A Response to Dr. Gerstenberg

I am very grateful to Oliver Gerstenberg for commenting on my paper. As always, Oliver’s illuminating comments go to the heart of the matter. His defense of a minimalist approach to the ECJ offers an alternative to the presumably “maximalist” proposal I defend in my article. I accept this label for the purpose of our exchange.

At one level, Oliver worries about the implications of a “politicized” Court whose members disagree sharply and publicly about matters of great consequence to the future of Europe and its citizens. He argues that the “discursive turn” in the Court’s judicial style, which I describe and defend in my paper, could reopen debates about supremacy or direct effect, or even fracture the Court along the lines of the Berlin Wall. But there is more to Oliver’s argument. He suggests an alternative future of a Court engaged in a jurisprudence of “mutual monitoring and peer-review” which treats with respect the normative pluralism that presently structures the European legal space. My article sketches out a few possible answers to the first set of concerns and I will confine my discussion here, for reasons of space, to the broader picture. Specifically, I submit that the “maximalist” paradigm is more likely than the minimalist alternative to preserve and develop constitutional pluralism and institutional experimentation in the next stages of the EU’s existence.

It might be helpful to brush aside from the outset what I will call “contrived minimalism”. Recall the Court’s current practice of delivering unitary judgments in matters of fundamental importance to the Union. These judgments are minimalist, oddly qualified by the occasional use of teleological interpretation, insofar as the members of the Court must compromise by seeking the lowest common denominator of their respective positions. I don’t believe this is the minimalism that Oliver has in mind.

There is, however, a second version of minimalism that recommends the Court to refrain from assertive – broad, final, entrenched – pronouncements in matters of fundamental importance to the Union. This second version of minimalism can be defended on grounds of principle and/or prudence.

On grounds of (democratic) principle, Oliver suggests that the Court’s discursive turn will raise some familiar difficulties regarding the legitimacy of judicial lawmaking. I won’t dwell here on the legitimacy that Art 220 confers on the Court. Rather, I want to question the assumption implicit in the argument from democratic legitimacy that the discursive turn enhances by necessity the Court’s assertiveness. One can easily imagine that it would have just the opposite effect. Reasoned debate among the members of the Court might discipline its pronouncements and lead to more cautious, and better reasoned, decisions. This new form of reason giving would renegotiate the terms of the Court’s authority in relation to national courts and eo ipso to national legal orders. It helps to remember that the plurality of legal orders, which Oliver rightly identifies as a defining feature of the current EU legal system, is not so much the doing of the ECJ but rather the outcome of how the apex courts of member states reacted to the ECJ’s claim about the supremacy of European law. The discursive turn can recast the judicial center in a way that conceivably will allow for open normative exchanges among Europe’s legal orders. This seems to me to be just the opposite of the judicial centralization that Oliver mentions in his comments. The judicial stage could now become a setting for normative reflection on Europe’s rich and diverse legal traditions.

There may also be prudential reasons for resisting the “politicization” of the ECJ on grounds of judicial minimalism. Perhaps ascribing to the Court greater substantive and discursive influence over the Europe public sphere will shrink the political space for institutional innovation and ultimately endanger Europe’s experiment in governance. It is perfectly plausible to adopt a minimalist stance towards the ECJ in order to preserve that political space. In my view, the difficulty with this approach is that the Union’s revitalization is unlikely to originate from within that political sphere, at least at this point in time. Innovation and experimentation should be the outcome of robust debates; in reality, they have replaced such debates. While a jurisprudence of “mutual monitoring and peer-review” could conceivably have some appeal against a different political and social background, my paper argues that this is the moment in time for a different kind of court and a different type of jurisprudence. The discursive turn could make the Court a normative forum where Europe’s rich legal traditions can come into dialogue in the spirit of pluralism and mutual recognition.