by Pascal Cardonnel, Allan Rosas, and Nils Wahl (eds.). Oxford and Portland, OR: Hart Publishing, 2012. 536pp. Hardback $130.00. ISBN: 978-1-84946-336-2.
Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt [at] southwestern.edu
It is challenging to offer a balanced review of a book that tempts the reader to skim rather than to read closely. As one chapter author confesses as he speaks about the book’s purpose, “[a] further addition to the arcana of Union law hardly seems . . . fitting” (p.93). The readership interested in technicalities known only to initiates may be a limited one.
Constiutionalizing The EU Judicial System hints at a tantalizing vision of a new judicial order emerging in Europe. The European Court of Justice (ECJ) has used its decisions to transform the association from one based on international treaties into an autonomous legal order. It has developed doctrines that have established new protections for individual rights through its assertion of the direct effect (Van Gend En Loos v. Nederlandse Administratie Der Belastingen, 1963), supremacy (Costa v. Enel, 1964) and pre-emptive status of EU rules over national ones. The ECJ has also succeeded in enlisting national courts' acquiescence to many EU standards.
The book seeks to explain these changes by addressing the structures, judicial decisions and procedural safeguards developed by the ECJ. The first section analyzes the structure and mechanisms of the European Union (EU) judicial system and how it has developed from the Union’s predecessors as transnational markets.
The second section explores the doctrines of EU citizenship and fundamental rights with special attention to issues of criminal procedures and various forms of discrimination, principally age and gender. The EU has developed many of the features of a national state such as a bill of rights and the notion of a common citizenship by seeking to harmonize conflicting national systems protecting human rights. The willingness of national courts to incorporate these emerging features has also been key. Some of these changes have been reactive, responding to threats of revolt by national courts such as Germany’s which feared that Union regulations might violate fundamental norms in their national constitutions. The EU Council codified the Union court decisions in the 2000 Charter of Fundamental Rights in response to these concerns. The process has been aided by the financial sanctions imposed by the Treaty of Lisbon on member states that fail to comply with a judicial ruling against them.
The final section focuses on due process, a concept that is less central to continental law systems than to the US’s. Europeans’ “relaxed” concern about due process is partially the product of a desire to not let “mere formalities” [*31] interfere with the “efficient implementation” of law. But attitudes are changing. Procedural safeguards are increasingly seen as crucial to the protection of fundamental human rights (p.403). Arbitrariness is the enemy of rights.
Christaan Timmermans nicely summarizes the limits of the judicialization of EU policy making. “[I]n practice the ECJ does not have the power to enforce” the principle of “the primacy of Union law over national law,” the Treaty of Lisbon notwithstanding. The ECJ “is not hierarchically superior to national courts” and must rely on “national courts to give full effect to [the] primacy” of EU law (p.16). The potential chaos of such judicial pluralism is reduced by twice yearly conference held by members of the ECJ and the national courts where justices from both set of courts share their concerns, problems and constructive comments (p.17). Judicial cooperation is also aided by the formation of several associations of judges. Unfortunately, Timmermans underplays the role of transnational law firms in facilitating transnational law. Judicial integration is being accomplished “not top-down as ordained by the Brussels [bureaucracy] or [by decree of Union courts in] Luxembourg, but bottom up” (p.18).
Despite American assumptions about the deductive logic of continental law, EU judges are depicted as pragmatists, wanting clear principles to apply but recognizing that the political and historical realities of a large Union preclude a truly “common law” for the association. The book conveys an image of a dynamic, problem solving judiciary.
The book’s strengths are its “insiders’” views into the development of case law in the EU and its stress on collegiality and dialogue among the various levels (EU and national) of court systems. But its strengths are also its liabilities. The authors stress what they believe to be a shared legal system. Few of them acknowledge the fact that the recent currency and national debt crises may threaten the Union, and even this handful gives scant attention to the current turmoil in the Union. These are not new dangers. Political realities have invalidated established treaty obligations before. For example, when France and Germany breached the three percent ceiling on budget deficits in 2003, the EU Council simply suspended the requirement.
The authors tackle the arcane details of specific legal doctrines but they fail to connect their discussion to the underlying questions of popular support or the social and political legitimacy of EU courts and law. Sadly, the issue of democratizing the Union is seldom addressed, most authors simply accepting what is as legitimate. They fail to question whether the Union’s judicial system rests on genuine public acceptance and democratic accountability. The supposed “Europeanization” of domestic laws and doctrines is not as thorough going as some of the authors assume and the tensions between the sovereignty of the Member States and the EU government are not lessening over time. It is true that most of the Member States, with the exception of those who have opted out such as the United Kingdom and Poland, have acquiesced to a long series of Brussels regulations and Luxembourg judicial decrees. Nonetheless, an “integrationist” EU bureaucracy and judiciary may be confronting a reluctant, federalist Member State coalition. [*32]
This inattention to the debate over the need to strengthen the democratic roots of the Union may be appropriate for appointed judges, separating themselves from a significant political controversy. The book’s thirty authors are, with three exceptions, prominent members of or practicing attorneys in past or current EU courts. But by accepting the legitimacy of the Union’s architecture as a given, they miss David Edward’s observation about the limitations of democratic participation (p.97).
Briefly, there is no European “demos,” no source of popular sovereignty that supports the apparatus of EU bureaucracy or judiciary apart from treaties. The courts have developed principles beyond the treaties in a piecemeal process in areas such as human rights. But popular acquiescence is not necessarily an expression of public consensus. The growing number of Eurosceptics suggests that the EU’s underlying legal assumptions are vulnerable. The Euro’s woes and the sovereign debt battles have increased this band of skeptics.
Simple consent is the basis for legitimate rule in all regimes. Citizen consent in a liberal representative democracy is more demanding. The consent must be well informed. Citizens need to know enough to hold officials accountable for their actions. The consent must be self-preserving. Citizens can not relinquish their power to over-rule officials. The consent must be freely given, not extracted through undue manipulation, fear or threat. And consent in a liberal representative democracy must be inclusive, recognizing the legitimate interests, values, and concerns of all citizens, although at times the majority must rule despite minority pleas. The common thread is that a liberal representative democracy needs an open forum for discussion, deliberation and persuasion. The idea of European “citizenship” fails some of these tenets of genuine consent.
The solution is not democracy through referenda. While popular votes can ratify a specific document, they are not the same as the regular checks of representative government. Nor has the EU Parliament been able to take on this role, subordinate as it is to the Council and the bureaucracy. It has failed to promote effective political engagement by EU citizens.
The Member States are representative parliamentary democracies whose decisions makers are held accountable by traditional political checks such as periodic elections. The weak EU Parliament has not been able to replicate this genuine consent of the governed.
Constitutionalising The EU Judicial System fails to meet its promise to “focus on recent reforms and proposals aimed at further increasing public confidence and democratic accountability throughout the EU judicial system” (book cover flap). The detailed legal analyses are worthwhile for the specialist but a scholar looking for plausible answers to the issues posed by the incomplete democratization of the EU and its legal system might turn to Burca and Weiler’s The Worlds Of European Constitutionalism, recently reviewed in this journal. Better yet, a law and politics scholar might leaf through the pages of the Journal Of Common Market Studies and the European Law Journal. Either strategy would be a more fruitful investment of time if the reader seeks a more fully realized depiction of the interplay of law, politics and economics in the EU legal system. [*33]
Burca, Gráinne de, and Weiler, J.H.H. (eds.). (2012). The Worlds Of European Constitutionalism, Cambridge: Cambridge University Press.
Case 6/64 Costa v. Enel (1964) Ecr 585.
Case 26/62 Van Gend En Loos v. Nederlandse Administratie Der Belastingen (1963) Ecr 1.
Copyright 2013 by the author, Timothy J. O’Neill.