France is ‘Already’ Back in Europe: The Europeanization of French Courts and the Influence of France in the EU (original) (raw)

The ECJ and the French administrative supreme court : Je t'aime, moi non plus? A Study in Judicial Diplomacy

HAL (Le Centre pour la Communication Scientifique Directe), 2022

The history of the relationship between the Court of Justice of the European Union (ECJ) and the French supreme administrative court, the Conseil d'État, 1 is as complex as it is long. It is, simultaneously, highly conflictual yet also an illustration of the ability and willingness of an institution to adapt to a system which represented no less of a revolution for itself than for the supreme courts of other Member States. The first decades of European integration were evidently not well received by the Conseil which, with the support of most French scholars specialising in administrative law-albeit not those who specialised in European law-primarily sought to defend its own competences from the imposition of an external influence. The 'defiant nationalism' 2 of the Conseil d'État stands in stark contrast with the successive (barring a few exceptions) French Presidents and Governments' European ambitions and the country's political elite's willingness to present France as a leader of European integration. In fact, Lord Denning's famous remark on the incoming tide of Community law 3 and the anxiety he expressed about the powers of the ECJ could very well have been formulated by a member of the Conseil d'État. Yet, one could have expected the relationship between the French administrative supreme court and European integration to be much easier considering. The Conseil had significant advantages over many other national courts in adapting to the requirements of this new legal order. Core features of European Community law at the time, such as the style of legal writing, in particular that of judgments (including the use of 'considérants' in the grounds of decisions), the use of concepts such as general principles of law, or the judicial interpretation of very vague provisions, would have been extremely familiar to French administrative lawyers. They did not, in and of themselves, require them to learn a different way of writing or reading judgments or even to work from translated documents. The influence of French administrative law is felt in numerous aspects of early Community law and perhaps most significantly in procedural law and judicial practice, which made communication between courts easier. The reaction of the Conseil d'État was nonetheless just as strong and more overtly conflictual than that of the British Court of Appeal and House of Lords (now Supreme Court), illustrating the depth of the adaptations required by the ECJ's interpretation of the treaties and the principles of direct effect and primacy. This resistance may be explained partly by a concern, similar to those expressed by other supreme courts such as the House of Lords, over a loss of control on the national legal system. The loss is both that of the court itself, as it finds itself under the authority of another jurisdiction for part of the law it is called upon to apply, and that of the national legal system, as sovereignty is limited for the benefit of the construction of a supranational legal order. In this sense, the sources of the Conseil d'État's discomfort with European Community law were not unique. However, this court's 1 The Conseil d'État is exclusively competent for matters which relate to administrative law and the judicial review of non-legislative acts. The 'private law' or 'judiciary' court system in France is headed by the Cour de cassation and covers all other areas of the law, including civil, commercial and labour law as well as criminal law. The Conseil constitutionnel is has an exclusive competence to review the constitutionality of legislative instruments. 2 'Nationalisme ombrageux', phrase employed by Roland Drago, note ss CE ass. 27 juillet 1979, n° 9664,

The Future of Europe: Judicial Interference and Preferences

Comparative European Politics, 2005

While recently, academic attention has focused on the visions of the future of 'Europe' articulated by politicians in relation to the ongoing debate on the EU constitution, the views of judges have generally been overlooked-a curious fact given the amount of ink spilt on the famous ide´e de l'Europe of the European Court of Justice (ECJ), and how it pushed this idea forward. However, judicial preferences and their dynamics are an important element in the evolution of the Union, and not only to those who aim to provide a comprehensive model of the integration process. The ECJ has traditionally been viewed as a monolithic actor with pro-integrationist and competence-maximizing preferences, and has been either acclaimed or blamed for using its judicial powers to transform the European Community Treaty into the constitution of a centralized federal legal order, and to promote integration. This article examines judicial preferences, collective and individual, and their formation, particularly in relation to constitutional reform. In so doing, it distinguishes between three institutional contexts in which the EU Judiciary forms and displays its preferences: the political (Convention cum IGC), the judicial and the academic. It suggests that judicial preferences are not what they are usually assumed to be and that they have changed over time. It then proposes explanations of the origin of these preferences (trans)formation, in the light of the main theoretical approaches (i.e., liberal intergovernmentalism and constructivism).

Law, justice and republic: the French republican model of judicial regulation

Law and the State, 2005

Law, Justice and Republic: the French republican model of judicial regulation Christian Barrère, Université de Reims, OMI 1 Judicial institutions have a growing role in our societies. In France, some scholars have even introduced the idea of a "government of the judges". However, while judicial institutions do not substitute for government and public administration they are becoming an important means of social regulation, perhaps the main one. In my opinion, this tendency is not the result of desires within the judiciary to increase the power of magistrates; rather it arises from the social functions attributed to the judicial system by the French model of republican law and justice. The development of European judicial cooperation, the establishment of a "European judicial area" and the building of a new European judicial system demand cooperation and highlight areas of competition between different national models. Consequently an evaluation of these models is necessary. This chapter focuses on the structural logic of the French model. Starting from the standard analysis of judicial regulation (section 1), I consider the basis of the modelthe republican dualism-(section 2) to explain the present role of judicial regulation (section 3).

Constitutionalism of the European Union: Judicial Legislation and Political Decision-Making by the European Court of Justice

2001

Since tiie end of the Cold War and, indeed, at the beginning of this century, the European Union is being challenged with both an increasing number of members and by those countries who aspire for future membership. Established among six Member States as the European Coal and Steel Community, the European Union now consists of fifteen Member States and is faced with the application for membership of at least thirteen additional countries.' President Clinton, when presented with the prestigious Charlemagne Prize for promoting European unity in June 2000, even called for the ftill inclusion of Russia into the European Union.^ He stated: "No door can be sealed shut to Russia, not NATO's, not the European Union's.'" As this message demonstrates, the ever­changing character and definition of Europe remains today as it has in past centuries.' Moreover, it proves that in an age of constitutionalism, European integration and the European Union in particular can...

National Legal Traditions at Work in the Jurisprudence of the Court of Justice of the European Union: Symposium: Foreign Law in Constitutional Courts

Social Science Research Network, 2016

INTRODUCTION: THE CONTROVERSY OVER THE JUDICIAL STYLE OF THE CJEU The Court of Justice of the European Union (CJEU), 1 safely "[tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media," 2 has survived over sixty years of name changes, treaties, institutional reforms, and crises that have percolated in the European Union. 3 The creation of a single Court of Justice, whose inception lies in the Treaty of Paris in 1951 establishing a European Coal and Steel Community (ECSC), 4 and later in the two Treaties of Rome which established the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM), 5 was a revolutionary concept that can be traced back to the 1950 Schuman Declaration.6 Despite different periodizations of the Court's jurisprudence according to various historical 7 and jurisprudentia 8 narratives, activism, or restraint,' commentators and students of EU law find it difficult to navigate through the CJEU's voluminous maze of rulings, which often exhibit vagueness or inconsistencies in legal reasoningo because "independent styles have tended to give way gradually to a new style expressing a certain personality."" 1. The CJEU includes the Court of Justice (hereinafter "the Court") and the 20.