In Defense of Minimalism: A Response to Vlad Perju

[Dr. Oliver Gerstenberg is Reader in Law at the University of Leeds. Dr. Gerstenberg is one of the leading scholars in this field.]

Would the European Court of Justice (ECJ), as Vlad Perju suggests, benefit from a “discursive turn” (338); brought about by “allow[ing] its members to enter separate opinions” (309); in an effort to “politicize” EU law (327)—with the long-term objective of “enhanc[ing] the citizenry’s sense of a shared political identity” (329)?

Consider some background: The ECJ is primarily an economic court. Yet its role has changed dramatically. Drawing “inspiration” from the various “constitutional traditions common to the Member States” (as the Court puts it), the Court has begun to develop a jurisprudence of “general principles of law,” in order to redeem the EU’s self-conception as a “community based on the rule of law.” Those principles—developed by the Court sua sponte—have enabled the Court to incorporate, within “the structure and aims of the Community,” the substance of the European Convention on Human Rights (ECHR), as well as fundamental rights protected by national constitutions. The Court must decide crucial social and economic issues, and in doing so “balance” competing fundamental values. Yet the praetorian reliance (under Art. 220 EC) on general principles of law touches upon a fundamental problem posed by the rule of law: the legitimacy of judicial “lawmaking.” Domestic constitutional courts may reassert their jurisdiction either in the case of a “general decline” of constitutional guarantees provided by EC law, or in the case of a competence-transgressive ECJ-jurisprudence that “discovers”—and imposes on Member States—general principles without due authorization.

In response to Vlad, I wish to suggest that, rather than “politicizing” the Court (in order to assuage its legitimacy-problem), there is something important to be said for a more minimalist, indeed, “weak” ECJ. The democratic benefits of allowing judges to enter dissenting opinions seem uncertain in the EU-context. You do not want a “supreme” ECJ, which sharply divides over ever more, and ever more controversial, but hugely consequential, constitutional-legal issues (e.g. the “true” balance between market-freedoms and social rights) along, say, national lines or those of “old Europe” versus “new Europe.” You may not want to jeopardize direct effect and primacy through narrowly split decisions. Contrary to the assumption which Vlad seems to make (and which he seems to share with large parts of the literature and at least one of the current AGs), it remains a fair and open question whether the ECJ should best be thought of as a “constitutional court” (with all the implications regarding dissenting opinions)—as opposed to a more minimalist, if not more court-skeptical, view of the ECJ.

To illustrate this point, consider an important parallel in contemporary US debates which exploit the paradox that “weak” forms of judicial review and “weak remedies” may actually allow for stronger social welfare rights (Tushnet) and that by taking the constitution away from the courts you enhance democratic choice. In today’s Europe, different legal orders—ranging from State law, EU law, the ECHR, to International law—coexist, often in relation to the same issues, and there is no hierarchy of legal authority, nor a final decider. Divergence of constitutional traditions across the EU commands deference by the ECJ to those traditions and choices which inform it (not unlike the “margin of appreciation” doctrine of the ECHR), “as long as” those traditions and choices, in turn, respect coordinate European commitments to transparency, reasonableness and fairness. National constitutional courts are required to respect the praetorian development of those commitments by the ECJ, “as long as”—under the German Solange II-doctrine—the level of constitutional protection is “respectworthy” from the standpoint of the plural domestic traditions as “sources of inspiration.” In that interactive process, the nature of legal doctrine itself shifts from the substance of conflicts to a jurisprudence of mutual monitoring and peer-review.

Outright “politicization,” as Vlad suggests (and, concomittantly, ever further constitutionalization and judicial centralization), risks to shift the balance and to arrest this interplay between legal orders which is non-hierarchical and coordinated through the mutual deployment (and reconsideration) of the Solange II-formula.

That said, I hasten to add that participants to this important debate could hardly do better than study Vlad’s immensely thoughtful, suggestive, and characteristically brilliant paper.