Anna Wallerman Ghavanini
The crucial role of national courts in the European Union’s decentralised enforcement system has long been recognised, and topics such supremacy, direct effect, effective judicial protection, and preliminary references may incline the audience to yawn – we have heard it all before, haven’t we? The more impressive is the achievement of the general rapporteur, Professor Michael Dougan, to have managed to pinpoint, within these classical topics of EU law, perspectives that are fresh and exciting, inviting national rapporteurs to reflect upon the impact of the very latest developments of Court of Justice’s (CJEU) jurisprudence within their Member States.
The book is the first of three volumes compiled in preparation for the XXIX Congress of the International Federation of European Law (FIDE), which was scheduled to be held in the Hague in May of this year. It consists of a brief introduction to the questionnaire which was distributed to national rapporteurs, followed by a general report by Michael Dougan summarising the conclusions of the national reports, an institutional report by Advocate General Michal Bobek, and 23 national reports covering most of the EU’s Member States, including one on the EFTA states Norway, Iceland and Luxembourg. All in all, the volume provides a rich and detailed overview of the latest judicial developments at both EU and Member State levels on some of the most fundamental topics of EU law.
The novelty of the approach taken in the questionnaire is however not without disadvantages. It takes time for most of the CJEU’s innovations to trickle down to the Member State judiciaries, and in the highest instances also for suitable cases to come along. In consequence, some of the national reports fail to address the specific topics identified; no doubt this is still uncharted territory for many national jurisdictions. This becomes the most clear in in the discussion of the recent and welcome doctrine on what Michael Dougan terms ‘primacy conditionality’ – namely, the CJEU’s newfound willingness to recognise conflicts of norms within the EU legal order and compromise on the requirements of effective enforcement for the benefit of important general principles, as perhaps most prominently displayed in the Taricco/MAS exchange with the Italian judiciary – where several national reports reply merely by describing their national judiciary’s general stance on the principle of supremacy.
AG Bobek’s institutional report provides a highly useful overview of the CJEU’s recent case law in the matters covered by the questionnaire. However, and refreshingly, AG Bobek also allows himself to occasionally take a critical view of the Court, thus giving his report scholarly as well as pedagogical value. Having acknowledged –in response to the sixth question about the highest courts’ duty to request preliminary rulings under Article 267 TFEU – the many difficulties connected with the CILFIT doctrine, the institutional report ends on a forward-looking note with the intriguing question as to the shape of the future CILFIT. It is to be hoped that the Advocate General soon finds reason to return to that question in his judicial capacity.
Lastly, prospective readers should in particular be directed to the reports’ treatment of question 4, concerning the state of judicial independence in the Member States. While the topic has been extensively discussed recently in relation to the so-called rule of law backsliding in certain Member States, it is chilling to find that many national reports, also from Member States (relatively) unaffected by populism and anti-liberalism, bring up independence problems within their respective judiciaries (interestingly, however, the Hungarian report mounts a forceful defence of its national judiciary in this respect). Michael Dougan pertinently asks whether these concerns should really be thought of as unconnected domestic developments, or whether they may not instead be symptomatic of a serious threat to judicial independence that transcends national politics – and if so, what our common response can and should be.
These are questions that should worry us all.
Anna Wallerman Ghavanini is an Associate Professor of EU law at the University of Gothenburg. Her research interests include EU constitutional law, judicial procedures and decision-making, and legal empirical research.