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EU High Court Amassing Strength & Reach

WASHINGTON (CN) - As the European Court of Justice continues a dramatic rise in power and volume of cases, a comparison is inevitably made with the U.S. Supreme Court where an initially weak political body grew into an enormously powerful interpreter of the law in a vast region of wealth and population. But there are also key differences between the two high courts, based on the greater power held in the U.S. Constitution and the less competitive relationship between the courts of the European nations and the EU's high court.

With the appointment this week of Vassilios Skouris to another three-year term as President of the European Court of Justice, he presides over a body that continues to add cases, money and judges while it has also moved into a stunning new courthouse in Luxembourg that symbolizes the increased strength and authority of the court.

While it grows in size, the power of the EU's high court has also been "strengthened by a run of court decisions," said Berkeley Law Professor Richard Buxbaum. Some of the court's most aggressive rulings in limiting the sovereignty of member states have gone hand in hand with the body's role in driving the integration of the European Union.

The Luxembourg courts received more than 1300 cases last year, a record. The staff budget also hit a new high of almost 238 million euros for 2009.

The number of judges, too, is on the rise. With the addition of 10 new member states in 2004, and of Bulgaria and Romania in 2007, an identical number of judges have joined the Court of Justice, where each member is equally represented by one judge.

The high court has expanded its authority in a number of ways over the years, but one method has been to establish legal standards without applying those standards to the case at hand, writes Karen Alter as an assistant professor of Political Science at Smith College.

One example is Flamino Costa v. ENEL, one of the court's most significant rulings in the expansion of its power.

In 1964, when an Italian sued his government before the community court for nationalizing the Italian energy company, ENEL, the ECJ ruled in favor of the government. It disagreed, however, with the Italian government's argument that an individual could not challenge national law before the Luxembourg body.

"The law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question," says the decision in a sweeping affirmation of the high court's power.

Because of the outcome, favorable to the Italian government's position, Italian officials were not prompted to protest the ruling, even though the ECJ declared the supremacy of community law over national law.

Another example -- this time of both the body's power and of its unifying role -- is the Centros, Überseering and Inspire Art decisions issued between 1999 and 2003 that eroded barriers to doing business across borders in the European Union.


As Buxbaum from Berkeley explained, a small Danish company that was not big enough to file as a corporation in Denmark, established itself as a corporation in Great Briton, where the requirements are more lenient, and returned to Denmark with the corporation status.

When the issue was taken to trial, the European Court of Justice ruled that Denmark must recognize the corporation, as with other companies from fellow member states.

"The ECJ has been very aggressive" in making sure its decisions are enforced, Buxbaum added.

Not only has it made its directives more specific in recent years- to the point where member states can largely transpose it into legislation -- but the ECJ has ruled that countries that do not follow its directives can be sued for damages by anyone hurt by their inaction.

The body is still somewhat subject to the winds of politics because the judges are not appointed for life terms, Buxbaum said. Some member states that are not happy with the decisions of the ECJ have been known to appoint judges who favor a more limited role of the court.

While there are parallels between the growth of the European Court of Justice and that of the U.S. Supreme Court, the two remain distinct in fundamental aspects.

"The difference is that their constitutional structure is one of far more limited scope," Buxbaum said of the community courts in explaining why they don't fill the same niche as the U.S. Supreme Court. The European Union is not a complete government. Even if it were to adopt a constitution, it would be nothing like the constitution of the United States, he said.

At the same time, the EU nations appear to be surrendering their sovereignty with more willingness than the American states did, as argued in a report by the Midwest Political Science Association. "The lack of opposition to the ECJ is puzzling in light of the experience of the United States Supreme Court, whose decisions limiting state sovereignty in the early 1800s were regularly denounced and defied by the states," the report notes.

It proposes several reasons behind the phenomenon. For one, it suggests that political deadlock in the 1960s and 1970s made members more open to court-driven integration than the American states.

Also, the ECJ issues a single, unanimous decision, whereas the dissenting opinion that often accompanies U.S. Supreme Court decisions can offer ammunition to critics.

"I would interpret it as just a different time sequence," New York University Law Professor Jose Enrique Alvarez said. "The ECJ had the advantage of being established at a time when the world is more used to a constitutional court at the national level." He said the U.S. Supreme Court, where unelected judges were given authority over the actions of elected officials, "was striking out in a new direction."

Alvarez also pointed to the different relationship each of the higher courts has with its lower courts. In the United States, the Supreme Court can reverse state court rulings. In the EU, however, national courts can make references for preliminary rulings, where they ask the ECJ to clarify European Community law without giving up their jurisdiction over the case. The national courts can then apply the ECJ's interpretation into their own decision. "They become allies in judicial power," he said of the EU courts. "They're not competitors."

While they are not rulings, Buxbaum remarked that the advisory opinions serve as a way of indirectly influencing national courts, which take note and "become the handmaidens of the ECJ," he said.

While the European Court of Justice considers predominately references for preliminary rulings, it also takes appeals from the Court of First Instance.

The Court of First Instance assists the European Court of Justice and can hear direct actions, where a member state or a citizen brings an action against another.

The court inaugurated a new Palais in 2008, which is an expansion of the old Palais. Important European leaders attended the ceremony- Grand Duke and Grand Duchess of Luxembourg, European Commission President José Manuel Barroso, European Parliament Vice President Diana Wallis, French Minister for Justice Rachida Dati- underscoring the body's weight within the community.

The Luxembourg-based court had a more modest beginning in 1952, 41 years before the EU was formed. When the European Court of Justice was established, its role was to preside over the common market of coal and steel created between primarily France and Germany that had been established as a way to make the nations economically dependent to ultimately deter them from further war.

But just as it has morphed into its current expanded role of interpreting EU laws, the union's judicial system is a dynamic body that continues to rapidly grow and develop.

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