Adjudicating Europe

This question might raise eyebrows, I know. You might react in disbelief. ECJ, pluralist? It makes little sense. After all, pluralism itself is only a passing fad, and the ECJ – the ultimate guardian of the supranational fortress – has been anything but pluralist in its latest judicial pre-emptive strikes against the national side of the European judicial equation. Just recall the Kuku, or as I have baptized it, a Mangold II case.

Yet, it might be happening. The very recent opinion by AG Cruz Villalon in the Elchinov case (C-173/09) could be a harbinger of a more dialogic, co-operative, respective European judicial future. Pluralism in the making.

Anyway, what is it all about? The AG dealt with a reference submitted by the Administrative Court in Sofia asking whether EU law precludes a lower court from complying with a judgment of its supreme court where a case is referred back to it and it has serious doubts as to whether the judgment is compatible with European Union law.

It is common knowledge that these sorts of questions belong to the so-called Rheinmühlen line of cases, recently spiced up by the notorious Cartesio ruling, whereby the Court has, admittedly in a murky and not very intelligible language, tended to tip the scale in favor of EU law, railroading the national procedural autonomy. More succinctly, the existing rule has been that in principle the requirements of correct, uniform and efficient application of EU law served through the preliminary ruling procedures are to be given primacy over the national procedural autonomy.

Right, the AG now believes this jurisprudence should be reconsidered.  For times have changed:

“In contrast to the situation in the 1970s, it is possible to assert today that European Union law has reached a level of maturity which allows it to ensure its own practical effectiveness before the courts of the Member States with a lesser degree of involvement in the autonomy of national courts than that which indubitably results from Rheinmühlen I. That is why the time for reconsidering that case-law appears to have arrived (par. 30).”

By now efficient mechanisms have been developed to ensure the rights of the affected party and to serve the interests of EU law: liability for damages caused (by a manifest breach of the law, including by the courts of the last instance), with a possibility of another reference for a preliminary ruling; and an action for failure to fulfill obligations (on behalf of the Member State due to the non-performance of its courts).

In other words, the ECJ can be confident enough that national courts of last instance will play along; both because of the legal mechanisms developed and due to a growing willingness of the national courts to participate in the construction of European legal order, too. Provided of course their special place in the national legal order is recognized and equal status in EU law assured.

I believe the AG’s opinion strikes the right cord. It maximizes the interests of all the parties involved. National courts of last instance are recognized their proper place in the European judicial architecture and the ECJ is sending signals that it wants them as equal partners. In so doing, the ECJ is also getting rid of perhaps somehow less important references from lower national courts, thus shrinking its docket and decreasing the heavy workload. All this with no or only little risk for the viability of EU law.

Let’s remain hopeful that the Court will hear the AG’s call.