“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.
But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?
We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.
Broadly speaking, there are two options for EU reform in response to the Leave victory: ‘more Europe’ or ‘less’. Which should it be?
‘More Europe’—for example, reforms to create fiscal-political union and further citizen participation at the EU level (perhaps via expanded powers and altered electoral rules for the European Parliament)—are likely to appeal to integration’s most fervent adherents. And in many respects, such reforms would be an ‘ideal’ solution, albeit in two conflicting senses. On the one hand, these reforms might be functionally ‘ideal’ to addressing the range of macroeconomic and geopolitical challenges now facing the EU (in the Eurozone, Schengen, terrorism, Russia, etc.). On the other hand, they would be ‘ideal’ in the sense of ‘unattainable’ in light of the diffuse and fragmented state of European politics and society. While the institutional engineering to achieve further fiscal or political union are not hard to conceive mentally, their actual realization in the face of socio-political, socio-cultural resistance would not be. So in pursuing the ‘right’, European idealists would need to overcome the ‘real’. This pursuit of ‘more Europe’ is based on an ‘ideal’ understanding not only of the finality of European integration but its underlying legitimacy. The problem is that the EU’s legitimacy—in the sense of how Europeans actually experience the system (distant, bureaucratic, juristocratic)—is in deep tension with the ‘ideal’ solution. Thus, the disconnect between proposed powers and actual legitimacy will likely doom this route to failure.
This leaves ‘less Europe’, i.e., bringing the scope of EU action into conformity with its underlying legitimacy, so as to make integration more sustainable and less vulnerable to the sort of backlash that Brexit represents. The question one must always ask with regard to the EU is ‘legitimate for what?’ Over-estimating the EU’s legitimacy is not merely an academic problem. Instead, it can lead to profound errors of institutional or policy design, as Europe’s multiple current crises attest. The guiding principle in any EU reform program should be to align the EU’s powers with its actual legitimacy as a ‘regulatory’ rather than autonomously ‘constitutional’ body, whose legitimacy is in fact indirectly derived from democratic and constitutional legitimacy on the national level. In undertaking EU reform, the Member States should not start with fraught and delicate domains like EMU or Schengen, where reform must proceed cautiously. I would instead start with reforming the EU institution whose self-defined role and articulated doctrines are most disconnected from integration’s actual nature as a merely ‘regulatory’ body, while also being most attached to the misplaced ideal of an autonomous European ‘constitutionalism’.
I am speaking, of course, of the European Court of Justice (ECJ). The ECJ has, for much of its history, given a maximalist reading to the powers of European institutions, most importantly its own. In doing so, it has articulated a set of doctrines whose aggregate effect comes dangerously close to casting the ECJ as the legitimating ‘principal’ in the EU legal and political system, to which all other ‘agents’—whether other European institutions or the Member States—owe fealty. This flows from a hypertrophic faith in ‘integration through law’, in which EU judges, lawyers, and law professors serve as the vanguard in the quest for a predetermined finality of European integration as the Court understands it. The result is not the ‘rule of law’ but rather a gouvernement des juges.
I have long been a critic of Court’s approach and will not recapitulate those critiques in detail here (for those interested, see, e.g., here, here, or here). Instead, let me just advance a few highlights (some of which, by the way, echo many of the points made by the German Federal Constitutional Court in its recent OMT Judgment that I discussed here and here):
• First, and most importantly, we must definitively purge the idea of ‘supremacy’ from our discussions of EU public law. The label is a derived from an erroneous comparison of the EU to a constitutional federation like the United States, in which two strongly-legitimated constitutional levels of government interact with each other. By contrast, the EU is a regulatory agent, and it enjoys ‘primacy’ only within the regulatory domains delegated to it by the Member States under the treaties. This is not ‘supremacy’. Instead, the Member States and their courts give ‘strong deference’ to the EU within its regulatory domains in recognition of the functional demands of European integration. But there are ‘limits to strong deference’ (see here), which flow from the fact the EU’s regulatory power is derived from the democratic and constitutional legitimacy on the national level. The ECJ cannot transgress those limits without undermining the democratic and constitutional underpinnings of European integration itself.
• Second, it is the responsibility not merely of the national courts but also of the ECJ to protect that national democratic and constitutional prerogatives of the Member States against undue encroachments by European institutions. This must become a guiding principle of the ECJ in its interpretation of European law. Thus, the Court should abandon its traditional ‘teleological’ method of interpretation that seeks to maximize the powers of European institutions. This step would be especially important in augmenting judicial policing of the bounds of authority delegated to the supranational level (see here). In other words, there must be limits on the scope of authority delegable to the EU level consistent with the need to preserve the democratic and constitutional authority of national institutions.
• Third, even within the realms of authority that are constitutionally delegable to the EU level, the ECJ must become much more demanding, both in terms of evidence and reasons, when it reviews the actions of EU institutions challenged by a Member States or a private party. This could be understood as a version of European ‘hard look’ review, grounded in subsidiarity as well as the broader foundations of EU regulatory power derived from democratic and constitutional legitimacy on the national level (for more details, see, e.g., here, pp 712-26; here, pp 196-97; here, p 558). This is especially important in ‘legal basis’ disputes. Where there are two plausible legal bases to support action at the supranational level, the Court should presumptively favor the basis requiring unanimity in the Council, thus maximizing Member State protections.
• Fourth, I do not expect the ECJ to adopt these reforms on their own. Instead, the Member States should following their own example in advancing the development of the principle of subsidiarity. Because the ECJ’s interpretation of what subsidiarity required of EU institutions has been, frankly, an embarrassment, the Member States were forced, by way of a protocol to the treaty, to demand what the ECJ would not: that European institutions state the ‘reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators’. The subsidiarity protocol now generates an administrative-type record that can serve as the basis for a searching substantive and procedural judicial review of the EU action. (It also provides the basis for greater scrutiny by national institutions of EU conduct, such as under the subsidiarity early-warning mechanism.) The Member States should adopt a new protocol that seeks to force the ECJ to engage in such review consistent with the doctrinal reforms contemplated in my first through third bullet points.
• Finally, the Member States should also consider creating a new court—what I have called the ‘European Conflicts Tribunal’—that would be comprised of national high court judges and also be charged with supervising and implementing these reforms (for details, see here, pp 726-34; here, pp 275-77; and here, pp 563-64). The purpose of the ECT would be to strike a balance between the ‘strong deference’ to the European courts, on the one hand, and the ultimate responsibility of national high courts to preserve democratic and constitutional legitimacy in a historically recognizable sense, on the other. Additionally, subject to an administrative-style ‘exhaustion of remedies’ requirement (demanding a decision on a preliminary reference by the ECJ before going to the ECT), there should be the possibility of appeal from an adverse ruling of the ECT to the European Council, constituting a demoi-cratic political check in the process.
For some observers, this sort of political check might mean an unacceptable dose of intergovernmentalism in what should be a purely supranational judicial process. I would argue that, properly structured, the political check would promote greater national legitimation in European integration, something that the EU sorely needs in the aftermath of the Brexit crisis. As the late Neil MacCormick recognized, ‘not all legal problems can be solved legally’ and resolving them, ‘or more wisely still, avoiding their occurrence in the first place, is a matter for circumspection and for political as much as legal judgment’. It is time to bring such political judgment to bear on the legal problem of the ECJ.