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28th Jan 2023

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.

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  • 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

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