Keywords

A supreme court plays a critical and indispensable role in any federal polity. The Court of Justice of the European Union, which sits in Luxembourg, is not quite the supreme court but seems set on the way to being so.Footnote 1 As the Commission’s classical role as “guardian of the treaties” becomes blurred with its overtly political role, it falls more to the Court to be proactively associated with the job of protecting the integrity and application of Union law. As suggested in Chap. 2, the appointment of a Commissioner as Law Officer would provide the Court with a professional interlocutor in the executive arm of EU government.

The formal mission of the Court, established by treaty right at the start of the history of the European Communities, is to “ensure that in the interpretation and application of the Treaties the law is observed”.Footnote 2 It works by ruling on actions brought by member states, institutions or individuals, companies and legal bodies. It delivers preliminary rulings to national courts which interpret EU law and validate (or not) the activities of the EU institutions. The Court launches infringement proceedings against a member state, sanctions an EU institution for failure to act or for acting erroneously and annuls EU law that breaches the treaties. Where the Court has established well-settled case law, its jurisprudence should be codified in treaty revision.

As in any federal system, Union law has primacy over national law, including state constitutional provisions. But because the EU is not a classic federation where competences between the state and federal levels are demarcated vertically and laid down in a constitution, the European Court of Justice (ECJ) can strike down an EU law but not, at least directly, a national law. The Court’s role in clarifying who should do what, and why, if the EU treaties are to be fulfilled is a matter of subtle and patient explanation and iterative persuasion. Inevitably, some flexibility is allowed by national courts in providing “remedies sufficient to ensure effective legal protection in the fields covered by Union law”.Footnote 3 It is a decentralised judicial system in which national courts are expected to contribute positively towards attaining full respect for EU law. Member state governments face penalties if their national courts fail to do their duty by the EU Court.

Interpreting the Law

The treaties leave the Court of Justice with ample room to interpret the law of the Union. The ECJ fills in the gaps where primary law sets the framework but is not prescriptive in detail. The generalised prohibition of discrimination on the grounds of nationality, for example, leaves wide scope for judicial action in specific cases.Footnote 4 Likewise, the laying down of the broad aim of establishing a single market “without internal frontiers in which the free movement of goods, persons, services and capital is ensured” has required years of jurisprudence from the ECJ as well as secondary legislation from the European Parliament and Council to achieve and maintain.Footnote 5 Periodically, iconic cases, like Cassis de Dijon in 1978, have laid the foundations on which much subsequent law has been built. Moreover, the ECJ has had to flesh out important elements of secondary law where the legislature has made do with ambiguous compromises which fail to achieve legal certainty. A good example of such collusive ambiguity would be the Services Directive of 2006.

The importance of such jurisprudence has led to attacks on the integrity of the Court from nationalist forces in the Union: the controversy over the role of the ECJ was and is prominent in the continuing Brexit saga. But the truth is that the Court is driven by the need to apply EU law as uniformly as possible in pursuit of treaty goals. Its jurisprudence has by no means always favoured maximum centralised integration. It has developed the concept of judicial review as a check on the untrammelled executive powers of the Commission, for example in competition policy. Although the ECJ has helped the European Parliament to protect its prerogatives, it has also sought to sustain the implicit balance of powers between the institutions, as predicated by the treaties. The implications of interinstitutional balance are that each institution pays due regard to the powers of the other institutions; that institutions may not assign their powers to others; that each institution must retain its independence; and that the institutions uphold the spirit of sincere cooperation with each other and the member states.Footnote 6 Protecting the interinstitutional equilibrium within a constitutional system that does not feature the formal separation of powers is a subtle business to which constant attention is paid.

The legal order of the Union has been developed over decades through a process of intelligent dialogue between the ECJ and its national component parts and between the Court and the other EU institutions. The Union’s judicial system has mainly developed on the basis of the Court’s preliminary rulings.Footnote 7 In theory, at least, all rulings by the ECJ are binding on national courts. The process has not been without friction, but until recently no ultra vires dispute between national courts and Luxembourg has been allowed to escalate into open warfare. A principal player in this judicial game has been the Bundesverfassungsgericht (BVerfG). The influence of the BVerfG on other national constitutional courts in the Union flows not only from Germany’s size and importance but also from the fact that it itself is accustomed to working within a federal paradigm. A series of legal challenges to and from Karlsruhe as the bloc developed its economic and monetary union has opened but not closed the question of ultimate constitutional supremacy. In its 2009 judgment on the Treaty of Lisbon, the German Court found that the EU is still a close association of sovereign states (Staatenverbund) and not itself a federal state. It warned that any further European integration may be unconstitutional (in German terms) “if the level of democratic legitimation is not commensurate with the extent and importance of supranational power”.Footnote 8

Primacy and Direct Effect

The question of the validity of the Union’s supranational competence has been raised regularly by the Bundesverfassungsgericht. In its judgment on the Maastricht treaty, the German Court treated Economic and Monetary Union (EMU) as a mainly technical issue, concluding that the ECB was able to act so long as it did not stray from its treaty parameters.Footnote 9 In Pringle (2012), the ECJ judged that the famous no-bail-out clause does not forbid the establishment of joint financial mechanisms such as the ESM.Footnote 10 The BVerfG, rather proud, did not request its first preliminary ruling from the ECJ until 2014—a rather mischievous case concerning the stated intention of the European Central Bank to indulge in outright monetary transactions. (By contrast, the UK courts, steeped in common law tradition, were frequent supplicants in Luxembourg.) The German court argued that the ECB outreached its mandate in proposing to purchase government bonds in the secondary market and that the ECJ had failed to verify correctly the proportionality of the Bank’s actions.Footnote 11 Responding in Gauweiler (2016) and Weiss (2020), the Court of Justice found that the European Central Bank could work around the general treaty prohibition of direct monetary financing. But the fact that Karlsruhe has dared to challenge the orthodoxy of the EU’s legal order has encouraged other national courts to do so too. We read from the ping-pong between the Karlsruhe and Luxembourg courts that further steps towards political union must be genuinely constitutional on the side of the European Union and will in any case and in due time require amendment of the German Basic Law.

The Convention on the Future of Europe sought to include a clause in the Constitutional Treaty which made explicit the primacy of Union law. After the debacle of the French and Dutch referendums in 2005, however, an attempt was made, strongly supported by Germany and the UK, to deconstitutionalise the text. The primacy clause was dropped and replaced by a mere declaration added to the Treaty of Lisbon which reaffirmed the principle of primacy first spelt out in the Costa v ENEL judgment of the Court in 1964.Footnote 12 It remains the position that Union law, being an independent source of law, cannot be overridden by domestic law without being deprived of its character as Union law. At the time of the next treaty revision it would be sensible, and apparently necessary, to resurrect that bold and simple provision of the failed Constitutional Treaty.Footnote 13

Charter of Fundamental Rights

An important milestone in developing the constitutional order of the Union on a federal basis was the drafting in a Convention of the EU’s own Charter of Fundamental Rights in 1999–2000. I was a member of the Convention and Parliament’s co-rapporteur on the dossier. Initially proclaimed by the Nice IGC as a code of conduct, the Charter was rendered mandatory under the terms of the Lisbon Treaty, and now features increasingly in the case law of the European Court as a bulwark of EU citizenship, particularly with regard to anti-discrimination issues.Footnote 14

The Court of Justice, however, has not done itself any favours in resisting the express intention of the Treaty of Lisbon that the EU should sign up in its own right to the European Convention on Human Rights.Footnote 15 The problem is the Court’s insistence that it alone should be responsible for interpreting EU law. It has resisted until now the idea that the European Court of Human Rights in Strasbourg should act as the external supervisor of the Union’s developing corpus of fundamental rights law.Footnote 16 While the ECJ is understandably minded to protect its own prerogatives, the fact remains that its objection to ECHR accession is impeding the development of a superior rights regime unique to the Union but respectful of wider European norms.

The Charter of Fundamental Rights will only obtain its full value for the EU citizen once the legal stand-off between the two European courts is ended. The Council of Europe has never fulfilled the political aspirations of its founders, such as Paul-Henri Spaak, but its record over decades in promoting human rights has been impressive. The European Court of Human Rights is not a body to be resented: indeed, a European Union more confident of its own jurisprudence in human rights, based on the Charter, could lead the rest of Europe in a fruitful direction. Such a development would have special relevance as the Union struggles to formulate effective policies of its own on asylum and immigration that do not conflict with international refugee law.

The next round of treaty revision should also take the opportunity to modernise the Charter. The clause on environmental protection should certainly be upgraded to take into account the commitments made by the EU when it signed, along with all its member states, the 2015 Paris Agreement on combating climate change.Footnote 17 More controversially, others have suggested that the right to have an abortion should now be included in the Charter, although that may require a parallel adjustment of EU competence to meet the constraint of the Charter’s important horizontal clauses that delimit the field of its application. In any case, and to reflect the widening use made of the Charter by the Court of Justice, the Charter should be revised to assert its applicability by the EU institutions “whenever they act within the scope of Union law”.Footnote 18

The European Court of Justice has championed the cause of European Union citizenship, which has gradually emerged from a thicket of social and labour legislation to do with the creation of the internal market. The Charter of Fundamental Rights adds weight to the cause of enhancing the civil liberties of the EU citizen. We have already suggested that Parliament’s Ombudsman should be granted a privileged access to the Court. As EU citizenship further matures, something more should be done to reinforce the locus standi of natural or legal persons as they approach the Court. At present such access relies on the plaintiff proving that he or she is individually, directly and adversely concerned by an action or law of the EU.Footnote 19 The Court has set a high standard of proof, not least because it fears being overwhelmed by a surge of litigation.

Reform of the structure of the Court to cope with more business, including the establishment of regional courts and an appellate procedure, should be considered. Cases brought to federal supreme courts are usually on appeal from lower courts. If the Union is to become a just and reliable democratic polity, its citizens need a relatively straightforward and affordable entrée to federal justice. Federal citizenship has now moved beyond the member state, not just complementary to national citizenship, as the Treaty of Maastricht had it, but supplementary to it in its own right.Footnote 20

Scope

The Court of Justice will not achieve the status of a federal supreme court until all restrictions on the scope of its judicial oversight have been removed by a treaty amendment. At present, judicial control of the European Stability Mechanism and of the fiscal compact treaty is limited because of their quasi-intergovernmental character outside the scope of Union law. The treaty imposes regrettable limits to the scope of the Court’s authority concerning the operations of police and security services.Footnote 21 Equally disconcerting is the Court’s exclusion from the main aspects of the common foreign and security policy.Footnote 22

When it comes to sanctions, however, the situation is more nuanced. The ECJ has not been backward in reviewing the legality of sanctions levelled by the Council against individuals on grounds of fundamental rights. In general, sanctions can be imposed by the EU against a third country or non-state actor only on the basis of a preliminary unanimous decision of the Council under the rules for common foreign and security policy.Footnote 23 But the actual imposition of the restrictive measures deemed necessary is decided by the Council, acting by QMV on a Commission proposal, with the Parliament duly informed.Footnote 24 MEPs, therefore, prefer the use of an anti-terrorism measure where sanctions can be imposed by a regulation enacted by the ordinary legislative procedure without the preliminary Council decision by unanimity.Footnote 25 The imposition of sanctions against Russia for its attack on Ukraine has to negotiate this legal terrain while ensuring that the sanctions devised make good tactical sense and will be implemented rigorously by the member states.

Faced with limitations of scope concerning ‘mixed’ international agreements (part supranational, part intergovernmental), the Court has acted pragmatically, moved by the need to ensure that the Union acts effectively at home and abroad on the basis of both Union and international law. As the EU assumes a more confident identity in international organisations, such as the United Nations, one can expect the Court of Justice to be more ready to act like a federal supreme court. This will include adjudicating cases brought by one member state against another—something in which the ECJ to date has seemed reluctant to indulge.Footnote 26 The latent border dispute between Slovenia and Croatia, for example, would seem well suited for judicious settlement by the ECJ.

We have already suggested above two other enhancements to the constitutional status of the Luxembourg Court. First, it should hear cases brought by the Parliament against the European Council on the grounds of misuse of powers. A good example of such a case might be the European Council’s decision in 2016 to do a deal on migration with Turkey outwith the treaty rules that cover the negotiation of international treaties.Footnote 27 The second adjustment would be that the Court stands ready to deliver opinions on draft treaty amendments at the request of the Union legislature or a member state. In Chap. 7, moreover, we propose that the Court adapts itself to accommodate the new concept of affiliate membership of the Union.

Rule of Law

The constitutional identity of the European Union is predicated on the assumption that its institutions and its member states will always act within the law. In recent years, alas, this assumption is no longer safe. Corruption has spread in several member states, especially Bulgaria, and other governments in central Europe have fuelled antisemitism and homophobia, attacked press freedom, and compromised the independence of the judiciary. Hungary is the prime culprit. Its Prime Minister Viktor Orban proudly boasts of the spread of anti-Brussels “illiberal democracy” across central Europe.Footnote 28 Poland equals Hungary in tampering with its judges, and both are complicit in protecting each other, under the unanimity rule, from the penalties that could be imposed on an errant state in cases of a serious and persistent breach of the values of the Union.Footnote 29

In October 2021, Poland’s Constitutional Tribunal overturned its previous judgments which had been in favour of the Treaty of Lisbon. The Tribunal now declares that the mission of the EU (“ever closer union”), its values as and the powers of the ECJ are unconstitutional in terms of Polish law.Footnote 30 As the European Court has already condemned the packing of the Tribunal by Poland’s ruling party, its opinion in this case is of negligible legal value and created a political storm both within Poland and between Warsaw and Brussels. But it is an indication of how fragile the EU’s rule of law has become. If Poland’s judiciary can no longer challenge the actions of the Polish government, the edifice of EU constitutional law will crumble. The reliable application of EU law is especially sensitive in the area of security and justice policy where, for example, the European Arrest Warrant is rendered unworkable if the integrity of Poland’s courts is in doubt.

Fearing the worst, in 2020 the EU legislature passed a regulation that imposes a general regime of conditionality for the protection of the Union budget—a control mechanism that takes on extra relevance in the light of the large increase in the volume of EU spending post the COVID-19 pandemic. Hungary and Poland protested to the Court of Justice and sought to annul the regulation. In its much-awaited judgment of February 2022, the Court found that compliance with the values on which the EU is founded “cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and which it may discard after accession”.Footnote 31 It judged that the regulation in question was properly aimed at protecting the financial interests of the Union being grounded on a concept of the rule of law (Etat de droit) which all member states share, and must share, within their own constitutional traditions. Such, the Court pronounced, is a matter of the Union’s identity.Footnote 32

The Commission will now be bound to trigger the conditionality mechanism and cut EU funding to Hungary and Poland until they return to full respect for the rule of law. Neither the Commission nor Council should be able to turn a blind eye to the existence of rampant corruption in any member state or the traducement by a member state of the values of the Union, including democratic principles, when it amends its domestic constitutional arrangements. In general, the Union is bound to strengthen its monitoring of the state of human rights protection within all member states. Helpfully, the Commission’s annual rule of law reports will from now on include specific recommendations to member states about how to improve their standing and avoid regression from the standards to which they are in theory committed. The EU’s Fundamental Rights Agency, established in Vienna in 2007, should be enabled to follow up on such recommendations, working with civic as well as national authorities.

Going further, the European Court of Justice should have no compunction in regarding as justiciable all the foundation articles of the Treaty which set out the values and principles of the Union. An EU federal supreme court would be prominent in adjudicating breaches of the Charter and in enforcing democratic principles in the context of elections, both at the European and national levels (on which rests the legitimacy of the Council).Footnote 33 It has not escaped our notice that the Organization for Security and Co-operation in Europe (OSCE) found the recent elections and referendum in Hungary to fall well below international standards, being “marred by the absence of a level playing field” between government and opposition.Footnote 34 In the previous chapter we have already suggested a treaty amendment to insist that elections to the European Parliament are not only free but also fair.Footnote 35