Gerard Conway’s thought-provoking study starts from the familiar distinction between the familiar two broad types of judicial interpretation: the literal or originalist versus the purposive or teleological approach. The Court of Justice of the EU, Conway argues, relies on the second type to a greater extent than most other courts. More specifically, he demonstrates that the Court of Justice has shown a marked tendency towards a meta-teleological approach by which the Court is less concerned with specific objects and aims of legislation or specific treaty provisions but refers to the purposes of the EU treaty order at a very high level of systemic unity. This has favoured and enhanced the tendency toward further integration and harmonisation in Union law.
Conway does not commit himself to the view that the Court adopts a markedly different approach from most others courts in all, or even most cases; rather the Court’s meta-teleological approach has been most evident in a relatively restricted number of key cases concerned with the division of competences between the Union and Member States, which have had a disproportionate and absolutely crucial effect on the development of Union law. Through the development of a de facto doctrine of precedent the Court has reproduced and entrenched the key principles laid down in these fundamental ‘constitutional’ cases throughout the entire body of Union law. As a result, it has driven the borderline between Union and national law far more deeply into the realm of national competences than many of the original founding fathers, or at least the signatories, of the Treaties might have anticipated or than many of the peoples of the EU would voluntarily endorse if they were given the choice on the scope and limits of EU law in their own jurisdictions.
Conway maintains that this is problematic from the viewpoint of democracy which remains the ‘official’ justificatory cornerstone of the both national political systems and the EU itself. Courts, he reminds us, are not democratically endorsed, and where they are asked to interpret treaties or legislation they should be guided above all by the actual language of the words used. Judicial independence in this context, he is adamant, should not be confused with unrestrained judicial power. Instead, courts are, or perhaps should be, constrained by the ‘objectivity’ of the law. Conway’s hopes in this regard might be a touch over-optimistic, but he is surely right when he warns that every step away from the ordinary meaning of legislation is a dangerous one as it is also a step away from the language adopted or endorsed by democratically accountable bodies.
Conway’s book does not purport to be comprehensive nor to trace the Court’s approach in most areas of Union law. Instead, he focusses on a number of case studies across select areas of law. He convincingly shows that in those key cases, as indeed in many others, the Court enjoyed very considerable discretion or a wide margin of choice between alternative interpretative solutions and thus between very different outcomes. The Court’s meta-telelogical approach has meant that it has generally favoured an integrationist outcome. Had the Court adopted a more literal approach the outcome would have been different in many cases. The overall impact on the development of Union law would have been decisive. The Court’s integrationist predisposition, Conway argues, is evident at many levels: not only at the level of meta-teleology, but in the choice it commonly has in statutory interpretation between several potentially relevant interpretative criteria and between different levels of generality when laying down or redefining a judge-made rule. The reason for this lies in the fact that judicial interpretation, whether by the Court of Justice or any higher or constitutional court, lacks clear interpretative criteria and a strict hierarchy governing their application. It follows that judges always enjoy discretion. The Court of Justice, Conway clearly believes, exercises that discretion strongly and consistently in one direction: the promotion of further EU integration.
Conway’s study is timely, well argued, intelligent and provocative. In my view, anyone interested in the question of how the Court of Justice approaches its judicial function and how it justifies its decisions would profit from engagement with it. Conway’s conclusions might be controversial, but they have to be taken seriously, and he provides powerful evidence and observations to substantiate his views. At the same time, Conway’s study takes a few things for granted, and this might be the place to spell out some of the assumptions which highlight important features of legal reasoning and its limits. For those limits are often not confined to the specific approach of the Court of Justice. Indeed, that approach might have more in common with that of other courts than Conway might be taken to suggest.
Legal uncertainty is a pervasive and inescapable feature of primary legal materials and judicial reasoning alike and has its origin in a combination of linguistic vagueness, value pluralism, ‘gaps in the law’ and rule instability as a specific source of uncertainty which is associated with precedent. Legal uncertainty is not only a common feature of all primary legal materials including judge-made rules, but an inescapable feature of the process of judicial interpretative argumentation which is designed to, or purports to, resolve primary legal uncertainty through the application of techniques and criteria of statutory and case law interpretation. The application of these techniques and criteria, however, cannot escape, and is itself governed by, uncertainty. That uncertainty is not merely contingent.
The EU treaty framework and much of the secondary legislation made under successive treaties embody political compromises which are characterised by a high degree of conceptual and norm uncertainty in EU law. Conway emphasizes norm collision as a feature of EU law, which reflects the fact that the EU treaty framework and much of the secondary legislation made under successive treaties embody political compromises, whereby the EU Member States effectively left it to the Court of Justice to find the best interpretation of European integration evolving over time. Detailed analysis of the Court’s case law suggests that in that process the Court of Justice’s reasoning does not differ fundamentally from that of other higher courts, especially higher constitutional courts, in that the Court relies on broadly the same kinds of interpretative arguments and techniques of case law interpretation as national constitutional courts in particular. In general terms, the Court of Justice’s interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher courts only in degree.
In Conway’s view the Court of Justice attaches comparative less conclusive status to literal arguments than almost all other higher courts. The ordinary meaning of statutes is often conclusive in national law; the Court of Justice too attaches considerable importance to it; but ordinary meaning is somewhat less likely to be conclusive in Union law and somewhat more likely to be displaced by purposive considerations in the deliberations of the Court of Justice. The Court’s tripartite interpretative approach allows that Court to justify its decisions by reference to the literal, teleological and systemic criteria of legal argumentation, with no automatic primacy accorded to literal arguments, although this does not mean the Court will lightly depart from the clear meaning of treaty or legislative provisions. In part the nuanced difference in the judicial approach of the Court of Justice and most national courts can be accounted for in terms of the specific features of the primary materials of the EU legal framework. At the same time the tripartite approach leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court’s exercise of that discretion in turn can be best understood in terms of the combination of constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors influencing the Court’s underlying motivation, such as sensitivity to Member States’ interests, political fashion and deference to the ‘EU legislator’. Case law analysis across most areas of EU law suggests that the ECJ has used its interpretative discretion to resolve norm pluralism and vagueness in the Treaties broadly in favour of the meta-objective or overall goal of ‘ever closer’ union objective of the EU Treaties through the dual mechanism of promoting the uniform application of EU law combined with the incremental extension of equal treatment for EU citizens, subject, however, to i.) regard to the political, constitutional and budgetary sensitivities of Member States, ii.) depending on the constraints and extent of interpretative manoeuvre afforded by the legal uncertainty of the case in issue as determined by the degree of linguistic vagueness of the provisions in question, the relative status of and potential conflict between the applicable norms, and the clarity and hierarchical ordering between the second-order interpretative methods designed to resolve first-order legal uncertainty, and, finally, iii.) bearing in mind the largely unpredictable personal element in all adjudication. Conway’s book does not state its conclusions in exactly these terms, but they might be said to be implicit in his analysis or a logical progression or detailed elaboration of what he says with one proviso.
Conway makes a very convincing case that the Court of Justice’s decision-making is characterized by a strong communautaire tendency; what, perhaps, he fails to appreciate is that over many decades the Court has shown remarkable political acumen. It often starts tackling a key issue with a strong integrationist claim by laying down a radical theoretical principle – an integrationist stance in theory which may well be combined with a degree of deference to Member States on the exact facts in the case. In subsequent cases the Court then often fine-tunes its approach: its overall direction remains integrationist but the Court retains flexibility to modulate or adjust its decisions on a case by case basis. There is no doubt that Conway’s arguments will repay close study. Given the complexity of the subject-matter and many of the issues it is remarkably accessible and clearly developed.
Conway favours an originalist or literal interpretation as laws and treaties are agreed by national governments which are democratically accountable. Judges are not. A ‘creative’ judicial approach is more likely to depart from legislative intention than an originalist approach, for as long as it is assumed that legislators had a more or less correct understanding of the language in which they couched the laws they passed. At the same time, however, and this Conway neglects, national political processes seem almost as undemocratic as judicial decision-making; governments rarely do what even majorities in their own countries want, and popular participation is minimal and at best reactive anywhere outside Switzerland.
Which facet of the comprehensive lack of democratic accountability will ultimately be more problematic: the apparent lack of electoral choice at national political level or the lack of democratic control over potentially activist or interpretatively ‘creative’ judicial bodies?, is a question which is difficult to answer. For they often are closely related. An ideal illustration of this fact is the ‘synchronised’ politico-juridical reaction to the announcement by ECB President Draghi-avelli in August 2012 that the ECB will engage in unlimited purchases of government bonds from the embattled Eurozone members. Despite the evident unlawfulness of the ECB’s actions, the German and other national governments as well as the European Commission have made clear that they have no intention of initiating proceedings against the ECB before the Court of Justice. Where there is no plaintiff, the law can be ignored without impunity. The reason for the effective suspension of the rule of the law in the EU since the outbreak of the euro debt crisis, has not been judicial creativity or bias by the Court of Justice; it resulted from deliberate and persistent breaches of the law by the Member States and their determination to turn a blind eye to Draghi-avelli’s step by step plan for the lirafication of the euro in flagrant breach of the price stability and ‘no printing money’ clauses of the EU treaty framework.
Conway does not give the degree of consideration to the anti-democratic nature of much of national politics that perhaps that malaise deserves. Yet, his reservations about the dangers of judicial politics deserve to be taken seriously.
The German Constitutional Court recently gave a powerful demonstration of judicial bias and deference to the executive and political correctness when it in effect decided in its ESM judgment of 12 September 2012 that unlimited liability for the debts of other eurozone members was somehow compatible with the constitutionally protected budgetary autonomy of the German Bundestag provided the Bundestag itself voted to accept such liability. It is a little known fact that German constitutional judges are appointed on the recommendation of the mainstream political parties. The leading German business daily Handelsblatt noted in the wake of the judgment that the Constitutional Court’s President, Judge Voßkuhle, is on record as calling for the restriction of constitutional complaints by individual applicants. It also reported that he retains his chair at Freiburg University and remains a member of the governing body of that university’s foundation governing council – together with finance minister Schäuble and EU Commission President Barroso with whom he has shared a close working relationship for many years and continues to do in his ‘impartial’ judicial capacity. And the British Guardian has revealed that there ‘have been strong suggestions of at least one high-level meeting between the government and the court’ in the run up to the judgment, including ‘speculation that the two bodies might have worked closely on a face-saving solution.’ The judgment had been ‘agreed’ before 22 August when most of the judges departed for a holiday from the reality of their hard work on behalf of the government; as the Süddeutsche Zeitung revealed on 7 September, even the contents of judgment was known in Berlin and amongst foreign political leaders and investment bankers including those at Goldman Sachs well in advance. Constitutional law in Germany, sadly, seems to be the justification of government policy by normative means.
In a little noticed passage at para 278 in its ESM judgment the German Constitutional Court has stated that bond buys by the ECB are unlawful as a form of state finance whether the ECB buys the bonds directly or on the secondary market. The ECB’s bond buys are in fact the subject of ongoing litigation before the Constitutional Court. The Court clearly has jurisdiction to rule on the issue in so far as it has always asserted its Kompetenz-Kompetenz to review any act by an EU institution for compliance with the German Constitution and how the Court thinks EU law should be interpreted in view of German constitutional law. There is no doubt, however, that the Court will refuse to bite again when asked expressly to rule against the ECB for two reasons: the ECB is creating a fait accompli, and the Court is not independent. In early October 2012 the Handelsblatt wrote that President Voßkuhle had hinted that his Court is likely to delay its judgment on the ECB’s actions until next year due to other urgent business and lack of judicial time. While visiting Oxford in October 2012 Voßkuhle – who lacks time to consider the actions of the ECB but has no trouble making himself available to student societies and social dinners at UK universities – let down his guard when he admitted his Court will simply postpone its ruling until the ECB has embarked on a policy of no return or refer to the matter to the ECJ directly or indirectly. UP TO
In matters of political sensitivity, courts usually heavily lean on justice. The Constitutional Court’s ESM judgment is merely the most recent and obvious example in a long list of compliant judgments by that Court. The Court patently departed from its own previous principles and the idea of budgetary sovereignty as the constitutional keystone of national independence, but its judicial creativity went hand in hand with deference to the executive. What Conway does not fully convey is that the EU integration has been driven not only by judicial activism but by the acquiescence, and at times overt contempt for democratic principles by national governments. There are three aspects to the integration process. First, the integrationist predisposition of the Court of Justice. Secondly, the failure of national constitutional courts to take themselves, their national constitutions and the law itself seriously. But judicial disregard for the law is one failure of the political systems we live under. The other is the persistent failure of governments to take their own citizens seriously. Conway’s highly intelligent book provides an excellent entry to the study of the decision-making of the Court of Justice. He shows that the Court has a predisposition towards a meta-communautaire reading of the treaties in those cases where it matters most.
Dr Gunnar Beck, Reader in EU law and Legal Theory at SOAS, University of London.
 Draghiavelli’s assertion that such buys could be justified as monetary policy, is easily refuted: monetary policy cannot be ‘conditional’ on fiscal control over Member States’ budgets; the bond buys must not be selectively aimed at only a few eurozone members; they must not be a source of government funding; they must not place the central bank in a position where it becomes the hostage of governments from whom it has bought so much debt that it can no longer allow the government to default lest that default wipe out the bank’s own capital base; and the ECB is effectively printing money contrary to both Articles 123 and 127 TFEU. Contrary to Draghi-avelli’s assurances printing money will ultimately cause inflation including asset price inflation, unless the eurozone languishes in stagflation for many years to come.