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Published online by Cambridge University Press: 27 October 2017
The Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This chapter will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This chapter will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions—obviously without solving the problem completely—and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.
3 Shapiro, M, ‘The European Court of Justice’ in Craig, P and De Búrca, G (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999) 321-22Google Scholar. This is of course in addition to being an administrative court that would review the legality of measures adopted by the EEC’s institutions, particularly the Commission.
4 See eg Case 1/58 Stork v High Authority  ECR 17; Case 40/64 Sgarlata and others v Commission EEC  ECR 279.
5 Such willingness was, for instance, expressed by the German and Italian constitutional courts in: BVerfGE 37, 271 Internationale Handelsgesellschaft v Einfuhr und Vorratsstelle für Getreide und Futtermittel (Solange I)  2 CMLR 540; BVerfGE 73, 339 re the application of Wünsche Handelsgesellschaft (Solange II)  3 CMLR 225; Frontini v Ministero delle Finanze (Case 183)  2 CMLR 372; Corte Constituzionale, 21 Aprile 1989 n 232—Pres Conso; red Ferri—Spa Fragd c Amministrazione delle finanze dello Stato  72 Rivista di Diritto Internazionale 104.
6 Case 20/69 Stauder v Stadt Ulm  ECR 419; Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel  ECR 1125; Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz  ECR 3727. On this evolution, see also Claes, M, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 417-22Google Scholar.
8 Hilson, C and Downes, T, ‘Making Sense of Rights: Community Rights in EC Law’ (2009) 24 European Law Review 121 Google Scholar. There is of course a degree of overlap between EC/EU Rights as defined in the main text and fundamental rights as general principles of EC/EU law (ibid, 121–22).
9 ‘Positive legislator’ is by now a classic expression, originally coined by Kelsen. The Kelsenian model of constitutional review sought to avoid the creation of a government of judges by clearly distinguishing between positive and negative legislating: while Parliament could legislate freely, in a creative manner (positive legislating), the constitutional court could only apply the constitution and strike down legislation which did not comply with it (negative legislating). Kelsen, H, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitution’ (1942) 4 The Journal of Politics 183 CrossRefGoogle Scholar; Kelsen, H, ‘La Garantie juridictionnelle de la constitution’ (1928) 44 Revue du Droit Public 197 Google Scholar. For further historical background, see Shapiro, M and Stone, A, ‘Introduction: The New Constitutional Politics’ (1994) 26 Comparative Political Studies 397 CrossRefGoogle Scholar, 400–3. See further A Stone Sweet, Governing with Judges (n 2).
10 Some authors accept it as a necessary condition for this transformation, although not a sufficient one. Hirschl, for example, argues that there are other causes at play, related to the balance of power in a society: Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass, Harvard University Press, 2004) 212 and ffGoogle Scholar.
11 Again, as well as performing the functions of an administrative court that would review the legality of measures enacted by the (then) EEC institutions.
12 The precise contents of the federal bargain are always incomplete: Halberstam, D, ‘Comparative Federalism and the Role of the Judiciary’ in Wittington, KE, Kelemen, RD and Caldeira, GA (eds), The Oxford Handbook of Law and Politics (Oxford, Oxford University Press, 2008) 143 Google Scholar; on incomplete agreements more generally, Sunstein, C, ‘Incompletely Theorized Agreements’ (1995) 108 Harvard Law Review 1733 CrossRefGoogle Scholar, 1739–40.
14 For some of the best-known early criticisms, see: Rasmussen, H, On Law and Policy in the European Court of Justice (Dordrecht, Martinus Nijhoff, 1986)Google Scholar; Rasmussen, H, The European Court of Justice (Copenhagen, GadJura, 1993)Google Scholar; Neill, P, The European Court of Justice: A Case Study in Judicial Activism (London, European Policy Forum, 1995)Google Scholar; Hartley, T, ‘The European Court, Judicial Objectivity and the Constitution of the European Union’ (1996) 112 Law Quarterly Review 95 Google Scholar. Some authors who have defended the constitutional role of the Court are, among others: Cappelletti, M, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989)Google Scholar; Jacobs, F, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in Curtin, D and O´Keeffe, D (eds), Constitutional Adjudication in European Community and National Law (Dublin, Butterworths, 1992)Google Scholar; Tridimas, T, ‘The Court of Justice and Judicial Activism’ (1997) 2 European Law Review 199 Google Scholar; Arnull, A, ‘The European Court of Justice and Judicial Objectivity: A Reply to Professor Hartley’ (1996) 112 Law Quarterly Review 95 Google Scholar; Arnull, A, The European Union and its Court of Justice, 2nd edn (Oxford, Oxford University Press, 2006) 620-21Google Scholar. For a relatively recent controversy, see Herzog, R and Gerken, L, ‘Stop the European Court of Justice’ www.cep.eu/fileadmin/user_upload/Pressemappe/CEP_in_den_Medien/Herzog-EuGH-Webseite_eng.pdf, and a reply in: Editorial, (2008) 45 Common Market Law Review 1571 Google Scholar.
15 Everling, U, ‘On the Judge-Made Law of the European Community’s Courts’ in O'Keeffe, D (ed), Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley (The Hague, Kluwer Law International, 2000)Google Scholar; Arnull, A, ‘Does the Court of Justice Have Inherent Jurisdiction?’ (1991) 28 Common Market Law Review 669 Google Scholar; Ukrow, J, Richterliche Rechstfortbildung durch den EuGH> (Baden-Baden, Nomos, 1995)Google Scholar.
17 Direct democratic legitimacy understood as a function of whether officials (in this case judges) are elected by and accountable to citizens. Although some courts derive some ‘indirect’ democratic legitimacy from the fact that judges are appointed by elected institutions, this link is stronger at the national level: an example is the Czech Constitutional Court (where judges are appointed by the Senate together with the President). The link is more tenuous at the EU level, where the judges of the Court of Justice are appointed by common accord of all national governments (Art 19 TEU).
18 For two recent and compelling overviews from opposite standpoints and further references, see: Waldron, J, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346 CrossRefGoogle Scholar; Fallon, R, ‘The Core of an Uneasy Case for Judicial Review’ (2008) 121 Harvard Law Review 1693 Google Scholar. There is a long tradition of challenging constitutional review in the US, contrary to what happens generally in Europe—see, for example, Tushnet, M, Taking the Constitution away from the Courts (Princeton, NJ, Princeton University Press, 1999)Google Scholar; Hirschl, Towards Juristocracy (n 10). Judicial review has often been defended on substantive or procedural conceptions of minority protection: Dworkin, R, Taking Rights Seriously (Boston, Mass, Harvard University Press, 1977)Google ScholarPubMed; Ely, JH, Democracy and Distrust. A Theory of Judicial Review (Cambridge, Mass, Harvard University Press, 1981)Google Scholar.
19 Waldron, for example, would presumably consider the EU a ‘non-core case’, meaning that his argument against judicial review may not apply to it: Waldron, ‘The Core of the Case Against Judicial Review’ (n 18). A similar argument is made by M Rosenfeld, ‘Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’ (2004) I-CON 633, 654.
20 Regardless of whether this is framed in terms of the protection of individual rights or in terms of a competence dispute. It may be possible to argue that the Court is, when reviewing national legislation, defending the rights of out-of-state actors who do not have a stake in the national democratic process: M Poiares Maduro, ‘Europe and the Constitution: What if this is As Good As It Gets?’ available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1576085, 9 and ff. Nevertheless, the fact remains that the Court, rather than a Union-wide demos, is deciding the scope and content of those prevailing rights. Cf Conant, who argues that the Court’s bold decisions can (and often are) ‘contained’ at the national level. A broad mobilisation of legal and political pressure is necessary to expand the effects of these controversial judgments. This means that if the Court’s decisions have effects it is because of a broader consensus—making them less counter-democratic: see generally Conant, L, Justice Contained (Ithaca, NY, Cornell University Press, 2002)Google Scholar.
21 This support extends to the academic literature, where far fewer authors than in the US challenge constitutional review. For a useful overview of possible reasons for this social (and academic) support: Sadurski, W, Rights Before Courts. A Study of Constitutional Courts in Postcommunist Countries in Central and Eastern Europe (Dordrecht, Springer, 2005) XIV–XVIII Google Scholar; although some of the reasoning is specific to courts in Central and Eastern European countries (where, according to the author, ‘the powers of constitutional courts … have been only rarely, if ever, contested’, ibid XIV), most of the reasoning applies to European consti tutional courts in general. On the specific cases of Germany and France, see also Rosenfeld, ‘Constitutional Adjudication in Europe and the United States’ (n 19) 663–67.
22 For reasons that go beyond hope of personal reward or fear of sanctions: Fallon, R, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1789 Google Scholar, 1795.
23 Ibid, 1827 and ff.
26 This is still Fallon’s classification: see Fallon, , ‘Legitimacy and the Constitution’ (n 22) 1828 Google Scholar.
29 Lasser observes this phenomenon as one of the main sources of legitimacy of the French Cour de cassation, in Lasser, M, Judicial Deliberations. A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004)Google Scholar. The argument can be in any case more easily used in a national European context than at the EU level.
30 The Court may also derive some institutional legitimacy from the fact that the judges are appointed by national governments, in a Union where national identities are still prevalent (Komárek refers to this appointment and re-appointment process as achieving some judicial control, accountability and legitimation: Komárek, J, ‘Questioning Judicial Deliberations’ (2009) 29 Oxford Journal of Legal Studies 805, 822CrossRefGoogle Scholar). Nevertheless, the link between the whole of the EU public and the CJEU judges seems quite tenuous.
31 A term used in the literature, often with different meanings. The expression was coined in the German literature (Verfassungspatriotismus), originally used in: Sternberger, D, Verfassungspatriotismus (Frankfurt am Main, Insel, 1990)Google Scholar and famously taken up by Habermas in: Habermas, J, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaates (Frankfurt am Main, Suhrkamp, 1992)Google Scholar. Since then, it has been widely used in the political debate, with varying definitions. A recent overview can be found in: Mueller, JW, Constitutional Patriotism (Princeton, NJ, Princeton University Press, 2008)Google Scholar. Some see the problem as a lack of ‘social legitimacy’ of the Union: the lack of ‘affective loyalty of those who are bound by it, on the basis of deep common interest and/or a strong sense of shared identity’: Curtin, D, ‘Framing Public Deliberation and Democratic Legitimacy in the European Union’ in Besson, S et al (eds), Deliberative Democracy and its Discontents (Aldershot, Ashgate, 2006) 135 Google Scholar.
32 This often provokes a hostile reaction against the ‘interfering’ EU legal system in the face of decisions that are nevertheless legally sound. This is especially the case in areas of high political sensitivity, such as immigration (eg Case C-127/08 Metock  ECR I-6241), or when the public feels that the decision affects them negatively (consider, for example, the popular reaction to the Test-Achats decision in the UK: Case C-236/09 Association Belge des Consommateurs Test-Achats and others, Judgment of 1 March 2011, nyr.). See also the comments in Editorial, (2008) 45 Common Market Law Review 1571.
33 Rosenfeld, , ‘Constitutional Adjudication in Europe and the United States’ (n 19) 666 Google Scholar.
35 An obvious example of this sort of conflict was the one at stake, famously, in Case C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union  ECR I-10779 and Case C-341/05 Laval un Partneri  ECRI-11767.
36 Kumm believes, in fact, that constitutional patriotism is not possible in the EU, at least under the current political conditions: Kumm, M, ‘Why Europeans Will Not Embrace Constitutional Patriotism’ (2008) 6 I-CON 117 Google Scholar. For a different point of view, see Mueller, ‘A European Constitutional Patriotism?’ (n 34).
37 See, eg, Chalmers, D et al, European Union Law, 2nd edn (Cambridge, Cambridge University Press, 2010) 125-36CrossRefGoogle Scholar; Menéndez, AJ, ‘The European Democratic Challenge: the Forging of a Supranational Volonté Générale’ (2009) 15 European Law Journal 277 CrossRefGoogle Scholar; Curtin, D, ‘Framing Public Deliberation and Democratic Legitimacy in the European Union’ in Besson, S et al (eds), Deliberative Democracy and its Discontents (Aldershot, Ashgate, 2006)Google Scholar; Halberstam, D, ‘The Bride of Messina: Constitutionalism and Democracy in Europe’ 2005) 30 European Law Review 775 Google Scholar.
38 Although it has been argued that, from a different perspective, the Advocate General may undermine the legitimacy that emanates from the values of judicial process: in particular, the fact that arguments are supposed to be tested in an adversarial way (whereas parties may not respond to the AG’s Opinion). For an overview of this discussion see Burrows, N, ‘The Advocate General and Human Rights Standards’ in Burrows, N and Greaves, R, The Advocate General and EC Law (Oxford, Oxford University Press, 2007)CrossRefGoogle Scholar, with further references.
39 Duxbury uses the expression ‘discursive premium’ when comparing the style of decisions stemming from UK, US and French courts: Duxbury, N, Jurists and Judges. An Essay on Influence (Oxford, Hart Publishing, 2001) 59 Google Scholar.
40 This is, of course, a simplistic description; I do not mean to imply that the normative authority of judges is not acknowledged in civil law systems, or that there are no differences between them, or that any of these systems has remained static. Within civil law systems, the French one is traditionally considered the most formalistic: see generally Zweigert, K and Koetz, H, An Introduction to Comparative Law, 3rd edn (Oxford, Oxford University Press, 1998)Google Scholar; Zenati, F, La Jurisprudence (Paris, Dalloz, 1991)Google Scholar.
41 For an overview of this point, as well as a dissenting opinion on the extent and consequences of the civil law influence: Perdju, V, ‘Reason and Authority in the European Court of Justice’ (2009) 49 Virginia Journal of International Law 307 Google Scholar.
42 This may be seen as a result of the French influence when setting up the Court; the main justification tends to be that it shields judges from any sort of reaction from their Member State, or from claims questioning their independence. Judges of the Court of Justice are appointed (and may be reappointed) by common accord of the governments of the Member States, according to Art 19 TEU. It has been argued that, at this point of integration, it would be a logical step to allow individual judgments in the Court: Perdju, ‘Reason and Authority’ (n 41).
43 For an introduction to judicial minimalism and its critique, see respectively Sunstein, C, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass, Harvard University Press, 1999)Google Scholar; Fiss, O, ‘The Perils of Minimalism’ (2008) 9 Theoretical Inquiries 643 Google Scholar.
45 This is because, in such a decentralised system, so many cases will not reach the Court of Justice. Accordingly, the latter needs to make sure that lower courts will deal appropriately with all these cases on their own: Maduro, M, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ (2007) 1 EJLS Google Scholar (especially fn 15 and corresponding main text).
46 Again, this is just a shorthand description. See Lasser, , Judicial Deliberations (n 29) ch 3 Google Scholar.
47 There is indeed an argument to be made for the introduction of individual judgments in the Court of Justice, as a way of improving the authoritative legitimacy of judgments, but this chapter will not go into it: see further eg Perdju, ‘Reason and Authority’ (n 41).
48 See generally Komárek, J, ‘Judicial Lawmaking and Precedent in Supreme Courts: The European Court of Justice Compared to the US Supreme Court and the French Cour de cassation’ (2008-2009) 11 Cambridge Yearbook of European Legal Studies 399 CrossRefGoogle Scholar. For a brief overview of the relationship between minimalism and the system of stare decisis, Sunstein, One Case at a Time (n 43) 19 and ff.
50 Lasser thinks that the Court does follow this model to a certain extent in its judgments, occupying the middle ground between the two extremes of the French Cour de cassation and the US Supreme Court: Lasser, Judicial Deliberations. (n 29).
52 For an overview of the problem, see Curtin, ‘Framing Public Deliberation’ (n 31).
53 Opinion of AG Jacobs in Case C-50/00 Union de Pequenos Agricultores v Council  ECR I-6677.
54 Opinion of AG Maduro in Case C-160/03 Spain v Eurojust  ECR I-2077.
55 Traditionally, US judges have been far more likely than European ones to cite academic sources as well as to engage in a discussion as to what the relationship between judicial decisions and academic law should be (even if attitudes have changed somewhat on both sides of the Atlantic). See N Duxbury for an interesting comparison of the position of English, UK and US judges as regards citation of academics: Duxbury, Jurists and Judges (n 39). See also Braun, A, ‘Burying the Living? The Citation of Legal Writings in English Courts’ (2010) 58 American Journal of Comparative Law 27 CrossRefGoogle Scholar.
56 On citation and its elusive significance in terms of influence, see Duxbury, , Jurists and Judges (n 39) 5–22 Google Scholar.
57 Compared to ‘votes’ (in a very loose sense of the word) when referring to academic sources being cited by the US Supreme Court: Letherbridge, P and Schwartz, DL, ‘An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship’ (2012) 106 Northwestern University Law Review 995 Google Scholar.
58 K Alter, ‘Tipping the Balance: International Courts and the Construction of International and Domestic Politics’ Buffett Center for International and Comparative Studies, Working Paper 10-003, October 2010.
59 Alter, K, The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009)Google Scholar ch 4 (‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–1975)’).
60 Conant argues that the Court’s bold decisions can be (and often are) ‘contained’ at the national level. A broad mobilisation of legal and political pressure is necessary to expand the effects of these controversial judgments: Conant, Justice Contained (n 20). For an earlier study in a similar vein, but concerning the US Supreme Court: Rosenberg, GN, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, University of Chicago Press, 1991)Google Scholar.
61 Opinion of AG Ruiz-Jarabo Colomer in Case C-303/05 Advocaten voor de Wereld  ECR I-3633.
62 Opinion of AG Mengozzi in Case C-355/04 P Segi  ECR I-1657.
63 And it is the most important formal channel through which the Court obtains this input within the framework of the judicial process. Other formal channels would include the parties’ and other institutions’ submissions.
64 Art 104b of the Rules of Procedure of the Court of Justice. See Hinarejos, , Judicial Control in the European Union (n 1) 78–81 Google Scholar.
65 The Opinion (‘view’) of the AG in the first three PPU (procédure préliminaire d’urgence) cases was initially not published: Case C-195/08 PPU Rinau  ECR I-5271; Case C-296/08 PPU Goicoechea  ECR I-6307; and Case C-388/08 PPU Leymann and Pustovarov  ECR I-8993. The view in Rinau was the first to be published, some time after the judgment; since then, the view in Goicoechea has also been published (not so in Leymann and Pustovarov). The AG’s View is now routinely published in PPU cases.
66 Koutrakos, P, ‘Speeding up the Preliminary Reference Procedure—Fast but not too Fast’ (2008) 33 European Law Review 617 Google Scholar, 618; see also the petition prepared by Dr Eleanor Spaventa, 11 September 2008, available at www.dur.ac.uk/resources/deli/ECJ-PPUprocedure2.doc. Similar concerns arose within the framework of the accelerated preliminary ruling procedure under Art 104a of the Rules of Procedure: Chalmers, D, ‘The Secret Delivery of Justice’ (2008) 33 European Law Review 773 Google Scholar, 774.
67 See n 65.
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