EU: The European Court of Justice (ECJ) does not set out with an agenda to extend the power of the EU over member states. But politicians may not always understand exactly what they have agreed to when they sign EU treaties, according to Ireland's member on Europe's highest court.
In a strong defence of the ECJ, Judge Aindrias Ó Caoimh also suggests that recent criticism by politicians of the court are intended for a domestic audience rather than the 25 judges sitting at the ECJ.
"It is not usual to have attacks from someone in the position of the Austrian chancellor, but the court has never been without its critics," says Judge Ó Caoimh. "But, on the other hand, one has to bear in mind that politicians often say things for consumption by different constituencies."
Austrian chancellor Wolfgang Schüssel recently accused the ECJ of extending the EU's reach to areas of national competence, particularly education. He was angered when the court blocked Austria's attempt to limit the number of applications from German citizens for medical courses at its universities. The ECJ ruled that limiting applications contravened the rules of the EU internal market.
"The court doesn't set out with any such agenda and it doesn't set out to give power where no power exists," says Judge Ó Caoimh. "If the court declares that a power exists in any particular area, then it is only stating what the law already reflects. And the law will not have been decided by the judges but will have been decided within the appropriate political domain."
The ECJ enforces the treaties underpinning the EU and the regulations that are transposed into domestic law in member states. It takes referrals from national courts, the EU institutions, and member states to make sure that EU legislation is applied in a uniform manner across the Union.
Some of its recent judgments, such as one last year that gave the European Commission more power to require states to impose criminal penalties on environmental polluters, have been interpreted by academics as aggressively extending the sovereignty of the EU institutions over member states.
Judge Ó Caoimh dismisses such concerns, arguing that politicians may not always realise what they are agreeing to when they sign up to EU treaties.
He cites the example of the Gabrielle Defrenne v Belgium ECJ case in the 1970s on equal pay between men and women. The court ruled that since the 1960s women had been entitled to equal pay under the EU treaties, something that had not been anticipated by any politician, says Judge Ó Caoimh, who joined the ECJ in October 2004 after a five-year spell as a judge on the High Court.
A former lecturer in European law at the King's Inns, Judge Ó Caoimh is no stranger to Europe or politics. His father sat as Ireland's member on the ECJ from 1974 to 1985 and his cousin is Minister for the Gaeltacht, Éamon Ó Cuív.
The biggest difference between serving as a judge on the High Court and serving on the ECJ is that you sit as a team in Luxembourg, he says.
"Sometimes it is comforting to have the assistance of colleagues on the court because they can help you to formulate your own views on the case," Mr Ó Caoimh highlights the different legal traditions in the EU as a key challenge for judges.
"There are legal concepts, which are understood by common-law lawyers, which are very difficult to understand from others coming from different legal traditions. For example, the nature of interests and property in Ireland."
The multicultural nature of the court also presents challenges, particularly linguistically. French is the working language and every judgment must be translated into all 20 EU official languages, giving rise to the 20-month average time that it takes to discharge cases, he says.
EU enlargement, which increased the number of the judges from 15 to 25 in 2004, has helped to cut the waiting time for cases in the short term. But with more cases now originating from these states, this advantage will dissipate, he says.
To address the delays, the ECJ may in the future set up new tribunals to hear specialised cases. A special tribunal for intellectual property and trademark cases has been mooted before, although in practice the number of these cases coming before the ECJ has been less than expected, he says.
Perhaps the biggest changes to the way the court works and its jurisdiction are contained in the draft EU constitution. The treaty, which remains in limbo, would have extended EU citizens' ability to take cases directly to the court, something the drafters of the treaty felt would work to boost the court's profile.
Yet Judge Ó Caoimh is not convinced the proposed changes would be so dramatic.
"Most citizens have the right to go to their national courts and invoke community law and from the earliest days the Court of Justice has stressed that community law creates rights which the nationals and the citizens of Europe enjoy before their own courts," he says.
"I think the proposal in question would have a very limited nature."
Another key element in the constitution is the incorporation of the Charter of Fundamental Rights. This sets out the civil, political, economic and social rights of European citizens and all people resident in the EU, and the passing of the constitution into law would make it legally binding in the Union.
Some legal experts say this raises the possibility of a jurisdictional clash between the ECJ and the Strasbourg-based European Court of Human Rights, which enforces the European Convention on Human Rights.
"The possibility of tension arising between both courts cannot be excluded, but I think due vigilance should ensure that this belongs more in the realm of theory rather than in practice," says Judge Ó Caoimh.