The politics of European justice

The EU's least understood institution is its Court of Justice, which is seated in a stockade-like building in Luxembourg. For over half a century, judges there have quietly adjudicated, mainly between European governments, institutions and businesses. Their rulings concerning issues such as competition policy or environmental protection are mostly of little interest to politicians, let alone ordinary citizens. However, the Court is moving further and further into sensitive areas that affect national sovereignty and personal freedoms. Such moves will be controversial at a time when populist and nationalist movements are thriving across the continent.

Immigration policy is a good example. In the 2008 'Metock' case, the Court ruled that foreign spouses of EU citizens are entitled to free movement rights without having previously lived in the Union. The Court's reasoning was impeccable: if EU nationals are to exercise fully their right to reside in any other member-state, their spouses need to be able to move with them, regardless of origin. But Denmark's government – long propped up by the anti-immigrant Danish People's Party – almost collapsed over the issue because it was forced to re-think strict rules for limiting immigration. Other countries complained that the judgement would increase spurious or 'sham' marriages between EU nationals and foreigners seeking residency in a European country. Ireland, for instance, reported a wealth of cases in which Lithuanians travelled there to marry Pakistanis (whom they had met online) in exchange for money.

The Metock case is one in a series of rulings where the Court has forced EU countries to alter their immigration controls. In 2009, it used an obscure clause in a 40-year-old trade agreement with Turkey to forbid Germany from requiring Turkish tourists to apply for a visa despite concerns that many might stay and seek work illegally. In 2010, judges prevented France from stepping up police patrols near the Italian border, arguing that these would be equivalent to the border checks abolished between the two countries in the EU's Schengen area of passport-free travel. And in April 2011, the Court ruled that heavy-handed Italian measures to deal with illegal immigration fell foul of EU rules on expelling unlawful migrants.

Another example is security policy. Since its 2008 'Kadi' judgement, the Court has challenged financial asset seizures and expulsion orders against suspected terrorists on UN Security Council and EU blacklists. Judges held that such lists were often too arbitrary because some individuals on them have had their bank accounts frozen without a trial or formal charges. EU governments have appealed against this reasoning on the grounds that security issues are mostly a national concern and that the UN lists in particular have helped isolate Islamist terrorists worldwide. Under the Lisbon treaty, the community method of decision-making, which gives a role to EU institutions as well as governments, now applies for the first time in criminal justice and police co-operation. That means by 2014 the Court will be entitled to adjudicate all disputes concerning EU laws relating to justice, security and migration. Since its judges have already shown themselves to be strong defenders of individual liberties, the Court may become a permanent thorn in the side of European security services.

In cases affecting civil liberties or fundamental rights, the Court refers to the EU's Charter of Fundamental Rights. The Charter is a list of rights and principles made legally binding on EU law by the Lisbon treaty in 2009. Some fear that the Charter's declarative principles might force them to change longstanding laws on labour rights or abortion. During the Lisbon treaty negotiations, the UK and Polish governments, for example, obtained guarantees clarifying the Charter's impact in an attempt to limit its application in their own countries. The strength of such accords – often incorrectly referred to as 'opt outs' – will be tested sooner rather than later, however. EU judges are shortly to consider an appeal for refugee status in the UK – known as the 'Saeedi' case – where the key point at issue is whether a failed asylum seeker can resist deportation by citing rights in the Charter. The Court's decision will help decide 300 other appeals currently on hold in Britain and Ireland.

Judicial rulings like these are indicative of a growing conflict between European countries and supranational institutions over security, immigration and human rights at a time when voters crave protection from the outside world. In February 2011, Britain, for example, objected to a ruling in April from the European Court of Human Rights (a non-EU body) that it must allow prisoners the right to vote. Other countries such as Denmark, France, Italy and the Netherlands want EU laws on free movement, political asylum and passport-free travel watered down to counter a popular perception that they are no longer in control of their own frontiers.

Governments have complied with some 15,000 rulings of the Court to date, mainly because the EU's single market would not have been achieved, and cannot be maintained, without a strong judicial institution to enforce it. But if they also expect the EU to take a hand in helping to fight crime and improving co-operation against illegal immigration, governments need to accept that a key role of judges is to protect citizens from the arbitrary use of power by the authorities. And they should recognise too that EU 'judicial activism' is often the result of a failure on the part of politicians to agree clear decisions – and hence clear legislation – between cautious national negotiators from 27 different countries.

Meanwhile, the Court itself needs reform to ensure that its proceedings are more transparent; that its burgeoning workload is dealt with efficiently; and that national nominees that are not up to the job are rejected. The only remaining question is whether the natural tension between the rule of law and electoral politics – which exists at national level – is sustainable in a confederation where the bonds of democratic legitimacy are much weaker. In other words, will a newly powerful EU Court strengthen the rule of law in Europe or expose the limits of European integration?