Volume 50 (2013)

Volume 50 (2013) / Issue 1

Sacha Garben, 'Sky-high controversy and high-flying claims? The Sturgeon case law in light of judicial activism, euroscepticism and eurolegalism' (2013) 50 Common Market Law Review, Issue 1, pp. 15–45


In its controversial Sturgeon judgment, the Court of Justice of the European Union held thatRegulation 261/2004/EC interpreted in light of the equal treatment principle entitles passengers of delayed flights to claim financial compensation equal to the right accorded by the Regulation to passengers of cancelled flights. The ruling has met with hostility not only from airlines, but also from legal commentators and, most importantly, national judges. Courts from Germany, the Netherlands and the UK have flooded the ECJ with new references, asking it either directly or indirectly to overturn the judgment. Furthermore, some national judges have condemned the ruling altogether, and have refused to apply it. This contribution outlines the controversy, exploring the potential reasons and dynamics behind these strong reactions. It will be argued that although the ECJ engaged in a remarkable degree of judicial activism by effectively writing a new provision into a piece of secondary legislation,  this activism can be defended as desirable to the extent that it counterbalances a market-favouring slant in the EU legislative process and checks the still undemocratic European legislature. Furthermore, it will be argued that activism alone does not account for the full extent of the controversy, and that there are additional factors in play. The Sturgeon controversy will be considered in light of the recent surge in Eurosceptic judgments by national supreme courts, which might embolden also lower courts to defy the ECJ, as well as the phenomenon of "Eurolegalism", i.e. the rise of an adversarial legal culture akin to that in the United States. National judiciaries might be Sturgeon-adverse because of the increasing "claim-culture" in Europe, as illustrated by the issue of passenger rights. It will be argued that Eurolegalism is a by-product of the wide-scale EU-induced privatization of public services and that consumer rights are a necessary counterbalance of the increasing marketization of European society/societies.

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ISSN: 0165-0750
ID: COLA2013003