Reason and Authority in the European Court of Justice

[Vlad Perju is Assistant Professor of Law at Boston College Law School]

I thank Opinio Juris and the editors of the Virginia Journal of International Law for providing this forum to discuss my recent article on Reason and Authority in the European Court of Justice. I am also grateful to Oliver Gerstenberg for kindly agreeing to comment.

I start this project with the observation that for an institution hailed as “the most powerful and influential supranational court in world history” (Alec Stone Sweet, Governing with Judges), the European Court of Justice Court has thus far played a comparatively limited role in the plans to reform the European Union in the early twenty-first century. I argue in this Article that the ECJ can contribute to the development of the European citizenry’s political identity by “politicizing” its judicial style, that is, by bringing into the open the legal debate about the choice of conflicting methods and values that informs its judgments. The most effective means to that end is to allow its members to enter separate opinions. Dispensing with the single, collegiate judgment would enable the Court to “renegotiate” its relationship with the European public. From its newly adjusted position, the Court could play an important role in the formation, as much as it is possible and desirable, of a shared political consciousness among the European citizenry. Far from being a mere technicality, multiple judgments are a bold, but necessary, step in the EU’s ongoing experiment in governance.

Looking back half a century, the story of the Court’s evolution is that of a successful institution that has become somewhat ill adapted to the political environment that its own judgments helped to create. The developments I advocate in this paper will increase the public visibility of the Court and highlight the position of the European citizenry as a crucial element of the Court’s audience. Specifically, separate opinions could bring about a dialogical turn in the Court’s style of reasoning, which might help to ease the stalemate between Europe’s court and Europe’s citizens.

The Article begins with an analysis of the Court’s reasoning style through the normative lens of the duty to justify legal and political action in the EU. The ECJ’s statutory duty to give reasons and the concomitant duty incumbent upon the EU’s political institutions share common foundations in the demand that a legitimate exercise of official power be one justified by reasons. I then supplement the normative analysis with the instrumental case for the introduction of separate opinions. Specifically, I argue that separate opinions can help the Court succeed where other reforms have thus far failed: in creating an institutional setting in which citizens’ collective political identity can take root. This capacity for “external deliberation” with institutional and noninstitutional actors has been eroded by decades of successfully converting political conflict into neutral legal language spoken with one voice from behind the “mask of the law.”

The second part of the paper discusses the objections to the introduction of separate opinions. It focuses on the taxonomy of shared assumptions about institutional design and culture, including the Court’s position in the overall judicial system; the juriscultural influence of the civil law; the effectiveness of European Community provisions; issues surrounding the overloaded docket and translation services; the impact of dissents on collegiality of the Court and on the role of the Advocate General (AG). I conclude that none of these objections offset, for the EU as a whole, the larger benefits of reforms in the Court’s judicial style. The inevitable loss of authority resulting once the appearance of unanimity breaks down is ultimately compensated by medium- and long-term gains in external legitimacy and influence.