Domestic Judicial Defiance in the European Union

This paper presents a political economic approach to the jurisprudence of constitutional conflict, which seeks to both reinterpret and move beyond the pluralism and dialogue metaphors. Drawing on Dyevre (2012) and Dyevre (2010), it conceptualises the EU legal system as a multi-level, non-hierarchical court system, in which upper and lower-level courts do not only respond to each other’s moves but also to the behaviour of non-judicial actors. Public and government party attitudes towards EU membership, in particular, are taken to constitute an important constraint on the position and latitude of high court judges. This theoretical framework is then used to discuss several puzzles arising from the jurisprudence of constitutional conflict: the capacity of national courts to influence the Court of Justice, the effectiveness of domestic non-compliance threats and the risk that domestic judicial defiance may pose to the existence of the EU legal order. The author argues that:

(1)  Many aspects of the jurisprudence of constitutional conflict can be represented as a simple Hawk-Dove game. This, in turn, points to numerous parallels with the Cold War and conflict situations in international relations.

(2)  Domestic high courts vary widely in their capacity to exert influence on the Court of Justice’s jurisprudence. Their decisions do not pose the same systemic threat to the Luxembourg court’s authority. Apart from the German Federal Constitutional Court, few domestic high courts can make a credible claim to superpower status, although judicial “satellites” may benefit from the Karlsruhe Court’s nuclear umbrella.

(3)  The more conflictual facets of the judicial dialogue alleged to have taken place between the Court of Justice and domestic high courts, particularly the German Federal Constitutional Court, can be more aptly analyzed as “signalling”. When used by domestic judges in the context of a “coexistence” or “containment” equilibrium, domestic judicial signalling may be an effective way to extract concessions from the ECJ while avoiding an escalated judicial war. This demonstrates that a domestic court need not “bite” in order for its “barking” to be effective.