POMFR: Judging Europe’s Judges – The Legitimacy of the Case Law of the European Court of Justice

In these times of increasing euroscepticism, critics of the European Union often contest the Union’s very raison d’être by referring to measures such as the “Bent Cucumber Regulation” and enquire after its right to legislate and adjudicate on areas that traditionally used to be within the scope of sovereign nation-states. What they actually enquire after in most of the cases is the legitimacy of the EU, having undergone an unprecedented and enormous transformation during the last 50 years from economic community to state-like polity, and its adjudicator, the Court of Justice (CJEU), whose jurisdiction ratione materiae has similarly expended and is now encompassing an unparalleled number of fields. The question remains whether the CJEU has shown too much judicial activism by using the instrument of teleological interpretation and whether it crossed the boundaries into the realm of illegitimacy. The time seems therefore ripe for a book like the one under review here, which is a volume of collected articles, edited by Maurice Adams, Henri de Waele, Johan Meeusen, and Gert Straetmans, fittingly entitled Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing 2013) examining the legitimacy of the Luxembourg Court in areas as diverse as the internal market, citizenship, or the EU’s external relations.

The discussion on the proper role of adjudicators is, as the editors correctly identify in the introduction (p. 1), an old question, which nevertheless is still topical today – especially in the context of international and supranational courts which are often criticised as democratically deficient and thus illegitimate institutions. That, however, raises the question what legitimacy actually means. Legitimacy is a troubling notion and there is no common understanding on its exact content. As a consequence, this book pursues the goal of investigating the legitimacy of the CJEU by engaging in wide-ranging legal analyses of Luxembourg’s rulings and its performance in various fields of EU law. The different contributions therefore aim at forging a link between the legitimacy concept and the normative, interpretative and institutional specificities of the Union legal order (pp. 4-6). The most interesting aspect of this book is that even though the authors have been given considerable discretion in formulating their own benchmarks for legitimacy, certain themes (such as concerns for the quality of the Court’s reasoning) run like a red thread through the chapters.

In the book’s first contribution, Koen Lenaerts explores the Court’s external and internal legitimacy. He explains that the outer (or external) boundaries of judicial legitimacy are the courts’ duty of saying “what the law is”; whenever they go beyond this duty, they act illegitimately as they stray into the political process. On the basis of the relevant case-law, Lenaerts demonstrates that the CJEU is indeed willing to tread lightly and tries not to intrude into the domain of politics, which is exclusively reserved for the EU legislator and the Member States (pp. 17-40). In contrast to the divide between “law” and “politics”, internal legitimacy refers to the quality of the judicial process. The author asserts that the allocation of judicial powers vis-à-vis the Member State courts is shaped by mutual respect and dialogue (pp. 40-47). Lastly, Lenaerts concludes that the often-criticised cryptic nature of the Court’s judgments should be seen as a “stone-by-stone” or progressive approach: case-law in the area of citizenship shows that misunderstood judgments such as Ruiz Zambrano “do not come out of the blue” (p. 47), but build upon other decisions (Rottmann) and are then being developed in future cases (McCarthy, Dereci, Iida). In Lenaert’s view, the complementary nature of both the respect of the Court for the domain of politics and its progressive style of reasoning constitutes its ultimate legitimacy as the EU’s main adjudicator (pp. 59-60).

Jan Mazák and Martin Moser assess the CJEU’s legitimacy on the basis of its use of general principles of law, especially that of the prohibition of discrimination on grounds of age in controversial cases such as Mangold and Kücükdeveci. The “fabrication” of such a right by a “gouvernement des juges” (pp. 61-64) has attracted a lot of comments, most of them criticising not the protection of such a right itself, but the way it was conceived. The authors conclude that in these cases, the CJEU was definitely walking the fine line between legitimacy and illegitimacy of its judicial adjudication, particularly by allowing the horizontal invocation of this new general principle of law. However, despite the overall feebleness (pp. 76-81) and the rather constructed impression of the Court’s reasoning in these two cases, the judges did not transgress into the realm of illegitimacy, since the development of new general principles of law is well covered by Article 19 TEU. The Court should nevertheless strive to further define the contours of its case-law in order not to lapse into illegitimacy (p. 86).

The two contributions on the case-law regarding the internal market both investigate the Court’s fine-tuning of the Treaties’ free movement provisions, but their “plan of attack” differs considerably. Stephen Weatherill discusses the ambiguity of internal market rules, which delegate much interpretative autonomy to the CJEU. Certain terms are open to various interpretations; one might therefore conclude that it is not the Court to blame, but rather the drafters of the Treaties (p. 98). Moreover, in the context of harmonisation measures, the CJEU’s cryptic judgments appear to be an inevitable consequence of the nebulous wording of Article 114 TFEU (p. 104). Eventually Weatherill contemplates whether the Court could have done something different, notwithstanding the evasive quality of the Treaty provisions that lie at the root of the problem. He concludes that in general, the CJEU is working within the limits of legitimacy, although it embraces the use of “circumloquacious statements of the result, rather than a reason for arriving at it” (p. 108).

Jukka Snell looks at the legitimacy of the case-law on free movement law from a dual angle: he emphasises that the Court must, in a rather schizophrenic manner, comply with two sets of standards, as it is at the same time a judicial body and an EU institution (p. 110). With regard to the first manifestation, Snell concludes that the judgments on free movement law are insufficiently reasoned and inconsistent (pp. 116-117). A thorough look at the CJEU as an institution of the EU reveals that the Court has unfortunately proceeded too often on an ad hoc basis, thereby failing to adopt a consistent stance. Furthermore, it should also ensure that it neither interferes with national economic models, nor with areas that the Treaties allocated to the Member States (p. 124). Criticism should nonetheless not be too harsh, as for all its flaws, the Court remains the least bad option – in particular in the light of even more incoherent EU legislation (p. 126).

The next two contributions focus on the legitimacy of Luxembourg’s case-law on EU citizenship. Michael Dougan first embarks on a critical reading of the pre-2008 citizenship case-law and concludes that since 2008, the CJEU’s previously clear and consistent jurisprudence in this area has undergone a strikingly sudden change for the worse (p. 140). In three different strands of case-law (indirect judicial review, personal circumstance assessment, substance of rights test; pp. 140-145), Dougan concludes that, as a whole, the post-2008 case-law on EU citizenship appears to be fragmented, confusing and unpredictable (pp. 144-145). He nevertheless refuses to join ranks with the critics of these judgments and suggests a different reading: these decisions should not be seen as unilateral judicial policy-making, but rather as a long-term and interactive process of judicial dialogue with the Member States. In the end, this modus operandi supports the Court’s legitimacy, as it has improved the rights enjoyed by certain categories of EU citizens (pp. 153-154).

Daniel Thym discusses a different aspect of the CJEU’s citizenship case-law, namely its impact on, and acceptance by, the EU legislator and the Member States. He first analyses “classic disputes” on access to social benefits (cases such as Grzelczyk, Baumbast, Teixeira etc.) and the respective dialogue between the Court, the EU legislator, and the Member States. In a very interesting conclusion, Thym argues that the Member States are in a weaker position when it comes to citizenship cases, since – if they disagree with the Court – it is practically impossible to change the Treaties and thus to force their opinion upon the CJEU. The EU legislator just needs to pass relevant legislation (pp. 159-160). Subsequently the author explores the case-law on third-country national family members which represent the “frontier of the future” (p. 165). Controversial judgments such as that in the Ruiz Zambrano case established novel dogmatic standards going beyond the transnational market paradigm (p. 171), but due to the Member States’ resistance against the creation of “true citizenship”, the times of though judicial choices for the CJEU are far from over (p. 174).

The last two substantive chapters deal with the Court’s position vis-à-vis other legal orders. Eileen Denza explores the international dimensions of Luxembourg’s jurisprudence and analyses landmark cases of the last years with respect to treaty obligations in conflict with Union legislation (Intertanko and Air Transport Association of America) and the reception of customary international law (Kadi). In contrast to the Court’s pluralist approach in Kadi (p. 187), its relation with the European Court of Human Rights is shaped by cooperation, dialogue and deference (pp. 187-189). Despite the rather inflexible ruling in Mox Plant (p. 194), barring the Member States from submitting disputes on EU-internal questions to other international courts, Denza concludes that the Court’s jurisprudence in its international context has, so far, been consistent, coherent and faithful to its mandate, which is the protection of its own legal order. Legitimacy is guaranteed, sinces the Member States, as the ultimate Masters of the Treaties, seem to be content with this outcome (p. 195).

Whilst Denza scrutinises the relationship between the Court and the international legal order, Michael Bobek assesses the CJEU’s legitimacy through the eyes of the national courts. In Bobek’s opinion, legitimacy equals feasibility, which means that the pivotal question is not whether the Court’s judgments are legitimate per se, but whether its output is feasible in the eyes of the Member State courts (p. 201). Subsequently he ponders the questions whether the national courts are actually content with the CJEU’s decisions, whether they consider Luxembourg’s decisions as authoritative, and lastly, whether they take heed of the Court’s pronouncements. Surprisingly, Bobek concludes that, probably contrary to academic beliefs, the CJEU’s current standard of reasoning does not raise too much cause for concern – the Member State courts simply need feasible and practical judicial reasons. This is what legitimacy is all about (pp. 233-234).

In an overall conclusion, JHH Weiler ends the book with the observation that the legitimacy issue is far more complex than the conclusions in this book. I would also agree with the statement that legitimacy is not a binary thing, it is neither black nor white, but usually comes in gradations and several shades of grey (p. 8). Moreover, apart from certain elements of legitimacy such as consistency, feasibility, and unambiguity, Weatherill argues that the introduction of dissenting opinions would open the reasoning in hard cases up to scrutiny and development and give the Court more legitimacy (p. 108) – this a suggestion that, so I guess, more than just one academic would support. In the end, I can only wholeheartedly recommend this book to anyone interested in EU law and the more philosophical or political question of its legitimacy. Again, particularly in these times of euroscepticism and the tabloids’ war on the EU, this book fills an important gap and might provide europhiles with some excellent arguments for their next chat with the sceptics.