Judging Europe’s Judges is a fascinating volume that addresses the legitimacy of the case law of the Court of Justice of the European Union. It would be of particular interest to those working on the ‘hard cases’ recently decided by the CJEU, but also more generally to anyone interested in European law.
An increasingly interconnected world, successive waves of enlargement, and the entry into force of the Lisbon Treaty have given rise to a European Union that is more heterogeneous than ever before. This heterogeneity is also reflected by the cases the Court engages with. As the editors state in their introduction:
‘adjudication has nowadays become more challenging than ever before, since the law is increasingly interlinking different sets of interests, so as to address ever more complex societal problems and issues. As a result, in individual cases, courts can no longer confine themselves to applying the legal rules as established by the legislator.’
They conclude that as a consequence, the process of adjudication needs to be of a dynamic nature. The increased complexity of the CJEU’s adjudicatory task constitutes the guiding theme, linking together the papers of the various commentators. Separate contributions study the interrelated challenges faced by the Union’s highest Court in zooming in on four relatively large themes: the general principles of European Union law, the EU’s external relations, the internal market, and EU citizenship.
Lenaerts, the Court’s current Vice-President, starts the discussion off by introducing the Court as the ‘constitutional umpire in a multilayered system of governance.’ He then provides an interesting account of what he refers to as ‘external legitimacy’: the relation between the CJEU and the EU legislature; and ‘internal legitimacy’: the relation between the Court and Member States.
In examining the Court’s internal market case law, Weatherill establishes that a court ‘does not act legitimately if it strays beyond the proper role of the judge by intruding on the political sphere’, noting that this is, however, more easily said than done. What is interesting to note – and what I will come back to again later – is that Weatherill pronounces himself in favor of dissenting judgments, an issue also addressed elsewhere recently. He argues that such a practice could allow for more scrutiny of the reasoning of the Court.
Snell examines the legitimacy of the free movement case law, noting the complicated position of the CJEU as both a court and a EU institution. Dougan’s analysis focuses on a controversial line of recent judgments that relate to the free movement of EU citizens, whereas Thym engages with judicial construction of EU citizenship, documenting the conceptual and constitutional implications of these decisions on horizontal and vertical power-sharing arrangements in the EU. Denza provides an account of how the CJEU’s legitimacy can be examined from an international law perspective. Bobek adopts an interesting point of view on the CJEU’s legitimacy: that of national judges. He explores the idea that it is indeed the posture of national courts that should measure the legitimacy of the CJEU’s decisions rather than Member States or EU citizens. Mazák and Moser address a decision that could not be missing from any discussion of the Court’s legitimacy given the number of debates it has triggered –the Mangold case.
In this epilogue, Weiler notes that legitimacy is one of the ‘most underspecified concepts in political theory and social science’ but that despite this fact, the volume is timely and important – a view I’d immediately sign on to. At the end of his epilogue, Weiler usefully exposes some structural issues that could compromise the CJEU’s institutional authority. In discussing these matters, Weiler also endorses the practice of dissenting opinions on the Court (noting however the inimical nature of doing so as, as things currently stand, CJEU can be reappointed).
Although the book offers deeply interesting substantive analyses of the CJEU’s case law that cannot be engaged with in as little space as this book review allows for, I will spend a few lines elaborating on the institutional question of whether dissenting opinions could help further the CJEU’s legitimacy.
Whereas this possibility seems to be gaining support from esteemed scholars, the consequences of this practice – in the EU context – remain largely undertheorized. Whereas it is not certain how realistic the perspective of having dissenting opinions is, it seems to me that – especially its so-called hard cases – one could expect that they render the CJEU’s reasoning more accessible and provide useful contributions on tricky issues of EU law and integration. Dissenting opinions could further be expected to facilitate debates between different courts – including the ECtHR – within the European legal space. However, at the same time it remains largely unclear how national jurisdictions would approach these opinions, and arguably, a certain ‘cult’ around different personalities at the Court could, for better or for worse, develop, along the lines of what can be observed in respect of the U.S. Supreme Court (even though this does not seem to have happened with regard to Advocate Generals). In any case, the debate around dissenting opinions on the Court seems to be one worth having, in addition to the many interesting substantive accounts on legitimacy that the different authors of the book provide.