by Elaine Fahey and Maria Weimer

The European Court of Justice does not make law per se, but it has to make many choices, and it has to make them fast and within page limits. Advocate General Eleanor Sharpston’s visit to the Architecture of Postnational Rule-Making Project at the University of Amsterdam clarified her perspective.

In her talk in the Architecture Dialogue Series at the University of Amsterdam AG Sharpston engaged with an intense debate in recent academic publications on the legitimacy of the European Court of Justice, and its alleged judicial activism. She made a plea to judge the Court in its complex, imperfect legal and practical context. Reform of the procedures and functioning of the Court is urgent, as it has a direct impact on both the quality and legitimacy of the EU’s highest Court.

The AG’s response to the question raised in the title of her talk ‘Does the EU Court of Justice make law?’ can be summarized as follows. It usually does not. Instead, the Court often has to choose a legal meaning from a range of possible meanings, beginning with its teleological approach to interpretation. In doing so, it is confined to the ‘parameters’ of EU legislation and legal adjudication, namely the circumstances of the particular case, the parties’ submissions, and the text of the law, which is often the result of a compromise carrying with it either an accidental or deliberate ambiguity, something wholly unforeseen. Under these circumstances, ‘it is almost inevitable for the Court to go beyond the bare text.’ ‘No court works in a vacuum,’ emphasized Sharpston. And, yet, according to her, interpretative choices whilst sticking to the limits of the law’s text is not law making, but merely ‘law exposition.’ While this is arguably walking a tightrope, the AG defined what in her view are acceptable criteria for making judicial interpretative choices. On the basis of the preamble, the legislative history and the text, the Court can acceptably make a teleological interpretation to overcome legislative ambiguity. However, what is not acceptable in Sharpston’s view is to write a completely different notion from what the text says or to second-guess the legislature. By contrast, the Treaty text was often not ambiguous but rather simply ‘bare’. She thus sought to contrast law-making, law-exposition and ‘plugging the gaps’.

The difficulty of rules not spelling out the conditions of their application is of course not new but it may raise particular challenges. One such case is the decision of the Court in Sturgeon according to the AG. This case concerned the legal interpretation of time limits for passenger compensation under the Air Passenger Regulation. The AG emphasized that several preliminary references had arisen under this EU law on account of ambiguities in legislative drafting. Sturgeon was one such prominent reference. This case afforded the AG the opportunity to reflect more broadly and engage in a lively discussion upon two ‘bookend’ Introduction and Epilogue contributions to the recent publication Judging the Judges’. The publication involved Judge Koen Lenaerts and Prof. Joseph Weiler examining the legitimacy of the interpretive practices of the Court of Justice. Sharpston spoke candidly about the conflicting assessment by Lenaerts and Weiler of her Opinion in the Sturgeon decision. In that case, Lenaerts was President of the chamber of the Court which did not follow her Opinion. Her Opinion was crystal clear on the impermissibility on separation of powers grounds of the ‘creation’ of certain time limits, neatly put as follows: ‘The Community legislator can select a particular time-limit… The Court cannot.’ Her cautious approach met the approval of Weiler but not of the Court itself. Lenaert’s formalistic justification of the Court nonetheless filling the gap with an explicit time limit could be seen to intrude upon the legislator’s prerogatives.

Finally, the AG offered many interesting insights into the practical workings of the Court during the lively question and answer session. ‘We are running the system at its limits,’ she said. It was under tremendous pressure to write important legal opinions in very limited time periods. Similarly, there was an allocation to each AG of a limited number of printed pages per case– in order to allow translators to manage their workload, which nonetheless impacted upon the reasoning, and more fundamentally, the legitimacy of the Court. Members of the audience posed questions as to how the Court could limit its caseload or introduce dissenting judgments so as to ameliorate the quality of its work.

To conclude, AG Sharpston certainly provided a telling account of the realities of legal adjudication in the EU. However, some open questions remain as to whether the distinctions drawn between law-making, law-exposition and gap-plugging can in reality so sharply be drawn and justified. Also, whether the gap between such distinctions with respect to primary and secondary law can be cleanly drawn. But the AG did not address another important issue, namely the criticism of an alleged ‘integrationist bias’ in the Court’s case law. In fact, the Court is not equally ‘activist’ in all areas of EU law showing more deference to EU than to Member States’ institutions. An example of a ‘not-activist’ Court is its long-standing case law of ‘judicial self-restraint’ with regard to the locus standi of individual applicants (eg Plaumann, and recently Inuit Tapiriit Kanatami). Furthermore, AG Sharpston did not really address why the Court made law in, for example, Sturgeon and other cases, eg Mangold – arguably because it can, as one of the most powerful independent contemporary courts, one that neither legislatures nor Member States can readily reverse or constrain.

Dr. Elaine Fahey and Dr. Maria Weimer are both senior research fellows at the Amsterdam Centre for European Law and Governance

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