Judicial Application of European Union Law in post-Communist Countries

The Cases of Estonia and Latvia

Tatjana Evas

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781409443698
• eBook ISBN:
  9781317110071
• Topic: Derecho
• Subtopic: Jurisprudencia

This book discusses how the plurality of legal norms operating in the European Union can be balanced to produce a functioning, sustainable and legitimate legal system. Presenting a conceptual framework for assessing and comparing transformations of national judicial systems in the context of EU membership, the book contributes to the EU legal theoretical debate on the relationship between 'authority' and 'coherence'. The author develops an original analytical framework of coherence to assess the application of EU law by national courts and uses interdisciplinary scientific methods and research design that combine legal doctrinal and social science methodology to the study of 'classical' legal questions. Providing an extensive database of 2004-2009 national judgments of national courts in Latvia and Estonia, the book offers an extensive comparative review of the jurisprudence of constitutional and supreme courts, as well as providing insight into the jurisprudence of ordinary national courts. It will appeal to legal scholars and political scientists studying courts and jurisprudence.

PART I The Three-Dimensional Coherence Approach

1 Conceptual Framework

DOI: 10.4324/9781315590752-1

… discussing problems of law or legal theory in terms of narrative coherence gets on lawyers’ nerves. They become impatient when someone tries to convince them of the quite received opinion that law should be and is presumed to be coherent. They become suspicious when they are asked to learn still another fashionable word for what – if anyone knows – they know about coherence in law … They even become slightly aggressive, at least in my country, when they hear coherence in law epitomized as ‘narrative’: for ‘nar’ in Dutch means ‘fool’ or ‘jester’; and should not law at least be taken seriously?

Bert C. van Roermund 1990: 310 ¹

¹ Bert C. van Roermund, ‘Narrative Coherence and the Guises of Legalism’, in Nerhot, P (ed.), Law, Interpretation and Reality (Springer and Kluwer Academic Publishers, 1990) p. 310, with kind permission from Springer Science+Business Media B.V.

In addressing the main research questions, the defining approach of this book departs from the state of the art. Before developing the conceptual framework in more detail and defining the central research hypothesis of this book, I will review major approaches from the political science and law literature.

State of the Art – Literature Review

A starting-point that inspires this research and informs the choice of theoretical framework and methodology is insights from three strands of literature: first, legal theory; secondly, political science literature on the Europeanization of national legal systems and judicial discourses (Stone Sweet 2004, Slaughter, Stone Sweet and Weiler 1998, Slaughter 1995, 2003, Weiler 1994, Jupille and Caporaso 2009, Connant 2001, 2002, Nyikos 2007; Golub 1996, Carrubba and Murrah 2005, Alter 1996, 1998, 2000, 2001, 2009, Burley and Mattli 1993, Claes 2006), and third, interdisciplinary ‘enlargement’ literature focusing on the transformative potential and institutional and substantive (legal doctrinal) adaptation of legal institutions (especially Supreme and Constitutional courts) to accession and post-accession challenges (Kellermann et al. 2006, Zemanek 2006, Kühn 2005, Albi 2005a, Sadurski 2006, Albi and Ziller 2007). Through critical analysis of existing scholarship on the application of EU law by national courts, I refine central concepts to capture factors that are considered in the literature to impact the application of EU law by national courts.

A voluminous political science literature on the relationship between national and European courts is dominated by multiple accounts of the role and jurisprudence of the ECJ and thus framed in terms of inter-systemic coherence (Stone Sweet 2004, Connant 2001). The literature provides significantly less evidence on the impact of Europeanization on national legal systems or the intra-systemic account of coherence. Most recently, a notable contribution to the study of Europeanization of national judicial systems has been made by Jupille and Caporaso (2009). They developed and tested two analytical models of the impact of European law on the domestic judicial field. The study by Jupille and Caporaso does not specifically address the issue of coherence; however, the analytical models that this study develops also contribute to understanding of mechanisms and principles that contribute to coherence of the application of EU law in national legal systems.

Jupille and Caporaso suggest two models. First, the ‘statist’ model, based on the idea of the traditional Westphalian international legal order and reasoning, presumes that EU law enters domestic judicial discourse primarily through direct inter-court communication – the preliminary reference procedure – and will be heavily influenced by conscious and continuous control by state actors. ² Secondly, the ‘indigenization’ model, which goes beyond reliance mainly on the preliminary reference procedure, provides for politically less predictable and less controllable ‘spill over’ effects of EU law concepts on domestic judicial discourses in unforeseen and constitutionally important ways (Jupille and Caporaso 2009: 206).

² Under the Westphalian international system, the sovereignty of the state is centre stage. On critical analysis of the Westphalian international legal order, see for example, Cutler 2001, Beaulac 2000, 2004.

Testing these two models against the jurisprudence of the UK courts, Jupille and Caporaso found that even in the ‘special’ jurisdiction of the UK with its longstanding and strong common law judicial tradition, there is overwhelming evidence in support of the indigenization model. Based on empirical evidence from UK cases 1970–2005 (N=4389), they identify an overall trend in case law so that ‘an initial logic of conscious, intended and controlled “compromises” of Westphalia gives way, over time, to an alternative logic in which legal concepts and discourses cross-fertilize each other’ (Jupille and Caporaso 2009: 220). The breaking point of logic change depends on domestic mechanisms for legal incorporation (imitation, socialization of the legal community) (Burley and Mattli 1993, Slaughter 1995) and the set of institutional and doctrinal factors of the domestic legal order (Vink et al. 2009). Referring to Table 1.1. below, the ‘statist’ model closely resembles the ‘Westphalian’ Model 1 with legalistic mechanisms for cooperation between national and European legal systems. The ‘indigenization’ model resembles a shift from legalistic/mechanical ‘Westphalian’ to discursive/persuasive characteristics of the ‘post-sovereign’ discursive/persuasive system.

Table 1.1 Inter-system models of conflict solution by national courts in the EU legal system ¹³

Locus of final authority/mechanism of justification	Hierarchical		Non-hierarchical
‘Westphalian’ (sovereign-pluralist)	‘Regulatory’ (complex unity)	Post-sovereign (synthesis)
Legalistic/mechanical	Classical international conflict of laws approach characterized by predominant reliance on national constitutional doctrines and linguistic arguments. National Constitutional Courts are final arbiters in the legal conflicts of competing norms. References to the ECJ are rare.	Multilevel conflict of laws solutions where the EU is the final normative authority and EU-wide legal unity is a leading structuring element supported by predominantly technical, linguistic arguments. The ECJ is the final arbiter. The role of the ECJ is central.
	High proportion of legalistic, technical and bureaucratic language in the court opinions. The predominant style of court opinions is magisterial and authoritative. High proportion of formal rather than substantive reasons. Implicit logic of rationality is logico-deductive, that is, syllogistic subsumptions.
Discursive/persuasive	As above but national courts in addition to linguistic arguments also refer to systemic and evaluative arguments, although preserving national sovereignty rights as a final criterion in resolving conflicts.	As above but the ECJ in addition to linguistic arguments also refers to systemic and evaluative arguments preserving unity of EU law as a final criterion in resolving conflicts.	Best reason ‘common good’ solutions of competing normative claims. National sovereignty/authority based arguments replaced by main reliance on ‘reason based’ systemic, evaluative and transcategorical arguments based on universal and common values.
	Lower proportion of legalistic and technical language in court opinions. Court opinions are extended and elaborate. Lower proportion of formal rather than substantive reasons. Implicit model of rationality is not deductive but discursive – open choice supported by arguments.

¹³ The criteria to distinguish categories of justifications are adopted from MacCormick and Summers (1991).

The analysis by Jupille and Caporaso is a notable empirical contribution to the study of the impact of EU law on national judicial systems. However, their methodology cannot be directly applied to new Member States (MSs). To trace the process of domestification and logic of change in the UK legal system, Jupille and Caporaso quantitatively assess reliance by national courts on EU legal concepts that were originally foreign to the national jurisdiction. This method of analysis of change presupposes a mature legal system and a strong judiciary as preconditions for the reach of EU law into a national legal system such as the UK’s. Notably, this precondition is missing in the new MSs where legal doctrines and legal cultures are in a state of continuous flux and readjustment from the Soviet legal system to the new realities of the European Union.

The analytical categories developed by Jupille and Caporaso are nevertheless useful tools to assess mechanisms and principles contributing to the transformation of legal systems resulting from application of EU law. Applying insights from Jupille and Caporaso to develop a framework for intra-system coherence, legal principles (substantive coherence) and institutional mechanisms for cooperation (institutional coherence) between national courts and the ECJ are key variables.

In terms of inter-system coherence, that is, the relationship between ‘coherence’ and ‘authority’, the ‘statist’ model with a strong institutional dimension and political control ultimately means that divergent normative claims are settled primarily through authority-based solutions where national institutional actors are decisive. By contrast, the ‘indigenization’ model, with its emphasis on legal principles, points to mechanisms for settling normative inconsistencies through reason-based solutions. Thus the locus of authority in the application of EU law shifts from a traditional international-law approach conditioned on the explicit permission of political actors (and thus subject to the externalities of the political process) to a national-law approach where national courts have the authority to resolve normative inconsistencies based on valid legal rules and principles without direct political interference.

Considering the historical-legal background of the new MSs, it is not possible to differentiate between the ‘statist’ vs ‘indigenization’ logic base...

Table of contents

• Cover
• Halftitle Page
• Routledge Page
• Title Page
• Copyright Page
• Contents
• List of Tables and Figures
• List of Cases
• List of EU Secondary Legislation
• List of Abbreviations
• Foreword
• Preface and Acknowledgements
• Introduction
• PART I THE THREE-DIMENSIONAL COHERENCE APPROACH
• 1 Conceptual Framework
• PART II INTRA-SYSTEM COHERENCE
• 2 Substantive Coherence: Constitutional Structures and Principles
• 3 Institutional Coherence: Interests and Interactions
• 4 Argumentative Coherence: Justifications, Values and Legal Culture
• PART III ADJUDICATION OF EU LAW BY THE NATIONAL ORDINARY COURTS
• 5 Comparative Overview of National Case Law
• 6 Jurisprudence of Estonian Courts
• 7 Jurisprudence of Latvian Courts
• SYNTHESIS AND CONCLUSION
• 8 Domestic Courts and the Application of EU Law: Sources and Methods of Coherence
• Bibliography
• Index