Davide Sardo
PhD student (King’s College, London), LL M (College of Europe, Bruges)
On the 10th February 2015, Professor Takis Tridimas gave his inaugural lecture for joining King’s College London in September 2013. The lecture gravitated and revolved around the position occupied by the CJEU in two distinct, but strictly connected, open-ended processes that accompanied and shaped the European integration: on the one hand, the definition of the boundaries of the competences of the Union, and, on the other hand, the emergence of an autonomous function of protection of fundamental constitutional rights at the supranational level.
The first part of the lecture was based on three interrelated assumptions. The first one is that “ambiguity” is a character of any constitutional order: this is the reason why the Courts adjudicating disputes concerning constitutional matters are necessarily at the centre of such order, as they have the function and the power, to interpret such “ambiguous” set of rights and values in each specific case that is submitted to them. The second one is that the EU legal order, as a whole, is the result of a number of “dialectical interactions”, the most important of which is the one taking place between the CJEU and the national courts. The third one is that the core element of the transition from an international association into an autonomous organisation is the rise of the CJEU at the centre of the system of protection of fundamental rights, and the consequent (partial and ongoing) deprivation of the role of national states in granting such rights.
The EU legal order, in other words, exists and develops in a dynamic equilibrium: the adjudication process, built upon the dialectic relation between the CJEU and the national courts, is, together with and at least as much as political negotiation, the engine providing for the energy that such complex system requires to keep functioning and developing. The national courts are the natural interlocutors of the CJEU: their position as “primary venue” for the adjudication of EU rights makes them essential, on the one hand, for modulating the access to the CJEU through the channel of the preliminary reference and, on the other hand, for innervating, through the process of adjudication, the national legal orders with norms and principles finding their source at the EU level.
In the second part of the lecture, Tridimas recognised four features of the relationship between the CJEU, on the one side, and the national judges, on the other, concurring to establish a “centralised constitutional model”. These four features are: the narrow interpretation of national constitutional autonomy under the pressure of the principles of primacy and direct effect; the strong reliance on the principle of effectiveness; the extensive approach as regards the EU competence; the “expansive application” of fundamental rights.
The focus of the lecture has been especially set on the last two elements. As regards, on the one hand, the issue of competence, the CJEU has opted for a relatively low standard of review, in particular in relation to the assessment of the EU regulatory powers under the harmonisation clause enshrined in what is now Article 114 TFEU. The standard of review appears to be low especially where compared to federal systems as the USA, but what is even more striking is the “existentialist conception” of competence developed by the CJEU: the ultimate argument seems to be in certain cases the one that if the EU is not empowered to exercise the harmonisation power in question, there is little point in having the EU at all.
As regards, on the other hand, fundamental rights, it is common knowledge that the Court has not waited for the approval of the Charter, or for its incorporation into primary law, to engage in a process of centralisation of constitutional rights protection. Through such path, that the CJEU is still walking with determination to possibly impose itself as the centre, if not as the “one-stop-shop” for fundamental rights protection in Europe (thereby involving also the European Court of Human Rights in a complex dialogue), the judges of Luxembourg have applied to fundamental rights a high standard of protection. This is especially evident as regards the right to judicial protection (see, for example, the judgment in Kadi), the principle of equal treatment (e.g. Mangold), and the right to the protection of personal data (e.g. Google Spain). The incorporation of the Charter into primary law has added legitimacy to such process, and has encouraged a more sound and structured reasoning as regards fundamental rights.
It can be argued that an element of this overall “centralising” tendency is, therefore, a sort of asymmetry between the low standard applied by the Court to the review of the EU regulatory competence, and the high standard applied to the protection of fundamental rights. The two issues are, however, inextricably linked, and the recent clashes with some of the national constitutional courts (see, especially, the referral of the German Federal Constitutional Court in the OMT case, and the decision of the UK Supreme Court in the HS2 case) should be taken as a warning in this sense. In Tridimas’ view, the CJEU risks to trigger, and lose, a battle over competence if it fails in applying a standard of review that is as rigorous as the one adopted as regards the protection of fundamental rights.
In the conclusive part of the lecture, Tridimas turns once again towards the identified features of the Court’s engagement in the formative process of the EU legal order, but changing the angle, to finally dwell on the vexed issue of the legitimacy of the Court’s approach. He starts by offering a convincing critical assessment of the expression “judicial activism”, sharply reduced at “an expression often used just to describe a judgement the author does not like”. The above mentioned “ambiguity” of the constitutional order is, on the one hand, the element that makes every question (or most of the questions) submitted to a “constitutional” court somehow “political”, and, on the other hand, it is the characteristic that founds the legitimacy of the court to deal with such issue, and to provide an answer. Rather than in terms of “activism”, or of “politicisation”, the activity of the Court should be judged on the stringency of the reasoning, and on the coherence in the use of the precedent, in the employment of the rules of interpretation and in the application of the standards of review.
As a conclusion for these short notes, I will briefly try to follow one of the many possible paths of reflection offered by the lecture, and to offer a personal insight on some possible future questions and developments. In particular, as regards the relationship between the CJEU and the national courts, one might wonder whether and how the crisis will affect the features of the dynamic equilibrium described by Tridimas in the lecture. The measures taken during the crisis in the domain of economic and monetary policy are, in fact, attaining to the very foundations of the constitutional architecture of the Union. In particular, the strengthening of the instruments of convergence in the field of fiscal and economic policy, and the undeniable increase in the mutualisation of certain systemic risks (both as regards the public and the private sector), have come at the price of a “new Union method” that has largely marginalised the “community method” in the Economic and Monetary Union, and has increased the relevance of intergovernmental bargain in the decision-making process, both within the EU institutions and through international agreements that are now somehow gravitating around the core of the EU legal order. It will be interesting to see how the relationship among the courts will cope with the new tensions deriving from such new order. Seen under this light, for example, the referral of the German Federal Constitutional Court in the OMT case shows an alarming outline, as it might look like the transposition into a judicial battlefield of a dispute on economic policy that was lost by the Bundesbank on a different institutional context.
This calls for a broader reflection on the role of the judiciary in the context of the long-lasting reduction of the scope of action of majoritarian politics. In the context of pluralistic constitutionalism (especially at a multi-level scale), it is undisputed that the complexity of the axiological content of the provisions on fundamental rights requires the Court to address issues that cannot be entirely pre-determined by the text of the law, and therefore entirely “sterilised” and deprived of any political content. It is all the same convincing, as put forward by Tridimas, that the ambiguous concepts of “activism” or “politicisation” are not sufficient in order to evaluate the legitimacy of the activity of a constitutional court, and that such assessment should rather focus on the coherence of the reasoning and of the use of the precedent. However, in a framework in which neutral powers (stemming from public institutions or agencies, or even from outside the strictly intended public sphere) are eroding the space traditionally reserved to political choices, the question arises whether the attitude of the courts (at the national and at the supranational level, and in the interactions between these two levels) is actually contributing, on its side, to such dangerous trend. In such general terms, this remains necessarily an open question, to be kept into account for future analysis.