On 23 January, the monthly MCEL Research Seminar took place.
Gareth Davies, Professor of European Law at Vrije Universiteit Amsterdam, presented on the topic: “Strategies of resistance to the Court of Justice: interpretative pluralism”, followed by a lively discussion among MCEL members.
His presentation was based on the forthcoming Chapter 18 in M. Avbelj and G. Davies (eds) Research Handbook on Legal Pluralism and EU Law (Edward Elgar, 2018). The chapter is available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3109372
Continue reading the abstract of the presentation below:
The Court of Justice has become a very problematic actor in European integration. It propagates a vision in which it is the apex court in a federal European legal order, whose interpretations of EU law should bind all organs of the Member States and prevail even over their constitutions. Yet this vision is clearly not accepted by the supreme courts of the Member States, nor, in all probability, by the lower courts or public, and nor is it easy to defend from the perspectives of democracy, social legitimacy, or even the practical functioning of the European Union as an area, rather than an institution – such functioning requiring a higher degree of decentral deviation, initiative and experiment than the Court would seem to embrace. On the other hand, this is not to say that EU law should be subordinated to national law, even national constitutional law, for that in turn would threaten the essence of the implicit inter-state bargain on which the EU is founded. Theories of constitutional pluralism attempt to finesse this difficult choice by treating the standoff between national and EU courts as a least-bad option which in fact reflects desirable constitutional values, embodying a sort of dialogue, a sort of self-restraint and a sort of tolerance of different points of legal view. However, looking at the situation in terms of a conflict between constitutions, or texts, or legal orders, essentialises the conflict to a degree that is both implausible and undesirable. There is, in all likelihood, nothing in the Treaties and in national constitutions which could not be reconciled if the interpretative will was there. This then, is the task that national courts, particularly supreme courts, should embrace: they should treat their own constitutions and EU law as both binding and equal, and their challenge should be to read them together and use them together to solve specific cases. Resort to hierarchy is not necessary. The situation is a little similar to that found where constitutional provisions are in tension, or pull in different directions. The judge in a free speech case does not reject privacy or free speech, and neither does she need to proclaim an abstract hierarchy, but she interprets and unpacks them to allow a sensible reconciliation or balance to be found in the case. If national courts were to embrace the interpretation of EU law in this way – which some do – that would create a richer and more constructive dialogue than the one envisaged under constitutional pluralism, in which national and EU courts define their position essentially according to their own texts. They talk past each other, about different subjects, whereas they could be formulating their differences in terms of the meaning of a text that they both share and accept.
What this interpretative pluralism requires is an acceptance that ECJ interpretations of the Treaty do not in fact bind national courts – although the existence of enforcement actions means that they need to be taken seriously – but this is no more than a detail: the principle of conferral, and the principle common in legal systems that one judge may not instruct another, both provide persuasive arguments why the Court can only advise, but not bind, national courts. The differences between courts in different nodes of the EU legal systems can then be seen as differences about the meaning of EU law – and surely the meaning of that law is something that deserves to be opened up to debate far more than has been the case – but not about the more sterile issue of which rule prevails.