An EU Subsidiarity Court as a means to keep the ECJ in check

Published in New Direction's magazine (p.38)

The European Court of Justice (ECJ) in Luxembourg is the final arbiter when it comes to interpreting the EU Treaties. This Court has done many good things for the cause of removing barriers between European countries, as for example condemning Germany for not allowing a French liquor, Cassis de Dijon, onto its market. At the same time, The Court has been accused of violating the principle of subsidiarity, which it is supposed to protect. As former German President Roman Herzog has pointed out: 

“Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving Member States of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing. In so doing, it has squandered away a large part of the trust it used to enjoy.”

After having reviewed some of the ECJ’s decisions, Herzog has concluded that the “the ECJ undermines the competences of the Member States even in the core fields of national powers”. Furthermore, he noted that “the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, its decisions are based on sloppy argumentation, it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgments." Also the former President of the Belgian Constitutional Court, Marc Bossuyt, has lamented that the ECJ has been extending its competences, creating a serious threat of a "government by judges”.

That the ECJ has occasionally served as a motor on the EU machine, instead of as a check, should perhaps not even be personally blamed on ECJ judges. In history, also other Constitutional Courts in federal states, like the US Supreme Court, have tended to favour centralisation over time. Moreover, the preamble of the EU Treaties instructs the ECJ to help realise “ever closer union”. While it’s disputed what the actual legal significance of this is, the ECJ’s current President, Koen Lenaerts, has himself admitted the ECJ uses the preamble as a guide. He also said that vague text in the EU Treaties has often been inserted “quite deliberate” when politicians can’t agree, so it is left to the ECJ to fill in the gaps when problems arise.

From 2010 on, the Lisbon Treaty has expanded the powers of the  ECJ, allowing it to wade into the area of EU justice and home affairs cooperation, for example, and enabling it to use the EU's Charter of Fundamental Rights as a basis to judge national legislation, ever increasing the scope of the EU’s influence.

An example of the ECJ overreaching was its “Mangold”-ruling from 2005, whereby it banned a German measure which temporarily allowed 52 year-olds to conclude temporary employment contracts without restrictions, in order to help them to find a job. Previously, one needed to be at least 58 year old. The ECJ didn’t even invoke a directive which would have been violated, but claimed that a "general principle of community law", a ban age discrimination, hadn’t been respected. One can only guess what this – otherwise laudable principle - has to do with the EU’s core mission to remove barriers between countries. The German Constitutional Court ruled in 2010 on the issue. While it agreed with the content of the ECJ’s assessment, it more importantly recalled explicitly that it is its job to check whether the balance of competences between the EU and its member states has been respected. 

This brings us to how the ECJ can be kept in check. One of the proposals which we’ve made with Open Europe is to create an EU Subsidiarity Court, through changing the EU Treaties, taking advantage of the increasing support across Europe for EU reform. This institution would be composed of the presidents of the Constitutional Courts of the member states. One would be able to file appeal against any ECJ decision on the grounds of “subsidiarity” or distribution of competences. Apart from that, unrelated to a specific case, member states would be able to drag the EU Commission, not much more innocent than the ECJ in this regard, before the Subsidiarity Court, through a so-called “reverse infringement procedure”, to force it to change EU legislation where the EU violated national sovereignty.

Much like in the Belgian and French legal order the “Court of Cassation” only reviews whether the legal procedure has been respected, without delving into the specific facts of any case, such an EU Subsidiarity Court would only be able to overrule the ECJ if ECJ judges would once again have abused their mandate to subject policy areas to EU control, for example by making up a “general principle of community law" in order to justify declaring specific national laws invalid.

Naturally, national Constitutional Courts would need to hire more staff and those member states without a national Constitutional Court would need to create a new independent judicial body specialized in the distribution of competences between the EU and its member states. The fact that the Subsidiarity Court would be independent and superior to the EU machinery while remaining an integral part of the national legal order would make it into a proper intergovernmental nanny for the ECJ.