EU Treaties and the Judicial Politics of National Courts

A Law and Politics Approach

Pablo José Castillo Ortiz

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138885585
• eBook ISBN: 9781317503774
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Law
• Index: Politics & International Relations

Cases such as the Maastricht ruling by the German Federal Constitutional Court or the 'Crotty; decision by the Irish Supreme Court have gone down in the history of European integration as outstanding examples of intervention by judicial actors in important political processes. In this book, Dr. Castillo Ortiz makes for the first time a comprehensive analysis of all such rulings by national higher courts on European Union treaties issued during their processes of ratification.

Using an interdisciplinary Law and Politics approach and a sophisticated methodological strategy, the book describes the political dynamics underlying some of the most relevant judicial episodes in the process of European Integration during the last decades: litigation strategies by Europhile and Eurosceptic actors, relations between the judiciary and the other branches of government, and clashes of power between national courts and the European Court of Justice of the European Union. By offering empirical evidence and by relying on scientific rigor, the book seeks to provide both experts and the general public an accessible account of one of the most salient but least studied aspects of current European law and politics.

1 National Higher Courts and Processes of Ratification of European Union Treaties

Introduction

National higher courts with powers of constitutional review – hereinafter NHCs – have played a protagonist role in the political integration of the European continent. A couple of significant examples are sufficient to illustrate this. In 1987, at the request of Mr. Raymond Crotty, the Irish Supreme Court issued a ruling on the constitutionality of the ratification of the Single European Act. After the court declared the treaty unconstitutional, the Irish Constitution had to be amended in referendum in order to complete ratification. From that moment, every ratification of a major European Union (EU) treaty was deemed to require previous constitutional amendment in the country. The Crotty ruling was thus responsible for a number of referendums in Ireland whose ultimate goal was the ratification of EU treaties. Furthermore, some of these referendums failed for treaties such as Nice or Lisbon, giving rise to often criticized, complex political manoeuvres intended at circumventing the negative vote. In the long run, the decision of the Irish Supreme Court had political consequences of a continental dimension.

The second example took place just a few years later, this time in Germany. After accepting the complaint filed by Manfred Bruner against the Maastricht Treaty, the German Federal Constitutional Court issued a ruling that made European history. Although the court declared the treaty to be constitutional, it challenged the European Court of Justice. Karlsruhe presented itself as the ultimate guardian of the rights of German citizens against EU law and stated it would watch that the EU would not exercise its competencies ultra vires. Two of the core principles of EU law, primacy and direct effect, had been put into question.

Rulings on EU treaties during their processes of ratification are thus critical events. They show how NHCs behave under strong political pressures and how they articulate their relations with other judicial and political actors. These episodes allow the exploration of dynamics of conflict and cooperation in which law and politics merge. This book is intended to provide the first comprehensive, in-depth review and analysis of all such cases, combining a number of research efforts in the field.

Towards a Better Understanding of Judicial Behaviour in Processes of Ratification of EU Treaties

The pair of examples that have just been mentioned show the relevance of national courts’ rulings on EU treaties. Precisely because of this salience, it is striking that not much attention has historically been devoted to such rulings in law and politics literature. In general, in political science studies until the seventies, courts were often excluded from the agendas of European integration researchers, and when they paid attention to these actors, they mainly focused on the Court of Justice of the European Union (Dehousse, 2000:16). In its original narrative, neofunctionalism focused on the interaction between the political development of European integration and the needs created by this integration (Haas, 1958, 1964; see also Schmitter, 2005; Rosamond, 2005). The neofunctionalist narrative is widely known: The integration in certain sectors of the European economy created incentives for further integration in other sectors. The growth in the number of transactions among member states created a need for supranational institutions, to which wide regulatory powers had to be bestowed, and which deepened the process (see inter alia Haas, 1958, 1964). In this narrative, judiciaries – especially national judiciaries – were mainly absent. After the classic writings of this school of thought, however, a number of authors (Stein, 1981; Weiler, 1981; Mancini, 1989) began to pay attention to the role of the European Court of Justice in the process of integration. Probably that is why, when Haas’ neofunctionalist school was renewed by a body of literature led by Alec Stone Sweet (2000, 2004, 2010; with Brunell, 1998), the Court of Justice of the European Union and its role in furthering the integration became core elements of the analysis. However, on the one hand, these later writings focused on the Court of Luxembourg and its relation with national lower courts, with NHCs being less explored. And, on the other hand, such literature has generally referred to the everyday functioning of EU politics and not to the more concrete processes of treaty ratification.

Intergovernmentalism paid more attention to processes of treaty ratification (Moravsik, 1995, 1998; Moravsik and Nikolaides, 1999). Unlike neofunctionalism, intergovernmentalism defends that it is the states – in particular national governments – who are the key actors when trying to understand the political evolution of the EU (Moravsik, 1995). Although intergovernmentalism paid attention to processes of treaty ratification, conceiving periods of transformation of the EU as moments of convergence in national preferences, in this case, the emphasis was put especially on ‘political’ actors in the narrowest meaning of the word: in governments, negotiations, etc., with the role of NHCs being unexplored. As Stone Sweet and Brunnel (1998) suggested on a footnote of the end of their piece: ‘Intergovernmentalist approaches to European integration are all but irrelevant to the concerns of this article [“The European Court and the national courts”], not least because they ignore the role of national judges and litigants’. The only offspring of this school of thought – if this can be so considered – which has paid attention to judicial actors has been Garret’s (1992, 1995) ‘structural modified realism’, which has focused mainly on the European Court, but has neglected its agency to a large extent, as this theory conceives the decisions of the court as the result of the preferences of European states.

Despite this, the role of NHCs in processes of ratification of EU treaties is, for a number of reasons, a theoretically relevant phenomenon. The participation of NHCs in processes of treaty ratification involves interaction in the judicial arena between a number of convergent, juxtaposed or divergent interests: those of actors supporting ratification, those of actors opposing it or those of the very courts. For that reason, the decisions made in these rulings, far from being mere legal constructions, will be the expression of the dense political context in which they are framed. In studying national courts’ rulings on EU treaties, this book is therefore one on judicial decision making in a clearly defined political frame: processes of ratification. In general, researches like this one have tried to answer general questions about judicial behaviour:

[W]hy does a judge vote for one litigant instead of the other in a particular case? Does the judge base his or her decision on the legal principles governing the dispute, or is he or she affected by ideological, policy, or strategic considerations?

(Weiden, 2010:335)

In the case of this research, however, judicial behaviour is greatly conditioned by the scenario in which it takes place and by the object of judicial review. The episodes that will be analyzed raise concrete problems and research questions regarding the context in which judicial behaviour operates. This book addresses in particular two important theoretical puzzles, which relate to the two most important decisions that courts made in these rulings: decisions on the merits and decisions of Kompetenz-Kompetenz. These two different research questions relate to two different branches of literature in judicial politics. Whereas the first question poses a problem of ‘inter-branch interaction’ – how courts interact with other branches of government – the second one poses a problem of ‘intra-branch interaction’ – how courts interact with each other (Friedman, 2005).

Intra-Branch Interaction: Kompetenz-Kompetenz Decisions

The role of NHCs in processes of ratification of EU treaties is salient, first, because the ratification of a new EU treaty may provide for new rules about how EU law and internal law will interact in the future. These new rules might implicitly set a certain role for NHCs under the new legal frame, even if only because they do not modify the preexisting status quo. Their participation in processes of treaty ratification gives national courts the possibility to have their say regarding their new position in the context of European legal integration. And NHCs have often used that possibility for their voice to be heard (see inter alia MacCormick, 1995; Claes, 2006; Kruma, 2010).

The first research question refers thus to how national courts have interpreted their own relation with EU law and with the Court of Justice. From the beginning of the process of integration, the Court of Justice has created with its praetorian case law the principles of primacy and direct effect of EU law (see Weiler, 1999). According to these principles, EU secondary law must take precedence over national law in cases of conflict between them. In addition, the interpretation of rules of EU law and their validity would correspond exclusively with that of the Court of Justice. Strictly following these principles was considered by the European Court as a guarantee for the functioning of the common market (Komarek, 2005) and as the very foundations of European law (Maduro, 2003:13–14). However, in their rulings on EU treaties, some national courts have challenged this interpretation, creating the doctrine of their own Kompetenz-Kompetenz: their capacity to make an exception to the application of secondary law in cases of conflict with core constitutional provisions (v. inter alia MacCormick, 1995; Weiler, 1995; Kiiver, 2010). In so doing, national courts have challenged the doctrine of the Court of Justice of the EU and the status quo of European legal integration. The question that arises therefore is: Which circumstances allowed national courts to challenge the doctrine and the power of the European Court of Justice by citing the Kompetenz-Kompetenz doctrine?

Statements of Kompetenz-Kompetenz have been studied by law scholars in many works (inter alia Everling, 1994; Weiler, 1995; Přibáň, 2009; Kruma, 2009). However, the only attempt to study such statements in a systematic and causal way has been the work recently published by Dyevre (2013). Using econometric models, the author has analyzed the variation in national courts’ approaches to the issue of their own Kompetenz-Kompetenz. This book, however, only partially overlaps with his approach, as I have opted for a different methodology, a different theoretical framework, different explanatory variables and a different unit of analysis: Whereas Dyevre uses courts as units of analysis, this book uses statements of Kompetenz-Kompetenz in individual rulings. This has some consequences. On the one hand, this research does not exhaust the issue of Kompetenz-Kompetenz, but just makes a contribution to the more general debate, as a number of such doctrinal statements have been made in rulings which fall outside the object of research. My research strategy, however, has also some positive aspects. On the one hand, a large number of context-related variables are automatically controlled for, as such context is homogeneous for all the cases covered by the book. On the other hand, this implies that the study is carried out at a micro level – concrete rulings – instead of a meso–macro level – courts in general. This allowed me to analyze in more detail each ruling and to describe the micro politics of judicial decisional activity: I could analyze variables whose importance can only be understood by reviewing individual cases, variables which would otherwise go unnoticed, hidden in the greater generalization of analyses carried out at the level of courts.

Inter-Branch Interaction: Decisions on the Merits

The second research question refers to courts’ decisions on the merits. Following Closa (2013a), the role of national courts in processes of EU treaties ratification can be understood in the light of Putnam’s (1988) ‘two-level game’ theory. According to this theory, agreements in processes of ratification must be reached at two levels: the negotiation (level I) and the ratification (level II), so that an agreement cannot be modified at the ratification level without reopening the level of negotiation. This situation confers to NHCs great power in the ratification of treaties so that they can enjoy a de facto veto power (Closa and Castillo, 2012). Given that each ratification of an EU treaty requires the unanimous consent of all member states, and given that the giving of state consent is regulated by the internal legal systems of each member state (Maduro, 2003), the participation of NHCs may affect such giving of consent, making it easier, more complicated or even blocking it. Thus, the courts’ role is relevant both for supporters and opponents of the ratification of the treaty. In his recent piece, Closa (2013a) studied the impact of Putnam’s theory on the work of other authors, who in some cases have analyzed even processes of ratification of EU treaties (König and Hug, 2000; König and Slapin, 2004). But the object of study of this book presents a special feature in which it diverges from other applications of Putnam’s theory. The participation of NHCs in processes of treaty ratification normally takes place once negotiation has already concluded and the content of the treaty has already been agreed to. For that reason, political actors have just two options to avoid what Lida (1993) called ‘involuntary defection’: They can either anticipate the reactions of NHCs before the text of the treaty is agreed to – and thus make the text of the treaty compatible with the expected preferences of courts – or they can try to constrain and control the reactions of NHCs to prevent them from vetoing the treaty once it has already been agreed to.

Processes of treaty ratification require agreement by all member states (Closa, 2013a), so the failure of ratification in one single state can become a setback of a continental-wide dimension (De Witte, 2004). In this sense, two types of results of the process of constitutional review are innocuous – declarations of constitutionality and rejections of the petitions on formal grounds – as these give gre...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of Figures
• List of Tables
• Acknowledgements
• 1 National Higher Courts and Processes of Ratification of European Union Treaties
• 2 Constructing a Model of Judicial Behavior: Theoretical Framework
• 3 EU Primary Law Before the Guardians of the Constitution: Courts’ Decisions on the Merits
• 4 Kompetenz-Kompetenz—The Doctrine of the Last Say: The Interpretative Decisions of Courts
• 5 The Legal Dimension: Assessing Judicial Behaviour from the Viewpoint of Legal Rules
• 6 The Political Dimension: A Pro-ratification Context
• 7 The Judicial Dimension: Institutional Design and Decisional Dynamics
• 8 Judicial Behaviour as a Result of Complex Causation: A QCA Approach to the Juridical Dynamics of Treaty Ratification
• 9 Conclusions and Some Final Reflections
• 10 Methodological Appendix
• Index