JUDICIALISATION, DEMOCRACY AND EUROPEAN INTEGRATION

Abstract

The process of European integration has encouraged a substantial judicialisation of politics across EU member states. Critics of ‘government by judges’ suggest that this judicialisation undermines democracy by substituting the decisions of unelected, unaccountable judges for those of elected officials. This article argues that on balance the judicialisation related to European integration has strengthened democracy across Europe. Judicialisation has encouraged greater transparency and accountability in policy-making by member state governments and by the EU itself and has enhanced opportunities for access to justice. However, by emphasising the protection of individual rights, judicialisation has pushed member states further from republican to liberal models of democracy.

Notes

1 Regarding the ECtHR, consider also British Home Secretary Theresa May's suggestion in March 2013 that the UK should consider withdrawing from the European Convention on Human Rights to escape the jurisdiction of the ECtHR and safeguard British sovereignty.

2 The phrase was coined in a 1921 book by French law professor Edouard Lambert, Le gouvernement des juges et la lutte contre la législation social aux Etats-Unis (Lambert 1921). For a discussion of the history of the term, see Davis (1987).

3 Helmut Kohl, “Chancellor Kohl Accuses the Court of Going Beyond its Competences: The ‘Paletta’ and ‘Boetel’ Cases,” Europe 5835, October 1992, p.9 quoted in Starr-Deelen and Deelen (1996: 95).

4 Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetreförbundet and others [2007]ECR I-11767; C-346/06 Dirk Rüffert v. Land Niedersachsen [2008] ECR I-1989.

5 C-438/05, International Transport Workers' Federation and Finnish Seamen's Union v. Viking Line ABP and Oü Viking Line Eesti [2007] ECR I-10779,

6 C-319/06, Commission v Luxembourg, ECR 2008, I-4323.

7 C-346/06 Dirk Rüffert v. Land Niedersachsen [2008] ECR I-1989.

8 As noted above, the model of parliamentary supremacy has persisted to a greater extent in the UK and in Nordic countries, which helps explain the greater resistance in these states to supranational judicial review (see for instance Wind 2010).

9 Of course, this simply raises another fundamental conundrum of judicial power: if courts are established as the guardians of constitutional allocations of authority, then who can prevent the courts from usurping power to serve their own ends? In other words, who guards the guardians? (Quis custodiet ipsos custodes?)

10 For reviews of these developments, see the Council of Europe, Venice Commission's Report on Hungary. Venice Commission Opinion 663/2012, CDL-AD( 2012)001, Strasbourg, 19 March 2012; the European Parliament's Draft Report on the situationof fundamental rights: standards and practices in Hungary (2012/2130(INI)), 2 May 2013; and the Parliamentary Assembly of the Council of Europe (PACE) Monitoring Committee's “Request for the opening of a monitoring procedure in respect of Hungary” AS/Mon(2013)08, 25 April 2013.

11 Lacking a clear legal basis for action concerning the threats to judicial independence in Hungary, the Commission's case focused on the seemingly obscure issue of age discrimination in the judiciary. The Fidesz government had reduced the retirement age of judges from 70 to 62 in a poorly disguised effort to purge the judiciary of judges who might oppose it and to create openings for its own appointees. The Commission charged that the sudden decrease in retirement age constituted age discrimination prohibited under EU law. The Court agreed and Hungary will be required to reverse its change to the retirement age.

12 For this reason, the Council of Europe's recommendation concerning judicial appointment is problematic. The Council of Europe has recommended that, “The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.” Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, para. 46. Providing for that degree of peer selection of judges would detach the selection of judges from the input of democratically elected officials needed to legitimate judicial power. On trends in that direction, see Guarnieri's contribution to this special issue of Representation.

Additional information

R. Daniel Kelemen is Professor of Political Science and Jean Monnet Chair at Rutgers University. His research interests include the politics of the European Union, law and politics, comparative political economy and public policy. His most recent book, Eurolegalism: The Transformation of Law and Regulation in the European Union (Harvard University Press), won the European Union Studies Association's Best Book Award for 2011–12. He is author of over 40 book chapters and articles in journals including World Politics, International Organization and Comparative Political Studies. Email: dkelemen@polisci. rutgers.edu