Judicial Preferences and the Community Legal Order
| DOI | http://doi.org/10.1111/1468-2230.00074 |
| Author | Damian Chalmers |
| Published date | 01 March 1997 |
| Date | 01 March 1997 |
Judicial Preferences and the Community Legal Order
Damian Chalmers*
Introduction
It is well known that, through its ‘constitutionalisation’ of the EC Treaty in 1963,
the Court of Justice carved out an autonomous legal order which is not only
formally sovereign, but also one which gives rise to rights invocable by individuals
before national courts.
1
Yet this Community legal order poses a conundrum.
2
As
well as being one of the most enduring features of the European Union, it is
undoubtedly the most developed, being the only area of Union activity which can
be described as proto-federal in nature. It has also shown itself to be extremely
adaptive, mutating and developing into one of the most sophisticated of Union
regimes. It is, on its face, difficult to account for the development of this policy,
however. It was developed, within the framework of Article 177 EC, by the judicial
organs of the Community system of governance who would be expected to operate
within the culture of judicial self-restraint. Once the regime was established,
traditional pluralist scholarship would doubt that it could be maintained within a
society, such as the European Union, which is so riven by ‘mutually reinforcing,’
linguistic, economic, ethnic and national cleavages.
3
Yet it has so persisted,
notwithstanding that it touches upon the essence of that most sensitive and
contentious of all topics, the division, and thus the transfer, of sovereignty.
Most explanations, be they doctrinal or contextual, are linear in nature.
Explanations based on neo-functionalism,
4
constitutional federalism
5
and effective
The Modern Law Review Limited 1997 (MLR 60:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.164
*London School of Economics and Political Science.
An earlier version of this paper was given to an SPTL meeting on 27 April 1996. The author is grateful to
all those there for comments. The author is also grateful to Gra´inne de Bu
´rca, Hugh Collins, Carol Harlow,
Gillian More, Colin Scott and Steve Weatherill for having read and commented upon it. The usual
disclaimer applies.
1 Case 26/62, Van Gend en Loos vNederlandse Administratie der Belastingen [1963] ECR 1, [1963]
CMLR 105. Constitutionalism is taken here to be the setting of a minimum standard ‘which is
satisfied by the notion of a government constituted through and substantially limited by law, a form
of rule which both empowers a government to carry out a range of functions associated with the
modern interventionist state, and excludes arbitrary and despotic forms of rule’: Walker, ‘European
Constitutionalism and European Integration’ (1996) PL 226, 270.
2 The Community legal order is described in its narrow sense here. It consists of the juridical effects to
be ascribed to Community norms in national courts.
3 The most authoritative recent account is Lipset, Political Man: The Social Bases of Politics
(London: Heinemann, 2nd ed, 1983). See also Truman, The Governmental Process: Political
Interests and Public Opinion (New York: Knopf, 1951); Bentley, The Process of Government: A
Study of Social Pressures (edited by Odegard) (Cambridge, Mass: Belknap Press, 1967).
4 Burley and Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’ (1993) 47
International Organization 41; Garrett, ‘The Politics of Legal Integration’ (1995) 49 International
Organization 171; Mattli and Slaughter, ‘Law and Politics in the European Union: A Reply to
Garrett’ (1995) 49 International Organization 183.
5 Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 AJIL 1; Mancini,
‘The Making of a Constitution for Europe’ (1989) 26 CMLR 595; Craig, ‘Once Upon a Time in the
West: Direct Effect and the Federalization of EEC Law’ (1992) 12 OJLS 453; Jacobs, ‘Is the Court
of Justice of the European Communities a Constitutional Court?’ and Due, ‘A Constitutional Court
for the European Communities’ both in Curtin and O’Keeffe (eds), Constitutional Adjudication in
European Community and National Laws: Essays for Justice O’Higgins (London: Butterworths,
judicial process
6
all presuppose some underlying exogenous rationale which has
not only guided the behaviour of the Court of Justice, but provides some yardstick
by which we will know when it has reached its final destination. Such theories
require a certain suspension of disbelief. They imply the exercise of a consistent set
of choices according to a stable set of preferences when research suggests that
preferences are not only continually evolving but are shaped through interaction
with the surrounding context.
7
Even if one puts this aside, these theories are ‘open-
ended,’ vague and ambiguous, and consequently have a limited predictive value.
None can explain the pace of change or the adoption of different forms of discourse
in different situations. Moreover, they paint only part of the picture. As Snyder has
pointed out in relation to the doctrine of effectiveness, they are all top-down
philosophies and therefore incomplete, as, by focusing upon analytical
developments within the Court of Justice, such theories sidestep the problems of
incorporation and acceptance by national courts.
8
This article will be divided into three parts. In the first part, I will consider the
internal logic of the Community legal order. I will argue, using cultural theory as a
paradigm, that the Community legal order has been shaped through the Court of
Justice’s management of its social relations. Three factors have therefore shaped
the Court’s judgments in this area — its internal organisation, its formal position
within the EC Treaty framework as the guardian of the rule of the law, and the
external social relations it enjoys with national courts. In the second part, I will
consider why this regime has been accepted by other societal actors within the
Union, given that so many are excluded from the law-making process that it
contains, and the implications this has for the Community as a system of
governance. It will be argued that the Community legal order represents a form of
judicial consociationalism which is characterised by accommodation and strong
jurisdictional ringfencing, with all the corresponding strengths and weaknesses that
consociational models enjoy. Finally, looking at the case law, I will examine the
extent to which these theories can be used to explain actual judicial analysis and
what implications they have for recent developments in the field of State liability.
Cultural theory as a paradigm
My starting point is a neo-institutionalist one. Shapiro caustically commented that
1992); Rinze, ‘The Role of the ECJ as a Federal Constitutional Court’ (1993) PL 426; Mancini and
Keeling, ‘Democracy and the Court of Justice’ (1994) 57 MLR 175.
6 Pescatore, ‘The Doctrine of ‘‘Direct Effect’’: An Infant Disease of Community Law’ (1983) 8 ELR
155; Curtin, ‘The Effectiveness of Judicial Protection of Individual Rights’ (1990) 27 CMLR 709;
Steiner, ‘From Direct Effect to Francovich: Shifting Means of Enforcement of Community Law’
(1993) 18 ELR 3; Tesauro, ‘The Effectiveness of Judicial Protection and Cooperation Between the
Court of Justice and National Courts’ (1993) 13 YEL 1; Van Gerven, ‘Non-Contractual Liability of
Member States, Community Institutions and Individuals for Breaches of Community Law with a
View to a Common Law of Europe’ (1994) 1 Maastricht Journal of European and Comparative Law
6; Caranta, ‘Judicial Protection Against Member States: A New Ius Commune Takes Shape’ (1995)
32 CMLR 703. The argument of Jason Coppel that rights exist prior to duties, and therefore
appropriate duties must be developed to ensure the realisation of these rights, is in essence a
sophisticated reworking of this analysis, as he himself admits, and is thus open to the same
criticisms: Coppel, ‘Rights, Duties and the End of Marshall’ (1994) 57 MLR 859, esp at 876.
7 Cohen and Axelrod, ‘Coping with Complexity: The Adaptive View of Changing Utility’ (1984) 74
American Economic Review 30.
8 Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Tech-
niques’ (1993) 56 MLR 19, 25. A more recent version can be found in Daintith (ed), Implementing
EC Law in the United Kingdom: Structures for Indirect Rule (Chichester: John Wiley, 1995).
March 1997] Judicial Preferences and the Community Legal Order
The Modern Law Review Limited 1997 165
the observer ‘who did not so firmly believe in the independence of judging might
take judging for a special facet of administering.’
9
He considered courts to have
three functions — conflict resolution, social control and law making. While they
were most sharply distinguished from other branches of government in their role as
resolvers of conflict, as their legitimacy was based there on mutual consent, even
in exercising this function they were perceived as being embedded in the political
regime. The similarities between them and other agencies increased in their
function as agents of social control, as there they were imposing outside interests
upon the parties and were even stronger in their role as law makers, where they
were imposing interests which were neither pre-existing nor to which consent had
been given.
10
These similarities are particularly marked in the case of the Court of Justice. This
stems not from any allegation that the Court is ‘running wild,’
11
but from the
institutional structure set up by Article 177 EC, the provision within which the
Community legal order has been developed. The reference procedure set up under
this provision is based upon a court-to-court discourse, where it is the national court
which decides questions of fact and applies Community law to the dispute in hand,
and is therefore predominantly responsible for conflict resolution, with the Court of
Justice being reduced to the auxiliary role of providing guidance on Community
law. The formal decoupling of factual adjudication from the development of
Community law conversely highlights the Court’s role as an agent of social control
and law maker, by simultaneously emphasising the normative aspects of the Court’s
rulings while downgrading the particularities of the factual background.
The most intellectually attractive of all neo-institutionalist theories is cultural
theory.
12
Like other neo-institutionalist theories it considers that preferences are, at
least in part, endogenously formed rather than based on any exogenous rationale. It
considers, therefore, that preferences are shaped by three factors. The first is
cultural bias, the process of self-identification which is determined by the
questions which every entity must provide answers to: ‘Who am I? What shall I
9 Shapiro, Courts: A Comparative Political Analysis (Chicago: Chicago Press, 1981) 20.
10 ibid esp at 36–37.
11 Rasmussen, On Law and Policy in the Court of Justice (Dordrecht: Martijnus Nijhoff, 1986); Neill,
The European Court of Justice: A Case Study in Judicial Activism (London: European Policy Forum,
1995); Hartley, ‘The European Court, Judicial Objectivity and the Constitution of the European
Union’ (1996) 112 LQR 95; Tridimas, ‘The Court of Justice and Judicial Activism’ (1996) 21 ELR
199; Arnull, ‘The European Court and Judicial Objectivity: A Reply to Professor Hartley’ (1996)
112 LQR 411.
12 Arguably, the most fashionable is ‘new institutionalism.’ The nub of this theory is that institutions
are not neutral arenas, but shape the preferences and expectations of other actors. New
institutionalism has difficulties explaining how institutions evolve, are established and come to an
end. It is also problematic in that it cannot simultaneously hold that institutions are autonomous
while other actors are not. The result is that it has resorted to an ever wider definition of what
constitutes an institution, which makes it both difficult to apply and obscures the fact that the size of
impacts upon other actors’ preferences caused by differing institutions will vary. For strong
criticism, see Grendstad and Selle, ‘Cultural Theory and the New Institutionalism’ (1995) 7 Journal
of Theoretical Politics 5.
On new institutionalism within the European Union, see Bulmer, ‘The Governance of the
European Union: A New Institutionalist Approach’ (1994) 13 Journal of Public Policy 351; Bulmer,
‘Institutions and Policy Change in the European Communities’ (1994) 72 Public Administration 423;
Peterson, ‘Decision-making in the European Union: Towards a Framework for Analysis’ (1995) 2
Journal of European Public Policy 69; Armstrong, ‘Regulating the Free Movement of Goods:
Institutions and Institutional Change’ in Shaw and More (eds), New Legal Dynamics of European
Union (Oxford: Clarendon Press, 1995); Kerremans, ‘Do Institutions Make a Difference? Non-
Institutionalism, Neo-Institutionalism and the Logic of Common Decision-Making in the European
Union’ (1996) 9 Governance 217.
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