The constitutional governance of judges in the EU

The invention of a communicative mode of regulation of constitutional conflict risks

Nicolas LERON

ECPR General Conference 2014 in Glasgow

3 - 6 September 2014

Panel S036 – P099

“EU Law, Courts and Litigants: Litigation and Governance in a Supranational Polity”

Summary

From the 2000s, one can observe an increase of litigations entailing a potential conflict between EU law and national constitutional laws. Facing this situation of real – and no longer only theoretical – constitutional tensions, the ECJ and the national high courts find themselves in an ontological stalemate. On one side, status quo is not bearable, since the occurrence of an open constitutional conflict could jeopardise the whole EU. On the other side, the legal paradigm of the hierarchy of norms doesn't allow any thinkable legal solution to escape from this status quo. Our study shows that judicial actors shift from a legal mode of regulation of constitutional conflict risks to an extra-legal mode, that we call the “constitutional governance of judges”, based on informal spaces of discussion that are governed by communicative rationality.

Biography

Nicolas Leron holds a PhD in political science from the Centre of European studies of Sciences Po Paris. He taught at Sciences Po Paris and the University of Paris-III Sorbonne-Nouvelle. He works on the European Court of Justice and legal integration, and more generally on the structure of the European political system. He published: “La Cour de justice de l'Union européenne et l'intégration juridique : maturité et limites d'un sous-champ des études européennes”, Revue française de science politique, 61 (6), 2011, p. 1145-1151 (<nicolas.leron@gmail.com>).

The advent in Western Europe of a supranational law, both external and autonomous, but

integrated into the sovereign national legal orders, has deeply upset the modern legal order such as

it was conceptualised in the first half of the XXth century and implemented after the Second World

War with the rise of constitutionalism in Europe. The study of the legal integration phenomenon has

constituted, since the 1990s, a sub-field of European studies, with scholars mainly attached to

explain both the engine and the national variations in the increase in power of EU law and its

acceptance by national courts1. Social sciences, however, overlooked an element that we deem

determining for the legal integration phenomenon: the logical aporia of full articulation of

autonomous legal orders, that is to say the impossibility to establish within the current legal

paradigm an unambiguous hierarchy of norms between EU law and national laws; an element that

we call “the systemic factor”.

This fundamental logical aporia of the European legal system2, as a systemic consequence,

stems from the establishment by the ECJ of its constitutional doctrine by its two seminal rulings

Van Gend in Loos and Costa c / E.N.E.L.3 which postulate the existence of a law that is external

from national legal orders and which, by virtue of its very nature, produces its effects directly

within the latters (principle of direct effect), without the possibility to contest it by a national legal

norm, even a constitutional one (principle of primacy). The cornerstone of legal modernity – the

principle of state sovereignty – was then challenged. But the demise of state sovereignty without a

real federal leap forwards, by reconciling the EU law's requirement of uniformity and effectiveness

with the preservation of the formal supremacy of the national Constitution, pertained to try to

square the circle within the paradigm of the hierarchy of norms.

Indeed, according to that paradigm, legal sovereignty is located in the fundamental norm

which constitutes geometrically the summit of the pyramid of norms, namely the constitutional

level of a legal order. Thus, duality of fundamental norms at the top of the normative order is

impossible because it is illogical. Conflict between a national norm and an EU norm can be solved

only by placing these two norms in a hierarchical relation: norm B of a lower rank than norm A

could not be valid if it contradicts norm A. The judge has then to determine which of the EU norm

or national norm is the fundamental norm in regard to which the lower norm will be controlled. Up

to the infra-constitutional level, the paradigm of hierarchy of norms can give a proper legal answer.

The superiority of EU law over national laws can raise a political problem, but not a legal one4. The

1 For an overview of the main studies on European legal integration, see : Lisa Conant, “The Politics of Legal Integration”, Journal of Common Market Studies - Annual Review, 45 (1), 2007, p. 45-66.

2 We call “European legal system” the whole constituted by the EU legal order and national legal orders. Lawyers also use the term “European legal space”.

3 ECJ, 5 February 1963, Van Gend en Loos, 26/62; ECJ, 15 July 1964, Flaminio Costa v. ENEL, 6/64.4 In that case, the national judge finds himself in the embarrassing position to rule out Parliament's act in favour of EU

law; a potential exposure to the critique of the “government of judges”.

national Constitution can logically place EU law above national law, and establishes within the

national legal order the following hierarchy of norms: Constitution, EU law / international law,

national laws, administrative acts. But at the constitutional level, the national judge, committed to

the principle of national legal sovereignty, sees itself in the legal impossibility to make EU law

prevails over a constitutional norm; while the ECJ, according to the principle of absolute primacy of

EU law, cannot accept any breach of EU law by a constitutional norm.

Such a conflict – so-called “constitutional conflict” – cannot find any logical solution on a

legal basis. Yet, the emergence of a constitutional conflict is perceived by jurisdictional actors5 as

potentially destroying both for the EU legal order, because the existential requirement of EU law's

uniformity and “effet utile” would be brought down, and for national legal orders, which would

suffer, on the one hand, from the disorder of the common market and, on the other hand, for the

national court at the origin of the constitutional crisis, from the isolation towards the other legal

orders and – at the internal level – its Parliament and government. However, the impossibility to

fully articulate the EU legal order and national legal orders – the systemic factor – remained for a

long time a theoretical issue for legal scholars, but without real practical consequences for courts,

which could square their principled positions. But the 2000s brought new empirical developments

which came to rattle the courts' status quo and paved the way for rethinking of legal integration

theories. On the substantive law level, the exponential impregnation of fundamental rights in the EU

legal order and the advent of European citizenship provisions have led to widen the “surface” of the

EU law field, and thus the zone of tensions with national constitutional laws. On the institutional

level, having to control the constitutionality of the Treaty establishing a Constitution for Europe,

national constitutional courts had to respond on the constitutionality of the primacy principle of EU

law which was enshrined in the treaty for the first time. Facing this new situation, the national

supreme courts deepened in a significant manner their co-operation with the ECJ, pushing as far as

they could the acceptance of the primacy of EU law over constitutional norms. But they could not

go beyond the principle of national legal sovereignty which lies in the Constitution: the

Constitution's “deep core” – its “identity principles” – still stands above all and cannot be ruled out

by EU law.

This study aims at demonstrating that, first, this legal integration phase – that we call “the

constitutional phase” – is characterised by a substantial increase of the constitutional conflict risk.

The threat is not only theoretical anymore; it becomes real and concrete for courts. This new matter

of fact places courts in an ontological crisis: status quo is unbearable because unsustainable, but any

exit is impossible i.e. unthinkable within the legal paradigm. The jurisdictional actors find

themselves caught by a sort of paradigmatic trap. Contrary to neofunctionalist predictions, legal

5 By “jurisdictional actors”, we mean the ECJ and EU member states' national supreme courts.

integration remains blocked at this stage; there is no shift of sovereignty from the national level to

the supranational level. Secondly, purely legal and procedural mechanisms (mode of regulation

called the “diplomacy of judges”), as the preliminary ruling procedure, are not sufficiently anymore

to prevent the occurring of a constitutional conflict. Then jurisdictional actors are gradually

establishing a new mode of regulation of constitutional conflict risk: a communicative and extra-

legal mode producing the necessary mutual understanding for the knowledge and recognition of

each ones' red lines; a mode called the “constitutional governance of judges”.

This study draws on the constructivist approach in International Relations. It places at the

heart of the analysis the dimensions of sovereignty (sovereignty of legal orders) and anarchy

(jurisdictional anarchy, in the sense that supreme courts are not in a relation of legal subordination,

contrary within a legal order where a supreme court can cancel the decisions of a lower court). In

this way, we adopt the claim of “normalization by the top” of European studies6. The dimensions of

sovereignty and anarchy, as well as the paradigm of the hierarchy of norms, are not understood as

essences of the European legal system (as would do neorealists), but as social constructs. This

allows a criticism of neofunctionalist approaches7 which do not succeed in seizing in their

theoretical model the constitutive dimension of social reality, since it confines itself to an analysis

of the “mechanical” effects of the structure of opportunities and constraints. According to

neofunctionalism, the systemic dysfunctions generated by the progress of legal integration (i.e. the

risks of constitutional conflict correlated to the legal impossibility to fully articulate the EU legal

order and national legal orders) should produce the pressing interest upon jurisdictional actors to

pursue the process of integration (functional spillover), driving eventually to a qualitative political

shift, that is a transfer of national legal sovereignty to EU law (political spillover). That is

contradicted by empirical observation. Moreover, this study also distances itself from the socio-

historic approach8, too much centred on the economic structure of the Eurolawyer field, that leads to

underestimate the inner strength of legal speech and the constitutive role of law9. This study's

approach, on the contrary, takes seriously the systemic effect of law on the jurisdictional actors'

cognitive space.

6 Sabine Saurugger, Théories et concepts de l’intégration européenne, Paris, Presses de Sciences Po, 2009, p. 345.7 Cf. Anne-Marie Burley et Walter Mattli, “Europe before the court: a political theory of legal integration”,

International Organization, 47 (1), 1993, 41-76 ; Alec Stone Sweet, The judicial construction of Europe, Oxford, Oxford University Press, 2004. For an heterodox version of neofunctionalism: Karen Alter, Establishing the supremacy of European law. The making of an international rule of law in Europe, Oxford, Oxford University Press, 2001.

8 Cf. Antoine Vauchez, L’Union par le droit. L’invention d’un programme institutionnel pour l’Europe, Presses de Sciences Po, 2013 ; Antonin Cohen, Antonin. 2010. “'Dix personnages majestueux en longue robe amarante'. La formation de la Cour de justice des Communautés européennes”, Revue française de science politique, 60 (2), 2010, p. 227-246.

9 For a critique of a sociology of law centred on the economy and sociography of the legal field, underestimating “ the constitutive role of law in social relations, and neglects legal discourse as a site of ideological reproduction, as a mean of “freezing” legal reality.” (Harm Schepel et Rein Wesserling, “The legal community: judges, lawyers, officials and clerks in the writing of Europe”, European Law Journal, 3 (2), 1997, p. 165-188, spec. p. 169)

THE CRISIS OF THE SYSTEM OF DIPLOMACY OF JUDGES

EU law seems to be driven by a continuous and quasi-unlimited movement of expansion10. If

litigants appear to play a certain role in this phenomenon11, its main engine lies in the EU law's

internal structure such as established by the ECJ's judicial activism, itself ensuing from institutional

power concerns. Besides the matrix principle of EU law's “effet utile”, the ECJ has never stopped

neutralizing gradually the main EU law's characteristics that could have restricted its scope – thus

the ECJ's institutional power –, among which in particular the condition of intracommunity

dimension, that is the fact that a litigation has to concern at least two member states so that the

community law can apply, in other words that there is a crossing of borders – by opposition to

purely national litigations.

The tendency of EU law's expansion has known an exponential rise in the late 1990s, with

the development of European citizenship and fundamental rights protection provisions, such as the

general principle of non discrimination. Indeed, in relation with an ultra-extensive conception of the

intracommunity dimension condition, any dispute which affects directly or indirectly an European

citizen is a breach to EU law when there is a proof of discrimination, even a virtual one, against

him12 ; which leads the ECJ's vice-president Koen Lenaerts to say that from now on “there are no

enclaves of national sovereignty precluding EU law from displaying its pervasive effects. […] the

EU framework […] percolates through all areas of national law […].”13

This acceleration of the dynamics of EU law's expansion, which has from now on the

capacity to affect all domains of national law, including the most sensitive ones for member states

and their supreme courts, leads mechanically to a substantial increase of disputes entailing a

potential constitutional conflict. In the edge of the 2000s, the process of legal integration thus enters

a phase which can be characterised by constitutional tensions. The risk of appearance of an open

constitutional conflict is not theoretical anymore; it becomes tangible for courts. They see

themselves confronted with a mode of regulation of the constitutional conflict risk – the system of

diplomacy of the judges –, essentially legal and procedural, which is not able to halt the pressure

exercised by these constitutional tensions anymore.

10 On this point, see: Fritz Scharpf, “Perpetual momentum: directed and unconstrained?”, Journal of European Public Policy, 19 (1), p. 127-139.

11 Cf. Rachel Cichowski, The European court and civil society: Litigation, mobilization and governance, Cambridge, Cambridge University Press, 2007. For a historical institutionalist approach: Susanne Schmidt, “Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens”, Journal of European Public Policy, 19 (1), 2012, p. 8-24.

12 For instance, EU law can apply to national legislation on patronymic name transmission (ECJ, 2 October 2003, Garcia Avello, C-148/02, Rec. p. I-11613).

13 Koen Lenaerts, “Federalism and the rule of law: perspectives from the European Court of Justice”, Fordham International Law Review, 33 (5), 2011, p. 1338-1387, spec. p. 1386.

The shift from a theoretical risk to a real threat of constitutional conflict

In the Kreil case14, the ECJ judged a German legislation applying directly a fundamental

statutory provision related to the proscription to employ women in armed military jobs as a beach of

the EU law's provisions on equal treatment between men and women. The dispute was solved

without any trouble by a modification of the German Constitution which suppressed the

incriminated provision, considered old-fashioned and especially “not identity related”. Some legal

scholars, however, started to develop the idea that an era of potential constitutional conflicts was

opening in Europe15.

Shortly after, confronted with an unprecedented direct conflict between the freedom of

movement of goods and the protection of fundamental rights, the ECJ established for the first time,

in its Schmidberger ruling16, the possibility to derogate freedoms of movement by raising a

fundamental right. In its Omega ruling17, the ECJ had to reconcile the freedom to provide services

with the German conception on human dignity. The ECJ was also confronted with a potential

conflict between a Greek constitutional statute and the European public procurement directive, in

the Michaniki case18. In the Laval and Viking Lines rulings19, the ECJ made the freedom of

movement of workers and the freedom of establishment prevail over the right to strike; two rulings

that made the headlines and had been severely criticised by legal scholars. Even more recently, the

ECJ showed to be accommodating with national legislations related to the national identity in Sayn-

Wittgenstein ruling, in which it admitted that Austria can refuse to recognise the nobiliary title in

surname according to the legislation (with constitutional value) on nobility abolition which itself

relies on the republican form of the state in Austria20.

A judicial saga also made the headlines of French legal reviews: the compatibility of the new

French procedure of the “question prioritaire de constitutionnalité” (QPC) (priority constitutional

preliminary ruling) towards EU law. The French judicial supreme court, unhappy to see the French

constitutional court adorning itself with the attires of fundamental liberties protector, seized the ECJ

on the question of whether the QPC, in particular its “priority” feature, was compatible with the EU

law's obligation of preliminary ruling. The ECJ found itself “in the middle of a minefield”21 because

14 ECJ, 11 January 2000, Tanja Kreil, C-285/98, Rec. p. I-69.15 For example: Samantha Besson, “Conflits constitutionnels en Europe. Une lecture de l’affaire C-285/98, Tanja Kreil

c. République fédérale d’Allemagne”, Aktuelle juristische Praxis, 2000, p. 563-576.16 ECJ, 12 June 2003, Eugen Schmidberger, C-112/00, Rec. p. I-5659.17 ECJ, 14 Octobre 2004, Omega Spielhallen, C-36/02, Rec. p. I-9609.18 ECJ, 16 December 2008, Michaniki AE, C-213/07, Rec. p. I-9999.19 ECJ, 11 December 2007, Viking Line, C-438/05, Rec. p. I-10779 ; ECJ, 18 December 2007, Laval un Partneri Ltd,

C-341/05, Rec. p. I-11767. See also: ECJ, 3 April 2008, Dirk Rüffert, C-346/06, Rec. p. I-1989.20 ECJ, 22 December 2010, Ilonka Sayn-Wittgenstein, C-208/09, Rec. p. I-13693. See also: ECJ, 12 May 2011,

Malgožata Runevič-Vardyn et Łukasz Paweł Wardyn, C-391/09, Rec. p. I-3787.21 Daniel Sarmiento, “La question prioritaire de constitutionnalité et le droit européen. L’arrêt Melki : esquisse d’un

having to defend the effectiveness of the preliminary ruling procedure, whilst deeming the QPC

illegal – in order to avoid a constitutional conflict. With its Melki ruling22, the ECJ found a thorny

path. But it was helped in this way by the French constitutional court23 and the French

administrative supreme court24 which issued – just before the ECJ's ruling – decisions which

adopted a very pro-EU law reading of the wording “prioritaire” of the QPC. If the ECJ showed a

real willingness for judicial co-operation, it remains that it had to cope with a constitutional conflict

risk arising from an instrumental use of EU law in an internal judicial competition game.

During this period, national supreme courts also witnessed an influx of litigations entailing a

potential constitutional conflict25. They were confronted in particular with cases related to the

framework decision on the European arrest warrant, whereby a member state may be committed to

extradite its own nationals to an other member states, a point that is forbidden by the Constitution of

several member states. The Polish constitutional court, trapped in a “true irreconcilable conflict”26,

made the constitutional right of nationals to not be extradited prevail27, while finding a loophole to

not rule out EU law: the national regulation transposing the European framework decision was

cancelled, but its legal effects remained temporarily in force, giving time for the constitutional

legislator to modify the Constitution. Confronted with the same issue, the German constitutional

court was less accommodating than the Polish court. It cancelled the national legislation transposing

the framework decision as well as the decision of extradition into cause28.

But the height of tensions was reached with the Lisbon decision of the German constitutional

court in 200929, which set up the democratic principle as the ultimate rampart against the process of

legal integration: the EU can not legally dispossess the state of its prerogatives which allow the

German people to directly exert its sovereignty. Therefore, according to the German constitutional

court, member states have a “right to control the respect of the integration program”30, a right which

is also a “responsibility of integration” (Integrationsverantwortung) controlled by the German

constitutional court. However, it calmed the worried minds by issuing its Honeywell decision about

age discrimination in July 201031. The case was a hot button issue for the German doctrine since the

dialogue des juges constitutionnels et européens sur toile de fond française”, Revue trimestrielle de droit européen, 2010, p. 588-598, spec. p. 591.

22 ECJ, 22 June 2010, Aziz Melki et Sélim Abdeli, C-188/10 et C-189/10, Rec. p. I-5667.23 French Constitutionnel Council, 12 May 2010, Loi relative à l'ouverture à la concurrence et à la régulation du

secteur des jeux d'argent et de hasard en ligne, n° 2010-605 DC, points 14 et 15.24 French Council of State, summary judgement of 16 June 2010, Diakité, n° 340250.25 On this series of litigations, see also: Arthur Dyevre, “The German federal constitutional court and European

judicials politics”, West European Politics, 34 (2), 2011, 346-361.26 Jan Komárek, “Federal elements in the community judicial system: building coherence in the community legal

order”, Common Market Law Review, 42 (1), 2005, p. 9-34, spec. p. 19.27 Polish constitutional tribunal, 27 April 2005, n° P 1/05.28 German constitutional court, 18 July 2005, Mandat d'arrêt européen, 2 BvR 2236/04.29 German constitutional court, 30 July 2009, Lisbonne, 2 BvE 2/08, BverfGE 123, 267.30 German constitutional court, Lisbonne, op. cit.31 German constitutional court, 6 July 2010, Honeywell, 2 BvR 2661/06.

ECJ's Mangold, Palacios and Kücükdeveci decisions32. In these rulings, the ECJ established a

general principle of EU law prohibiting any discrimination on the grounds of age. The German

doctrine saw “a blatant example of an ultra vires judicial creation of legislation” (that is beyond its

legal competencies) by the ECJ via the fundamental rights protection33 and, consequently, the

perspective of an expansion of EU law's field via the general principle of non-discrimination which

would be uncontrolled and “harmful for the European legal order”34. In this context of tensions, the

German constitutional court nevertheless rejected the request of the Honeywell company to declare

ultra vires the ECJ's Mangold decision. But again, in its decision on the outright monetary

transactions mechanisms decided by the European Central Bank in September 2012, the German

constitutional court – yet still being cautious and sending to the ECJ its first preliminary question –

issued a decision bearing the stamp of hostility35.

The Czech constitutional court did not show the same cautiousness. In 2012, it dismissed the

ECJ by judging ultra vires its Landtová decision36. The Czech constitutional court's decision took

place in a context of an internal conflict against the Czech government and the supreme

administrative court. This “failed case” caught everyone off-guard. No one did anticipate this first

red line crossing. For the first time in legal integration history, a constitutional court declared ultra

vires an ECJ's decision. Angered, the Czech constitutional court had an “unmeasured response”37

which can be better explained by judges' psychology than legal logic. The Czech constitutional

court referred openly to the Solange jurisprudence, but, contrary to the German constitutional court,

activated a device which had to stay at a deterrence level. A legal commentator said that “giving

Solange in their hands was like to let children play with matches.”38 The event is unprecedented in

the legal integration history, but, in the opinion of the informed commentators, the deflagration

would be limited. First, the dispute did not concern a subject affecting an identity principle of the

Czech Constitution, but was about an internal political struggle, the ECJ being only a collateral

victim. Secondly, the Czech constitutional court – usually pro-EU law – was going to be almost

entirely renewed in the following two years. Thirdly, the relative institutional weakness of the

Czech constitutional court – as constitutional court of a “small” member state – should also prevent

32 ECJ, 11 November 2005, Mangold, C-144/04, Rec. p. I-9981 ; ECJ, 16 October 2007, Palacios de la Villa, C-411/05, Rec. p. I-8531 ; ECJ, 19 January 2010, Kücükdeveci, C-555/07.

33 Dominik Hanf, “Vers une précision de l’Europarechtsfreundlichkeit de la loi fondamentale. L’apport de l’arrêt “rétention des données” et de la décision Honeywell du BVerfG”, Cahiers de droit européen, 46 (3-4), 2010, p. 515-549, spec. p. 534.

34 According to the words used by General Advocate Dámaso Ruiz-Jarabo Colomer in his conclusions on the Michaeler et Subito case (ECJ, 24 April 2008, Michaeler et Subito, C-55 et 56/07, Rec. p. I-3135).

35 German constitutional court, 14 January 2014, OMT, BVerfG, 2 BvR 2728/13.36 Czech constitutional court, 31 January 2012, Slovak Pensions XVII, Pl. ÚS 5/12; ECJ, 22nd June 2011, Marie

Landtová c/ Česká správa sociálního zabezpečení, C-399/09, Rec. p. I-5573.37 Jan Komárek, “Playing with matches: the Czech constitutional court declares a judgement of the Cour of Justice of

the EU ultra vires; judgement of 31 January 2012, Pl. ÚS 5/12, Slovak Pension XVII”, European Constitutional Law Review, 8 (2), 2012, p. 323-337, spec. p. 323.

38 Ibid.

any contagion.

It remains, however, that the occurrence of the first “failed case” of judicial dialogue

materialises, for the jurisdictional actors, the idea that the threat of constitutional conflict is from

now real and concrete. The borderline case which had to not occur occurred. Thus in the 2000s, the

jurisdiction actors find themselves confronted with a dynamic of constitutional tensions that

generates an unbearable risk of constitutional conflict. The irreconcilable summits of legal orders

get inevitably closer, and so they produce the threat of a destructive collision that could occur at any

time (fig. 1).

Fig. 1 – Global view of the European legal system

The structural dynamic of constitutional tensions

EU lawPrinciples related to

constitutional identity

Extension of the common legal basis correlated to the extension of European

legal integration

EU law and constitutional law fields are getting closer→ increase the risk of an open constitutional conflict

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The system of diplomacy of judges: an unsustainable “nuclear” deterrence game

In front of this new situation of real threat of constitutional conflict, the system of diplomacy

of judges39 becomes ineffective. Indeed, it refers to a mode of judicial dialogue which functions

through interposed rulings, with several months, even years between two rulings. At best we can

speak of an “ indirect dialogue”40 or a “remote dialogue”. The ECJ and the national supreme courts

are not developing a true dialogue, properly speaking, where actors commit themselves to a game of

persuasion ruled by argumentative strength (thus in a same linguistic game), but in a position game,

admittedly in the general language of law, but where each one follows its own autonomous and

auto-referential legal system. Each one “speaks” inside its own legal order. Thus the judicial

dialogue is actually a suit of monologues, a suit of judicial decisions that are unilateral acts shaped

from the internal legal order frame.

The system of diplomacy of judges implements a dialogue that one could qualify as

“negative”, in the sense that each protagonist keeps its autonomy, but also speaks its own legal

language. In that configuration, the aim is not to put in harmony the voices of EU law and national

laws, but to avoid their contradictory junction. Each legal order remains autonomous and is not

integrated in a co-ordinated whole – hence the opposition we establish between “diplomacy” and

“governance”41. Each jurisdictional actor, aware of the other's strength, unilaterally starts to get

closer to the other's position, said otherwise by modifying little by little its initial position,

incompatible with the other's position, until it finds the jurisprudential equilibrium point which

allows a peaceful coexistence. Each one makes a step towards the other (by concessions or

interpretative “efforts” of its own referential frame), while at the same time sending “jurisprudential

signals” (decisions more or less in opposition to the other's jurisprudence) or by raising

jurisprudential protections (as counter-limits42). The convergence follows here an “a minima”

functional logic. The jurisdictional actors concede what is necessary to not affect the system

integrity. The actors' aim is to concede the necessary minimum to the game functioning, while at the

same time paying attention that the other does not take advantage of a relative gain in power that

would distort the balance of power equilibrium. As a result, the system of diplomacy of judges does

not require that national and EU courts put in place extra-legal devices to frame their co-operation.

Judicial co-operation can be reached within the legal sphere, in other words in the pure game of law,

39 The diplomacy of judges, by analogy with the general notion of diplomacy, refers to a mode of judicial dialogue which relies on co-operation (in the sense of International Relations) between sovereign jurisdictional actors.

40 Monica Claes, The national courts' mandate in the European Constitution, Oxford, Hart Publishing, 2006, p. 451.41 Cf. infra.42 That means the acceptance of the primacy of EU law in national legal orders, while at the same time keeping for

itself the possibility to discard EU law in case it exceeds the red lines raised by the national supreme court (the manifest breach of fundamental rights guaranteed by the Constitution or other principles deemed to be part of the Constitution's identity core, or any action taken outside the scope of the delegated competencies delimited by the EU treaties).

without relying in extra-legal and social mechanisms of co-ordination.

But caught in the phase of constitutional tensions, the jurisdictional actors become aware that

they operate within a “nuclear” deterrence system which is unsustainable. Their interdependency is

at the same time competitive and existential. As any deterrence, the aim is to not find itself in the

situation of executing the threat. The dissuasive sanction must stay within the sphere of latent

threat. But, as highlighted by the president of the German constitutional court, “it is in the nature of

things that the possibility of collisions between EU law and national law cannot be excluded.” 43 In

an interview, an ECJ member spoke in the same way:

“It's like nuclear deterrence. Here, it's legitimacy. No one wants to loose its legitimacy. The step too far, and you loose all. You must pay attention here, because we touch “raw flesh”. You mustn't do the step too far.”

Each jurisdictional actor possesses the “nuclear option” and must show its determination to fire

first, that brings about the risk of a “nuclear domino effect”44. This mutual deterrence game can be

analysed under the game theory perspective, and more specifically the “hawk-dove game” which is

an unsustainable game, with several possible equilibrium points, due to the that there is no

predefined optimal strategy for players45. Indeed, the best strategy for a player depends on the other

player's strategy. If player A plays “hawk”, the best strategy for play B is to play “dove” in order to

avoid a “hawk/hawk” situation (mutual destruction). But player B does not want to play “dove”

because that would affect its positions for the benefits of player A who would be in that case an

overall winner. Each player has to position himself as “hawk” credibly enough to force the other

player to play “dove”. Thus, in this mutual deterrence game, each player is tempted to bluff so as to

raise the bid by making credible his own determination to go to conflict, and thus to force the other

to do concessions, but at the risk of crossing the real other's red line, and so triggering an open

conflict.

Facing the rise of constitutional tensions, in the eyes of jurisdictional actors and legal

scholars, the hypothesis of an open constitutional conflict is from now “non only theoretical”46.

They understand, like ECJ judge Marek Safjan, that they cannot elude anymore the question “of the

existence of constitutional tensions”47 and then start to perceive their situation as “a context of

43 Andreas Voßkuhle, “Multilevel cooperation of the European constitutional courts. Der Europäische Verfassungsgerichtsverbund”, European Constitutional Law Review, 6 (2), 2010, p. 175-198, spec. p. 190.

44 Joseph Weiler and Ulrich Haltern, “The autonomy of the community legal order: through a looking glass”, Harvard International Law Journal , 1996, 37 (2), p. 411-448. The nuclear deterrence metaphor can be also found in political science works: Fritz Scharpf, “Legitimacy in the multilevel European polity”, European Political Science Review, 2009, 1 (2), p. 173-204.

45 On the “hawk-dove game” applied to legal integration, see: Arthur Dyevre, “The German federal constitutional court and European judicial politics”, West European Politics, 34 (2), 2011, p. 346-361.

46 Frédéric Lenica and Julien Boucher, “Le juge administratif et le statut constitutionnel du droit communautaire dérivé”, AJDA, 2007, p. 577-584.

47 Marek Safjan, “Why a European Law Institute?”, Founding congress of the European Law Institute, 1rst June 2011, Paris, <http://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/_17__Marek_Safjan.pdf>.

potential constitutional conflicts”48, even as a “ticking constitutional bomb”49. Their situation shifts

from a theoretical risk to a real and current threat of “an conflict that would probably cause a

genuine crisis of the European construction.”50 In this new context, the system of diplomacy of

judges, fitted for a low level of constitutional tensions, becomes unbearable.

THE SYSTEM OF CONSTITUTIONAL GOVERNANCE OF JUDGES

Confronted with the system of diplomacy of judges' incapacity to cope with this new

situation of high constitutional tensions, the jurisdictional actors see in the development of extra-

legal mechanisms of judicial co-operation the only possible way to reach a solution. They start to

claim for a “true judicial dialogue”. In other words: an exit to law in order to respond to a challenge

posed by law, but insolvable within it. For the jurisdictional actors, judicial dialogue is and must be

henceforth a reality. They notice a turning point around the 2000s. Before, judicial dialogue did

exist, but it was more formal and functional, more incantatory or stylistic than substantial, more

official and protocolary than sincere. By now, in their words, it is “authentic”, “constant” and

“necessary”51. The “true dialogue”52 is in the end the only solution offered to jurisdictional actors

by their cognitive resources to overcome the paradigmatic stalemate into which they are trapped.

They speak about a judicial dialogue that is “spontaneous” and “informal”53, a “non institutional

dialogue”54, by opposition to the institutional dialogue of the preliminary ruling procedure which

“remains insufficient”55.

The jurisdictional actors establish a set of increasingly dense judicial networks. If those exist

since the quasi-beginning of European integration56, there is a new phenomenon in the 2000s: EU

48 Luís Miguel Poiares Maduro, “Interpreting European law: on why and how law and policy meet at the European Court of Justice”, dans Henning Koch e.a., Europe. The new legal realism. Essays in honour of Hjalte Rasmussen, Copenhague, DJØF Publishing, 2010, p. 457-478, spec. p. 458.

49 Joseph Weiler and Ulrich Haltern, “Constitutional or international? The foundations of the community legal order and the question of judicial Kompetenz-Kompetenz”, in Anne-Marie Slaughter, Alec Stone Sweet and Joseph Weiler, The European court and national courts. Doctrine and jurisprudence. Legal change in its social context, Oxford, Hart Publishing, 1998, p. 331-364, spec. p. 361.

50 Daniel Dittert, “La Cour constitutionnelle allemande et le traité de Lisbonne”, Revue des affaires européennes, 2009-2010/4, 2010, 847-859, spec. p. 858.

51 Marek Safjan, Politics and constitutional courts. A judge’s personal perspective, EUI Working Paper LAW, 2008/10, 2008, p. 22.

52 Daniel Sarmiento, “Half a case at a time: dealing with judicial minimalism at the European Court of Justice”, dans Monica Claes e.a., Constitutional conversations in Europe. Actors, topics and procedures, Cambridge, Intersentia, 2012, p. 13-40.

53 Mattias Guyomar et Denys Simon, “La hiérarchie des normes en Europe”, Gazette du Palais, 12th February 2009, p. 11.

54 An expression which is often used by ECJ and national supreme courts' members in our interviews.55 Guy Canivet, “Les réseaux de juges au sein de l’Union européenne : raisons, nécessités et réalisations”, Les Petites

Affiches, 199, 5th October 2004, p. 45.56 The main one, la Fédération internationale pour le droit européen (FIDE), held its first congress in 1961. On the

beginnings of the FIDE, see: Julie Bailleux, “Penser l’Europe par le droit. L’invention du droit communautaire en

supreme courts start gathering in purely jurisdictional networks. This movement has been partly

developing in the context of the establishment of the area of freedom, security and justice, launched

by the European council of Tampere in 199957. But in the meantime, “spontaneous judicial

networks”58 has been developing as well, outside any formal European legal framework. The two

most important ones are, on the one hand, the Association of the Councils of State and Supreme

Administrative Jurisdictions of the European Union, created in 2000 and composed of member

states' administrative supreme courts and the ECJ, and on the other hand, the Network of the

Presidents of the Supreme Judicial Courts of the European Union, created in 2004 and composed of

member states' judicial supreme courts – but without the ECJ59. It is in this context of judicial

networking that the jurisdictional actors have been developing from the 2000s a new mode of

regulation of the constitutional conflict risk, an extra-legal, informal and communicative mode of

regulation: the constitutional governance of judges.

The notion of constitutional governance of judges

Applied to judicial dialogue within the European legal system, the notion of governance

allows to shed light on and to seize analytically the distinction between, on the one hand, a legal and

procedural mode of regulation of the articulation of legal orders by sovereign actors co-operating in

an anarchical situation (the diplomacy of judges), and on the other hand, a new mode based on

informal and communicative co-ordination, mainly extra-legal (the governance of judges). The shift

from a “diplomacy” to a “governance” highlights the qualitative leap forwards in terms of

integration of sovereign actors that are henceforth members of an informal community based on

extra-legal principles: socialisation, cognitive convergence, mutual trust, and expectation of

peaceful resolution of constitutional disputes.

The notion of governance enables us to seize the horizontal dimension of a highly integrated

(vertical) management of the European legal system. This latter is characterised by an ever-deeper

integrative dynamic that leads to a polycentric polity. The regression to the source of legal and

jurisdictional sovereignty does not end in a single point (Grundnorm), but in a reticular structure

composed of a plurality of centres that are in the same time sovereign in their own legal order

(internal individual sovereignty) and interdependent at the European legal system level (external

France (1945-1990)”, PhD dissertation, Université Paris-I Panthéon-Sorbonne, 2012.57 Were established in the following years: Liaison magistrates in 1996, the European Judicial Network in criminal

matters in 1998, the European Judicial Network in civil and commercial matters in 2001, Eurojust in 2002, the European competition network in 2003, and the Justice Forum in 2008.

58 According to the expression used by Guy Canivet in Les Petites Affiches, 5 October 2004, op. cit.59 Are also established during the same period: the European Judicial Training Network in 2000, the European

Network of Councils for the Judiciary in 2004, the Association of European Administrative Judges in 2000, the Association of European Competition Law Judges in 2002, European Union Forum of Judges for the Environment in 2004, and the European network of prosecutors for the environment in 2012.

collective sovereignty). The notion of governance, despite its relative conceptual vagueness, offers a

heuristic efficiency to seize this phenomenon of constitution of a kind of shared and reticular legal

sovereignty. “Governance”, not “government”60.

More fundamentally, the notion of governance allows to seize the dissociation between each

jurisdictional actors' legal system (the discourse of sovereignty within the legal order) and the extra-

legal and inter-jurisdictional co-ordination mechanism of the European legal system (the discourse

of the “true dialogue”). To draw a parallel again with one core feature of the notion of governance

as defined by Gerry Stoker, the constitutional governance of judges is characterised by “a divorce

between the complexity of decisions related to governance and the normative rules that serve to

explain and justify the action of governing.”61 The normative rules (judicial decisions) remain

anchored in the formal language of law, and thus are subjected to the legal paradigm's constraints,

whereas the practical management of the legal orders articulation takes place in an extra-legal and

communicative sphere.

The institutionalisation of judicial bilateral meetings

Since62 the 1990s and even more the 2000s, the jurisdictional actors have organised bilateral

meetings which consist in delegations of judges, in small number and behind closed-doors. Law

clerks are not invited, so that gives to these meetings a configuration of deliberation, with its

principle of total impermeability of discussions. These meetings gather approximatively fifteen

high-ranking judges. Meetings at the ECJ are attended by about the half of ECJ members, including

generally the ECJ registrar. For meetings at national supreme courts, only eight to nine ECJ

members participate – to limit costs. The meetings generally last one day and a half or two days.

They are working sessions, behind closed-doors, where judges discuss on general legal topics or

specific jurisprudential issues. The topic of the day is formerly agreed and depends generally on the

wishes of the visiting delegation. It is generally introduced by a short presentation delivered by one

or two participants. There are no minutes of these meetings – as far as we can know. A dossier

composed of cases and doctrine articles can be prepared in order to support discussions. Requests to

visit the ECJ are sent to the ECJ president's cabinet. Then, the organisation of the visit is taken in

charge by the Protocol Unit. For external visits, it is mostly the president's cabinet which has the

lead63.

60 In a peripheral way, the notion of governance allows – hopefully – to avoid the difficulties related to the notion of government when applied to judges due to the negatively-connoted expression of “government of judges”.

61 Gerry Stoker, “Cinq propositions pour une théorie de la gouvernance”, Revue internationale des sciences sociales, 155, 1998, p. 19-30, spec. p. 21. Our translation.

62 Unless otherwise specified, all quotations come from semi-directive interviews with ECJ and national supreme courts members that were done in 2012.

63 To decide who among the ECJ members will participate to a delegation, the ECJ president sends an invitation to all

These meetings produce only few empirical data accessible for researchers who cannot

attend them. We were able to reconstruct their functioning through evidences given by our semi-

directive interviews with ECJ and national supreme courts members. Here is a presentation given

by an ECJ member of these bilateral judicial meetings:

“[The national supreme courts] come at the ECJ and then we have some topics for the discussion. We discuss two or three hours in the morning, two or three hours in the afternoon, as technicians, on very precise issues. We also go visit other courts on their invitation. For instance, I went at the Irish supreme court on its invitation. We spent two days of work, with a 5-10 minutes presentation to start the discussion, and then the discussion is quite free, among professionals. Same thing last January, we were at the Austrian constitutional court for a meeting of German-speaking constitutional and supreme courts. What is amusing is that when we are about twenty people in a room discussing on very technical issues, the professional side gets back on top. That is to say that we meet among professionals and discuss on precise legal issues, on difficulties we can have with each other. And that helps us a lot. Thus that is something concrete. But very important. […] When we meet like those supreme courts, these meetings are genuine working sessions. For instance, when we were at the Austrian constitutional court, we were about twenty or twenty-five people maximum. We were in the main conference room of the constitutional court. We met around 9 a.m. or 9:15 a.m. up to 12:30 a.m. Then we had lunch and we went back to work up to 5:30 p.m. These are genuine working days, among us, without any audience. This is not a symposium, it's a genuine working meeting.”

According to some ECJ members, these meetings have more or less always existed. It may

be supposed that their frequency would have increased over time by a mechanical effect due to EU

enlargements and to an ever-more complex EU law. However, their quantitative evolution – from 0

to 7 meetings depending on the year – does not show any significant trends. According to the

Protocol Unit's chief, the evolution of the number of bilateral meetings is very unpredictable. She

says that she cannot herself anticipate their number for the coming year and the correlated

workload. The number of bilateral meetings varies randomly depending on the year, the conjunction

of celebrations and the amount of requests for a visit by national supreme courts. On the other hand,

in the same manner as for multilateral meetings, the jurisdictional actors notice a qualitative

evolution. Very formal at the beginning, they tend to become a place of informal dialogue where

tongues are loosened, where “things are said”. It is worth noticing that if the ECJ seems to have

always organised bilateral meetings with national supreme courts, some of the latter stayed for a

long time aside these meetings. For instance, the French constitutional court made its first visit to

the ECJ only in 2011. But here again, the evolution is mainly qualitative. A member of the French

Council of State explains this way:

“The true dialogue of judges, totally informal, where we seat among fifteen people at a table to speak concretely on issues, that is very recent. Indeed, to do this, you must be in full trust and not in a situation of competition or conflict. We could not

ECJ members and see who wishes to come. Chamber presidents have the right to come whenever they want to. For others, the ECJ president adopts a logic of rotation.

do it in the 1970s because we were fighting on the theory of “Acte clair”. We could not do it in the 1980s because Nicolo was not still there. So we did it later. It started in the 1990s, but it was limited. It has substantially increased from the end of 200664.”

Informality and closed-doors are deemed crucial by participants. These two characteristics

allow a free dialogue among judges, a non protocolary one, and thus useful to express their

positions and concerns without any convolution or shyness. “The bilateral meetings are of great

importance, more important than protocolary visits, or exchanges through doctrinal publications.”

Because small group behind closed-doors “is the only way to work among professionals. Because if

we do a symposium with professors, students, and the rest, that would not allow us the same

freedom to speak.” According to the jurisdictional actors' own words, “we cannot express our

worries in a doctrinal publication. The only adequate way is to do it in an informal manner.” The

jurisdictional actors' capacity to create a place for dialogue “behind the scene”, where they can enter

in a genuine and frank dialogue that “goes at the end of the things”, is crucial to manage the

avoidance of potential constitutional conflict. These informal talks are described by their

participants as being “friendly and quite frank”. “There is a lot of frankness and a great sense of

humour.” The jurisdictional actors explain that “sometimes, there is the occasion to express what is

really important for each one, what bothers you in the other. We leave out the meeting knowing

what is hostile for the other, on what it is useless to insist on, where you should be more nuanced.”

These meetings allow to “spin the web of mutual trust” because “in the end, it is a matter of trust”.

This trust stems partly from the feeling to belong to a same group. “We are part in a way of a same

group. There is no taboo”, they say. Trust could be so deep that, according to an ECJ member, once

a national supreme court invited the ECJ delegation to attend one deliberation, despite the sacred

principle of deliberation's secrecy. In front of the astonishment of the ECJ delegation, the national

court answered to them: “but you are judges, like us.”

A real mutual trust allows also to escape from the constraint to express a dissatisfaction with

politeness and courtesy. Some participants testify of moments of real tensions, of “quite blunt”

discussions that could result from misunderstanding on certain issues. These moments of frank

explanations of misunderstandings and dissatisfactions are essential because they allow to alleviate

them, or at least to know them and locate them, without paying a high cost – tensions remain in the

extra-legal and closed-doors dimension. A judge explains that indeed “it is sometimes useful to have

a tense discussion.” To make explicit tensions allows also to put them in perspective, to lower them,

and to measure their real implications and scope. “We can leave these meetings more reassured,

seeing that they are more convergence than divergence.” Some judges even talk of a cathartic

64 When the current Vice-president of the Council of State (who is the real chief, the president being formally the Prime Minister) Jean-Marc Sauvé took office.

function. In case of strong divergence, these moments of catharsis allow also to understand the

rigidity of other's positions and, without necessarily accepting them, to understand at least their

reasons and legitimacy. An ECJ member says that this kind of meeting allows “to see for instance

that members of a constitutional court are not monsters.”

Informality is thus decisive because it allows jurisdictional actors to use a framework that is

a much freer and more effective for information exchange. However, even in this informal and

closed-doors dialogue framework, they are in a situation which remains a bit bound to protocol and

which thus constrains to moderate the way dissatisfactions or wishes are expressed. The only

situations which allow to fully escape from formal constraints are one-to-one talks at the coffee

machine. According to an ECJ member, “coffee break is very important. It allows to speak in a

really blunt manner, in a one-to-one talk, to better explain a position developed during the working

session, to really say the root of the problem. Because you don't do it at the round table, with an

audience of about ten people.” Diners also offer a friendly setting that is appropriate “to discuss

while having a glass of wine.”

Here is below a program of one of these bilateral meetings: the visit of a Czech supreme

court's delegation at the ECJ, the 23rd and 24th April 2012. The program allows to track down the

different situations of discussion among participants, from the round table to the coffee break,

lunches and diners, and meetings with one ECJ member.

Delegation of the Czech supreme court at the ECJ, 23 rd & 24 th April 2012

Monday 23 rd April 2012

Departure from the hotel

10h00 – Arrival at the Court of Justice (Charles-Léon Hammes street entrance)

Welcoming by Mr. V. Skouris, ECJ President, Mr. J. Malenovský65, president of chamber at the Court, et Mrs. I. Pelikánová66, president of chamber at the Tribunal

Photo in front of the flags

Working session with the participation of Mr. President of Chamber Malenovský and of Ms President of Chamber Pelikánová on the competencies and organisation of the Court of Justice

(conference room of the Former Palace)

11h00 – Coffee break

65 Jiří Malenovský is the Czech judge at the ECJ from 2004. He was also judge at the Czech constitutional court.66 Irena Pelikánová is the Czech judge at the Tribunal of First Instance from 2004.

11h15 – Working session

12h30 – Lunch offerd by the Court with the participation of Mr. President Skouris, Mr. J. Mazák, First Advocate general, Mr. President of Chamber Malenovský, Mr. M. Safjan, president of chamber, Mrs. R. Silva de Lapuerta, Messrs. K. Schiemann, A. Borg Barthet, E. Levits, L. Bay-Larsen, judges, Mrs. E. Sharpston, advocate general, Messrs. J.-J. Kasel, D. Šváby, Mrs. M. Berger, judges and Mrs. President of Chamber Pelikánová

(salon C of the Court)

After lunch, signature of the visitors' book

14h30 – Round table with the participation of Mr. President Skouris, Messrs. J. N. Cunha Rodrigues, J.-C. Bonichot, presidents of chamber, Mr. First Advocate general Mazák, Mr. President of Chamber Malenovský, Mr. President of Chamber Safjan, Mrs. S. Prechal, president of chamber, Mrs. J. Kokott, advocate general, M. Justice Schiemann, Messrs. G. Arestis, M. Ilešič, judges, Mr. Justice Bay Larsen, Mrs. Advocate general Sharpston, Mr. P. Mengozzi, advocate general, Mme C. Troader, judge, Mr. Justice Kasel, Mr. Justice Šváby, Mrs. Justice Berger, Mr. P. Cruz Villalón, advocate general and Mr. E. Jarašiūnas, judge

(conference room of the Former Palace)

Theme of discussion: “State's liability in case of a breach of EU law”. “Access to the Court of Justice after the Lisbon treaty”

16h00 – Coffee break

16h15 – Presentation of case C-283/11 Sky Österreich (DE) (Provision of audiovisual media services - Events of high interest to the public that are subject to exclusive broadcasting rights - Right of access of broadcasters to such events for the purpose of making short news reports - Limitation of possible compensation for the holder of the exclusive right to additional costs incurred in providing such access - Charter of Fundamental Rights of the European Union - Proportionality) by Mr. D. Petrlik, law clerk at the cabinet of Mr. President of Chamber Malenovský

(conference room of the Former Palace)

16h45 – End of working session. Leaving of the delegation (Charles-Léon Hammes street exit)

Return to the hotel

19h15 – Transfer to the restaurant Le Place D'Armes (18, place d'Armes, L-1136 Luxembourg)

19h30 – Diner offered by the Court at the restaurant Le Place D'Armes with the participation of Mr. President Skouris, Mr. K. Lenaerts, president of chamber, Mr. President of Chamber Malenovský, Mrs. President of Chamber Prechal, Mrs. Advocate general Kokott, Mr. Justice, Mr. A. Ó Caoimh, judge, Mr. Advocate general Mengozzi, Mr. T. von Danwitz, judge, M. Registrar Calot Escobar and Mrs. President of Chamber Pelikánová

Around 22h00 – Return to the hotel

Tuesday 24 th April 2012

9h00 – Departure from the hotel

9h15 – Arrival at the Court of Justice (Charles-Léon Hammes street entrance)

Welcoming by Mr. President of Chamber Malenovský

9h30 – Attendance to the hearing on the pleadings in the case C-283/11 before the Grand Chamber

(Main Court Room of the Former Palace)

Around 11h15 – Coffee break

11h30 – Lunch with the participation of Mr. President of Chamber Malenovský and Mrs. President of Chamber Pelikánová

(salon B of the Court)

14h30 – Working session with the participation of Mrs. M.-L. Lombardi, Director General of Translation and Mr. M. Smejkal, Head of the Unit in the field of translation having Czech, on the linguistic regime of the Court and on organisation and works of the Directorate General of Translation

(conference room of the Former Palace)

15h30 – Meeting with Mr. President of Chamber Malenovský

(cabinet of Mr. President of Chamber Malenovský)

16h15 – Meeting with Mr. J. Mazák, First Advocate general

(cabinet of Mr. First Advocate general Mazák)

17h00 – Guided tour of buildings with Mr. Jan Vanparijs, administrator, and Mr. Maurizio Cerasoli, Buildings and Security unit

18h00 – Leaving the Court of Justice (Charles-Léon Hammes street exit). Return to the hotel

End of the program

This delegation of the Czech supreme court comes up in a peculiar context, shortly after the

Czech constitutional court's decision judging ultra vires an ECJ case67. It is doubtless that

participants at this meeting addressed this issue and that the ECJ could have sent a message to the

Czech constitutional court via the Czech supreme court. The theme of discussion – “State's liability

in case of a breach of EU law” – directly refers to the issue at stake. Moreover, the meeting with the

Czech ECJ judge Jiří Malenovský in his cabinet office constituted a privileged moment to discuss

the issue – the judge Jiří Malenovský fulfilling through his own person the function of interface

between the ECJ and the Czech legal system.

Another example was the ECJ's Magold case which aroused great tensions at the German

constitution court. During bilateral meetings between the German constitutional court and the ECJ,

especially the one in September 2010, the latter could have reassured the former that it duly took

into account national sensibilities, and that it was opened towards the notion of national

67 Cf. supra.

constitutional identity, rising supporting evidence from its cases Omega, Melki or Sayn-

Wittgenstein68. The German constitutional court had previously softened its position with its

Honewell ruling of 6th July 2010. Currently, one of the main issues addressed in these bilateral

meetings is the issue of the EU Charter of fundamental rights' scope. Because if the ECJ adopts an

extensive interpretation of the Charter, there could be little left of the autonomous scope of national

fundamental rights, and so of a proper national constitutional courts' jurisprudence.

Judicial bilateral meetings as a place for mutual understanding production

The essential function of judicial bilateral meetings is to allow jurisdictional actors to

enlighten each other on problematic issues and on each ones' limits. These meetings allow “to have

an understanding of the degree of acceptability of [their] decisions.”69 They are more than a mere

opportunity to get information and pedagogic explanations on each ones' legal systems. Even if,

however, the degree of informality of exchanges and its capacity to go beyond an informative

dimension vary according to the mutual knowledge of jurisdictional actors. An ECJ member

explains that with the German constitutional court and the French council of state, “we know each

other so well that pure information exchange is no longer necessary.” Whereas with the supreme

courts of new member states which accessed to the EU in 2004 and 2007, the first bilateral meetings

were more on a pedagogic tune. In general, these informal discussions lead to “an effort of mutual

understanding and explanation from both sides.” They allow “to take the temperature”, “to better

assess, better appraise what the other expects from us”, “to better understand the deep motivations

of the other's hesitations”, “to understand the other court's way of thinking”, “to better understand

the frustrations”, to “know where it hurts”, “to understand the other's genuine worries”, and “to

point out each others' limits” in order to “make clear where the red lines are”.

Bilateral meetings allow to generate a dimension of mutual empathy. They give the

possibility for jurisdictional actors to express “in a suggestive manner” their dissatisfactions

towards such or such jurisprudential position, and to make understand that a reorientation of that

position in this direction would be appreciated. Such demands of wishes of jurisprudential

reorientation are not explicitly expressed. Interviewed judges explain that “it is not spelled out this

way, but it can let be felt.” “We can send signals.” “We mutually explain to each other, we unveil

our inner self, hoping that it will arouse other's understanding”, the “ah yes, that's why they are so

touchy on this point.”70 It is to “at least make the other understand what troubles us.” In return, it

68 Cf. supra.69 Unless otherwise specified, all quotations come from semi-directive interviews with ECJ and national supreme

courts members that were done in 2012.70 An ECJ member told us about the importance of “Aha-Erlebnis” (which can be translated as the understanding

click: “ah, ok, now I understand !”).

allows to tell ourselves that “we should avoid the arouse the other's sensitiveness. We can thus be

influenced by the other's perspective, in an equal and reciprocal way.” That makes possible to

become aware “that we might have a little exaggerated on this point.” “That allows to have a direct

sensitivity on each others' stakes, and to understand that here it's vital, there it's less important, that

there is a possible compromise in this margin.”

Thus, these informal discussions fulfil a function of internal understanding of other's

position71. Each jurisdictional actor benefits from the guarantee that its position would be

understood and respected, that each one would be able to take into account other's red lines.

Because, as explained above72, the articulation of legal orders at a constitutional level implies a

double game of own red lines preservation and other's red lines careful attention. In a situation of

constitutional tensions, the most accurate knowledge of other's red lines is an imperative to

overcome the pitfall of mutual distrust, where each one suspects the other to overestimate its own

red lines in order to optimise, according to its interests, the compromise outcome allowing to avoid

a constitutional conflict. Besides, the precise and anticipated knowledge of each ones' red lines

allow avoiding the unexpected accident – i.e. the Czech constitutional court's decision as a

counterexample.

This function of mutual understanding, which creates mutual trust stemming from the clarity

of each ones' positions, is essential. Hence the necessity, and somehow the functional ineluctability,

to rely on this kind of extra-legal judicial dialogue. The institutionalised dialogue of the preliminary

ruling procedure is not able by itself to respond to the functional needs for a closed-doors and frank

dialogue. It is a point raised by an interviewed judge to whom “the preliminary ruling procedure is

very formal. It is a written dialogue. And with writing, there is the problem of translation which

sometimes does not reflect exactly the issues raised, between the lines, by a national court.” With

the preliminary ruling procedure, “we don't know the judge who asks the question.” But, “what

counts is that people talk to and see each others.” “In judicial matters, judges must know each

others, otherwise they don't respect each others, they ignore each others.” Bilateral meetings are

thus viewed by the jurisdictional actors as a “necessity”, a “quasi-essential support to the formal

dialogue” of the preliminary ruling procedure. Thus, the jurisdictional actors consider them as “the

only mean available to solve problems” of constitutional tensions. “Without will, without openness,

there is no formal mean, no effective tool to prevent open conflicts.” A member of the French

council of state sets out in the following manner this essential need to know each others personally:

“I believe that it creates an atmosphere favourable to listening, to a mutual understanding of courts. Everyone pays attention to everyone, but it must also be a good mutual understanding. And to achieve a good mutual understanding, it's better

71 The receiver or the addressee understands the other's words and position from the other's perspective, and not from his own perspective.

72 Cf. supra.

to know each other well. And so I believe that this kind of meetings allows to better situate, to better seize each others. And so I believe that they effectively help that concert of jurisprudences which is necessary nowadays. One cannot know each others only through the readings of judicial decisions and conclusions. One must also learn to personally know each others, and so to better understand each others. To know the institution as well. Myself, when I go to Luxembourg or Strasbourg, when one goes to places, there is a better understanding of what those courts do. After having come here, you better know what is the Council of state. These meetings contribute to a movement which is not negotiation, not at all, which is more than information, which is the feeling at least to belong to a network. And the members of a network, for that network functions well, need to learn to know each others. That's the way I see it.”

Interviewed judges systematically insisted on the utmost importance to establish a device of

mutual understanding, because that one cannot be taken for granted. It is quite the contrary. The

jurisdictional actors are aware that misunderstanding is commonplace in extra-national relations, in

other words between actors belonging to distinct and autonomous legal systems, based on different

cultures and representations. For them, the bilateral meetings must “lift ambiguities” and “build

bridges to reach the other.” Through these informal discussions, “we can discover other's

misunderstandings, but also ourselves' misunderstandings.” Because, “even if we speak the other's

native tongue, one needs to find the grounds of the other's legal culture. In symposiums, we listen to

each others, but we are not sure to really understand the other, the basis of its reasoning.”

The institutionalisation of a communicative space: judicial bilateral meetings as ideal speech

situation

In a more fundamental manner, the jurisdictional actors institutionalise a communicative

space73 which allows the production of mutual understanding between them. Because it is a closed-

doors space gathering professionals that share not a same legal identity but a common European

judicial culture shaped over times through the mutual percolation of laws and the emergence of

common issues, the communicative space allows jurisdictional actors to start a genuine dialogue,

that is to say an argumentative process in which persuasion, and thus the peaceful modification of

positions, is possible.

More than a space filled up with a common culture, the jurisdictional actors institute a

situation of discussion which is close to an ideal speech situation, as conceptualised by Jürgen

73 “Communicative space is […] the space of symbolic mediation that allows to all political community's members – whatever their cultural belonging – to communicate with the other political community's members. The communicative space is constituted by symbolic codes – tongue, time conception, interpersonal distances construction, etc. – common to different groups made of a same culture and a same civic knowledge on the nature and the functioning of their political community. Otherwise said, it is about a common culture (and not a unique culture) which allows exchange, and a civic culture which allows a discussion on general interest.” (Éric Dacheux, “Nouvelle approche de l’espace public européen. Dépasser le clivage entre sciences de l’information et de la communication et science politique”, Questions de communication, 14, 2008, p. 221-242, spec. p. 236) Our translation.

Habermas74. The dialogue of judges, within this communicative space, is then made of

communicative actions “where two subjects start an interpersonal relation by searching an

agreement on a situation in order to co-ordinate their plans or actions.”75 Communicative action is

different from strategic action. For the latter, communication has no common dimension, and the

recipient is reified, as it is the case in a system of unilateral dialogues – like the system of

diplomacy of judges where each actor subjects the other to his own perspective, while being at the

same time subjected to the other's perspective. On the contrary, communicative action breaks the

game of subjective and unilateral perspectives by establishing an inter-subjective game where each

actor integrates his own perspective to the whole constituted by all other perspectives.

By entering the communicative space, each jurisdictional actor lets aside his own

objectifying perspective, and commits himself to the inter-subjective game which allows, in the end,

to seize all perspectives included in the European legal system, and thus to be possibly persuaded

by other's arguments76. Or said otherwise, to take a Luhmann's analogy in an opposite way, each

system ceases to understand other systems as environment, and whose system-environment relation

is subjected to the internal rules of the system77. “The first person who, in a performative attitude,

subjects himself to his own eyes in taking the place of the second person, can in doing so

reconstruct under an other angle the manner in which his acts were directly done. One obtains thus

– instead of a self-consciousness – a reconstruction that allows to reconstitute under other angles the

knowledge that is always already in use.”78 The self-consciousness – here the knowledge of the

European legal system through the lenses of its own legal order – gives way to a “kaleidoscopic”

knowledge of the European legal system which is then perceived through all of its existing

perspectives, in a complex inter-subjective game. In this situation of discussion and mutual

understanding, each jurisdictional actor leaves its own perspective (its legal order's perspective),

which necessarily objectifies both its own position (its position at the top of its legal order) and the

74 An ideal speech situation, according to J. Habermas, can be defined as the following: “To make possible a speech act, it is necessary that the speaker a) expresses himself in an intelligible manner; b) gives something to hear, that is to say something pretending to validity; c) makes himself understood; d) aims at an agreement with his interlocutors.” (Christian Godin, « Habermas ou la réhabilitation de l’universalisme pratique », dans Yves-Charles Zarka (ed.), Refaire l’Europe. Avec Jürgen Habermas, Paris, PUF, 2012, p. 205-217, spec. p. 213) Our translation.

75 Jürgen Habermas, Théorie de l’agir communicationnel. Tome 1 : Rationalité de l’action et rationalisation de la société, Paris, Fayard, 1987, p. 101-102. Our translation.

76 It is, for instance, what the German constitutional court's president describes: “The case-law of the constitutional courts that form part of the Verbund proves to be a discursive struggle for the 'best solution' which makes the multilevel co-operation between the European constitutional courts ultimately a multilevel instance for learning (Lernverbund).” (Voßkuhle, 2010, op. cit., p. 198) The search for the best solution is made possible by the shift from a game of (jurisdictional) interests competition to a game of discursive struggle for the most relevant (legal) argument.

77 According to the Niklas Luhmann's systemic theory, “the relation that an self-referential system establishes with an environment is made possible only by the system itself, independently from any environment.” (Niklas Luhmann, Soziale Systeme, Frankfurt am Main, Suhrkamp, 1984, p. 146, cited in Habermas, 1988, op. cit., p. 436, our translation) In the paradigm of the hierarchy of norms, any legal order is a self-referential system, where any internal legal relation (between legal norms of the legal order) and any external legal relation (between the legal order and legal norms of other legal orders) are related in fine to the legal order's fundamental norm (Grundnorm).

78 Habermas, 1988, op. cit., p. 352. Author's emphasis.

other's position (submitted to the supremacy of its sovereign position and its internal legal

hierarchy), and enters in a situation of mutual understanding where each one integrates the other's

perspective. In the 2000s, one can observe a shift from a system of competing and unilateral

objectifying perspectives, which are mutually ignoring each other, to a situation of inclusive and

inter-subjective perspectives. Within this communicative space, each legal order ceases to objectify

the other legal order, and stop unilaterally imposing the latter its own legal subjectivity – we could

say its legal ontology.

In a way, the system of constitutional governance of judges marks the transition from a

paradigm of self-consciousness to a paradigm of mutual understanding (inter-comprehension), from

a subjective mode to an inter-subjective mode. Otherwise said, the abandonment of a self-referential

systemic conception (the Luhmann's autopoiesis according to which each element of the system is

produced by the system itself) for a conception of system openness towards their environment, that

is to say towards the other systems, with all of them accepting partial internal modifications as a

result of being in contact with others. This process of mutual openness, which can be understood as

“a convention of recognition”79, brings about little by little a relative “fusion”of systems and the

creation of a superior and encompassing system. It defines a new ethic that can be set out as the

following: “In spite of imposing on every others a maxim that I want it to be a universal law, I shall

submit my maxim to all in order to examine through discussion its claim to universality.”80 As a

result, “there is shift: the gravity centre does no longer lie in what each one wants to assert, without

being contradicted, as being a universal law, but it lies in what everyone can unanimously

recognises as a universal norm.”81

This ethic of discussion implemented by the jurisdictional actors allows them to reach a

steady multi-positional equilibrium, even though in a permanent dynamic. Through this inter-

subjective process, each jurisdictional actors' position finds itself included in a modus operandi that

is acceptable by each one. The constitutional governance of judges in the EU, as a communicative

governance, can be understood as a highly sophisticated system of consensus production which

operates through the articulation between individual's good (the EU or national legal order) and the

justice of the collective (of the European legal system). The pregnancy of balance of power is

substantially attenuated: it is constrained by the inter-subjective structure of the communicative

space where take place the confrontation and articulation of individual jurisdictional positions

according to the common axiology.

In a more fundamental manner, the system of constitutional governance can be understood as

the empirical invalidation of Luhmann's thesis for the benefits of Habermas' ones. The jurisdictional

79 Godin, 2012, op. cit., p. 211.80 Jürgen Habermas, Morale et communication, Paris, Éditions du Cerf, 1986, p. 88.81 Ibid.

actors show here the possibility – through the institutionalisation of socialisation mechanisms as

judicial bilateral meetings – to overcome the Luhmann's theoretical impossibility to overcome the

self-referential intrinsic nature of systems, that is to say their fundamental incapacity to consider the

other not as a mere environment. Luhmann lays down the principle of the impossibility for systems

to articulate themselves by the mean of a sub-system in charge of interdependencies and producing

a common sense for the whole. For Luhmann, “such a sub-system cannot exist, because otherwise it

would mean that society exists a second time, within it.”82 System theory, trapped in an internal

functional perspective, cannot indeed accept the possibility of a multiple intersubjective

perspective, and even less the idea of a system of nested perspectives. But, the system of

constitutional governance of judges is the empirical evidence of the possibility for self-referential

systems (sovereign legal orders) to organise their interdependencies by the creation of a sub-system

that is at the same time specific (and here situated in a parallel extra-legal dimension) and

encompassing, being both a part of the whole and the cornerstone that unites the whole, even

creates that whole through the production of a common sense, and thus a common reality.

A quasi-deliberative system of regulation

The jurisdictional actors are rejecting any idea of negotiations, something unthinkable, or

impossible to confess, for judges whose legitimacy is based on institutional independence and the

autonomy of the legal rationality. According to their words, “the dialogue of judges cannot be

compared to inter-jurisdictional negotiations, that would be in contradiction to both national and

EU legal orders.” They assert that “discussions never take the shape of an open negotiation. They

are only legal discussions, doctrinal points of view.” It is about “scientific discussions” which are

focused on the style and the method of legal reasoning. According to them, “it's not a question of

threat, nor a question of negotiations”, but of a discussion between jurists in which “they must be

extremely talented in terms of legal reasoning.” “Nobody should believe there is a concern for

confidentiality or opacity. It just enables a dialogue in a bilateral context that is easier and more

effective than in a public context.” Discussions are “quite organised” and “remain out of the

pending cases”, focusing only on cases that have already been judged. “Is it more about ex post

commentaries than upstream constructions.” An interviewed judge takes evidence from the visit of

the French constitutional council at the ECJ, at first planned in 2010, that had been postponed to

2011 in order to not give the impression that the meeting was influenced by the ECJ's Melki

decision related to the QPC83.

According to the jurisdictional actors, one could not speak of “an implicit great union of

82 Luhmann, 1984, op. cit., p. 645, cited in Habermas, 1988, op. cit., p. 443.83 Cf. supra.

judges which pulls the stings in one way or another.” Mainly due to the fact that a judicial collective

steering system is impossible with 28 national legal orders, and even more national supreme courts.

A national supreme court meets the ECJ once every two or three years at best, at home or in

Luxembourg. An interviewed judge sums up the situation:

“We don't take any commitment towards each other. It's not possible, because of the mere fact that you are a collegial jurisdiction and that you cannot have three or four members who take a stand for everyone. So we are always very careful. It's all about getting informed, and above all about understanding the logic and the problems of others. I would say it's not really a question of “dealing” with a legal problem. It's not the way things are done.”

However, for the jurisdictional actors, these “meetings have probably some influence, but it's

difficult to measure it. A court cannot confess it in its rulings or official speeches.” “It allows to

tolerate [in the other court] a certain jurisprudential position if it is based on real difficulties or

sensitive concerns.” None of this is formalised in writing, but “they are things that are 'recorded'

and that end in writings”, that is to say in legal decisions or even in modifications of court's

statute84. This function of internal understanding hinges on the fact that each jurisdictional actor

“doesn't want to create chaos”, and as a result tends in practice to seek to avoid conflict. The judges

claim to be “all reasonable jurists”. “A conflict would raise problems to everyone.” An ECJ's

member explains in an interview that “in most of the cases, the ECJ doesn't enforce scrupulously

the treaties, in order to avoid conflictual decisions. It takes external positions into account and

search for the best solution adapted to the diverse requirements.” Others interviewed judges reject

the idea of a decisive influence of these bilateral meetings, yet adding that “obviously, in the last

analysis, everything is done to avoid conflicts”. “We are not insensitive to this. We don't bury our

heads in the sand. Of course we take the reality into account.”

Then raises the question of the nature of discussions which are held behind the closed-doors

of bilateral meetings. If we rely on participants' words (and we cannot do anything else because any

direct observation is impossible and any document from these meetings do not exist or are not

accessible), it is not a question of negotiation between actors who inform each other of their

preferences and then reach a compromise. Discussions take place at the level of argumentation85.

But is it deliberation? Is it something close to collective decisions? The process of decision-making

refers to “all the sequences and mechanisms which take part to the perception of an issue to solve,

84 An interviewed member of the French council of state gave us the example of the wish expressed by the French council of state to the ECJ that the latter establishes an urgent preliminary ruling procedure, making understand that such a procedure would encourage it to send to the ECJ more preliminary questions. It seems that the ECJ heard that wish in establishing in 2008 the Urgent Preliminary Ruling Procedure.

85 On the distinction between argumentation (based on reason and the search for the “best argument”) and negotiation (based on the game of individual interests and which can rely on extra-discursive resources to give credit to the threat or the promise to enforce the agreement), we refer to Jon Elster's seminal works, specially: “Argumenter et négocier dans deux Assemblées constituantes”, Revue française de science politique, 44 (2), 1994, p. 187-256.

to the production of alternative options and to the choice of one of them.”86 There is a decision when

one can observe, between the deliberative stage and the action stage, a stop of intention to act (arrêt

de l'intention à agir), that is to say “a lapse between the moment of the decision and its

implementation.”87 There is collective decision, “in other words a decision taken in assembly,

resulting from a collective work and in which each participant can intervene and weight directly”,

when there is a collective procedure to fix the intention to act (procédure d'arrêt collectif)88.

It is very difficult to determine the existence of such a collective procedure within bilateral

meetings. Hypothetical minutes of these meetings could not carry out the function to collectively fix

the intention to act. At best would they record the content of discussions and the existence of an

more or less sophisticated argumentative exchange. An informal procedure of collective decision89

seems also impossible – still according to the participants' says. Thereby, we cannot conclude that

bilateral meetings carry out collective decisions. And one can talk of negotiation only if at the end

of it there is a collective decision90. Thus, one cannot characterise discussions taking place in

bilateral meetings as deliberative procedure. However, considering what we can indirectly observe

and understand, the discussions that take place during bilateral meetings satisfy many

characteristics of a proper deliberation91. First, the role of secret. Secret does not concern those who

are voting (the secret of vote spares the voter from exposing in public the reasons of his vote), but

the “body”92 of the discussion (composed of the judges who attend bilateral meetings). It is the

secret of discussions which enables these ones to take place, that is to say to be argumentative

discussions in which the reasons (of interests or normative) of each one's positions can be exposed.

Secondly, technical competencies and argumentative strength are of great importance. Those who

take part to these meetings insist on the professional dimension of discussions, that is to say on the

importance of the argumentative relevance of their speeches (deemed from what participants

understand as the legal reason)93. Thirdly, the organisation of the discussion is not left to chance. It

follows a more or less constrained agenda and it is introduced most of the time by one or two

preliminary presentations which influence the discussion's starting point.

Moreover, the discussions allow each court's delegation to make the other know and

86 Philippe Urfalino, “La décision par consensus apparent. Nature et propriétés”, Revue européenne des sciences sociales, 45 (136), 2007, p. 47-70, spec. p. 58.

87 Ibid.88 Ibid., p. 59.89 Informal procedure which could be, for instance, the statement that there is no opposition to a given proposition.90 We use the definition of deliberation given by Pasquale Pasquino: “a mode of collective decision which tends to

exclude voting, which does not consider the latter as the essential mechanism for decision-making.” (Pasquale Pasquino, “Voter et délibérer”, Revue européenne des sciences sociales, 45 (136), 2007, 35-45, spec. p. 36. Our translation)

91 On the characteristics of deliberation, see: Pasquale Pasquino, op. cit.92 We use inverted commas because we cannot speak at this stage of a deliberative body, since there is no deliberation.93 On technical/scientific shared knowledge as element furthering the establishment of a situation of deliberation, see:

Peter M. Haas, “Introduction: epistemic communities and international policy coordination”, International Organization, 46 (1), 1992, p. 1-35.

recognise the sincerity of his own position and preferences, that is to say the truth of his red lines

(truth as sincerity). Mutual acknowledgement of each one's red lines, without pertaining to a

collective decision, is still binding in the sense that the failure to respect these red lines would be

likely punished by a break in the judicial co-operation, which would amount in actors' mind to run

an immoderate risk due to the consequences of an open constitutional conflict. The

institutionalisation of a “true” dialogue of judges, specially via informal discussions in bilateral

meetings, implies that the jurisdictional actors accept tacitly to respect the result of the

argumentative exchanges, that is to say to respect the space of peaceful jurisprudential possibles

defined by the establishment in common of individual red lines. We can speak of a quasi-

deliberation insofar as the discussion leads to quasi-collective decisions: the tacit and biding

agreement (both through the internalised moral of actors and the knowledge of their situation of

existential interdependence) to not go out of each one's red lines that were established through a

communicative process generating mutual understanding. We speak of a quasi-decision due to the

fact that there is no positive decision, no agreement involving a common and co-ordinated action,

but a “negative” decision of not taking unilateral actions that are not in accordance to the space of

the collectively recognised – but not decided – jurisprudential possibles. Mutual understanding

refers to the recognition and not to the decision; and the individual respect of what is collectively

recognised could not be considered as a decision, properly speaking.

Then, the system of constitutional governance of judges is close to what Christian Joerges

and Jurgen Neyer call deliberative supranationalism, that is to say the informal institutionalisation

via a social integration through speeches, of an inter-administrative co-operation between

supranational institutions and national administrations; a co-operation that tends to favour a

deliberative mode to solve collective problems and to marginalise the strategic negotiation mode.

Interactions within this deliberative supranational frame, which favours mutual learning and

understanding, lead to establish a culture of administrative partnership, which results in a change in

actors' perceptions and preferences, shifting from a national definition to a common definition of

preferences94. However, the constitutional governance of judges is different because it does not

result in taking positive collective decisions (contrary to comitology or to COREPER95), but it

results in managing the articulation of the ontologic requirements of each legal order by the creation

of a common axiological system and a communicative space for actors. The constitutional

governance of judges relates to the polity level, and not to the policy level. It is not a decision-

94 Christian Joerges and Jürgen Neyer, Deliberative supranationalism revisited, EUI Working Paper Law, 2006/20, 2006. See also the notion of deliverative intergovernmentalism developed by Uwe Puetter in: “Europe's deliberative intergovernmentalism: the role of the Council and European Council in EU economic governance”, Journal of European Public Policy, 19 (2), 2012, p. 161-178.

95 On deliberative processes taking place at the COREPER, see: Jeffrey Lewis, “The Janus face of Brussels: socialization and everyday decision-making in the European Union”, International Organization, 59 (4), 2005, p. 937-971.

making mechanism, but a mechanism to define the constitutional (informal) architecture of the

European legal system: a meta-polity which encompasses the European Union and member states

polities.

In a nutshell, the system of constitutional governance of judges is equivalent to the addition

of an extra-legal and informal sphere above the legal and formal sphere of the European legal

system (fig. 2 and 3). The management of the articulation of the legal orders' summits, which is not

possible in the vertical dimension of the paradigm of the hierarchy of norms, is taken in charge by

the horizontal and communicative dimension of the constitutional governance of judges. The EU

and national legal orders' summits are situated at the crossing point of the legal sphere and the

communicative sphere, and thus belong to the two.

Fig. 2 – The system of constitutional governance of judges in the EU

Fig. 3 – Horizontal communicative sphere of the constitutional governance of judges

(view “from the top”)

The summits of EU and national legal orders (stars) belong at the same time to the vertical sphere of their own legal order, and to the horizontal extra-legal and communicative sphere of the constitutional governance of judges.

Absolute primacy of EU law

Supremacy of the national Constitution's

deep core

Legal sphere

Internal individual sovereignty and its legal

and procedural mechanisms

Extra-legal sphere

External collective sovereignty and its social

and communicative mechanisms

Communicative management of the

avoidance of constitutional

conflicts

Persistence of the hierarchical

narratives of each legal order

(Pyramids on a vertical plan)

(Ellipse on an horizontal plan – see fig. 3)