In fact, national courts, that is, judges are those who are best aware of that risk. Being a part of the supranational legal order we are frequently in a position to decide cases that require from us to recognize decisions of courts from other Member States with their own specific legal rules, cultures and outlooks as if they are “ours”. For example, if a dispute between parents results in a child being taken away to another Member State by one parent (frequently a national of that State) first thing a judge deciding such case in that Member State must do (she or he being a part of the EU legal order) is to check what legal steps did the courts in other “home” Member States already take and give full recognition to their decisions as if they were made by themselves. This is only one specific example of judicial interdependence. There are literally hundreds of other examples in other areas of law.
This judicial interdependence is the consequence of a simple fact that the Union we share is constructed upon the notion of free movement of all individuals enjoying its protection. In fact, we all participate in “sharing” it because it allows us to move freely, to have more freedom in our choices that we would otherwise have. Free movement assumes mutual recognition and more fundamentally it requires mutual trust. If actors in a legal system of one Member States start bringing into question prerequisites of mutual trust between national courts, including the effectiveness of the Art 267 TFEU mechanism, this will inevitably affect willingness of national courts in other Member States to keep extending their trust to those who are willing to bring the fundamentals into doubt. The EU legal order is built upon leap of faith and faith is justified by certain shared values and principle; without those values and principles it will be lost.
How do you see reform ideas like the “reverse” preliminary ruling procedure that would institutionalize the obligation of the CJEU to initiate a preliminary ruling procedure in cases which involve the interpretation of national constitutions?
I am skeptical towards such ideas. It is difficult to see how they could function in practice without driving a wedge between the Constitutional Courts and the CJEU. The idea of preliminary ruling is to provide proper interpretation of the law that ought to be practically applied in the context of particular set of factual and legal circumstances of a particular case at hand. This would not be the purpose of the so called “reverse” preliminary ruling since the CJEU has no competences to apply national law. Consequently, the purpose of such procedure would be to affirm Constitutional Courts as final interpreters of their national law in relation to their regular national courts. The issue of relation between a national Constitutional Courts and regular courts may be a very important issue. However, as a constitutional court justice I would like to settle that issue within my autonomous legal order without involvement of the CJEU. In case where a Constitutional Court considers that it has been undermined by some regular national court within in the context of Art 267 TFEU mechanism I am convinced that it can employ the same mechanism to address this problem. I am also rather convinced that there is an appropriate understanding that there is a difference between lower instance regular court and Constitutional Court engaging Art 267 mechanism. Hence, the problem is not that the CJEU does not “listen” enough to Constitutional Courts. The problem may be something else: the manner in which some constitutional courts justices (mis)interprete the purpose and implications of Art 267 mechanism.
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 competences or the composition 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 harmonious cooperation as well as an equilibrium that aims to better respect the constitutional structures and identities of the Member States?
Well, there would be several. But the one that is recently very much on my mind does not directly relate to judicial dialogue. What troubles me is the dilemma of the so-called “political Commission”. The idea of a European Commission that strictly tied to political wills that do not fit really well to the original concept according to which the Commission ought to be independent and non-biased guardian of the European legal order. The “political Commission” was developed as a reaction to the criticism the institutions of the EU suffer from democratic deficits. Before that the Commission was technocratic.
The positive side of being a technocratic institution is that they are more independent from politics
and more and maybe too narrowly focused on the interests of the EU legal order. In this way, the European Commission was perceived as being loyal to the interests of the European Union. When it has become
a “political Commission” it began to be much more concerned with political concerns of the Member States,
even more than with other political bodies of the European Union. Plus, the “political Commission” has begun to assume a role of a broker. That can be a legitimate role but it is not a role that fits well with the old and original idea of a Commission being a neutral and an unbiased guardian of the European Union.
What is the consequence of this transformation?
The European Commission used to have two traditional functions. On the one hand, initiating infringement procedures against Member States before the CJEU. This served as an instrument in the hands of the European Commission to be able to fulfill its role as a guardian of EU law. On the other hand, legislation initiatives. We cannot have secondary EU law without the legislative proposals of the European Commission. Both of those competences assumed that the European Commission would be independent from the Member States. When the idea and role of the European Commission is shifting and becoming more political in the name of fixing the democratic deficit, it would lose focus with regards to its two traditional functions.
The European Commission carries out its political balancing role at the expense of its traditional roles.
And this shift has also implications on the functioning of the CJEU…
Exactly. Let’s make the whole circle. We started our conversation with the question what role the CJEU played in developing the EU legal order. My answer was in simple terms: pivotal. However, in developing the EU legal order, the CJEU had a strong ally. It was the technocratic, very narrowly focused and diligent European Commission.
I am not sure the CJEU has the same support today from the institutions and whether the European Commission sees its relation to the CJEU in the same way.
I think the shift in the European Commission approach changes the dynamic in the triangle among the Member State, the CJEU and the European Commission.
We now have a European Commission that is more similar to national government than it was before. Let’s think about this. Every year the European Commission publishes a report on the rule of law in the European Union. Why has this report been respected?
There has been an assumption that the European Commission was objective since it was removed from a regular political pressure that you would have in a regular political process on a national level.
So although an executive body the European Commission was different than a regular executive branch of a national government and because it was different, it was trusted to issue these kind of reports. If such a report came out from a national government, a key executive body, would it be considered equally objective by other governments and citizens? I am not sure. How does it change the distribution of powers on the level of the European Union between its institutions and then its implications on national politics? These are the types of dilemmas that I ask myself today as the European Commission has become a “political Commission”.