Thursday

21st Feb 2019

Opinion

The arrogant judges in Luxembourg and what it is actually about

It has become a kind of a sport for certain European politicians to criticise the European Court of Justice (ECJ) for acting beyond its competences. Prominent examples include former Austrian chancellor Wolfgang Schüssel and Danish prime minister Anders Fogh Rasmussen.

The argument goes that the Court in Luxembourg is interfering with the competences of the member states by systematically ruling on issues which do not form part of the EU's remit. In other words, the ECJ is being accused of creating new law instead of applying existing law.

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  • "Judges make good targets for public bashing because they do not shoot back" (Photo: Xavier Deweer)

Mr Schüssel in several interviews claimed that the ECJ had "in the last couple of years systematically expanded European competences," mentioning as an example the Austrian universities judgment of the ECJ of July 2005. In that case, the ECJ struck down an Austrian law restricting access of foreign students to Austrian universities.

Let us have a closer look at the case. Austrian legislation (the Universitäts-Studiengesetz) foresaw the following for students who had obtained their secondary education diploma in a member state other than Austria, and who intended to pursue their higher education (including university studies) in Austria: They were not only required to produce that diploma, but also to prove that they fulfil the conditions of access to higher studies in the EU member state where they obtained their diploma.

By this additional criterion, the Austrian government basically tried to get rid of the influx of German students in medical schools who for a couple of years had started to study at Austrian universities, many of them after having failed to get access to German medical schools.

Austrian universities case: the Court was right

The case concerned the free movement of persons, a principle fundamental to the internal market, which among other things gives students the right to reside and to attend studies in another EU country. Moreover, the 1992 Maastricht Treaty introduced EU citizenship, hereby further strengthening the free movement of persons principle.

The ECJ based its judgment on the provisions relating to vocational training in the EC Treaty (Art. 149 and 150). Among other objectives these provisions state that European Community action shall aim to facilitate access to vocational training and encourage mobility of students and teachers, particularly of young people.

The concept of 'vocational training' comprises any form of education, including at university level, which prepares for a profession, trade, or employment, the ECJ had already made clear in rulings in the 1980s.

The Court thus strictly followed the underlying logic of the internal market. Moreover, another article in the EC Treaty (Art. 12) for its part prohibits any discrimination on grounds of nationality.

The ECJ was obviously right to find that indeed this particular issue touched on European Community competences and that the Austrian legislation was in breach of the EC Treaty by discriminating students from EU member states other than Austria.

As the ECJ put it very clearly: the opportunities of the free movement of persons "are not fully effective if a person is penalised merely for using them". Interestingly enough, the only intervening member state in this case, Finland, did not support the Austrian government's position but that of the European Commission.

Danish and Norwegian complaints

What then lies behind the political astonishment in question? Danish Prime Minister Rasmussen, in a general criticism of the ECJ, was cited in the Austrian daily Der Standard as follows: "We all easily have the feeling that [at the ECJ], decisions are being taken of which the basis of the judgments do not fully correspond with what we have agreed as the political basis of the development of the EU."

Meanwhile, the sister court of the ECJ, the Court of the European Free Trade Association (which has jurisdiction over Iceland, Norway, and Liechtenstein), has faced criticism of engaging in illegitimate judicial activism, too.

In a recent case against Norway concerning its public gaming monopoly, the agent of the Norwegian government alluded to the possibility that his country would not implement a negative judgment from the court. Norway was of the opinion that if the gaming market is to be opened up, then this should not come about from the EFTA Court judges.

Mushy treaty language

A conference in May 2007 in Salzburg chaired by Professor Carl Baudenbacher, President of the EFTA Court in Luxembourg and a prominent scholar in that field, dealt with the subject of "acceptance and criticism of judgments". It brought together legal experts from EU and EFTA countries and elsewhere. One of the speakers, Ian Forrester, an eminent Brussels-based practising lawyer, made interesting remarks regarding the historical and political background of the criticism on the ECJ.

When the Rome Treaties were drafted between 1956 and 1957, the small group of diplomats in charge of the draft camouflaged gaps of understanding and of agreement by using mushy language. Well aware of what they were doing, they "overcame" the underlying political disagreements by using this fudging technique.

After the adoption of the Treaties, the British Embassy in Paris put forward a long list of questions regarding the actual legal effect of numerous Treaty provisions to the French Foreign Ministry. Shortly after this, in July 1958 the European Commission, having been informed about the issue, acknowledged the uncertainties and promised to clarify them as soon as possible.

Unsurprisingly, this never happened because it would have meant re-opening the negotiations on sensitive political issues on which the member states had been unable to agree!

Hence, the interpretation of those provisions was left to the ECJ which was supposed to find answers in a legal framework which was far from being clear and carefully drafted. In that situation, the ECJ followed a way of interpretation which is determined by the purposes and objectives of European integration – as they were defined in the preamble and the introducing Treaty provisions by the political leaders themselves: "To create an ever closer union among the peoples of Europe."

Judges as bashing targets

Politicians have their own agenda and it is common knowledge that it is always easier for a national politician to blame somebody else for a situation, especially if this somebody is an anonymous court far away in Luxembourg, without a face known from the media.

It is furthermore common ground that politicians want to get re-elected and it is of course not easy to sell the constraints posed by treaties to the public at home. In the Austrian university case, the proper solution would have actually been to find a political agreement at the European level on the impact for the national (social and educational) budgets caused by the free movement of persons provisions.

Yet, instead of addressing this obvious issue at the political level it was again left to the Court to find answers to uncomfortable questions.

Judges have the task of interpreting the law and rendering judgments. They do not comment on their judgments in the media nor do they shoot back when being criticised. This is exactly what makes judges such good targets for public bashing – unlike politicians who will loudly fire back when being attacked.

Simon Planzer is a Zurich-based attorney at law and research fellow in European and international business law at the University of St.Gallen

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