The Court of Justice of the European Union (CJEU) has assumed an important role as the Community legislator: its historic and breakthrough judgments are prised for diffusion of new integrationist ideas contained in the Treaties. It has been widely accepted that the Court’s unique interpretative approach to the Treaty provisions alongside its judicial creativity promotes the development of an ‘ever closer union’. Reading through the Court’s jurisprudence one could wonder: why does the highest court of Europe employ such unique judicial vision of integration and how does it arrive at its ground-breaking decisions?
The book by Gunnar Beck sets to address these questions and reveal how the Court actually arrives at an integrationist resolution of interpretative disputes in EU law, and which underlying motives, factors and constraints lie beneath its judicial behaviour. The study seeks to provide a framework for assessing the reasoning of the Court of Justice and explaining its general interpretative tendency. Beck approaches the issue in two stages: by first developing a new heuristic theory of legal reasoning in Part I outlining a general framework of judicial decision-making, and then applying this theoretical framework in Part II which critically analyses the interpretative approach of the Court as revealed in its judicial argumentation and actual decision-making.
In five chapters of Part I Beck seeks to examine which framework of legal reasoning – scientific or heuristic – is more appropriate for setting a better model for understanding the judicial reasoning and decision-making of the Court. For the purpose of analysis the distinction between hard and clear cases, between primary and secondary legal uncertainty, and between primary and secondary legal justification is of great importance. Chapter 1 outlines a general theoretic framework drawing a distinction between the two models of legal reasoning. First, the scientific approach (pursuant to formalistic legal theory) is analysed. It is revealed that the scientific approach implies that all legal problems have one right legal answer which could be predicted if the right method is applied (p.19).
Pursuant to the scientific approach there exists a specific ‘legal method’ or ordered set of strict (scientific) rules, while legal justification consists of two levels of primary and secondary or interpretative level (p.22). At the first level a legal rule must be identified and applied to the facts at issue – if the case is clear and the meaning of the rule is unambiguous the decision could be achieved by simple logical deduction. If, on the other hand, the case is hard, the meaning of the rule is unclear or there is doubt in its applicability to the facts at issue, the secondary level of legal justifications is required, which seeks to resolve the problems identified at the first level, such as norm conflict, linguistic vagueness and norm pluralism. This scientific approach is then set against the heuristic legal reasoning which ‘throws the doors of enquiry wide’ by denying that there could be any ‘one magic formula’ which would allow for arriving at right judicial decisions (p.25).
The heuristic approach is realistic, or problem-oriented, and implies that there are a number of various collectively acceptable legal interpretative arguments, or topoi, which are used in terms of legal justification. The heuristic legal reasoning assumes that the law could be indeterminate while judicial behaviour is subject to broad variety of ‘steadying’ factors, both legal and extra-legal, which influence how judges arrive at a particular decision. Beck describes several ‘steadying’ factors such as normative constraints of law, external professional and institutional constraints, political fashion or institutional ethos, emphasising that hierarchical structure of the court system and prospects of judicial criticism exert a powerful steadying effect both in other higher courts and the ECJ (p.35).
Chapter 1 concludes that since in reality there are no ideally-clear cases due interpretative problems in law, the scientific approach which implies predictability and determinism ultimately remains a ‘mirage’ (p.49). This finding is further supported by analysis of the major sources of primary legal uncertainty, such as linguistic vagueness (Chapter 2), value pluralism (Chapter 3), uncertainty of precedents and ‘no law’ situations (Chapter 4) and by analysis of the secondary legal uncertainty stemming from interpretative rules and criteria employed to resolve primary legal uncertainty (Chapter 5). By referring to various international human rights conventions and relevant cases (Chapters 2 to 4), Beck has shown that linguistic vagueness and value pluralism are major sources of judicial discretion. In Chapter 5, Beck focused on analysis of techniques employed by the courts to address the problems of legal uncertainty at both primary and secondary levels. Beck has demonstrated that since the secondary level of judicial interpretative argumentation cannot itself escape the problem of legal certainty, the possibility of scientific approach to legal reasoning in such cases appears ‘illusory’ (p.139).
Since the problem of legal uncertainty is incapable of solution, Beck arrived at the conclusion that the heuristic approach is a more realistic alternative to scientific view of legal reasoning: alongside its concept of reckonability, employment of topoi and steadying factors, it could be more suitable for understanding the legal reasoning and judgments of the Court of Justice than the scientific view which ‘is based on an illusion’ (p.156). Having developed the new heuristic theory of legal reasoning and applying it to critical analysis of the judicial reasoning of the Court of Justice, Beck demonstrates that EU law and legal reasoning of the CJEU conform to heuristic theory laid down in Part II of the book.
The framework previously developed in Part I is now applied specifically to EU law to reveal its inherent legal uncertainty that stems from political compromises. By referring to the relevant case-law and treaty provisions, Chapter 6 illustrates that much of EU primary and secondary legislation, as well as judge-made principles of EU law are characterised by a high degree of conceptual vagueness and pervasive value pluralism. The legal uncertainty inherent in the EU Treaty has left the CJEU with wide discretion on how to shape its judicial vision of European integration. In following Chapters 7 to 11 Beck demonstrates the Court’s approach to resolving the linguistic and norm uncertainties stemming from the Treaty provisions.
Chapter 7 demonstrates that the Court’s interpretative argumentation is also subject to conceptual vagueness, so when applied to resolve the primary legal uncertainty it is often in itself legally uncertain. The chapter has shown that the CJEU employs the wide discretion imposed on it via legal uncertainty of primary and secondary legislation allowing for an expansive interpretation based on ‘ever closer union’ objective contained in the preambles of the EU Treaties. Chapter 7 concludes that generally the Court broadly applies the same types of arguments as other national higher courts. Chapter 8 discusses the importance of precedents (which also serve as steadying factors) in the CJEU’s interpretative approach and reveals that whilst formally, EU law has no binding concept of precedents, the Court de facto recognises and refers to the extensive body of ‘common law’ of the EU legal order that it has created over the years.
By employing examples from EU case law, Beck demonstrates that the Court employs the a three-stage method of interpretation, which could be described as fused, or cumulative approach, comprising systemic, purposive and literal arguments (Chapter 9). The foresaid cumulative interpretative approach is characterised by a restricted inbuilt communautarie predisposition which the CJEU employs in most cases, alongside integrationist topoi such as general principles of supremacy, direct effect and objectives of the free market and fundamental freedoms (Chapter 10). At this point the study reveals the Court of Justice follows its institutional character as a ‘guardian’ of the Treaty and ‘EU legislator’ with an aim of developing the meta-objective of ‘an ever closer union’. However, the Court’s discretion in choosing between several outcomes which would lead to different levels of integration, is restrained by availability of certain steadying factors such as limits of legal argumentation, its own previous decisions and ‘extra-legal’ factors, such as political and budgetary sensitivities of Member States (Chapter 11).
Overall the book arrives at the conclusion that the CJEU’s approach to legal reasoning is very similar to the more orthodox approach employed by higher national courts, yet the Court is left with much wider discretion due to the linguistic and norm uncertainty of EU primary level legislation. The book concludes that the Court of Justice of the European Union has its own institutional interests and constraints which have a bearing on the outcome of judicial decisions. Given the complexity of the subjectmatter Beck’s approach could be distinguished as being particularly well structured and comprehensive. While reading the book one realises that the author has a solid understanding of theory behind legal reasoning from both scientific and heuristic accounts. The book explains complex issues from a theoretical point of view, but illustrates its positions through extensive EU case law and excellent illustrative examples.
The book is complete and straightforward and raises a number of timely issues while giving the reader an idea of the workings behind legislative practices of the CJEU. The book is also a good guide to EU cases on the subject of integration and development of the Treaty provisions, given their variety and extensive treatment. This is a very pleasant work to read, both interesting and very up-to-date. The book will certainly be of use to all concerned with theory of legal reasoning, EU law and operation of the Court of Justice of the European Union.
The Legal Reasoning of the Court of Justice of the EU, Jan 2013, Hart Publishing