JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE Essay

JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE - Essay Example In case of ambiguities in the text of the Treaties, ECJ has to employ its creative talents so as to accomplish an acceptable elucidation and application of Community law. ECJ has filled in the gaps and removed the imprecision in the provinces of Community law thereby removing the barrier of restricted jurisdiction and is able to develop its authority and role. The main aim of this research essay will be analysing in detail the activist strategy of the ECJ which appears to have initiated some courageous and bold efforts to establish a constitutional cornerstone for the EU2. â€Å"What is Judicial Activism?† Judicial activism connotes to the keenness of the courts to establish public policy if a State, and its political institutions is reluctant to do the same or may not in a position to execute the same. In real parlance, it can be called as the shifting of judicial decision making privileges from the administrative and legislative process to the courts. It is a well known fact that judicial activism at ECJ refers the political consequences of the policy preferences employed by the Court in its elucidation or interpretation role. Judicial activism may compel a court to function as legislators, or it can be referred as ‘judicialisation of politics3’. There is a need for judicial activism in EU as the language of the Treaty is not supportive and so the Courts require to establish some cannons so as to fill in a â€Å"procedural hole.† Language and Interpretation of EU Law It is to be observed that EC law cannot be comprehended without recognising its multilingual personality into account. While applying or interpreting Community laws, the peril of swerving meanings between various versions and the equal legitimacy of all language versions of community provisions. As there are about 23 working and authentic languages employed in the EU institutions, there is enormous strain on the EU’s translating services. Further, it is to be obs erved that daily application and interpretation of Community regulations actually occurs in various and different tribunals and courts of the Member States. ECJ employed teleological approach in cases where intellectual property is involved even when its relevance contravenes the precise and explicit factual meaning of clearly expressed words as it held in the case Davidoff & Cie SA v Gofkid Ltd4. General Activism As early as in 1963, in Van Gend en Loos5 case, it was held by ECJ that cannons of the Treaty could have a direct impact. Thus, the direct effect offers an individual citizen right to sue national government in their own national courts for not willing to implement the treaty6. In this case, the Court viewed that the Treaty is not an agreement and it more than that which establishes mutual responsibilities between the Contracting States, besides, the Community establishes a new legal setup of international law for the advantage of which the States have restricted their aut onomous authority, despite within the restricted grounds. In the above case, ECJ created the doctrine of direct effect thereby restricting national courts from proclaiming the illogicalness of Community law. In Foto-Frost7 case, ECJ viewed that national courts do not have authority to invalidate the community law even though it is having such authority. In Costa v ENEL8, it was held by ECJ that EC law has primacy over the national laws. In this case, ECJ supremacy doctrine was established ,which connote that State transfers of legal authority were irrevocable and imposes a long -lasting restriction on sovereign