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The Court of Justice of the European Union

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Citizen Control through Judicial Review

DOI: 10.5040/9781509919116.ch-010
Page Range: 171–190

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Anna Wetter Ryde

Introduction

Constitutional pluralism is an inherent part of the EU legal order. It is reflected in the variety of constitutional solutions that are offered at Member State level to, for example, ensure that governments do not abuse their powers. In the present chapter, I will discuss whether the different constitutional solutions for checks and balances in the Member States have an impact on their interaction with the European Court of Justice (ECJ), and if so, whether this could challenge the autonomous EU system for ensuring checks and balances.[1]

The insertion of checks and balances into the constitutional architecture of states is meant to support the political system in its efforts to guarantee legitimacy, accountability and democracy. It is undisputed in all democracies that even though governments are democratically voted into power they must be subjected to rules and regulations and somehow be answerable for their actions and policies. This implies that the majority needs to be scrutinised and examined to rule out the possibility that it would discard duties and abuse its position of power. This scrutiny usually takes place through the creation of checks and balances.

A common system for political checks and balances is the separation of powers, which divides the power between the executive (the government), the legislature (the parliament) and the judiciary (the courts). The executive is accountable to the parliament and may further be held accountable through judicial review by an independent judiciary. The idea of the separation of power is, however, not dominant in all Member States. The Swedish Instrument of Government is an example of a solution, which is not based on the separation of powers of the executive, legislature and judiciary, but rather underlines that the citizen is at the centre of power. The citizens elect the Parliament (the Riksdag), the Riksdag—indirectly—elects the government, the government governs the country with the help of the administrative authorities, and the courts administer justice in accordance with the directives laid down by the Riksdag in fundamental and other laws. This implies that the judiciary in Sweden has a weaker role in controlling the executive compared to the majority of Member States.

Despite the variety of solutions for checks and balances in the Member States’ constitutional orders, the states have agreed on an autonomous EU system for ensuring that legitimacy, accountability and democracy are upheld in the EU. This system has developed over time as European integration has intensified. The EU’s gradual enhancement of checks and balances has been particularly intense since the beginning of the Maastricht Treaty negotiations and onwards. Since then, the EU has given more legislative power to the European Parliament, invited national parliaments to carry out subsidiarity checks ex ante, provided for a citizens’ initiative, introduced the European ombudsman, provided for stronger transparency regimes and better regulation, and enabled citizens to petition the European Parliament. All of these initiatives stimulate the checks and balances in the EU, which in turn supports the overall goal to safeguard legitimacy, accountability and democracy.

Even though the formal prerequisites for citizen control have been continuously strengthened at the EU level, there are indications that political developments imply fewer real opportunities for citizen control. Since the 2004 enlargement, there are indications that the so-called trilogue is used more frequently to resolve political disputes between the Commission, the European Parliament and the Council, Member States tend to vote through consensus in the Council, more policy decisions are made at the European Council level (especially during the so-called ‘EU crisis’) and the EU’s regulation on access to documents seems to be losing its strength.[2] These indications point at the fact that the initiatives created to boost citizen control of the EU Polity seem to be losing ground, mainly because the political tensions at the EU level are running so high that they demand less transparency and more effective instruments in the decision-making process. Some scholars argue that this development started after the 2004 enlargement, which made compromise agreements more difficult to achieve in the formalised rounds, resulting in more pre-negotiation talks and moving the agenda to the informal setting of luncheon tables and Council corridors.[3] In my opinion, the decrease of ex ante control needs to be compensated by ex post scrutiny or citizens will lose their ability to carry out the necessary controls.

This chapter departs from the proposition that a higher centralisation of power, which is the result of the gradual integration process, requires effective mechanisms for checks and balances at the EU level. This is especially required in relation to the EU Polity, since its mandate to represent the citizens is strictly limited to the powers conferred on it. Against this background, it is interesting to study when and how the Member States decide to interact with the Court of Justice, being invested with Treaty-based powers to resolve conflicts regarding the limits of EU power.[4] Due to political constraints, however, Member States seem to resort to the court in a very small number of cases; some seem to have completely ruled out the possibility of turning to the ECJ for a legality review.

While the EU system for accountability fills some sort of supplementary function, which can be visualised ‘on top of’ the national structures serving to control the national Polity, it needs to be taken into consideration that the centralisation of power at the EU level has the effect of aggravating the task of the national actors who are responsible for controlling the Polity. In this new constitutional architecture, composed of both one national and one EU Polity, it is therefore essential to keep an eye on both Polity levels. This is even more important at a time when external threats to the EU imply further EU centralisation, evoking, for example, a closer relationship between national parliaments and national governments and between the EU institutions. Furthermore, at the EU level, the Member States struggle to find political compromises that may effectively resolve the problems they have commonly identified, often under the shadow of European Council meetings.

In this political climate, there is an added risk that the EU acts beyond the limits of its conferred powers. While new political climates may demand difficult compromises, the argument made in this chapter is that such compromises should not be made in the shadow of the citizens but rather in the direct spotlight of a transparent process, clearly mapping out the constitutional values at stake.[5] This is a crucial part of accountability since without it, it will be impossible for the voters to subject the government to citizen control. Acknowledging the difficulties facing the EU Polity in the balance between effective EU policy-making and respecting the need for a transparent decision-making process, the present chapter looks at the possibility of further stimulating the ex post control of the EU Polity.

Purpose and Method

The purpose of this chapter is to identify structural asymmetries in the choices made by EU governments to request a legality review by the ECJ, within the framework of an action for annulment in accordance with Article 263 of the Treaty on the Functioning of the European Union (FEUF), and to discuss whether the Member States’ reluctance to use the ex post alternative has a negative impact on the EU internal order, created partly to hold the EU Polity accountable for its actions. Actions for annulment are given a symbolic meaning, in relation to the other types of judicial actions, since the political decision for a review to be performed by the judiciary is made at the behest of the governments, which have been part of the disputed decision themselves.[6] Furthermore, this examination by the court is arguably something very different from the role of the judiciary in settling conflicts between parties, since actions for annulment examines the actual validity of legal norms.

This chapter seeks to establish what the incentives are for EU governments to turn to or not to turn to the ECJ to request an ultra vires examination of the legislation. In relation to enhancing accountability, it is argued that a judicial review should exclusively focus on the ultra vires review, since it offers a constitutional method for ensuring compliance with the principle of conferred powers. In this context, it should be recalled that when the EU acts ultra vires, it has failed to adhere to the limits of its competences, which are embodied in the founding Treaties. In effect, ultra vires is the reverse of the competence coin, which makes it unacceptable in a democratic government.[7]

This chapter presents data on the actions for annulment referred to the ECJ by the 15 Member States that have been EU Members since 1995. The data is used to provide a background for the further discussions on whether the right for Member States to refer an action for annulment meets the need to secure robust EU structures for checks and balances in the EU constitutional order.

The survey on the actions for annulment referred to the ECJ by the Member States uses a typology to measure the ‘strength’ of objections by the Member States. It is argued that the strongest type involves cases where Member States object to the mere legality of an EU legal act (directive or regulation), adopted by the EU legislator directly or by an institution with delegated powers. These are referred to as ‘strong cases’. In contrast, the weakest type (i.e. ‘weak cases’, arguably involves cases where Member States react to what they find to be an unfavourable decision often involving them, by questioning the legality of the decision). In this particular case, Member States often complain about a specific measure with direct financial consequences for the country. Such cases include state aid decisions. Although legislative acts may also have financial effects, they are labelled strong cases as they refer to the decision of the legislator, while the weak cases instead address the Commission and the Council in their administrative capacity.

The study has been limited to the period between 1995 and 2016. As a methodological point of departure, it is acknowledged that the ECJ offers a political arena for the Member States, where they may invest juridical and political capital for determining the pace and direction of European legal integration. In that sense, the decision of Member States to intervene and refer cases to the ECJ is primarily a political matter. In addition, the decision to refer a case to the ECJ may also be explained by the constitutional cultures of the Member States. In this chapter, I focus on actions for annulment, examining whether they are particularly indicative of the diversity of the constitutional traditions of the Member States. If so, this could be explained by the fact that actions for annulments invite the judiciary to examine the legality of a political decision, a scenario that is alien to many majoritarian democracies.

When and why do Member States Resort to the Choice of Legality Review?

In this chapter it is assumed that all Member States have an equal interest in defending their policy preferences in the ECJ, especially since they all have an equal footing in the court. This makes the ECJ a unique political arena for the Member States, as no other European institution offers them an equal voice. In effect, we should expect all Member States to use the court in a similar manner for the purpose of defending their national interests. However, as will be shown, this is not really the case.

It is possible to divide the parties that may bring actions (all types of actions) to the ECJ into two basic groups; (i) the national courts that under certain conditions are obliged to refer cases to the ECJ and (ii) the Member States, the European Parliament, the Council and the Commission and private individuals and entities who have a right to refer cases to the court under certain circumstances.[8] These two groups of referees have traditionally different incentives for interacting with the ECJ. While the national courts may be obliged by EU law to request a preliminary ruling to settle a national case, the referral by governments would more often be subjected to strategic domestic concerns. Such concerns may include political EU bargaining capital, fear of having to pay damage compensation and concerns relating to their relationship with national constitutional courts. It should, however, be noted that the national courts may also subject their decision to request a preliminary reference to strategic choices.[9] This implies that the difference between national courts and governments may not be so great after all, even though the governments are clearly under no EU obligation to initiate a proceeding in the ECJ, whilst the national courts are.[10]

The relatively narrow referral grounds available to the EU citizens are to a certain extent legitimised and remedied through judicial review within the judicial systems of the Member States in collaboration with the ECJ. The preliminary reference procedure thus plays an essential role in safeguarding the correct interpretation of Union law but it arguably plays a minor role in securing that the EU law is valid.[11] Furthermore, political scientists argue that the cases evolving from the preliminary reference procedure are of a distinct character. Scharpf argues that the preliminary ruling system implies that there is an inherent structure for promoting market liberal ideals in the EU Treaties, in the sense that the cases ending up in the Court through the preliminary reference to a high degree comprise some kind of conflict between market liberal ideals and national constitutional values.[12] This conclusion is relevant to this discussion since it implies that the Court is not given the opportunity to examine the broader spectra of legal acts, but instead primarily those that involve a conflict between more or less legal integration for the benefit of promoting market liberal ideals. Ultra vires concerns may, however, exist in legislative acts that are not in this direct conflict zone. In effect, the role of the ECJ ‘shrinks’ to safeguarding legal integration. Against this background, it is necessary to distinguish between two functions of the Court: One involves refereeing boundary disputes between the institutions while the other targets the monitoring of individual EU legal rights. This chapter focuses on how boundary disputes are brought to the table of the ECJ.

Now, as mentioned above, when both governments and national courts decide to turn to the ECJ it may be explained as being due to national constitutional traditions, which may be more or less in favour of calling in the judiciary to examine the legality of political choices. Even though it is difficult to draw a parallel between the behaviour of governments and national courts, research points in the direction that such correlation may in fact exist. Marlene Wind has argued that national courts in a majoritarian democracy only reluctantly cooperate with supranational judicial bodies by referring very few cases and that this is due both to little experience with judicial review at the national level but also—and more importantly—to a widespread hostility towards (supranational) judicial review in general.[13] This seems to match the hypothesis tested in this chapter, namely that governments belonging to majoritarian democracies are also more reluctant to refer cases to the ECJ compared to governments belonging to constitutional democracies (see Figures 10.110.3 below). In relation to the national courts it has been argued that those operating in majoritarian democracies are less inclined to participate in the legal construction of the EU than others. Research shows, for example, a correlation between the preliminary reference rates and the type of democracy in the Member States, concluding that ‘(..)the strong negative effect of majoritarian democracy on the preliminary referral rates of individual Member States suggests that the institutional legacy of the type of democracy which continues to emphasise the supremacy of parliament and thereby restrain judicial behaviour may prevail for decades’.[14] It has further been noted that ‘(..)Majoritarian government and the internal balance of power between different governmental branches in the Member States may affect the extent to which national courts willingly participate in the (judicial) construction of Europe’.[15] At a very general level, we could thus assume that majoritarian democracies will, if they ever refer cases to the ECJ, have special incentives in comparison to constitutional democracies. This is arguably a concern for the entire internal EU legal system for democratic control, since it suggests that some Member States consistently deny the ex post review of legal acts, despite the possibility that they have, for example, argued against the lack of legal basis in EU negotiations.

As noted above, previous research focuses on the option of a national court to request a preliminary reference while this chapter instead discusses variations in the possibility of EU governments to turn to the ECJ. This chapter does not claim that the Member States should make frequent use of their right to request a legality review, meaning that the preliminary rulings will always outnumber the actions for annulment by Member States. It is, however, argued that when the Member States find that EU legal acts violate especially the principle of conferred powers, the principle of proportionality or fundamental rights as stipulated in the EU Charter for fundamental rights, they need to seriously consider the ex post legal review. If not, they undermine the legitimacy of the EU Polity by avoiding scrutiny of its actions, since the EU decision-making process is subjected to a high degree of secrecy. Thus, it is through judicial review this process is subjected to scrutiny.

Before presenting the data, it should be noted that most Member States have opted for the establishment of a constitutional court to counterbalance the political power whereas the Scandinavian countries, the Netherlands and the United Kingdom (UK) have refrained from this model. Greece and Ireland apply their own systems, which are more difficult to categorise. This implies that the majority of Member States would be best described as constitutional democracies while the Scandinavian countries, the Netherlands and the UK fit better under the category of majoritarian democracies. Having said that, the conclusion is not necessarily that majoritarian democracies do not seek to guarantee that fundamental democratic values are complied with. However, they apply scrutiny mechanisms, which are an alternative way for the judiciary to safeguard such values. One such Scandinavian feature is the presence of strong transparency regimes, enabling a thorough ex ante scrutiny of legislative measures.

The figures below reflect the number of actions for annulment referred to the ECJ by the fifteen Member States studied in the period between 1995 and 2016.

Figure 10.1 reflects the number of actions for annulment that imply the legality review of a directive or regulation, referred to above as strong cases. Figure 10.2 reflects the number of cases that instead have subjected decisions to legal review, referred to as weak cases. Finally, Figure 10.3 shows the number of interventions that the Member States have engaged in. This diagram does not distinguish between the types of legal act.

Figure 10.1. Actions for annulment/directives and regulations
Figure 10.2. Actions for annulment/decisions
Figure 10.3. Interventions, all legal acts

At first glance, the data does not provide any clear answer to the question of when and why the Member States resort to the legality review option. It can be noted that Spain has the highest record of requesting legal examinations of directives and regulations (strong cases), having referred almost one case per year to the ECJ. The UK, Germany, the Netherlands and France follow Spain. The lowest scoring Member States in this diagram are Italy, Sweden, Austria, Denmark, Luxembourg, Portugal, Finland, Belgium and finally Greece. Belgium and Greece have never referred a case during the period in question.

Moving on to the legality review of EU decisions, Spain again takes the lead, followed by Germany, Greece, Italy, France, Belgium and Portugal. It is noteworthy that the Netherlands and the UK, which were active referees in the cases that examined the legality of directives and regulations, are at the opposite end of this diagram. There we also find Ireland, Sweden, Austria, Finland and Luxembourg. High-scoring Member States also include Greece and Belgium who did not refer any legality reviews of the strong cases.

Finally, the picture changes slightly again when we look at the number of interventions. Again, the UK and Spain are to be found at the upper end of the scale, together with France, Finland (interesting to note), and the Netherlands. At the lower end, we find Ireland, Denmark, Belgium, Italy, Sweden, Portugal, Luxembourg, Greece and Austria.

Now, as noted above, decisions may be looked upon as something distinct from directives and regulations since they are expected to more often represent a concern, which often has direct financial effects for the Member State. 35.5 % of the cases referred by the Member States challenge the legality of decisions in the area of agriculture and fisheries and 42.5 % of these represent cases on state aid and competition. This suggests that some Member States request judicial reviews of decisions where the decisions made by the Commission have been negative.

When searching for patterns regarding how States interact with the ECJ, it is also interesting to study their voting behaviour in the Council of Ministers. What is interesting to study is whether there is a correlation between the Member States which routinely vote against or abstain from voting in the Council of Ministers (directives and regulations) and their actions for annulment at the ECJ (in a strong case). If such patterns exist, it could indicate that the Member States use the ECJ to obtain a legal examination of a policy preference that they lost during Council negotiations.

This point is, however, very difficult to study due to the tradition of consensus voting combined with shadow votes in the Council.[16] Even when the co-decision procedure is applicable, the Council prefers to reach a consensus and much of the decision making is believed to be conducted before proposals reach the Council (i.e. in the Committee of Permanent Representatives (COREPER) and the Council working groups). In these groups and committees, decision-making is influenced by the preferences of the Presidency, coalition-forming, informal bilateral contracts and ‘horse-trading’.

There are, however, a few available sources on Council voting results that can be used to point us to such patterns. Vote Watch reports that governments raise concerns about policy proposals 1.2 times per legislative act adopted by the Council. This implies that they have not been able to resolve their conflicts in the lower Council bodies. In the fields of the environment, regional development, agriculture and the internal market, the number is slightly higher. Vote Watch also reports that in reality, policy proposals may be more contested than it would appear, despite being reported as ‘unanimously agreed’.[17] However, it cannot be concluded from this that the reason for the concerns raised by the Member States had to do with the legality of the proposed legislative acts.

Furthermore, a SIEPS report notes that in the period between 2005 and 2010, it was primarily the older Member States that tended to use ‘no votes’ whereas newer Member States preferred to cast abstentions. Germany, the UK, Sweden, the Netherlands, Denmark, Poland and Italy respectively contested more and were regularly outvoted in the Council. Two larger Member States (Spain and France) and 18 smaller Member States contested occasionally and supported EU legislation more often. In terms of size and geographical location, the data demonstrates that larger and more northern Member States contested more often and with ‘no votes’—Italy being the only southern Member State to do so. In contrast, smaller Member States from the South and the East opposed EU legislation less frequently. The latter group usually made up the majority in the Council and preferred abstentions to ‘no votes’. France and Spain were the only two larger EU countries that shared this type of voting behaviour.[18]

To sum up, accessing Council votes is problematic since there is a tradition of consensus voting. Furthermore, the actual negotiation process is to a certain extent protected by EU law. In effect, the studies on the Council votes reflect primarily the clear cases, where the policy choices or the ultra vires concerns of the Member States have been so strong that they have defended them openly by voting no or abstaining from voting. This implies that it is impossible to know all the cases where the Member States have objected to the legal basis, proportionality and compliance with fundamental rights in EU legislative proposals during the Council negotiations.

Constitutional Review in the Member States

This part of the chapter looks at whether the interaction or lack of interaction between the Member States and the ECJ can be explained by the constitutional traditions in each particular Member State.

The centralised model for constitutional review, which empowers a special constitutional court to annul legislation that runs counter to the State constitution, was introduced in the European countries after the First World War. The movement started in the former Czechoslovakia in 1920, Lichtenstein 1921 and Spain 1931. Hans Kelsen, being the brain behind the proliferation of constitutional courts in Europe, argued that a system of legislative supremacy would be logically incomplete. He proposed that any given act could only be considered valid if it was compatible with a higher norm, a Grundnorm.[19] The presence of a constitutional court in the European countries is today the prevailing model in the Member States. There are constitutional courts in Austria, Belgium, France, Germany, Italy, Luxembourg and Spain. In Austria, Germany and Spain (as well as in the Czech Republic, Slovenia and Slovakia, however, these countries are not included in this chapter) a constitutional complaint can also be raised by individuals who may submit an application to the constitutional court if they consider that their fundamental rights or freedoms have been violated.

The most common alternative to a constitutional court is the American system, providing all courts with the authority to adjudicate constitutional issues during the course of deciding legal cases and controversies. American-style judicial review builds instead on the premise that it may only interfere with the legislature when legislative supremacy has been rejected among co-equal branches of government, thus denying the opportunity of abstract legal review. This system is applied by Denmark, Sweden and Finland. The remaining four countries (i.e. Ireland, Greece, the Netherlands and the UK (soon to leave the EU)) have systems that are difficult to characterise. The Dutch system is worth highlighting as it explicitly prohibits judges from setting aside legislation on constitutional grounds. The same goes for the UK. These two examples deserve particular attention in this chapter considering that their activity in the European Court of Justice is relatively high. My assumption would imply that it should be less so since they do not have a tradition of either abstract or concrete legal review.[20]

As shown above, the majority of Member States have opted for the system of a constitutional court although this choice did not come easy in any European state. On the contrary, before the introduction of the constitutional courts in European states, it was widely held that constitutional review was incompatible with parliamentary governance and the unitary state. It was a strong concern that the acceptance of judicial review challenged the idea of majority rule, which is manifested through legislative supremacy and its corollaries.

Despite the lack of knowledge of what goes on in the Council negotiations, it is at least possible to study whether there is a quantitative correlation between those Member States that apply constitutional review in their national legal orders and their interaction with the ECJ. The test departs from the hypothesis that Member States that take an active part in the ex ante review, would be less inclined to get involved in ex post review. However, if a Member State has a low profile in the ex ante review (e.g. not using the no-vote or abstaining from voting) it would be more inclined to request a legal review. The hypothesis will be further developed below but departs from the categorisation of Member States into majoritarian or constitutional democracies. It should be added that there is, of course, also the possibility that a Member State which is active in the ex ante review, using all of its opportunities to vote no or abstain from voting would also wish to test the legality of the legislation that went against it, ex post. In such a scenario, I would argue that the interaction with the ECJ is less influenced by national legal cultures.

It is important to stress that the aggregate level of actions for annulment by the Member States shows some variations, but that these variations are not really distinct. None of the fifteen Member States turn to the action for annulment in a routine-like way, implying that they all seem to exercise their right with some kind of caution.[21] The relatively small number of actions, ranging from 0 to 28 per Member State over the period in question, confirms this. Nonetheless, patterns in the behaviour of the Member States begin to emerge if you study these figures in parallel with additional data on the Member States’ use of the ECJ, for example, their submissions of observations and interventions. Furthermore, their internal transparency regimes may cast further light on their behaviour.

First, the data shows that what the UK and Germany have in common is that they are both major Member States, taking active part at all levels (with the exception of the UK that does not request the legality review of decisions in that many cases). This involves expressing their position in the Council ex ante adoption and then challenging the legality of the EU legal acts ex post in the Court. Spain and France represent another set of major Member States, but which do not frequently vote no or abstain from voting. They, however, use the Court to request legality reviews. Spain is the most active Member State in the ECJ. The Netherlands seems to act in a similar manner to the UK, although it represents a smaller country. The Scandinavian countries (i.e. Denmark and Sweden) seem to share behaviour in both the Council and in the ECJ, while Finland is a consensus voter in the Council and initiates very few actions for annulment in the ECJ. Finland, however, has a higher record of interventions compared to its Scandinavian neighbours.

At most, a Member State may request one action for the annulment of legislative acts per year (Spain) but most of these are found in policy areas where there are strong national interests, suggesting that these cases do not cover questions on the legality of acts in view of the ultra vires test. The data indicates that the Member States do not regularly resort to the ECJ in order to have the legal basis, the principles of proportionality or subsidiarity examined. The UK is most inclined to request a legality review on these grounds.[22]

The data also indicates that Member States with the character of a constitutional democracy are slightly more likely to ask the ECJ for an action of annulment compared to Member States whose constitutional systems would be better described as majoritarian democracies. As background information it should be noted that Sweden, Finland and Denmark most frequently dispute legal acts on the grounds that they breach the EU’s transparency regimes. This might suggest that they prefer strengthening the regime for the access to the decision-making process to the alternative of subjecting a political decision to judicial review. This would be in line with their national constitutional traditions.

The clearest conclusion that can be identified in the data is, however, that the Member States do not make very frequent use of the action for annulment in comparison to the number of cases when they request an interpretation of EU law. Further, when the Member States interact with the ECJ, they all seem to use the Court as a political arena, defending their political positions in a particular case. This suggests that they do not frequently resort to judicial examination for the purpose of safeguarding the control of EU power.

The Function of the Ultra Vires Test

Today, it is a widely held ideal that the multidimensional quality of democracy represents both government on majoritarian principles as well as the realisation of certain fundamental rights.[23] Moreover, in many states where there is a constitution establishing a balance between majority rule and certain fundamental values, it is an accepted premise that there must be a court to guarantee that balance. Some view this constitutional architecture as a system of mutual policing in the sense that the court enforces legislative respect for fundamental democratic values, while the legislature retains the ability to re-establish the balance. In this way, the Polity remains in power but will at the same time have to exercise some self-restraint. I will now move the focus to discuss the need for ex post constitutional review in the EU. To frame this discussion, I will draw on Kelsen’s theory on the ‘grundnorm’ or basic norm.

Kelsen’s model of the juridical state may be translated into a delegation theory.[24] The distinguishing feature of the Principal–Agent models is that they link, as in a chain, authoritative acts of delegation from one constitutionally recognised authority to another. The idea is that the people represent the Principal (sovereign) and that they may ratify a constitution which delegates power to the legislature. The legislature, in turn, delegates power to the executive. Principles can thus be identified by virtue of the constitutional authority they possess to delegate powers through a specific type of normative instrument.[25] In this system the ultimate source of authority is the constitution, which is assumed to express the will of the sovereign people. This model helps to visualise the importance of gluing together the delegation chain. The legitimacy of EU norms strongly depends on the presence of glue binding together EU norms with the conferred powers.

In Kelsen’s view, democracy is the realisation of liberty understood as autonomy, in a situation where each person is subject to only norms that the person has established or at least consented to.[26] Although the political system should seek for a maximum level of autonomy, it has been admitted unattainable. Furthermore, the majority system is commonly accepted as the best choice, although it is widely recognised that the concept of majority could easily be misused to discriminate the minority. Kelsen’s compromise for this dilemma is to use a limited judicial review aimed at safeguarding the use of the majority’s power including the protection of some fundamental rights. By concentrating on the procedural laws which control the decision-making process, the court may help ensure that the autonomy of the people is kept at a maximum level. Kelsen identifies the grundnorm or basic norm as the norm, which confers power on the government. The purpose of the court is to ensure that delegated power remains in compliance with the basic norm.

By arguing in favour of a limited judicial review, Kelsen acknowledges that judicial examination of the content of norms to some extent challenges the premise for a democratic regime, since it may replace political choice with a judicial decision. However, if there are no guarantees for ensuring that the representatives of the people respect the powers conferred upon them, the democratic premise will nonetheless be at stake. This implies that there is no perfect solution but rather that the best balance between safeguarding political power and ensuring that it respects certain fundamental rights is something to strive for. Kelsen’s theory is particularly interesting when you study the power delegated to the EU by the people as the delegation chain is further blurred by global governance. This is due to the fact that it is claimed that EU decision-making power demands more secrecy to enhance efficiency in the decision-making process, thus making ex ante citizen control more difficult.

So far, to my knowledge, no one has convincingly been able to argue in favour of both democracy and judicial review due to the contradictions inherent in the nature of, on the one hand, political autonomy and, on the other, subjecting it to the legal examination of the judiciary. In this chapter, however, I argue that despite this, Kelsen and Esenmann’s way of delimiting the court review to the examination of the conditions for the creation of the law, constitutes a reasonable compromise for the purpose of controlling that the EU legislature respects the democratic prerequisites of its own power being laid down in the principle of conferred powers. In this context, it is necessary to point out that there are various criticisms of the view that legitimacy is achieved through an unbroken ‘delegation chain’.[27]

This means, however, that the ECJ must avoid expressing an opinion on the law, restricting itself to ensuring that the limits of EU power have been respected. The strongest argument for subjecting the EU Polity to more judicial review, compared to its ‘counterpart’—the national Polity—is that citizen representation is weaker at the EU level. This also makes it more difficult for voters to pass judgments on the governments’ EU policies, endorsing what it has done, or rejecting it in favour of the opposition. Citizen control is aggravated by global governance, which amongst other things weakens citizen control of the decision-making process.

Even though I find the option of a limited judicial review to be a good compromise, having balanced the cons in both options against each other, it cannot be ignored that an enhanced judicial review, even though it is limited to procedural examination, creates new challenges for democracy. Robert Dahl used the example of the US already in 1957 to stress that there is a potential for conflict between the legislature and constitutional jurisdiction inherent in the model of constitutionalism.[28] Despite the fact that this article favours enhanced constitutional ex post control, it has to be acknowledged that this system comes at a price; a price far too complex to fully cover in this chapter. The price that comes with a system for constitutional ‘law-checking’ is that a certain amount of lawmaking must be acknowledged and accepted. This follows from the admitted fact in modern jurisprudence that all legal practice implies a dimension of interpretation.

Some voices have claimed that the problem of democracy and judicial review is not a problem until constitutional courts become ‘too successful’.[29] So, how can the ECJ be held back from engaging in too much lawmaking? Even though the ECJ cannot formally be categorised as a constitutional court, due to the sui generis character of the EU legal system, including the EU’s lack of kompetenz-kompetenz, it is still often labelled as a constitutional court. It is further claimed that the Court has been successful in giving itself a constitutional role.[30]

The ECJ’s interpretative method has been criticised for being blind to the political and economic EU context. While the judges of the ECJ like to discuss their approach regarding how their judgments respect both the EU legal order and the national legal order, they rarely enter into a discussion on whether they acknowledge the political and economic EU context of any specific situation. A limited constitutional review, focusing on the ultra vires test, aiming to safeguard respect for Kelsen’s basic norm and at the same time locating the examination in political fact, would arguably constrain this dilemma. The ultimate aim in this examination is not to review the policy choices but rather to secure that power resides ultimately where there is political accountability, in other words in the legislature. This is important to ensure that the assertion of final political authority is daunting for a constitutional order to force upon its political actors the importance of introspection and self-justification to their respective constituencies. When most European countries introduced the constitutional order after the First World War, a common argument was that without it, the Polity would be freed from judicial constraint and unburdened with a culture of self-restraint, which could nourish totalitarian regimes.[31]

The Way Forward: Actio Popularis

The data in this chapter suggests that there is a general reluctance at Member State level to turn to the Court for a legal examination of a political decision, although the level of it varies among the Member States. Since this chapter argues in favour of an increased use of the ECJ to rule upon the ultra vires question, it has to be acknowledged that more research is needed for the purpose of digging deeper into how often ultra vires concerns are raised in, for example, Council meetings. In my view, in order to secure effective accountability of the EU legislature, every such serious concern raised by a Member State (or the European Parliament), should lead to a constitutional examination by the court. Our data indicates that, although there are some variations in the Member States, very few actions for annulment end up in the ECJ through a referral issued by a Member State.

However, it is not difficult to understand why the Member States do not turn to the ECJ for a legal examination of a political decision that they have spent years negotiating. The political bargaining system works in a way that makes most Member States certain that they will profit from accepting the game if they respect the informal negotiation premise. This line of reasoning could be used to argue that the Member States should not turn to the ECJ for a legal examination after all. Nonetheless, I argue that the trend towards less transparency in the EU decision-making process implies that the delegation chain is being resolved. This trend arguably imposes more demands on the ultra vires examination to control that the delegation chain is kept together.

As noted above, the ECJ referral grounds are limited to ensure that most legal disputes are digested in the national courts. This also manifests a national sovereignty (and saves EU resources). Another delimitation is that the ECJ lacks power to examine legislative proposals ex ante implying that it can only examine legal acts ex post their adoption.[32] This makes perfect sense, since it boosts the authority of the EU Polity to allow political and economic decisions without having to listen to the ECJ. Another delimitation of the ECJ’s power is that citizens and legal entities can only turn to the Court in a concrete case (under a very restricted premise). As noted above, research has shown that national courts have their own incentives for avoiding an ECJ ruling, thus making it even harder for individuals and legal entities to obtain a ruling from the ECJ.

The seemingly lack of incentive for both governments and national courts to turn to the ECJ, along with the restricted possibilities for EU citizens to turn to the Court leaves the EU institutions to call in the ECJ should they deem it to be necessary. In my opinion, relying on the EU institutions for this matter does not provide sufficient guarantees for citizen control. This is most probably due to the nature of the political dynamics of the EU, that tend towards the institutions sharing a view on a final piece of legislation and thus finding no reason to turn to the Court for an examination of their own judgments. This, in turn, is the result of the political bargaining process that is taking place behind increasingly closed doors.

What remains to be done in this chapter is to propose a way forward taking into consideration the democratic concerns raised by enhanced citizen control through judicial review. My suggestion tries to balance the considerations raised in this chapter and it departs from the notion that what is missing is primarily the possibility for citizens to directly hold the EU Polity accountable for its actions. Against this background, and especially bearing in mind the lack of transparency in the EU decision-making process, combined with the need for ascertaining respect for the conferral of powers, it is reasonable to institute an acte popularis in the EU Treaties.

Needless to say, such an act would have to be conditioned in view of the heavy burden already imposed on the ECJ. I propose a model following the same construction as the citizens’ initiative, enabling at least one million EU citizens from at least seven EU Member States to make an ultra vires complaint to the ECJ.[33] In this manner, there would be a formal way to expose a political choice to a legal examination, focusing on the procedural requirements for the adoption of EU legal acts in the event the political power refrains from initiating such a review.

Summary

This study does not provide any clear evidence explaining the asymmetries in the Member States’ use of the ECJ. This implies that more research is needed to establish whether there is correlation between, on the one hand the Member State with a constitutional democracy label and its use of the ECJ to annul EU legislation and on the other hand, the Member States which fits better under the label of a majoritarian democracy. It does, however, indicate that the Member States’ reasons for referring a matter to the Court are heavily influenced by their policy preferences, rarely departing from their interests to ensure compliance with the principle of the conferral of powers, but rather reflecting their distributive policy preferences within the framework of the action for annulment. Considering the limited referral grounds available for EU citizens to promote a constitutional review of the EU Polity, combined with the lack of transparency in the decision-making process, an act popularis ground seems to be a reasonable compromise to allow for more citizen control. It is also important to remember that despite the fact that the ECJ has the authority to interpret the EU Treaties, the right to revise the Treaties still lies in the hands of the Member States.

It should finally be noted that this chapter has been drafted against the background of the current political situation in the EU. The upswing of populist nationalist parties in the Member States is a threat to the basic values of EU cooperation.[34] These parties tend to feed on claims that the EU legislator misuses its powers. Furthermore, should they gain power in the Member States, they will be the future negotiators of European legislation. In effect, even the strongest protagonist of the European integration project, who supports democratic values, should be interested in finding ways to secure that there are sufficient checks and balances in the EU legal order. This includes ensuring that the European Polity does not exceed its powers, conferred on it by the European people through the approval of their national parliaments. The ECJ has a treaty-based role in examining the legality of European acts but cannot do so on its own initiative. When EU governments hesitate to react and fall into the general acceptance of the political bargaining game, the act popularis may offer the EU citizens a chance to react on their own, holding the EU Polity accountable for its actions. I believe that this is a fair compromise and is also a way of protecting the legitimacy of EU cooperation.



Notes

[1] I would like to express my gratitude to Jakob Lewander (researcher at the Swedish Institute for European Policy Studies) for his help in preparing the questions discussed in this chapter.

[2] Discussions on the reform of Regulation No 1049/2001 have been pending since 2008. Curtin and Leino-Sandberg note that ‘(..)While one would think that the tendency was—in line with the recent Treaty reforms—to strengthen the rights of citizens further, in fact the opposite seems to be the case, with discussions on reform mainly circulating around new ways to limit citizen access, many of them in rather fundamental ways seem to be at odds with the letter of the Treaties.’, D Curtin and P Leino-Sandberg (2016) ‘Openness, Transparency and the Right of Access to Documents in the EU. In-Depth Analysis’, (European Parliament Think Tank).

[3] S Hagemann and J De Clerck-Sachsse (2007) ‘Decision-Making in the Enlarged Council of Ministers: Evaluating the Facts’ (CEPS Policy Brief, No 119).

[4] It should be noted that the principle of subsidiarity is traditionally seen as forming part of the ultra vires examination, but due to the special character of the principle and the ECJ’s approach to it, it is reasonable to leave the examination of the principle to the national parliaments. For an analysis of the possible use of the principle of subsidiarity as a limit to the exercise of EU competence, see further J Öberg, (2016) ‘Subsidiarity as a Limit to the Exercise of EU Competences’, Yearbook of European Law 1–30.

[5] The Turco judgment (joined cases C-39/05 P and C-52/05 P, EU:C:2008:374) concerned access to an opinion issued by the Council legal service on a proposal for a legislative act. In its judgment, the ECJ argued that ‘the fear expressed by the Council that disclosure of an opinion of its legal service relating to a legislative proposal could lead to doubts as to the lawfulness of the legislative act concerned, it is precisely openess in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of the European citizens and increasing their confidence in them by allowing divergencies between various points of view to be openly debated’(para 59).

[6] It should be noted that the data collected for this chapter does not rule out the possibility that a Member State can be involved in a case, indirectly, through the preliminary reference procedure. The mechanism enables national courts to request an opinion on the legality of an act.

[7] P Craig, ‘The ECJ and ultra vires Action: A Conceptual Analysis’ (2011) 48 Common Market Law Review 395–437.

[8] In the Da Costa judgment, C-28-30/62, EU:C:1963:6, and CILFIT judgment, C-283/81, EU:C:1982:335, the ECJ developed what is known as the acte éclairé and the acte clair doctrine which sets the criteria when national courts are not obliged to make a preliminary reference to the ECJ about a matter of EU law.

[9] On this matter, see M Wind, Chapter 11 in this volume.

[10] It should, however, be stressed that although the governments are not obliged under EU law to refer cases to the ECJ, it does not rule that they may be obliged to refer cases under national law.

[11] In the period between 1995 and 2015, Swedish courts, for example, only asked one question regarding the legality of a European act within the framework of a preliminary ruling, see U Bernitz, Förhandsavgöranden av EU-domstolen (Preliminary references by the European Court of Justice) (2016) SIEPS Report (2016:9), p 90. In line with the Foto-Frost judgment, C-314/85, EU:C:1987:452, lower national courts are also obliged to request a preliminary reference if questions regarding the legality of a European legal acts are raised.

[12] FW Scharpf, ‘The Assymmetry of European Integration, or Why the EU cannot be a Social Market Economy?’ (2010) 8(2) Socio-Economic Review 211.

[13] M Wind,‘Who is Afraid of European Constitutionalism? The Nordic Distress with Judicial Review and Constitutional Democracy’ (2014) iCourts Workingpaper No 12 2014, 2246–4891, pp 1–20 20, 2246–4891.

[14] M Wind, D Sindbjerg Martinsen and GP Rotger, ‘The Uneven Legal Push for Europe—Questioning Variation when National Courts go to Europe’ (2009) 10(1) European Union Politics 63–88.

[15] Ibid.

[16] V Miller, ‘Voting Behaviour in the EU Council’ (2013) Commons Briefing Papers, SN06646.

[17] ‘Agreeing to Disagree: The Voting Records of Member States in the Council since 2009’ (2012) Vote Watch Europe, Annual Report.

[18] W Van Aaken, ‘Voting in the Council of the European Union: Contested Decision-Making in the EU Council of Ministers (1995–2010)’, SIEPS Report (2012:2).

[19] H Kelsen, General Theory of Law and State, translation by A Wedberg, Twentieth-century Legal Philosophy Series: Volume I, (Cambridge MA, Harvard University Press, 1945).

[20] As regards the states that became Members of the EU through the 2004 enlargement, nine out of ten apply the centralised system for constitutional review (i.e. all except Estonia).

[21] Whether this caution is political or resource-saving is, however, not known.

[22] SIEPS 2017:1op, Brexit: Consequences for the EU and Sweden, p. 39, (2017:op1).

[23] A Stone Sweet, Constitutional Courts and Parliamentary Democracy (Special Issue on Delegation), Faculty Scholarship Series, Paper 84, 2002.

[24] Ibid.

[25] Ibid.

[26] M Troper, ‘The Logic of Justification of Judicial Review’ (2003) 1(1) I.CON 99–121.

[27] For a thorough analysis, see L Besselink (2017) ‘Talking About European Democracy’ 13(2) European Constitutional Law Review 1–14. As pointed out by the author, one weakness of the ‘unbroken delegation chain theory’ is that it tends to produce a mechanical perspective on how democracy is attained. As also pointed out in the editorial, democracy may also be achieved from broad public acceptance of acts to which one is subjected, without having had an actual opportunity to influence those acts or measures. But this alternative form is only acceptable if there is some form of influence (’input’) possible that could change those acts and measures in the future. The argument made in this chapter is that the European citizens’ input is currently so weak that this alternative form is not available.

[28] R Dahl, ‘The Decision-making in Democracy: The Supreme Court as a National Policy-maker’ (1957) 6 Journal of Public Law 279.

[29] See M Shapiro, ‘The European Court of Justice: Of Institutions and Democracy’ (1998) 32(1) Israel Law Review 3–50.

[30] Ibid.

[31] A Barak, Judicial Discretion, trans (Yadin Kaufmann (New Haven, Yale University Press, 1989).

[32] An exception is found in Art 218(11) stipulating a right for a Member State, the European Parliament, the Council or the Commission to obtain the opinion of the Court of Justice as to whether an international agreement envisaged is compatible with the Treaties.

[33] This proposal was initially made in my dissertation, A Wetter, Making EU Legislation in the Area of Criminal Law—A Swedish Perspective (Uppsala University, 2013).

[34] Populism in this chapter is defined as a ‘thin ideology’, one that merely sets up a framework: that of a pure people versus a corrupt elite. This definition draws on the writings of the political scientist Cas Mudde at the University of Georgia.

Swedish Studies in European Law