The Legal Order of the European Union

The Institutional Role of the Court of Justice

Timothy Moorhead

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781134446209
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

The objective of European integration serves as an ideal of the legal order of the European Union and invites reconsideration of law's conceptual features. This book critically assesses the legal order of the European Union, focusing on the operative aspects of the Union constitution with particular reference to the institutional practices of the Court of Justice in expressing the values underlying this constitution.

Drawing together positivist and non-positivist accounts within an institutional understanding of law, Timothy Moorhead breaks new ground in applying a range of analytic jurisprudential perspectives to the Union legal order, and in employing the theoretical resources provided by the Union to model a revised conceptual viewpoint concerning legal order generally. In offering this conceptual approach, Moorhead emphasises the flexibility inherent in law's institutional character as the basis for a theoretical rationalisation of the Union legal order.

This book will be of great use and interest to scholars and students of European Union Law, Jurisprudence and European Constitutionalism.

1 Introductory chapter

Introduction

The theoretical component of this work can be summarised in the following proposition:

The value of European integration, serves as a fundamental ideal of the legal order¹ of the European Union, inviting reconsideration of the conceptual features of law.

The practical component of this work can be summarised in the following statement.

The Union Treaties as a constitution for the project of European integration provide a unique institutional context in which to consider the judicial role of the European Court of Justice.²

In exploring these propositions, I have drawn inspiration principally from the work of two writers, Neil MacCormick and Clarence Mann. MacCormick’s institutional account of law captures the sense in which law as a positive, ‘conventional’ social practice is a result of an interpretation we give to this practice in light of the aims, functions or values we attribute to legal order. Law as ‘institutional fact’³ decries traditional analytic distinctions, affirming both non-positivist beliefs regarding the dynamic influence of underlying values of functions of legal order over legal outcomes, as well as positivist insights that recognise the necessity for legal demands to be identifiable by reference to (relatively) certain social conventions in order for the functions or values served by legal order to be realised in practice.⁴ This is the only theoretical approach I have encountered that provides the analytic tools appropriate to understanding the Union legal order which, by contrast with statal orders, is based on the formation of a new political entity as an evolution of existing constitutional settlements.

MacCormick then has provided inspiration for the theoretical strand of this work. A second and related central theme concerns the institutional role of the European Court of Justice.⁵ Here I owe a significant debt to Clarence Mann’s seminal work, written in the early 1970s, The Function of Judicial Decision in European Economic Integration.⁶ Mann’s hugely impressive and insightful work is unique in its approach to understanding the judicial function in the European Union⁷ setting. Mann offers a rationalisation of the Court’s practices that directly engages with the fact that the Court is charged with giving legal effect to a unique instrument, the (then) European Economic Community (EEC) Treaty.⁸ His insight was to appreciate that the judicial function in giving legal expression to the promotion and achievement of the various objectives contained in the Treaties is flexible enough to develop bespoke methods of reasoning that properly reflected these concerns.

In this regard, Mann’s plausible analysis is that the Court’s method of reasoning is thematic, focusing upon the achievement of the Treaty objectives centred on the creation of a single economic market amongst the Member States. Judicial articulation of these collective thematic concerns in the Court’s judgments develops the project of European integration. In addition, the Court’s presentation of the legal demands arising under the Treaties is contextualised and qualified by the wider institutional environment in which it operates, including the other Community institutions as well as the Member States. This institutional context means that the Court is perennially engaged in ensuring, in Mann’s view, that its judgments exhibit practicality, purpose and authority. Mann’s analysis forms the basis of my attempts in this work to describe the role of the Court as a supreme judicial institution charged with upholding in the Treaties a constitution for the European Union. This constitution directs the Court to the achievement of specified social and economic objectives, the thematic concerns of Mann’s analysis, and ultimately towards European integration as an aspirational, uncertain and politically contested ideal.

Preliminary remarks

Generally, academic writing on the subject of law falls into two categories. The first concerns the organisational or systemic qualities of or between legal orders. Accounts of law in this category seek to clarify the meaning of legal governance as a form of political association arising in domestic, transnational or international settings.⁹ Key issues are the locus of sovereign legal authority, how legal orders interrelate and the degree(s) of autonomy associated with sites of legal governance. Generally, accounts of legal order as a form of governance focus on the role of law in relation to particular political and/or cultural contexts.

The second category concerns the branch of legal philosophy known as analytical jurisprudence. Here inquiry¹⁰ seeks to identify those conceptual features which are either necessary or sufficient to speak of the existence of law¹¹ as opposed to the contingent features of individual legal orders?¹² Law as the subject matter of analytical jurisprudence tends to produce insights that are abstract in the sense that they are not contingent upon cultural or historical factors but rather reflect upon innate features of human social existence.

Accounts of the legal order of the European Union tend to fall under the first of these two categories,¹³ seeking to rationalise the operation of Union legal governance from a variety of perspectives of political theory. In this regard, as a jurisdictionally limited legal jurisdiction that privileges the aspiration of European integration and claims supreme hierarchical status within domestic legal settings, the Union challenges existing views concerning the operation of domestic legal orders based conclusively on a body of constitutional values of political morality. In addition, the mutual assertion of legal supremacy between the Union and Member States¹⁴ has opened up an extensive literature on the subject of ‘European constitutionalism’. This covers a range of topics relevant to the operation of legal orders generally; their origins,¹⁵ the meaning of legal sovereignty,¹⁶ the accommodation of mutually incompatible claims of legal jurisdiction¹⁷ and the constitutionalisation of international law.¹⁸

In short, academic inquiry into the Union legal order has focused almost exclusively on developing or adapting received accounts of legal governance in order to explain the Union as opposed to the statal ‘way of governance’.¹⁹ Little attention has been given to how analytic accounts of law inform understanding of the Union legal order, or conversely whether existing analytic accounts of law may require modification if these are unable to fully account for the characteristics of this order. This second possibility might appear surprising, given that the task of analytic jurisprudence, the identification of universal features of law, would appear to militate against taking the features of a single legal order to uncover potentially new conceptual features of legal order generally. I would reject this intuition for the simple reason that there is no a priori reason why the conceptual properties we attribute to law as a social phenomenon should be limited by our current state of knowledge. As Julie Dickson has noted:

Given that law is a complex and multi-faceted phenomenon however, we would seem to have no reason to believe that such properties will be few in number and indeed it is at least possible that there may be an indefinite number of such properties.²⁰

One of the tasks of analytic jurisprudence is in my view to actively seek hitherto unconsidered conceptual features of law or legal order.²¹ The legal order of the European Union, which undoubtedly offers new perspectives on legal governance, attested by a voluminous literature on the subject, would seem to be an appropriate candidate for inquiry.

Law’s evaluative dimension

As an introduction to this task, consider the following working definition of the concept of law as:

a formalised body of social practices comprising authoritative normative injunctions that serve to define, guide and enable all forms of social conduct in a manner that necessarily generates valued forms of social ordering.²²

This definition has the virtue of identifying law’s normative, formal and evaluative dimensions, each of which in fact possesses an evaluative significance as considered in Chapter 2. The predominant focus in this work however is upon the evaluative component of legal ordering in the sense of the underlying values that form the aims and functions of any given order. These functions concern broadly the justification of normative claims associated with practices of legal governance. How the justification of legal demands is linked to the concept of law is the subject of deep disagreement within existing analytic accounts. For non-positivists, the value(s) or functions on which we base such justification are correctly seen as inscribed within any conceptual account.²³ By contrast, for positivist writers, law is viewed as a descriptively accessible conventional social practice, ‘valued’ for its inherent (functional) capability to enhance human social existence.²⁴

These two approaches to the concept are also linked to views concerning the role of values within legal practices. If we accept that upholding certain values or functions represents a conceptual feature of law, this suggests that values necessarily play a dynamic role within legal practices. Alternatively, if we affirm the conventional, ‘constant’ character of the social practices associated with law creation and application, then the values or functions of law will be an implicit or static feature of these practices. In short, different conceptual approaches reflect a variety of viewpoints concerning whether values, usually those of morality, may,²⁵ may not²⁶ or must²⁷ dynamically influence the form and substance of these practices.²⁸

The precise role of values within a given legal order will depend on a variety of factors that concern the wider social, historical, political and cultural context in which legal demands operate as well as the overall objectives any given order is designed to achieve. In principle, as I shall argue, values may feature as static/structural or dynamic features of any given legal order although in practice some degree of dynamic influence over legal outcomes is necessary for their effective expression. A rational account of legal order must therefore adequately convey the sense in which legal demands represent the values or functions law is intended to promote, as well as the need for relative certainty in the creation, application and interpretation of these demands to allow for the effective prosecution of these underlying functions.

The ‘weak’²⁹ or ‘post’³⁰ positivist institutional account of law by Weinberger and MacCormick fulfils these purposes, recognising both the ‘social fact’ and functional character of institutional practices of law creation and application. Their analysis therefore breaks down apparent divisions of positivist and nonpositivist viewpoints, emphasising the conventional character of legal order while recognising the dynamic role of values as a driver of legal outcomes. An institutional perspective also, in my view, provides the analytic tools to achieve a full theoretical appreciation of the Union legal order.

The role of values in the legal order of the European Union: new directions

Domestic (statal) legal orders represent in principle an unlimited governmental jurisdiction constrained in practice by constitutional requirements endorsed by the relevant polity. By contrast, in the transnational setting, legal order is characterised by the attribution of defined legal competencies and hence by the positive exclusion of legal authority in areas not so identified. A further distinction lies in the fact that transnational legal orders may be based upon the promotion of particular political, social or economic objectives. Where, as in the Union Treaties, such objectives are stated in broad, aspirational terms and are linked to the emergence of a new governmental settlement, this raises important theoretical questions concerning the role of values underlying legal order.

The Union represents the exercise of legally conferred (by the Treaties) legislative, policy-making and regulatory powers, directed to the achievement of a politically momentous, and hence constitutionally significant objective (for the Member States), an integrated Europe.³¹ The constitutional basis of the Union legal order is the evolving political, social and economic objectives set out in the Treaties, crucially the creation and operation of the single market. These objectives operate as foundational legal values, alongside ‘rule-of-law’ concerns contained in Union general principles (which broadly reflect constitutional values of the Member States).³² In sum, the staple concern of theoretical jurisprudential debates, the link between law/legal practices and morality, is challenged by the Union to explain the (further) sense in which political objectives may, in addition, serve as values underlying legal ordering.

The Union order also raises theoretical questions concerning the existence of mutual and conflicting claims of legal sovereignty relating to the jurisdiction conferred under the Treaties and affirmed by domestic constitutions respectively. These claims derive f...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• 1 Introductory chapter
• 2 Theoretical perspectives on law and the law of the European Union
• 3 Institutional perspectives on the legal order of the European Union
• 4 The Court of Justice
• 5 The values of the European Union legal order: constitutional perspectives
• 6 Union or Member State Kompetenz Kompetenz: constitutional questions in the relationship between Union and domestic orders
• 7 European Union law as international law
• 8 Concluding chapter
• Bibliography
• Index