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Leadership does not always come from leaders. Laws provide for its exercise or constraint and the European Court of Justice (ECJ) gives legal but not political leadership. The 2005 constitutional treaty did not create a favourable climate of opinion for the proposed changed EU leadership through a stable president of the European Council. Nor would it have transformed the ECJ into a genuine constitutional court through its discretion on remedies. Its main contribution is as the reactive leader of the legal community of national judges in implementation of Union — wide norms with an integrationist bent. The ECJ's interpretive approach is preoccupied with achieving uniformity and consistency of integration in the market for goods and the treatment of individuals.

This chapter focuses on those aspects of the role of the European Court of Justice (ECJ) that liken it to the constitutional court of a federal legal system. It provides a broad-brush overview of the different models of constitutional review, before focusing on the ECJ itself, its creation, and its posterior evolution into a constitutional adjudicator of sorts. It then sheds light on the choice of two specific areas of the jurisdiction of the Court as the object of this study.

This chapter deals with a primordial aspect of the evolution of the Area of Freedom, Security and Justice (AFSJ): judicial control. It maps out what the present situation is and what the future is likely to be — and should be. The study of judicial control in this area presupposes, however, a previous analysis of the nature of the measures that are produced in it. From an organizational point of view, therefore, the chapter will firstly deal with the current and future legal effects of the measures adopted in the AFSJ. Secondly, the current and future jurisdiction of the Court will be scrutinized, distinguishing between the following aspects: direct and indirect review of measures, policing the borders, infringement proceedings, damages, and action for failure to act. The section on the future jurisdiction of the Court examines the changes envisaged in the Lisbon Treaty. Finally, the last section deals with different ‘cherry-picking’ proposals — put forward by different institutions in the interim between the Constitutional Treaty and the Lisbon Treaty to change the jurisdiction of the Court in this area.

This chapter assesses the role that the Court of Justice is given within Common Foreign and Security Policy (CSFP) in the TEU and in the Lisbon Treaty. Within the current framework, the Court of Justice has virtually no jurisdiction in CSFP matters. It has nevertheless exercised control over EC measures that implemented CFSP measures, and over common positions which were adopted both under the second, and the third, pillars. Additionally, the Court has discharged ‘peripheral’ duties such as policing the borders between the second and the first pillars or enforcing the right of access to documents. All of these relatively recent developments reveal a constitutional court striving to play an active role in all areas of the legal system, albeit within the very restricted limits set by the current Treaty. The second part of the chapter focuses on the reform envisaged in the Lisbon Treaty. The last section reflects on the shortcomings of the Court's jurisdiction and the effects this will have on its role as a constitutional court of the Union and on the future of the CFSP itself. It compares the role of the Court of Justice and that of national courts. Finally, it explores the consequences that the Court's limited powers may have for its relationship with national constitutional courts and the European Court of Human Rights.

This chapter argues that although it is possible to criticize the Court's role as a constitutional adjudicator — and specially within the post-Lisbon Area of Freedom, Security and Justice (AFSJ), where the national choices that will be struck down will often be of a sensitive nature — it is still the case that a federal incomplete bargain such as the Treaties necessitates such an institution to enforce it. It has been pointed out as a common pattern that the constitutional courts of young federal systems tend to favour the centre, rather than the states: this is because the centre is necessarily weaker in the initial stages, and a reshuffle of power is necessary to enforce the federal bargain. Equally, it is likely that the Court will engage in this sort of ‘centre-building’ exercise within the AFSJ if it acquires full powers as envisaged in the Lisbon Treaty. Yet this seems an unavoidable consequence of the bargain that the Member States have entered into: although it may be justified to criticize the Court for the way in which it chooses to carry out its role in particular instances, the position of the Court as a constitutional adjudicator seems a necessary precondition for the functioning of the — admittedly flawed — system, at least at its present stage.

This chapter places this book's project in the context of the plurality of systems protecting fundamental rights in Europe. In Europe, there are at least three spheres of rights protection: the states, the EU, and the European Convention on Human Rights. Each of these systems includes a bill of rights and a specific court with the supreme authority to interpret them: state constitutional (or supreme) courts, the ECJ, and the European Court on Human Rights. The European Court on Human Rights has created a quasi-constitutional European order of human rights. Although this work will focus on the interplay between state courts and the ECJ, the existence of the European Convention and its Court should not be ignored for a complete picture of the multilevel system of rights protection in Europe.

This chapter stresses the interactive pressures between the two paradigmatic European judicial institutions: the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR). The point of entry into these increasingly barbed intra-European interactions will once again be the Article 6(1) ‘fair trial’ litigation. This litigation, which has challenged the traditional judicial decision-making practices of the national supreme courts patterned on the French model — including the Belgian, Dutch, and Portuguese Supreme Courts — has spilled over into the Euro-European realm, because the decision-making process of the ECJ is itself patterned on the bifurcated French model. The ECJ deploys Advocates General and Reporting Judges who play roles similar to their counterparts at the Conseil d'Etat. It also publishes brief, unsigned, and collegial judgments composed in a heavily deductive and magisterial style devoid of concurrences or dissents.

This chapter explains the approach of the ECJ to the use of human rights principles in the application and interpretation of economic Community law. This question arises in three different constellations: when the Court is called to examine economic regulation by the European Union legislator in the light of fundamental rights; when the Court is called to examine economic regulation by the member states in the light of fundamental rights; and when the Court examines private interference with economic activities in the light of fundamental rights. The chapter examines these three constellations in turn, giving each time one or more examples of how the ECJ operates. The latter two situations are those that are most directly related to the core theme of the volume, namely human rights issues arising in investment disputes.

This chapter examines the development of the Court of First Instance (CFI) over the last 18 years, and offers some thoughts as to the possible evolution of its role. It argues that the role of the CFI will in practice be determined by the willingness of the European Court of Justice (ECJ) to take the necessary steps to enable the Court of Justice, as an institution, to evolve in order better to deal with present and future challenges. Only bold initiatives and farsightedness will give the ECJ, and all the other courts within the new judicial architecture, a real chance to significantly reduce delays and improve their service for the users of the courts — both national judges and litigants alike — while maintaining the high standards that are rightly expected by Europe, its institutions and its citizens.

This chapter examines the principle of equal treatment as it applies to trade mark. It argues that trade mark registration is in danger of becoming a lottery; the danger can only be averted if the CFI and ECJ start stressing the Office's duty to act consistently, to apply common standards, to identify analogous cases and to give them similar treatment. The CFI and ECJ also need to understand that genuine consistency in decision-making practice can only be achieved at the purely administrative level.

This chapter presents findings regarding special and differential treatment and the adjudication of development principally in international economic law, bringing to light creative approaches to dealing with treaty participants in widely different developmental circumstances. Many of the themes that WTO members grapple with, such as the cost of implementing obligations, capacity constraints, and the need for technical assistance, are also pervasive in other treaties. However, some treaties or organizations take a much bolder stance on asymmetric commitments between members with different economic, social, and political conditions. The manner in which such differentiated commitments are built into parties' legal obligations can also differ strikingly from the WTO's more limitative perspective.

This chapter focuses on whether the ECJ has kept the balance between the individual's interest in human rights protection and the community interest to fight against international terrorism, bearing in mind that at the end of the day either interest is of concern to both the individual and the community. It argues that the ECJ in Kadi struck a proper balance between the nature of the security risk and the extent to which an encroachment on human rights can be justified, and outlined the procedure which must be observed when doing so. It struck the balance between security concerns as public interests and human rights as individual interests. The case demonstrates, however, the problem of combining the legal requirements of different levels.

This chapter explains the development of EU gender equality policies and evaluates the extent to which Europeanization has occurred in this sector. The argument presented is that the expansion of this EU policy domain is attributable to interest group mobilisation at the EU level, policy entrepreneurship by EU institutional actors (notably within Commission) and judicial policy-making by the European Court of Justice. Europeanization of this sector is strongest in those areas covered by the legal acquis and ECJ case law. Whilst gender mainstreaming and other soft law measures have extended the reach of the EU gender equality policy frame to other sectors, the impact of these initiatives has been limited. However, past experience suggests that soft law often provides the basis for ECJ rulings and/or future hard law. It would therefore be premature to rule out further Europeanization in this sector.

European Union health care policy looks like an important and growing field from the perspective of Brussels: case law, legislation, lobbyists, intra-Commission disputes and all of the other signs of a European Union policy sector. From the perspective of health systems, it seems rather less dramatic: considerable worries, but very little practical effect. This chapter resolves the paradox of impact in Brussels and limited consequences by arguing that EU health care law is a case of destabilization rights and restabilization politics. Health care decisions by the ECJ destabilized the legal environment for member states and their health care systems. They responded with limited compliance and considerable lobbying, putting their focus on changing the destabilizing law in Brussels. This has implications for theories on three different topics: European integration, European policymaking, and Europeanization. For European integration, it is a perfect case of political neofunctionalism; the Court created an EU policy issue, and opponents were obliged to lobby and legislate in Brussels. For theories of European policymaking it shows the extent to which the EU broadly maintains inequalities of power, though giving some policy networks new opportunities. For studies of Europeanization, it shows the extent to which it depends on political coalitions in the member states that seek change.

Neither freedom of association nor the right to strike receives explicit protection under EC legislation, apart from non-binding declaratory instruments. This means that, generally, there is no potential role for the European Court of Justice (ECJ) in enforcing protection of the right to strike. This chapter explores the two alternative paths through which jurisprudence may shape the extent to which a right to strike is protected. The first is through ‘staff cases’, that is, complaints brought before the Court by EU officials who claim that there has been a breach of the ‘Staff Regulations’ which form the basis of their contract of employment. The second is via the ‘fundamental rights’ jurisprudence, which has the potential to be used as a defence against the aggressive application of market integration principles to national laws.

UK legislative initiatives concerning consultation were a reluctant response to EU requirements, resulting from European Court of Justice (ECJ) rulings and EU directives on EWCs and ICE. The ECJ required consultation on specific issues through employee representatives where an employer did not recognize a union. The Trades Union Congress (TUC) began to show interest in statutory rights to consultation although proposals were not adopted and union preference for ‘single channel of representation’ remained. The Labour government response to the ICE directive was to adopt all-employee ballots for consultative committees with no ‘union priority’. This reflected the employers' position. The eventual regulations, which emerged from tri-partite discussion with the Confederation of British Industry (CBI) and TUC, are critically analysed, especially the requirement for a 10 per cent ‘trigger’ and the employer freedoms associated with pre-existing agreements (PEAs). There is little pressure on employers to adopt ICE arrangements, and where they do, the outcome is ‘legislatively prompted voluntarism’.