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THE COURT OF JUSTICE OF THE
EUROPEAN UNION IN THE TWENTYFIRST
CENTURY
R. DANIEL KELEMEN*
I
INTRODUCTION
Where a court stands depends on where that court sits. External context
generally shapes the law and politics of judicial institutions. For any court, key
contextual factors may include, for instance, political actors and institutions that
must enforce judicial rulings and that may react to unwanted rulings with ‘court
curbing’ measures; other courts with which the court cooperates or competes;
members of the legal field,
1
including the lawyers and litigants who bring cases
and the scholars who interpret the court’s jurisprudence; and the broader
sociopolitical or geopolitical context that may influence prevailing attitudes
about governance by judges. In one external context, political actors may accept
and even embrace assertions of judicial power. In another, political actors may
suppress the judiciary. In one external context, a high court may rely on
widespread support from lower courts. In another, a high court may struggle to
assert its authority vis-à-vis other courts. And in one external context, a court
may benefit from the support of a burgeoning “legal field” that generates cases
and promotes the acceptance of new doctrines, whereas in another, a court may
find itself with few friends and even fewer cases.
External contextual factors have played a profound role in shaping the law
and politics of the European Court of Justice (ECJ).
2
Indeed, it is hard to
conceive of a set of more influential causal factors. The ECJ has emerged as the
Copyright © 2016 by R. Daniel Kelemen.
This article is also available at http://lcp.law.duke.edu/.
* R. Daniel Kelemen is Jean Monnet Chair in European Union Politics, Professor of Political
Science and Professor of Law (by courtesy) at Rutgers University. The author would like to thank
Karen Alter, Laurence Helfer, Mikael Rask Madsen and other participants in workshops at Duke
University and the iCourts Center of Excellence at the University of Copenhagen.
1. On the concept of legal fields, see generally Pierre Bourdieu & Richard Terdiman, The Force
of Law: Toward a Sociology of the Juridical Field, 38 HASTINGS L.J. 805 (1987); Yves Dezalay &
Mikael Rask Madsen, The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of
Law, 8 ANN. REV. L. & SOC. SCI. 433 (2012).
2. Naming conventions for the EU’s courts changed with the Lisbon Treaty. The EU’s high court
is formally referred to as the European Court of Justice (ECJ). The lower court, formerly known as the
Court of First Instance, is now known as the General Court. The EU judiciary as a whole,
encompassing the ECJ, the General Court, the EU Civil Service Tribunal, and other specialized courts
that the EU may establish, is known as the Court of Justice of the European Union, or CJEU. This
unfortunate naming convention uses the singular—“Court” in CJEU—for what is actually a plural: a
judicial system made up of multiple courts.
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118 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
most powerful supranational court in world history, achieving a status more
akin to that of a domestic constitutional court than to other international or
supranational courts, such as the others discussed in this issue. In terms of the
measures of authority,
3
the ECJ has clearly achieved extensive authority. Its
rulings are accepted not only by the parties to the case and “compliance
partners,”
4
such as executive branch officials, administrative agencies, and
judges, but also by a much broader legal field encompassing scholars, legal
practitioners, and other actors who advise individuals, governments, and firms
on what the law requires. The distinctive achievements of the ECJ have
depended crucially on its external context, a context which has been much more
conducive to judicial empowerment than the contexts surrounding other
international courts. To be sure, factors internal to the ECJ itself—relating to its
internal structure, operations, and its strategic behavior—have been necessary
to its success, but such internal factors could only help the Court secure such
extensive authority because the Court already enjoyed a favorable external
context.
The introduction to this issue
5
highlights three categories of external
contextual factors—institution-specific context, constituencies context, and
geopolitical context—that affect the development of an international court’s
authority. Aspects of each of these three categories have been crucial to the
development of the ECJ’s extensive authority. First, the ECJ benefited from an
overarching geopolitical context—including its linkage to the project of regional
integration in Europe, the institutional setting of the early European
Community, and the broad trend toward the judicialization of politics in
Europe—that was highly supportive of the expansion of judicial authority.
Second, the core subject matter of the Court’s early jurisdiction, which centered
on adjudicating disputes pertaining to the European Community’s single
market, allowed the ECJ to focus initially on issues of relatively low political
salience and thus to develop its jurisprudence protected behind a veil of
technocratic obscurantism. Third, the ECJ’s core constituencies—national
governments, national courts, and members of the European Union (EU) legal
field—tended to be supportive of judicial empowerment. Together, these
aspects of the ECJ’s external context provided a highly supportive environment
in which the Court could develop its jurisprudence and gradually extend its
judicial power during its first few decades of existence. Rarely do international
courts enjoy such favorable external contexts. Indeed, even the ECJ itself today
faces a more threatening external context than it did in past decades.
Although the ECJ’s external context remains broadly supportive of its
authority, external changes over the past decade present the Court with a new
3. Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, How Context Shapes the
Authority of International Courts, 79 LAW & CONTEMP. PROBS., no.1, 2016, at 9–12.
4. KAREN J. ALTER, THE NEW TERRAIN OF INTERNATIONAL LAW: COURTS, POLITICS, RIGHTS
53 (2014).
5. Alter, Helfer & Madsen, supra note 3.
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set of challenges. Declining public support for the project of European
integration has negative implications for the Court. The expansion of the scope
of EU law into more sensitive policy fields draws the ECJ into increasingly
contentious political debates. Rumblings of anti-ECJ backlash among a number
of the Court’s core constituencies, including some national governments,
national judiciaries, and members of the European legal field, portend dangers
on the horizon. Thus, although the Court’s authority is in many respects more
extensive than ever before, the ECJ faces a number of new risks in its external
context and it must tread carefully as its terrain grows more treacherous.
Part II of this article analyzes the impact of geopolitical context on the
development of the Court’s authority. This article shows that the early Court
benefited from a very supportive geopolitical context, but recent changes have
rendered its geopolitical context more threatening. Part III analyzes how the
EU’s initial focus on the single market as a core subject matter supported the
extension of its authority and how the spread of the Court’s jurisdiction to more
controversial subject matters poses new challenges to this authority. Part IV
focuses on the ECJ’s constituencies, highlighting the impact of member
governments, national courts, and the broader European legal field on the
development of the Court’s authority. In particular, recent changes in the ECJ’s
constituencies context present the Court with new risks.
II
GEOPOLITICAL CONTEXT
In its first few decades of operation, the ECJ benefited from an overarching
geopolitical context that supported the expansion of the Court’s authority. The
ECJ’s assertion of judicial power at the supranational level and its promotion of
various EU rights were very much in keeping with regional geopolitical
trends—above all, the political drive for regional integration in Europe and the
judicialization of politics.
6
The geopolitical context surrounding the ECJ
remains broadly supportive of its authority today, but recent trends, in
particular declines in public support for the EU, do raise cause for concern.
The first overarching political trend supporting the ECJ’s drive to enhance
its authority was the project of regional integration in postwar Europe. Support
for increasing an international court’s authority is influenced by the degree of
support for the regional body with which the court is associated.
7
In postwar
Europe, national governments of West European democracies demonstrated an
abiding commitment to the project of European integration, particularly to the
6. On the political drive for regional integration in postwar Europe, see generally DESMOND
DINAN, EUROPE RECAST: A HISTORY OF THE EUROPEAN UNION (2004); ANDREW MORAVCSIK,
THE CHOICE FOR EUROPE: SOCIAL PURPOSE AND STATE POWER FROM MESSINA TO MAASTRICHT
(1998). On the trend to the judicialization of politics, see generally Martin Shapiro & Alec Stone, The
New Constitutional Politics of Europe, 26 COMP. POL. STUD. 397 (1994); ALEC STONE SWEET,
GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE (2000).
7. See Erik Voeten, Public Opinion and the Legitimacy of International Courts, 14 THEORETICAL
INQUIRIES L. 411, 413–14 (2013).
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120 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
aim of establishing a common market.
8
Whereas enthusiasm for the integration
project certainly went through peaks and troughs over time and varied across
member states, all member states, broadly speaking, remained committed to
regional economic integration from the 1950s onward, and, in a series of Treaty
revisions, all agreed to further steps toward political integration.
9
The establishment of the ECJ’s authority is inseparable from Europe’s push
for integration. The ECJ formed an integral part of the institutional architecture
of the European Communities and, later, the EU. In short, the Court was part
of the package of European integration, and states and other actors that wished
to reap the benefits of regional integration had to accept the Court and its
authority as part of that overall package. They might have resisted
implementing particular rulings and occasionally called for reforms to rein in
the Court, but, so long as they wanted to be part of the EU, they could not
unilaterally reject the Court’s growing authority. Member states recognized that
they needed the ECJ in order to enhance the credibility of their commitments
to integration and to solve the formidable collective-action problems the
member states faced.
10
Moreover, the institutional structure of the EU provided a context
conducive to judicial empowerment. The EU is a political system in which
power is highly fragmented. In the EU, as in other political systems, political
fragmentation encourages judicial empowerment.
11
In the EU, power is
fragmented both horizontally and vertically. Horizontally, EU power is
fragmented among the European Commission, the Parliament, and
governments in the Council, all of which play a role in adopting new EU
legislation. Power is also fragmented vertically between EU lawmakers and the
national administrations that implement most EU policies. This bidirectional,
political fragmentation, therefore, gives the ECJ space to play an active policy
role with little fear of concerted political reprisals. Assembling the large
political coalitions necessary to rein in the ECJ is difficult, and this insulates the
Court against political attacks. When it comes to reining in the ECJ through
8. MICHELLE P. EGAN, SINGLE MARKETS: ECONOMIC INTEGRATION IN EUROPE AND THE
UNITED STATES 8–13 (2015). On European leaders’ renewed focus on market integration from the
1980s onward, see generally, NICOLAS JABKO, PLAYING THE MARKET: A POLITICAL STRATEGY FOR
UNITING EUROPE, 1985–2005 (2006).
9. See generally MORAVCSIK, supra note 6 (reviewing the major treaty revisions that advanced
the process of European integration from the 1950s through the 1990s).
10. See MORAVCSIK, supra note 6, at 67–76.
11. On the relationship between political fragmentation and judicial power, see TOM GINSBURG,
JUDICIAL REVIEW IN NEW DEMOCRACIES 256, 261 (2003); R. DANIEL KELEMEN, EUROLEGALISM:
THE TRANSFORMATION OF LAW & REGULATION IN THE EUROPEAN UNION 24–28 (2011). See
generally MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS (1981); John
Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 55–60 (Summer
2002) (explaining that political fragmentation allows courts to independently engage in policy
formulation); Keith Whittington, Legislative Sanctions and the Strategic Environment of Judicial
Review, 1 INT’L J. CON. L. 446 (2003); Keith Whittington & R. Daniel Kelemen, Establishing and
Maintaining Judicial Independence, in OXFORD HANDBOOK OF LAW AND POLITICS 99 (Keith
Whittington et al. eds., 2008).
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legislation or treaty amendment, member states face a “joint decision trap,”
12
a
decision-making deadlock that arises when parties who would be adversely
affected by a decision are able to veto it. To override an ECJ interpretation of
the EU Treaties, member states must agree unanimously. To override an ECJ
interpretation of secondary legislation, member states must pass new
legislation, which under the most common legislative procedure used today
13
requires the introduction of a proposal by the Commission, a qualified majority
in the Council, and a majority in the European Parliament. As long as one or
more crucial veto players in the EU legislative process support the ECJ’s
assertions of authority, they can shield the Court from political attacks.
14
The fragmentation of power has not only insulated the Court against
political reprisals but has also generated incentives for lawmakers to expand the
Court’s role. The fragmentation of political authority creates principal–agent
problems between EU lawmakers, the principals, and the national
administrations that implement most EU law, the agents. Because EU
lawmakers cannot necessarily trust national administrations to faithfully
implement and enforce EU law, they frequently craft legislation that stipulates
in detail the actions their agents must take and that invites courts to play an
oversight role to ensure that these agents fulfill their mandates.
15
In other
words, EU lawmakers frequently write legislation that invites the ECJ to play a
central role in governance.
More generally, the fact that the EU has such a limited administrative
capacity of its own has long encouraged lawmakers to rely on judicialized
modes of governance.
16
In effect, EU lawmakers treat judicialization as a
functional substitute for their lack of a strong, centralized administrative
bureaucracy. Because they cannot deploy vast legions of Eurocrats to monitor
and enforce EU policies, EU lawmakers have conscripted private litigants into
acting as the eyes, ears, and long arm of Brussels, encouraging the litigants to
bring enforcement actions before national and EU courts.
17
A second aspect of the geopolitical context of postwar Europe also
facilitated the development of the ECJ’s authority: in the postwar era,
democratic political systems across Western Europe were experiencing a
substantial judicialization of politics domestically.
18
The fact that fascist parties
12. See Fritz W. Scharpf, The Joint-Decision Trap: Lessons From German Federalism and
European Integration, 66 PUB. ADMIN. 239, 239 (1988). For an updated account of this dilemma, see
Fritz W. Scharpf, The Joint-Decision Trap Revisited, 44 J. COMMON. MKT. STUD. 845 (2006).
13. The so-called “Ordinary Legislative Procedure” is outlined in the Consolidated Version of the
Treaty on the Functioning of the European Union art. 289, Oct. 26, 2012 O.J. (326), [hereinafter
TFEU].
14. See R. Daniel Kelemen, The Political Foundations of Judicial Independence in the European
Union, 19 J. EUR. PUB. POL’Y 43, 47 (2012) (discussing the ECJ’s high degree of insulation from
political reprisals).
15. KELEMEN, supra note 11, at 25–26.
16. Id. at 27.
17. Id. at 27–28.
18. See generally STONE SWEET, supra note 6; Shapiro & Stone, supra note 6.
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122 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
in Germany and elsewhere had used their control of Parliament to extinguish
democracy called into question the parliamentary supremacy model that had
prevailed in European democracies. Many member states supplanted this
traditional parliamentary supremacy model with a “new constitutionalism”
involving a more expansive role for the judiciary in reviewing legislative action
and safeguarding fundamental rights.
19
Powerful constitutional courts were
established in a number of postwar European democracies and were
empowered to review legislation’s compatibility with constitutional values.
20
Greater judicial power was not just apparent in the realm of constitutional
politics and rights but also in more routine areas of economic regulation. With
the growing complexity of public regulation in the postwar era, the production
of regulatory norms shifted more and more from parliament to executive
departments and administrative agencies, and national constitutional courts
were called on to monitor this transfer of authority.
21
The role of courts in
regulatory governance intensified further beginning in the 1980s, when many
European countries moved to privatize state owned enterprises and to liberalize
previously sheltered markets.
22
In doing so, Europeans set up new systems of
regulation to control these privatized and liberalized sectors.
23
These reforms
replaced restrictions on market entry and direct state control with rule-based,
highly judicialized regulatory regimes that invited judges to regulate markets
that previously had been controlled by bureaucrats.
24
Thus, the assertions of authority by the ECJ from the 1960s to 1980s
occurred in a political context that was experiencing a more general trend
toward a greater judicialization of politics and policymaking, including stronger
judicial protection of fundamental rights.
25
EU member states were democracies
not only committed to the rule of law; they were also increasingly accepting of
judicial power. Member-state acceptance of the growing authority of the ECJ
and of the supranational judicial system it helped to construct in partnership
with national judges must be understood against this new domestic acceptance
of judicial power. The ECJ helped promote this wave of judicialization, but it
also benefited from riding the wave. In this context, for a government to defy
the ECJ’s authority outright or to interfere with the ECJ’s relationship with the
national courts who applied its judgments would have raised questions not just
about that government’s commitment to European integration but also about
19. STONE SWEET, supra note 6, at 31–38; Shapiro & Stone, supra note 6, at 400–01.
20. STONE SWEET, supra note 6, at 40–49.
21. See generally PETER L. LINDSETH, POWER AND LEGITIMACY: RECONCILING EUROPE AND
THE NATION-STATE (2010).
22. See generally Giandomenico Majone, The Rise of the Regulatory State in Europe, 17 W. EUR.
POL. 77 (1994).
23. Id.
24. KELEMEN, supra note 11, at 22–23.
25. Mikael Rask Madsen, Human Rights and European Integration: From Institutional Divide to
Convergent Practice, in A POLITICAL SOCIOLOGY OF TRANSNATIONAL EUROPE 147 (Niilo Kauppi
ed., 2013).
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its commitment to the rule of law, judicial independence, and fundamental
rights, which, at the time, governments were eager to demonstrate.
Many aspects of the geopolitical context that supported the expansion of the
ECJ’s authority in the first few decades of European integration remain in place
today. The basic structural features of the EU continue to encourage lawmakers
to rely on a judicialized mode of governance. Indeed, this dynamic has grown
even more pronounced in recent years as the EU’s administrative capacity has
failed to keep pace with its growing legislative ambitions. Just as the EU relied
heavily on the Court when the scope of its competences was limited primarily to
economic policy, so too has the EU continued to rely on the ECJ as it has
extended its reach into more and more policy areas.
26
Also, the gradual
enlargement of the EU from six to twenty-eight member states has exacerbated
the joint-decision trap, making it harder for member states to assemble the
coalitions needed to rein in the ECJ and thus further insulating the ECJ from
political overrides.
27
Although the overall geopolitical context remains supportive, some recent
developments pose risks to the ECJ. Support for an international court’s
authority is tied to support for the regional integration project with which the
Court is associated. In the wake of the Eurozone crisis, public support for the
EU hit an all-time low,
28
and commentators from across the political spectrum
questioned the long-term viability of the European project.
29
Support for the
ECJ is not immune from this trend, and trust in the ECJ in fact declined
somewhat in the years since the eruption of the Eurozone crisis.
30
Further
erosion of public support for the EU would pose a long-term risk to the ECJ.
Nevertheless, trust in the ECJ has declined less than has trust in other EU
institutions or national political institutions.
31
The ECJ remains today, as it has
long been, the most trusted of all government institutions assessed in
Eurobarometer surveys—including national governments, national parliaments,
national political parties, national courts, and other EU institutions.
32
Beyond
risks associated with general declines in support for European integration,
recent EU enlargement to states with weaker judiciaries and rule-of-law
traditions poses another set of new challenges to the Court—challenges
explored further in part IV. Before considering the ECJ’s relationships with
26. See KELEMEN, supra note 11, at 24 (on the EU’s reliance on the ECJ and judicialized modes of
governance “across a wide range of policy areas”).
27. See R. Daniel Kelemen, Anand Menon & Jonathan Slapin, Wider and Deeper? Enlargement
and Integration in the European Union, 21 J. EUR. PUB. POL’Y 647, 658–59 (2014) (arguing that while
EU enlargement has to some degree increased legislative gridlock, this has in turn increased the ECJ’s
room for maneuver).
28. Ian Traynor, Crisis for Europe as Trust Hits Record Low, THE GUARDIAN (Apr. 24, 2013),
http://www.theguardian.com/world/2013/apr/24/trust-eu-falls-record-low.
29. Matthias Matthijs & R. Daniel Kelemen, Europe Reborn, 94 FOREIGN AFF. 96, 97 (2015).
30. See European Commission, L’Opinion Publique dans l’Union Européene, 79
EUROBAROMÈTRE STANDARD 90 (2013).
31. Id.
32. Id.; see also Kelemen, supra note 14.
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124 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
national courts and other constituencies, however, we first consider the impact
that the ECJ’s original core subject matter, the Single Market, had on the
expansion of its authority.
III
THE SINGLE MARKET AS A CORE SUBJECT MATTER
The successful expansion of the ECJ’s authority depended not simply on the
fact that it was embedded in a project of regional integration; rather, it
depended quite specifically on the fact that in its early years this project was,
above all, one of market integration. Market integration proved to be a fertile
subject matter competence for the expansion of ECJ authority for two main
reasons: First, it enabled the ECJ to establish the core doctrines of the EU legal
system in cases involving issues often of relatively low political salience, and
second, the dynamics of market integration enabled the ECJ to trigger a cycle
of deregulation and reregulation that served to expand the corpus of EU law—
and with it, the ECJ’s authority. Even today, the core of EU law remains
focused on the ongoing construction of a single market, and this subject matter
focus continues to bolster the expansion of the Court’s authority. However, as
the scope of EU law has expanded into more sensitive areas of national policy,
such as healthcare, education, collective bargaining, fundamental rights, and
fiscal policy, the ECJ has been drawn into fields where its decisions are more
likely to spark public outcries and political reprisals. The ECJ’s authority today
may be sufficiently robust to weather the criticisms that come from involvement
in such controversial areas, but it was able to achieve this authority only
because it started out focused on seemingly technocratic—and therefore less
politically salient—issues of market integration.
First, the ECJ’s focus on market integration generally led it to intrude on
less politically contentious issues than those faced by some other international
courts, such as those focused on human rights. Many ECJ decisions did impose
high costs on particular member states and proved highly controversial. But on
the whole, the focus on market integration helped the ECJ hide behind a veil of
technocracy. The ECJ was able to establish landmark legal doctrines in cases
that often involved technical, market-integration issues of low political salience,
ranging from the classification of chemicals for the purpose of customs duties
33
to rules concerning the protection of employees in the event of their employer’s
insolvency.
34
This technocratic focus helped the ECJ use the law more
effectively as a “mask and shield” for the broader political transformation of
Europe that the Court was promoting.
35
33. Case C-26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R.
1.
34. Joined Cases C-6/90 & C-9/90, Francovich and Bonifaci v. Italian Republic, 1991 E.C.R. I-
5357.
35. Anne-Marie Burley & Walter Mattli, Europe Before the Court: A Political Theory of Legal
Integration, 47 INT’L ORG. 41, 44, 72 (1993).
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Second, the focus on the common market enabled the ECJ to unleash a
cycle of “negative integration” and “positive integration” that drove the EU
forward—and, in the process, enhanced the Court’s authority.
36
The
establishment of a common or single market involves both negative integration,
the elimination of barriers to trade, and positive integration, the introduction of
common rules. Courts play a direct role in negative integration when they strike
down regulations that constitute nontariff barriers to trade between
jurisdictions. Positive integration requires lawmakers to adopt common
regulatory standards that apply across all jurisdictions in the common market.
But even here courts play a role. When court-led negative integration strikes
down existing regulations at the state level (deregulation), lawmakers often
respond by introducing common standards to apply to all states (re-regulation).
As noted above, when lawmakers do re-regulate in the context of a political
system like the EU’s, they will often do so in a way that invites courts to play a
strong role in governance. In other words, lawmakers couple national
deregulation with supranational, judicialized re-regulation.
In many areas of policymaking related to the Single Market, purely
deregulatory, negative market integration is politically unacceptable. If the ECJ
strikes down national regulations on issues such as food safety, environmental
protection, or financial services because such regulations constitute nontariff
barriers to trade, this is not the end of the story. Voters and national politicians
will quite simply reject an outcome in which national regulatory regimes are
gutted and consumers are left vulnerable. Instead, judicial rulings striking down
national regulatory barriers to trade generate political pressure for the
establishment of common, EU-wide regulations. This cycle of negative
integration spurring positive integration has played out again and again in many
regulatory areas connected to the Single Market. In fact, member governments
have repeatedly proved willing to surrender their veto over fields of legislation
that have been affected by judicial negative integration, in part so that they
could facilitate the process of passing positive integration legislation at the EU
level.
37
So, while the ECJ has promoted market liberalization that has
eliminated some national social regulations, it has also promoted a legislative
countermovement of historic proportions in the form of a massive accumulated
body of EU legislation and rulemaking, the acquis communautaire, that
36. ALEC STONE SWEET, THE JUDICIAL CONSTRUCTION OF EUROPE 108–45 (2004). On the
concepts of negative integration and positive integration more generally, see Fritz Scharpf, Negative
and Positive Integration in the Political Economy of European Welfare States, in GOVERNANCE IN THE
EUROPEAN UNION 15 (Gary Marks, Fritz Scharpf, Philippe Schmitter & Wolfgang Streeck eds., 1996).
37. This contradicts some elements of Weiler’s equilibrium thesis. See Alec Stone Sweet & R.
Daniel Kelemen, Assessing the Transformation of Europe: A View from Political Science, in THE
TRANSFORMATION OF EUROPE: 25 YEARS ON (Miguel Maduro & Marlene Wind eds., forthcoming
2016); Joseph H.H. Weiler, The Transformation of Europe, 100YALE L. J. 2403 (1991). Moreover,
Caporaso and Tarrow have linked this dynamic in the EU to Karl Polanyi’s insights concerning how
destabilizing market liberalization can spark countermovements designed to re-embed markets in a
social context. James A. Caporaso & Sydney Tarrow, Polanyi in Brussels: Supranational Institutions
and the Transnational Embedding of Markets, 63 INT’L. ORG. 593 (2009).
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126 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
establishes uniform EU-level regulations.
Challenging this view, many critics of the EU on the left claim that the EU
promotes a neoliberal agenda, in part because its capacity for negative
integration driven by the ECJ exceeds its capacity for positive integration by
EU lawmakers.
38
Although it is true that the EU’s capacity for negative
integration often exceeds its capacity for positive integration, the EU has far
more capacity for positive integration—that is, passing legislation—than any
other supranational organization. In fact, the EU has demonstrated more
capacity for the adoption of common regulations than most states, with its
acquis communautaire regulating most aspects of economic activity in EU
member states.
39
The passage of a vast body of EU directives and regulations, in
turn, expanded the body of EU law over which the ECJ was the ultimate
judicial authority. In this way, the cycle of deregulation at the national level
followed by re-regulation at the EU level related to the single market enabled
the ECJ to extend its authority into a wide range of areas.
On the whole, the focus on market integration has been extremely
conducive to the development of the ECJ’s authority; nevertheless, the
extension of the EU’s competences into new, more sensitive policy areas raises
new challenges for the ECJ. As EU law has expanded further into politically
charged policy areas ranging from healthcare to education, immigration,
fundamental rights, and fiscal and monetary policy, the ECJ has been pressed
into new terrain where its decisions are more likely to spark public outcries and
political reprisals. For instance, a string of ECJ rulings, the so-called Laval
quartet,
40
in which the ECJ was asked to weigh national social rights against the
EU’s liberal economic freedoms, led to widespread denunciation of the Court
by critics on the left.
41
And the reference recently sent to the ECJ by the
German Constitutional Court in the divisive Gauweiler case
42
has forced the
ECJ into potentially explosive terrain.
43
Beyond the sphere of socioeconomic
38. See, e.g., Martin Höpner & Armin Schäfer, Embeddedness and Regional Integration: Waiting
for Polanyi in a Hayekian Setting, 66 INT’L. ORG. 429, 448 (2012) (“[T]he ECJ drives forward market
liberalization . . . while member state heterogeneity makes both political agreement on harmonization
and political override of ECJ decisions unlikely.”); Fritz W. Scharpf, Legitimacy in the Multilevel
European Polity, 1 EUR. POL. SCI. REV. 173, 193–94 (2009).
39. See Anu Bradford, The Brussels Effect, 107 NW. U. L. REV. 1, 19–35 (2012) (highlighting the
expansive reach of EU regulation and noting that the EU often adopts the strictest regulatory
standards in the world and frequently determines global standards).
40. Case C-341/05, Laval un Partneri, 2007 E.C.R. I-11767; Case C-438/05 Int’l Transport Workers
Federation and Finnish Seaman’s Union v. Viking, 2007 E.C.R. I-10779; Case C-319/05, Commission of
the European Communities v. Federal Republic of Germany , 2007 E.C.R. I-4323; Case C-346/06, Dirk
Rueffert v. Land Niedersachsen, 2008 E.C.R. I-1989.
41. See Michael Blauberger, With Luxembourg in Mind… The Remaking of National Policies in
the Face of ECJ Jurisprudence, 19 J. EUR. PUB. POL’Y 109, 109 (2012).
42. Case C-62/14, Gauweiler and Others v. Deutscher Bundestag, not yet published (responding to
the German Constitutional Court’s questions on the legality of the Outright Monetary Transactions
(OMT) bond-buying program put in place by the European Central Bank to stabilize the monetary
union and ruling that the program is in fact compatible with the EU treaties).
43. See Erik Jones & R. Daniel Kelemen, The Euro Goes to Court, 56 SURVIVAL: GLOBAL POL.
& STRATEGY 15, 17 (2014); see also Opinion Of Advocate General Cruz Villalón, Case C-62/14,
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rights and policies, the increasing intervention of the EU and the ECJ in the
field of fundamental human rights since the formal adoption of the Charter of
Fundamental Rights in the Lisbon Treaty has also generated many
controversial new cases.
44
The EU’s likely upcoming accession to the European
Convention on Human Rights would bring new fields of fundamental rights
cases before the ECJ. These cases could provoke for the ECJ the same sort of
political backlash they already have provoked for the European Court of
Human Rights, and they could trigger clashes between this court and ECJ as to
which is the ultimate supranational arbiter of human rights in Europe.
45
IV
CONSTITUENCIES CONTEXT
In addition to a favorable geopolitical context and a subject matter
jurisdiction conducive to judicial empowerment, the ECJ has long benefited
from the fact that the key actors it has engaged—including national
governments, national courts, and members of the European legal field—have
been generally favorable to increases in the Court’s authority. However,
developments over the last decade, particularly ones related to EU
enlargement, have given rise to a new set of challenges to ECJ authority.
A. National Governments
The national governments of EU member states, of course, constitute a
crucial aspect of the ECJ’s external context. After all, governments created the
ECJ, appoint its judges,
46
and enforce its rulings. Much of the literature on
European legal integration has treated national governments as a brake on the
ECJ’s ambitions.
47
According to this view, the supranationalist ECJ consistently
Gauweiler et al. v. Deutscher Bundestag, Jan. 14, 2015; R. Daniel Kelemen, On the Unsustainability of
Constitutional Pluralism: European Supremacy and the Survival of the Eurozone, MAASTRICT J. EUR.
& COMP. LAW (forthcoming 2016).
44. For a review of ECJ case law since the Charter became a legally binding instrument of EU law,
see generally Gráinne de Búrca, After the EU Charter of Fundamental Rights: The Court of Justice as a
Human Rights Adjudicator?, 20 MAASTRICHT J. EUR. & COMP. LAW 168 (2013).
45. See generally Tobias Lock, The ECJ and the ECtHR: The Future Relationship between the Two
European Courts, 8 L. & PRAC. INT’L CTS & TRIB. 375 (2009) (exploring the likely future relationship
between the ECJ and the European Court of Human Rights (ECtHR)); Mikael Rask Madsen, The
Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the
Brighton Declaration and Backlash, LAW & CONTEMP. PROBS., no. 1, 2016, at 167; Voeten, supra note
7, at 418 (showing that recent ECtHR rulings on controversial cases have led to a dramatic decline in
public support for the ECtHR in the United Kingdom). Also, for an illustration of potential conflict
between the ECJ and the ECtHR, see the recent ECJ ruling rejecting the draft agreement on the EU’s
accession to the European Convention on Human Rights, Opinion 2/13, (Dec. 18, 2014).
46. See R. Daniel Kelemen, Selection, Appointment and Legitimacy: A Political Perspective, in
SELECTING EUROPE’S JUDGES 253–56 (Michael Bobek ed., 2015) (detailing recent changes in the
appointment procedure for ECJ justices including the fact that an expert committee composed of a
majority of national judges now influences the process through which national governments select ECJ
judges).
47. See, e.g., Karen J. Alter, Who Are the “Masters of the Treaty”?, European Governments and the
European Court of Justice, 52 INT’L ORG. 121 (1998); Burley & Mattli, supra note 35; Geoffrey Garrett,
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128 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
seeks to enhance its power by expanding the scope of European law and
accelerating the pace of European legal integration. Member states, by contrast,
seek to apply intergovernmentalist brakes to the Court’s ambitions, pressuring
the ECJ—through threats of legislative overrides, noncompliance, or other
punishments—to temper its activism. Scholarly debates, then, tend to center on
examining how and when the ECJ can overcome the efforts of member states to
control its activism. For the most part, the literature on interactions between
member governments and the ECJ has long since arrived at a general consensus
that member governments set the outer bounds of how far the ECJ can push
both its authority and the scope of European law but that within these bounds
the ECJ has substantial room for maneuvering that it can use to promote
deeper integration.
48
Scholars have put forward a number of arguments rooted in varieties of new
institutionalism to explain why member governments often fail to constrain ECJ
activism.
49
The most powerful and frequently invoked explanations suggest that
governments are hamstrung by the EU’s joint-decision trap
50
in which the high
threshold for reaching agreements prevents states from acting collectively to
rein in the ECJ.
51
Importantly, however, even among scholars who emphasize
the limited ability of governments to rein in the ECJ, the prevailing assumption
is that states do seek to act as a brake on the Court, to the limited extent they
R. Daniel Kelemen & Heiner Schulz, The European Court of Justice, National Governments and Legal
Integration in the European Union, 52 INT’L ORG. 149 (1998); Mark A. Pollack, Delegation, Agency,
and Agenda Setting in the European Community, 51 INT’L ORG. 99 (1997); Alec Stone Sweet, The
European Court of Justice and the Judicialization of EU Governance, 5 LIVING REVIEWS EUR.
GOVERNANCE 1, 16–22 (2010).
48. Three articles published in a 1998 issue of International Organization set out the parameters of
the consensus. See Alter, supra note 47; Burley & Mattli, supra note 35; Garrett, Kelemen & Schulz,
supra note 47. Carrubba, Gabel and Hankla recently sought to resurrect a stronger
intergovernmentalist account, claiming that the ECJ was systematically constrained by threats of
override and noncompliance from member governments. See Clifford Carrubba, Matthew Gabel &
Charles Hankla, Judicial Behavior Under Political Constraints: Evidence from the European Court of
Justice, 102 AM. POL. SCI. REV. 435 (2008). Stone Sweet and Brunell offer a more convincing analysis
of Carrubba, Gabel, and Hankla’s data, however, arguing that the data actually suggest that
governments placed few constraints on the Court. See Alec Stone Sweet & Thomas Brunell, The
European Court of Justice, State Noncompliance and the Politics of Override, 106 AM. POL. SCI. REV.
204 (2012).
49. See, e.g., KAREN ALTER, ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE
MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE (2001) (emphasizing in particular how the
development of the ECJ’s relationships with national courts limited governments’ ability to constrain
the ECJ); MARK POLLACK, THE ENGINES OF EUROPEAN INTEGRATION (2003) (applying the logic of
rational choice institutionalism and principal-agent theory to explain why member state ‘principals’
have difficulty controlling the ECJ and other supranational ‘agents’); Paul Pierson, The Path to
European Integration, 29 COMP. POL. STUD. 123 (1996) (applying insights from historical
institutionalism and path dependence to explain why member state governments fail to control the
process of European integration).
50. See supra text accompanying note 12.
51. Scharpf, The Joint Decision Trap, supra note 12, at 39; see also Weiler, supra note 37, at 24, 26
(arguing that the unanimity requirement for decisionmaking in the early European Community was the
key to judicial empowerment).
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can.
52
Although member-state governments have sometimes provided a kind of
brake on the ECJ’s ambitions, setting outer limits to the pace and scope of its
promotion of legal integration, this narrow perspective misses the bigger
picture. In a larger sense, member-state governments have been great enablers
of the ECJ. This truth stands out when considering the ECJ’s relationship with
national governments from a comparative perspective. For example, many of
the other international courts discussed in this issue interact with governments
that include semi-authoritarian or authoritarian regimes with little commitment
to the rule of law and marginal inclination toward real pooling of sovereignty.
By comparison, the governments of EU member states seem to have been
particularly receptive to its assertion of judicial power.
Certainly, the ECJ has acted strategically to empower itself, extending its
mandate more rapidly and taking it far beyond what many member-state
governments originally envisaged. But one should not view governments simply
as feckless brakemen unable to control the wily ECJ. Such an interpretation is
implausible because member governments have repeatedly taken steps in new
EU treaties to empower the ECJ, and they have done so despite the Court’s
well-known propensity to push for deeper integration. To be sure, one can find
rare instances in which member governments threatened the Court;
53
took steps
at intergovernmental conferences to limit the fall-out from ECJ rulings, such as
adding the Barber Protocol to the 1992 Maastricht Treaty;
54
or attempted to
shield sensitive policy areas from ECJ influence such as by restricting ECJ
jurisdiction over ‘Third Pillar’ Justice and Home Affairs issues in the Maastricht
Treaty. But much more common have been steps taken by the member-state
governments at intergovernmental conferences to expand the power of the
ECJ.
In every round of EU treaty revision, the member states have extended the
ECJ’s jurisdiction to new fields of law. They have extended the Court’s reach
well beyond the sphere of the single market to include more sensitive areas such
as “Justice and Home Affairs,”
55
some areas of foreign and security policy,
56
and
fiscal surveillance.
57
Indeed, the 2012 Fiscal Compact Treaty
58
relies on the ECJ
52. See, e.g., Kelemen, supra note 14, at 45–47; Stone Sweet supra note 47, at 16–22.
53. See, e.g., HJALTE RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE
354–56 (1986) (discussing a court packing plan proposed by Valéry Giscard d’Estaing in 1980); Alter,
supra note 47, at 130 (discussing proposals by British Conservatives in 1991 and 1995 that call for limits
to the jurisdiction of the ECJ and the establishment of a political body that could veto its rulings).
54. Garrett, Kelemen & Schulz, supra note 47, at 166–67.
55. See generally STEVE PEERS, EU JUSTICE AND HOME AFFAIRS LAW (3d ed. 2011); Jörg
Monar, Justice and Home Affairs, 52 J. COMMON MKT. STUD. 141 (2014).
56. See generally DEVELOPMENTS IN EU EXTERNAL RELATIONS LAW (Marise Cremona ed.,
2008); THE EUROPEAN COURT OF JUSTICE AND EXTERNAL RELATIONS LAW—CONSTITUTIONAL
CHALLENGES (Marise Cremona & Anne Thies eds., 2014).
57. Deborah Mabbett & Waltraud Schelkle, Searching Under the Lamp-Post: The Evolution of
Fiscal Surveillance (London Sch. of Econ., LEQS Paper No. 75, 2014),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434008##.
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130 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
to provide judicial review of the adequacy of member-state, balanced-budget
arrangements that are the centerpiece of that treaty. Likewise, member
governments have granted the ECJ new enforcement powers to increase the
bite of its rulings, such as the ability to impose penalty payments on
governments that fail to comply with previous ECJ rulings.
59
Finally, the
member governments have dramatically increased the ECJ’s capacity to process
cases by adding judges to the ECJ
60
and by establishing subsidiary courts. In the
1986 Single European Act, member states endorsed the creation of a Court of
First Instance, which is now the General Court, beneath the ECJ, effectively
doubling the size of the EU’s judiciary.
61
Governments endorsed further
expansion of the EU judiciary again in the Nice Treaty, which entered into
force in 2003.
62
The Nice Treaty empowered EU lawmakers to set up specialized
judicial panels, now called Specialized Courts, in specific areas of law. The first
such panel, the Civil Service Tribunal, was established in 2005.
Why have member-state governments repeatedly empowered the ECJ
despite their occasional complaints about its pro-integration judicial activism?
First, and most importantly, member-state governments believed and continue
to believe that, in order for their project of political and economic integration to
succeed, they need a powerful court to help them overcome collective action
problems and to make their commitments credible by enforcing their
agreements and maintaining the rule of law within the EU.
63
Many member
states may be unhappy with particular ECJ decisions, but they still collectively
recognize that they need the ECJ if the EU is to operate successfully.
Second, the Court has facilitated the acceptance of its expansive
jurisprudence by engaging in “majoritarian activism.”
64
The Court has been
activist by consistently promoting deeper legal integration, but its activism has
focused on imposing norms favored by the majority of member states on the
minority.
65
This does not mean that the ECJ is bowing to the pressure of
58. Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, art.
8(1), Mar. 2, 2012.
59. See, e.g., TFEU art. 260, May 9, 2008, 2008 O.J. (C 115) 47 (on the procedure for the
imposition of penalty payments for non-compliance with ECJ rulings); Brian Jack, Article 260(2)
TFEU: An Effective Judicial Procedure for the Enforcement of Judgements?, 19 EUR. L. J. 404 (2013)
(discussing revisions in the Lisbon Treaty designed to facilitate use of the penalty payments procedure
and ongoing problems with it).
60. The ECJ has been composed of one judge appointed by each member state, which has allowed
the Court to grow with each enlargement of the EU. See Kelemen, supra note 46, at 253–56.
61. R. Daniel Kelemen, Constructing the European Judiciary (2013) (unpublished manuscript)
(on file with author).
62. Treaty of Nice amending the Treaty on the European Union, the Treaties Establishing the
European Communities and Certain Related Acts, Mar. 10, 2001 O.J. C 80/1.
63. See MORAVCSIK, supra note 6, at 73–77 (highlighting the need for credible commitment as a
motivation for governments to delegate considerable authority to institutions charged with
adjudication).
64. MIGUEL MADURO, WE THE COURT: THE EUROPEAN COURT OF JUSTICE AND THE
EUROPEAN ECONOMIC CONSTITUTION 11 (1998).
65. Id.
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particular governments. Rather, it means that in seeking to develop common
legal norms around which to integrate diverse national legal orders, the ECJ
often imposes on the minority the norms favored by the majority of legal
systems. Thus, by encouraging an increase in the ECJ’s authority, member
states empowered a body that could consistently be expected to impose the will
of the majority of states on the minority.
EU member governments have provided a mostly supportive external
constituency for the Court, but worrying signs loom on the horizon. The EU’s
2004 enlargement added to the Union a number of relatively new democracies
in which commitment to judicial independence and the rule of law was not well
established. In part, this lack of commitment to judicial independence and the
rule of law has manifested itself in deficiencies in young democracies’
judiciaries
66
and, at least in the case of Hungary, both in the government’s
systematic flouting of EU law and fundamental values and in outright attacks
on judicial independence. In the 2010 Hungarian parliamentary election, Viktor
Orbán’s Fidesz Party won a two-thirds supermajority that enabled his
government not only to push through its legislative agenda but also to amend
Hungary’s constitution. Since then, Orbán’s government has introduced a new
constitution, eliminated democratic checks and balances, installed party
loyalists in previously independent government positions, undermined
independence in the judiciary and the media, and introduced a new election law
designed to favor his party.
67
These moves have been widely criticized by
international organizations such as the European Parliament
68
and the Council
of Europe’s Venice Commission,
69
by nongovernmental organizations such as
Human Rights Watch,
70
and by academic observers.
71
In response to developments in Hungary, the Commission turned to its
traditional toolkit, bringing a series of infringement actions before the ECJ
against the Hungarian government for violations of particular directives and
regulations.
72
And though the Hungarian government has not explicitly denied
the ECJ’s authority in these cases, it has played a game of cat and mouse with
the Commission and Court, systematically working to avoid compliance with
EU law. The enforcement of ECJ judgments has always had shortcomings, and
many member states have tried to delay or avoid compliance with particularly
66. See infra notes 96–101 and accompanying text.
67. Kim Lane Scheppele, Hungary and the End of Politics, THE NATION (May 26, 2014),
http://www.thenation.com/article/hungary-and-end-politics/.
68. See PARL. EUR. DOC. (2012/2130(INI)) (2013) (The Tavares Report).
69. See Venice Commission, Adopted Opinions for “Hungary,” http://www.venice.coe.int/web
forms/documents/?country=17&year=all.
70. HUMAN RIGHTS WATCH, WRONG DIRECTION ON RIGHTS: ASSESSING HUNGARY’S NEW
CONSTITUTION AND LAWS (2013).
71. See R. Daniel Kelemen, Judicialization, Democracy and European Integration, 49
REPRESENTATION 295, 300 (2013); Jan-Werner Müller, Eastern Europe Goes South, 93 FOREIGN AFF.
14 (2014); Scheppele, supra note 67.
72. European Commission Press Release, IP/12/24, Jan. 17, 2012.
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132 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
costly rulings.
73
The scale of systematic resistance on display in Hungary,
however, is unprecedented, and the EU legal order thus far seems unable to
bring the Hungarian government to heel.
This inability was made most clear when the Orbán government sought to
purge the Hungarian judiciary of senior judges who might have presented
impediments to its political agenda and to replace them with party loyalists.
74
The government achieved this by reducing the judicial retirement age from
seventy to sixty-two. EU officials saw this as an attack on judicial independence
and the rule of law in Hungary, and, lacking legal tools with which to directly
challenge the Hungarian government for undermining the independence of the
judiciary, they used a tool they did have at their disposal—the agediscrimination
provisions of the Equal Treatment Framework Directive
75
—to
bring an age-discrimination based infringement action against Hungary before
the ECJ. This legal strategy succeeded: the ECJ ruled against the Hungarian
government in the infringement case.
76
Nevertheless, the Hungarian
government was able to prevent the judges in question from returning to their
previous posts because new judges had already filled the positions. Complying
with the decision by offering the more senior judges monetary compensation or
alternative less significant judicial postings, the Hungarian government
succeeded in its ambition to stack the judiciary.
77
This episode in Hungary illustrates the limits of the case-by-case
infringement procedure in combatting systematic efforts by a member
government to undermine the rule of law and the domestic application of EU
law.
78
The fact that the Hungarian government has continued to defy the EU,
with Orbán declaring publicly his intention to abandon the EU’s brand of
liberal democracy in favor of building an “illiberal new state,”
79
shows that
however extensive the contemporary ECJ’s authority, it remains vulnerable to
defiance by individual governments.
73. See Jack, supra note 59, at 406.
74. Kim Lane Scheppele, Professor of Sociology and International Affairs, Princeton, What Can
the European Commission Do When Member States Violate Basic Principles of the European Union?
The Case for Systemic Infringement Actions, paper presented before the European Comm’n, Assises
de la Justice 21–22 (Nov. 2013) (providing a detailed account of the outcome in the conflict over judicial
retirement ages in Hungary); Kim Lane Scheppele, First, Let’s Pick All the Judges, N.Y. TIMES,
CONSCIENCE OF A LIBERAL BLOG (March 10, 2012, 11:32 AM), http://krugman.blogs.nytimes
.com/2012/03/10/first-lets-pick-all-the-judges/?_r=0 (analyzing the Hungarian government’s efforts to
restructure the judiciary through changing the retirement age for judges).
75. Council Directive 2000/78/EC O.J. (L303).
76. Case C-286/12, Commission v. Hungary 2013, 1 CMLR 44.
77. See Scheppele, What Can the European Commission Do When Member States Violate Basic
Principles of the European Union?, supra note 74.
78. Id.
79. Editorial, A Test for the European Union, N.Y. TIMES, (Aug. 1, 2014),
http://www.nytimes.com/2014/08/02/opinion/a-test-for-the-european-union.html?_r=0.
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B. National Courts
It can be lonely at the top, especially lonely if those who you view as your
subordinates do not recognize you as their superior. When the ECJ was created,
there was every reason to believe it might remain lonely in Luxembourg,
receiving few cases and winning little respect from the national courts charged
with enforcing European law within their jurisdictions. National courts
constituted a key element of the ECJ’s external context; winning their respect,
their acceptance of its legal doctrines, and their cooperation in the construction
of the European judicial order was crucial for the ECJ’s development. The
ECJ’s success in promoting European legal integration would be unthinkable in
the absence of its constructive relationship with national courts, which refer
cases to the Court via the preliminary ruling procedure and which enforce EU
law in cases that come before them. But as constructive as the ECJ’s
relationship with national courts is overall, the relationship has always been
fraught with tensions regarding particular national courts and particular issues.
Some of the tensions that emerged early on persist to this day, and new ones
have surfaced with the enlargement of the EU’s membership and the expansion
of the scope of its jurisdiction.
The remarkable story of how the ECJ gradually secured the support and
cooperation of national courts is well known.
80
From multiple nuanced accounts
of the development of the relationship between the ECJ and national courts
emerges a prevailing narrative: the “judicial empowerment thesis.”
81
The story
begins with a peculiarity of the EU’s founding treaty. Article 177 of the Treaty
of Rome
82
established the so-called preliminary ruling procedure, a procedure
whereby any national court hearing a case requiring it to interpret a provision
of European Community law could send a reference to the European Court of
Justice asking it to interpret the provision of law in question. After receiving a
judgment from the ECJ, the national court could then apply the ECJ’s
interpretation in the case before it.
The judicial empowerment thesis argues that many national courts saw
cooperation with the ECJ via the preliminary ruling procedure as a means to
promote judicial power at the national level vis-à-vis other branches of
government. Also, many lower courts saw the ECJ as a potentially powerful
judicial ally outside and above the rest of their national judicial hierarchy.
Referring cases directly to the ECJ allowed lower national courts to circumvent
higher courts within their own jurisdiction that might have otherwise
overturned the lower courts’ rulings on appeal.
83
Those dynamics gave many
80. See, e.g., ALTER, supra note 49; STONE SWEET, supra note 36; Burley & Slaughter, supra note
35; Weiler, supra note 37.
81. For a review of this literature, see Alec Stone Sweet, The European Court of Justice and the
Judicialization of EU Governance, 5 LIVING REVIEWS IN EU GOVERNANCE 1, 29 (2010).
82. Treaty Establishing the European Economic Community, art. 177, Mar. 25, 1957, 298 U.N.T.S.
11.
83. See ALTER, supra note 49 (developing the inter-court competition model).
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134 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
national courts an incentive to engage with the ECJ and to participate in the
construction of European law. As the ECJ gradually strengthened its direct
relationships with national courts across Europe, it became less and less
plausible for national governments to resist the domestic application of EU law.
To do so, these national governments would have had to challenge their own
courts—challenges that would have created the impression of political
interference with the independent judiciary.
The ECJ was not passive in the process of judicial empowerment. The ECJ,
along with other EU institutions, actively cultivated and supported the training
of networks of national judges committed to European law who might send
them cases through the preliminary ruling procedure and who would actively
enforce EU law—sometimes against the wishes of those judge’s governments.
Initially, the judges of the ECJ “court[ed] the national courts” through a
somewhat ad-hoc mixture of “seminars, dinners, regular invitations to
Luxembourg and visits around the community.”
84
By now, the system for
training national judges is far more established and systematic. In partnership
with pan-European institutes such as the Academy of European Law, national
judicial training bodies, and networks of judges such as the European Judicial
Training Network, the Commission sponsors an extensive system to train
national judges in European law.
85
The Commission recently announced a goal
of ensuring that at least half of the nearly eighty-thousand judges who staff the
judiciaries of the EU’s twenty-eight member states receive training on EU law
by 2020, and they claim to be on track to achieving that goal.
86
Already,
thousands of judges across the twenty-eight states of the EU participate in EUrelated
judicial networks, engage with the EU courts in Luxembourg, and have
been trained in European law. Also, the EU has made judicial reform and
judicial training a central part of the enlargement process, with the ECJ and the
EU’s political institutions working to socialize national judiciaries of new
member states into the interlocking system of national and EU-level courts.
87
Although the ECJ has had great success in convincing national judiciaries to
become central actors in the EU legal order, national courts did not come to
support this legal order all at once or with equal enthusiasm.
88
It was not until
the 1990s that all national courts accepted fundamental doctrines—and the
story of the relationship between the ECJ and national courts does not simply
84. Burley & Mattli, supra note 35, at 62; see also RASMUSSEN, supra note 53, at 247 (explaining
the ECJ’s campaign to educate national judges through all-expense-paid informational conferences).
85. See Communication On Building Trust In EU-Wide Justice, COM (2011) 551 final (Sept. 13,
2011); European Commission, Report On European Judicial Training 2011 (2012).
86. See id.
87. See generally DANIELA PIANA, JUDICIAL ACCOUNTABILITIES IN NEW EUROPE (2010);
Kalypso Nicolaidis & Rachel Kleinfeld, Rethinking Europe’s “Rule of Law” and Enlargement Agenda
(OECD Sigma Papers No. 49, 2012).
88. See ALTER, supra note 49; THE EUROPEAN COURTS AND NATIONAL COURTS: DOCTRINE
AND JURISPRUDENCE (Anne-Marie Slaughter, Alec Stone Street & J.H.H. Weiler eds., 1998)
(providing case studies of the gradual acceptance of EU law in various national judicial orders).
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end with the courts’ gradual acceptance of ECJ supremacy by the 1990s and the
ECJ’s corresponding seamless conversion into a reliable guardian of EU law.
Rather, considerable tensions between the ECJ and national constitutional
courts remain over the question of which judicial authority should define the
limits of the EU’s competence, and, in other respects as well, some national
courts have pushed back against the ECJ’s assertions of authority.
Even from the outset, some national courts only accepted the ECJ’s
supremacy subject to qualifications. Germany’s Federal Constitutional Court,
the Bundesverfassungsgericht (BVerfG), was the most prominent dissenter,
maintaining in its series of Solange judgments that it would treat EU law as
supreme only so long as the EU guaranteed protection of fundamental rights as
afforded under German constitutional law.
89
The long-simmering tensions
between the BVerfG and the ECJ are coming to a head in the context of the
BVerfG’s recent reference—its first ever—to the ECJ in Gauweiler.
90
The
reference seems to have been crafted so as to force the hand of the ECJ to rule
in a particular manner, implying that, if the ECJ failed to rule as the BVerfG
deemed necessary, the BVerfG would defy the ECJ’s ruling.
91
Now that the ECJ
has ruled on the Gauweiler
92
reference and provided broad backing for the
Outright Monetary Transactions program, it remains to be seen whether the
BVerfG will follow through on its threat of defiance or will simply accept the
ECJ’s ruling. If the German Court openly defies the ECJ when it issues its own
final ruling on the case, this would lead to a profound constitutional crisis for
the EU.
The BVerfG is hardly the only one pushing back against the ECJ and the
EU legal order. Courts in Nordic member states continue to be reluctant to use
the preliminary ruling procedure,
93
and courts in some new Eastern European
member states have shown similar reluctance.
94
Likewise, courts in the Czech
Republic, Hungary, and Poland have challenged the ECJ on critical doctrines.
95
Even more worryingly, recent challenges to the independence of the judiciary in
new EU member states have raised new questions about the ECJ’s ability to
89. See PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES AND MATERIALS 357–63
(2008) (discussing the German Court’s Solange cases). See generally BILL DAVIES, RESISTING THE
EUROPEAN COURT OF JUSTICE (2012) (providing a more general account of development of the
relationship between the ECJ and the German courts).
90. See Gauweiler, supra note 42; see also supra text accompanying note 42.
91. Jones & Kelemen, supra note 43.
92. Gauweiler supra note 42.
93. See Marlene Wind, The Nordics, the EU and the Reluctance Towards Supranational Judicial
Review, 48 J. COMMON MKT. STUD. 1039, 1046–55 (2010).
94. Michal Bobek, Learning to Talk: Preliminary Rulings, the Courts of the New Member States
and the Court of Justice, 45 COMMON. MKT. L. R. 1611, 1611 (2008).
95. See Arthur Dyevre, Judicial Non-Compliance in a Non-Hierarchical Legal Order: Isolated
Accident or Omen of Judicial Armageddon? (Max Planck Inst. for Int’l & Comparative Law, Working
Paper, 2012), http://works.bepress.com/arthur_dyevre1/7/ (arguing that challenges to ECJ doctrines
posed by courts in new member states are not as threatening as challenges posed by higher profile
courts such as the German Constitutional Court). See generally Wojciech Sadurski, ‘Solange, chapter 3’:
Constitutional Courts in Central Europe – Democracy – European Union, 14 EUR. L. J. 1, 1 (2008).
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136 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
depend on a potentially unreliable network of thousands of national courts to
enforce European law. In addition to the Hungarian threats to judicial
independence, Bulgaria and Romania have been plagued by judicial corruption
and more general deficiencies in the functioning of their judiciaries so severe
that, upon accession to the EU, the two states were subject to a special system
of ongoing supervision of reform of their judiciaries—the Cooperation and
Verification Mechanism.
96
The EU legal system relies heavily on decentralized enforcement before
national courts, and the effectiveness of that model depends on the existence of
independent national judiciaries willing to enforce European law even in the
face of countervailing pressure from their governments. The Commission
highlighted this dependence in the context of the dispute over the Hungarian
government’s ousting of senior judges when it reminded the Hungarian
government that whenever national courts apply EU law, they act as “Union
courts” and need to meet EU minimum standards concerning judicial
independence and effective judicial redress.
97
But it remains questionable
whether the EU can count on courts in Hungary, Romania, Bulgaria, or some
other member states to act faithfully as “Union courts.” EU leaders in Brussels
may need to stand up much more forcefully to some governments to make sure
their judiciaries remain reliable partners for the European Court. In response to
these new challenges, in March 2014, the Commission proposed a new rule-oflaw
initiative to strengthen its ability to combat persistent threats to the rule of
law in EU member states.
98
The new framework is designed to bolster the EU’s
existing Article 7 procedure, which allows the European Council to suspend the
voting rights of a member state found to be in persistent breach of core EU
values, including “respect for human dignity, freedom, democracy, equality, the
rule of law and respect for human rights.”
99
The new rule of law initiative
establishes a procedure with a series of steps that would incrementally ratchet
up pressure on states on track to violate EU core values and trigger Article 7
procedure, but it remains to be seen whether the Commission will deploy the
new procedure.
From the earliest days of the European Community legal order, national
courts have been vital partners to the ECJ in extending the ECJ’s authority.
The authority of the ECJ has surpassed that of other international courts not
simply because it has secured more consistent compliance by governments but
because it has more effectively penetrated national judicial orders. EU
policymakers and the ECJ have embraced national courts as integral elements
of the EU judiciary, insisting that they are not simply national courts but also
96. See Milada Vachudova & Aneta Spendzharova, The EU’s Cooperation and Verification
Mechanism: Fighting Corruption in Bulgaria and Romania after EU Accession, 2012 EUR. POL’Y
ANALYSIS 1, 2 (2012).
97. European Commission Press Release, Memo/12/165, Hungary – Infringements (Mar. 7 2012).
98. Communication: A New EU Framework to Strengthen the Rule of Law, COM (2014) 158 final
(Mar. 19, 2014).
99. Consolidated version of the Treaty on European Union, arts. 2, 7, Oct. 26, 2012, C 326/15.
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“‘ordinary’ courts within the European Union legal order.”
100
As evidenced by
the fact that use of the preliminary ruling procedure by national courts across
the EU continues to increase steadily, the ECJ has had tremendous success in
this respect.
101
But while the EU has found many partners among national
courts, the relationship between the ECJ and national judiciaries is, in some
ways, rocky; the landscape remains marred by pockets of resistance.
C. The Legal Field
Courts exist in social contexts, sometimes called “legal fields,”
102
which
extend beyond governments and other political institutions and encompass a
wide range of actors. Any legal field is a kind of local social order comprised of
an interrelated system of actors, social positions, and institutions. The European
legal field
103
has formed a crucial part of the ECJ’s external context. This legal
field is comprised not only of European and national judges and governments
but also of the set of lawyers, academics, private litigants, firms, and NGOs
involved in using, shaping, debating, and reacting to EU law. The emergence of
an active and supportive European legal field has been crucial to the
development of the ECJ and the European legal order more generally. The
ECJ was not simply a passive beneficiary of the existence of the European legal
field; it played an active role in constructing it, particularly in the early days of
the EU legal system. That legal field, in turn, has played a crucial role in
supporting the development of the ECJ’s authority. As the scope and impact of
EU law grew, the European legal field expanded and diversified as well. While
ECJ judges, European officials, and academics supportive of the Court were
able to dominate most of the discourse about the Court in its early years, the
expansion of the European legal field has brought with it more discordant
voices that are critical of the ECJ and its jurisprudence.
Historians, sociologists, and political scientists examining the foundations of
the EU legal system have produced a rich empirical literature showing how a
committed group of legal entrepreneurs—including not only officials from the
ECJ, Commission, and Parliament, but also scholars and private practitioners—
worked to support the legitimacy of the ECJ’s jurisprudence and to establish
European law as a distinct field of academic study and legal practice.
104
100. Case C-1/09, Creation of a unified patent litigation system, para. 80, 2011.
101. KELEMEN, supra note 11, at 89.
102. See Bourdieu & Terdiman, supra note 1; Dezalay & Madsen, supra note 1. On field theory
more generally, see Neil Fligstein, Social Skill and the Theory of Fields, 19 SOC. THEORY 105 (2001).
103. See generally LAWYERING EUROPE: EUROPEAN LAW AS A TRANSNATIONAL SOCIAL FIELD
(Antoine Vauchez & Bruno de Witte eds., 2013); Antoine Vauchez, The Force of a Weak Field: Law
and Lawyers in the Government of the European Union, 2 INT’L POL. SOC. 128 (2008).
104. For an overview of this literature, see Mark Pollack, The New EU Legal History: What’s New,
What’s Missing?, 28 AM. U. INT’L L. REV. 1257 (2013); see also Karen Alter, Jurist Advocacy
Movements: The Role of Euro-Law Associations in European Integration (1953–1975), in THE
EUROPEAN COURT’S POLITICAL POWER: SELECTED ESSAYS 63–91 (Karen Alter ed., 2009); Antonin
Cohen, Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and
Legal Expertise in the Making of a Constitution for Europe (1940s–1960s), 32 LAW & SOC. INQUIRY 109
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138 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
Members of this close-knit circle started academic associations to promote the
discipline of European law.
105
The Commission helped finance conferences,
academic research centers, and new journals focusing on European law
106
whereas the staff of EU institutions and the private legal practitioners who
interacted with them wrote many of the articles published in these new
journals.
107
ECJ jurisprudence gained legitimacy and expanded in scope in large
part because the emergent European legal field, including academics and
practitioners, endorsed the Court’s bold jurisprudence and its vision of EU law
as not simply a form of international law but rather a new constitutional order.
As legal historian Morten Rasmussen said, “The academic field of European
law would play a key role in legitimising the jurisprudence of the Court of
Justice.”
108
In the early years of the EU, the ECJ was blessed with “benign neglect by
the powers that be and the mass media.”
109
With so few people paying attention,
ECJ justices and those closely affiliated with the Court were able to shape and
dominate much of the discourse there was about the Court in the emerging
legal field. They were able to encourage the spread of a “legal positivism”
discourse that suggested the Court was not engaging in judicial activism but was
simply fulfilling its mandate by “merely using legal interpretation to work out
the details agreed to in the Treaty of Rome.”
110
This helped generate a legal
scholarship that was overwhelmingly supportive of the ECJ’s expansive,
constitutional reading of the treaties. But this scholarship may have ignored
political considerations and presented
the Community as a juristic idea; the written constitution as a sacred text; the
professional commentary as a legal truth; the case law as the inevitable working out of
the correct implications of the constitutional text; and the constitutional court as the
disembodied voice of right reason and constitutional teleology.111
But the days of splendid isolation in which the Court could readily shape the
discourse about itself are long past. The European legal field grew dramatically
(2007); Antonin Cohen & Antoine Vauchez, Introduction: Law, Lawyers and Transnational Politics in
the Production of Europe, 32 LAW & SOC. INQUIRY 75 (2007); Davies, supra note 89 (detailing the
early tensions between the ECJ and the German Courts); Morten Rasmussen, The Origins of a Legal
Revolution—The Early History of the European Court of Justice, 14 J. EUR. INTEGRATION HIST. 77
(2008).
105. Alter, supra note 104, at 65–72.
106. Morten Rasmussen, Constructing and Deconstructing ‘Constitutional’ European Law, in
EUROPE: THE NEW LEGAL REALISM 639, 650–51 (Henning Koch et al. eds., 2010).
107. Harm Schepel & Rein Wesseling, The Legal Community: Judges, Lawyers, Officials and Clerks
in the Writing of Europe, 3 EUR. L. J. 165, 172 (1997).
108. Rasmussen, supra note 106, at 653.
109. Eric Stein, Lawyers, Judges and the Making of a Transnational Constitution, 75 AMER. J. INT’L
L. 1, 1 (1981).
110. Alter, supra note 104, at 35; see also R. Daniel Kelemen, Talking about the European Court, in
STUDIES IN LAW, POLITICS, AND SOCIETY: THE DISCOURSE OF JUDGING 147, 148 (Austin Sarat ed.,
2012) (developing the concept of the legal positivism discourse on the ECJ).
111. Martin Shapiro, Comparative Law and Comparative Politics, 53 S. CAL. L. REV. 537, 538
(1979).
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over time—itself a testament to the Court’s growing authority. The twenty-first
century ECJ is surrounded by an extensive and robust European legal field
including dozens of journals specializing in European law, legions of scholars
writing on European law, and thousands of lawyers and other members of the
legal services industry focused on European law. But with that growth has come
a far greater diversity of views; today, alongside supportive voices, the
European legal field also produces many voices critical of the ECJ. When
Hjalte Rasmussen wrote critically about the ECJ’s expansive judicial activism in
1986, he was nearly a lone voice. Today, as ECJ judgments touch ever more
sensitive policy areas, the ECJ is regularly met with scholarly critics on the right
or on the left who accuse it of engaging in antidemocratic judicial activism.
112
New discourses have emerged among EU law specialists that support a vision of
“constitutional pluralism,” which challenges the ECJ’s understanding of the
supremacy of European law and favors a more heterarchical legal order in
which the EU legal order and national legal orders coexist without the former
being superior to the latter.
113
The proliferation of critical voices in the European legal field raises a
question: Might the European legal field, which has so long supported the
authority of the ECJ, come to act as an external constraint on the Court? Might
criticisms of the ECJ emanating from the European legal field affect how
political leaders, national judges, and the European public view the ECJ and
react to its judgments? Any court that rules on controversial cases must expect
to find itself the object of criticism. One might simply view the increasing
criticisms of ECJ doctrine in the European legal field as an inevitable byproduct
of the emergence of a robust and diverse European legal field and of the
Court’s success in expanding its influence into ever more controversial policy
areas. There is, however, cause for concern. Just as earlier academic literature
legitimized the Court’s constitutional understanding of the EU legal order, the
spread of academic literature endorsing constitutional pluralism and rejecting a
strict judicial hierarchy could legitimize increasing defiance of the ECJ by
national courts in the coming years.
112. Michelle Everson, Is the European Court of Justice a Legal or Political Institution Now?, THE
GUARDIAN, (Aug. 10, 2010), http://www.theguardian.com/law/2010/aug/10/european-court-justicelegal-political;
Roman Herzog & Lüder Gerken, Stoppt den Europäischen Gerichtshof!, FRANK.
ALLGEM. ZEIT (Aug. 9, 2008); Scharpf, supra note 38.
113. Neil MacCormick, The Maastricht Urteil: Sovereignty Now, 1 EUR. L. J. 259, 264 (1995); see
also CONSTITUTIONAL PLURALISM IN THE EUROPEAN UNION AND BEYOND (Matej Avbelj & Jan
Komárek eds., 2012); GRÁINNE DE BÚRCA & J.H.H. WEILER, THE WORLDS OF EUROPEAN
CONSTITUTIONALISM (2012) (providing a recent overview of the literature on constitutional
pluralism); NEIL MACCORMICK, QUESTIONING SOVEREIGNTY 102–04 (1999) (introducing the term
‘constitutional pluralism’ in the context of EU law); Martin Loughlin, Constitutional Pluralism: An
oxymoron?, 3 GLOBAL CONSTITUTIONALISM 9 (2014) (providing a compelling critique of the concept
of constitutional pluralism); Neil Walker, The Idea of Constitutional Pluralism, 65 MOD. L. REV. 317
(2002).
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140 LAW AND CONTEMPORARY PROBLEMS [Vol. 79:117
V
CONCLUSION
Like any court, the ECJ has faced constraints in its external context,
including constraints imposed by national governments and national courts. But
overall, and particularly when regarded through the comparative lens embraced
in this issue, the ECJ has benefited from a remarkably benign external
environment. The ECJ has found much support from key actors including
national governments, national courts, and members of the European legal
field. When opposition to the Court has emerged, the institutional structure of
the EU has helped insulate the ECJ against the variety of court-curbing
measures that political opponents of judicial power often deploy in other
contexts.
114
As a result of this supportive context, the ECJ was able to establish
the “extensive authority” discussed in the introduction to this issue.
115
Moreover, with the growth of EU law in covering more and more subject
matters and with the enlargement of the EU to include more and more member
states, the actual power exercised by the ECJ has become expansive.
116
The ECJ is—and for the foreseeable future will remain—the most powerful
of the international courts examined in this issue. Nevertheless, looking
forward, it is by no means clear that the ECJ’s external context will continue to
support the expansion of its authority to the extent it has in the past. In the
twenty-first century, the ECJ faces new contextual challenges in its relationship
with member governments, national courts, and the European legal field. New
member governments with fragile democracies and questionable commitments
to the rule of law may increasingly test the extent to which they can defy or
evade EU law without incurring a robust response from the EU. The delicate
modus vivendi between the ECJ and national constitutional courts may also
unravel as the obfuscation embodied in the concept of constitutional pluralism
gives way to more open conflicts over the ultimate seat of judicial authority.
Finally, the growth and diversification of the European legal field and the
encroachment of EU law on increasingly sensitive policy areas is likely to
provoke more intense criticism of the Court. Although the origins and historical
development of the ECJ’s remarkable power are, by this point, well
understood, future research will be needed to uncover how and to what degree
the ECJ can maintain—or even expand—its authority in an increasingly
challenging external context.
114. See Kelemen, supra note 14.
115. See Alter, Helfer & Madsen, supra note 3, at 10–11.
116. Id. at 11, 34.