The European Council and the Court – who has the final authority?

Written by Timothée Ceurremans

Credits: Josua Di Maggio

To listen to our podcast on this subject: https://www.ideu.eu/la-chronique

Part I. Introduction

In this paper, the question of who has the final authority, between the European Council (“EC”) and the Court of Justice of the European Union (“Court”), will be dealt with. This question arises in a period where the world has been affected by a plague unpredictably putting a halt to our once relentless and unfettered lives. This abrupt change of events has had and continues to have unfathomable human, economic and social consequences, the size and extent of which we will probably not grasp before long. In this context, the EC, the institution that convenes the European Union’s leaders, that is - the Heads of State and Government of the Member-States, has faced a Herculean task: i.e. take decisions to ensure Europe’s recovery on the long-term. It had to do so, most notably, by devising a Multiannual Financial Framework that lives up to that task.

As such, it should, at the outset, be mentioned that the EC arrogated itself with powers, which it by virtue of art. 312 TFEU (i.e. the provision laying out the procedure whereby a budget must be adopted) does not, formally at least, dispose of. Hence, without questioning the undeniable necessity of these actions, it may be asked whether this wielding of power falls within the bounds of Union law. And when it comes to deciding about that, the Court is the competent institution. As a matter of fact, said budgetary deal has only been reached by reason of the fact that some of its parts, in particular those pertaining to rule of law conditionality, were to be brought before the Court to confirm its validity with regard to primary law and general principles of Union law.

Drawing on this prime example which already gives some indication of who, between the EC and the Court, has the final authority, this paper will examine the research question in the following way: First, this paper will seek to define the phrase “final authority”, because indeed the result of the present inquiries will depend on what is meant by that. Based on this definition, Part II will examine the legitimacy of the institutions in light of political constitutionalism and by drawing on the way the concerned institutions dealt with the Sovereign Debt Crisis. This paper will then provide, in the conclusion, an answer to the research question.

I.1. The “final authority”: A definition

At the outset of this section, it should be mentioned that according to the Cambridge Dictionary, “authority” means “the moral or legal right or ability to control”. This definition, inherently, propels us into the political and legal aspects of authority.

Firstly, when referring to the moral aspect of “authority”, this definition takes us into the normative realm of political philosophy. If one is to take, for instance, Hannah Arendt, it appears that she defined authority negatively. In other words, her definition of authority rests on distinguishing the concept with other kin notions or social phenomena such as power, violence and coercion (Arendt, 2003, p. 92). By drawing such a distinction, it appears that, in Arendt’s political philosophy, authority and obedience are indissociably linked, whereas that is not the case for power or violence. But though power does not need violence, it does need coercion to become authority and inspire obedience. And since obedience is inherent to authority, power and authority are often confused (Arendt, 2003, p.110). Hence, it may be inferred that “authority”, in the sense of Arendt, is a notion that is opposite to violence and coercion, but that it also is the opposite of argumentation insofar argumentation pre-supposes equality. And as authority is, per se, superior to its subjects, authority needs no explanation or reasoning. In fact, the obedience that authority inspires lies, according to Arendt, in a source that is transcendent to anything man-made (Arendt, 2003). It acquires an almost-divine dimension, which operates as a vehicle for legitimation that eventually yields “unquestioning recognition” by the subjects of the authority (Arendt, 1970, p. 45; Arendt, 2003).

Secondly, by referring to the legal right of “authority” it actually appears that the initial Cambridge definition of “authority” implicitly refers to a State-like conception of the source of the authority. Interestingly enough, no mention is made of by or against whom this authority is exerted. Hence, the reference to a legal apparatus indicates that the capacity or right to control can be exerted by institutions issuing law, the subjects of which can be taken, generally, to be nationals or citizens of a Nation-State or a supranational organization. Yet, this juxtaposition of moral ability and legal rights already appears paradoxical, if we are to take Arendt’s definition. Indeed, if authority is tantamount to obedience, then no vehicle such as law appears necessary to ensure its existence as legitimation and enforcement is a kind of fait social. In effect, if we should rely on such notions of authority through law, Austin’s legal positivism (Austin, 1832) which holds law to be a command associated with a sanction would vary to a great extent with the lack of coercion or violence which Arendt identified for the purpose of defining the notion of “authority”.

Be that as it may, the expounded definitions and qualifications with regard to the initial Cambridge definition allow us to conclude that for the purpose of this research, the notion of “final authority” will be inextricably associated to that of legitimacy. As such, will be considered the “final authority”, the institution that inspires most obedience as a matter of social fact. To measure this, naturally, considerations of legal nature will be important… Yet, will not represent the concrete yardstick that will eventually allow for a definite answer to the research question to be advanced.

Part II. Legitimacy of the institutions

In order to measure the perceived legitimacy and, thus, the authority of the EC and the Court, this paper will have regard to theories of European Studies such as new intergovernmentalism, political constitutionalism and activism. This will allow a picture of the legitimacy of the institutions to be painted which will, afterwards, allow for inferences to be drawn in terms of which body holds the last authority.

II.1. The EC

As is well known, the EC became institutionalized in 1974. Its impact on European integration and its ability to influence the decision-making process, through ever-increasingly precise conclusions or leading roles during crises, is a phenomenon that is closely associated to the post-Maastricht era (Fabbrini & Puetter, 2016). As a result, a notable increase in intergovernmentalism has taken place, which is why it earned the adjective “new” (Bickerton, Hodson & Puetter, 2015). Furthermore, as policymaking in the EC touches upon policy areas close to “core state powers” (Genschel & Jachtenfuchs, 2014), the legitimacy of the executive shift has time and again been questioned both by the broader public and by scholars (Fabbrini, 2013).

This perceived lack of legitimacy of the EC appears even bigger when looking at the role this institution is supposed to play by virtue of the Treaties. When looking at art. 15 TEU, the institution should solely provide the “necessary impetus” for the development of the Union and give “general political guidelines”. Needless to say, the increasingly central role of the EC in the Union’s activities and during defining crises can but run afoul primary law.

As such, this begs the question of where the EC draws its authority/legitimacy from, and whether it is contested. To provide an answer, this paper proposes to delve into the political nature of constitutionalism and the agency the EC has in it. This, accompanied by a case study, will allow for the uncovering of the source of legitimacy of the EC and the contestation surrounding it.

To start off, political constitutionalism can be defined as a reading of constitutional provisions and practices as the result of the agency of political actors who constitute constitutional agents (Goldoni & McCorkindale, 2013). Said differently, political constitutionalism seeks to paint a picture of the politicization of constitutional developments in the EU.

In particular, when it comes to the EC’s constitutional agency, it can be differentiated from judicial or conventional agency; both of which engender lower levels of politicization (Glencross, 2016). As such, it constitutes a third way, called “diplomatic agency”. This agency, although inherently “interelite” and thus deprived of any supranationally democratic counterweight, has brought about significant politicization in the Union’s constitutional order (Glencross, 2016). That politicization is embodied by the ability of Member-States to frame constitutional developments through, for instance, opting for treaty ratification according to domestic constitutional processes (such as referenda) or by preferring avoiding politicization in order to minimize contestation (p. 512). A prime example of such a politicization can be found in the pledge of Tony Blair to put the Constitutional Treaty to a referendum, after facing domestic contestation (Glifford, 2010).

Drawing on this account, it appears that the EC, when faced with dramatic constitutional developments, has agency with regard to the strategy it adopts. By consequence, it can – but won’t always – decide to link constitutional evolution to “partisan mobilization and public debate” (Glencross, 2016).

Analyzing the sovereign debt crisis and the way the EC dealt with it gives valuable indications as to the authority the institution enjoys inasmuch it will give a sense of the extent to which a particularly defining constitutional development did inspire, or not, unquestioning obedience on the part of the subjects of the EC, i.e. the peoples of Europe.

The sovereign debt crisis and the EC

As is well-known, the sovereign debt crisis followed the global financial crisis. It came to be by reason of years of one-size-fits-all monetary policy associated with very little economic convergence. This overheated demand-based economies. In turn, financial bubbles appeared which, when they exploded, created a crunch on the demand side as well as a drying up of loans and a general inability to service debt. As such, banks started to fail, and the sovereigns had to back them up with guarantees and bail outs. This created the famous “doom loop” which led some countries to find themselves on the brink of default, most notably Greece.

In such a context, the EU had to intervene so as to avoid the collapse of the Eurozone. European Leaders gathered regularly and devised a whole battery of emergency measures, some of which required constitutional amendments. For instance, the setting-up of the European Stability Mechanism entailed a Simplified Revision of the Treaties on the basis of art. 48 TEU. In terms of political constitutionalism, it is very important to note that the EC did everything in its power to depoliticize this issue as much as possible (Glencross, 2016). The reason why the EC felt entitled to do so is by reason of the fact that the Leaders believed they enjoyed sufficient legitimacy, and thus authority, through the national election process which put them in that position in the first place.

So, although the EC could have sought the legitimation of the emergency measures through politicization, as Papandreou sought to do with his plan to submit to a referendum for the proposed austerity measures, it decided not to do so under the impulse of the Merkel-Sarkozy tandem. This led to the resignation of Papandreou and the ratification of the Troika’s Memorandum of Understanding under a Unity Government in Greece. By consequence, the possibility for public contestation was minimized and led to undermining the legitimization of the EC’s constitutional agency in particularly dire times.

II.2. The Court of Justice of the European Union

Literature has often concentrated on the central role of the Court in the integration process (Saurugger & Terpan, 2017; Dehousse, 1998; Rasmussen, 2008; Scicluna & Auer, 2019). Especially, from the 1960s to the 90s, the Court has been seen as the main driver of integration through landmark and revolutionary cases establishing constitutional principles propelling the Union into a consociational federation of constitutional type. It did so by strategic use of the preliminary reference procedure (Glencross, 2016) and the progressive, wave-by-wave or stone-by-stone approach identifying and creating layers of constitutional theory (Lenaerts, 2021). This counter-majoritarian constitutional development of the European body politic has earned the Court quite some critical commentary, especially in a swath of literature concentrating on activism (Rasmussen, 1986).

In terms of political constitutionalism, the Court’s ability to politicize constitutional development is, by nature, very limited. However, an increasing trend of judicialization of politics has been identified in the EU (Stone Sweet, 2010). This phenomenon has led political institutions to translate their unsuccessful claims in the political arena into the legal lexicon so as to defend those in Court (Lenaerts, 2021). As such, the European Union’s court system is tributary of a neo-constitutional development of the European body politic in which the courtroom has been transformed in a different, yet complementary and perhaps even more legitimate, forum for political contestation (Itzcovich, 2017).

The sovereign debt crisis and the Court

During the Eurozone crisis, the Court played a prevalent role. It was seized by political actors who wanted to contest some of the extraordinary measures enacted by the EC to remedy the crisis. This indicates that the Court is a veto player in the Union’s political setting. In particular, it was called upon to rule on the constitutional amendment of art. 136(3) TFEU which allowed the Member-States to conclude an inter se agreement outside of the scope of Union law to “safeguard the stability of the Eurozone as a whole”. Interestingly, this case was initiated by an Irish MP and was referred to the Court on the basis of art. 267 TFEU by the Supreme Court of Ireland. This case is a prime example of the judicialization of politics. Furthermore, the importance of this case can be witnessed by the fact that all judges of the Court were present to judge on this issue. This is a highly exceptional feature (only 131 cases in the 70+ years of existence of the Court) which proves how seriously the Court takes its Treaty-assigned role in the neo-constitutional setting of the Union’s politico-legal order. Another remarkable aspect of this case, which has a direct incidence on the legitimacy and authority of the Court, is the fact that no less than 11 governments participated in the pleadings, alongside the European Parliament, the EC, the European Commission, the Irish Supreme Court and a group of Irish MPs. This shows that, far from an interelite, technocratic and liberally intergovernmental bargain (Moravcsik & Schimmelfennig, 2019), an inevitable and obligatory politicization of the case at hand took place in the courtroom - despite obvious hurdles of translating political claims into the legal lexicon. In this case, the Court validated the measures enacted by the EC. Notwithstanding, it allowed for a particular kind of public contestation and politicization.

Part III. Conclusion

As was contended in the beginning of this paper, to decide who has the final authority between the Court and the EC, the legitimacy of the institutions would be measured as indication of the authority they enjoy. To carry out that measurement, this paper relied on political constitutionalism. It did so by analyzing the ability of each institution to politicize salient constitutional developments. By drawing on the concrete example of the Sovereign Debt Crisis, it appeared, first, that the EC has the unique capacity of opting for a politicization of salient constitutional developments so as to ensure public legitimacy. Yet, was uncovered that this ability to choose was ultimately detrimental to the authority of the EC. Some have dubbed the choice the EC operated in said crisis a “legitimacy paradox” (Glencross, 2016). Seeing that the EC’s failed attempt at depoliticization and technocratization of economic policy did not yield the kind of Arendtian divinization that may have indicated a well-established authority, it may be inferred that the concerned institution has yet to join the ranks of naturally obedience-inspiring actors in the European Union.

Because, indeed, when looking at the Court and its development as a forum for political contestation, albeit in a different lexicon, three paramount inferences can be drawn. The first was that the Court, being a passive actor in the politico-legal order, has no choice in the level of politicization of salient issues in EU governance. This lack of choice is considered, in the case study of the sovereign debt crisis, beneficial to the Court’s legitimacy. The second was that the equal participation of multiple actors of the European political landscape allowed for a greater politicization and thus yielded greater legitimacy. Finally, the legal-technical nature of the language of the Court and the short, concise and apodictic style of its judgments – due to the principle of collegiality and the secretive nature of deliberation – may actually have achieved an Arendtian divinization that has over time translated in less public contestation, while simultaneously increasing the legitimacy and authority of the constitutional agency of the Court.

Based on these variables, and the case study, it appears clearly that the institution who has the final authority is the Court of Justice of the European Union.

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Bibliography:

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Hannah Arendt, On Violence, London, Penguin Books, 1970

John Austin, The Province of Jurisprudence Determined, Cambridge, Cambridge University Press, 1832

C. Bickerton, D. Hodson & Uwe Puetter, “The New Intergovernmentalism: European Integration in the Post-Maastricht Era”, Journal of Common Market Studies, 2015, Vol. 53, n°4, pp. 703-722

Dehousse, R., The European Court of Justice: The Politics of Judicial Integration, Palgrave Macmillan, 1998.

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Genschel & Jachtenfuchs, “Introduction: Beyond Market Regulation. Analysing the European Integration of Core State Powers” in P. Genschel and M. Jachtenfuchs (eds.), Beyond the Regulatory Polity? The European Integration of Core State Powers, Oxford, Oxford University Press, 2014, pp. 1-23

Andrew Glencross, “The EC and the legitimacy paradox of new intergovernmentalism: constitutional agency meets politicization”, Journal of European Integration, 2016, Vol. 38, n°5, p. 498

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Itzcovich, G., “On the Legal Enforcement of Values. The Importance of the Institutional Context, in: A. Jakab & D. Kochenov, The Enforcement of EU Law and Values: Ensuring Member-States Compliance, Oxford, Oxford University Press, 2017.

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Rasmussen, M., “The origins of a legal revolution: the early history of the European Court of Justice”, (2008) 14(2):77 Journal of European Integration History, pp. 77-98.;

Scicluna & Auer, “From the rule of law to the rule of rules: technocracy and the crisis of EU governance”, (2019) West European Politics, pp. 1-23

Legislation:

Decision of the EC amending art. 136 TFEU with regard to a stability mechanism for MSs whose currency is the euro, Official Journal, 2011 L91/1