Wednesday

22nd Nov 2017

Former German president bashes EU court

The European Court of Justice needs to be stopped from undermining national jurisdiction, former German President Roman Herzog and Lüder Gerken, the director of the Centre for European Policy, have warned in a comment published by the EUobserver.

The sharp words come in the wake of similar arguments coming from Denmark and Austria accusing the court of stepping beyond its bounds.

Thank you for reading EUobserver!

Subscribe now for a 30 day free trial.

  1. €150 per year
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

  • Similar arguments coming from Denmark and Austria accusing the court of stepping beyond its bounds. (Photo: wikiepdia)

Several cases analysed by Mr Herzog prove, in his view, that the European Court of Justice "systematically ignores fundamental principles of the Western interpretation of law", 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".

One key judgement, known as the Mangold case, is set to be analysed by the German Constitutional Court in Karlsruhe and will set the tone for future relations between the ECJ and national courts, writes Mr Herzog.

Mr Mangold, a 56-year-old lawyer, was employed in June 2003 on a permanent contract, in compliance with a temporary provision to the German labour law, which lowered the minimum age for temporary contracts from 58 to 52 years, in an attempt to encourage employers to hire more older workers.

Mr Mangold argued that this particular piece of German legislation contravened the principles within the EU's Equal Treatment Framework Directive adopted in 2000, as it was clearly age discriminatory.

The ECJ ruled in November 2005 that the provisions of the German labour market reform were indeed infringing the directive, although it accepted that member states still had until December 2006 to transpose it into national law.

However, according to the ECJ ruling, in the period leading up to the transposition of the directive, member states "must refrain from taking any measures liable to seriously compromise the attainment of the result prescribed by that directive."

Mr Herzog argues however that both labour market policy and social policy are under the jurisdiction - or in Brussels jargon - 'core competences' of the member states: "This case clearly demonstrates to what extent EU regulation and EU jurisdiction nevertheless interfere in the governing of these core competences."

In order to justify its judgement, the ECJ also resorted to a "somewhat adventurous construction", that a ban on age discrimination was included in the "constitutional traditions common to the member states" and "various international treaties", notes the former German president.

However, this was a "fabrication", he believes, as only in two of the then 25 member states - Finland and Portugal - was there any reference to a ban on age discrimination, and no international treaty mentions this at all.

"To put it bluntly, with this construction, which the ECJ more or less pulled out of a hat, they were acting not as part of the judicial power but as the legislature," he says.

The former German president proposes the setting up of an independent EU court to deal with competence questions, since the ECJ is "not appropriate" to watch over the subsidiarity principle and the matters of member states.

"The ECJ was created with the aim of providing a arbitrator to mediate in the interests of the EU and those of the member states," but on the other hand, it is bound by the EU Treaty to act towards achieving a closer Union, and therefore it is "no wonder" it overrides national competences, he argues.

Thus, he says, it is necessary for the German Constitutional Court to reject the ruling in the Mangold case, and to "restrain" the ECJ, otherwise it will be much more difficult to control the ECJ in the future.

Court under fire in Denmark, Austria

Mr Herzog's comments come amid growing frustration amongst Danish leaders that a ruling by the court regarding Irish legislation covering the residency rights of non-EU citizens who are spouses of citizens, is having a knock-on effect on similar Danish legislation.

In July, Ralf Pittelkow, an adviser to former Social Democratic Prime Minister Poul Nyrup Rasmussen, used language similar to that of Mr Herzog to describe the court.

"The judges are crafting a lot of policies because the politicians allow them the margin to do so," he said, writing in the Jyllands-Posten. "Political decisions that ought to be the responsibility of elected representatives are left with the court."

In 2006, former Austrian Chancellor Wolfgang Schussel also attacked the European Court of Justice after it forced Austrian universities to open its doors to more foreign students, arguing that the court was interfering in education, "a clear national competence," he said at the time.

To read President Herzog's commentary, please visit here

Mali blames West for chaos in Libya

Mali's foreign minister Abdoulaye Diop told the EU in Brussels that the lack of vision and planning following the Nato-led bombing campaign in Libya helped trigger the current migration and security crisis.

Mladic found guilty for Bosnia genocide and war crimes

The former Bosnian Serb warlord was sentenced to life in prison for committing genocide and war crimes in Srebrenica and Sarajevo. Mladic is still regarded as a 'hero' among some Bosnian Serbs, in a country undergoing resurgent nationalism.

Mali blames West for chaos in Libya

Mali's foreign minister Abdoulaye Diop told the EU in Brussels that the lack of vision and planning following the Nato-led bombing campaign in Libya helped trigger the current migration and security crisis.

News in Brief

  1. December euro summit still on, Tusk confirms
  2. EU calls for end to Kenya election crisis
  3. Report: Israeli PM invited to meet EU ministers
  4. French banks close Le Pen accounts
  5. Commission relaxes rules on labelling free range eggs
  6. Commission issues €34m fine over car equipment cartel
  7. Estonian presidency 'delighted' with emissions trading vote
  8. Mladic found guilty of genocide and war crimes

Stakeholders' Highlights

  1. Idealist Quarterly"Dear Politics, Time to Meet Creativity!" Afterwork Discussion & Networking
  2. Mission of China to the EUAmbassador Zhang Ming Received by Tusk; Bright Future for EU-China Relations
  3. EU2017EEEstonia, With the ECHAlliance, Introduces the Digital Health Society Declaration
  4. ILGA EuropeFreedom of Movement For All Families? Same Sex Couple Ask EU Court for Recognition
  5. European Jewish CongressEJC to French President Macron: We Oppose All Contact With Far-Right & Far-Left
  6. EPSUWith EU Pillar of Social Rights in Place, Time Is Ticking for Commission to Deliver
  7. ILGA EuropeBan on LGBTI Events in Ankara Must Be Overturned
  8. Bio-Based IndustriesBio-Based Industries: European Growth is in Our Nature!
  9. Dialogue PlatformErdogan's Most Vulnerable Victims: Women and Children
  10. UNICEFEuropean Parliament Marks World Children's Day by Launching Dialogue With Children
  11. European Jewish CongressAntisemitism in Europe Today: Is It Still a Threat to Free and Open Society?
  12. Counter BalanceNew Report: Juncker Plan Backs Billions in Fossil Fuels and Carbon-Heavy Infrastructure

Latest News

  1. Mali blames West for chaos in Libya
  2. Orban stokes up his voters with anti-Soros 'consultation'
  3. Commission warns Italy over high debt level
  4. Mladic found guilty for Bosnia genocide and war crimes
  5. Uber may face fines in EU for keeping data breach secret
  6. EU counter-propaganda 'harms' relations, Russia says
  7. The EU's half-hearted Ostpolitik
  8. Glyphosate: 1.3 million EU citizens call for ban

Stakeholders' Highlights

  1. Nordic Council of MinistersNordic countries prioritise fossil fuel subsidy reform
  2. Mission of China to the EUNew era for China brings new opportunities to all
  3. ACCASmall and Medium Sized Practices Must 'Offer the Whole Package'
  4. UNICEFAhead of the African Union - EU Summit, Survey Highlights Impact of Conflict on Education
  5. Nordic Council of MinistersNordic Council Calls for Closer Co-Operation on Foreign Policy
  6. Swedish EnterprisesTrilogue Negotiations - Striking the Balance Between Transparency and Efficiency
  7. Access EuropeProspects for US-EU Relations Under the Trump Administration - 28 November 2017
  8. Nordic Council of MinistersSustainable Growth the Nordic Way: Climate Solutions for a Sustainable Future
  9. EU2017EEHow Data Fuels Estonia's Economy
  10. Mission of China to the EUChina and EU Step Up Water Management Cooperation
  11. CECEMachinery Industry Calls for Joint EU Approach to Develop Digital Construction Sector
  12. EnelNo ETS Deal Means It Can Still Be Strengthened