Adjudicating Europe

The idea of a dialogue amongst judges is a classic in EC law. The preliminary reference procedure is the communicative device through which national judges and the ECJ converse over the interpretation of Community provisions, and it serves a pragmatic purpose: to solve a case raised by parties before a domestic court.

There is, of course, a myth surrounding the very idea of cooperation, and it is a useful illusion that allows the ECJ to undergo reforms and developments that the Treaties will hardly ever address. Allow me a brief recount of the outcome in the name (and for the sake) of cooperation.

For the sake of cooperation, Simmenthal bombarded the monopoly of all Constitutional Courts to invalidate parliamentary statutes.

For the sake of cooperation, Foto-Frost did exactly the opposite and proclaimed the monopoly of the ECJ to invalidate Community provisions.

For the sake of cooperation, lower national courts must ponder whether to disregard or not a decision quashing on appeal an order for a preliminary reference, even if their national procedural law clearly imposes the annulment on the referring judge. Or so Cartesio seems to say.

Also for the sake of cooperation, after Köbler national courts of last instance must raise references to the ECJ and eventually become liable for breach of article 234.3 if they misbehave (not mischievously, but “cilfitievously”).

For the sake of cooperation, national courts must apply Community law even if a previous judgment from a superior national jurisdiction, with force of res judicata, has stated the opposite (see Luchini and Ollimpiclub).

And this is not all.

Cooperation is a heavy burden indeed. It rests over the shoulders of the national referring judge and requires a considerable knowledge of the ECJ’s case-law that is not always of easy access to domestic jurisdictions. Cooperation also requires a good knowledge of judicial diplomatic jargon, for the ECJ does not always state its messages clearly (for obvious reasons). Also, cooperation rests on the ECJ’s ability to sound authoritative and drive national courts to do things they would normally not do: seduction is probably the word.

Let’s look at it from the national judge’s domestic institutional context.

Among the many, many, many cases sitting on his desk, the national judge is left alone to solve a question that will drag him into a fight against his domestic procedural rule-book, his superiors at the regional High Court or Supreme Court (or against a Constitutional Court, good god!) or even against a consolidated administrative practice too. For an ordinary judge, sitting alone in his office, it’s no easy task to declare a war on the legislator, his judicial hierarchy and the executive, all at once, but that is exactly what the ECJ’s case-law is asking our hero to do.

And a true hero he is.

Is it time then for the ECJ to change the approach? Should cooperation depend more on the good-will of national judges (retaliatory mechanisms aside) and eventually set judgments such as Köbler, Lucchini, Simmenthal, etc…, aside?

The answer is obviously “no”. The Court’s case-law has helped Community Law to be a real legal order living with its own resources inside national legal systems, and judges must comply actively by assuming powers that serve the purposes of EU law. The ECJ has successfully achieved a federalizing effect that has integrated not only “the laws”, but also the jurisdictions that are entrusted to make this law come true.

Cooperation must therefore carry on under the same normative standards set by the Court. Where changes can be made is in how this discourse develops in the course of each procedure. The mantra of cooperation and dialogue serves a normative goal (the case-law) but also a pragmatic result (the concrete case), and it might be in the latter where further efforts could be made.

This takes us of course into an unglamorous terrain, that of visits, meetings, telephone calls and legal assistance among judges. It’s much more alluring to explore the in-depths of Köbler or Simmenthal, I know. But maybe the time has come to be more practical and get into the details of how cooperation runs in the ordinary day-to-day of a domestic court and the ECJ, and search for answers there.

I will propose a new relation (albeit unglamorous) for the ECJ and national courts when the latter raise a preliminary reference, enabling domestic judges to attend hearings at the ECJ and to participate with the sitting judges at the ECJ in preparatory meetings before the discussion begins at the Court.

And that’s exactly the topic of my next post.

- Pescatorius