Review of Clara Rauchegger and Anna Wallerman (eds.) The Eurosceptic Challenge: National Implementation and Interpretation of EU Law (Hart 2019)
The aim of this edited volume, published by Hart Publishing in the series “EU Law in the Member States”, is to assess Euroscepticism in the light of the various facets and degrees of national resistance to the EU and to EU law. As the editors acknowledge in their introduction, the ambition is not to provide a comprehensive account of all expressions of Euroscepticism in all the Member States, but rather to provide different perspectives. This is why they deliberately excluded the study of Brexit, as it is understood not to be an internal challenge to the effect and authority of EU law and governance.
The volume is divided into five parts, preceded by a Prologue, drafted by Michal Bobek, and an Introduction, drafted by the editors.
The prologue provides some insightful abstract reflections on three overarching issues: the value of comparative law within the EU, the understanding of the term crisis and the role of scholarship regarding crisis. To radically summarise, Michal Bobek promotes the via media between Scylla and Charybdis. Scylla being the blind use of scientific methods and Charybdis the political engagement through science.
The introduction recalls the general context which the edited volume aims to asses and gives an overview of the different contributions.
Part I uses quantitative and qualitative political science methodology to provide an overview of the effects of Euroscepticism, largely understood, at the level of political parties and governments of the Member States. In the first chapter, Gerda Falkner and Georg Plattner focus on national parties represented at the European Parliament and qualifying as far-right populist parties. They observe that the rise of these parties, hostile to the deepening of European integration, despite not leading to coherent policy preferences could nourish anti-EU attitudes and a non-cooperative antagonism within the EU. In chapter two, Dimiter Toshkov observes that Eurosceptic Member states are not facing more infringement procedures than their non-Eurosceptic counterparts, and that the outcome of those procedures, when engaged, is not less likely to be in their favour. He explains this observation as the result of balancing, occurring by civil servants or by higher degrees of surveillance to guarantee compliance with EU law.
Part II provides sectoral and national case studies on Italy, Hungary and Poland. In chapter three, Luigi Gianniti and Barbara Guastaferro observe that the impact of the Eurosceptic Italian government was much less than anticipated. They claim that the attenuation of Eurosceptic policies was the result of the separation of powers between the different constitutional organs of Italy. In chapter four, Przemyslaw Tacik focuses on the stance of the Polish Government regarding the Court of Justice, specifically following the ruling on the illegality of logging activities in the Bialowieza primeval forest. He points out the impossibility of any rational legal debate against the consistent efforts of government’s officials to undermine the authority of the Court of Justice and to whip up nationalism. In chapter five, Mónika Papp and Marton Varju discuss the economic policy of the Hungarian government since 2010. Based on the departure of the Hungarian economic policy from liberal values, which underpins the internal market and specifically the free movement, they claim a profound ideological conflict between the EU and the current Hungarian administration.
Part III provides two case studies on the free movement within the EU, which appear to be controversial. In chapter six, Peter Thalmann focuses on the response to the 2015 migration crisis, consisting in reinstating the internal border controls according to the exceptional provisions of the Schengen system. Whilst he observes that the reinstitution might well be valid under EU law, as a response to a serious threat to public policy or internal security, he notes that such far-reaching exceptions are incompatible with the original idea of a European space without internal borders. In chapter seven, Catherine Warin qualifies the approach of Luxembourg towards frontier and migrant workers as eurorelactant. She argues that little effect is given to EU obligations on free movement, and this often only after judicial intervention. While she acknowledges some misunderstandings and the limited legislative capacity of the small Luxembourgish Parliament, she suggests that this approach does not fit a member state, which is being vocal about its European stance.
Part IV discusses judicial issues on the relationship between national courts and the Court of Justice. In chapter eight, Anna Wallerman revisits and feminises the Herculean Judge of Dworkin. She specifically creates a taxonomy of the three ideal-typical attitudes of national judges, each one of them named after a female heroine: Daphne, the institutionalist and economic judge; Ariadne, the legalist one and Hera, the activist. The description of the different types of judges facilitates the understanding of the relationship between the national courts and the Court of Justice, as well as the impact of the different attitudes on issues of compliance with EU law. In chapter nine, Jesse Claasen discusses the reduction of references for a preliminary ruling by Dutch judges in the harmonised field of competition law. He claims that the limited number of references to the Court of Justice is not an opposition to EU law but rather as a sign of successful integration. Specifically, the Dutch competition law judges embraced EU law to the extent that they are capable to apply it without the intervention of the Court of Luxembourg. In chapter ten, Monika Glavina analyses interviews with Slovenian and Croatian judges in order to elucidate what prevents them from referring preliminary questions. Whilst she refuses the existence of one main reason and especially the idea of willingness to challenge EU law, she stresses a multiplicity of factors able to prevent Slovenian and Croatian judges from referring to the Court of Justice. Those factors are personal to the judges, procedural and institutional. In chapter eleven, Juan Mayoral analyses a survey of Polish judges, conducted before the current government came to power, in order to assess the effects of conflicts between the national constitutional courts and the Court of Justice. He supports that the position of national constitutional courts may outweigh any diverging guidance provided by the Court of Justice. Given this, he concludes that it is less likely for the Polish national judges to put at check the current Eurosceptic government, especially in case the judiciary itself becomes Eurosceptic because of a politically influenced peak Court.
Part V provides the conclusion of the editors to the edited volume. Specifically, in chapter twelve, Clara Rauchegger and Anna Wallerman are bringing together the findings of the previous chapters of the book to position them by reference to the broader landscape of the existing literature on compliance with and challenges to EU law.
Overall, this edited volume is thought provoking and definitely fulfils its objective to provide perspectives on Euroscepticism. Having the format of an edited collection of contributions, it was inevitable for the book not to have chapters that are mainly addressing specific audiences. However, to a large extent, the chapters (and the prologue) are minimising disciplinary barriers and are providing interesting ideas. To give just one example, the chapter of Anna Wallerman is not only able to appeal to non-lawyers but it can definitely be used beyond the scope of studies on Euroscepticism. The quality of the book leaves little room to find critical comments. However, what left me a slight feeling of frustration was the absence of a clear definition of Euroscepticism and the need to read until Part V to confirm the very broad understanding of challenges to both the EU and EU law (still without finding any definition). While this might be justified in light of the subtitle – national implementation and interpretation of EU law – it appears exaggerated to suggest that challenges on the implementation or interpretation of EU law show different degrees of Euroscepticism. Of course, this can also be an illustration of the successful fulfilment of the broader objective to stimulate some debate on those issues.
To conclude, this is a well written, interesting collection of contributions, providing insights and provoking reflection on a series of aspects relating to the EU and to EU law.