Judicial Dialogue Is Tremendously Important in Europe - conversation with Christopher Vajda

 In the development of the law of the European Union as well as in defining its relation to national laws, the Court of Justice of the European Union (CJEU) has been playing an important role for decades. From the principle of primacy or supremacy of the EU law to the state liability for failing to transpose EU legislation are all judicial doctrines. How do you see the role of the Luxembourg court in the solidification and development of EU law?

I would say that there are three pillars. The first is a procedural one but nonetheless highly important.

The reference of preliminary procedure is described by the CJEU as the “keystone” to the European legal order.

Courts of Member States either have the possibility or an obligation to make a reference on questions of interpretation and validity of EU measures. The CJEU is the ultimate arbiter of how provisions of EU law ought to be interpreted.

That takes me to second pillar that is the “direct effect”. This was first brought into EU law by the landmark judgment of Van Gend en Loos from the 1960s. It enables individuals whether they are corporations or natural persons to rely directly on EU law. The CJEU declared that the

EEC Treaty was different than a normal international treaty as it grants rights to individuals which they can enforce in their own domestic courts.

Furthermore, an individual now can also rely on an ever growing EU legislation and many parts of the EU Charter of Fundamental Rights.

That leads us to the third pillar that is the supremacy pillar. This principle was also established by the CJEU in a case called Flaminio Costa v ENEL. The supremacy of EU law over national law was inevitable once the Court had held that the EEC Treaty contained rules that had direct effect in the national legal order.

These three pillars gives the CJEU such an important role.

What could be the limits of this supremacy in your view? Maybe the boundaries of the Founding Treaties?

The CJEU’s jurisdiction is limited by the Treaties. However within that limit EU law is supreme over national law. If there is a wish to limit the scope of jurisdiction of the CJEU this would have to be done by Treaty amendment.

National constitutional courts or equivalent judicial forums of Member States have become increasingly involved in reviewing legislative, executive or – as the recent decision of the “Bundesverfassungsgericht” concerning the Public Sector Purchase Programme (PSPP) showed – even judicial decisions of the European Union based on the provision of the national constitutions. This constitutional review has its roots in the 1970s, but it somewhat amplified in recent decades. What role national constitutional courts play in developing EU law?

The first point to make is that national constitutional courts are extremely important. The CJEU has developed a dialogue with courts in the Member States, including national constitutional courts, not just formally via the Article 267 TFEU reference procedures but also informally in bilateral or indeed multilateral meetings to discuss cases of mutual interest. Plainly, it is the role of the national constitutional court to ensure that national legislation complies with their own constitution. Of course, while in doing this they inevitably come across EU law. You went back to the 1970s. At that time there was the first clash as the German Constitutional Court stated that it would have to review EU legislation against German fundamental rights as the EU legal order did not possess such fundamental rights. That of course potentially endangered both the supremacy and the uniformity of EU law. The CJEU, recognizing the danger, declared that the EU does in fact recognizes fundamental rights. This enabled the German courts to accept the supremacy of EU law on the basis that the EU legal order respected fundamental rights.

Then what happened down the road?

Well,

the subject-matter of EU law has expanded hugely.

At the same time the EU has acquired its own fundamental rights document, namely the EU Charter on Fundamental Rights which applies, inter alia, in situations where Member States implement EU law. Since EU law is expanding and applies in a huge number of areas beyond the original largely economic areas in the EEC Treaty, it is not surprising that you will have cases where the national constitution of one Member State, as interpreted by its constitutional or supreme court give a particular answer and CJEU and the EU law may not give the same answer. This is obviously an area which is ripe for tension, especially as one gets into more sensitive topics such as asylum, privacy and national security.

As you rightly mentioned the EEC Treaty started out as an economic cooperation but now EU law is broader in nature and includes many broader societal questions as well. How does and should it affect the judicial dialogue?

There is no doubt that there are now more cases of EU law come before national constitutional courts. Thus there are therefore more references from national constitutional courts to the CJEU than previously.

How would you increase the efficiency of the dialogue between the European and national judicial forums to achieve a more harmonious interpretation of the EU law?

What I think is tremendously important is

to have a dialogue with national courts

in the two senses that I referred to above. On the one hand, it has to be understood as a formal dialogue, for example when the German Constitutional Court sends a question to the CJEU on the activity of the European Central Bank. On the other hand, it has to be understood as an informal dialogue as well that provides a framework for judges to sit down and discuss recent judgements on a regular basis. The informal dialogue should help promote an understanding of CJEU judgments by the national courts.

Is there a hierarchy among European judicial forums and the highest courts or are they rather deliberating on an equal footing?

Well, I think you have to look at this question in two ways. Clearly, the CJEU has the last word in the interpretation of the EU law. Therefore, the CJEU can decide a question on the EU law without being bound by a judgement of a national constitutional court on the same question and all national courts within the EU must apply the CJEU judgment. On a formal level, it is not a relationship on a sense of equal.

However there is a huge respect for national constitutional courts in the Luxemburg court.

The CJEU therefore reads very carefully the references that are made from the constitutional courts. One example of this is when I was a judge, that there was a reference made by one of the lowest courts in Italy on a VAT matter. The question was whether the expiry of an Italian time limit to prosecute VAT fraud was compatible with EU law. In this judgement the CJEU said that it wasn’t. However, the Italian Constitutional Court sent a new reference to the CJEU (M.A.S. and M.B, Case C-42/17)  questioning its decision in the first case. It pointed out politely that there were a number of issues that the CJEU had not looked into at the first time including the principle of non-retroactivity. The Italian Constitutional Court invited the CJEU to rethink what it said in the first judgement. The CJEU did in fact do that. Although it did not overrule its earlier judgment, it qualified it by taking account the points made by the Constitutional Court. That is an example of a fruitful dialogue between a constitutional court and the CJEU. The CJEU considers very carefully what the national courts are saying but cannot be bound by that.

Considering the growing political characteristics of the European integration, would it be wise in your view to introduce a kind of “reverse” preliminary ruling procedure whereby the CJEU has an obligation to turn to national constitutional courts on specific questions?

I am not attracted to the idea of having a “reverse” preliminary ruling. The first reason why I am not in favor of a “reverse” preliminary ruling is that this would just lengthen the legal procedure. What the individual needs is an answer in a reasonable time. Secondly, from a legal perspective, whether something falls into the category of national identity is ultimately a matter of EU law since this is a concept contained in the Treaty. The supremacy of EU law allows no other answer. But having said that, the CJEU should not operate in a vacuum. There is absolutely nothing that would prevent the national court which makes the reference from telling the CJEU what is the position under national constitution and what it thinks the answer should be as a matter of EU law.

As Peter M. Huber, the Member of the German Constitutional Court pointed out in a recent conservation, constitutional identity is a different and a somewhat narrower concept than national identity. It is the core of national constitutions. How this core could be defended in the framework of a European judicial dialogue?

The short answer is in the same way as any other legal norm, namely through the Article 267 reference procedure in which a national constitutional court is able to make all points that it thinks are both relevant and important in its Order for Reference. This enables the CJEU to have before it those points when it is considering the case.

The recently launched Conference on the Future of Europe aspires to provide a forum for discussion about the potential reforms of the EU as well as about the future of the European continent. Hence, it also offers a unique opportunity to discuss questions concerning the reform of the composition and status of the CJEU as well as the interplays of national constitutional courts and the CJEU. What reform steps would you think worth considering in order to achieve a more harmonious cooperation as well as an equilibrium that aims to better respect the constitutional structures and identities of the Member States?

My own experience being a judge for seven years is that in virtually all cases there is no problem in the sense that the national constitutional courts apply the judgements of the CJEU loyally and without any difficulty. It is only the exceptions to this that generate headlines. The CJEU, along with the EU legal order, will ultimately survive. It is not just a question of supremacy of EU law but also, I would hope,

a willingness to accept the judgments of the CJEU based on the respect for the quality of those judgements, including, in particular their reasoning.

Reasoning needs to explain, in particular, why the loser has lost. The reasoning of the CJEU judgements is now much fuller than, say, thirty years ago. To my mind this is a great improvement. The better and fuller the reasoning is, the easier it is for the judgments of the CJEU to be accepted at the national level. In terms of the composition of the CJEU the introduction of the so-called Article 255 Committee (so named by reference to the Treaty Article in the TFEU) which has to produce an Opinion on every judicial candidate nominated by a Member State has been a great step forward. Happily its non-binding Opinions have always been followed by the Member States. The existence of that Committee has undoubtedly led to an improvement in the quality of judges appointed to the CJEU which is to the benefit of both the EU and national legal orders.

National judges throughout the EU are required to constantly study EU law. I am wondering whether it would be wise for the judges of the CJEU to continuously educate themselves on the basic developmental paths of national constitutions.

I think it is too much for judges at the CJEU to have specific training on the basic developmental paths of national constitutions. Nevertheless through the informal dialogue that I mentioned judges from the CJEU do meet judges from national constitutional courts and that is a good occasion to mention particular developments at the national level.  Also, as I have said, an order for a reference from a national constitutional court should always present the current position in national law to the CJEU. That way the CJEU is given the upto date picture of the national legal position.