Vol. 16 No. 9 (September, 2006) pp.676-678

 

THE NATIONAL COURTS’ MANDATE IN THE EUROPEAN CONSTITUTION, by Monica Claes.  Oxford: Hart Publishing, 2006. 818pp. Hardback. £65.00/$130.00. ISBN 1-84113-476-7.

 

Reviewed by Emilian Kavalski, Department of Political Science, University of Alberta (Edmonton, Canada).  Email: kavalski [at] ualberta.ca.

 

November 1, 2006 should have been the date when the Treaty establishing a Constitution for Europe (commonly referred to as the European Constitution) would have come into force. However, its rejection by the French and Dutch voters in referenda during the early summer of 2005 probably means that this date would come and go without much fanfare and would only mark one more predicament in the process of constitutionalizing Europe. Among their many objectives, the drafters of the European Constitutional Treaty intended to streamline and simplify the legal framework and interactions among the soon-to-be twenty-seven Member States of the European Union (EU). The need for such reforms underwrites Monica Claes’ meticulous investigation of the negotiation of different standards of interpretation and construction that judges in Europe need to apply when enforcing EU law within particular national legal systems.

 

Her insightful exploration offers a detailed understanding of the involvement of national courts in the judicial system of the EU and on their position vis-à-vis their respective national constitutional frameworks. In this respect, Claes presents the (often controversial) experience of the national courts of the Member States in the application and enforcement of EU law. Her exploration, therefore, queries the source, scope, and limits of judicial authority in the legal framework of the EU.

 

As such, Claes’ book interrogates the complicated relationship between the European Court of Justice and the national courts of the Member States of the EU. Traditionally, however, this interaction has been treated from the top-down perspective of the European level (that is, the Court of Justice). Claes contends that such an approach promotes a lopsided view of the relationship between the European and national levels. Therefore, she sets about balancing the outlook and presents the story less told—a perspective from the point of view of the legal frameworks of the Member States. Acknowledging that it is impossible to draw general conclusions about such a diverse set of legal systems and traditions, the volume undertakes a comprehensive assessment of interactions between the European Court of Justice and the national courts in nine West European Member States: Belgium, Denmark, France, Germany, Ireland, Italy, Luxemburg, the Netherlands, and the United Kingdom. Although some might argue that the choice of countries confines Claes’ investigation, the claim here is that even this selection demonstrates the intricacies of the relationship between the European Court of Justice and the national courts. This point is further [*677] illustrated by reference to nearly six-hundred legal cases, which give Claes’ volume a nearly encyclopedic dimension.

 

In developing her assumptions, Claes relies on a narrative approach from two distinct perspectives: on the one hand, she presents the account from the point of view of EU law and the European legal framework; on the other, she relates the story from the point of view of the national courts. In order to draw a more vivid picture of the legal environment within the Member States, Claes bifurcates the second narrative into (i) “ordinary national courts” (p.15)—i.e., administrative, civil, tax, and labor courts; and (ii) constitutional courts.

 

Such focus takes a fresh view at the role of the national courts as enforcers of EU law. Claes seems somewhat troubled by the supremacy of the European Court of Justice and its insistence that when the tenets of the national and European systems clash, courts of the Member States should disregard their domestic constitutional rules and give preference to EU legal standards. To her mind, this calls for reconsideration of the principles of democracy and legality both within the context of Member States as well as the broader EU. Unfortunately, this proposition is not developed further, despite Claes’ shrewd elaborations on the relationship between the national and European levels in the now apparently dormant Treaty establishing a Constitution for Europe.

 

The development of the central theme of the book—the contentious European and national mandate of Member State courts—is structured in three steps. The first details the functions and duties of ordinary national courts as agents of EU law. Initially, Claes embarks on “legal archeology” (p.45) that provides an historical background to evolution of the dual identity of Member State courts—both as national courts, applying domestic rule and as international courts, enforcing EU law. Her survey of cases presents a disparate picture of the ability of national courts to comply with the requirements of the European Court of Justice and, at the same time, maneuver so as not to upset the domestic constitutional principles (p.382).

 

The second step relates the problematic experience of the constitutional courts. The controversy of this narrative stems from implications for the pattern of European integration. In particular it concerns the contested visions regarding division of competency between the EU and the Member States. As Claes asserts, the repercussions of the case law of the European Court of Justice are “less constructive and congenial” to the constitutional courts, as they undermine their function and mission to guarantee adherence to domestic rules of Member States (p.387). Thus, as she sketches a general picture of continuing resistance to supremacy of EU law on behalf of constitutional courts, Claes proclaims that it is “inconvenient, impractical and simply unfair [as well as] downright wrong” for a national court to review EU legislation (p.650). Although some readers might be taken aback by the emotion and force of such language, they should not misunderstand it as [*678] detraction from the scrupulous style of analysis of the book.

 

Instead, these expressions should be taken as indications of Claes’ interest in the debates on the European Constitution and the Convention on the Future of Europe. In effect, such concern constitutes the third step of her analysis. Her survey of the relationship between the national and European level of legal authority underwrites the discussions on the direction of European constitutionalism. She insists that this is not only a matter for judicial deliberations, but also a question of political will. Nevertheless, Claes urges the interlocutors of these debates to draw lessons from judicial dialogues between the national courts of Member States and the European Court of Justice.

 

Such an investigative three-step allows Claes to detect “moods” (p.22) in the ongoing and continually contested relationship between national and EU law. In this respect, her book provides perhaps one of the most detailed accounts of this interaction.  It is expected that some readers would be disappointed by Claes’ strict subscription to the disciplinary ramifications of jurisprudence. However, even those who would prefer some discursive intersections with political science must take into account (if not admire) the consistency and circumspection with which Claes traces the twists and turns of European legal integration. Her volume, therefore, should be equally appreciated by both legal practitioners as well as scholars interested in European constitutional history, and, in particular, in the relationship between the European Court of Justice and national courts. It is anticipated that Claes’ book will remain a helpful and lasting repository for anyone studying the EU legal framework and looking for highly-informed perspectives on the experience of its institutionalization.

*************************************************

© Copyright 2006 by the author, Emilian Kavalski.