Wednesday, May 25 2022
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In his recent book “Relative Authority of Judicial and Extra-Judicial Review – EU Courts, Boards of Appeal, Ombudsman”, Michał Krajewski explores in a descriptive and normative way the implications of widening the net of actors in the EU’s remedial landscape. The book is a courageous and thorough tour de force that covers the challenges and limitations faced by the EU’s current court system, and how its parallel expansion through the creation of panels, boards of appeal and other adjudicative bodies has contributed to reinforce the rule of law in the EU legal order. The book succeeds on many fronts, but it also leaves a set of major questions unanswered. This book review will highlight the virtues and strengths of Krajewski’s research, while pointing at prospective and critical aspects of potential future development.

Krajewski starts with a strong and well-argued premiss: the technical complexity of EU judicial review, as well as the limitations of its rules of access, conveys the risk of turning EU courts into non-optimal actors as sole guarantors of the rule of law in the EU institutional system. Expertise in technical fields is currently absent in the EU courts (when these courts decide to review with sufficient intensity, which is not always the case). Standing requirements shut the doors of EU remedies to legitimate voices with interests deserving judicial review in relevant areas (environmental law, consumer law, digital markets, etc…). The available resources in a multilingual court system also put pressure on the efficiency of the EU courts, thus forcing the legislature to explore alternative routes of adjudication: fast, learned, discrete, efficient, informal and/or accessible avenues in which citizens and collective interests can find a voice through the adjudicative process.

This is a factual claim that is well portrayed by Krajewski. But the book doesn’t stop here, insofar it goes one step further and construes a normative rationale to provide legitimacy to this parallel world of adjudicative authorities. By developing an autonomous methodology based on four features (independence, powers, accessibility and procedural activity), Krajewski proposes a framework on which a broad variety of adjudicative bodies can be reviewed in terms of normative legitimacy within a broader system of EU remedies, in which judicial and extra-judicial bodies co-exist. This toolbox proves to be valuable and mostly correct (one could think of other features, but overall, the chosen four provide the service) and it leads the author to a normative stance in which he purports the value and role of alternative routes to traditional judicial review.

To make his point, Krajewski uses the four features as a blueprint to review and check in considerable detail how the framework operates in three adjudicative contexts: annulment actions in EU courts, the ECHA Board of Appeal, and the Ombudsman. The analysis provides shadows and lights in all three cases, but the overall conclusion is that the combination of different bodies, in which traditional and more flexible channels of adjudication coexist, can be an encouraging strategy to fix the pitfalls of the EU’s traditional tools of judicial review. None of the examples are perfect and they all provide their own weaknesses, but, in general, such weaknesses can be broadly offset by the virtues of other remedial channels.

In sum, the reader arrives at the conclusions of the book with the sense of having discovered a new EU judicial system, one in which the Court of Justice and the General Court coexist with other bodies, in a harmonious coexistence that, overall, reinforces the rule of law. The author is not naïve and is well aware that such a narrative can be too optimistic, but the tone and underlying message of the book points in a direction that invites the reader to bet on this more sophisticated conception of judicial review.

However, this narrative can be misleading. In my view, the book’s main weakness is that it covers only a portion of the reality of the EU’s judicial system and its remedial channels. By focusing on judicial review of EU administrative action in the context of actions of annulment, the book provides a vision of judicial authority and the rule of law mostly attached to administrative adjudication. That is perfectly attuned to the reality of some areas of policy and practice, but not so much in domains in which  annulment actions are only a partial segment of the day-to-day of judicial activity. To give only a few examples, the book does not explore how the framework applies to the reality of preliminary references, where the Court of Justice coexists and adjudicates collectively with national authorities of judicial and para-judicial nature. Judicial review is also reflected in infringement actions, a remedy that has even more stringent requirements of access and can deal with technical complexities equivalent to those in an annulment action. Contractual disputes under Article 272 TFEU can turn EU courts into adjudicators subject to national law, in which technical issues subject to expert witnesses put the EU court system in a position of technical complexity in which the review of discretion is subject to procedural constraints. These are all manifestations of judicial review within the EU legal order, to which extra-judicial bodies, like the ones reviewed in the book, provide poorer solutions.

Just as it puts the emphasis on the judicial review of EU administrative action, it also concentrates thoroughly, and probably far too much, on the alternatives provided by EU institutional bodies. The boards of appeals or panels of agencies, or the Ombudsman, are all the creation of EU law, designed to review the decisions of EU Institutions, agencies or bodies. However, such an emphasis on EU bodies has driven Krajewski away from exploring other routes in the Member States, where expert bodies can also provide alternative adjudicative remedies subject to judicial review (and eventually interpretation of the Court through preliminary references). In fact, some of the shortfalls spotted by Krajewski, such as the lack of resources in some extra-judicial bodies, could well be offset by a more intensive presence of national bodies participating in the review of administrative action. Extra-judicial review in the Member States entails risks, but in a growingly more integrated administrative structure, in which EU bodies and national administrations blend within a “system” or a “mechanism” (as experienced recently in the field of banking supervision, banking resolution or even the European public prosecutor), the rule of law should be conceived in a more holistic way, taking into account both EU and national institutional structures collectively.

These critiques are, of course, subject to discussion and they would certainly pave the way for further considerations that the author could explore in the future. Furthermore, they show that the book has created a framework that is replicable and expandable into other scenarios, probably needing some adjustment, but within the overall conceptual and refined toolbox developed by Krajewski.

In sum, this is a book that provides insightful factual depictions of the EU’s judicial and extra-judicial review panorama, but it also incites the reader into looking at the conventional understanding of EU judicial review in a different light. Whether this light is sufficient to reconsider the system in its entirety is another matter, one that could lead Krajewski further into developing other stimulating research in the near future.

 

Daniel Sarmiento is a Professor of EU Law (Complutense University of Madrid) and Editor-in-Chief of EU Law Live

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