Question

Is the European Court of Justice best understood as an “agent” or a “trustee”? How do the member states, as principals, seek to control the ECJ? Is this exercise in control best classified as a success or a failure?

Sources: Alter 1996; Kelemen 2012; Tallberg 2002; Thatcher and Stone Sweet 2002.

Teacher advise:

Stick to the topic when writing. Focus on HOW? And WHY? (These are the big questions addressed)

Do not talk about other examples or anything out of the text. Specifically on the text at hand explaining how and why.

Format instructions:

You will be expected to fully incorporate course readings in your responses. Each paper must be 3-5 pages in length, double-spaced, 12 point Times New Roman font, standard margins (1” top-bottom, 1.25” left-right), include page numbers and cite all references and conform to either the APA (https://owl.english.purdue.edu/owl/section/2/10/) or MLA (https://owl.english.purdue.edu/owl/resource/747/01/) style guides. Papers that do not meet all of the formatting requirements will not be accepted.

Answer

Name of Student:

Institutional Affiliation:

The European Court of Justice (ECJ) is best understood as a “trustee” rather than an “agent”. The idea of a trustee is more appropriate for ECJ because it also incorporates the roles that the court plays as an agent. In other words, a trustee is an agent who acts as something more, for example, by exercising the powers that have been delegated to it by principals, who in this case are the EU member states. In the case of the European Union, one of the tasks of the ECJ is to interpret in an authoritative manner the various provisions contained in the Treaty of Rome. The resulting rulings ultimately govern all legal persons within the Community as well as member states. The aim of this paper is to explain the view of the ECJ as a trustee rather than an agent. It also explains how member states, as principals, seek to control the court. Lastly, the paper elaborates on the view that this control should be considered a success on the part of the European Union. 

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            The ECJ plays an important role in interpreting various EU regulations and directives. In this regard, it acts as the agent of the EU legislature, considering that the role of the EU legislature is to monitor and correct the rulings of the court. The legislature performs this role by enacting various legislative acts. A similar scenario unfolds in regards to the role of the European Commission as the enforcer of competition rules, in which case it acts as a trustee. On the other hand, the Commission appears to act as an agent by applying secondary legislation to various situations. According to Sweet & Thatcher (2002), this explanation shows that the trustee situation provides a virtually unlimited zone of discretion where the preferences of the principals can be changed in terms of distribution without impacting negatively on the agent’s activities, the agency situation, and policy outcomes.

            The ECJ is only one among the many non-majoritarian institutions where elected officials across Europe have delegated powers as a way of resolving collective action problems. Similarly, national governments continue to transfer power to various EU institutions as a way of dealing with the numerous negative externalities that come with market integration (Kelemen, 2012). Similarly, the process of enforcing EU law is difficult because it requires a lot of monitoring, hence the need to delegate it to non-majoritarian institutions such as the ECJ.

            As principals, member states seek to control the ECJ by retaining constitutional provisions that enable them to either amend existing legal order by taking multilateral action or ignoring its decisions altogether. The member states simply outline the legal order that best suits their interests even though they may not necessarily agree on precise details relating to those rules. Using bodies such as the ECJ, politicians of respective member states are able to avoid making hard choices that might have far-reaching political consequences. This though does not mean that that the member states do not exert control on the operations of the ECJ as principals. On the contrary, they use this Court to amend the existing legal order to ensure that there is a stable environment where member states’ financial and business interests are safeguarded. As principals, member states do this by simply delegating some of the constitutional roles and obligations to the ECJ.

As principals, member states tend to be under pressure from powerful interests in business and banking, who influence governments to delegate some of their roles to the ECJ. This is normally an indication that the EU environment is characterized by governance problems, and that politicians of member states tend to turn a blind eye on them for fear of political backlash. At such times, their role as principals comes in handy because it creates the necessary conditions for the ECJ to operate in an environment of extensive discretion while at the same maintaining significant variation across member states. Thus, it is correct to say that the tendency by member states as principals to control the ECJ has greatly contributed to growth in terms of the level of European integration.It has facilitated economic liberalization as well as the protection of the rights of individuals and firms against member states. Moreover, the ECJ has played a critical role in checking government secrecy, pushing for appropriate policies in diverse fields, and protecting individual liberties.

The most profound way in which the role of member states as principals has been entrenched is in the referral process of appointing ECJ judges, which involves the participation of all the EU member states. There are 25 judges in the ECJ, one for each EU member state (Volcansek, 2007). Although no nationality requirement has been imposed, member states have continued to observe the unwritten rule that each member state will always produce one judge to sit at the ECJ (Volcansek, 2007). This also explains why it is extremely rare for the judicial nominations that member nations make in the ECJ to be disputed. Moreover, this situation is contributed to by the fact that all the judges who are referred to the ECJ are required to have qualified to serve in the highest courts in their respective national judiciaries (Alter, 1996). The power of states as principals is also reinforced by a process of rotating judicial appointments that reflects the political culture of the appointing member state. Thus, the judicial appointment process at the ECJ is not immune from partisan overtones after all. Such a situation is to be expected in any supranational court whose success depends on the goodwill of member states in their capacities as principals.

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In many situations, national governments have chosen to accept adverse rulings handed down by the ECJ simply because of the broader benefits in terms of increased trade outweigh the short-term domestic costs. In this regard, the member states are seen to adopt the so-called rational choice framework to continue trusting the decisions of the ECJ as well as its jurisprudence. By so doing, the member states express their view of ECJ as an institution through which challenges such as incomplete contracting and difficulties in monitoring compliance with various EU obligations can be solved. This does not mean that member states lose the power to control the ECJ as principals simply because of the tendency by the ECJ to make rulings that go against the principals’ interests. Rather, it demonstrates the willingness by the principals to continue recognizing the role of the ECJ as a trustee.

In conclusion, the European Court of Justice (ECJ) is best understood as a “trustee” rather than an “agent”. As a trustee of the EU member states, the ECJ also doubles as an agent of the Community. One way in which EU member states, as principals, seek to control the ECJ is by delegating various functions to it while at the same time retaining certain powers over the supranational non-majoritarian institution. As principals, member states seek to control the ECJ by retaining constitutional provisions that enable them to either amend existing legal order through multilateral action or ignore the ECJ’s decisions altogether. The power of member states as principals is also evident in the unwritten rule that requires them to be represented in judicial appointments to the ECJ at all times. This exercise of control over the ECJ can be classified as a success because it has led to the resolution of political barriers that could have hindered the growth of the EU in terms of integration, liberalization, and protection of individual liberties.

References

Alter, K. (1996). The European Court’s political power. West European Politics, 19(3), 458-487.

Kelemen, R. (2012). The political foundations of judicial independence in the European Union. Journal of European Public Policy,19(1), 43-58.

Sweet, A. & Thatcher, M. (2002). Theory and Practice of Delegation to Non-Majoritarian Institutions. West European Politics, 25(1), 1–22.

Volcansek, M. (2007). Appointing Judges the European Way. Fordham Urban Law Journal, 34, 363-385.