Talking about the European Court: Discourses of Judging in the European Union

• Pages: 139-157
• DOI: https://doi.org/10.1108/S1059-4337(2012)0000058009
• Published date: 20 August 2012
• Date: 20 August 2012
• Author: R. Daniel Kelemen

TALKING ABOUT THE EUROPEAN

COURT: DISCOURSES OF JUDGING

IN THE EUROPEAN UNION

R. Daniel Kelemen

ABSTRACT

This article examines the four primary discourses of judging that

dominate discussion of the European Court of Justice (ECJ) and its role

in the process of European integration. These discourses present sharply

contrasting views of what the Court does and what role it plays in the

EU’s legal system. The article argues that these conflicting discourses are

not merely rival depictions of the ECJ, but that they have also influenced

the process of European legal integration – and not always in the ways

those voicing them intended.

Other articles in this special issue focus on discourses of judging in the United

States, specifically on discourses concerning the United States Supreme

Court. This article takes us outside the United States to focus on the

discourse of judging concerning what is arguably the most powerful court in

Europe – the Court of Justice of the European Union (ECJ).

1

While the US

Supreme Court has long been the object of intense scrutiny by the media,

politicians, academics, and the concerned public, the European Union’s

Special Issue: The Discourse of Judging

Studies in Law, Politics, and Society, Volume 58, 139–157

Copyright r2012 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058009

139

(EU’s) Court of Justice has attracted relatively little attention outside

scholarly journals until recently. Today that is changing. As the ECJ intrudes

on ever more sensitive policy areas, it is attracting more scrutiny and in some

circles more criticism. As the spotlight on the ECJ intensifies, it is increasingly

evident that there are competing understandings of what it is precisely

that the Court of Justice’s judges do and what role they play in the EU’s

legal system. In other words, there are competing ‘‘discourses of judging’’

concerning the ECJ.

At a very basic descriptive level, there is of course little disagreement over

what the ECJ does. The ECJ makes rulings on cases brought before it –

including requests for preliminary rulings from national courts, actions

against member state governments for failure to fulfill their obligations,

actions for annulment of EU laws, actions against EU institutions for

failure to act and various direct actions brought by private parties against

EU decisions. In making its judgments, the ECJ interprets European

law (including both Treaty law and secondary legislation), acts to safeguard

the enforcement of European law and to ensure respect for fundamental

rights and other general principles of Community law. That much is

uncontroversial.

The sharp disagreements arise when it comes to assessing and under-

standing – in a deeper sense – the role that ECJ jurisprudence plays in the

EU legal system and in the process of European integration more generally.

When it comes to this more fundamental assessment of the ECJ’s role, there

are serious disagreements between observers of the Court and also between

ECJ and national judges themselves. There are many competing discourses

concerning the ECJ, voiced by scholars, politicians, legal practitioners, and

judges themselves. This study does not offer a comprehens ive review of

them. Instead, the article seeks to bring some order to, and offer some insight

on, this discursive terrain by identifying and describing the four main lines

of discourse concerning judging on the ECJ. Having identified these

primary discourses of judging concerning the ECJ, we can then ask what

impact – if any – these discourses have on ECJ jurisprudence and the process

of legal integration more generally.

The first two lines of discourse emanate from observers of the Court who

share the view that ECJ jurisprudence has served to advance the project of

European integration but who differ in their normative assessment of the

Court’s activities. First, we can identify what we can call the integration-

through-law discourse on the ECJ that highlights the role the Court has

played as an engine of deeper European integration and generally takes a

positive – or at least a neutral – view of these developments. Second, we can

R. DANIEL KELEMEN140