Conceptual foundations
It is fitting to begin with the conceptual foundations of judicial review. The ultra vires debate is well known. It was concerned with whether the principles of judicial review had to be legitimated via some connection with legislative intent, whether conceptualized as a specific legislative intent in relation to the particular principle of judicial review, or some more general legislative intent that there should be principles of judicial review of the kind developed by the courts.
Some argued that such intent was a necessary conceptual foundation for review, while others contended that the courts could develop the principles of judicial review pursuant to the rule of law. I have no wish to re-open this discourse.[597] The objective is rather to consider the foundations of judicial review in EU law in the light of this debate. It will be seen that, although the EU courts had express authorization for judicial review in the original Rome Treaty, the principles of such review were fashioned by the Union courts pursuant to the rule of law in a manner analogous to that in the UK.Thus, viewed from one perspective the EU courts have been more secure in relation to the foundations of judicial review. The European Court of Justice (ECJ) had, from the very inception of the EEC, an express authorization to undertake judicial review derived from art 173 EEC, now art 263 TFEU, thereby obviating concerns about the legitimacy of engaging in judicial review of the kind that plagued UK scholarship. Yet the matter is more interesting and less straightforward than a mere glance at art 173 EEC would suggest. The reason resides in the general principles of law that fashioned EU judicial review. These were, as is well known, read into the Treaty by the ECJ, in particular during the 1970s. The conceptual foundation for this development has rarely been examined in detail, and the ECJ itself was not unduly forthcoming about the justificatory arguments for the flesh that it read on to the bare bones of art 173.
Article 19 TEU, the old art 220 EC, under which the ECJ is charged with the duty of ensuring that the ‘law’ is observed, is a possible foundation for this case law. This might have been interpreted in a limited manner to connote the idea that, for example, Commission decisions should be made within the limits of the primary Treaty articles and secondary legislation. The word ‘law’ within this article was, however, open to a broader interpretation that was used by the ECJ to fashion a system of general principles through which the legality of Union and Member State action could be determined. The generality of art 19 reveals nonetheless the ECJ's creativity in interpreting it as the foundation for the elaborate tapestry of general principles of law that constitutes EU judicial review.
The injunction in art 263(2) TFEU, which specifies the grounds of judicial review, is more promising in this respect. It states that the ECJ shall, inter alia, review for infringement of the Treaties ‘or any rule of law relating to their application'. The travauxpreparatories for the original Rome Treaty were not available for over thirty years. This is a blessing, since it means that we have not been beset with debates about original intent of the kind that have plagued US constitutional scholarship. The very absence of the travaux preparatories meant, however, that the ECJ developed its own interpretation of the scope of art 263(2).
The intent might simply have been to ensure that Commission decision-making complied not only with the primary Treaty articles, but also Regulations, Directives, etc. passed pursuant thereto. If this had been the intent it could, however, have been expressed more directly. The intent might alternatively have been to capture not only compliance with secondary legislation, but also with other rules of law relating to the application of the Treaty that might be developed by the courts. This interpretation might be enhanced by the fact that French juristic thought is clearly imprinted on the grounds of review in art 263 and French doctrine includes principesgeneraux du droit.[598] In any event, the very ambiguity in the phrase provided the ECJ with a window through which to justify the imposition of administrative law principles as grounds of review.
The judicial task of elaborating principles ofjudicial review was further facilitated by more specific Treaty articles, which made reference to, for example, non-discrimination. It was then open to the ECJ to read these particular Treaty references as indicative of a more general principle of equal treatment and non-discrimination that underpinned the legal order.[599]
The very fact that some foundation for the judicial exercise of power might be located in art 19 TEU and art 263 TFEU should not, however, mask the creativity involved. The ECJ created the principles of EU judicial review in order to enhance the rule of law, and did so in a manner directly analogous to the UK courts when fashioning the principles of judicial review.
This substantive creativity was matched by interpretive creativity. It was the ECJ that decided which systems of administrative law to draw on in shaping Community principles of judicial review. To be sure the structure of what is now art 263(2) bore a French imprint, in terms of the four generic categories of review. This nonetheless left the ECJ with considerable interpretive discretion when developing general principles of law. It certainly did not regard itself as bound to French doctrine, nor did it systematically trawl through the legal systems of each Member State in order to find common principles. The approach was, rather, to consider principles in the major legal systems of the Member States, to use those that were
felt to be best developed and to fashion them to the Community’s own needs. Thus, while French juristic thought might have been the principal force behind the Treaty provisions, it was German law that became most influential. It was German jurisprudence on, for example, proportionality and legitimate expectations that was of principal significance for the development of Community law in these areas.
The substantive and interpretive creativity can be evidenced by the way in which the EU courts decide whether to add to existing general principles of law.
Thus, for example, the precautionary principle[600] was promoted into the ‘premier league’ of general principles via the creative jurisprudence of the Court of First Instance (CFI) in Artegodan[601] and Pfizer.[602] The cases are an object lesson in the similarities in legal reasoning by judges from a common law and civil law background. The judgments are classic examples of generating, or perhaps more importantly being willing to generate, a general principle from diverse and hitherto limited references to the precautionary principle in the jurisprudence of the ECJ and the Treaty.[603] In Audiolux,[604] by way of contrast, the ECJ was unwilling to recognize a general principle of EU law requiring the dominant shareholder of a company to protect minority shareholders in certain respects during a takeover, and this was reflected in the way in which the ECJ distinguished instances in which minority shareholders were afforded protection in existing EU legislation.Judicial review is regarded as one mechanism for securing accountability in the modern state. The focus of this chapter is, as stated at the outset, on the credentials underlying this particular accountability mechanism. It is interesting and noteworthy that the conceptual foundation for judicial review in EU law has been fashioned pursuant to the rule of law in a manner analogous to that in the UK.
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