Acceso usuarios
Panos Koutrakos
The debate about judicial activism and judicial restraint is as old as the study of judicial behavior. In the case of the European Court of Justice, it emerged quite early on in the life of European integration, when the teleological interpretation of primary law enabled the Court to initiate the process of the gradual constitutionalisation of the then European Economic Community. The notion of judicial activism was also present in the UK in the period leading to the 26 June 2016 referendum about leaving the EU: the Eurosceptic press and politicians presented the Court as consistently activist, at best, or, at worst, as out of control and keen to trample on national sovereignty.
To what extent do such labels help us understand judicial behavior? Are they not inherently incapable of capturing the nuances of the Court's overall approach, the distinctions between different legal contexts, and the practical and policy factors that underpin different issues at different times? And yet, there is a term that seems apt to describe a body of case-law that has emerged in the last few years. The term is "realist" and the case-law is about the major policy challenges currently facing the Union's decision-makers.
Let us take two recent instances about the management of the refugee crisis. The first is the judgment of the Court of Justice in X and X v Etat belge (C-638/16 PPU), rendered by the Grand Chamber in March 2017. The Court held that EU law does not require a Member State to grant, outside its territory, a humanitarian visa to third-country nationals so that the latter would be able to travel to its territory in order to apply for asylum. National authorities are free, therefore, to consider such an application pursuant to national law only. This conclusion was reached on the basis of the wording and the general scheme of the EU Visa Code. As it only provides for visas valid for no more than 90 days in any 180-day period, it could not cover a visa which would, ultimately, enable third country nationals to enjoy a longer stay in a Member State. It was also not intended to impose a de facto duty on Member States to consider asylum applications lodged in their embassies around the world.
The second instance is about a set of three Orders by the General Court, rendered in February 2017, which dismissed an action for annulment of the EU-Turkey Statement on refugees as inadmissible. The Statement was set out in a press release dated 18 March 2016 under the heading "International Summit". The General Court held that, whilst it referred expressly to the European Union and the Members of the European Council, the Statement was, in fact, a document adopted by the Heads of State or Government of the Member States. As it was not adopted by an EU institution, it could not be challenged under art.263 TFEU. Even though it considered the wording of the Statement "regrettably ambiguous", the circumstances of the meeting with the Turkish President which led to its adoption as well as its overall context suggested an initiative between leaders of sovereign States who were not acting in their capacity as members of the European Council.
In both cases, the Court of Justice of the EU was reluctant to unravel the sensitive, and at times controversial, arrangements reached at the highest level in an area of profound political sensitivity. The reasoning, however, of the above rulings is not uniformly convincing. On the one hand, the judgment in X and X is eminently sensible, as it reflects accurately both the wording and the spirit of secondary legislation. Had the Court followed the advice of Advocate General Mengozzi and ruled otherwise, it would have unsettled the existing asylum system and would have imposed an additional heavy burden on Member States at a time of considerable upheaval. On the other hand, the reasoning of the three Orders on humanitarian visas is striking. So strong was its reluctance to deal with the widely criticized arrangement with Turkey that the General Court ignored the substantive content of the Statement and the question whether the latter ought to have been adopted by the EU institutions in accordance with art.218 TFEU. Whilst there are strong arguments to suggest that the Statement did not amount to a legally binding agreement, the General Court steered well clear of this question.
This realist approach by the CJEU is not confined to the refugee crisis. The Court of Justice has been similarly circumspect recently in relation to EU citizenship and access to benefits, an area where we see a shift of emphasis towards a stricter construction of the rights to which non-economically active citizens are entitled pursuant to EU secondary legislation. The Court has also been loathe to challenge the legal ingenuity of the EU institutions and the Member States pursuant to which they have sought to stave off sovereign default in the Eurozone.
This is not to suggest that the Court has been timid in its recent case law. For instance, the broad interpretation of its jurisdiction in CFSP matters and the wide scope of the Common Commercial Policy and, hence, the Union's exclusive competence in Opinion 2/159 illustrate a robust, if not bold, approach to the interpretation of EU law. Instead, this comment suggests that, in the politically charged areas that currently exercise the Union's institutions and Member States, the CJEU appears willing to acknowledge their wide discretion and accept the fundamental policy choices they make. In doing so, the Union's Judges do not avoid controversy. After all, "realist" may be viewed as another word for "unprincipled". The question, however, is whether it is for judges to substitute their assessment for that made by the Union's decision-making institutions. The case law examined in this editorial suggests that the CJEU has answered this question in the negative.
