In the ECJ We Trust: The Authority of EU Law in the Context of Constitutional Conflict

Enforcing the Authority of EU law - The Trust Vested in the ECJ

The authority of EU law mainly operates against the backdrop of the complex interactions between the ECJ and the Member States. Karen J. Alter is among the academics fascinated by the ECJ’s mysterious success in keeping the doctrines of supremacy, direct effect and preliminary ruling uncontested by the ‘masters of the treaty’. Their acquiescence, and thus implied acceptance, is quite inexplicable, given the great departure from the original functions intended for the ECJ in the treaty. Initially, the ECJ was envisioned as an organ with very limited technical functions.³¹ Additionally, this trinity of doctrines can be rightfully regarded as highly controversial in legal and political sense as they are at odds with national legal practices, can potentially subdue national high courts to the ECJ and in effect derogate from national sovereignty.³²

Karen J. Alter holds that this astonishing result is in part due to the ECJ’s masterful strategising, combined with the limited array of responses available to the Member States. Essentially, her arguments are fitted within the framework of ‘doctrinal negotiation’ (an alternative to ‘legal dialoguing’- a method that lies at the root of constitutional conflict). ‘Doctrinal negotiation’ boils down to an inherent clash of interests between the parties at the negotiation table and allows for the possibility of a compromise, rather than a perfectly satisfactory outcome. Thus, all parties make some concessions, recognising their innate weaknesses – it was crystal clear to the ECJ that supremacy cannot be absolute and it cannot afford to be accused of abuse of power, while the national governments acknowledged their relative ineptitude to micromanage the judicial process. And so, the national courts ended up complying with the vision promulgated by the ECJ by letting go of substantial legal authority. It all comes down to pinpointing the interests of the actors as the driving forces in this scenario.³³Let us examine the strategy carefully devised by the ECJ. The policy style behind the trinity of doctrines is described in detail by Trevor Hartley as a cautious, but constant, advance.³⁴ Furthermore, ‘by narrowly restricting the scope of its reasoning, [the ECJ] manages to avoid almost every question in issue’.3 Stuart Scheingold maintained that ‘the ECJ used procedural rules to avoid decisions of substance’.³⁵ At first, the doctrine of supremacy was easily ignored by national governments through the option of non-compliance. Weiler argues that the national courts accepted the new obligation and re-affirmed it through the usage of the preliminary reference procedure, the arena of the debate moved to the legal realm.3 This was further exemplified by the Lütticke judgment which led to a period of bolder and more assertive application of the doctrine, to be traced in a string of case-law (ERTA, Cassis de Dijon, Factortame decisions).³⁶ In effect, it is this persistent application of the doctrine that crystallises its substance and results in the perpetuation of the authority of the EU legal order.

The ECJ is the authority that initiates and constructs EU law and as such, this piece argues, its credibility is rightfully doubted. J. H. Weiler and Ulrich R. Haltern reveal that the decisive question in the tentative relationship between the ‘masters of the treaties’ and the Court boils down to the performance of the institution, not who has the final say in the delimitation of competences. In other words, can we trust the ECJ with the formidable task of being the ultimate arbiter?⁴⁰

Roman Herzog and Lüder Gerken offer a comprehensive, negative account of the ECJ’s wayward judicial activism. Its sometimes underhanded attempts to take over Member State competences through caselaw invasion arguably are putting off the EU community. The first example they take into consideration is the Mangold Judgment. The accusations include a dismissive attitude towards subsidiarity and practical difficulties. Not to mention the vagueness of justifications as well as, shockingly, a direct declaration of the provision as void.⁴¹ Other more recent instances are also brought to light. Ultimately, Herzog and Gerken criticize the ECJ’s arrogance and completely discard its suitability as a guardian of the interests of the ‘masters of the treaty’. They hold its systematic and purposeful disregard for the will of the legislator, coupled with the shaky and often messy argumentation, only goes to prove its utter disrespect for the boundaries between competence areas.⁴²

However, let us try to start the investigation of the ECJ’s character anew, without the automatic assumption that its only goal is a legislative raid. Charles F. Sabel and Oliver Gerstenberg offer a more realistic rendering of the judicial function of the ECJ, inspired by the Solange jurisprudence and what Rawls identifies as an ‘overlapping consensus’.⁴³ Once again it seems it is a matter of trust between the co-operating actors to first recognise in each other the same set of legal values and then to assign to their partner the guardianship over these. Only then would they feel comfortable to expand the scope of these essentials as they see fit. This perception of the EU constitutional order then evolves into a deliberative polyarchy, whereby, in the absence of an ultimate authoritative decision-maker, disputes are resolved through a dialogue between concurrent entities, each with an appetite for competence. The deliberative element comes from the shared will to renegotiate and engage in a discourse in search for the best legal solution. This amounts to a new brand of constitutionalism beyond the state.⁴⁴ The discussion basically hints at expansion of competences being the result of consultation and negotiation, rather than a self-initiated offensive. Perhaps, on a constitutional plane, judicial activism may not be such an inexcusable breach of trust.

Conclusion

The ECJ and the national constitutional courts struggle to maintain the balance in a controversial friend–foe relationship. The top priority should the preservation of the trust between them. At the end of the day, the authority of EU law and the smooth running of the EU would be incapacitated without that life-sustaining force. Looking to the future, ridding the legal order of the suppressed tension through judicial co-operation would be an opportunity to ensure a peaceful coexistence in pursuit of common goals, greater than individual interests. It is an exercise of self-knowledge and survival.

Endnotes

1. David A. Fahrenthold, ‘“In God We Trust”: House reaffirms national motto yet again’, in Washington Post, published November 2nd, 2011. Available online at: http://www.washingtonpost.com/ politics/in-god-we-trust-house-re-affirms-national-motto--yetagain/ 2011/11/02/gIQAiZRWfM_story.html [last accessed on 30/03/2012]
2. D. Chalmers, G. Davies, G. Monti, ‘The Authority of EU Law’ , in European Union Law, (Cambridge University Press: 2010.) p. 184- 227 (p. 189)
3. M. Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’, in European Law Journal, Vol. 11, No. 3, May 2005, pp. 262–307 (p. 264-265)
4. M. Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’, in European Law Journal, Vol. 11, No. 3, May 2005, pp. 262–307 (p. 264)
5. M. Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty, in European Law Journal’, Vol. 11, No. 3, May 2005, pp. 262–307 (p. 264)
6. M. Kumm, ‘The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty’, in European Law Journal, Vol. 11, No. 3, May 2005, pp. 262–307 (p. 264-265)
7. D. Chalmers, G. Davies, G. Monti, ‘The Authority of EU Law’ , in European Union Law, (Cambridge University Press: 2010.) p. 184- 227 (pp. 188 – 203)
8. D. Chalmers, G. Davies, G. Monti, ‘The Authority of EU Law’ , in European Union Law, (Cambridge University Press: 2010.) p. 184- 227 (pp. 190-191)
9. D. Chalmers, G. Davies, G. Monti, ‘The Authority of EU Law’ , in European Union Law, (Cambridge University Press: 2010.) p. 184- 227 (pp. 191-193)
10. D. Chalmers, G. Davies, G. Monti, ‘The Authority of EU Law’ , in European Union Law (Cambridge, Cambridge University Press: 2010) p. 184-227 (pp. 194-196)
11. The Maastricht Judgment (1993) 89 BVerfGE 15
12. G. Beck, ‘The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz- Kompetenz: A Conflict between Right and Right in Which There is No Praetor’, in European Law Journal, Vol. 17, No. 4, July 2011, pp. 470–494 (p. 474)
13. J. B. Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’, in European Law Journal, Vol. 14, No. 4, July 2008, pp. 389–422 (p. 405-406)
14. J. B. Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’, in European Law Journal, Vol. 14, No. 4, July 2008, pp. 389–422 (p. 412)
15. 2 BvE 2/08 Gauweiler v Treaty of Lisbon, Judgment of 30 June 2009
16. G. Beck, ‘The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz- Kompetenz: A Conflict between Right and Right in Which There is No Praetor’, in European Law Journal, Vol. 17, No. 4, July 2011, pp. 470–494 (p. 475-478)
17. G. Beck, ‘The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz- Kompetenz: A Conflict between Right and Right in Which There is No Praetor’, in European Law Journal, Vol. 17, No. 4, July 2011, pp. 470–494 (p. 478-480)
18. Quoted by F. Giorgi and N. Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Lookingglass— On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle’, in European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717
19. Quoted by F. Giorgi and N. Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Lookingglass— On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle’, in European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717
20. Quoted by F. Giorgi and N. Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Lookingglass— On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle’, in European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717
21. F. Giorgi and N. Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Looking-glass—On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle’, in European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717 (p. 697-699)
22. F. Giorgi and N. Triart, ‘National Judges, Community Judges: Invitation to a Journey through the Looking-glass—On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle’, in European Law Journal, Vol. 14, No. 6, November 2008, pp. 693–717 (p. 699-701)
23. Weiler quoted in G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‘Specificity’ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 97-125, p. 106
24. Weiler quoted in G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‘Specificity’ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 97-125, p. 106
25. Weiler quoted in G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‘Specificity’ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 97-125, p. 106
26. G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‚Specificity‘ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 97-125, p. 106
27. G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‚Specificity‘ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 97-125, p. 107-107
28. G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‚Specificity‘ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 107-116
29. G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‚Specificity‘ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 120
30. 30 G. Martinico and O. Pollicino, Between Constitutional Tolerance and Judicial Activism: the ‚Specificity‘ of European Judicial Law, 10 Eur. J.L. Reform 97 2008, p. 107-116
31. 31 K.J. Alter, ‘Who Are the ‘Masters of the Treaty’?: European Governments and the European Court of Justice’ in The European Court’s Political Power: Selected Essays, ed. by K.J. Alter (Oxford, Oxford University Press: 2009) p. 112-113
32. KJ Alter, ‘The European Court’s Political Power: The Emergence of an Authoritative International Court in the European Union’ (1996) in The European Court’s Political Power: Selected Essays, edt by K.J. Alter, (Oxford University Press: 2009) p. 93
33. KJ Alter, ‘National Judicial Interests and the Process of Legal Integration in Europe’ in Establishing the supremacy of European Law, (Oxford, Oxford University Press:2001) p. 38
34. Trevor Hartley, quoted in KJ Alter, ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by (Oxford,Oxford University Press: 2001) p. 186
35. Trevor Hartley, quoted in KJ Alter, ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by (Oxford,Oxford University Press: 2001) p. 186
36. Clarence Mann as quoted in ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by K. J. Alter, (Oxford,Oxford University Press: 2001) p. 186
37. Stuart Scheingold quoted in ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by K. J. Alter, (Oxford,Oxford University Press: 2001) p. 186
38. ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by K. J. Alter, (Oxford,Oxford University Press: 2001) pp. 187-189
39. ‘Winning Political Support: Why Did National Governments Accept a Judicial Revolution That Transferred Away National Sovereignty?’ in Establishing the supremacy of European Law, edt by K. J. Alter, (Oxford,Oxford University Press: 2001) (p. 189-192)
40. J.H.H. Weiler, U.R. Haltern, ‘Constitutional or International? The Foundations of the community Legal Order and the Question of Judicial Kompetenz-Kompetenz’ in The European court and national courts - doctrine and jurisprudence, by A.M. Slaughter, A. Stone Sweet and J.H.H. Weiler, Oxford, Hart Publishing:1998) p. 360
41. R. Herzog and L. Gerken, ‘Stop the European Court of Justice’, published in German in Frankfurter Allgemeine Zeitung , 8th Sept. 2008, pp. 2-3.
42. R. Herzog and L. Gerken, ‘Stop the European Court of Justice’, published in German in Frankfurter Allgemeine Zeitung, 8th Sept. 2008, , pp. 3-5.
43. Rawls, as quoted in C. F. Sabel, O. Gerstenberg, ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’, in European Law Journal, Vol. 16, No. 5, September 2010, pp. 511–550 (pp. 512-514)
44. J. Rawls, as quoted in C. F. Sabel, O. Gerstenberg, ‘Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order’, in European Law Journal, Vol. 16, No. 5, September 2010, pp. 511–550 (pp. 512-514)