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John F. Sonnett Memorial Lecture Series Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Lectures John F. Sonnett Memorial Lecture Series 11-1-1990 John F. Sonnett Memorial Lecture Series: Legal Remedies Against the Council's Failure to Act Ole Due European Court of Justice Follow this and additional works at: https://ir.lawnet.fordham.edu/events_programs_sonnet_lectures Part of the Law Commons Recommended Citation Due, Ole, "John F. Sonnett Memorial Lecture Series: Legal Remedies Against the Council's Failure to Act" (1990). Lectures. 5. https://ir.lawnet.fordham.edu/events_programs_sonnet_lectures/5 This Book is brought to you for free and open access by the John F. Sonnett Memorial Lecture Series at FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Lectures by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. 4. Due's Lecture: a. Due Biography Due Biography 1st draft Ole Due was born on February 10, 1931. Due received his law • degree from the University of Copenhagen in 1955, and in the same year, took up a post at Denmark's Ministry of Justice. In the years that followed, Ole Due worked in national service and was ultimately able to serve all of the European Community, as President of the Court of Justice. Like John Sonnett, Due devoted many of his early professional years to service of his country. At the Ministry of Justice, Due steadily worked his way to important positions of responsibility. In 1970, he became Head of Division and was made Director of the Ministry of Justice some five years later. From 1964 to 1973, Due was Head of Course and Lecturer for post-graduate courses in Community Law at the Danish Legal Society, • the Danish Civil Service Administration College, and the Council of Lawyers. From 1964 to 1976, he served as a member of the Danish delegation at the Hague Conference on Private International Law. Due served for many years as both Secretary and then President of the Commission on the Adaptation of Laws Prior to the Accession of Denmark to the European Communities. From 1970 to 1972, Due served as a Permanent Delegate to the conferences on the technical adjustments to be made to Community measures in view of the enlargement of the Communities and on drafting legal provisions in the Treaty of Accession. Due was Editor of the Community Law Index from 1973 to 1975, and has published numerous articles on European Community Law, • legal practice and private international law. He is co-editor and author of the Danish Community Law Reports. He is an Honorary Bencher of both Gray's Inn, London and King's Inns, Dublin. On October 7, 1979, Due became a judge at the Court of Justice of the European Communities. The Court of Justice has powers to oversee the interpretation and application of European Economic Community laws. On October 7, 1988, Due became President of the Court of Justice • • • b. Due Introduction •• • Due Introduction 4th draft w/ JDF changes The year 1992 marked the official beginning of the European • Economic Community and a different era for Europe. After over three millennia of constant political conflict, Europe was to begin knocking down its borders -- at least economically. As an economic entity, a single Europe would pose a formidable presence in a new world order. The emergence of Japan as a world economic power has shown how a nation can gain political clout with a strong economy rather than with a devastating arsenal of weaponry. With respect to the legal framework of the EEC, the judiciary branch is called the European Court of Justice. The Court of Justice interprets the articles of the Treaty of Rome and determines whether the economic harmonization legislation passed by the European Council, the EEC's legislative body, is followed by • each member state. In order to harmonize the laws of so many different countries, the European Council issues directives that require each member state to comply with a specific area of law harmonization, be it banking, labor, or securities law. While the sovereignty and foreign policy of each EEC member state are not preempted by the EEC, any economic legislation such as quantitative measures and customs duties passed by a member state is subject to review and rescission by the Court of Justice. In many ways, the Court of Justice is a distant cousin of the United States Supreme Court. While its American counterpart is guided by and interprets the concepts of the United States Constitution, the Court of Justice interprets the various articles • of the Treaty of Rome which formalized the concept of a Europe without economic borders. Since that document provides the foundation for the existence and the future of the new European economic entity, interpreting its articles incorporates similar responsibilities. The final decision of the Court of Justice will affect each and every member state. Unlike the United States, Europe's legal systems are not as homogeneous as those of the fifty American states. In this context, the Court of Justice may very easily overreach its discretion. The Honorable Ole Due, current President of the European Court of Justice, discussed these issues in his Sennett Lecture. Judicial activism by the high court is as much an issue in Europe as it is in the United States. Unlike the Supreme Court, the European Court of Justice is not grappling with such controversial social issues as abortion and privacy rights • Instead, the European Court of Justice tackles highly contested • economic issues. The tension in the new Europe arises because the EEC consists of many nations with vastly different social, economic and cultural backgrounds. Because each directive issued by the European Council represents a compromise between these different nations, some nations will have to change their way of life somehow to achieve harmonization. Thus, there is a genuine concern for judicial activism which Ole Due addressed in his lecture at Fordham Law School • • c. Lecture by Bon. Ole Due, "Legal Remedies Against -· the Council's Failure to Act" • ADDRESS LEGAL REMEDIES FOR THE FAILURE OF EUROPEAN COMMUNITY INSTITUTIONS • TO ACT IN CONFORMITY WITH EEC TREATY PROVISIONS! Ole Duett Any discussion of the case law of the Court of Justice of the European Communities (the ""Court'' or the ""Court of Justice'') will sooner or later touch upon what is commonly called the judicial activism of the Court. A European Community Member State lawyer's attitude towards judicial activism normally depends on the relations between the judicial and legislative powers within his country. This relationship varies from Member State to Member State, ranging from the very cautious approach of the French and Danish courts to the extensive control exercised by the German court, the • ""Bundesverfassungsgericht.'' As expected, the Court of Justice has placed itself somewhere in the middle of these extremes. A U.S. lawyer will normally try to compare the case law of the Court of Justice with that of the U.S. Supreme Court, trying to distinguish between periods in which the tendency to promote integration has been more or less pronounced. Indeed, the Court of Justice's activism and role as intermediary between legislative and executive arms of the European Economic Community (the ""EEC'' or the ""Community'') and between national authorities and the institutions of the Community has led some to compare the Court to the U.S. Supreme Court under Chief Justice Marshall. In fact, differences in the Court's jurisprudence may be observed over time • However, contrary to the situation in the • United States, developments in the Court's jurisprudence are difficult to relate to changes in its composition. While in the United States, it is perfectly acceptable for the executive branch • to seek to influence future case law by making appointments to the federal courts, this is less common in the Member States of the EEC. I am not aware of any nomination to the Court of Justice aimed at changing the Court's attitude towards European integration. Therefore, the different trends in the case law of the Court of Justice should probably be seen more as reactions to changes in the political environment. In periods where centrifugal tendencies have dominated the political scene, the Court has tried to defend treaty objectives against such tendencies. In certain periods, the political institutions, first and foremost the Council of Ministers of the European Communities (the ""Council''), have found it hard to live up to the aims of the treaties, whether because of the need • for unanimity in a decision of the Council or because of the political currents in some of the major Member States. During these periods, we may find a tendency to compensate for this lack of legislative activity by basing Court decisions directly on the treaty provisions. On the other hand, during periods of great political activity aimed at a strengthening of the Community, we may find the Court of Justice more reluctant to commit itself. m:&!n~±&ilil~RDEin=l~ltB,nfil!HDriiitFFl<?.~~;:;£~Jf{l§llil~i!K§~ii;Mbiis~;E~ai sss~~1r.~lleJ£~££isu1::~i?nlssmi!nit1£1zmLii£1usat1m¥n~1-si~an;1:::;2~1;:::&na:1::::&e21±:;f~ :~s1± ~ai:£~m~~§Jmi11m:11~ri!~ni~&&1~¥!imEna:1mElt~:111R:111 ::::::;;+11m;1£sm11;;1::::: u~£esaea£i+ £t£~,.~a~n£11:1:1&ftt11:F:J;,g:q_i1::*::!!iiis}.i ':::: i+~nt!:1;:2a11;Mhke:eI::~£asesH:F:!±:::;lli~!t.R:saa:::;::~na e ~sim5Iii.!i!!Jii;mt,~;~;;:::st£1iiirsi;:£ the Court has no right to take initiatives itself. It must confine itself to • dealing with the cases brought before it.
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