9 Role of the CJEU
The role of the CJEU has been vital in ensuring compliance with the Treaties and EU primary and secondary legislation. EU primary legislation expands upon framework principles in the Treaties. The CJEU has been accused of judicial activism. When studying the CJEU’s judgments, bear these questions in mind:
- Has the CJEU interpreted EU rights more broadly than those laid down in the Treaties?
- If so, has the court acted as a quasi-constitutional court, which has invented new rights, or has it just extended existing ones?
First watch this video, which explains the organisation role of the CJEU.
Transcript: The organisation role of the CJEU
The CJEU has developed through its Decisions a number of general principles. These are considered as defining features of EU law. Some have now gained a statutory base; for instance, non-discrimination, found in Article 18 TEU, and proportionality and subsidiarity, found in Article 5 TEU, are contained in the Treaties. Other features, which are evidence of the court’s flexibility that allows it to adopt a declaratory common law approach, derive from the principles of law residing in the jurisprudence of member states, such as legal certainty, legitimate expectations and non-retroactivity of laws.
In assuming this mantle, the CJEU sees its role as necessary to cover gaps in the written text. Sometimes it has used general principles to justify extending the ambit of EU law. It did this in Kückdeveci v Swedex GmbH & Co KG (Case C-555/07)  I ECR 00365, in which the court ruled that national courts should disapply national legislation that conflicted with general principles of non-discrimination in employment.
In J Nold Kohlen- und Baustoffgrosshandlung v Commission of the European Communities (4/73)  ECR 985, the CJEU stated that there were two main sources of ‘inspiration’ for fundamental rights: the common constitutional traditions of member states, and international Treaties for protecting human rights in which member states had participated. Since the Treaty of Lisbon, the CFR is now also an important source of rights and has legal effect.
To protect and apply these principles, the CJEU used Articles 263 and 267 TFEU as procedures through which it can examine both the EU institutional acts and interpretation of the Treaties and EU legislation in the national courts of member states to ensure they rule in a way compatible with EU law.
A debate has arisen about the extent to which the court has operated as a constitutional court in its own right and its capacity under Article 19 TEU to interpret the law in a way that furthers integrationists’ goals. Article 19 TEU requires the court to ensure fulfilment of Treaty objectives. Accordingly, it takes a broad interpretation of this provision. Most importantly, the court has sought to guarantee the supremacy of EU law in member states even though there is no written Treaty provision to that effect. Additionally, the emphasis upon integration by the court has been to maximise individual rights through the principles of direct effect, indirect effect, incidental effect and state liability.
The issue of legal base
Section 5 showed that competence arises from the Treaties. These provide the legal foundation or legal base for all EU action. The choice of legal base used is crucial, as it will determine which legislative procedure must be used. In turn, this defines the extent of involvement of each institution and the legality of any Decision made by an EU institution. On occasion, this has proved controversial. In Commission v Council (Titanium Dioxide) (Case C-300/89)  ECR I-2867, the CJEU held that the choice of legal base rests on objective factors that are amenable to judicial review. It used a teleological (purposive) approach. In this case, the court was mindful of the need to guarantee the EU Parliament’s rights under the Treaty to participate in the legislative process. Thus through the rule of law the court enhanced the Parliament’s democratic legitimacy.