The politics of judicial discretion: Rethinking the interaction between national courts and the European Court of Justice

West European Politics

Volumn 19, Issue 2, 1996, Pages 360-385

  Golub, Jonathan ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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[No Author keywords available]

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EID: 0010869102     PISSN: 01402382     EISSN: None     Source Type: Journal    
DOI: 10.1080/01402389608425138     Document Type: Article

References (105)

1. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
2. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
3. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
4. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
5. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
6. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
7. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
8. See J. Weiler, 'The Community System: the Dual Character of Supranationalism', Yearbook of European Law 1 (1981) p.267; idem, 'Community, Membership and European Integration: Is the Law Relevant?' Jnl of Common Market Studies 21 (1983) p.39; idem, 'The Transformation of Europe', Yale Law Jnl 100 (1991) p.2403; H. Rasmussen On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Dordrecht: M. Nijhoff 1986); M. Volcansek, Judicial Politics in Europe (NY: Peter Lang 1986); M. Shapiro, 'The European Court of Justice', in A. Sbragia (ed.) Euro-Politics: Institutions and Policymaking in the New European Community (Washington DC: Brookings Instn 1991); G. Garrett, 'International Cooperation and Institutional Choice: The European Community's Internal Market', Int. Organisation 46 (1992) p.533; A. Burley and W. Mattli, 'Europe Before the Court: A Political Theory of Legal Integration', Int. Organisation 47 (1993) p.41.
9. Case 6/64 Costa v. ENEL [1964] ECR 585; Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629; Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Berlastingen [1963] ECR 1; Joined Cases 6 and 9/90 Francovich and Others v. Italy [1992] ECR 5357.
10. The two leading cases which contain the Court's guidance for national judges are Da Costa en Schaake et al. v. Nederlandse Belastingsadministratie, Joined Cases 28-30/62 [1963] ECR 31 and CILFIT v. Ministry of Health, Case 283/81 [1982] ECR 3415. Formally, there are two situations in which a preliminary reference is not necessary. First, in cases where a national judge finds that a clear ECJ precedent exists on an interpretation of Community law. Second, when no precedent exists, but the correct application of Community law is so obvious that no reference is needed. In the second situation, therefore, the Court has attenuated the obligation of a national judge to make a preliminary reference with the acte clair doctrine: 'if a provision is unequivocal there is no need to interpret it', and hence no need to refer to the ECJ. See F. Mancini and D. Keeling, 'From CILFIT to ERT: the Constitutional Challenge Facing the European Court', Yearbook of European Law 11 (1991) p.1; A. Arnull, 'The Use and Abuse of Article 177 EEC', Modern Law Review 52 (1989) p.622.
11. The two leading cases which contain the Court's guidance for national judges are Da Costa en Schaake et al. v. Nederlandse Belastingsadministratie, Joined Cases 28-30/62 [1963] ECR 31 and CILFIT v. Ministry of Health, Case 283/81 [1982] ECR 3415. Formally, there are two situations in which a preliminary reference is not necessary. First, in cases where a national judge finds that a clear ECJ precedent exists on an interpretation of Community law. Second, when no precedent exists, but the correct application of Community law is so obvious that no reference is needed. In the second situation, therefore, the Court has attenuated the obligation of a national judge to make a preliminary reference with the acte clair doctrine: 'if a provision is unequivocal there is no need to interpret it', and hence no need to refer to the ECJ. See F. Mancini and D. Keeling, 'From CILFIT to ERT: the Constitutional Challenge Facing the European Court', Yearbook of European Law 11 (1991) p.1; A. Arnull, 'The Use and Abuse of Article 177 EEC', Modern Law Review 52 (1989) p.622.
12. See J. Shaw, European Community Law (Basingstoke: Macmillan 1993) pp.143-5; Mancini and Keeling (note 3); T. Hartley, The Foundations of European Community Law 3rd ed. (Oxford: Clarendon Press 1994).
13. See J. Shaw, European Community Law (Basingstoke: Macmillan 1993) pp.143-5; Mancini and Keeling (note 3); T. Hartley, The Foundations of European Community Law 3rd ed. (Oxford: Clarendon Press 1994).
14. See J. Shaw, European Community Law (Basingstoke: Macmillan 1993) pp.143-5; Mancini and Keeling (note 3); T. Hartley, The Foundations of European Community Law 3rd ed. (Oxford: Clarendon Press 1994).
15. See H. Rasmussen, 'The European Court's Acte Clair Strategy in CILFIT', European Law Review 9 (1984) pp.251 and 256. See also Mancini and Keeling (note 3). According to the Court, even if the correct application of Community law is perfectly clear to a national judge, this would still not completely justify withholding a reference under Art. 177. National judges should consider the application of a Community rule obvious only if the matter would be equally obvious to courts of other member states and to the Court of Justice. Furthermore, national judges should bear in mind that the European Court is in the best position to address linguistic differences inherent to Community legislation, terminology and legal concepts peculiar to EC legislation, and the context of Community law as a whole, with special regard to its objectives and its state of evolution.
16. Synopsis of the Work of the Court of Justice of the European Communities (Luxembourg: ECJ 1972) p.16.
17. J. Weiler, 'Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration', Jnl of Common Market Studies 31 (1993) p.422; idem, 'A Quiet Revolution: the European Court of Justice and its Interlocutors', Comparative Political Studies 26 (1994) p.510.
18. J. Weiler, 'Journey to an Unknown Destination: A Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration', Jnl of Common Market Studies 31 (1993) p.422; idem, 'A Quiet Revolution: the European Court of Justice and its Interlocutors', Comparative Political Studies 26 (1994) p.510.
19. G. Bebr, Development of Judicial Control of the European Communities (The Hague: M. Nijhoff 1981) p.517
20. Ibid. p.516.
21. Ibid. p.543.
22. Shaw (1993) p.148.
23. See Burley and Mattli (note 1); Weiler (note 1, 1991; note 7, 1994).
24. Burley and Mattli (note 1).
25. See F. Mancini, 'The Making of a Constitution for Europe', Common Market Law Review 26 (1981) p.75; Volcansek (note 1); Shapiro (note 1) p.127.
26. See F. Mancini, 'The Making of a Constitution for Europe', Common Market Law Review 26 (1981) p.75; Volcansek (note 1); Shapiro (note 1) p.127.
27. On this point I am grateful to both Alec Stone and Karen Alter for discussing their respective work on judicial politics. One notable empirical study of how judges actually think is A. Paterson, The Law Lords (London: Macmillan 1982).
28. H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Communities, 5th ed. (Deventer and Boston: Kluwer 1992); Burley and Mattli (note 1); M. Cappelletti and D. Golay, 'The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration', in M. Cappelletti, M. Seccombe and J. Weiler (eds) Methods, Tools and Institutions. Integration Through Law, Volume 1 Book 2 (Berlin: de Gruyter 1986); U. Everling, 'The Member States of the European Community before their Court of Justice', European Law Review 9 (1984) p.215.
29. H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Communities, 5th ed. (Deventer and Boston: Kluwer 1992); Burley and Mattli (note 1); M. Cappelletti and D. Golay, 'The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration', in M. Cappelletti, M. Seccombe and J. Weiler (eds) Methods, Tools and Institutions. Integration Through Law, Volume 1 Book 2 (Berlin: de Gruyter 1986); U. Everling, 'The Member States of the European Community before their Court of Justice', European Law Review 9 (1984) p.215.
30. H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Communities, 5th ed. (Deventer and Boston: Kluwer 1992); Burley and Mattli (note 1); M. Cappelletti and D. Golay, 'The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration', in M. Cappelletti, M. Seccombe and J. Weiler (eds) Methods, Tools and Institutions. Integration Through Law, Volume 1 Book 2 (Berlin: de Gruyter 1986); U. Everling, 'The Member States of the European Community before their Court of Justice', European Law Review 9 (1984) p.215.
31. H.G. Schermers and D. Waelbroeck, Judicial Protection in the European Communities, 5th ed. (Deventer and Boston: Kluwer 1992); Burley and Mattli (note 1); M. Cappelletti and D. Golay, 'The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration', in M. Cappelletti, M. Seccombe and J. Weiler (eds) Methods, Tools and Institutions. Integration Through Law, Volume 1 Book 2 (Berlin: de Gruyter 1986); U. Everling, 'The Member States of the European Community before their Court of Justice', European Law Review 9 (1984) p.215.
32. H. Schermers et al. (eds) Article 177 EEC: Experiences and Problems (The Hague: North-Holland 1987).
33. Weiler (note 1, 1994) p.518.
34. See Primus Inter Pares. The European Court and National Courts: Thirty Years of Cooperation (European Univ. Inst. 1992, mimeo). I am grateful to Renaud Dehousse and Joseph Weiler for allowing me to read and cite this unpublished report.
35. Bebr (note 8) p.543.
36. Shaw (note 4) p.148.
37. Volcansek (note 1) p.261.
38. Primus Inter Pares (note 19) p.12.
39. Some figures are from Synopsis of the Work of the Court of Justice of the European Communities (Luxembourg: ECJ, annual vols. 1972-83 and 1990, biannual vols. 1984-89), others were provided by the Court's Legal Data Processing Service. For earlier compilations, see K. Mortelmans, 'The Role of Government Representatives in the Proceedings: Statistical Data on the Observations of the Member States in Preliminary Proceedings', in Schermers et al. (1987); U. Everling, 'The Court of Justice as a Decisionmaking Authority', Michigan Law Review 82 (1984) p.1294.
40. Some figures are from Synopsis of the Work of the Court of Justice of the European Communities (Luxembourg: ECJ, annual vols. 1972-83 and 1990, biannual vols. 1984-89), others were provided by the Court's Legal Data Processing Service. For earlier compilations, see K. Mortelmans, 'The Role of Government Representatives in the Proceedings: Statistical Data on the Observations of the Member States in Preliminary Proceedings', in Schermers et al. (1987); U. Everling, 'The Court of Justice as a Decisionmaking Authority', Michigan Law Review 82 (1984) p.1294.
41. Some figures are from Synopsis of the Work of the Court of Justice of the European Communities (Luxembourg: ECJ, annual vols. 1972-83 and 1990, biannual vols. 1984-89), others were provided by the Court's Legal Data Processing Service. For earlier compilations, see K. Mortelmans, 'The Role of Government Representatives in the Proceedings: Statistical Data on the Observations of the Member States in Preliminary Proceedings', in Schermers et al. (1987); U. Everling, 'The Court of Justice as a Decisionmaking Authority', Michigan Law Review 82 (1984) p.1294.
42. The population size of these four states is roughly the same. Germany 61 million; France 56 million; Italy 57 million; UK 57 million.
43. In terms of population, the UK is between four and six times larger than the Netherlands or Belgium. Netherlands 15 million; Belgium 10 million.
44. [1992] 1 Common Market Law Reports 5 [brake-noise case].
45. Ibid. p.21.
46. Ibid. p.6.
47. R v. Swale ex Parte Royal Society for the Protection of Birds, Crown Office Report (1990) p.263.
48. Land Management and Environmental Law Review (April/May 1991) p. 60.
49. Twyford Parish Council v. Secretary of State for the Environment [1992] 1, Common Market Law Reports 276 [Twyford Down case].
50. Ibid. (emphasis added).
51. D. Anderson, 'Environmental Impact Assessment in the UK', in D. Vaughan (ed.) Current EC Legal Development Series: Environment and Planning Law (London: Butterworths 1991); A. Ward, 'The Right to an Effective Remedy in European Law and Environmental Protection: A Case Study of United Kingdom Judicial Decisions Concerning the Environmental Assessment Directive', Jnl of Environmental Law 5 (1993) p.221.
52. D. Anderson, 'Environmental Impact Assessment in the UK', in D. Vaughan (ed.) Current EC Legal Development Series: Environment and Planning Law (London: Butterworths 1991); A. Ward, 'The Right to an Effective Remedy in European Law and Environmental Protection: A Case Study of United Kingdom Judicial Decisions Concerning the Environmental Assessment Directive', Jnl of Environmental Law 5 (1993) p.221.
53. Daily Telegraph, 18 Oct. 1991; Independent, 19 Oct. 1991; Guardian, 19 Oct. 1991.
54. Daily Telegraph, 18 Oct. 1991; Independent, 19 Oct. 1991; Guardian, 19 Oct. 1991.
55. Daily Telegraph, 18 Oct. 1991; Independent, 19 Oct. 1991; Guardian, 19 Oct. 1991.
56. Bulmer v. Bollinger [1974] 3 Weekly Law Reports 202.
57. Customs and Excise Commissioners v. ApS Samex 1 All England Law Reports 1042 (1983). Volcansek has argued that 'the turning point in British jurisprudence toward the European Court of Justice' actually came three years earlier in the case of Regina v. Henn and Darby 2, Common Market Law Reports 8 (1980). See Volcansek (note 1) p.214. However, the trends of British referrals under Art. 177, illustrated in the previous graphs, would seem to indicate that the turning point, if it came at all, came later as a result of Bingham's decision.
58. Customs and Excise Commissioners v. ApS Samex 1 All England Law Reports 1042 (1983). Volcansek has argued that 'the turning point in British jurisprudence toward the European Court of Justice' actually came three years earlier in the case of Regina v. Henn and Darby 2, Common Market Law Reports 8 (1980). See Volcansek (note 1) p.214. However, the trends of British referrals under Art. 177, illustrated in the previous graphs, would seem to indicate that the turning point, if it came at all, came later as a result of Bingham's decision.
59. Ibid. p.1043.
60. Ibid. p.1051.
61. Ibid. p.1055.
62. Primus Inter Pares (note 19) p.14; Volcansek (note 1) p.245.
63. Primus Inter Pares (note 19) p.14; Volcansek (note 1) p.245.
64. See Burley and Mattli (1993); W. Mattli and A. Slaughter, 'Law and Politics in the European Union: a Reply to Garrett', Int. Organisation 49 (1995) p.183.
65. See Burley and Mattli (1993); W. Mattli and A. Slaughter, 'Law and Politics in the European Union: a Reply to Garrett', Int. Organisation 49 (1995) p.183.
66. For earlier accounts of the ECJ's role in integration, see S. Scheingold, The Law in Political Integration (Cambridge, MA: Harvard UP 1971); H. Schermers, 'The European Court of Justice: Promoter of European Integration', American Jnl of Comparative Law 22 (1974) p.444. For an extremely critical view of the Court's activities, see Rasmussen (note 1).
67. For earlier accounts of the ECJ's role in integration, see S. Scheingold, The Law in Political Integration (Cambridge, MA: Harvard UP 1971); H. Schermers, 'The European Court of Justice: Promoter of European Integration', American Jnl of Comparative Law 22 (1974) p.444. For an extremely critical view of the Court's activities, see Rasmussen (note 1).
68. The Court's reliance on ideological interpretation has been not only recognised but praised by various ECJ judges. See G. Slynn, 'The Court of Justice of the European Communities', Int. and Comparative Law Qtly 33 (1984) p.409; Everling (note 16).
69. The Court's reliance on ideological interpretation has been not only recognised but praised by various ECJ judges. See G. Slynn, 'The Court of Justice of the European Communities', Int. and Comparative Law Qtly 33 (1984) p.409; Everling (note 16).
70. See T. Hartley, 'Federalism, Courts and Legal Systems: the Emerging Constitution of the European Community', American Jnl of Comparative Law 34 (1986) p.229; For a discussion of how the Court proceeded despite objections by member states, see E. Stein, 'Lawyers, Judges and the Making of a Transnational Constitution', ibid. 75 (1981) p.1.
71. See T. Hartley, 'Federalism, Courts and Legal Systems: the Emerging Constitution of the European Community', American Jnl of Comparative Law 34 (1986) p.229; For a discussion of how the Court proceeded despite objections by member states, see E. Stein, 'Lawyers, Judges and the Making of a Transnational Constitution', ibid. 75 (1981) p.1.
72. On teleology and human rights, see Case 11/70 [1970] ECR125; Case 4/73 [1974] ECR 491; Case 44/79 [1979] ECR 3727. The literature on this point is both extensive and varied. See Schermers (1974); M. Akehurst, 'The Application of General Principles of Law by the Court of Justice of the EC', British Yearbook of Int. Law 52 (1982) p.29; M. Dauses, 'The Protection of Fundamental Rights in the Community Legal Order', European Law Review 10 (1985) p.398. For more recent accounts of the judicial handling of human rights in the European Community, see G. De Bœrca, 'Fundamental Rights and the Reach of EC Law', Oxford Jnl of Legal Studies 13 (1993) p.283. The ECJ also played an important role in validating environmental measures which lacked specific treaty foundation. The Court's rulings applied teleological interpretation to the preamble, Art. 100 and Art. 235, but the crucial effect of its rulings was to validate the steady growth of EC environmental action programmes and directives which occurred prior to the Single European Act. See J. Golub, 'British Integration into the EEC: A Case Study in European Environmental Policy', Oxford DPhil. thesis 1994; I. Koppen, 'The Role of the European Court of Justice', in J.D. Liefferink et al. (eds) European Integration and Environmental Policy (London: Belhaven Press 1993).
73. On teleology and human rights, see Case 11/70 [1970] ECR125; Case 4/73 [1974] ECR 491; Case 44/79 [1979] ECR 3727. The literature on this point is both extensive and varied. See Schermers (1974); M. Akehurst, 'The Application of General Principles of Law by the Court of Justice of the EC', British Yearbook of Int. Law 52 (1982) p.29; M. Dauses, 'The Protection of Fundamental Rights in the Community Legal Order', European Law Review 10 (1985) p.398. For more recent accounts of the judicial handling of human rights in the European Community, see G. De Bœrca, 'Fundamental Rights and the Reach of EC Law', Oxford Jnl of Legal Studies 13 (1993) p.283. The ECJ also played an important role in validating environmental measures which lacked specific treaty foundation. The Court's rulings applied teleological interpretation to the preamble, Art. 100 and Art. 235, but the crucial effect of its rulings was to validate the steady growth of EC environmental action programmes and directives which occurred prior to the Single European Act. See J. Golub, 'British Integration into the EEC: A Case Study in European Environmental Policy', Oxford DPhil. thesis 1994; I. Koppen, 'The Role of the European Court of Justice', in J.D. Liefferink et al. (eds) European Integration and Environmental Policy (London: Belhaven Press 1993).
74. On teleology and human rights, see Case 11/70 [1970] ECR125; Case 4/73 [1974] ECR 491; Case 44/79 [1979] ECR 3727. The literature on this point is both extensive and varied. See Schermers (1974); M. Akehurst, 'The Application of General Principles of Law by the Court of Justice of the EC', British Yearbook of Int. Law 52 (1982) p.29; M. Dauses, 'The Protection of Fundamental Rights in the Community Legal Order', European Law Review 10 (1985) p.398. For more recent accounts of the judicial handling of human rights in the European Community, see G. De Bœrca, 'Fundamental Rights and the Reach of EC Law', Oxford Jnl of Legal Studies 13 (1993) p.283. The ECJ also played an important role in validating environmental measures which lacked specific treaty foundation. The Court's rulings applied teleological interpretation to the preamble, Art. 100 and Art. 235, but the crucial effect of its rulings was to validate the steady growth of EC environmental action programmes and directives which occurred prior to the Single European Act. See J. Golub, 'British Integration into the EEC: A Case Study in European Environmental Policy', Oxford DPhil. thesis 1994; I. Koppen, 'The Role of the European Court of Justice', in J.D. Liefferink et al. (eds) European Integration and Environmental Policy (London: Belhaven Press 1993).
75. On teleology and human rights, see Case 11/70 [1970] ECR125; Case 4/73 [1974] ECR 491; Case 44/79 [1979] ECR 3727. The literature on this point is both extensive and varied. See Schermers (1974); M. Akehurst, 'The Application of General Principles of Law by the Court of Justice of the EC', British Yearbook of Int. Law 52 (1982) p.29; M. Dauses, 'The Protection of Fundamental Rights in the Community Legal Order', European Law Review 10 (1985) p.398. For more recent accounts of the judicial handling of human rights in the European Community, see G. De Bœrca, 'Fundamental Rights and the Reach of EC Law', Oxford Jnl of Legal Studies 13 (1993) p.283. The ECJ also played an important role in validating environmental measures which lacked specific treaty foundation. The Court's rulings applied teleological interpretation to the preamble, Art. 100 and Art. 235, but the crucial effect of its rulings was to validate the steady growth of EC environmental action programmes and directives which occurred prior to the Single European Act. See J. Golub, 'British Integration into the EEC: A Case Study in European Environmental Policy', Oxford DPhil. thesis 1994; I. Koppen, 'The Role of the European Court of Justice', in J.D. Liefferink et al. (eds) European Integration and Environmental Policy (London: Belhaven Press 1993).
76. On teleology and human rights, see Case 11/70 [1970] ECR125; Case 4/73 [1974] ECR 491; Case 44/79 [1979] ECR 3727. The literature on this point is both extensive and varied. See Schermers (1974); M. Akehurst, 'The Application of General Principles of Law by the Court of Justice of the EC', British Yearbook of Int. Law 52 (1982) p.29; M. Dauses, 'The Protection of Fundamental Rights in the Community Legal Order', European Law Review 10 (1985) p.398. For more recent accounts of the judicial handling of human rights in the European Community, see G. De Bœrca, 'Fundamental Rights and the Reach of EC Law', Oxford Jnl of Legal Studies 13 (1993) p.283. The ECJ also played an important role in validating environmental measures which lacked specific treaty foundation. The Court's rulings applied teleological interpretation to the preamble, Art. 100 and Art. 235, but the crucial effect of its rulings was to validate the steady growth of EC environmental action programmes and directives which occurred prior to the Single European Act. See J. Golub, 'British Integration into the EEC: A Case Study in European Environmental Policy', Oxford DPhil. thesis 1994; I. Koppen, 'The Role of the European Court of Justice', in J.D. Liefferink et al. (eds) European Integration and Environmental Policy (London: Belhaven Press 1993).
77. See P.S. Atiyah, Pragmatism and Theory in English Law (London: Stevens 1987) p.130. When legislation is quite narrowly or poorly worded, or possibly unjust, the courts have employed principles of natural law and proportionality, and have avoided an overly strict construction of a statute. See A. Paterson, The Law Lords (Basingstoke: Macmillan 1982); See also G. Marshall, Constitutional Theory (Oxford: Clarendon Press 1971). Taken too far, such activism risks judicial imperialism: 'one man's rightly straightened ruck in the texture of legislation may be another's improperly filled gap' (Marshall, Constitutional Theory, p. 89).
78. See P.S. Atiyah, Pragmatism and Theory in English Law (London: Stevens 1987) p.130. When legislation is quite narrowly or poorly worded, or possibly unjust, the courts have employed principles of natural law and proportionality, and have avoided an overly strict construction of a statute. See A. Paterson, The Law Lords (Basingstoke: Macmillan 1982); See also G. Marshall, Constitutional Theory (Oxford: Clarendon Press 1971). Taken too far, such activism risks judicial imperialism: 'one man's rightly straightened ruck in the texture of legislation may be another's improperly filled gap' (Marshall, Constitutional Theory, p. 89).
79. See P.S. Atiyah, Pragmatism and Theory in English Law (London: Stevens 1987) p.130. When legislation is quite narrowly or poorly worded, or possibly unjust, the courts have employed principles of natural law and proportionality, and have avoided an overly strict construction of a statute. See A. Paterson, The Law Lords (Basingstoke: Macmillan 1982); See also G. Marshall, Constitutional Theory (Oxford: Clarendon Press 1971). Taken too far, such activism risks judicial imperialism: 'one man's rightly straightened ruck in the texture of legislation may be another's improperly filled gap' (Marshall, Constitutional Theory, p. 89).
80. See P.S. Atiyah, Pragmatism and Theory in English Law (London: Stevens 1987) p.130. When legislation is quite narrowly or poorly worded, or possibly unjust, the courts have employed principles of natural law and proportionality, and have avoided an overly strict construction of a statute. See A. Paterson, The Law Lords (Basingstoke: Macmillan 1982); See also G. Marshall, Constitutional Theory (Oxford: Clarendon Press 1971). Taken too far, such activism risks judicial imperialism: 'one man's rightly straightened ruck in the texture of legislation may be another's improperly filled gap' (Marshall, Constitutional Theory, p. 89).
81. See A. Arnull, 'Reflections on Judicial Attitudes at the European Court', Int. and Comparative Law Qtly 34 (1985) p.168; G. Bebr, 'The Rambling Ghost of Cohn-Bendit: Acte Clair and the Court of Justice', Common Market Law Review 20 (1983) p.439.
82. See A. Arnull, 'Reflections on Judicial Attitudes at the European Court', Int. and Comparative Law Qtly 34 (1985) p.168; G. Bebr, 'The Rambling Ghost of Cohn-Bendit: Acte Clair and the Court of Justice', Common Market Law Review 20 (1983) p.439.
83. Rasmussen (note 1) p.255.
84. See Volcansek (note 1).
85. See S. George An Awkward Partner (Oxford: OUP 1990); S. George, Britain and the European Community: the Politics of Semi-Detachment (Oxford: Clarendon Press 1992). An extensive analysis of Britain's difficult relationship with the Community over environmental policy is provided in Golub (note 46).
86. See S. George An Awkward Partner (Oxford: OUP 1990); S. George, Britain and the European Community: the Politics of Semi-Detachment (Oxford: Clarendon Press 1992). An extensive analysis of Britain's difficult relationship with the Community over environmental policy is provided in Golub (note 46).
87. Volcansek (note 1) p.206.
88. Ibid. p.217.
89. Interview, 15 Jan. 1993.
90. See N. Haigh EEC Environmental Policy (London: IEEP 1989) p.327.
91. See P. Lowe and A. Flynn, 'Environmental Politics and Policy in the 1980s', in J. Mohan (ed.) The Political Geography of Contemporary Britain (Basingstoke: Macmillan 1989); A. Blowers, 'Transition or Transformation? - Environmental Policy Under Thatcher', Public Admin. 65 (1987) p.277.
92. See P. Lowe and A. Flynn, 'Environmental Politics and Policy in the 1980s', in J. Mohan (ed.) The Political Geography of Contemporary Britain (Basingstoke: Macmillan 1989); A. Blowers, 'Transition or Transformation? - Environmental Policy Under Thatcher', Public Admin. 65 (1987) p.277.
93. See W. Sheate and R. Macrory, 'Agriculture and the EC Environmental Assessment Directive: Lessons for Community Policy-Making', Jnl of Common Market Studies 28 (1989) p.68; N. Haigh, 'Environmental Assessment - The EC Directive', Jnl of Planning and Environment (1987) p.4.
94. See W. Sheate and R. Macrory, 'Agriculture and the EC Environmental Assessment Directive: Lessons for Community Policy-Making', Jnl of Common Market Studies 28 (1989) p.68; N. Haigh, 'Environmental Assessment - The EC Directive', Jnl of Planning and Environment (1987) p.4.
95. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
96. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
97. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
98. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
99. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
100. See A. Arnull, 'Article 177 and the Retreat from Van Duyn', European Law Review 8 (1983) p.365; Arnull (1989) pp. 631-37. For accounts of how British judges have avoided making preliminary references in cases of competition law and thereby side-stepped ECJ doctrine and the proper application of Articles 85, 86 and 90, see the contribution of Josephine Shaw in P. Behrens (ed.) EEC Competition Rules in National Courts (Baden-Baden: Nomos 1992). For alternative views which praise how British courts have handled EC law, see E. Szyszczak, 'Current Survey', European Law Review 19 (1994) p.214; L. Gormley, 'The Application of Community Law in the United Kingdom, 1976-1985', Common Market Law Review 23 (1986) p.287; C. Barnard and R. Greaves, 'The Application of Community Law in the United Kingdom, 1986-1993', ibid. 31 (1994) p.1055. It is also noteworthy that there is also disagreement within policy sectors. E.g., Shaw's conclusions in the area of competition policy contrast sharply with those of Arnull drawn ten years previously.
101. Weiler (note 1, 1991) p.2426.
102. Schermers et al. (note 17) p.398.
103. For a discussion of the Court's efforts to control its docket, see A. Arnull, 'Judging The New Europe', European Law Review 19 (1994) p.3.
104. See J. Levitsky, 'The Europeanisation of the British Legal Style', American Jnl of Comparative Law 42 (1994) p.347; Gormley (note 58); Barnard and Greaves (note 58).
105. See J. Levitsky, 'The Europeanisation of the British Legal Style', American Jnl of Comparative Law 42 (1994) p.347; Gormley (note 58); Barnard and Greaves (note 58).