Asked about his work on the US Supreme Court, Justice Louis D. Brandeis famously quipped: “the most important thing we do is not doing.” In the 1960s, the constitutional thinker Alexander Bickel built an entire theory of judicial restraint around this adage. Judges equipped with the power of constitutional review should, he argued, make cautious use of their authority, exercising “passive virtues” when the competences and responsibilities of other institutions so required. Restraint is usually not the first thing that comes to mind when people think about the Court of Justice of the European Union (CJEU). It is not the second or third either. In fact, there is wide agreement among the Court’s observers – both academic and non-academic – that the European judges have and continue to try to expand their influence as far as possible. From early in its history, the CJEU was criticized for overstepping the boundaries of legitimate behaviour for a court, typically at the expense of Member State autonomy, a charge known in legal circles as judicial activism. Former French Prime Minister Michel Debré accused the Luxembourg Court of “compulsive megalomania” around the time of the Cassis de Dijon ruling. Some thirty years later Roman Herzog issued a call in a German newspaper to “stop the European Court of Justice”. The latest reincarnation of these critiques is, of course, that of the “rogue” CJEU which should be stopped from interpreting and striking down British laws, a slogan first articulated by the Vote Leave campaigners and, in the meantime, embraced as the UK government’s official position in the Brexit negotiations.
In Europe’s Passive Virtues, I argue that this narrative of the activist European Court is incomplete at best and incorrect at worst. The book examines the phenomenon of judicial deference in EU free movement law, a central and, not just as of late, symbolic domain within the European integration project. The CJEU has established a set of doctrines through which it can grant national institutions deference when exercising judicial review over Member State laws. The margin of appreciation is perhaps the best-known of these, popularized by high-profile rulings like Omega and Schmidberger. It is used by the Court to defer certain regulatory decisions to national legislatures and executives. In a similar way, the CJEU has begun to delegate assessments relating to the justification and proportionality of national measures to Member State courts. Although having different legal and institutional implications, these techniques share one important commonality: the Luxembourg Court limits its control over national decision-making, a manifestation of the Brandeisian idea of “not doing”.
Deference is not a new occurrence in EU law. The earliest free movement cases resorting to the margin of appreciation doctrine date to the 1970s. The option of deferring the decision on the proportionality of national laws to Member State judges was tried out (unsuccessfully) in the first leg of the Sunday trading saga. What is new, however, is the extent to which this practice has come to mark free movement adjudication. Drawing on an original data set of CJEU judgments on the four freedoms rendered between 1974 and 2013, the book shows that the use of deference has continuously grown over the past four decades. A marginal phenomenon 40 years ago that was limited to exceptionally difficult or sensitive subject-matters, deferential review has become the new standard form of scrutiny in free movement cases. It is applied by the Court in half of all rulings in this area.
What does this mean for free movement law and the internal market? The CJEU is, slowly but steadily, retreating from the activism that defined prior eras. This is not to say that the Court is no longer controlling Member State action or continuing to shape free movement law, but its involvement has become more varied and targeted. The European judges do not automatically subject every piece of national legislation which is challenged before them to strict scrutiny anymore. Increasingly, they consider it unnecessary, or inappropriate, to substitute their own view on public health, consumer protection, or environmental standards for that of national law-makers and judges. Instead, they focus their energy on areas in which they are most needed, such as fighting discriminatory laws and practices, and delegate decisions on other issues, notably when lacking a sufficient understanding of the given subject-matter or the legitimacy to intervene. The result is a heavier involvement of Member State institutions in the governance of the internal market. A growing number of legal and regulatory decisions are left in the hands of domestic officials, ranging from delicate questions such as how to regulate gambling, to more mundane issues concerning the technical standards of radio equipment. Free movement law, thus, not only becomes more decentralized, it acquires a stronger national flavour. This also means that, contrary to popular sentiment, it is becoming easier, not more difficult for Member States to protect their interests in Luxembourg.
At the same time, the rise in deference is an indication of the gradual move from negative to positive integration in the EU. The CJEU’s expansive jurisprudence on free movement law has often been explained – and justified – by reference to the failure of European political processes to contribute to the creation of the internal market. In the period between the mid-1960s and 80s, when the engine of positive integration was underperforming, it fell on the Court to push forward the internal market project through its case law on the four freedoms. Things have changed. Despite shifting legislative approaches and policy preferences, many economic sectors have been fully or partly harmonized at the EU level. Where harmonization proved impossible (or undesirable), flanking measures such as notification obligations for domestic regulators and dispute settlement mechanisms for traders have been adopted. As a consequence, the need to ensure free movement and promote economic integration judicially has decreased. The European Court appears to respond to this development, redirecting its efforts to other quests.
Dr. Jan Zglinski is Assistant Professor of Law at the LSE (https://www.lse.ac.uk/law/people/academic-staff/jan-zglinski).
The monograph can be found here: https://global.oup.com/academic/product/europes-passive-virtues-9780198844792?cc=gb&lang=en&