Why the European Court of Justice is the EU's Own Worst Enemy

• Author: Chris Knight
• Position: Undergraduate Student in Law (BA), Queens College, University of Cambridge
• Pages: 91-102

QuIs

CUSTODIET

IPSOS

CUSTODES?

1

WHY

THE

EUROPEAN

COURT

OF

JUSTICE

IS

THE

EU's

OWN

WORST

ENEMY

CHRIS

KNIGHT*

Euro-scepticism

is

alive and

kicking

in

the

Member

States

of

the

European

Union.

The

most

obvious examples

are

the

votes

against

the

Draft

Constitutional

Treaty

in

France

and

the

Netherlands, but

the

rise

of

single

issue

political

parties

in

the

UK

(their

single issue

being

Europe)

is

disquieting

too.

Is

something

rotten

in

Brussels?

Certainly

enough

allegations

fly

around. What

is

particularly

concerning

to

the

lawyer

is

the

approach

of

the

European Court

of

Justice.

It

will be

suggested that the

ECJ

is

proving

to

be

the

EU's

own

worst

enemy

in

its

approach

to

difficult

and

controversial

questions

of

EU

law. Three

areas

in

particular

will

be

looked

at.

The

interpretation

of

Article

5

of

the

EC

Treaty

is

essential,

for

it

is

the

base

of

the

legal

measures

being

taken

and

the

Court reviewing

those

measures.

Standing for

private

parties

is

another

key

area

where

the

right

of

a

citizen

of

the

EU

to

challenge

the

Community

institution that is

affecting

his

rights

and

duties

has

been

emasculated. Finally,

a

short

study

will

be

made

of

one

particular

area

of

European

law

and

its

impact upon

the

workings

of

the

Member

State,

that

of

the

conflict

of

laws and

the

Brussels

I Regulation.

Article

5 and the

ECJ

Article

5

of

the

EC

Treaty

clearly

establishes

a

requirement

of

subsidiarity

and

proportionality

for

a

Community

act.

This

was not designed

to

be

an

.

Undergraduate

Student

in

Law

(BA),

Queens College, University

of

Cambridge.

My

thanks

to

Dr.

Barnard

and

Dr.

Rogerson

for

their

helpful discussions upon

these issues,

and

to

Francesca

Best

for

her

editorial help.

'

'Who

will

guard

the

guardians?'

2

Article

5 provides:

[tihe

Community

shall act

within the

limits

of

the

powers

conferred

upon

it

by

this

Treaty.

In

areas

which

do

not

fall

within

its

exclusive competence,

the

Community

shall

take

action, in

accordance

with

the

principle

of

subsidiarity,

only

if

[this]

cannot

be

sufficiently

achieved

by

the Member

States

and

can

therefore

be

better achieved

by

the

©

2006 Chris

Knight and Dublin

University

Law

Society