Domestic Judicial Defiance in the European Union

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Arthur Dyevre, MWF 2007-2008By Arthur Dyevre, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany (Max Weber Fellow in Law, 2007-2008)

The European Union is already in the grip of the most severe economic and financial crisis of the continent’s post-war history. But as if the Euro-crisis were not enough, it would appear that national courts are set to ignite another institutional fire, threatening the very foundations of the European legal order. To be sure, although the European Union is in large part the product of judicial cooperation between the European Court of Justice (ECJ) and national courts, legal integration has by no means been free of friction. Some domestic judges, particularly those sitting on supreme and constitutional courts, have emphasised the limits of the integration process and what they regard as their constitutional red lines. The French Conseil d’Etat, the Italian and Polish constitutional courts, and, of course, the German Federal Constitutional Court (GFCC) have been among the most vocal exponents of the judicial resistance to integration at domestic level. In its landmark ruling on the Maastricht Treaty, the GFCC had warned that if EU institutions overstepped their mandate as spelled out in the Treaties it would declare their decisions inapplicable in Germany. Since then, the German Court has reiterated its threat of non-compliance on numerous occasions, while many high courts in other Member States have embraced the same ultra vires doctrine. Despite the palpable tensions between domestic and supranational judges, however, the jurisprudential conflict had never escalated into an all-out judicial war. No domestic court had put its threat into execution and no EU act had been pronounced ultra vires. Pacific coexistence seemed to prevail.

Overt Non-Compliance: The Czech Constitutional Court

Hence the shock, when in January of this year, the Czech Constitutional Court (CCC) apparently pressed the big red button, declaring a decision of the European Court of Justice on the pension rights of citizens of the defunct Czechoslovakia ultra vires, and therefore inapplicable on Czech territory. Unlike federal countries such as the USA or Germany, the EU court system exhibits a non-hierarchical structure. Courts at the upper echelon (the ECJ and other EU courts) do not have the power to strike down the decisions of courts at the lower level. Because judicial cooperation is vital to the effectiveness of the higher-level law in such a system, the Czech ruling seems to constitute a terrible blow for the ECJ and for the authority of EU law in general. Could this send the signal that domestic judges can safely ignore EU law whenever they see fit? If so, it would mean the end of the EU legal order as we know it today.

What Holds the European Legal System Together

Yet there are two reasons why the Czech judgment is more likely to be remembered as an isolated accident rather as the tipping point when judicial tensions escalated into the legal equivalent of nuclear Armageddon. First, judicial behaviour on domestic high courts is itself embedded in broader domestic politics. As long as the main parties in the legislature remain committed to EU membership, the judicial branch cannot afford to make decisions that would put the country’s standing in the supranational club at risk. The Czech Republic does have its fair share of Eurosceptic politicians, with the most prominent among them currently serving as President (Václav Klaus). Yet the CCC’s judgment did not attract any parliamentary support. On the contrary, the Court was left isolated and the odds are that both MPs and other judicial actors, if anything, will ignore its ruling. Second, because cooperation is so crucial to the EU legal order, the ECJ has an incentive to listen to domestic courts so as to minimize non-compliance. The most powerful domestic courts potentially have the ability to inflict the most damage on the ECJ and thus to extract the largest concessions from the judges in Luxembourg. These two reasons explain why the recurring tensions between the ECJ and the GFCC – which is perhaps the only domestic court that may legitimately claim the status of judicial superpower – are unlikely to result in an escalated fight. In an analogy to Cold War international relations, we may thus say that the threat of mutual destruction is what holds the EU legal system together