Increased Competences through Development of the Law: The European Court of Justice and the U.S. Supreme Court

Abstract

The appropriate distribution of competences between a central authority and the respective decentralized units lies at the heart of every political multi-level system. This applies to the European Union as a legal community sui generis as well as to the United States of America as a federal state. First and foremost, one has to find an equilibrium between conflicting interests and the search for unity and integration on the one hand, and the fundamental respect for the constitutive units on the other hand. Federal systems are usually characterized by centralizing tendencies as far as the distribution of compentences and the interpretation of competence norms are concerned (cf. Schramm, “Anregungen” 11f.). This tendency becomes especially clear when one takes a look at the jurisdiction of the European Court of Justice (ECJ) and the U.S. Supreme Court: For decades, these supreme courts have interpreted the vertical distribution of competences — founded on treaty or constitution, respectively — in a generous way and further enhanced it via development of the law, which has resulted in a systematic extension of the community’s or federation’s competences. The judicial enhancement in terms of a gouvernement des juges, which has exceeded acceptable boundaries, has recently met with growing resistance, especially by members of the European Union. Thus, the ECJ has been accused of inadmissible interference with the Union’s political development (cf. Dobler 510f.) This criticism raises the question of a proper relation between judicial restraint and judicial activism, which has so far mainly been a matter of legal policy in the USA.

Special thanks go to Andreas Leisner and Philipp Prantl for their translation of this article into English.