Starting from the distinction between internal and external critique author discusses what kind of critique of the CJEU is possible, and by whom, at all. Assuming that performance of the CJEU should be measured on its own merits and not exclusively or primarily according to external comparators, author suggests that the line of critique that builds on allegedly negative synergy of renewable office, absence of docket control and lack of dissent that leads to alleged inadequacy of judicial reasoning is not only external in nature, but is refuted by specific procedural mechanisms and internal structures that provide for sufficient legitimacy and functional adequacy. Author dismisses arguments according to which the CJEU always promotes Europeanizing outcomes and suggests that reasoning of the Court is informed by the specific ontology of the EU. Author questions adequacy of the critique of the CJEU by introducing arguments of cultural relativism, which deny normative claims to universal validity of putatively more desirable political and legal practices and concludes that internal critique of adjudication based on functions and ontology of European Union law is more productive then external one.

SOMMARIO:

I. Introduction - II. Functional metacritique: appointment, docket control, dissent - III. Ontological metacritique: how the CJEU should be deciding cases? - IV. Ontology of EU law. - V. Concluding remarks - NOTE

I. Introduction

The Court of Justice of the European Union (hereinafter the CJEU) has historically been subject to different lines of critique almost from its very beginning. By time, the Court has changed, so did the critique too change its focus. As a professor of law, I used to be one of the critics, now I have opportunity to react to the critique, both judicially and extra-judicially. That is, however, not the idea behind this paper. Instead of responding to specific traits of critique, I will try to address another kind of question, namely, what kind of critique of the CJEU is possible, and by whom, at all. In other words I will present my critique of the critique – the metacritique of the CJEU. To start with, I would like to make a distinction between internal and external critique. The former attacks the very coherence of the object of critique in attempt to find its internal contradictions. It seeks to say that the object of critique does not function well due to some of its inherent inconsistencies. The latter relies on some external, overriding principle that renders the object of critique insufficient from an external or more general angle. The distinction between internal and external critique does not mean that inherent contradictions are generated by, depend on or can be resolved by the object of critique itself. Even internal contradictions may well originate from external actors, possibly the same ones by which the object of critique was designed. As far as the CJEU is concerned, there are factors beyond its powers, the critique of which needs to be addressed to a different addressees. At the same time, those that are within the Court’s control can be attacked from either internal or external angle for being inherently incoherent and contradictory (internal critique) and/or for being invalid due to some overarching principle (external critique). Nor does the distinction between internal and external critique imply that a subject of the critique is internal or external to the Court. In reality, most of the critique originates from academic and political actors who are external to the judicial branch. Judges are expected to refrain from public debate that could jeopardize their neutrality and have means to respond to the critique judicially. After all, a judge criticizing her court in public comes close to a turkey voting for Christmas. In brief, internal critique of the Court of Justice could be focused at elements within the Court’s [continua ..]

II. Functional metacritique: appointment, docket control, dissent

It is a common place that law is context sensitive. Incidence of certain rule, principle or arrangement in one legal or political system does not validate the claim for its universal acceptance. In that respect, the European Union with its unique mission and distinctive institutional and legal arrangements, often forged as a result of difficult compromises, represents a case of its own. Yet, very arrangements that make the European Union possible are typically criticized from perspective of national law and the critique, to paraphrase Iris Marion Young, often «… involves the universalization of a dominant’s group’s experience and culture, and its establishment as a norm» [1]. What I am trying to say is that, while critique, by necessity, originates from certain national context, a thoughtful critic should be able to overcome the dominant group’s perspective and judge the object of the critique on its own merits. In a way, universalization of national context amounts to external critique and, as far as the CJEU is concerned, its main claim is typically that the Court does not meet certain standards which are taken for granted in the critic’s own legal system. Typical targets of such critique are appointment and renewability of office, incapacity to control its docket and lack of dissenting opinions. I will try to address these issues seriously and on their own merits, trying to avoid thinking within any national context. The three objects of critique, namely appointment, docket control and lack of dissent, collapse into a single common denominator – quality of judicial reasoning. According to the argument, in the face of prospective re-appoint­ment, judges refrain from speaking clearly and hide behind the collegial unanimity. Therefore, no dissenting opinions! To further extend the claim, even if adjudication in shadow of re-appointment is of no consequence for quality of judgments, it surely contributes to cryptic reasoning and lack of transparency because of reluctance of judges to disclose their choices to appointing authorities. Joseph Weiler relates absence of dissents directly with the re-appointment of judges every six years, which is, according to him, «an ongoing scandal unknown in all respectable jurisdictions» [2]. This line of critique is not isolated and its logic does not appear to be entirely unfounded. Non-renewable or life appointment of judges is standard in [continua ..]

III. Ontological metacritique: how the CJEU should be deciding cases?

In his conference contribution [27] Prof. Derrick Wyatt suggested that the CJEU is more prone to deliver Europeanizing then de-centralizing outcomes while the two should be in balance. In that context, the argument is, that the CJEU should pay more respect to national identities of the Member States and be more vigilant in enforcing the principle of subsidiarity. Prof. Wyatt also argued that the Court should favor literal interpretation of EU rules, in order to give effect to the intention of the draftsman. This is to replace the result-driven approach, that is, judgments driven by judicial policy rather then legal analysis and reasoning. Prof. Wyatt’s objections are arguments of external critique, based on his understanding of what the Court is doing in fact and what the Court should be doing instead, according to some higher independent principle. Accordingly, there are two ways how to respond. First, to address the factual claim about what kind of outcomes the Court is delivering and, second, to address the normative claim that the Court should be delivering certain, different, kind of outcomes, on grounds of some independent principle. A. Are outcomes of adjudication always Europeanizing?I think not. First of all, I would like to avoid a trap of constructing what Pierre Schlag calls “desirable X” – an object that is profoundly desired and existence of which is constructed by production of arguments [28]. While it is true that the Court has generated solid jurisprudence that can be characterized as Europeanizing, there are also abundant examples of what Prof. Wyatt calls de-centralizing values. Let me mention just some recent cases. In Dano [29] the CJEU held that relevant secondary legislation «... must be interpreted as not precluding legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain ‘special non-contributory cash benefits’within the meaning of Art. 70(2) of Regulation 883/2004, although those benefits are granted to nationals of the host Member State who are in the same situation, in so far as those nationals of other Member States do not have a right of residence under Directive 2004/38 in the host Member State.» Similar outcome resulted from the judgment in Alimanovic [30]. Even in the area of internal market the Court, answering to the question whether the “Renewable Energy [continua ..]

IV. Ontology of EU law.

There is a widely spread belief that the CJEU entertains so-called teleological interpretation as a means to ascribe rules of EU law Europeanizing ends. In that sense, teleology would imply that there are ends extrinsic to EU law itself that guide the reasoning of the CJEU. Certain landmark cases certainly do allow space for teleological explanations and it goes without saying that preambular recitals of secondary law often provide guidance for interpreting of what is understood as legislative intent. However, the reality seems to be more complex. While it is true that EU law performs specific integrative function, I find it difficult to believe in functional necessities [39], especially those construed ex post. For example, that result of adjudication is always contained in text or determined by some putative τέλος. Or, that «God put our mouth just under our nose so that we might enjoy the smell of our food» [40]. To my mind, interpretation of European Union law takes place within the specific framework of basic ontological identities, the term that I borrowed from Pierre Schlag who was writing in American context [41]. Those ontological identities are the Legal Basis, the Act, the Agent and the Legitimacy of the social arrangement under which European Union law operates. Speaking about the Legal Basis, the Founding Treaties are often considered a constitutional charter of the EU, the reference to which can be found in the case law of the CJEU [42]. However, the CJEU never went so far as the Supreme Court of the United States and the powers of the EU have never been extended to an equivalent of federal competence comparable to the necessary and proper clause as encapsulated in the famous phrase: «… it is the Constitution we are expounding» [43]. Defining the European constitutive Act is another challenge. Due to the multiple amendments to the Founding Treaties, there is no certainty about when the European Union was actually founded. Is it the Treaty of Paris, or Treaty of Rome, or any of subsequent Treaties? Or is it rather a process of never-ending construction? [44]. Also, while in the Member States there is a single political Agent – the People, in the European Union it is the Member States and their Peoples. This bifurcation of the Agent is reflected in the architecture of every single institution, including the Court of Justice, which [continua ..]

V. Concluding remarks

Speaking about traditions, Paul Feyerabend suggests that their interactions and results beg two kinds of questions: observer questions and participant questions [46]. «Observer asks: what happens and what is going to happen. Participant asks: what shall I do?» [47]. This distinction is clearly relevant for the present analysis. In context of adjudication, the question is “how shall I decide” or “how shall I respond to claims of other actors”. On the other hand an observer seeks answers to questions like “what happened” or “what does it mean”. The Court is concerned with claims and counterclaims of participants to the proceedings. A critic is concerned with the result of proceedings and its interpretation. Responses to the two sets of questions necessarily take place within different traditions. It is certainly possible if not very likely that participants and observes belong to different traditions and maintain competing normative claims according to which their respective demands are objective and their tradition independent and, that, as a consequence, one set of criteria should be preferred to another. This is, as Feyerabend explains, due to the fact that «critics of a practice take an observer’s position with respect to it but remain participants of the practice that provides them with their objections» while, in reality, the two practices simply “don’t fit each other” [48]. To bring an example, a divergence of traditions can be illustrated by a food critic discussing merits of Mexican food based on her experience of consumption acquired in a fusion food restaurant. Finally, it must not be forgotten that in all future situations, the original statement of law, utterances of the Court will be re-interpreted by future audiences and that any future application will take place in different factual and legal interpretative context. The Court cannot envisage what is going to happen in the future even if it were its task to do so [49]. What a court can do, at best, is to try to rationalize the complexity of a present case in order to minimize need for future litigation [50]. As Nassim Nicholas Taleb suggested, human ability to understand is encumbered by a number of factors, including the retrospective distortion. In his own words, «we can assess matters only after the fact, as if they were in a review [continua ..]

NOTE