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Reviews
Book TitleThe European Court of Justice
Book AuthorRasmussen, Hjalte
Bibliographic Information, 1998, Pages : 412, ISBN 8760704411

Review Title
Reviewer(s) Beaumont, Paul

Short review

The European Court of Justice. By Hjalte Rasmussen. Copenhagen: GadJura, 1998.  Pp. 412.
Reviewed by Paul Beaumont - Professor of European Union and Private International Law,
University of Aberdeen.

This is not a second edition of Rasmussen's groundbreaking critique of the judicial activism of the European Court of Justice in his On Law and Policy in the European Court of Justice. A Comparative Study in Judicial Policymaking (1986, Nijhoff, Dordrecht). In some respects this is a much more conventional description of the Court of Justice and analysis of its jurisdiction but in other respects it is a fresh look at the Court's policymaking which moves on from Rasmussen's first and second level activism of 1986. It also has a third dimension which looks at the Court's approach to three substantive issues: anti-sex discrimination, environmental regulation and human rights.

The book is of uneven quality. First, the English varies from being excellent to being very poor. The author is not writing in his native language and is therefore to be commended for doing so well. He also took the precaution of finding a native English speaker to check his English. Unfortunately the variable quality in the English seems to reflect the fact that the author added material after the checking had been done. The publisher must take responsibility for not ensuring that the final version of the text of the book was copy-edited by a native English language speaker. Second, the references and cross references are not always accurate and complete. This diminishes the value of the book as a work of reference and would have been rectified by employing a copy editor. By way of illustration there is a reference on p.28 to a list of cases in footnote 23 which is clearly incorrect (should it be footnote 26?), on pp.32-33 there is a quote from former judge Everling with no citation of the source, and on pp.34-35 there is a fascinating account of the original intent argument which refers to a 1962 case but simply gives a cross reference to Chapter 6 and no citation of the case (upon examining Chapter 6 one finds that the only possible case is a 1965 one - variously referred to as Scarlatta or Sgarlatta in the book - and that it does not bear out the claim that the Court explicitly referred to the 'original intent' behind the locus standi of non-privileged applicants for judicial review of EC acts (Art. 230, ex 173) instead the Court referred to the 'clearly restrictive wording of Article 173'). Third, some chapters show a very thorough familiarity with the Court's case law and contain important suggestions for reform (eg Chapter 5 on preliminary rulings), some are of mixed quality (eg Chapter 6 on direct actions contains a very good analysis of locus standi in Article 173 actions but manages to deal with which acts are challengable and the grounds for annulment on page 183) and some fail to take account of important information (eg Chapter 4 on enforcement actions - Arts. 226 and 228, ex 169 and 171 - takes no account of the annual reports by the Commission Monitoring the Application of Community Law - the 15th Report is in OJ 1998 C250 - and fails to mention the Commission's memorandum on Art. 228, ex 171, fines, OJ 1996 C242/6 and the Commission's multiplier notice on how these fines will be calculated, OJ 1997 C63/2).

The above criticisms prevent the book being a suitable textbook on the European Court of Justice. However, it should be purchased by law libraries. There are many important nuggets in this book which academics with an interest in European integration will want to dig for. Advanced students will find much of benefit. There are some very interesting political insights which help to contextualise the framework in which controversial judicial decisions are made, eg the tensions caused by Member States having greater freedom of information than the Community (Sweden, p.97), Denmark and Germany wanting higher environmental standards than the Community in relation to PCP (pp.100-103), the need to restrict the retroactive effects of equal pay in the Defrenne case (pp.144-146), the desire of Denmark to protect its environment in the Danish Bottles case (pp.239-241), the lamb wars of 1979-80 between the UK and France (pp.339-349). At the theoretical level the book is a bit of a tease. It sometimes floats ideas without developing them eg the idea that the European Court of Justice engages in 'process activism' is suggested by reference to the very restrictive interpretation of locus standi for private applicants and the more generous standing granted to the European Parliament although it was not mentioned in the text under Art. 230, ex 173 (p.201). Process activism is a term borrowed from Lawrence Tribe, Constitutional Choices (1985, Harvard University Press, Cambridge) and defined as 'judicial policymaking which deploys procedural constraints and freedoms in pursuance of substantive policy-objectives'. Here the substantive policy is to promote European integration by increasing the powers of the most pro-European integration institution, the European Parliament whilst reducing the possibility of Community legislation being found invalid by preventing private applicants from being able to challenge legislation of general application. However, Rasmussen does not give a full account of process activism nor does he integrate it into a coherent theory of activism of his own (he does refer to it as 'sterile' on p.368 without explaining why). Perhaps we should not be surprised at this because Rasmussen, in the final section of the book, eschews any normative theory of interpretation of Community law (pp.296-7). He defends the main thrust of his 1986 book as being a prophecy that if the Court of Justice did not tone down its activism it would lose its legitimacy and authority. He is gratified that the Court did exercise self-restraint in the 1990's (see cases listed on p.294) but concludes that the Court should have done so earlier because 'the decline problems were already beleaguering the Court' (p.297).

Rasmussen suggests that the Court operates in a 'two-way interaction' rather than 'one way affection'. In other words the national governments and courts do not uniformly welcome all the decisions emanating from the Court of Justice and that Court responds to this fact. He illustrates 'two-way interaction' with several examples but the one with the most significant impact on European integration is the speculation that the Court's decision in Costa in 1964 to give supremacy to Community law was a major factor in the spill-back in integration which took place in the French empty chair policy of 1965 resulting in the Luxembourg Accords and nearly twenty years of a de facto veto in the Council. This in turn created a legislative vacuum which the Court filled by giving direct effect to Treaty provisions which should have been implemented by legislation, eg the Defrenne case on Article 119 (now 141) (see pp.306-325 and p.338). Rasmussen observes the political renaissance of the European Union beginning with the Single European Act in 1986, followed by increased qualified majority voting and Treaty reform at Maastricht and Amsterdam. The Court has responded with greater self restraint but Rasmussen is not yet ready to agree with Paul Kirchhof, a member of the German Constitutional Court, that the European Court now functions as an ordinary court (see pp.362-364). However, he is not the hammer of the Court seen in 1986. In a crucial paragraph at p.368 he indicates that he only wants modest restraint not major reversals of what the Court has achieved so far:

'It should be noted in passing that the arguments just made do not imply that the Community's judicial clock be rolled back to where it was before the 'Great Period'. The many fine achievements of the Court certainly merit a better fate than that. Self-restraint, including some kind of docket controls, Keck like overrulings and somefinetunings of existing case law should suffice to do the trick, and, at the same time, relieve the Court of most of the political, moral and intellectual burdens that go with a heavy substantive law activism.'

Perhaps surprisingly Rasmussen reveals himself, in the next paragraph, as a believer in judicial activism when the Court is upholding human rights, even though they are judicially developed, in encouraging the Court to more often decide that Community legislation is illegal because it breaches those rights. Perhaps this reflects his overriding commitment to fundamental rights and/or his genuine desire that the Court's reputation should be enhanced and thereby its legitimacy be protected due to the popularity of human rights. Reverting to type he concludes that the aim of an 'ever closer union' does not point clearly to any particular end destination for the European Union and should not be presumed to be a fairly centralized form of federalism. The ultimate destination of the Union should be determined by its peoples through their elected representatives rather than by a 'little group of elite and appointed judges' (p.372). The judicial role 'ought to shrink to the point where the Court's laws and policies accomplish nothing more than to compensate for what the political processes and institutions unlawfully left undone.' One could argue that this remit still leaves plenty of scope for an activist interpretation on such issues as horizontal direct effect of directives and actions for damages against Member States. Rasmussen might want to attempt a more carefully circumscribed definition of the Court's role. In the end of the day Rasmussen is content to trust the Court to engage in self-restraint having considered and rejected various proposals for externally imposed restraint.

The academic community of scholars interested in European Law owes a debt to Hjalte Rasmussen for his willingness to break out of the general mould of eulogising the Court of Justice in his controversial book in 1986. Judges are not democratically accountable and therefore their actions must be held to account by the small group of people who have the time and the training to follow their work closely. Criticism of the Court should be accepted as normal, especially by members of the Court. If the Court is acting properly its judgments and its apologists will have answers for their critics. Rasmussen may have had little to do with the Court's greater self-restraint in the 1990's but it is a welcome development. He is absolutely right to insist that the future direction of the European Union should be determined by its peoples in intergovernmental conferences and in the legislative process not by judicial rewriting of the words of the EC Treaty to conform to the Court's view of the meaning of the vague and inconclusive objectives of the Union set out at the beginning of the EC |Treaty. This book shows a willingness to temper his earlier criticism by taking account of the change of direction by the Court and accepting the legitimacy of some of the Court's key achievements like direct effect and supremacy. It is a much more balanced book that should be read widely and welcomed, especially within the Court of Justice.