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14th JEAN MONNET SEMINAR IN EU LAW 2016

IF THE COURT OF JUSTICE IGNORES THE PRINCIPLE OF


CONFERRAL SIMPLY BECAUSE IT CAN, HOW DO WE FIX
THE PROBLEM?
By
Professor Derrick Wyatt QC1
PART I - THE COURT OF JUSTICE IS NOT INFALLIBLE ..
AND IT IGNORES THE PRINCIPLE OF CONFERRAL WHEN IT WANTS TO
1
For me, discussing the Court of Justice (CJEU) has always involved a
paradox. One the one hand, the CJEU has injected the rule of law into every
aspect of the EUs activities. On the other hand, some of its decisions
undermine the rule of law because they have no legal basis, and amount to
judicial legislation.
2
That seems a serious accusation. To say that some decisions of the
Court of Justice undermine the rule of law. But I am not the first to express this
point of view.
3
I would like to refer to the views of a recently retired President of the
Danish Supreme Court, Brge Dahl. In a keynote address at the Fide
Conference in 2014 he criticised the Court of Justice on a number of grounds:

He said that the CJEU interpreted EU law in unforeseeable ways.

He considered that this infringed the principle of legal certainty,


and was contrary to the rule of law.

He also referred to the creative methods of interpretation of the


CJEU. He argued that this should not be taken so far as to
endanger the democratic legitimacy of the Union.

4
He also made it clear that this was not just seen as a problem by the
Danish Supreme Court. He said this is a matter of growing concern to the
supreme courts of the Member States. 2 These are important points. The
1

https://www.law.ox.ac.uk/people/derrick-wyatt-qc
For this lecture I have drawn on a recent lecture I gave at the Bingham Centre on 2 November
2015, which appears on their website: http://www.biicl.org/event/1124
2
Proceedings, Speeches from the XXVI FIDE Congress, 2014, editors Neergaard and
Jacqueson, page 26-30, http://www.e-pages.dk/ku/926/

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alleged problem is a growing problem. And it is seen as a problem by the
supreme courts of the Member States.
5
The Court of Justice has always provoked controversy. Early criticism
came from Hjalte Rasmussen in his book On Law and Policy in the European
Court of Justice, published in 1986. Rasmussen commented in Oxford some
years later that his criticisms involved perhaps 2% of the Courts judgments.
Modern critics of the Court accuse it of result or policy driven decision-making,
which lacks a convincing legal basis, and of a failure to provide convincing
reasons for its decisions, 3
6
Defenders of the Court argue that is has provided the legal glue which
has made a reality of the single market, and of EU policies on, for example,
competition, state aids, the environment and equality.
7
What makes the debate interesting is that both sides of it are largely
right. This is because they place their emphasis on different elements of the
Courts jurisprudence. But that does not mean that the Court of Justice always
strikes the right balance. I do no think it does.
8
The bottom line criticism of the Court, is that it is too ready to depart
from the TEXT of the law. A related criticism is of judgments driven by the
outcome preferred by the Court, rather than reached by a convincing process
of legal analysis and reasoning.
9
This approach has led to a continuing increase in EU competence. And
this approach undermines the political and democratic processes provided for
or recognised in the Treaties. It substitutes, without sufficient justification, the
Court of Justices preferences for the preferences of other actors on the EUs
institutional stage.
10

This undermines THE PRINCIPLE OF CONFERRAL.

Article 5 (1) TEU:


The limits of Union competences are governed by the principle of conferral.
And here is what that MEANS:
Article 5(2) TEU:
Under the principle of conferral, the Union shall act only within the limits of
the competences conferred upon it by the Member States in the Treaties to
attain the objectives set out therein. Competences not conferred upon the
Union in the Treaties remain with the Member States.

For recent critical analysis by a number of authors, see Adams et al. (editors) Judging
Europes Judges - The Legitimacy of the Case Law of the European Court of Justice, Hart
Publishing, 2013.

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It also undermines THE PRINCIPLE OF SUBSIDIARITY, which is
designed to ensure that
decisions are taken as closely as possible to the citizen. (Article 1 TEU
and preamble to Protocol No 2 on Subsidiarity and Proportionality.)
12
To examine the accusation that the Court undermines the principal of
conferral by expanding EU competence, it is necessary to comment briefly on
how EU competence works.
13
First, let us look at EU competence to make laws in the internal
market. I am going to put this very simply.
14
EU competence covers the removal of obstacles to free movement of
goods, persons, services and capital. If the Court of Justice gives a WIDE
INTERPRETATION to the concept of an obstacle to free movement, the effect
is to INCREASE EU competence to regulate that subject matter, and to
DECREASE national competence to regulate that subject matter.
15
For example, Article 49 TFEU provides that restrictions on freedom of
establishment shall be prohibited. Certain restrictions, however, may be
justified by Member States (Article 52 TFEU and case law of CJEU). The EU
has, for example, competence to make directives under the ordinary
legislative procedure in order to attain freedom of establishment as regards a
particular activity. Since freedom of establishment involves removal of
restrictions on establishment, the wider the Courts interpretation of
restriction, the wider the EU lawmakers power under Article 50(1). The EU
lawmaker is entitled to decide on an EU wide basis which restrictions on
freedom of establishment can be justified.
16
And there is more. If the Court of Justice interprets the Treaty as giving
rise to a directly effective right to carry on cross border activity, that right
LIMITS EU legislative competence, as well as NATIONAL legislative
competence. The EU lawmaker has to work around the right defined by the
CJEU, rather than being able to define the content of that right. Thus in the
above example concerning the right of establishment, although the EU
lawmaker can decide which restrictions are justified, it is bound by the CJEUs
decisions on which national measures constitute restrictions in the first place.
And the EU lawmaker may also be bound by decisions of the CJEU that
certain national restrictions cannot be justified. The discretion of the EU
lawmaker may be considerably reduced by the Courts case law.
17
Quite apart from the internal market, the Treaty gives lawmaking
powers to the EU over other subject matter. BUT some lawmaking powers
are expressly denied to the EU lawmaker. For example, in the field of
SOCIAL POLICY, Article 153 TFEU provides competence for the Council and
Parliament to adopt directives laying down minimum standards in respect of
workers rights. HOWEVER, certain matters are excluded from Article 153 by
Article 153(5):

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The provisions of this Article shall not apply to pay, the right of association,
the right to strike or the right to impose lock-outs.
18
As a result of a wide interpretation of internal market rights,
however, the Court has nevertheless brought collective action by trade unions
within the scope of EU law. I shall come back to this later.
19 In the field of PUBLIC HEALTH, the EU has little in the way of lawmaking
powers. The Treaty bestows no express power for the EU to regulate public
health services. Indeed, Article 168 TFEU states:
Union action shall respect the responsibilities of the Member States for the
definition of their health policy and for the organisation and delivery of health
services. The responsibilities of the Member States shall include the
management of health services and medical care and the allocation of the
resources assigned to them.
20
However, the case law of the CJEU has brought medical care,
including hospital care, within the scope of the internal market, even if that
care is provided as part of the social security system of a Member State.
21
The CJEU has done this by treating the cross border provision of
medical care as a service for internal market purposes. For a service to be
covered by the internal market, it must be normally provided for
remuneration. The Court has treated this condition as satisfied even if the
service is provided under national social security rules, and even if the socalled remuneration is the insurance funding of a national health care
scheme.4
22
Let us take an example. In the UK, health care is provided by the
National Health Service. The National Health Service is not an insurance fund.
It employs doctors and nurses and provides care in NHS hospitals to all lawful
residents, free of charge. The Court of Justice has treated NHS patients
awaiting surgery as potential recipients of services under internal market
rules. One result is that a UK patient may opt for treatment in another Member
State, and the National Health Service is required to pay the bill. The NHS is
thus required to turn itself into an insurance fund to pay for treatment of its
patients in other Member States. This was decided in the case of Yvonne
Watts v Bedford Primary Care Trust. 5 This is not in my view a fair reading of
the provisions on cross border provision of services. It is pure judicial policymaking.
23
One effect of this case-law has been to subject national health care
schemes to EU lawmaking authority. There is now an internal market directive

See e.g., Case C-157/99 B.S.M. Geaets-Smits v. Stichting Ziekenfonds VGZ; H.T.M.
Peerbooms v. Stichting CZ Groep Zorgverzekeringen , and Case C-385/99 V.G. Mller-Faur
v. Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen.
5
Case C-372/04 Yvonne Watts v Bedford Primary Care Trust.

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on cross-border health care which covers patients of national health care
schemes.6
24
This is an example of how case law of the Court expands the
lawmaking powers of the EU, and diminishes the lawmaking powers of
national parliaments. The EU has on the face of it acquired the competence to
harmonise provisions on public health care in the Member States, despite the
fact that the Member States have never expressly given this power to the EU,
and have indeed indicated that the EU should respect national responsibilities
for these services.
25
I turn next to a case involving collective action by trade unions. In the
Viking case7 the Court held that a commercial operator could rely on Article 49
TFEU to impose obligations directly on trade unions, and to limit their right to
take collective action.
26
The collective action in question in Viking was designed to prevent a
ferry operator from re-flagging its vessels to take advantage of less protective
national labour rules. The vessel was Finnish, and the operators wished to reflag it as Estonian to take advantage of the lower labour standards applicable
under Estonian law. Strike action was taken to try to prevent this happening.
This strike action was held by the CJEU to restrict the right of establishment of
the ferry operator.
27
Here is my objection to this judgment. This ruling by the Court of
Justice effectively circumvented the Treatys exclusion of EU competence in
the field of the right of association and the right to strike. The social policy
provisions of the Treaty give lawmaking powers to the EU institutions covering
aspects of workers rights. The Treaty excludes from these lawmaking powers,
inter alia, the right of association and the right to strike (Article 153(5) TFEU).
This exclusion of harmonisation by even unanimous Council decision
presupposes that this activity could NOT be regulated anyway under other
Treaty provisions, under qualified majority voting. By holding that trade union
collective action could amount to a restriction on cross border establishment,
the Court of Justice implied that the EU lawmaking institutions could regulate
national rules on strike action under the chapter on establishment - under, for
example, Article 50(1) TFEU. That flatly contradicted the exclusion in Article
153(5) of EU regulation of strike action even by a unanimous vote.
28
Denmark argued to the Court that the exclusion from EU competence
of collective action implied exclusion from the scope of the provisions on
establishment and services. The Court rejected this argument on the basis
that the fact that such matters remained in principle within national
competence did not release Member States from the obligation to exercise
that competence consistently with Community law.8 That does not meet the
6

Directive 2011/24/EU.
Case C-438/05 Viking. See Wyatt, Is the European Union an Organisation of Limited
Powers, in Arnull et al (editors) A Constitutional Order of States: Essays in Honour of Alan
Dashwood, Hart Publishing, 2011, page 3, at pages 16,17.
8
Viking para 40. The argument was advanced by Denmark in Viking.
7

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point in issue. If a Treaty provision excludes a particular subject matter from
EU regulatory competence, that subject matter cannot amount to a restriction
on free movement, because regulating restrictions on freedom of movement is
precisely what EU legislative competence is designed to do. Viking is another
step too far. The legal arithmetic does not add up.
29
The Commission later initiated a proposal, the so-called Monti II
proposal, to balance strike action with cross border economic activity, based
on Article 352 TFEU. The proposal was widely condemned as an attempt to
circumvent the Treaty exclusion of the right to strike from EU competence,
and prompted a yellow card from national parliaments under the subsidiarity
protocol. The Commission abandoned the proposal. But the circumvention for
which the Monti II proposal was blamed must be attributed to the Court of
Justice in Viking.
30 I turn now to some features of the Courts case-law on EU citizenship. I am
going to be very selective. The Court of Justice has worked hard to expand
and develop the concept of EU Citizenship. It has branded EU Citizenship as
a status destined to be the fundamental status of nationals of member
States (first expressed in Grzelczyk). This is based on judicial policy rather
than any relevant text. It is supported by no reasoning. It makes an implicit
contrast with national citizenship - if EU Citizenship is destined to be the
fundamental status of the nationals of the Member States, then national
citizenship is destined to be something less. This implication is confirmed by
later case law.
31
In the Rottman case the CJEU deduced from this fundamental status
the proposition that the acquisition and loss of national citizenship is subject to
review in light of EU law.9 There is no textual basis in the Treaties for this and
it subjects the very existence of national citizenship to EU law.
32
The Courts conclusion is in my view inconsistent with Treaty
requirements that EU Citizenship shall not replace national citizenship. 10 If the
EU law concept of Citizenship over-rides conditions on the acquisition and
loss of national citizenship imposed by national law, then to that extent EU
Citizenship replaces national citizenship.
33
The Courts conclusion in Rottman is also in my view inconsistent with
the treaty requirement that the Union to respect the national identities of the
Member States,11 and respect their essential state functions. 12 There is no
more essential a state function than determining the conditions for acquisition
and loss of national citizenship.
34
I would like to refer to comments on the national identity clause by
Professor - Judge - Sinisa Rodin. He has observed that:

C-135/08 Rottman paragraph 48.


Article 9 TEU, Article 20(1) TFEU.
11
In force in this form at the time of the judgment in Rottman.
12
Lisbon version.
10

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Too extensive an interpretation of the national identity clause has the
potential to block or even reverse the course of European integration. On the
other hand, too narrow an interpretation would render [it] devoid of its useful
effect.13
35
In general, I agree with Professor Rodins proposition. The national
identity clause cannot be used to excuse a failure to apply EU law. But it can
and should inhibit the Court of Justice from expanding EU obligations in ways
which are bound to erode essential state functions. That is my objection, in
this respect, to the proposition that EU law can determine the grant or
withdrawal of national citizenship.
36
I would also add a few observations about European integration. The
integration envisaged by the EU Treaties does not require a constant
expansion of EU competences. The principle of conferral is an important DECENTRALISING principle. It is a statement expressed as a LIMITATION on
EU competences. I refer to Article 5 TEU: THE LIMITS OF UNION
COMPETENCES ARE GOVERNED BY THE PRINCIPLE OF CONFERRAL.
37
The de-centralising aim of the principle of conferral can only be
undermined by a judicial approach which leads to a constant expansion of EU
competences. European integration should never be measured by the extent
of European regulation. How could this be consistent with decisions being
taken as closely as possible to the citizen?
38
Subsidiarity, respect for national identities, and respect for
essential state functions, are core constitutional values of the Union
which militate against any theory of an ever expanding European legal
universe.
39
The procedure for enhanced cooperation provides for a multi-speed
Europe, and yet is described, and rightly described, as reinforcing European
integration.14 The European integration which the Court should protect, is an
integration which maintains constitutional as well as cultural diversity, and
guards against, rather than promoting, the creation of EU competences which
have not been clearly and expressly conferred.
40
To the extent that the Courts case law expands EU competence, it
contradicts the principle of conferral, and the principle that decisions should
be taken as closely as possible to the citizen. I have already referred to
examples of how the Courts case on the scope of restrictions on state action
have served to increase the scope of EU lawmaking competences, and in one
case to circumvent express Treaty restrictions on that competence.
41
Rottman is a judgement which reduces the competence of national
lawmakers to define national citizenship. What it also does is to transfer to the
EU lawmaker competence to lay down rules in respect of national citizenship.
13

S. Rodin, National Identities and Market Freedoms after the Treaty of Lisbon 7 Croatian
Yearbook of European Law and Policy [2011] p. 41
14
Article 20(1) TEU.

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This is the inevitable consequence of Rottman, just as it was the inevitable
consequences of the case law on national health care provision in cases such
as Watts, and the case law on strike action in cases such as Viking.
42
I shall refer to one or two further cases about EU Citizenship. They
are quite early cases.
43
The rights of EU citizens are in part defined by EU primary law and
are in part by EU secondary legislation. But the Court of Justice has
construed that legislation generously in favour of EU citizens, relying on the
alleged (and implied) requirements of EU primary law, and has chipped
away at the conditions imposed by the EU lawmaker for the enjoyment of
rights of residence.
44
One example is the Grzelczyk case.15 Grzelczyk was a student. His
residence in other Member States was stated in EU rules to be conditional on
a declaration of sufficient financial resources to avoid becoming a burden on
the social assistance system of the host Member State. But the preamble of
the then applicable Directive referred to a student not becoming an
unreasonable burden on the social assistance system of the host Member
State.
45
The Court emphasised Gs citizenship and his entitlement in principle
to equal treatment. The Court said that the bringing into effect of citizenship
had the effect of modifying its earlier case law. Relying on the fact that the
preamble only precluded a student becoming an unreasonable burden on the
social security system of a Member State, the Court upheld the right of a
student at the beginning of his final year of study whose money had run out to
claim a social assistance benefit in the host State.
46
The Court also claimed to uphold the right of Member States to
terminate the residence of those who no longer complied with the
requirements of that residence. But the Court insisted that such termination
must not be automatic.
47
The Courts use of the preamble to modify the text rather than resolve
an ambiguity in it is questionable to say the least. And the judgment of the
Court leaves real uncertainty as to when a student is entitled to claim social
security, and when claiming social security will lead to termination of his right
to residence.
48
I turn to another problematic case. EU Citizens who are not
economically active are entitled to residence in the Member States if they are
economically self-sufficient and have comprehensive medical insurance. In
Baumbast 16, the Court said it was disproportionate of a Member State to
object to a persons residence on the ground that his medical insurance was
not comprehensive in that it did not cover emergency medical treatment. This
15

C-184/99 Grzelczyk.
Case C-413/99, paras. 80-94 (interpreting Directive 90/364, now Article 7 (b) of Directive
2004/38).
16

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ruling is against the text of the Directive and is not conducive to legal certainty.
Comprehensive medical insurance means, it seems, fairly comprehensive
medical insurance.
49
No doubt the Court felt sympathy for the individuals concerned in
Baumbast and Grzelczyk. In the former case the individual had almost
certainly qualified for residence, so why not place the matter beyond doubt? In
the latter case the student was in his final year of study, so why not let him
claim social assistance after all?
50
Why not? Because in each case the Court gives a ruling that is against
the text and leads to uncertainty in future cases, and in each case the Court
undermines the solution reached by the lawmaking institutions in formulating
the directives concerned.
51
In these cases the Court also relies heavily upon primary law concepts
(citizenship and proportionality) to interpret the secondary legislation
adopted by the Council and Parliament. This reduces the lawmaking
competence of the EU legislature. Furthermore, the Court of Justice may
itself decide to modify its approach to the concept of discrimination, and this
modified view also becomes binding on the EU legislature. The process of
legal change and law reform is taken out of the hands of the EU legislature,
and placed exclusively in the hands of the Court of Justice. For example
52
To assess inequality it is necessary to identify comparable situations,
and a determination of comparability often involves a value judgement/policy
decision. Thus, in the Lebon case (Case 316/85), the Court held that a claim
by a migrant to a job-seekers benefit was not comparable to such a claim by
a national worker. It followed that denying such a benefit from a job-seeker
from another Member State did not amount to discrimination prohibited by
Regulation 1612/68.
53
Later however, the Court revised this analysis because of the
introduction of the concept of EU citizenship. In the Collins case (C-138/02),
the Court held that because of the introduction of the status of Union
Citizenship, the situation of a job-seeker from another Member State and a
national job-seeker were now to be regarded as comparable. There is no
indication in the provisions of the Treaty that this was intended by the Member
States to be the case. Yet this ruling binds EU authorities as well as national
authorities, and a judicial value judgment thus forecloses a different value
judgment on the part of the EU legislator.
54
I would argue that the EU legislator should in principle be free to make
its own decision as regards comparability in such cases.
55
I am aware that some recent case-law shows more respect on the
Courts part for the text of Directive 2004/38/EC on movement and residence
of EU Citizens. I am talking about Case C-333/13 Dano and Case C-67/14
Alimanovic. Instead of relying on an expansive treaty concept of Citizenship,
as it had in some previous cases, the CJEU stuck closely to the text of the

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relevant directive on movement and residence, and denied EU entitlement to
benefits under national law to the individuals in question. It remains to be
seen whether recent case law in the field of citizenship reflects a genuine rethinking by the Court of the right relationship between judicial interpretation on
the one hand, and EU lawmaking, on the other. I must say I am encouraged
by that case law.
56
On the other hand, I regard Ruiz Zambrano (C-34/09)) as another
judgment too far, another judgment without a proper legal basis. The situation
was a purely internal situation. There was no issue of cross border movement
by a national of a Member State. The issue was the right of residence of and
the right to work of a third country national in Belgium, who was the father of
minor children of Belgian nationality. The Court invented a concept. It said:
Article 20 TFEU precludes national measures which have the effect of
depriving citizens of the Union of the genuine enjoyment of the substance
of the rights conferred by virtue of their status as citizens of the Union
(see, to that effect, Rottmann, paragraph 42).
It followed in the Courts view that the Colombian father must be given a right
of residence in the EU and the right to work in the EU, in order to maintain the
rights of the minor children to remain in Belgium, the country of their
nationality. This amounts to attributing to Belgian nationality characteristics
which it does not have under Belgian law. Once again, this judgment invades
the reserved domain of nationality, and contradicts the Treatys guarantee that
the Union respect national identity and essential state functions.
57
The judgment bases this proposition on the Rottman judgment. Yet the
cross reference to paragraph 42 of the latter judgment casts no further light on
the legal basis for these new and unjustified departures from the text of the
Treaty.
58
Ruiz Zambrano, like Rottman, has the effect of increasing the
lawmaking powers of the EU in respect of EU citizenship, under Article 21
TFEU, or, alternatively, Article 352 TFEU. These lawmaking powers now
include the power to ensure the genuine enjoyment of the substance of EU
Citizenship. It is not easy to see how the EU lawmaker could make much use
of this new power. What is the content this genuine enjoyment, beyond that
revealed by the facts of cases in which the Court decides that the new
principle applies? Here is another problem. The Court of Justice is bound to
uphold the principle of legal certainty. It is clearly not doing so in this context.
59
Returning to the theme of the Courts general interpretative approach. It
is unfortunately possible to identify numerous examples of judgments which
are against the text, which are based on inadequate reasoning, and
unnecessarily and inappropriately undermine both the EU and national
lawmaking processes.
60
I offer the Mangold judgment as one example. The judgment invented a
new general principle of EU law, that of non-discrimination on grounds of

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age. The Court simply asserted that this was a general principle already
recognised in the laws of the Member States, which it clearly was not. The
consequence in the case itself was to set aside the period of grace allowed to
implement an EU directive on the same subject matter, to allow the newly
established general principle to displace the effects of provisions of German
labour law, and to impose obligations directly upon a German employer.
61
The judgment was almost universally criticised - some of the most
powerful criticism came from Advocates General of the Court in subsequent
cases. Advocate General Sharpston summarised these criticisms in her
opinion in Case C-427/06 Bartsch, including the criticisms of Advocate
General Mazak in Case C-411/05 Palacios de la Villa:
He noted that the international instruments and constitutional traditions
referred to in Mangold enshrine the general principle of equal treatment, but
that it was a bold proposition and a significant move to infer from that the
existence of a specific principle prohibiting age discrimination. A general
principle of equality potentially implies a prohibition of discrimination on any
ground which may be deemed unacceptable, so that specific prohibitions
constitute particular expressions of that general principle. However, it is quite
a different matter to infer from the general principle of equality the existence
of a prohibition of discrimination on a specific ground and the reasons for
doing so are far from compelling. Moreover, neither Article 13 EC nor
Directive 2000/78 necessarily reflect an already existing prohibition of all the
forms of discrimination to which they refer. Rather, the underlying intention
was in both cases to leave it to the Community legislature and the Member
States to take appropriate action to that effect. That is what the Court, too,
seems to suggest in Grant, [C-249/96] in which it concluded that Community
law, as it stood, did not cover discrimination based on sexual orientation.
62 Advocate General Mazak makes a number of important points. One is the
point that the existence of a general principle of equality does not prove that
there exists a general principle concerned specifically equality irrespective of
age.
63
Another is the point that the Court in Mangold failed to provide any
convincing reasons for its conclusion that there already existed a general
principle prohibiting discrimination on grounds of age.
64
Another is the point that the Treaty provided a mechanism for the EU
lawmaker and the Member States to develop the law of equality, in the
future, in a number of respects, including age. The Court treated the existence
of this legislative option as proof that the prohibition of a age discrimination
was already a general principle of law.
65
Mangold was a result driven judgment, it was unsupported by
convincing or indeed any legal reasoning, and its effects were not and could
not have been foreseen by lawmakers at EU or national level.

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66
In reaching decisions like this, the Court is acting as if it were above the
law, rather than the servant of the law.
67
The Courts judicial approach in cases like those I have mentioned
undermines the principle of conferral. It does this in several ways. It
increases the competence of the EU lawmaker. That is contrary to the
principle of conferral. It also reduces or controls the competence of the EU
lawmaker, by a generous interpretation of EU primary law, as in the case of
Citizenship.
68
But there is a further way the Court undermines the principle of
conferral. It undermines the basis upon which powers are conferred upon the
Court itself. In Article 19 TEU the Court of Justice is charged with ensuring
that in the interpretation and application of the Treaties the law is observed.
What does this mean? It means that the Court shall maintain the rule of law in
the interpretation and application of the treaties. That is the basis upon which
judicial authority is conferred upon the Court itself.
69
That brings us to a good point to finish the first session. I finish it with
this summary of some of the key points.
70
I began with an expression of opinion by a President of the Supreme
Court of a Member State. He expressed concern about the judicial techniques
of the Court of Justice. In particular, he saw a failure to respect the principle of
legal certainty in the interpretation of texts. And he saw a possible
consequence flowing from this. That possible consequence was undermining
the democratic legitimacy of the EU. He also said that his concerns were the
same as he had heard expressed by judges of other supreme courts of
Member States.
71
I have really expressed agreement with this. And referred to judgments
which I find to be problematic to greater or lesser extent.
72
I have argued that the Court of Justice interprets the concept of
restrictions on the internal market in a wide way. And that in doing so, the
Court expands the lawmaking competence of the EU, and diminishes the
regulatory competence of the national authorities. In some cases, this allows
the Court to evade limitations on EU competence written into the Treaties. For
example, in Viking, the judgment brought within EU competence collective
action by workers. Under the Treaty this was denied to the EU, because that
power was intended to be reserved to the Member States.
73
I have also argued that the Court of Justice interprets the concept of
EU Citizenship too widely. There is no legal basis for this. And indeed it
contradicts the Treatys guarantee that the Union respects national identity
and national state functions.
74
And I have argued a further point. The Court uses primary law
concepts when it interprets secondary legislation. Once again I refer to
citizenship. The Court has used the concept of Citizenship and of

DRAFT LECTURE PART 1 BY PROFESSOR DERRICK WYATT QC

13
proportionality to interpret the rules made by the EU lawmaker to define the
scope of EU citizenship. But the effect of the Court using primary law
concepts to interpret secondary legislation to limit the discretion of the EU
lawmaker to define the content of the rights in question.
75
The result of this case law is to undermine democratic control in the
Member States, and in the EU legislature. I refer back to the President of the
Supreme Court of Denmark, who made the same important point about
democratic legitimacy.
76
The Court would no doubt defend itself by saying we aim to do
justice. To aim to do justice is essential. But it is not enough. It Is not enough
for any court. Any court worthy of being described as such, must do justice
ACCORDING TO LAW.
So, here is the thought I leave you with
THE COURT OF JUSTICE IGNORES THE PRINCIPLE OF CONFERRAL
WHEN IT WANTS TO DO SO

DRAFT LECTURE PART 1 BY PROFESSOR DERRICK WYATT QC