14 October 2015

As we reported in today’s Daily Shakeup, the new President of the European Court of Justice, Koen Lenaerts has given a very interesting and revealing interview to The Wall Street Journal in which he claims that that the ECJ “really is a court, not a political institution” but then contradicts himself by noting the “strong link between the court and European integration.” In the interview, he went on to praise many aspects of European integration and argue that in terms of trying to find a solution to the refugee crisis, “we can’t leave it to the single member states, each one pulling in its own direction” – a questionable political assertion.

Lenaerts also substantiated the concerns of those who think the ECJ has pursuing integration by stealth in the face of opposition from public opinion when he argued that the ECJ has “contributed in its case law many principles which are implied in the process of European integration set out in the treaties.” He went on to argue that the Court interprets the law based on the text, the broader context and the objectives of the law. He adds that using vague text is often “quite deliberate” since politicians can’t agree, so it is left to the ECJ to fill in the gaps when problems arise.

These remarks are more grist to the Leave campaigns’ mills. But they also illustrate why David Cameron has targeted the EU’s mantra of ‘ever closer union’ in his renegotiation. Given that the principle of ‘Ever Closer Union’ appears in the preamble to the EU Treaties, which as Lenaerts admits the ECJ uses as a guide, it should give pause for thought to those who think that this is a symbolic phrase with no meaningful application and that Cameron is simply posturing in wanting it made clear that this no longer applies to all member states.