Preventing a “gouvernement des juges” in Europe

By Arnaud Borremans

Good governance starts with institutional design. Arnaud Borremans thinks judicial activism in the European Court of Justice and the European Court of Human Rights could feed an anti-EU narrative and undermine the perceived legitimacy of European1 governance. He offers some proposals to correct the course.

European judges are sometimes accused of excessive judicial activism. They would interpret the law beyond the simple control of legality, thereby practicing some kind of indirect lawmaking through jurisprudence without democratic legitimacy. To counter this risk, a system of check on European judicial bodies could be implemented, but EU governance in general should also be strengthened, so that judges can base their rulings on a clearer and more definite legislation.

A ‘gouvernement des juges’?2

The European Court of Justice (ECJ) has been under fire since it challenged the French conception of the public service through its application of competition law (ECJ, 2003, Altmak). Nonetheless, the ECJ only applies the primary and secondary laws that the Members States have negotiated for decades. Moreover, they have had the opportunity to include opt-outs to preserve their national interests. Still, the ECJ sometimes venture to jurisprudential definitions that are hazardous to the point of spoiling the sovereignty and legal identity of Members States – and even the good governance of the whole EU. For instance, is the ECJ right in defining any legal person engaged in economic activity as a company? Such a definition denies that a legal person governed by public law may act in the public interest, and instead blindly subjects it to the requirements of private law (CJCE, 1991, Höfner).

European public law also includes the European Convention of Human Rights and Fundamental Freedoms plus the jurisprudence of the European Court of Human Rights (ECHR), which is notoriously activist. The latter judges case by case, which leads to rulings that are either very lax on excessive public order policies by some member states (2005, Leyla Sahin vs Turkey) or very strict on security measures undertaken by confirmed democracies (2013, Vittel & alii vs United Kingdom).

Implementing a system of check

One option to prevent the risk of ‘gouvernement des juges’ would be subjecting problematic rulings by the ECHR to a veto system by the Committee of Ministers of the Council of Europe. Vetoing an EHCR ruling would require either unanimity in the Committee if the ruling goes against a measure of public order, or a majority if the ruling seems not to protect human rights sufficiently.

Such a design would prevent the EHCR to limit wrongly the states’ prerogative in taking normal police action. It would shield such an action that is considered necessary by the political authorities without condoning authoritarian tendencies, as the abnormality of the ECHR’s decision would need to be unanimously recognized, including by the liberal democracies. Conversely, control of any favorable decision of the ECHR regarding police measures restricting human rights would necessitate a majority of votes. Thus a veto on such rulings could not be blocked by a few illiberal regimes in the Council of Europe.

The creation of such a system of check would require a revision of the founding charter of the Council of Europe (article 16, Statute of the Council of Europe, 1949).

Better governance and clearer legislation

The fundamental root of judicial activism, however, is insufficiently clear and consistent law: judges see themselves forced to activism because they have to interpret a loose legal framework. Thus judicial activism by the ECJ can be prevented through better political governance in the EU.

The various Member States need to work together in the EU Council and with the European Parliament, to provide more rigorous and detailed definitions in secondary law. Such a coordination, however, may be hampered by the ‘logic of organ pipes’ which leads the Member States’ respective ministers to promote their ministry’s position at the EU Council, instead of the overall interest of their government – and which also leads each member states to promote its own interest rather than the EU’s in intergovernmental negotiations. The ‘logic of organ pipes’ maintains a habit of sectoral negotiations, which precludes comprehensive responses to common issues that would satisfy all countries. Several governments can learn from the German model of governmental coordination that has already demonstrated its effectiveness in the negotiations at the EU Council (Deloire & Dubois, Circus Politicus, 2012, Albin Michel, pp 94-98).

How to enhance both domestic and intergovernmental coordination, so as to defragment and consolidate EU policymaking? One solution would be to strengthen intergovernmental bodies dedicated to European policies – e.g. the Secrétariat Général aux Affaires Européennes (SGAE) in France – and to streamline their interaction at the EU level. Strengthening SGAEs is a matter of domestic institutional design. SGAEs should be positioned so as to overcome the ‘logic of organ pipes’. Furthermore, at EU level they could work in network, following the example of other instances such as the agencies providing macroeconomic statistics to Eurostat.

Arnaud Borremans is a student at Sciences Po’s School of Public Administration. He has a Master’s in International Security from Science Po PSIA, and Master’s in Security and Defense (Public Law Studies) from University of Paris Pantheon Assas, a Master’s in International Affairs & Durable Development at the EHEI, and a formation in Leadership and Crisis Management from the French Army School of Saint-Cyr. He previously worked at the Center of Planning and Conducting of Operations under the French Ministry of Defense, and at the Foundation Prometheus in Paris.

Opinions expressed in this article are the author’s own. 

Photo credit: Court of Justice of the European Union

1. EU and Council of Europe

2. The French expression ‘gouvernement des juges’ refers to a form of judicial activism whereby judges, by taking too much liberty in their rulings, overstep their strictly judicial competence and dictate the meaning of laws, thereby encroaching on the lawmakers’ prerogatives

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