Constitutional Review in the Mega‐Leviathan: A Democratic Foundation for the European Court of Justice

• Author: Quoc Loc Hong
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00529.x
• Date: 01 November 2010
• Published date: 01 November 2010

eulj_529695..716

Constitutional Review in the

Mega-Leviathan: A Democratic

Foundation for the European Court

of Justice

Quoc Loc Hong*

Abstract: The European Court of Justice (ECJ) serves, among other things, as a con-

stitutional court for the EU. This means that it possesses the legal right to strike down

both EU and national laws it deems irreconcilable with treaty provisions. In the present

article, we shall draw on Hans Kelsen’s theory of democracy to argue that the ECJ’s

competence to review and invalidate legislation is, in fact, indispensable for the democratic

legitimacy of the EU’s legal system as a whole.

We have too little theory in the law rather than too much...

Oliver WendellHolmes, Jr

I Introduction

Constitutional review tends to be controversial from the perspective of democratic

orthodoxy because it implies that unelected judges would be able to strike down

legislation enacted by electorally accountable law makers. Since the European Court of

Justice (ECJ) serves, among other things, as a constitutional court for the EU,1the

question concerning its democratic legitimacy cannot be avoided. Is it possible to

establish the court’s democratic credentials? The main justification for constitutional

review has traditionally been the protection of minorities. Democracy, it has been

* Postdoctoral Fellow, Law Faculty, University of Antwerp, 2007–2009. I would like to thank Professor

Maurice Adams, Professor Johan Meeusen and Professor Anne-Marie Van den Bossche for their critical

comments on an earlier draft of this article. My thanks also go to this journal’s anonymous reviewers for

their incisive suggestions.

1M. Rosenfeld, ‘Comparing Constitutional Review by the European Court of Justice and the U.S. Supreme

Court’, (2006) 4(4) International Journal of Constitutional Law 650. See also the ECJ’s seminal decision in

Case 294/83, Parti Écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339. At para 23, the court

asserts: ‘It must first be emphasised in this regard that the European Economic Community is a Commu-

nity based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review

of the question whether the measures adopted by them are in conformity with the basic constitutional

charter, the Treaty’. By classifying the EEC Treaty as a ‘constitutional charter’, the ECJ has, in fact,

attributed to itself the competences of a constitutional court.

European Law Journal, Vol. 16, No. 6, November 2010, pp. 695–716.

© 2010 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

argued, does not only require government by majority but also demands the guarantee

of minority rights by a counter-majoritarian force.

The need for minority protection has been cited in defence of the ECJ’s democratic

character as well.2The problem, however, is that even if we, for the sake of argument,

are prepared to accept the general validity of this defence, then we cannot rely on its

unmodified form to contend that the ECJ is a democratically legitimate constitutional

court. The ECJ, after all, differs from other ordinary constitutional courts in that it is

a court of a transnational polity. An ordinary constitutional court adjudicates disputes

among parties that originate from within a national community, whereas the ECJ has

to resolve conflicts arising between, inter alia:

1. institutions of the EU;

2. EU institutions and individual Member States; and

3. Member States themselves.

Besides the protection of minorities that is implied in the resolution of inter-

institutional conflicts mentioned above, the court obviously is also involved in the

implementation of the same task through, for instance, the mechanism of preliminary

procedures. It can be argued that the ECJ is actually safeguarding the rights of minority

members, when the court strikes down a piece of EU or national legislation it deems

inconsistent with Treaty provisions under a procedure initiated by the Union’s indi-

vidual citizens on the basis of Article 234 of the Consolidated Treaty Establishing the

European Community.

The present article, however, is not the place to discuss all the technical matters that

may be of interest to European law jurists.3Leaving them aside for the moment, this

article will focus exclusively on the jurisprudential question as to how a democratic

foundation for the ECJ could be constructed. The fact that the ECJ is a transnational

court means, as already alluded to above, that it is impossible to devise the jurispru-

dential legitimisation thereof in a way similar to that in which it has been done for a

constitutional court in a national democracy. This impossibility, in turn, implies that

we shall have to discuss in an extensive way the theoretical background against which

the democratic legitimacy of constitutional review in the Union will be addressed in the

end.

In section II, we shall, therefore, first outline the method in which the democratic

credentials of such a court have usually been established in a nation state. Given the

fact that the essence of constitutional review resides in the competence of judges to

strike down laws they deem unconstitutional, we will, for obvious reasons, focus our

attention on this competence, explaining why it could be considered democratically

legitimate, despite the normative primacy that the traditional conception of democracy

as popular self-legislation tends to assign to the elected legislature.

After having established that democracy as popular self-legislation is not tenable

within a continental empire like the EU, we shall draw on Hans Kelsen’s reinterpreta-

tion of the majority principle to fashion, in section III, an alternative conception of

democracy that fits the transnational nature thereof better than its traditional rival

2A. Moravcsik, ‘In Defense of the “Democratic Deficit”: Reassessing Legitimacy in the European Union’,

(2002) 40(4) Journal of Common Market Studies 614.

3Technically, the ECJ is the Court of Justice of the European Communities, which means that its jurisdic-

tion covers mainly disputes originating from the EU’s First Pillar.

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