Lindseth, Peter L.

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Rescue Package for FundamentalRights: Comments by PETERLINDSETHPeter Lindseth 2012-02-18T23:01:06I’d like to thank Alexandra, Max, and Christoph for inviting me to participate in thisfascinating exchange.  As an American, I feel like the outsider here.  Moreover,I have just written a book (in part from an American perspective, but also deeplygrounded in integration history) that argues that the EU is best understood as‘administrative, not constitutional’.  So it should perhaps be unsurprising that I amreluctant to endorse the deeply constitutionalist ‘reverse Solange’ proposal of Arminvon Bogdandy and his team. I generally join in the cogent reservations alreadyexpressed by several commenters (notably by Pál Sonnevend, Anna KatharinaMangold, and Daniel Thym), but allow me to add a few additional thoughts.The ‘reverse Solange’ proposal undoubtedly constitutes a creative way ofaugmenting the role of the CJEU as a commitment mechanism in the area offundamental rights beyond the implementation of Union law, i.e., by circumventingthe limitation specified in Article 51 CFREU via a teleological linkage to Unioncitizenship.  To argue against the proposal would seem, in American parlance, likearguing against ‘mom and apple pie’—and who wants to do that?Particularly in view of the deep concerns we all share over the current Hungarianregime (about which my colleagues Kim Scheppele and Jan-Werner Müllerhave been struggling mightily to highlight), I am deeply sympathetic to the desireto develop effective mechanisms to combat any member state’s descent intoauthoritarianism.  But I have reservations about whether this proposal is evennecessary as a tool against the disturbing slippage of the Hungarian regime. Whatit will accomplish, rather, is a potentially profound change in the nature Europeanpublic law, while adding only marginally to the legal arsenal in the struggle tovindicate fundamental rights.Bogdandy and his team claim that their ‘approach neither creates new andunexpected obligations for the Member States nor adds new competencesfor the Union as such; only the Organkompetenz of the CJEU, but not theVerbandskompetenz of the EU is affected’.  It is more than a little ironic, however,that in support of this statement, they then claim their proposal ‘resembles thefamous Van Gend en Loos line of jurisprudence inasmuch as it complements acentralized enforcement mechanism with “the vigilance of individuals concernedto protect their rights” and interjudicial cooperation’.  This is ironic preciselybecause Van Gend en Loos is almost certainly the most significant (because mostfundamental) of the Court’s arrogation of institutional power in its history: the rightto police member state compliance via the preliminary reference mechanism, ratherthan limiting itself to the infringement procedure.  This step was taken on the basis- 1 -of just the sort of heroic legal logic and teleological reasoning that is also evident inthis proposal. From an American perspective, this proposal thus seems, well, so . . .European.Insofar as Van Gend en Loos was itself concerned, despite the evident textualweakness in the Court’s reasoning there, the member states long ago acquiescedin the Court’s effort to augment its commitment function in the context of free-movement obligations under supranational law.  And perhaps for good reason: Toput it in the jargon of modern principal-agent theory, the Van Gend en Loos Courtrecognized the need for ‘fire alarms’ (preliminary references) in addition to ‘policepatrols’ (infringement actions) to police member state compliance in this area.But there is a key difference between the free-movement context and thefundamental-rights focus of this proposal.  One can understand why the VanGend en Loos Court felt the infringement procedure was inadequate to police themanifold ways in which a member state might violate free-movement obligations inthe nooks and crannies of its legislative or regulatory apparatus.  But the sorts of‘systemic failures’ in the protection of fundamental rights that this proposal purportsto target are a lot more difficult to hide. Indeed, Bogdandy and his team explicitlyreject the use of ‘reverse Solange’ to target ‘simple and isolated fundamental rightsinfringements’.  Moreover, the Commission’s ‘accelerated infringement procedure’against Hungary would suggest that the existing ‘police patrols’ in European publiclaw are proving adequate to the task of monitoring member state compliance where‘systemic failures’ occur.  There is little need to resort to the creative lawyeringrepresented by this proposal; in fact, by excluding ‘simple and isolated fundamentalrights infringements’ from its coverage, Bogdandy and his team greatly underminethe analogy to Van Gend en Loos on which they ultimately come to rely.More troubling to me, however, is the mindset toward European public law, andmore particularly toward the role of courts and litigation vis-à-vis politics, that thisproposal seems to reflect. If there is an autonomous supranational ‘constitutionalism’in the EU (which I am normally hesitant to acknowledge), it is undoubtedly groundedin fundamental rights, i.e., in the ‘sovereignty of the individual’ against publicauthority, wherever located. The institutional means for realizing this form ofautonomous constitutionalism is necessarily adjudicative power, whether national orsupranational, something with deep roots in Western conceptions of the rule of law. When properly tailored to the task of protecting individual rights in specific cases—avoiding spillover into the realm of broad-gauged regulatory power—the claims ofthis sort of supranational constitutionalism are generally plausible to me.But this proposal seems much more indicative of a less plausible (but moreambitious) claim to ‘multilevel’ or ‘plural’ constitutionalism in the EU.  It is grounded,in effect, in an autonomous sovereignty over and above the member states (despitethe fact that multilevel or plural constitutionalists generally like to avoid the languageof sovereignty, which normally seems so passé).  From this perspective, althoughsupranational institutions are formally created by a treaty, they necessarily come toenjoy, by virtue of functional demand or legal logic divorced from intent, a normativelegitimacy independent of any treaty commitments plausibly made by the memberstates themselves.  In this sort of supranational constitutionalism, we are no longer- 2 -talking about protecting the sovereignty of the individual against states or otherkinds of public authority; rather, we are, in effect, talking about the sovereignty ofa new political community above the member states, whose authority is ultimatelynot grounded in treaty commitments but in the inexorable logic or normativeattractiveness of the integration process itself.Despite the efforts of many ‘constitutional pluralists’ in the EU over the last severalyears, the evolution of European public law seems clearly to repudiate the existenceof this second, more ambitious sort of supranational constitutionalism in theintegration process.  This is most clearly reflected in the principle of conferral inArticle 5 TEU, as well as the Kompetenz-Kompetenz jurisprudence of nationalhigh courts.  And yet, by stressing that their ‘approach neither creates new andunexpected obligations for the Member States nor adds new competences for theUnion as such’, Bogdandy and his team are clearly alive to this limitation. But I donot think they successfully overcome it. Rather, they engage, as I said, in preciselythe sort of heroic legal logic and teleological reasoning that is so indicative of theCJEU over its history (it’s for that reason that I have little doubt this proposal will betaken very seriously in Luxembourg).But that does not change the fact that this proposal will be perceived, by nationalhigh courts at the very least, as an effort to circumvent limitations that the memberstates have inserted, for better or worse, into European public law.  This proposalultimately reminds me of one of the most famous statements on unconstitutionaldelegation in American jurisprudence, which rejected a similar claim to broad-gauged normative power because it was ‘not canalized within banks that keep it fromoverflowing. It is unconfined and vagrant . . . . This is delegation running riot.  Nosuch plenitude of power is susceptible of transfer’. A.L.A. Schechter Poultry Corp. v.United States, 295 US 495, 550, 553 (1935) (Cardozo, J., concurring).As Antje Wiener points out in her comments, the ‘reverse Solange’ proposalreally is about ‘changing stateness’ in the integration process.  But the point ofthe Kompetenz-Kompetenz jurisprudence of the national high courts over thelast two decades has been to strike a balance in that process of change.  On theone hand, integration has clearly demanded the delegation of normative power tosupranational bodies; on the other hand, democratic and constitutional legitimacyhas remained fundamentally national (subject, of course, to the demands of humanrights).  The issue really is: What ‘plenitude of power is [in fact] susceptible oftransfer’ while maintaining some semblance of constitutional democracy on thenational level in a historically recognizable sense?  No doubt, as I have written aboutGreece in the Eurozone crisis, modern governance entails significant limitationson ‘sovereignty’ as a consequence of legal commitments, whether national orsuprantional (although for important qualifications of that argument, see here).  Butrecognizing the changing nature of sovereignty based in legal commitments is not alicense to allow supranational adjudicators to make ‘unconfined and vagrant’ claimsto normative power.  This must be true no matter how heroically logical these claimsare, or however much they appear based in a teleological understanding of thesubstance of, say, Union citizenship.- 3 -We should recall that ‘not all legal problems are can be solved legally’, as the lateNeil MacCormick once rightly warned, and that ‘[r]esolving such problems . . .is matter for circumspection and for political as much as legal judgment’.  In thisinstance, European lawyers and judges would do much better to respect the politicallimitations on the enforcement of fundamental rights that are expressed in Article51 CFREU and not allow them to be circumvented legally by way of teleologicallinkage to Union citizenship. Otherwise, by way of creative lawyering, integrationwould run the risk of ‘delegation running riot’, effectuating a fundamental change inthe nature of European public law without the requisite democratic and constitutionalunderpinnings.Peter Lindseth is a professor for international and comparative law at University ofConnecticut and currently a Daimler Fellow at the American Academy in Berlin.- 4 -

Rescue Package for Fundamental Rights: Comments by PETER LINDSETH

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Rescue Package for Fundamental Rights: Comments by PETER LINDSETH

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