Justice
Is the European court of justice a legal or political institution now?
Increasingly controversial rulings threaten to further erode the credibility of an institution founded on noble principles.
The most curious feature of the European court of justice (ECJ) , the court of the European Union, is not that it is a political court, but rather that it has until very recently been so successful in pursuing its political programme of the integration of Europe through law without attracting much public or even expert notice.
Occasional busts of outrage in the popularly anti-EU press about decisions of "the European court", have generally related to the activities of the European court of human rights (the court of the Council of Europe) rather than those of the ECJ.
Equally remarkably, however, it took a respected US legal academic of the 1980s, Eric Stein, to point out to his European colleagues that 'tucked away in the fairytale Kingdom of Luxembourg' the ECJ had 'wrought a federal type constitution for Europe'.
Today, however, what some might call stealthy politics of the ECJ seem at last to have been unmasked and have begun to threaten not just the legitimacy of the court itself, but the sustainability of the European project as a whole. UK press commentary around wildcat strikes at the Lindsey Oil refinery in 2009 was perhaps slow to realise that the labour movement's complaints about the import of cheaper European workers into the UK were also directed at ECJ decisions in the infamous Laval and Viking cases, which subjected national rights to strike to restrictions in defence of European market integration.
Nonetheless, the UK press did catch up: judgments of the ECJ can and do have a measurable impact upon social and economic organisations within the UK. Equally importantly, however, the recent political activities of the ECJ have also caught the eye of one of the most important national courts in Europe – the German constitutional court – which in its recent judgment on the Lisbon treaty signalled that should European law continue to threaten the core of the German constitutional settlement – the German "social state" – that court would be obliged to disapply European law.
In a European legal community in which there is no clear hierarchy between the ECJ and national constitutional courts, and the implementation of European law has depended largely on the co-operation or "acquiescence" of national judiciaries, the potency of German legal threats cannot be understated: they have the potential to stop European integration in its tracks.
In the UK, then we should be drawn to ask why ECJ politics have now become so important and what impact they might have on our social, economic and political constitution. As noted, the ECJ has historically established itself as a court with constitutional character and, in common with all constitutional courts, has always trodden a very thin line between the "legitimate" legal-constitutional politics of the establishment of principles of social and political organisation and the "illegitimate" personal-judicial pursuit of substantive political programmes.
The vital difference now is that whereas a cadre of European judges drawn from experienced national judiciaries was once, for all its pro-European activity, always very careful to limit the impacts of European law upon the cores of national life (the welfare state), today a younger and, more ruthlessly European ECJ – trained carelessly, as I was , in the supremacy of European law – seems far happier to emphasise the lowest common denominator of European legal integration: the assertion of market over social rights, or the pursuit of a neo-liberal notion of economic justice ("allocative efficiency").
Could or should the UK revolt against a self-asserted European legal supremacy that unravels our social settlement; will the legal systems of the UK join in German constitutional revolt and demand a much needed self-restraining correction in European law, or will they continue to acquiesce in unthinkingly Europeanised legal politics, perhaps limiting even further a badly eroded national right to strike?
Without a written constitution and, importantly, heirs to a historical context of constant friction between embattled judiciary and rampant politics, we are peculiarly exposed to European legal contamination: the House of Lords was always very happy to deploy the weapon of "supreme" European legal principles to overturn – correctly so, in my opinion – outdated and anti-democratic British constitutional conventions (Crown immunity from prosecution). Will the recently opened supreme court nonetheless realise that the game has changed, that a new generation of European judges could yet undermine legitimate legal-constitutional politics throughout the EU, implicating law in the brute substance of politics? For me, UK legal resistance towards the unpopular politics of the current ECJ would not be an anti-European act. Instead, it might just be the saviour of European law.
(Published by The Guardian – August 10, 2010)