It role, which falls outside of its scope.[2]


It is often argued that the European Court
of Justice (ECJ) acts beyond its judicial function based on the immense power
in which it uses to interpret both vague and arguably clear statutory
provisions of European Community law in a teleological fashion. Many critics maintain
that the ECJ asserts itself as not only a judicial entity but also as a legislative
body, threating the separation of powers of the European Community.1
Academics and politicians have critiqued the ECJ’s reasoning in a number of
decisions, claiming that the court has assumed a ‘quasi-legislative’ role,
which falls outside of its scope.2

This paper will contend that the Court has
not acted beyond its judicial function because its ability to act “dynamically”
and “teleological” is inherent in its nature, and such powers were conferred to
it by the founding fathers of the European Community.3

Secondly, it will highlight controversial decisions
by the Court, often wielded by critics as examples of “creative law making”, which
will be justified by the ECJ’s power to purposively interpret the aims and
objectives of the Community in order to fill ‘gaps’ by legislators.

The paper will conclude by highlighting
the importance of the Court’s teleological lens, and how it plays an
influential role in the modernization of Community law and the promotion of
European integration, with specific attention to its role in establishing the
general principle of fundamental rights in the modern European Union (EU).


of Power

The Treaties, which govern the EU, are
written broadly, giving the Court an ability to ‘purposively’ interpret the
texts contained in the Treaty with consideration of the objective of the
European Community itself.4
Some of these objectives are contained in Art 3 of the Lisbon Treaty, which includes,
among other things; the promotion of peace, economic growth, social justice,
the protection of individual rights, and the preservation of the free single
The preservation of these values is vital to the sustainability of the European
Community, and the ECJ’s powers to ‘add spirit’ to the Treaty is an essential
aspect of its judicial function.6
This allows the
Court, when interpreting EU law, to consider the evolving nature of the EU and
thus implement EU law in light of modern objectives, which did not exist at the
time of the Treaty’s creation in the mid twentieth century.7

The role of the Court was nicely
summarized by the ECJ in the CILFIT Case when it stated that “every provision of EU law
must be placed in the context and interpreted in the light of the provisions of
EU law as a whole, regard being had to the objective thereof and to its state
of evolution at the date to which the provision in question is to be applied”.8

Federico Mancini, who
defended the ECJ’s activism argued that the Courts purposive role was
inherently granted by the Treaty of Rome, stating that: “the preference for
Europe is determined by the generic code transmitted to the Court by the
founding fathers, who entrusted to it the task of ensuring that the law is
observed in the application of the Treaty whose primary objective is an ‘ever
closer union among the union of Europe'”.9

The Courts power to interpret and apply
the law purposively is derived from various statutory sources. For example, Article 19 TEU states that
Union Courts “shall ensure the interpretation and application” of the Treaty10 and
Article 6(3) of the TEU mandates the Union to respect fundamental rights.11  Article 31 of the Vienna Convention on the Law of Treaties,
provides that “a treaty shall be interpreted in good faith in accordance… in
the light of its object and purpose”.12

There is no doubt that the purposive
approach or ‘teleological’ approach to interpretation of the Treaty gives the
ECJ immense power, since it claims the ability to use wide discretion when performing
legal interpretation, but the notion that the Court “pays lip service to the
text of the treaties” and that it “sacrifice the language of the treaty at the altar
of the ever-closer Union” is unreasoned.13
Instead, the ECJ’s ability to ‘fill gaps’ in Community law that legislators
have overlooked, is deeply rooted in its philosophical function, empowering it
to derive grounding principles from the spirit of Community law which propel
and modernize the aims and objective of the Union itself.14



The first landmark cases of judicial
activism can be traced back to the 1960’s, most notably, the cases of Van Gend & Loos where the ECJ established the principle of direct effect15,
and Costa v ENEL which established
the doctrine of supremacy.16 The Court is often criticized for
“inventing” these concepts out of thin air since neither were statutory
provisions of Community Law. In fact, the court has also been credited with
creating other EU legal doctrines such as direct applicability and member state liability.17
Although some
may argue that the decisions in Costa v
ENEL, Van Gend & Loos, Francovich and other landmark
cases provide evidence that the ECJ has acted as a “quasi-legislative body”, such
commentators often forget that although these doctrines were not expressly
contained in the Treaties, they were also not completely ruled out by the
Treaties either.

Firstly, in regards to direct
effect, although by taking a black letter interpretation of the Treaty itself, there
was no direct statement requiring domestic courts to uphold principles of EU
law, the doctrine is self-evident through careful examination of the treaties
‘spirit’. For example, Article 234 of the EC (formally Article 177), which
established the preliminary hearing procedure, it is logical to conclude that
it would make no sense for individuals to invoke provisions of Community Law
before domestic courts if those court’s were not bound to apply them, nor would
it make sense for national courts to refer to the ECJ on questions of the
interpretation of Community law.18

It could also be argued that
Article 234 hinted at the objective of Community law supremacy since it would
make no sense for national courts of last resort to refer questions of
Community law to the ECJ if the national law would prevail in cases of

In regards to the state
liability, the ECJ reaffirmed that it was not responsible for creating the
doctrine, but rather, it was “inherent in the system of the EC Treaty”.20

 By examining the treaty in a teleological way,
it would be a fallacy to state that the ECJ “created” such principles of direct
effect, the doctrine of the supremacy and state liability. These aspirations
were deeply rooted grounding principles of the Treaty, which would almost
inevitably emerge as the Community modernized.


A case often cited by Europsceptics is Sturgeon v Condor, in which the ECJ
allegedly altered the clear text of Regulation 26/2004, which allowed
travellers to receive compensation for cancelled flights but not for delayed
flights.21 In
this case, the Sturgeon family had
incurred a 25 hour delay to their flight, in which they argued, should have
been considered cancelled, which would allow them to claim compensation under the
Regulation.22 The
preliminary ruling brought before the Court discussed whether long delays could
be classified as de facto cancellations.

The ECJ delivered a judgment in favour of
the Sturgeon family by interpreting the spirit of the treaty to promote equal treatment between
passengers whose flights are cancelled and passengers whose flights are
severely delayed, in cases where both parties would experience comparable burdens.23

Academics have heavily
criticized the judgement, claiming that the ECJ’s ruling crossed the boundaries
of its judicial function by extending Reg. 26/2004 beyond its original meaning
and wording.24 These
claims, however, fail to recognize the fact that the Regulation does not
explicitly exclude compensation for passengers whose flights are delayed, once again,
allowing for the ECJ to ‘fill the gap’ rather than creating law.25

Furthermore, the ECJ
justified its ability to interpret the EU law in such a way as not to affect the
validity of the law, and therefore the judicial interpretation in Sturgeon was in compliance with the
superior Community rule of equal treatment.26
Thus, by interpreting the Regulation in conformity with the equal treatment
principle, the ECJ chose to focus it’s ruling on the legislatures’ intention,
considering that the piece of legislation was adopted in the interest of
consumer protection.27
Sturgeon is often cited by critics as
a prime example of the ECJ assuming a ‘quasi-legislative role’, however, upon
further analysis, it seems as though the Court was performing its judicial
function by formalizing the underlying intention of the Regulation while
upholding the spirit of the Treaty.


European Integration: The Court’s Role

The EU of the past is
undoubtedly different from the modern Union that has shifted from its purely
economic origins to an entity which aims to further European integration. European
integration is the process of not simply promoting cooperation between the
various member states, but rather promoting a Union with a structure and a
system that upholds integration in all aspects of life.28
The task of promoting European integration is arguably one of the most
important judicial functions of the Court, however, such a role has often been
the subject of criticism because it lends the court an increased ability to be
judicially active.29

Perhaps the most progressive
step towards European integration is the development of fundamental rights in Community
law. The ECJ’s role in encompassing fundamental rights into Community law is possibly
one of its greatest achievements, which can be attributed to its unique
function to influence the development of the legislative bodies of the Union. To
say that the Courts duties for upholding such rights were not inherent in its
nature would be untrue. One can simply look at the political and economic landscape
of Europe following the Second World War. Such objectives were not completely
obvious to the ECJ during the early years of the Union however. The founding
Treaties establishing the EU were focused on economic objectives, although the
Preamble of the Treaty of Rome clearly alluded to both economic and social
progress as well as the deduction of obstacles that could interfere with trade and
fair competition.30

Despite these affirmations,
the ECJ denied its role to protect fundamental rights in the Stork case;31 however, an obiter statement in Stauder32 reaffirmed
that such fundamental rights constituted general principles of Community law, which
were subject to protection by the ECJ.33
One of the main reasons for declaring that the ECJ held the power to uphold
fundamental rights and freedoms was derived from the general principle of the
supremacy and legitimacy of Community law.34

In the years to come, the ECJ
would continue to establish fundamental rights as one of the most vital aspects
of European integration. After delivering judgments in several landmark cases,
the Court would eventually help to guide the legislative entities of the EU to
establish the Maastricht Treaty and the Lisbon Treaty, which would both
solidify the general principle of fundamental rights into Union law.35

Such an example of the Court’s
purposive approach to interpreting the treaty has obviously made a significant
impact on modernizing the Union, which has allowed the European Community to
grow with the times. Kaczorowska
suggests that without
the ECJ having been active in promoting legal and political integration, the EU
would not be the great power that it is today.36
The Court is a judicial body,
but its decisions and rulings have political effects, which makes the ECJ a
unique international entity. It is indeed fascinating that the founding fathers
of the treaties, during the last half of the twentieth century, failed to
develop any unified version of how Europe would look today, however, the judges
of the ECJ have followed a consistent course which has resulted in the
formulation of Europe as it is today.37