The process of European integration is “evolving and the form it fi nally takes still cannot be predicted”. The European judiciary – i.e. the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR) and national courts interpreting and applying European law sensu largo – have shaped this process actively, alongside the Founding Fathers, European nations, European states and their citizens. The involvement of judiciary raises its own wide range of questions concerning the very nature of democracy. Much ink has been already spilled over issues such as democratic legitimacy, subsidiarity and accountability, the rule of law or judicial activism. But it was the recently celebrated 50th anniversaries of Van Gend en Loos (1963) and Costa v ENEL (1964) judgements that gave us further impetus to ponder about the place of the European judiciary in the democratic life in the Old Continent and their role in the process of its integration.

Therefore, under the auspices of the Centre for Direct Democracy Studies (CDDS) at the Faculty of Law, University of Białystok, in March 2014 we issued a call for papers and seventeen scholars from across Europe, predominantly young researchers, have kindly responded thereto and shared their views on the European judiciary as a challenge for democracy.

The present book constitutes the third fruit of our academic interest in the questions posed by European integration and democracy. In 2012 the Centre established a dedicated, peer-reviewed book series that produced, up-to-date, two volumes. It is edifying that from this volume onwards, the reputable Belgian-based international publishing house Intersentia has decided to publish this series.

The various contributions to the present volume have been split into two parts. The first provides ten chapters on the judicial systems of the European Union (EU), discussing, inter alia, recognition of democratic principles in the case law of the CJEU, contribution thereof to the democratisation of the Union and reception of EU law in the Member States. The second part discusses the judicial means to protect human rights in Europe, consisting of three chapters devoted to the promise of advisory opinions of ECtHR as well as to democratic standards for voting and for fair trial.

INTRODUCTION

Individuals conceptualize the term democracy in a variety of ways. While in the 19th century democracy was associated with a direct form of government in Athenian style, a major breakthrough with the development of nation-states and the prevalence of representation was the foundation for the development of representative democracy.

Representation means transformation of the individuals’ will to the will of the political institutions. Thus, in a representative democracy, public authorities should have democratic legitimacy following citizens’ choice. This statement is a starting point for the reflection in terms of democratic legitimacy, reflection transposed on the ground of the integration processes in Europe. As a result of the creation of the European Community and the European Union, there has been a further relocation of the part of public power. Therefore, public powers exercised by the EU institutions must have democratic legitimacy.

There is a consent that mainstream theories of state democratization are illequipped to explain EU democratization as they are bonded to the nation-state context. The issue of democratic deficit in the EC yielded a vast, heterogeneous literature, notably after the publication of the Tindemans report in 1975, in which, for the very first time, the distance between citizens and the institutions of the EC was acknowledged. Thus, a wide debate on political reforms so as to achieve a more democratic EU has been started, bringing numerous potential solutions to this problem that vary in range and scope. In the debate on democratic deficit in the EU, it is argued that the EU policy is dominated by unelected bodies and directly elected EP plays a secondary role. As a result, the claims on greater power of parliamentary assembly arose such as – for instance – a proposal that the EP should have an independent power of legislative initiative. Majonefi nds such an argumentation as based on the analogy with national institutions. Moravcsik adds that political decision-making should not always be majoritarian and this could be the case in Europe. Still, the Community's 50-year trajectory “from an international organization with very limited traits of democracy to one that has the major institutional trappings of a democratic polity” is marked by the enhancement of the European Parliament's prerogatives.

INTRODUCTION

One of the principal constitutional functions of the European Court of Justice (ECJ) is to secure legitimacy of the European Union (EU) system of governance by protecting the fundamental values on which this system is said to rest. This role of the ECJ – as a guardian of democracy, fundamental rights and the rule of law – is complicated by the multi-layered nature of the EU's sources of legal authority: the EU institutions and the law-making bodies of Member States (MSs), and by the heavy reliance on the co-operation of National Courts (NCs) in building up and maintaining the EU's legal system. I focus on providing an overview of selected problems that are directly related to the ECJ's legitimising role, and I will do so from the perspective of the ECJ's constitutional politics.

First, I will consider whether the alleged prioritising – by the ECJ – of the principles of integrity of the EU legal system and economic regulations over constitutional values – such as fundamental rights and democracy – amounts to an ideological project that undermines the legitimacy of the EU law. I will focus on instances where the ECJ failed to recognise concerns of the NCs related to the standard of protection of these values in the EU law for the sake of protecting its own authority and the uniformity of the EU law. Historically, these concerns were most famously identified in the so-called ‘supremacy’ challenges, but there was also a string of other cases where the protection of market freedoms clashed with fundamental rights and other constitutional principles. Th is period of the ECJ jurisprudence took a more rights-friendly turn in cases such as Omega and Schmidberger. The more recent NCs challenges yet again put the ECJ under pressure, this time because of its reluctance to recognise the higher standards of fundamental rights protection related to criminal trials in national constitutions over those existing in the EU law. The string of the European Arrest Warrant (EAW) cases seems to suggest that the ECJ yet again entered a path of prioritising the supremacy of the EU law over substantive constitutional objectives.

INTRODUCTION

Across several European legal systems we can see an ongoing struggle to develop both efficient and legitimate way to promote and evaluate new judges. This legal procedure is to ensure that the staff needs of the judiciary system are satisfied, but at the same time it seeks the opportunity to select those of the candidates for a full nominated judge who – during acting as a temporary judge – failed to prove their practical adjudicating skills. In order to carry out this task, different systems established different institutions, i.e. a temporary judge, a lay judge, an assistant judge or an assessor.

Each of them differs slightly from the other, but all of them were argued not to meet the standards of a fair trial put forward by the European Convention on Human Rights.

THE POSITION OF AN ASSESSOR IN POLISH COMMON COURTS

With the idea of reintroducing the position of a temporary judge in the Polish judicial system comes the question of the constitutionality of this legal construct and its compliance with the European concept of a fair trial laid down in the European Convention on Human Rights, especially its Article 6.

Knowing that a temporary judge position – as proposed – is in fact a fixed resurrection of a previous office – the general court assessor, one has to keep in mind the prohibitions put forward both by the European and the domestic judicial institutions.

The institution of the assessor (assistant judge) in general courts has been revoked from the Polish legal system on the basis of the Polish Constitutional Tribunal judgment of 24 October 2007, as it was found not to be in compliance with the standards of a fair trial upheld by the Polish Constitution.

Assessors were candidates for the office of district court judge who, under the 2001 Law on the Organisation of Common Courts, had to work for a minimum of three years as an assessor in a district court on completion of their training and examinations.

The decision of the Constitutional Tribunal removed the assessors from general courts, leaving the same office in administrative courts. Although the legal practice in administrative courts has also changed, the legal position of an assessor in these special courts is more independent then the one the assessors in general courts have ever had.

INTRODUCTION

What is an institutional balance in the European Union (EU) law? An idea, a proposal, a mental shortcut or an empty formula? There are many controversies referring to its nature. They are connected, for example, with the way of its introduction onto the plane of the European Union law. It has not been directly expressed in any of the Treaty provisions. Simultaneously, it is certain sets or groups of these provisions read in a systemic way, that allowed the Court of Justice of the European Union (the Court, CJEU) to formulate and embed it in the EU legal order. This is a quite typical operation in reference to the so-called general principles of law. Institutional balance, although not without controversies, seems to fit this category.

Since institutional balance has not been directly expressed in any Treaty provisions, its embedding in the European Union legal order had to be based on the Court's creative interpretation of the Treaties. It is one of the cases where the Court seems to exceed the framework of its literally understood function and competence determined by the Treaties. It is one of the examples of the Court's active affecting the development of the whole of EU law.

However, the question arises if, in the context of institutional balance, the Court “creating” a certain general principle contributed to strengthening the democratic nature of the Union as an exceptional integration structure. Has the Court's “law-making” activism contributed in this case to consolidation of the democratic foundations of the Union?

In order to answer these questions it is, firstly, necessary to find out whether the introduction of institutional balance as a general principle into the EU legal system required the Court's real adjudicating activity, an activity close to legislation. Secondly, it is important to establish the content of the principle of institutional balance – prohibitions and prescripts it generates and to demonstrate in what way the maintenance of institutional balance affects or may affect the state of democracy within the European Union – what is the link between this principle and democratic values.

INTRODUCTION

The principle of supremacy constitutes the core and essence not only of EU law and legal order but also of the goal of European integration itself. Without the acceptance of supremacy of EU law over the laws of the Member States, it is impossible to fulfil the goals specified in the Treaties.

The principle however is not explicitly stated in the Treaties. It was “taken” from the spirit of the Treaty and clearly established by the early judgments of the European Court of Justice (Costa v. ENEL, van Gend en Loos). Understanding of the supremacy principle (its origin, scope and effects) varies throughout the European Union. Constitutional courts/tribunals in particular Member States have been active in a dynamic interpretation of supremacy. The debate started with famous Solange case in Germany and continued through other countries, including new members joining the Union. The Polish Constitutional Tribunal issued three key judgments concerning the principle. Two of them came close in time but brought somehow contrary conclusions.

The first judgment of 27 April 2005 addressed the question of constitutionality of the European Arrest Warrant (EAW) regulations implemented in the Polish Code of Criminal Procedure in the light of Article 55(1) of the Constitution of the Republic of Poland. The Tribunal concluded that those implementing regulations were contrary to the Constitution which, as a rule, did not allow for the surrender of Polish citizens. As a result, the first amendment of the Polish Constitution was proceeded to satisfy the aims of the EU decision and as such, it confirmed the supremacy of the EU law over Polish law, including the Polish Constitution.

A couple of weeks later, on 11 May 2005, the Tribunal issued its judgment concerning the constitutionality of the Accession Treaty. Although the Tribunal did not find any grounds for the inconformity of the Accession Treaty to the Polish Constitution, it took another chance to widely explain the understanding of the supremacy principle and came to interesting conclusions including one stating that the collision of Community law and national constitutional norm may “in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm”.

INTRODUCTION

Democracy and equality of citizens are the fundamental values of the European social and economic order. This axiological assumption is generally reflected in extensive legal regulations organizing the social and economic life in the European Union (EU). For the purposes of this chapter, a detailed analysis of those foundations intend to be limited to the manifestations of the democratic values in the Court of Justice of the European Union (CJEU) adjudication in the selected issues of the European antitrust law where, under private enforcement against practices violating the prohibitions of the European antitrust law, equal participation and citizen's access to the proceedings before the courts, based on the principle of freedom of choice of all concerned, are ensured.

Competition, understood as an ideal position equilibrium, which confirms the optimal allocation of recourses and the protection of consumer's interests, is essential for the social welfare. Yet the conditions for optimal competition and its further functioning are not guaranteed only by the free market and economic mechanisms. Historically, there were two ways of dealing with competition law regulation. Looking at the gradual transformation of the European law in the field of competition law, both dominant approaches, that is the Anglo-American one, following the case-by-case logic, and the European (continental) one, that takes more policy-based attitude, were adopted. The foundation of the European antitrust law can be identified in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU),1 which respectively address the issue of “undertakings” distorting the internal market by agreements, decisions of associations of undertakings or by concerted practices,2 and the abuse of their “dominant position”. Whenever both prohibiting agreements and abuses of dominant position affect the trade between EU Member States under the Treaty, they are enforced by the European Commission and by the National Competition Authorities (NCA). Both EU highest courts as well as national courts can adjudicate the EU competition law.

In the context of the private litigation, Articles 101 and 102 TFEU (until the 2003 reform of the European antitrust law) were rarely invoked by private parties to claim damages and injunctions.

INTRODUCTION

The electoral system of the European Union (EU) has yet a lot to demonstrate: it is not merely a multifaceted system of divergent values but also a unique system of law that has the ability to produce several democratic ramifications at the level of the right to vote under the European Convention on Human Rights’ (the Convention, ECHR) standards. Th is chapter, therefore, discusses the electoral system of the EU from the perspective of the conceptual standards deriving from the European Court of Human Rights’ (Strasbourg Court, ECtHR) seminal cases Sejdić & Finci and Zornić. With the note that the EU is not a contracting party to the Convention, this chapter merely tries to delineate some fundamental and abstract collisions which the current system of elections in the EU may face with the Convention law.

As a primary note, it is worth considering Schleicher. He argues that ‘[t]he reason why EU leaders have repeatedly increased the powers of the European Parliament (EP) is clear. Giving power to a directly-elected body was considered a way to cure the “democratic deficit,” or the perceived inability of European citizens to influence EU decision-making.’ The democratic deficit in the EU is not simply a reflection of the ‘common sense’ (political) maturity of the governments of the EU member states. It is also a consequence of the constitutional model concerning the electoral system in the EU which both the Treaties and the EU legislation designate. Tackling this issue from the perspective of the Strasbourg Court's case-law and standards on voting rights and prohibition on discrimination would provide guidance on how to reduce the democratic deficit from the perspective of human rights.

To note, the EP elections are another set of electoral democracy within the EU and its Member States. Turning out to vote in the EP elections is a separate democratic demonstration of EU citizens independently from the elections in their home countries. From the perspective of the democratic deficit, turn out in these elections is a part of the challenges that the EU and Member States must address.

INTRODUCTION

“The only thing to do with good advice is pass it on. It is never any use to oneself”, Oscar Wilde once noticed. Good advice might be worth passing on rather than practicable for oneself out of demand of an effort, self-restraint and commitment on the part of an agent or maybe even more because of its usual lack of any utility whatsoever. Nevertheless, sharing an advice not just passing it on, especially by a well respected person or entity, with authority in certain fi eld, and when it comes together with explanation and reasoning behind it, might amount to an element of important thought exchange, which enhances agreement and cooperation rather than resistance and concurrence.

This text shall be an attempt at analysing and assessing the newly adopted Protocol No. 162 (further: Protocol 16 or Protocol) to the Convention for the Protection of Human Rights and Fundamental Freedoms3 (further: European Convention of Human Rights; European Convention; Convention or ECHR) and the advisory opinion (further: AO) mechanism, which it introduces in the light of the recent discussion over the reform of the Strasbourg human rights protection system as well as in the light of some fundamental principles underlying this system. Of course the Protocol is not yet in force and, if at all, most likely it will not be in any near future. Therefore the argument below shall not be detailed when it comes to procedures or possible practices that could develop only with actual application of the Protocol. The text will focus on an attempt at identifying some week and strong sides of this document in the light of its main goals, which place it among endeavours aimed at enhancing the long term effectiveness and efficiency of the Strasburg human rights protection system. To do so, it will be necessary to present some background knowledge on the development of the Protocol as well as some essential information on what kind of regulations it introduces together with, if necessary for the argument developed in this text, some brief comments on their rationale and consequences. This will lead to conclusions on the possible chances, which the Protocol opens for the amendment of the system of the Convention as well as on some of its weak sides, which may lead it to have limited, if any, significance.

INTRODUCTION

Ongoing debt crisis (since 2010) of several Member States of the Eurozone resulting from global economic slowdown (since 2007) sparked doubts about viability of single currency introduced more than 15 years ago (1999). The collapse of the Eurozone and reintroduction of national currencies has been feared since then.

The European Union and the Member States reacted with rescue measures. Heavily indebted Member States – Greece, Portugal, Ireland and Cyprus – needed massive rescue loans. The loans were provided by other Member States, international institutions and funds newly established within the European Union for this purpose. The European Central Bank alleviated with purchase of bonds of these states plus Italy and Spain on financial market, lending money to endangered banks, extremely low interest rates and quantitative easing.

Both rescue loans and unconventional monetary policy cause political skirmishes between the Member States. Mandated austerity is objected by people in the South and unexpected expenditures for rescue in the North where also inflation is feared. National politicians cannot ignore these views and push for the solutions they perceive as serving national interests. Relations between the Member States thus deteriorate. The entire existence of the European Union is questioned.

The crisis emerged due to the chronic incompliance with the rules agreed for the maintenance of the single currency two decades ago. Several measures adopted due to the crisis also compromise existing rules.

The European Communities were, and the European Union is, a polity governed with law (rule of law), albeit with specific supranational features.1 Judiciary plays crucial role. The above mentioned controversies are thus increasingly brought to courts of the European Union and also to the courts of the Member States, because adjudication of this supranational law is shared by supranational and national judiciary. A collection of papers addressing recent trends in judiciary in the European Union thus deserves attention to it.

Nevertheless, judicial control of fiscal and monetary decisions is rare or entirely missing in the world. Its potential, methods and limits are thus rarely discussed. Therefore, this paper must start with an overview of roles and functioning of judiciary plus an outline of nature of money and public budgets.

INTRODUCTION

The construction of governance structure based on judicial activism of the Court of Justice of the EU (European Court, ECJ, CJUE) has been explained as judicial coup d’état, where the European Court created the doctrine of the primacy of the European Communities law.2 The question arises whether the spill-over effect may play an adverse role of an obstacle in integration since the Member States, and especially their courts, may adopt a similar set of doctrines, reasoning, concepts and legal instruments in order to diminish the effect and scope of the primacy of the EU law doctrine.3 This position has been taken by some intergovernmental lists, who claimed that states remained principal actors on the European scene and remained ultimate decision makers. This position has been unsuccessfully defended by different authors. It has been suggested that the discretion enjoyed by the ECJ has not in fact been curbed by any successful strategy adopted by any Member State.

It seems, however, that things have been changed with the enlargement and the creation of platform for the horizontal judicial discourse and coordination of state driven policy concerning the minimization of the discretion successfully having been controlled by the ECJ. W. Sadurski has been successfully demonstrating how the constitutional courts in Central Europe (CE) have limited the application of the EU law by rejection of the full application of the doctrine of the primacy of the EU law. The enactment of the Treaty on Functioning of the European Union resulted with many judgments of constitutional courts in Member States in which the concept of sovereignty and the doctrine of sovereign powers played an important role. The paper will thus concentrate on two issues, namely on the difference in the meaning of the concept of sovereignty and its application by the constitutional courts in Poland and Hungary and the position of the constitutional courts within the dynamic constitutional setting, embracing the legislature and the other courts.

Two waves of judgments by the national courts in CE seem to be conspicuous in this respect.

The role of European Judiciary in the process of European integration cannot be overestimated. The achievements of European integration after the second world war are usually analysed from the perspective of political decisions that were made, initially, by the Founding Fathers and, subsequently, by the political leaders of the European countries. However, in the public debate we very oft en forget how much we owe to the two supreme jurisdictions of Europe, that is the Court of Justice of the European Union and the European Court of Human Rights.

One cannot deny that without some “revolutionary” decisions of the Court of Justice, the process of European integration would never come to the place where we are now. We would have never achieved the level of integration that, despite some shortcomings, still remains unique in comparison to all other initiatives of economic and political integration in the rest of the world. The Court of Justice takes the mission of ensuring that “law is observed” seriously and continues to assure that it is the rule of law which is at the heart of the European Union. The strength of the European Union comes essentially from the fact that it constitutes an autonomous legal order which rests on the concepts of direct effect and supremacy. These latter concepts were not only developed by, but – and this must be emphasized – originated in the case law of the Court of Justice. The landmark decisions of the Court of Justice gave life to and strengthened the internal market that still remains the cornerstone and the main achievement of the European integration. One would not exaggerate by saying that political initiatives would remain “wishful thinking” if they were not supported by the historic decisions of the Court of Justice.

The contribution of the European Court of Human Rights is equally significant. It assured that the protection of human rights on our continent became effective and universal. The limits of human rights are no longer restricted to national boundaries nor exposed to the danger of national authorities abusing their discretionary competences.

European lawyers have frequent and important recourse to the language of principle in their exposition and development of the law (EU or national) and this has been fully reflected in the discussions on European contract law. In this chapter, I will note the differing use of principles in the course of settling the Draft Common Frame of Reference (DCFR) and then look in more detail at the role of principles in the proposed Common European Sales Law (CESL), which distinguishes between ‘general principles’ and ‘underlying principles’. As will be seen, ‘principles’ have a very important role in the CESL, not least as regards to its interpretation and the settling of issues within its scope but unsettled by its provisions.

THE EVOLUTION OF ‘PRINCIPLES’ IN THE DCFR

The identification of ‘common’ or ‘fundamental principles’ was a central element in the Commission's communications on the development of European contract law in the first decade of the present century and their idea of constructing a Common Frame of Reference (CFR) for European contract law. At this stage, the Commission saw freedom of contract as the proper starting-point for constructing the model rules. In the Commission's view, ‘contractual freedom should be the guiding principle; restrictions should only be foreseen where this could be justified with good reasons.’ This concern for principle was reflected in the task entrusted to the authors of the DCFR by the Commission, who were asked to construct ‘principles, definitions and model rules’ of European private law. The changing way in which the authors of the DCFR interpreted this aspect of their remit is worth noting given that it casts some light on the treatment of principles proposed in the CESL.

In the first version of the DCFR published in 2008, the authors of its Introduction interpreted the phrase ‘fundamental principles’ used by the Commission ‘to denote essentially abstract basic values’.

According to Giuseppe Mazzini, ‘[i]n politics, as in any other field, a principle inevitably leads to a system, a series of consequences, a process of applications easy to anticipate for persons with common sense’. This assertion certainly applies to European contract law. This contribution aims at demonstrating that the ECJ played an important role in such a process. To understand how such a process started, one must get back to the foundations of European Union law.

In the beginning was the EEC. And from the very beginning, the EEC was both a market and a political system. Any political agreement, leading to a legal consensus was aimed at building a market. This economical approach is obvious in the Treaties. Before building a common law a common market had to be built. The goal was to increase trade between Member States. The creation of this common market led to the adoption of common legislation. As a consequence the market preceded the law. In this respect, all the general principles set down in the Treaties are market-oriented. In this respect general principles were predestined to leave the field of what a continental lawyer would call ‘public law’ to enter the field of private law, more precisely of economic private law. This happened through the channel of the ECJ, which sought to review the conformity of national regulations with EU legislation adopted on the grounds of approximation of laws.

At this point, two very important issues should be clarified. Firstly, for the purpose of this contribution, only principles set or implied by Treaties and by the Charter on Fundamental Rights will be considered general/constitutional principles. Secondly, despite the economic dimension of European law and its market-oriented nature, not all existing general/constitutional principles could play a role in the developing of contract law through the channel of the ECJ. Principles such as subsidiarity and sincere cooperation were not shaped to influence, even indirectly, the field of contract law.

The principle of proportionality goes to the root of the law the essence of which is the balancing of competing rights and interests. This insight is not new. The Romans already pictured their goddess of justice, Justitia, as a (blindfolded) woman with a balance. In EU law, proportionality was recognised as a general principle of law in Internationale Handelsgesellschaft.

In the relationship between the principle of proportionality and European contract law two dimensions can be distinguished. Firstly, there is the typical EU law dimension. The principle of proportionality serves as an instrument to delineate the respective powers of the EU and the Member States. As such it is used in Article 5(2) and (4) TEU which state that the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein and that, under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. To this dimension also belongs the proportionality test used in the control of the compatibility of national legislation with the EU fundamental freedoms. The principle of proportionality evidently also fulfils these functions when legislation in the field of contract law is concerned. Proportionality in the meaning of Article 5(2) and (4) TEU is discussed whenever the EU plans to adopt legislation harmonising elements of contract law or when the desirability of a more general instrument of EU contract law (an EU code of contract law and the like) is discussed. Gysbrechts provides an example of the use of the proportionality test to determine the compatibility of national legislation on contract law with the fundamental freedoms. In this case the Court of Justice held that a Belgian rule on distance contracts, to the extent that it was interpreted as prohibiting the distance seller to require that a consumer provide his payment card number before the expiry of the withdrawal period, went beyond what is necessary to attain the pursued objective of consumer protection and constituted an obstacle to the free movement of goods contrary to Article 35 TFEU (ex-Article 29 EC).