Review of Thomas Horsley’s “The Court of Justice of the European Union as an Institutional Actor: Judicial Lawmaking and its Limits” (CUP 2018)

In his monograph, Thomas Horsley tackles one of the largely unchallenged truisms of EU law and integration studies, namely that the CJEU is a constitutional court, and as such has the ultimate authority to interpret the Treaty. This truism has taken root partially as a result of the CJEU’s own pronouncements in a range of cases starting with Van Gend & Loos and Costa v ENEL. In these cases, and those that followed their line of reasoning, the CJEU constructed a legal order that offered an exceptionally permissible environment for judicial action and activism – feeding off the more widely felt sentiment after the horrors of the Second World War that perhaps courts were the least fallible of all political institutions. Whatever the exact genesis of the narrative that attributes the CJEU with its constitutional character, it is now often taken for granted that the CJEU cannot be curbed in any meaningful sense – be it through domestic or supranational institutions. While in political science literature more and more attention is given to the empirical reality of the interaction between national courts and the CJEU, and the ways in which the former can nudge or circumvent the latter’s preferences, in legal studies such critical engagement has been lacking. Often, the CJEU’s status is seen as the pinnacle of the vision of the EU as based on law, or, as the recent Commission White Paper on the Future of Europe put it, as “replacing the rule of war with the rule of law”.

Horsley challenges this truism, and does so very persuasively. He highlights not just that the sociological acceptance of the CJEU’s role is in fact largely absent in both political and judicial institutions throughout Europe, but also that the constitutionalist narrative doesn’t hold its own on purely legal terms. In fact, the development of the role of the CJEU stands in contradiction with the Treaty. Going through a range of different aspects of the legal architecture of the EU, Horsley shows, in simple terms, that the Treaty answers basic questions about the nature and scope of integration very differently than the CJEU has. And this matters, Horsley argues, because of the ridiculously high consensus threshold that underpins the Treaty. We should, in other words, be suspicious of the CJEU’s answers where they differ from those articulated in the Treaty.

What Horsley offers, however, is not simply a critique of the role of the CJEU. He also examines the elementary questions that underlie the Union’s legal architecture (what is the effect of EU law in the Member States? What is the source of its political authority? What are the limits of integration?), and offers answers to these questions on the basis of the Treaty that at times differ quite radically from those suggested by the CJEU. In doing so, he rethinks some of the basic assumptions underlying integration studies, and adds a rich layer to the debate on aspects as disparate as citizenship law, national identity, and the Euro-crisis.

Despite the focus on the Treaty, Horsley is not an originalist. He offers a dynamic conceptual framework of constitutional supplementation and contestation to make sense of how institutions manage constitutional change. His intuition is that this should rely primarily on political actors. The real problem with the CJEU’s role, then, is that it has asphyxiated the process of continuous political and constitutional renovation by foreclosing possible sites of contestation. The overbearing nature of the CJEU’s control over the constitutional construction of the EU limits the potential for political actors to do exactly that. It is clear that this is part of the growing dissatisfaction with integration – whether institutional (the role of the CJEU) or conceptually (the role of law). Without the possibility to contest policies within the EU, we know by now, the dissatisfaction boils over as contestation of the EU. Horsley’s account of the CJEU’s role in this process is a valuable addition to the increasingly critical engagement with the legal architecture of the EU. What is striking, despite Horsley’s convincing account, however, is that it is difficult to escape the sensation that the CJEU has been very successful in crafting and justifying its own role within the process of integration. Has the CJEU, over the last 50 years or so, created new institutional dynamics and a legal vocabulary that, despite arguably being contrary to the Treaty, offers an attractive template for regional integration in the 21st century? Or, to put it differently, if we were to restart with integration tomorrow, would we devise the CJEU’s role very differently from the one that it has devised for itself? It is striking, for example, that the Withdrawal Agreement between the UK and the EU mirrors many of the doctrines and judicial structures that the CJEU has invented to carve out institutional space for itself. If anything, really, it seems that the Member States are celebrating the peculiar and revolutionary legal architecture that the CJEU has dreamt up.