The Court of Justice of the European Union is one of the most contested transnational institutions in Europe. It nonetheless cemented its authority over nearly seven decades of integration and remains a cornerstone of the EU.
The Court of Justice of the European Union (CJEU) wielded extensive power for most of the second half of the 20th century. When the community was paralyzed by a political gridlock with states having difficulties achieving a necessary consensus on policies, the CJEU became the motor of integration by declaring the direct effect and supremacy of the treaties over national law. It cemented the path towards the interior market by forging the mutual recognition of standards, and even found member states in breach of their obligations when not applying EU law correctly. These bold decisions never met strong opposition, with only a few isolated criticisms that were mostly ignored by the rest of actors of EU governance, including governments.
While the turning point remains difficult to identify, the CJEU does not anymore benefit from this “benign neglect” that allowed judges to exercise their craft without opposition. The end of the permissive consensus put all EU institutions in the spotlight, including the Court. Judges are now involved in the general contestation of the EU’s authority. This trend came at its outburst with the recent rule of law debate that pits EU institutions against the governing bodies of Poland. The CJEU is a power-wielding institution under scrutiny and facing more contestation than ever. The question of its legitimacy today is more relevant than ever.
Legitimacy standards for the judiciary
But how to make sense of/capture the legitimacy of the Court? Such a theoretical framework must account for two broad trends. Since the CJEU is a constituting ruling organ of the EU, it must adhere to a set of standards that are applied across the entire polity, including by other institutions. However, the use of common legitimacy standards must be crafted to the specificities of the judicial branch of the EU. The Court does not draft laws; it theoretically interprets them. Its members are not directly controlled by the people through elections; these are appointed.
The use of canonical legitimacy theories of the EU such as Scharpf’s or Schmidt’s – namely the division of legitimacy between ‘input’, ‘throughput’ and ‘output’ – is relevant, but must be tailor-made to judges. Input refers to shared values between powerholders and subordinates, leading the latter to accept with ease the decisions of the former. The CJEU would be deprived of input since it is a transnational body that is not submitted to popular will (unlike rulers directly elected by citizens). The statement should however be nuanced. The Court does possess indirect input legitimacy since governments (endowed with direct democratic legitimacy) appoint judges to the bench, and retain the prerogative to remove them from office at the end of their term. The treaties signed by these governments expressly delegated to the CJEU the power to interpret the treaties and secondary law. And judges themselves embody a core principle shared across member states judiciaries: they are appointed according to a meritocratic logic, i.e. governments must provide the best candidates whose suitability is thoroughly assessed by an expert committee.
Throughput refers to the respect of good processes of governance. This is the most important factor in adjudication. Due process and well-argued judgements may compensate for shortcomings at the input or output levels. If judges are dialoguing with the parties, are transparent about their reasoning – a common criticism made against CJEU rulings – and are responsive to challenges raised in doctrine or by national courts about previous rulings, the Court will mitigate contention and even have adverse rulings accepted by governments (such as Kadi).
Output refers to sound results of a governing institution. The Court must adjudicate cases within a reasonable amount of time, settling disputes of the parties in a case while providing guidance to the broader legal profession, and elicit compliance with EU law. The Court’s output legitimacy remains significant, especially considering that national courts – premier interlocutors of the CJEU – comply almost always with preliminary rulings.
This analysis seems at odds with current debates surrounding judicialization in the EU. “Ending the jurisdiction of the ECJ” was a red line in the Brexit negotiations for the UK, and various national constitutional courts declared various rulings of the Court ultra vires (out of the Court’s reach and therefore inapplicable in the territory of the member state concerned) during the last decade. The authority of the Court is highly contested and probably more questioned than ever.
That does not mean however that the Court has lost its legitimacy. The ultra vires rulings are the most visible reactions in a European judicial sphere whose activities remain obscure to most citizens. But these decisions remain statistically marginal in a population of thousands of uncontested cases issued by the CJEU every year. The Weiss ruling issued by the German constitutional court was the only ultra vires decision declared against the original decision of the CJEU of 2018, meaning that the other 848 decisions handed down by the Court during the same year (CJEU’s annual report) did not trigger this reaction.
Political, not legitimacy crisis
Moreover, the concept of legitimacy crisis must not be confused with political crisis. The former refers to the absolute rejection of the Court’s authority in the EU, while the latter refers to temporary tensions and problems caused by the weakening of previous institutional arrangements. Some rulings of the Court were not applied in some member states or saw their application delayed by a few weeks. But none raised the idea that the Court should be stripped of some of its powers or be replaced by another (quasi) judicial body such as an arbitration panel, despite the recurring accusation of judicial activism and even of a “gouvernement des juges”.
In 2015, the Court convinced the Member states to double the number of judges at the General Court (from 28 to 56) and obtained a budget increase of at least 13,5 million euros at a time when every other public authority was asked to adopt a strict austere approach to spending. This commitment showed that the Court could generate the trust of national governments even when the EU is under stress. The current Polish crisis even displays that the CJEU is not suffering a legitimacy crisis: lower judges disapply orders from the (politically captured) judicial hierarchy to disapply EU law and stop sending preliminary references to the CJEU. Despite strong coercive measures employed by national authorities (such as suspensions and pay cuts), some judges keep faith in the Court and the EU’s judicial system.
Overall, the CJEU’s legitimacy has not faded away. The Court is a systemic actor in the EU and its role remained steady despite the numerous constitutional changes adopted since Maastricht. Contestation is sharper than ever, however. The Court is taken in the midst of all the socio-economic distress suffered by the entire EU since the late 2000s. Rulings involving core state powers are at times contested and compliance may be delayed, but the ship is still sailing, although in uncharted and increasingly troubled waters.
This piece builds on the author’s PhD work, published as PLATO Report 4: The uncertain world of the Court of Justice of the European Union: A multidisciplinary approach of the legitimacy of the EU judiciary in the 21st century.