Judicial authority and the
constitutional treaty
Damian Chalmers*
1. Introduction
The treatment of the European Court of Justice (ECJ) by the constitutional
treaty presents a paradox. The Court received new powers of review over both
the EU institutions and the member states. The authority of Union law was
formalized and extended. The reach of the preliminary reference procedure
was expanded. Yet the Court was not discussed until the latter part of the
Convention on the Future of Europe, with no documents formally introduced
until three months before the end.1 The reason for this incongruity lies in both
the convention and the intergovernmental conference (IGC) buying the doctrine of judicial supremacy: government by law requires nonjudicial officials to
carry out their legal powers and duties in the manner set out by the judiciary.2
As judicial supremacy has been a central seam of the EU legal order, it would
seem uncontroversial for it to occupy a similar place within the constitutional
treaty. Judicial supremacy within EU law has historically rested, however,
upon a dialectic. Whilst a very broad interpretation of the legal powers of
judges has been taken in EC law, institutional practice suggests that the impact
of both the central courts and the national courts on the application of EU law
is actually extremely limited. It focused on a few narrow sectors and its normative statements, notwithstanding their broader symbolic importance,
attached legal obligations to a limited range of activities. Indeed, the organizational structures and normative claims of the EU judicial system have only
been effective in a generally satisfactory manner because of this limited judicial presence. As the scope of the judicial remit has expanded, pressures have
emerged. This expansion has not been so great, however, as to generate
unmanageable tensions. Resistance by national judges to either the formal or
substantive claims of EU law is still rare and, when the matter was addressed
* Reader in European law, London School of Economics. The author is grateful for advice given by Karen
Alter and José de Areilza. All faults are the author’s. Email: [email protected] doi:10.1093/icon/moi028
1
On December 5–6, 2002 the Praesidium established a discussion circle to examine the Court of
Justice. Final Report of the Discussion Circle on the Court of Justice, CONV 636/03. The
Praesidium adopted most of the amendments proposed, CONV 734/03.
2
Most famously, Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1041 (1958).
448
D. Chalmers
449
at Nice, the pressures on the preliminary reference procedure were not
perceived to be sufficiently strong to require any drastic reform.3
The constitutional treaty, however, ignores the preexisting dialectic. New
and significant opportunities for review and grounds for review in EU law, for
both national and Union courts, place the judiciary nearer to the heart of the
Union and domestic political settlements by allowing them to gainsay legislative and administrative practices more frequently, more intensively, and more
extensively. No longer will EU law be applied in only a few narrow areas.
Rather, it is to be invoked regularly in areas such as criminal law, immigration,
and asylum, which constitute the very heartlands of domestic litigation. EU
law will no longer be an exotic beast practiced by a few specialized litigants but
will become a foreground presence in national legal professions. Existing organizational structures and normative demands, having evolved little since the
1950s and 1960s, will be too centralized, too ideologically skewed, and too
formalistic to deliver any of the goods associated with judicial supremacy.
This is hardly surprising. If one changes what the judiciary does, one alters its
ability to meet the responsibilities liberal constitutions have historically
assigned to judges; these responsibilities are likely to be secured only if one
considers how to redeploy the judiciary’s resources to that end.
2. The claims and practice of judicial supremacy in
European Union law
If judicial supremacy is now endemic across Europe, its tradition is a short one.
Prior to World War II, Austria had the only Constitutional Court that was
endowed with powers of legislative review. In the 1950s these powers began to
be granted more widely. The German Constitutional Court became operative in
1951; the Italian, in 1956; and France’s Conseil Constitutionnel in 1958.
Thus, the claims in Van Gend en Loos and Costa—that national courts should
disapply national legislation where it conflicted with directly effective EC legal
rights—were at once a radical act of legal creation and a fashionable pronouncement about the remit of judicial power.4 Over time, the operability and
authority of the EU legal order has come to be equated with the assertion of EC
individual rights before a court and the precedence of judicial authority over
other administrative actors. The transformation of the EEC treaty into a legal
system, with its own detail, logic, and guiding structures, has been accompanied by a parallel expansion in judicial powers. The judge has become responsible for developing an operational logic for the Union; policing and defining the
3
Further analysis can be found in Angus Johnston, Judicial Reform and the Treaty of Nice, 38
COMMON MKT. L. REV. 499 (2001); Piet Eeckhout, The European Courts After Nice in LEGAL ISSUES OF
THE NICE TREATY (Mads Andenas & John Usher eds., Hart 2002).
4
Case C-26/62 Van Gend en Loos v. NederlandsAdministratie der Belastingen, 1963 E.C.R. 1; Case
C-6/64 Costa v. ENEL, 1964 E.C.R. 585.
450
Institutions, powers, decision making and accountability
limits of administrative power; amplifying the core individual rights and duties;
and securing legal stability. Consequently, EU law has developed the parameters
of judicial supremacy in extremely broad terms. We may summarize as follows:
The ECJ has been granted considerable power of judicial review over the legislative and administrative institutions of both the EU and the member states. It
can fine both sets of institutions,5 determine the legal effects of their acts,6 and
compel them to take all necessary measures to comply with its judgments.7
The power to apply EC law has conferred powers of judicial review on
national courts that had no such power previously.8 In addition, judicial status
and, with it, the corollary power of review, has been accorded to a broad array
of quasi-judicial institutions not traditionally considered to be courts.9
Extremely broad grounds of judicial review are provided. Institutions, and
national governments acting within the scope of EC law, are bound not only by
the treaty and doctrines of general legal principles and fundamental rights but
also by the corpus of 80,000 pages of EC secondary legislation.
National courts may strike down administrative or legislative act even
where an action has not been brought against the administration. In actions
between private parties the primacy of EC law over an existing legal or administrative practice enables the court to strike down the latter as an impediment
to the effective enjoyment of EC individual rights.
This dramatic tale leaves unexplained why national governments would
accept such a loss of power. The answer lies in the bifurcated nature of judicial
supremacy, which is, on the one hand, a claim by judges of ultimate authority
over the interpretation of the law. This claim envisages vesting extensive formal powers in the judge. Judicial supremacy is also, however, a description of
the judge’s actual power over administrative actors. The extent of this power is
gauged, in part, by the centrality of the judge to the application and interpretation of law, that is to say, the extent and frequency with which she rules on
the full panoply of laws in effect. It is also gauged by the level of compliance by
institutional actors with her judgments.
2.1. Judicial review and the Community courts: Hesitant legislative
review and aggressive administrative review
Union law creates three categories of relationship between courts and administrative entities. The first of these, between the Community courts and the EU
institutions, is the most centralized; it rests on the power of the former to
5
See Arts. 235 & 288 EC (EC institutions); Art. 228(2) E.C. (Member States).
6
See Arts. 231, 242 & 243 EC (EC Institutions). With regard to Member States, Court judgments are
authoritative statements of EC law, which all organs of the State are required to apply. Case
C-198/01 Fiammiferi v. Autorità Garante della Concorrenza e del Mercato, Judgment of Sept. 9, 2003.
7
See Art. 233 EC (EC Institutions); Art. 228(1) EC (Member States).
8
Case C-106/77 Amminstrazione delle Finanze v. Simmenthal, 1978 E.C.R. 629.
9
Case C-416/96 El Yassini v. Secretary of State for the Home Department, 1999 E.C.R. I-1209.
D. Chalmers
451
exercise legislative and administrative review over the latter. The evidence
below suggests a sharp dichotomy here. The courts are reluctant to engage in
legislative review, so Council or Council and Parliament acts are rarely struck
down. By contrast, a much more aggressive posture is adopted against administrative measures of the Commission.
Review of Council measures by the ECJ is highly limited. In the period 1998 to
2003,10 of 296 judgments it rendered in actions brought against EU
Institutions,11 58 concerned challenges to Council or Council and Parliament
acts (19.59 percent). It upheld nine of these; such challenges thus enjoyed a
success rate of only 15.51 percent, which is strikingly low given that locus standi
is rarely a problem for applicants at this stage in the proceedings. Similarly,
during the same period in the Court of First Instance (CFI), which has on its
docket only actions brought against EU institutions, there were thirty-five
challenges to either a Council regulation or directive. Of these only three challenges (8.57 percent), all against regulations, were successful. A breakdown of
the successful challenges shows a total of four brought by individuals—three
before the CFI and one before the ECJ.12 All concerned challenges to regulations
imposing countervailing or antidumping duties, measures that are, in essence,
administrative rather than legislative in nature. There was no successful challenge by individuals to “true” legislative acts by the Council. Of the remaining
eight successful challenges, the Commission and Parliament each brought three
Commission and Parliament.13 These challenges involved points of principle, but
only one could be said to implicate a significant piece of legislation, and even that
one merely annulled a declaration attached by the Council.14 Only two successful challenges were brought by member states—one by Spain, to a regulation
restricting the quotas for anchovy,15 the other the famous action by Germany
that resulted in the ban on tobacco advertising being struck down.16
All the foregoing examples suggest that legislative review by the Court
thwarts the collective preferences of the member states only marginally. The
bulk of the work of both Community courts is concerned, rather, with review of
10
A limited period was chosen, as practice can vary longitudinally.
11
This figure includes employment cases but not other forms of contractual dispute.
12
Case T-7/99, Medici Grimm v. Council, 2000 E.C.R. II- 2671; Case T-58/99, Mukand et al.
v. Council, 2001 E.C.R. II- 2521; Case T-88/98, Kundan Industries et al v. Council, 2002 E.C.R.
II-4897; Case C-76/00P, Petrotub v. Council, 2003 E.C.R. I-79.
13
Case C-29/99, Commission v. Council, 2002 E.C.R. I-11221; Case C-281/01, Commission v.
Council, 2002 E.C.R. I-12049; Case C-378/00, Commission v. Parliament and Council, 2003
E.C.R. I-937. Case C-22/96, Parliament v. Council, 1998 E.C.R. I-3321; Joined Cases C-164/97 &
C-165/97, Parliament v. Council, 1999 E.C.R. I-1139; Case C-93/00 Parliament v. Council, 2001
E.C.R. I- 10119.
14
Case C-29/99, Commission v. Council, 2002 E.C.R. I-11221.
15
Case C-61/96, Spain v. Council, 2002 E.C.R. I-3439.
16
Case C-376/98, Germany v. Parliament & Council, 2000 E.C.R. I-8419 (“tobacco directive” case).
452
Institutions, powers, decision making and accountability
the administrative practices of the Commission. Of the 296 cases cited above, the
ECJ considered 194, entailing 173 challenges to Commission decisions and
21 to Commission quasi-legislation, 20 to Commission regulations and 1 to a
Commission directive. When the locus standi requirements are met, there is evidence, furthermore, that these courts act as aggressive administrative courts. Of
the challenges to Commission quasi-legislation brought before the ECJ, 38.01
percent are successful, as are 27.25 percent of those brought against
Commission acts. This does not compare unfavorably with either the success rate
of litigation brought by employees of the EU institutions under labor laws in a
private capacity (34.09 percent),17 or the practice of the British courts, which,
in 2002, found in favor of the applicant in 36 percent of judicial review cases.18
2.2. Enforcement actions and the marginal authority of
the Court of Justice
The second scenario involves enforcement actions brought against a member
state before the ECJ by either the Commission or another member state. The
relationship in such cases is between a Union court and a local administrative
actor. Enforcement actions cover the full gamut of EC law.19 There are
questions, however, about the substantive authority of these rulings. As most
enforcement proceedings concern instruments that do not generate individual
rights before national courts, the only immediate costs for noncompliance are
extralegal, entailing loss of stature in the court of public opinion, or retaliation, albeit illegal, from other member states, or a further action, for financial
penalties, brought by the Commission.20 Every set of indicators associated
with enforcement proceedings suggests that these costs are considered remote
and small by all the institutional players and that, while there is a diffuse commitment to the rule of law, this only minimally bolsters the authority of the
Court. It is worth noting that the Commission exercises its discretion regarding
the pace of proceedings and the selection of matters in which to seek judgment
in a highly timid manner. At the end of 2002, an astonishing 13.36 percent of
proceedings were at least four years old.21 More than 89 percent were reported
as having been settled before the matter was referred formally to the Court.22
Because many proceedings are settled after formal notice, the actual figure is
much higher. While no Commission statistics are given on this, a rough gauge
17
These were the other forty-four cases brought before the Court.
18
Judicial Statistics 2002 20 (Department of Constitutional Affairs, 2003) [hereinafter Judicial
Statistics].
19
E.C. Commission, XXth Report on Monitoring the Application of Community Law COM (2003)
669, Annex 1, 14–16 [hereinafter XXth Report].
20
Art. 228 E.C.
21
XXth Report, supra note 19, at Annex I, Table 1.2.
22
Id. at 8.
D. Chalmers
453
of the level of settlement can be obtained by comparing the number of
enforcement proceedings initiated with the number of judgments rendered.
Between 1998 and 2002 the number of enforcement proceedings commenced
was fairly constant, between 2,134 (1998) and 2,434 (2000),23 while the
number of judgments given in 2001 was 79 and, in 2002, 93. Of the enforcement proceedings begun, between 3.5 and 4.5 percent reach judgment.
Moreover, in 77 of 86 judgments in 2003, the Court found against the member state.24 In 93 judgments issued in 2002, the Court found for the
Commission an astonishing 96.77 percent of the time.25 A similar tendency is
apparent in 2001, when the Court held in favor of the Commission in 75 out
of 79 cases. This suggests that the Commission only goes to court in cases
where there is a flagrant abuse and it knows it is going to win. Conversely, in
difficult or legally arguable cases, the Court is simply not invoked.
The most telling statistic concerns national government compliance with ECJ
judgments. In 2001, the Court ruled against member states in seventy-five
enforcement actions brought by the Commission. By the end of 2002, the
Commission was citing twenty-eight instances of failure to comply with the rulings of the Court in those very cases. In 37.33 percent of the cases, member states
had not complied with the Court’s rulings within twelve months of the judgment.26 The prevailing logic in the situation is one of administrative negotiation.
With the Commission controlling the Court’s docket, the Court is confined to easy
declarations ratifying the Commission’s position rather than radical restatements
of EC law. Even in this context, the authority assigned to the Court by national
governments appears highly limited. With regard to rates of settlement and levels
of compliance with its rulings, the Court’s position is analogous to that of the dispute settlement panels of the World Trade Organization (WTO).27
The situation changes dramatically when member states are subject to the
possibility of the Commission’s bringing enforcement proceedings against them
for sanctions under article 228 EC. These not only present a financial deterrent
but also expose governments to considerable adverse domestic publicity, since
fines are seen as a waste of taxpayers’ money. Compliance improves significantly with judgments at least 24 months old, as these are most at risk of
giving rise to article 228 EC proceedings. Thus, at the end of 2002, the
Commission recorded only eighteen instances of noncompliance with all
23
Id. at Annex I, Table 1.1.
24
Annual Report of the Court of Justice 2003 221 (2004).
25
Statistics of Judicial Activity of the Court of Justice 9 (2002). Available at http://www.
curia.eu.int/en/instit/presentationfr/index.htm.
26
27
See XXth Report, supra note 19, at Annex V.
The dispute concerning the siting of the Kouroupitos waste dump in Crete is a case in point. The
original Commission proceedings were brought in 1989. The case was not terminated until 2001,
and involved 2 Court rulings. Case C-45/91, Commission v. Greece, 1992 E.C.R. I-2509; Case
C-387/97 Commission v. Greece, 2000 E.C.R. I-5047.
454
Institutions, powers, decision making and accountability
judgments given prior to 2000.28 As for Article 228 EC proceedings, at the end
of 2002, the Commission had actually instigated twenty-eight.29 In five cases,
the proceedings had been withdrawn. In seventeen others, there had been a
termination following settlement by the parties. In one case the Court had
levied a fine,30 and only five were ongoing. While the reasons for such a high
level of settlement are difficult to ascertain, the time frames suggest that
the Commission enjoys stronger bargaining power under article 228 EC. Of the
ongoing cases, only one was more than twelve months old,31 which suggests
that there is less negotiation and equivocation on the part of the Commission
than is the case with proceedings under article 226 EC.
2.3. The limited significance of national judicial authority
The final set of relations involves those EC legal provisions that are invoked
before national courts. Here, authority is vested in local courts, which could
refuse to recognize the formal validity of EC law or—achieving the same end
by other means—could avoid their responsibilities in more covert ways.32
Neither form of resistance has occurred on a grand scale. There is a high
degree of formal acceptance of the authority of both EC law and the ECJ in the
grands arrêts of senior national courts. Although the right to challenge
the supremacy of EC law is retained, the validity of that law is not being challenged in the day-to-day course of events.33 While studies assessing the application of EC law are necessarily less clear-cut, all agree on relatively high
levels of substantive compliance, though levels of noncompliance are not
insignificant: Studies in the United Kingdom found some form of restrictive
application only in 9 percent of cases.34 A study of senior Austrian courts
found a similar pattern, with restrictive rulings accounting for 6.6 percent of
case law.35 A study of Spanish courts found compliance with ECJ precedent
28
See XXth Report, supra note 19, at Annex V.
29
See XXth Report, supra note 19, at Annex A, 9–11.
30
Commission v. Greece 2000, supra note 27, at 5045; Case C-278/0, Commission v. Spain,
Judgment of Nov. 25, 2003.
31
Case C-304/02, Commission v. France (pending).
32
Covert evasions can include: narrow constructions of EC legal norms; arguing that EC law does
not apply to the facts; weak remedies; refusals to refer; a contrario reasoning and opting to apply
domestic rather than EC legal norms on the grounds that it would lead to the same result. See
Bedanna Bepuly, The Application of EC Law in Austria, IWE Working Paper No 39, available at
http://www.iwe.oeaw.ac.at.
33
The broadest study is THE EUROPEAN COURTS AND NATIONAL COURTS: DOCTRINE
(Anne Marie Slaughter, Alec Stone Sweet & Joseph Weiler, eds., Hart, 1998).
AND JURISPRUDENCE
34
Damian Chalmers, The Positioning of EU Judicial Politics within the United Kingdom, 23 WEST
EUROPEAN POLITICS 169, 182 (2000).
35
BEDANNA BAPULY & GERHARD KOHLEGGER, DIE IMPLEMENTIERUNG DES EG-RECHTS IN ÖSTERREICH 27 (2003).
D. Chalmers
455
in 74.57 of cases in the higher courts and 84.61 percent of lower court
cases.36
The field within which this judicial authority reigns, however, is very
narrow. In a study of all cases reported in the United Kingdom,37 EC treaty provisions were the most frequently invoked of all the different types of instrument. The original core of 1957 law was still the primary basis for litigation.
Just five directives accounted for 73 percent of the instances in which
European directives were invoked before British courts. Litigation was focused,
furthermore, in a very narrow area of EC law. Five sectors accounted for
61 percent of all the cases, and large policy areas, such as the single market,
financial services, company law, consumer law, and environmental law, were
marked by little or no litigation. Finally, contrary to domestic practice, very little EC litigation, only 32.6 percent, involved disputes between private parties,
with two instruments, the sex discrimination and Transfer of Undertakings
(TUPE) directives, accounting for 64.5 percent of these instances.
The involvement of the ECJ is similarly limited. In the period from 1998 to
2003, it issued 763 judgments on matters referred from national courts.38 As
the graph below illustrates, three areas—the economic freedoms, VAT, and
agriculture—accounted for 47 percent of the total.
36
Francisco Ramos, Judicial Cooperation in the European Courts: Testing Three Models of Judicial
Behaviour, 2 GLOBAL JURIST FRONTIERS 43–44 (2002).
37
38
See Chalmers, supra note 34, at 178–183.
The data was extracted from the published CURIA reports of the ECJ for that period. It excludes
judgments on the Brussels Convention and cases where the Court found it had no jurisdiction and
456
Institutions, powers, decision making and accountability
The first of these is anchored in EC Treaty provisions,39 which have been
largely unchanged since 1957. The second concerns litigation centered
around a single instrument, the sixth VAT directive,40 and the final one
concerns a sector, agriculture, that is significant but not predominant in the
EU’s political economy. Judgments in both agriculture and VAT rarely concern
matters of broad principle but deal rather with highly specific, albeit financially important, points.41 While the Court has articulated broad principles
relating to economic freedoms, it has frequently been trapped by the density of
the case law;42 few commentators would argue that the law in this area is
clearer or more coherent than it was twenty years ago. By contrast, the
remaining sectors, accounting for 21 percent of all the Court’s case law,
include all consumer and health protection law, migration of non-EU nationals, transport, financial services, regulation of the professions, company law,
all intellectual and industrial property law except trademarks, broadcasting
and advertising; and data protection law. As environmental law and labor
law, two huge legal fields largely dominated by EC law, account for a further
7 percent, the actual guiding hand of the ECJ in most policy areas is thus
extremely limited.
refused to give a ruling. The data is on file with the author and is available on request. The
categories are: economic freedom (191 cases); competition, including public undertakings and
state aids (36 cases); sex discrimination (43 cases); VAT (74 cases); trademarks (28 cases); other,
denoting all other sectors (161 cases); agriculture (92 cases); commercial policy and customs
union (47 cases); environment (23 cases); public procurement (PP)(33 cases); and labor law, other
than sex discrimination (28 cases).
39
The author merely looked at treaty provisions, except for free movement of workers, where
Article 39 EC has been difficult to dissociate from the secondary legislation listed below.
40
Council Directive 77/388/EEC, 1977 O.J. (L 145/1).
41
E.g., the most recent decision on VAT concerns whether revenue from gaming machines can be
exempt from VAT if they are not operated in a casino, Joined Cases C-453/02 & C-462/02,
Gladbeck v. Linneweber, Judgment of Feb. 17, 2005. The most recent reference to agriculture
revolved around whether E.U. customs law discriminated between barley intended for production
of beer in beechwood tanks and barley intended for beer using other production methods,
Case C-126/04, Heineken Brouwerijen v. Hoofproduktschap Akkerbouw, Judgment of Jan. 13,
2005.
42
The question of whether advertising restrictions fall within Article 28 EC, the provision on free
movement of goods, is a case in point. Since 1993, when it was ruled fairly conclusive that they do
not, Case C-292/92, Hünermund, 1993 E.C.R. I-6787, there have been five more cases exclusively
on this point, whose cumulative result is a finding that they may do so, depending on the restrictiveness of the measure. Case C-412/93, Leclerc-Siplec [1995] E.C.R. I-179; Joined Cases C-34/95
to C-36/95, De Agostini and TV-Shop, 1997 E.C.R. I-3843; Case C-405/98, Gourmet
International Products, 2001 E.C.R. I-1795; Case C-322/01, Deutsche Apothekerband v. 0800
Doc Morris, Judgment of Dec. 11, 2003; Case C-71/02, Karner v. Troostwijk, Judgment of
Mar. 25, 2004.
D. Chalmers
457
Put another way, interpretation of twenty-two EC treaty provisions,43 seven
directives44 and three regulations45 accounted for 50 percent of the case law
during this period. These legal instruments were the almost exclusive subject
matter of litigation in the fields of the economic freedoms, competition, sex discrimination, public procurement, VAT, and trademarks. With the exception of
the trademark and public procurement directives, all this legislation is also at
least twenty-five years old. To be sure, individual judgments vary enormously
in their symbolic and practical effects. Yet if one combines this case law, which
is narrow in legal focus, with the case law on agriculture and commercial policy and customs union, which has little predictive effect or significance for the
wider economy, it becomes clear that, more than two-thirds of the time, the
Court is either revisiting well-worn debates or deciding cases that are of interest only for very narrow constituencies. Judicial power in this area resembles
that of the old High Authority of the European Coal and Steel Community—
intense, but narrowly focused. Moreover, it is precisely this narrow focus that
allows for the intensity. It softens resistance by national administrations,
which encounter only limited judicial infringement of their traditional prerogatives. More essential, these limits are what have allowed many national
courts to accept the authority of EC law. The German,46 Belgian,47 Danish,48
British49 and Hungarian courts50 have all stated that they will accept only a
substantially limited sovereignty of EC law. The confined remit of EC law before
43
The following provisions of the EC Treaty were invoked as economic freedoms: Arts. 25, 28–30,
39, 43, 45, 46, 48, 49, 50, 55, 56, 58, 90 EC. In addition, arts. 17–18 EC are invoked as interpretative aids. The following provisions were invoked in the field of competition, arts. 81, 82, 86 &
87 EC. Article 141 EC, the equal pay provision, was invoked in the field of sex discrimination.
44
Council Directive 77/388, 1977 O.J. (L 145/1) (VAT); Council Directive 76/207, 1976 O.J.
(L 39/40) (Sex discrimination); Council Directive 89/104, 1989 O.J. (L 40/1) (Trade marks);
Council Directive 89/665, 1989 O.J. (L 395/33) and Council Directive 93/36, 1993 O.J. (L 199/1)
(Public Procurement); Council Directive 64/22, 1964 O.J. Sp. Ed. (L 850/64) 117 and Council
Directive 68/360, 1968 O.J. Sp Ed. (L 257/13) 485. (Free movement of workers).
45
Regulation 1612/68, 1968 O.J. Sp.Ed. (L 275/2) 475; Regulation 1251/70, 1970 O.J. Sp. Ed.
(L 142/24) 402; Regulation 1408/71, 1997 O.J. (L 28/1) (Free movement of workers).
46
Brunner v. European Union Treaty, 1 C.M.L.R. 57 (1994).
47
CA, Feb. 3, 1994, Ecole Européenne, Case No 12/94, B6.
48
Carlsen v. Rasmussen, [1999] 3 C.M.L.R. 854 (1999).
49
R v. MAFF ex parte First City Trading, 1 C.M.L.R. 250 (1997); Marks & Spencer v. CCE [1999] 1
C.M.L.R. 1152 (1999).
50
See Judgment 30 invalidating Article 62 of the 1994 Europe Agreement between Hungary
and the European Union, Judgment of June 25, 1998. See also János Volkai, The Application
of the Europe Agreement and European Law in Hungary: The Judgment of an Activist Constitutional
Court on Activist Notions, Harvard Jean Monnet Working Paper 8/99, available at http://www.
jeanmonnetprogram.org/papers/papers99.html.
458
Institutions, powers, decision making and accountability
domestic courts, as a result, has important normative dimensions. In an all
cases, national courts have made clear that it is not a second order qualification that conditions a general presumption of the sovereignty of EC law, but
rather the limitation that provides the very justification for the authority of EC
law to be applied in the first place.
3. The constitutional treaty and judicial supremacy
Judicial supremacy in EU law has been marked, therefore, by a gap between
the formal claims and legal norms set out by the ECJ for the exercise of judicial
power and the reality of a more limited judicial presence in the development of
EU law and policy. It is this gap that has created the delicate institutional
balance that has allowed judicial supremacy to develop within EC law. It has
limited the political impact of ECJ rulings and allowed local judiciaries
to accept and enforce radical EU legal doctrines precisely because they did
not overtly revolutionize national legal settlements. This gap was ignored in
convention debate. Instead, an undifferentiated and absolutist interpretation
of judicial supremacy became the central dynamic shaping discussion of the
Union courts and their role in the constitutional treaty. The President of the
ECJ in his submission to the “discussion circle” spelled it out:
The rule of law is an essential part of any constitutional system and it
is the Court’s responsibility to ensure that it is observed . . . In this regard,
the current situation is not entirely satisfactory. One can point to the
fact that the transition from the European Communities to the European
Union did not entail a corresponding extension of the guarantees of the
observance of the law. Instead, it resulted in a situation in which the
mechanisms for judicial protection vary . . .51
This position has amounted to an earthquake, destroying the delicate
balance between the strong normative claims made for judicial supremacy by
the Union judiciary and its limited actual presence in Union law.
3.1. The constitutional treaty and a constitutional court for Europe?
Strengthening the grounds of judicial reason
Under the EC Treaty, the Court is currently responsible for ensuring that the
“law is observed” in its application and interpretation of the Treaty and secondary legislation.52 The draft constitution modifies this, requiring the Court
51
Oral presentation by Gil Carlos Rodriguez Iglesias to the “discussion circle” on the Court of
Justice, CONV 572/03, 1–2.
52
Art. 220 E.C.
D. Chalmers
459
to “ensure respect for the law in the interpretation and the application of the
Constitution.”53
By this new provision the ECJ is for the first time explicitly mandated to
engage in constitutional reasoning. To be sure, the Court’s future interpretation of this mandate is a matter of conjecture, but the incorporation of the
Charter of Fundamental Rights into part II of the draft constitution provides a
more settled basis for intensive review of EU institutional activity by setting out
an explicit and detailed catalogue of the rights against which such activity is
to be reviewed. Rather than having to imply and create, as it were, fundamental rights within the Union legal order, the Court is now in a position to develop
and flesh out the meaning of otherwise taken-for-granted provisions. The
Charter also provides a basis for a more extensive review, as it includes many
rights whose basis as a standard of review was previously unclear.54
This reform coincides with developments in ECJ practice that suggest a
willingness on the Court’s part to extend its horizons of review beyond those
of traditional first-generation rights—namely, the establishment of norms of
review in the fields of data protection,55 sexual orientation56 and bioethics.57
3.2. The transformation of EU administrative law
Changes have been made to the locus standi requirements governing the circumstances in which nonprivileged applicants can seek judicial review of acts
of the Union institutions. At present, natural or legal persons can only challenge an EC act if it is addressed to them or is of direct and individual concern
to them.58 Direct concern occurs wherever an act directly affects the legal
situation of the applicant so as to deny her certain lawful rights that would
otherwise be hers.59 Traditionally, the bigger hurdle has been the establishment of individual concern. Individuals were required to establish that the
measure affected them either by reason of attributes peculiar to them or by
reason of a factual situation that differentiated them from all others and distinguished them individually in the same way as the addressee.60 Even where
53
Constitutional Treaty (C.T.), Art. I-29.
54
These include human dignity, which was successfully invoked in Case C-36/02, Omega
Spielhallen, Judgment of Oct. 14, 2004, and the right of the patient to prior informed consent
before the performance of any medical procedure, Case C-377/98, Netherlands v. Parliament &
Council, 2001 E.C.R . I-7079.
55
Case C-101/01 Lindqvist, Judgment of Nov. 6, 2003; Joined Cases C-465/00, C-138/01 and
C-139/01, Österreichisches Rundfunk, 2003 E.C.R. I-4919.
56
Case C-117/0, KB v. National Health Service Pensions Agency, Judgment of Jan. 7, 2004.
57
Case C-377/98, Netherlands v. Parliament & Council, 2001 E.C.R. I-7079.
58
Art. 230(4) EC.
59
Case C-486/01P, Front National v. Parliament, Judgment of June 29, 2004.
60
Case C-50/00P, Unión de Pequeños Agricultores v. Council, 2002 E.C.R. I-6677.
460
Institutions, powers, decision making and accountability
parties’ interests were significantly compromised, this requirement made
review possible only in exceptional circumstances.
However, the constitutional treaty lifts the requirement of individual concern
for regulatory acts, which are a new form of legal act created by the treaty. These
are general, although nonlegislative, measures that implement EC legislation or
certain provisions of the constitution.61 An individual can now challenge such
an act if it is merely of direct concern to her.62 This represents a considerable
relaxation of the locus standi requirements, with a corresponding shift in the
balance of power between administration and judiciary. Whole areas of
Commission activity, previously immune to judicial oversight, now are likely to
be subject to perpetual challenge by a large number of parties. The increased
volume of case law will, of itself, lead to a significant increase in the judicial overruling of Commission acts, but the constitutional treaty also sends an implicit
message that the Union courts are to take a more active role, favoring the applicant. The traditional argument for comitology and quasi-legislation has been
that these fields, by their very nature, depended heavily on specialized expertise,
decisional efficiency, and long-term planning, all of which could only be secured
by administrative autonomy. Just the extension of judicial oversight to these
fields suggests a significant ideological realignment in which planning, efficiency, and expertise are to have less weight and the Union administration is
to be increasingly constrained by other values of liberal democracy.
3.3. Increased policing powers over national governments
The constitutional treaty introduces a single-track procedure for enforcement
procedures against member states for failure to transpose a framework law (the
equivalent of a directive in the new constitutional scheme). The Commission
may ask in the initial proceedings for the Court to impose a penalty.63 This is significant, as it was only when the threat of financial sanction was imminent that
national governments began to take the ECJ’s authority seriously. For other
breaches of EC law, the authority of the Court is likely to remain diffuse. The
two-tier process remains whereby the Court must first find a breach of EC law
and only then can a second stage of proceedings for sanctions be instigated by
the Commission. The simplification of procedures serves to augment the authority of the ECJ. If a member state fails to comply with an initial judgment of the
Court, the Commission can press for sanctions after issuing a formal notice and
giving the member state the opportunity to submit its observations.64 Moreover,
the Court need not issue a reasoned opinion and await member state compliance
with that opinion before proceeding, as is currently the case.
61
C.T. at art. I-33 (1).
62
C.T. at art. III-365(4).
63
C.T. at art. III-362(3).
64
C.T. at art. III-362(2).
D. Chalmers
461
3.4. Expansion of national judicial power and of the preliminary
reference procedure
The most significant increase in judicial authority is its extension by the constitutional treaty in the area of freedom, security and justice. Hitherto, exceptionalism has prevented legislative measures adopted under the third pillar of the
TEU being directly invoked before national courts. It has also limited national
courts’ powers of referral to the ECJ. For measures falling under Title IV of the
EC treaty, namely visas, asylum and immigration, the Court can only receive
references from courts against whose decisions there is no judicial remedy.65 In
policing and judicial cooperation in criminal matters, the reference procedure
is even more compromised because member states can choose whether their
national courts have the power of reference and, if so, which courts are to have
that power.66 Finally, the docket of the Court is subject to greater control by the
political institutions of the Union in that these have more opportunities to bring
cases before the Court than in other fields.67 The exceptionalism has been eliminated with only one caveat.68 EU legislation governing immigration, asylum,
crime and policing will not only be able to invoked freely and generate rights in
national courts, but also to be referred as freely as any other area of Union law
to the ECJ. The constitutional process takes place against a legislative backdrop in which a veritable avalanche of EU legislation has been adopted in these
fields in the last four years. Most asylum and immigration law within the
Union is now governed by EC legislation.69 EU legal instruments now set out
65
E.C. at Article 68(1).
66
Art. 35(1)–(4) TEU. Austria, Belgium, Germany, Luxembourg and the Netherlands have granted
all their courts the power of reference. Greece has accepted jurisdiction for courts of last resort,
1997 O.J., C 340/308.
67
The Commission, Council or a member state may seek a reference on any legal question relating
to Title IV (or measures adopted under it) of the EC Treaty, Article 68(3) EC. With regard to
third pillar measures, national governments may bring any dispute to the Court over the interpretation or application of an act that has not been resolved within 6 months by the Council, Article
35 (7) TEU.
68
The Court is still prohibited from reviewing the proportionality or validity of actions of police or
law enforcement agencies, or of member states policies in the area of law and order and protection of internal security, Article III-377 CT. Despite this caveat, there is nothing to prevent the ECJ
from making a ruling on which a national court could base such a review.
69
The central instruments on asylum are: directive 2003/9/EC, laying down minimum standards
for the reception of asylum seekers, 2003 O.J. (L 31/60); EU Council, amended proposal for a directive on minimum standards for the granting of refugee status, 14203/04 (agreement has been
reached on this). On immigration, important instruments are Council Directive 2001/40/EC,
2001 O.J. (L 149/34) on the mutual recognition of expulsion orders of third country nationals;
Council Directive 2002/90/EC, 2002 O.J. (L 328/17) defining the facilitation of unauthorized
entry and residence; Council Directive 2003/86/EC, 2003 O.J. (L 251/12) on family reunification;
Council Directive 2003/109/EC, 2004 O.J. (L 16/44) concerning the status of third country
nationals who are long term residents.
462
Institutions, powers, decision making and accountability
minimum requirements for many kinds of significant criminal offenses, and
these are increasingly likely to be used to guide interpretation of national law.70
Alongside these developments in the area of freedom, security and justice, significant EC equal opportunities legislation has been adopted relating to race,
religion, age, disability, and sexual orientation, and this is also likely to come
online in national courts in the next couple of years.
The consequence of these enactments is revolutionary. The application of
EC law by national courts and the preliminary reference procedure will no
longer cover narrow fields of law that rarely generate headlines. These will
now dominate the heartlands of domestic judicial activity and intrude regularly into areas of acute national sensitivity. Statistics give some idea of this. In
the United Kingdom, in 2003 alone, 81,725 cases were heard by Immigration
Adjudicators, that country’s judicial institution of first instance for asylum.71
In 2002, Immigration Adjudicators considered 84,148 cases.72 The Crown
Court, which deals with the most significant offenses in the United Kingdom,
committed 81,766 people for trial.73 While no broken-down statistics are
available from the tribunals of first instance for hearings involving discrimination in the workplace, the first appellate court, the Employment Appeals
Tribunal, heard 159 claims in 2002 involving race discrimination and 78
alleging disability discrimination.74 To be sure, not all these cases will require
consideration of EC law, much less be referred to the ECJ, but the sheer scale
of what is taking place may be gauged by placing these statistics alongside those for the two areas of EC law currently most litigated in United
Kingdom courts, VAT and sex discrimination. The VAT and Duties Tribunals
considered 2,613 cases in 200275 and the Employment Appeals Tribunal considered 91 sex discrimination claims.76 There are more than sixty times more
immigration and asylum cases than VAT cases in the United Kingdom, and
70
E.g., decision 96/750/JHA on combating serious illicit drug trafficking, 1996 O.J. (L 342/6);
Joint Action 98/733/JHA, 1998 O.J. (L 351/1) on making it a criminal offence to participate in a
criminal organization; Framework Decision 2001/413/JHA, 2001 O.J. (L 149/1) combating fraud
and counterfeiting; Framework Decision 2001/500/JHA, 2001O.J. (L 182/1) on money laundering; decision 2002/475/JHA, 2002 O.J. (L 164/3) on combating terrorism; decision
2002/629/JHA, 2002 O.J. (L 203/1) on combating trafficking in human beings; Framework
Decision 2003/80/JHA, 2003 O.J. (L 29/55) on protection of the environment through the
criminal law. See also the Commission proposal for a framework decision criminalizing racism and
xenophobia, 2002 O.J. C 75/17.
71
Home Office, First Quarterly Statistics 2004 Table 5 (2004).
72
Judicial Statistics 2002, supra note 18, at 77.
73
Id. at 65.
74
Id. at Table 7.9.
75
Id. at 77.
76
Id. at 86.
D. Chalmers
463
about two-and-a-half times as many disability and race cases as sex
discrimination cases.77
This heralds not only an expansion of judicial power, but also a transformation of the ECJ. A substantial part of its docket will involve cases that form
the bread and butter of civil liberties litigation—equal opportunities, abuse of
the criminal or policing system, asylum and immigration. This is to be
expected because of the volume of litigation in these fields and because the
constitutional treaty requires that priority be given to cases in which a person
is in custody.78 The Court is, therefore, likely to be transformed from a body
concerned mainly with trade and tax law into a human rights court.
This change will affect not just the nature of its daily work but, more fundamentally, its saliency and the manner in which it is perceived across Union
societies. Its enduring resolution of central and controversial human
rights questions is likely to transform the Court from an occasional presence
on the inner pages of a handful of “newspapers of record” to a regular presence
on the front pages of all newspapers; its case law will distill theoretical and
ethical controversies about the Good Life in Europe into a series of images
and tales.
4. Judicial goods and European Union law
This expansion of judicial power makes the justification of judicial supremacy
a constitutional question of the first order. In pragmatic terms, it is likely to
lead to increased tensions between the judiciary and other arms of government and between Union law and national law. Normatively speaking, a justification must be provided as to why nonmajoritarian institutions are accorded
such a central role in the new constitutional order. The starting point for such
a justification must be a counterfactual one, which assumes courts can provide certain public goods better than other institutional actors, whether or not
they actually do in practice. Power has been granted to the judiciary precisely
because the authors of the constitutional treaty believe this to be so. These
public goods, however, become a point of immanent critique for the judicial
arrangements within the Constitution. As they provide the reasons judges
have been granted powers, they also provide a series of normative standards
against which to measure the satisfactoriness of these arrangements.
4.1. The autonomy of the EC legal order
The most baldly stated justification for this dramatic expansion of judicial
power is that the Union is an order based upon the rule of law. It has
77
Id. at 77 & 86.
78
C.T. at art. III-369(4).
464
Institutions, powers, decision making and accountability
established a complete system of legal remedies and procedures to permit
judicial review of the legality of acts by government institutions.79 This is a
restatement of the argument that judges, as exclusively legal institutions,
secure the autonomy of a legal system by ensuring that legal structures, rather
than any other form of power or reasoning, determine the operation, ambit, and
authority of EC law. This legal autonomy is necessary to secure the “existence
conditions” of a legal order—to determine what counts as a law and what
legal effects it has.80 Thus, by holding that it is able to review any measure
intended to have legal effects81 and to determine the limits of EU competences,82 the ECJ has argued that it has the power to determine what is law.
Legal autonomy is not a value, per se. It is valuable, rather, because it brings
certain other goods. It locks in commitments made by institutions to other
institutions and to the subjects of EC law. By requiring legally identically treatment of all those subject to it, it secures formal equality. And by providing legal
structures that seek to reconcile or explain laws that might otherwise conflict,
it institutionalizes coherence as a value to be upheld in the policy process and
laws of the EC.
4.2. Legal certainty
Judicial supremacy provides legal certainty by providing a single authoritative
statement of the law.83 Legal certainty requires a single, authoritative view of
EC law, which applies equally across the Union. To this end, the ECJ has argued
that legal certainty and uniformity of EC law require that it be the sole arbiter
of whether a Community act is invalid.84 It has also argued that its judgments
contribute to legal certainty by enabling differences in interpretation to be
eliminated,85 by providing authoritative interpretations of ambiguous
provisions or prior case law,86 and by supplying legal expertise to local judges.87
79
Case C-294/83, Parti Ecologiste ‘Les Verts’ v. Parliament, 1986 E.C.R. 1339. Parallel reasoning
has been applied to national measures that fall within the field of EC law. Case C-222/84, Johnston
v. RUC, 1986 E.C.R. 1651.
80
Matthew Adler & Michael Dorf, Constitutional Existence Conditions and Judicial Review, 80 VA. L.
REV. 1105, 1117–1136 (2003).
81
Case C-22/70, Commission v. Council, 1971 E.C.R. 263; Case C-190/84, Les Verts, 1988 E.C.R.
1017.
82
Opinion 1/9, 1991 E.C.R. I-6079.
83
Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L.
REV. 1359 (1997).
84
Case C-314/85, Firma Fotofrost v. Hauptzollamt Lübeck-Ost, 1987 E.C.R. 4199.
85
Case C-166/73, Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratstelle, 1974 E.C.R. 33.
86
Joined Cases C-297/88 & C-197/89, Dzodzi v. Belgium, 1990 E.C.R. I-3763.
87
See Rheinmühlen-Düsseldorf, supra note 85.
D. Chalmers
465
As a public good, legal certainty enables law to provide a set of stable expectations about what conduct is permissible. Once again, this is important to securing more deep-seated virtues. Legal ordering is central to preventing a descent
into the Hobbesian jungle where anarchy prevails because no one has a sense of
what is allowed.88 It is also central to securing individual freedom. An axiom
of the liberal society is that everything that is not illegal is permitted. If one may
not know what is forbidden, a shadow of inhibition is cast across all conduct.
4.3. Protection of the republican constitution
Courts secure the checks and balances that prevent excessive concentrations
of administrative power.89 Most famously, the Court has stated that there is a
principle of institutional balance within EC law that it must protect by ensuring that each institution has regard for the powers of the other institutions.90
Recent literature in the U.S. has noted that this judicial role need not necessarily be exclusively defensive. It has been suggested that courts are arguably the
best institutions to coordinate collective problem-solving capacities.91 Courts are
not only well placed to determine the most appropriate allocation of decision
making, they are also well placed to set out the general performance standards
and duties of coordination and cooperation that must be met by the relevant
institution, while leaving the precise modalities up to the institution concerned.92
4.4. Development of fundamental values
A canon of the Community courts has been that one of their central roles is to
strength the principle of democracy and respect for fundamental rights.93 One
dimension of this commitment is the protection of immutable values from
encroachment by either majoritarian or administrative bodies (constraining
rights). Within member states, it has always been necessary to balance this principle against the need not to restrict unduly the power of representative legislative assemblies. There is a case for a different balance in the case of the EU. Many
pan-Union measures are not adopted by representative institutions, and the
supranational character of the Union means that it is also concerned with
identifying and protecting the rights of the foreigner, who, by definition, is
88
Frank Michelman, Living with Judicial Supremacy, 38 WAKE FOREST L. REV. 579, 583 (2003).
89
Dieter Grimm, Constitutional Adjudication and Democracy in LIBER AMICORUM LORD SLYNN OF HADLEY
VOLUME II: JUDICIAL REVIEW IN INTERNATIONAL PERSPECTIVE (Mads Andenas ed., Kluwer, 2000).
90
Case C-70/88, Parliament v. Council, 1990 E.C.R. I-2041.
91
See Michael Dorf &. Charles Sabel, Drug Treatment Courts and Emergent Experimentalism
Government, 53 VAND. L. REV. 831 (2000); Judith Kaye, Delivering Justice Today: A Problem Solving
Approach, 22 YALE L. & POL’Y REV. 125 (2004); Russell Pearce, Redressing Inequality in the Market
for Justice: Why Access to Lawyers will Never Solve the Problem and Why Rethinking the Role of Judges
Will Help, 73 FORDHAM L. REV. 969 (2004).
92
Michael Dorf, Legal Indeterminacy and Institutional Reason, 78 N.Y.U.L. REV. 875 (2003).
93
See Case T-211/00, Kujer v. Council, 2002 E.C.R. II-485.
466
Institutions, powers, decision making and accountability
excluded from domestic decision-making processes.94 In all cases, there is an
adversarial relationship between the judiciary and the other branches of
government.
There is another dimension. With regard to certain fundamental values,
most notably in the field of nondiscrimination, the judiciary occupies a different
role. It acts in cooperation with the other arms of government by interpreting
legislation that fleshes out these values. Its role is that of giving fuller meaning
to legislative understandings of the good life and ensuring that these develop
in a principled manner that respects a particular vision of human freedom and
dignity (tandem rights).
5. The Union judiciary and the delivery of
judicial goods
The constitutional treaty leaves untouched the highly centralized preexisting
organizational structures for discharge of these responsibilities. The Union
courts claim exclusive responsibility for securing the autonomy of the Union
legal order, insofar as they claim a monopoly over the determination of the legal
effects and reach of Union law.95 They also have exclusive responsibility for protection of the republican constitution, as only they can review the behavior of
the Union institutions.96 This latter monopoly, in practice, also gives them a
monopoly on determining one of Union law’s two types of fundamental values,
namely, “constraining” values, which only enter Union law as principles of
judicial review constraining the actions of Union institutions and member
states that are implementing Union law. The Union courts in turn enjoy hegemony over provision of two other goods, legal certainty and those fundamental
values developed in tandem with the legislature. In principle, responsibility for
both is shared between the Union courts and national courts, as both rest on
judicial interpretation of substantive provisions of Union law. Realization of
these goods, however, lies not in the interpretation itself but in its subsequent
authority, namely, the extent to which other actors structure their conduct
around it. In that regard, the expertise, singularity and supranational qualities
of the Union courts give their judgments an authority over the substantive content of Union law that appears unmatched by any national court.
The justification given for concentrating so much responsibility in two
lightly staffed institutions is that the autonomy of the legal order, and the
goods that pertain to the existence and qualities of Union law, can only be
94
See Advocate General Poiares Maduro in Case C-327/02 Panayatova v. Minister voor
Vreemdelingenzaken en Integratie, Opinion of Feb. 19. 2004.
95
Opinion 1/91, 1991E.C.R. I-6079.
96
Case C-314/85, Firma Fotofrost v. Hauptzollamt Lübeck-Ost, 1987 E.C.R. 4199.
D. Chalmers
467
safeguarded through centralized structures.97 In its submission to the IGC on
the treaty of Amsterdam, the Court stated:
[I]t [the preliminary ruling system] plays a fundamental role in ensuring
the law established by the Treaties retains its Community character with
a view to guaranteeing that the law has the same effect in all circumstances in all the Member States of the European Union.98
Autonomy of the Community legal order requires, apparently, that all EU law
be given identical effect across the Union in all circumstances. This commitment
to uniformity requires detailed micromanagement by a single judicial authority.
In its submissions to the IGC that preceded the treaty of Nice, the Court stated:
Any reorganization of the preliminary ruling procedure on a national
or regional basis . . . involves a serious risk of shattering the unity
of Community law, which constitutes one of the cornerstones of the
Union. . . . Jurisdiction to determine the final and binding interpretation
of a Community rule, as well as the validity of that rule, should therefore
be vested in a single court covering the whole of the Union.99
The difficulty is that this is both unrealistic and unrealizable. Unity of interpretation does not mean that the highest court should provide rulings on every
provision. Within most national legal systems, higher courts with far widerranging jurisdictions guarantee the unity and ordered development of their legal
systems by setting out a number of steering judgments each year that define the
hallmarks of their legal order and guide other actors in the application of the
law. The British House of Lords, thus, gave seventy-two judgments in 2002,100
while in 2003, the French Conseil Constitutionel and the Italian Constitutional
Court, respectively, rendered twenty-eight101 and fifty-one102 substantive judgments. The ECJ, thus, overstates, what is required of a higher court in order to
secure the autonomy of a legal order. Also, by invoking the need to secure
“uniformity of application” to justify its jurisdiction, it raises false phantoms of
97
Court of First Instance, Reflections on the Future Development of the Community Judicial System 16
EUR L.REV. 175 (1991). See also Report of the Court of Justice on certain aspects of the application
of the Treaty on European Union (1995) [hereinafter Court of Justice Report]; See also Report of
the Court of First Instance on certain aspects of the application of the Treaty on European Union
(1995) [hereinafter Court of First Instance Report]; The Future of the Judicial System of the
European Union (1999).
98
Court of Justice Report, supra note 97, at point 11.
99
The Future of the Judicial System of the European Union, supra note 97, at 28.
100
Judicial Statistics 2002, supra note 18, at Table 1.4.
101
See Décisions du Conseil constitutionnel de l’année 2003. Available at http://www.
conseil-constitutionnel.fr/tableau/tab03.htm accessed June 10, 2004
102
See Recenti depositi delle pronunce, Corte costituzionale della Repubblica Italiana. Available at
http://www.cortecostituzionale.it/ita/attivitacorte/novita/novitaold.asp accessed June 10, 2004
468
Institutions, powers, decision making and accountability
non-compliance. Detailed studies of Austria, Spain and the United Kingdom
suggest that there is already a substantial unity of application of EC law.103 It
appears also that, in many areas, national courts require relatively few cases
from the Court to be able to apply EC law effectively. This is well illustrated by the
TUPE directive,104 a relatively complex piece of legislation that has only been
subject to twenty-four judgments by the ECJ since 1990, amounting to fewer
than two per year. It is, however, one of the pieces of legislation that has been
most frequently and successfully applied before British courts. In the decade
1988–98, there were fifty-eight reported cases. Only one was referred, but
employees successfully claimed their rights in 57.1 percent of cases, and there
were only four cases that, by any measure, involved narrow or restrictive interpretations.105
The consequence of the Court’s false reasoning is that it is impossible for
the Union judiciary to realize any of the goods entrusted to it by the constitutional
treaty, notwithstanding the qualities and expertise of the personnel involved.
5.1. Legal certainty and legal autonomy
The utility of the Court is measured in part by its legal coverage. If only a fraction of Union law is subject to extensive case law, the judicial contribution to
legal certainty is marginal. The Court’s utility will also be judged by the extent
to which it enables parties to order their practical everyday lives. Significant
case law is unhelpful if it does not provide sufficient detail or clarity. The challenge facing the judiciary, therefore, is to develop a corpus of doctrine based
upon universality, clarity, and detail.
The two Union courts gave 417 judgments in 2003.106 Excessive concentration of case law in narrow areas has affected the quality of the law in
these areas. Local context is emphasized at the expense of general principle,
as parties seek further refinements applicable to their particular situation.
Areas that see high levels of litigation before the Union courts are characterized, as a consequence, by case law that is highly contradictory,107 extremely
intricate and detailed,108 or seems oblivious to its wider implications.109
103
Supra notes 33–35 and accompanying text.
104
Council Directive 77/187/EEC, 1977 O.J. (L 61/26).
105
Chalmers, supra note 34 and infra notes 180 & 198.
106
This figure excludes orders and interlocutory measures. See Annual Report of the Court of
Justice 2003 217 & 240 (2004).
107
The case law on the regulation of gambling and Article 49 EC has changed with every judgment. But see Case C-243/01, Gambelli, Judgment of Nov. 23, 2003.
108
109
What constitutes discriminatory internal taxation for the purposes of Article 90 EC?
The recent case of Case C-9/02, de Lasterie, Judgment of Mar. 11, 2004 is widely seen as having
destroyed Member States’ capacity to levy corporate taxation, as it renders almost all controls on
tax avoidance through transfer of fiscal residence incompatible with Article 43 E.C.
D. Chalmers
469
This concentration of resources leads, as well, to a weakening of the judicial
contribution to legal certainty in other areas. The backlog can cause national
courts not to refer cases that could have established important new general
principles or oriented activities in areas characterized by high uncertainty.
Alternatively, even when these cases are referred, they can end up waiting in
the docket behind other less groundbreaking litigation. The ECJ’s RTL judgment is an example.110 The judgment was the most important yet given by the
Court on the broadcasting directive (89/552/EC), since it concerned limits on
the amount of advertising that could be bought on television. It also contained
the ECJ’s most detailed examination of the principle of freedom of expression,
and Court’s first explicit endorsement of the Charter of Fundamental Rights.
The case was, however, on the Court’s docket for more than two years before it
was heard.
As the central problem is the quality of the docket, increasing output
merely exacerbates matters and generates further side effects, the most notable
of which is the challenge of internal coordination posed by the proliferation
of chambers within the Union courts. In 2003, chambers of five accounted
for 55.03 percent of all cases given by the Court, and chambers of three for
20.6 percent.111 With so many different bodies giving so many judgments of
equal authority, there is an increasing danger that the ECJ will give conflicting
signals. An inkling of this has been witnessed in recent months in connection
with the relative weight to be given to the Charter on Fundamental Rights and
the European Convention in Human Rights (ECHR) in the fundamental rights
law of the Court. The ECJ has given predominant weight to the ECHR in the
case law, observing that it has “special significance” as a source of law in this
area.112 However, the Court of First Instance, the primary Community administrative court, has moved in a direction where, increasingly, it views the charter as the predominant source of law in this field.113
5.2. The failure to protect the republican constitution
While the Union courts have many of the formal powers of constitutional
courts, they do not have the latter’s broader substantive authority vis-à-vis
administrative institutions or the wider legitimacy. And while they have shown
themselves equipped for the micromanagerial tasks of administrative review,
they have not engaged significantly in legislative review, nor is it clear they
110
Case C-245/0, RTL v. Niedersächsische Landesmedienanstalt für privaten Rundfunk, Judgment
of Oct. 23, 2003.
111
Statistics of the Judicial Activity of the Court of Justice 2003, at 6, available at
http://www.curia.eu.int/en/instit/presentationfr/index.htm.
112
113
Case C-94/00, Roquette v. Commission, 2002 E.C.R. I-9011.
Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01, Phillip Morris et al v.
Commission, 2003 E.C.R. II-1.
470
Institutions, powers, decision making and accountability
have the authority to do so. For legislative review involves second-guessing the
measures taken by representative institutions affecting a wider array of actors,
and draws courts into legislative politics by requiring them to take politically
salient, comprehensive positions about the nature of the polity. If this is a politically challenging task for domestic constitutional courts, the failure of the
Union courts to undertake it suggests that it would be political suicide for a
supranational judiciary. The problem is particularly acute with regard to the
control of a concentrated and centralized power. To date, there has not been
one example of the Court striking down a measure because it violates the
subsidiarity principle. More generally, it is not clear that the Union courts even
have the formal tools necessary to achieve this should they wish to be more
courageous politically, for EU administrative power is increasingly fungible.
Institutional innovation has made available a variety of procedures and institutional alternatives by which to achieve the same goal, with the different
procedures becoming increasingly interchangeable. Some of these operate
within the formal jurisdiction of Community courts, while others, such as
the Open Method of Coordination (OMC), do not.114 A restriction on one
procedure merely leads to national governments using other means that are
less susceptible to judicial review and, usually, less transparent.
5.3. Judicial bias and fundamental values
The European courts’ capacity to constitute themselves as a repository of fundamental values is hindered by a problem of structural bias generated by the
dual dynamics that generate fundamental rights within Union law. These
dynamics result in the EC jurisprudence being very thick in some areas but
much thinner in others, a giant in the development of socioeconomic rights
but a pigmy in the development of civil rights.
Lacking a general human rights competence,115 the ECJ has a very limited
influence over the development and protection of first-generation civil liberties.
These are not freestanding rights, but can only be invoked as a basis for judicial
review of acts of EU institutions or member state actions that fall within the
purview of EC law.116 In practice, these rights are rarely invoked against member
states, so the central arena of application for these values has been as grounds of
judicial review in direct actions against EU institutions, with litigation usually
being instigated by an EU institution or a national government, neither of which
has a strong interest in arguing for a systematic expansion of values, which,
114
The Open Method of Coordination is a policy process established at the Lisbon European
Council in March 2000. Structured around an intergovernmental system of benchmarking and
peer review, it operates outside the formal treaty structures. See generally E.U. Bulletin 3–2000, I.7.
For more on the Open Method of Cooperation see Gráinne de Búrca, The Constitutional Challenge of
New Governance in the European Union (2003) 28 EUR. L. REV. 814 (2003).
115
Opinion 2/94, 1996 E.C.R. I-1759.
116
Case C-260/89, ERT v. DEP, 1991 E.C.R. I-2925.
D. Chalmers
471
when it occurs, invariably restricts administrative action. Landmark civil liberties
challenges are rarely brought before the Community courts. The various administrative interests pleading their case—be they national governments, the Council
or the Commission—also ensure a prevailing culture of respect for administrative
discretion that makes it difficult for the Court to develop these liberties in an
aggressive manner.117 The one exception to this motif concerns the rights of
defense and due process, on which a jurisprudence has developed through large
undertakings challenging Commission fines or decisions.118 In such cases, arguments based on procedure rather than substance have stood the best chance of
overturning a decision, and so claimants have repeatedly hammered this line of
attack.119 With this exception, the case law is otherwise weak. In recent times,
the development of rights jurisprudence has been further constrained by the
increased authority granted to the ECHR by the Charter, by virtue of the latter’s
requirement that nothing in it is to be interpreted as restricting or adversely
affecting the content of the rights in the Convention.120 This has led to a reticence in the Court’s case law in this area. Its recent judgments do not articulate
new principles or values, but are characterized instead by a “cut-and-paste”
reliance on the case law of the European Court of Human Rights.121 If the latter
takes an expansive view of a particular liberty, this will be reflected in Union law.
Likewise, if it takes a restrictive approach, this too will be determinative of Union
law.
The institutional context for the development of socioeconomic rights is
very different from that of first-generation rights. The ECJ has been granted full
powers to develop and expand socioeconomic rights, as these form substantive
117
There is, thus, not one instance of an EC Directive, the purest form of legislative instrument,
having been found to violate a fundamental right.
118
Both courts have developed them. They include the right to be heard in one’s own defense
before any measure is imposed, Case 17/74 Transocean Marine Paint [1974] ECR 1063; the right
to legal assistance and the right to confidentiality of all lawyer-client communications prepared
for purposes of defence, Case 155/79, AM & S, 1982 E.C.R. 1575; the right to diligent and impartial investigation, Case T-54/99, Max Mobil, 2002 E.C.R. II-313; the right of access to one’s file,
T-42/96, Eyckeler & Malt, 1998 E.C.R. II-401; and the right to protection from self-incrimination,
Joined Cases 374/87 & 27/88, Orkem SA & Solvay, 1989 E.C.R. 3283.
119
The two biggest challenges to Commission fines on cartels in 2004 both hinged on breaches of
the rights of defense, Case T-44/00, Mannesmannröhren-Werke v. Commission, Judgment of July 8,
2004; Case T-48/00 Corus UK v. Commission, Judgment of July 8, 2004; Case T-50/00 Dalmine v.
Commission, Judgment July 8, 2004; Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE
Engineering v. Commission, Judgment of July 8, 2004; Joined Cases T-236/01, T-239/01, T-244/01
to T-246/01, T-251/01 and T-252/01 Tokay et al. v. Commission, Judgment of Apr. 29, 2004.
120
121
C.T. at art. II-113.
Case C-109/01 Akrich v. Home Office, Judgment of Sept. 23, 2003; Case C-245/01 RTL v.
Niedersächsische Landesmedienanstalt für privaten Rundfunk, Judgment of Oct. 23, 2003; Case
C-117/01 KB v. National Health Service Pensions Agency, Judgment of Jan. 7, 2004; Case
C-71/02 Karner v. Troostwijk, Judgment of Mar. 25, 2004.
472
Institutions, powers, decision making and accountability
provisions of EC law, either by virtue of the economic freedoms in the EC treaty
or by virtue of EC secondary legislation. As second-or third-generation fundamental rights, they are virtually untrammeled by case law from national constitutional courts or international human rights tribunals. Even more
fundamentally, the structure of the docket pushes for an expansive interpretation. The delays and contingencies of litigation before the central courts have
resulted in their dockets being dominated by two kinds of litigant: those interested in judicial politics, whose central interest in litigation is legal reform, and
those interested in regulatory or fiscal politics, who use litigation not for compensation but to reconfigure the terms of their enduring relationships with
regulatory or fiscal authorities.122 Litigation of fundamental socioeconomic
rights is used by discontented constituencies that are, otherwise, too isolated to
mobilize change domestically, to overturn national legal, fiscal and regulatory
regimes. The challenges are sustained and one-way; only concomitant domestic crises precipitate occasional counter-pressure.123 Were the Court to accede
to 10 percent of these challenges, the result would be an expansive and highly
ideologized case law on socioeconomic rights. One finds a high level of welfarist interventionism in its equal opportunities case law, such that its sex discrimination jurisprudence has been in the vanguard of women’s employment
rights in Europe. By contrast, its case law on economic freedoms sits at the
other end of the ideological spectrum, anchored around expansive principles
of market liberalization and deregulation.
6. Conclusion
It would be ironic if the unprecedented demands placed on the Union judiciary
by the constitutional treaty were to generate the next institutional crisis within
EU law. The Union courts will be cursed with receiving precisely what they
requested. Given the systemic nature, salience and scale of the problem, a crisis
will inevitably arise unless the European Union judicial community reconstructs
itself so as to fulfill its constitutional responsibilities more effectively, equitably
and efficiently. If it fails to do this, there is a danger that other, nonjudicial, actors
will seek to resolve the institutional crisis for it. The changes they propose may
be the very antithesis of constitutionalism in that they are likely to be reactive,
ad hoc, and dominated by arguments far removed from legal reason.
122
Between 1994–1998 this accounted for 66.35% of all references from the United Kingdom.
See Damian Chalmers, The Much Ado About Judicial Politics, Jean Monnet Working Paper No
1/2000, at 34.
123
The reaction to the extension of Article 28 EC to cover restrictions on Sunday trading is
most notable. Richard Rawlings, The Eurolaw Game: Some Deductions from a Saga, 20 J. OF L. &
SOC’Y 309 (1993).