Blog of the International Journal of Constitutional Law

A Faustian Deal? (I·CON 14, Issue 2: Editorial)

J. H. H. Weiler, Co-Editor-in-Chief, I·CON; President, European University Institute

After a relatively short-lived honeymoon, Ms Merkel is under attack within Germany, internationally and not least in Turkey itself for the deal struck with Mr Erdogan to stem the influx of refugees and asylum seekers to Europe. Degrading, humiliating, illegal are some of the kinder things being said. Particularly galling to many is the near silence of Ms Merkel in the face of Mr Erdogan’s alarming crackdown on academics, journalists and others, which has been widely reported and condemned. I am not insensitive to all of these concerns but I am not willing so easily to join the choir of condemnation. As regards Ms Merkel, one cannot overstate the admirable courage and  humanity  which she (and her country men and women) showed in not turning their back to one of the most wrenching humanitarian disasters of our epoch – all the more admirable when set against an ugly rise of atavism and xenophobia throughout Europe. To some her actions were reckless – I would describe them as noble. Italy and Greece should join her on the podium. Yes, there is much to criticize in the Turkey deal, but let us also not lose sight of the fact that the deal, with all its blemishes, was in no small measure the result of the unwillingness of most Member States to engage in any meaningful burden sharing.

Mr Erdogan is an enigma. His early years in power were no less than spectacular, not only in economic management, but historically for once and for all eliminating the army from Turkish politics – the repeated military coups are now a distant memory. He also seemed to chart a way which would respect the democratic wishes of a majority of Turks to acknowledge and give expression to the religious identity of Turkey without compromising democracy itself. Sure, it enraged those in Turkey wedded to its historic laic status quo, but his move was not out of line with many a non-laic state in Europe. And for a while it seemed that he even achieved a peaceful resolution to the Kurdish problem. So why, at the height of his power and prestige, the turn to authoritarianism? Explanations abound, but let us leave that for another occasion. Without in any way minimizing the deep and justified concern created by recent events in Turkey, there is one fact about Erdogan and his fellow country men and women which in my view is seriously underplayed: the generosity of spirit of the Turkish in stating simply “these are our brothers and sisters” and accepting close to three million refugees. Turkey falls short of many important international human rights standard and the record of welcome is far from perfect. But what is the point of our own admirable standards if we keep the gates closed?

Reform at the CJEU

The reform of the Court of Justice of the European Union is by now, it would seem, a done deal. Those who want a ball-by-ball (or blow-by-blow) description of the process as well as a detailed analysis and critique should turn to the inimitable Steve Peers in his indispensable EUlawanalysis blog as well as to insightful postings by Daniel Sarmiento, Laurent Pech and Alberto Alemanno. This is one occasion when the talkbacks are worth careful study too. The saga was just that – a veritable saga lasting for years, involving feuds that broke out in the open (The Financial Times reported alleged threats by the then President of the CJEU against Members of the General Court, my my) but as I shall point out, also touching on some neuralgic nerves that alas are still part of the physiognomy of the Union in other areas.

The background is simple enough. The Court of First Instance, later named the General Court (GC), was established in 1989 primarily to reduce and rationalize the caseload of the European Court of Justice (as it was then known). With the passing years the tables turned and it became the case load of the General Court that was the problem – not simply because of the number of cases but also because of their complexity and the fact-finding function the GC had to fulfil. It was composed of a judge from each Member State but no permanent advocates general, though a little used provision allows a judge to serve in that capacity if needed. Established in 2005, the Civil Service Tribunal, composed of seven judges, was welcomed by all, not only as a caseload reduction measure but as a model of a specialized tribunal over a specific subject matter (a subject matter which most judges abhorred). It was considered by all and sundry a success.

The pressure thus arose for a reform that would increase the number of sitting judges on the General Court, possible without much constitutional fuss, with a “sidebar” arguing for the simultaneous creation of further specialized tribunals – a proposition favored by some and resisted by others. But there seemed to be a general consensus that the number of judges on the GC had to increase – by ten or so – to get rid of the backlog and to manage it with a reasonable time schedule in the future.  So, you would think, let’s just do it. The proposal languished. The reason? The Member States could not agree on a formula for abandoning the hallowed and hollow principle of One Member State One Judge. Twenty-eight new judges seemed unnecessary and hence overly expensive. You would think that some formula of rotation would be easy enough. Not so. The eventual solution, though preferable to the status quo, was not only sub-optimal but in some ways pathological: the appointment of 28 new judges, whilst at the same time abolishing the Civil Service Tribunal which would be absorbed by the enlarged General Court. Eventually the GC will consist of 56 judges! I say pathological advisedly. There is something hugely important in the ontology of European integration when one is able to break the One Member State – One Member (of whatever) mold. The boldness of Juncker in establishing the Vice Presidents is notable and important in many ways, including this. And the Court would be precisely a locus where such strides could be made, especially if attenuated by some form of rotation. Whether one will see the emergence of specialized chambers within the GC remains a question mark.

So from an understaffed GC we are moving to a bloated GC. By contrast, the caseload pressure on the European Court of Justice is once again showing stress with a growing number of preliminary references.

Not an ideal situation but, nonetheless, there are several silver linings. The increased number of judges of the GC will enable more cases to be decided by chambers of five judges. This might seem a trivial issue – it is not. There is a qualitative difference in the dynamic of decision-making by three or five. The increased number of judges might shift attention from the quantitative matrix of clearing cases to a matrix which pays more attention to the quality of the deliberation and the quality and style of the drafting, a touchy issue to which the judges do not always take kindly.

But the biggest payoff, which will justify this somewhat clumsy reform of the General Court, will be its potential impact on the Court of Justice. It might encourage the Court of Justice, which is meant to address this issue in a couple of years, to finally let go of its most cherished article of faith, namely that it alone is the appropriate body which can and should receive preliminary references and issue preliminary rulings. I do not wish to rehash the myriad arguments for such a reform, the objections and the possible responses to such objections.

Finding a formula for directing at least a portion of preliminary references to the enlarged General Court, resulting in an appreciable reduction of the case law of the Court of Justice, can only be beneficial. I say this not only in the interest of temporal  efficiency but in the interest of increasing the deliberative quality, the decisional quality and  the communicative quality of each of its decisions and increasing the ‘specific gravity’ of each decision  within the entire legal system of the Union. This could also be an occasion to reshape the relationship between the two courts, which historically has been less than ideal.

If there is anyone who can manage the process with his unsurpassed authority and consensus-building skills, it is the current President of the Court of Justice who is of course, also the President of the CJEU as a whole.  The pathology of moving from 28 to 56 may end up being a blessing in disguise.

In this Issue

This issue opens with an article by Nicholas Barber who examines the various forms that entrenchment can take, presenting an in-depth analysis of the reasons for and against entrenchment. In his illuminating comparative study, Chien-Chih Lin finds that the constitutions and courts of China and pre-democratic Taiwan have very different functions. In the next article, Antoni Abat i Ninet and James Gardner examine a range of rulings by national constitutional courts that effectively invalidate claims to a distinctive subnational identity made by subnational units. On a somewhat related topic, Monika Polzin examines how the concept of constitutional identity has evolved in German constitutional history.

The issue continues with a Symposium on the legacy of Mauro Cappelletti, one of the most important ‘founders’ of modern comparative law. The Symposium features four pieces written by senior scholars, followed by four shorter replies by more junior scholars who form the new generation of comparative lawyers.

The issue ends with two thought-provoking pieces in our Critical Review of Governance section. Mathilde Cohen discusses the implications of the use of French in European and international courts. She argues that the ‘linguistic design’ of certain courts, designating French as the official language, has allowed French lawyers and the French judicial culture to have a disproportionate influence on these courts. Rivka Weill discusses the ‘principle of legislative discontinuity’ following elections, which means that parliaments must start the legislative process anew, and bills which were pending from the previous legislature lapse. She argues that this principle is one of the major tenets of democracy.



Leave a Reply

Your email address will not be published. Required fields are marked *