., supra note 77, at 384.

80 For a critique of this concept, see More, G., Equal Treatment of the Sexes in European Community law: What Does “Equal” Mean?, 1 F. L. S. 51 (1993). He underlined how it is a tautological notion: “it tells us to treat like people alike; but when we ask “who like people”, we are told they are people who should be treated alike”.

81 See, Tridimas, supra note 14, at 70.

82 P v.S, supra note 21, at para 21.

83 Denys, C., Homosexuality: a non-issue in Community Law?, 24 Eur. L. Rev. 422 (1999).

84 P v.S, supra note 21, at para 22.

85 Tridimas, , supra note 14, at 70.

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.

87 Grant, , supra note 22, at para 27.

88 Grant is compared with a male homosexual.

89 Dennys, , supra note 83, at 423.

90 Wintemute, R., Recognising New Kinds of Direct Discrimination: Transsexualism, Sexual Orientation and Dress Codes, 60 M. L. R. 345 (1997). See also, Bamforth, N., Sexual Orientation Discrimination after Grant v South-West Trains, M. L. R. 63 (2000).

91 See Flynn, supra note 77, at 381; C. Barnard, P.v S: Kite Flying or New Constitutional Approach?, in The principle of Equal Treatment in E.C. Law 78 (A. Dashwood & S. O'leary eds., London 1997).

92 Grant, , supra note 21, at 633.

93 P v S, supra note 22, at para 21.

94 Where the Court took “a tentative step to underline that the Union is not only about securing market freedoms but also achieving social justice”, Barnard, supra note 91, at 70.

95 Hartley, T., The Foundations of European Community Law 78 (1998).

96 Supra section 2.1.

97 Where the Court affirms that the transsexual's discrimination is based on the sex of the person concerned.

98 See, Denys, , supra note 83, at 424.

99 Grant, , supra note 21, at para 33.

100 See, Dennys, , supra note 83, at 424; See also, Berthou, K. & Masselot, A., La CJCE et Les Couples Homosexuels, 12 Droit Social 1037 (1998).

101 See, Bell, M., Shifting Conceptions of Sexual Discrimination at The Court of Justice: from P.v S to Grant SWT, 5 Eur. L. J. 73 (1999).

102 Applications no. 33985/96 and 33986/96, 29 EHRR 493 (2000). See also, Da Silva Mouta v. Portugal (application no. 33290/96), which reinforced the Court's decision in Smith, affirming that sexual orientation discrimination can violate Article 14 of the Convention, which prohibits discrimination in the enjoyment of other Convention Rights.

103 P v. S., supra note 21, point 42 AG Elmer.

104 As Flynn has pointed out, “protection of homosexuals in relation to decisions to appoint, promote, or dismiss employees would affect more employers than the protection of transsexuals. Besides, there was the prospect that employment-related benefits such as health insurance, pension coverage and other advantages would have to be extended to the partners of lesbians and gay men.” Flynn, supra note 77, at 381.

105 Id.

106 Grant, , supra note 22, at para 35

107 Id. at point 17 AG Elmer.

108 Id. at para 36.

109 Id. at para 48.

110 On the value and the challenges of the new Article 13 in the context of the principle of equality, see Flynn, L., The Implications of Article 13 After Amsterdam: Will Some forms of Discrimination be more equal than others?, Common Market L. Rev. 1138 (1999).

111 Mancini, G.F., The Making of a Constitution for a Europe, 26 Common Market L. Rev. 613 (1989).

112 See McInnes, J., Case Note on Case C-249, Lisa Jacqueline Grant v. South West Trains Ltd, 36 Common Market L. Rev. 1054 (1999).

113 See, Rinze, J., The Role of the European Court of Justice as a Federal Constitutional Court, 5 E. P. L. 426 (1993); W. Van Gerven, Towards a Coherent Constitutional System within The European Union, E. P. L. 81 1996; Jacobs, F.G., Is the Court of Justice of the European Communities a Constitutional Court, in Constitutional Adjudication in European Community and National Law, Essays for the Hon. Mr Justice O'Higgins, T.F. 25 (D. O’ Keeffe & Curtin, D. eds., Ireland 1992); A. Donner, The Constitutional Powers of the European Court of Justice of the European Communities, 127 Common Market L. Rev 14 (1974).

114 See, Posner, R., Law and Legal Theory in UK and USA 14 (Oxford 1996); T. Tridimas, Judicial Review and The Community Judicature: Towards a new European Constitutionalism?, 3 T. L. J. 119 (2001).

115 Supra note 72.

116 Cappelletti, & Golay, , supra note 71, at 327, emphasis added.

117 J.H.H Wailer, Federalism and Constitutionalism: Europe's Sonderweg, 13 Harvard Jean Monnet Paper (10-2000). He explains the meaning of the principle of the Principle of Tolerance in the usual brilliant way: “constitutional actors in the Member States accept the European Constitutional discipline not because as a matter of legal doctrine…. They accept it as a it as a an autonomous voluntary act…. The Quebecois are told in the name of the people of Canada, you are obliged to obey. The French or the Italians or the Germans are told: in the name of peoples of Europe, you are invited to obey…. When acceptance and subordination is voluntary, it constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: a high expression of Constitutional Tolerance”

118 See, Cappelletti, & Golay, , supra note 71, at 333.

119 See, Mancini, , supra note 111, at 604.

* Master in European law, Bologna University; LLM in European law, College of Europe, Bruges; PhD in Costitutional law, Milan University; Lecturer in Public law, Bocconi University, Milan.

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Legal Reasoning of the Court of Justice in the Context of the Principle of Equality Between Judicial Activism and Self-restraint

  • Oreste Pollicino


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