Judicial Non-Compliance in a Non-Hierarchical Legal Order: Isolated Accident or Omen of Judicial Armageddon?
Max Planck Institute for Comparative and International Law
June 15, 2012
In a multi-level, non-hierarchical court system, where courts at the upper echelon do not have the power to reverse the decisions of courts at the lower level, judicial cooperation appears crucial to the effectiveness of the higher-level law. For this reason, the recent judgment of the Czech Constitutional Court, which declared the decision of the Court of Justice in the Landtová case ultra vires, would seem to deal a terrible blow to the authority of European Union law. As doomsayers will be quick to point out, the Czech decision could set a dangerous precedent that may well one day bring down the entire edifice of EU law. However, borrowing insights from game theory and international relations, the present Article argues that this judgment is more likely to remain an isolated episode than to be remembered as the tipping point when tensions between the CJEU and domestic courts escalated into the judicial equivalent of nuclear Armageddon. The author shows that many aspects of the jurisprudence of constitutional conflict can be represented as a simple Hawk-Dove game. A modified, slightly more sophisticated model then helps cast a wider light on the use of non-compliance threats by domestic high courts, notably the German Federal Constitutional Court. The analysis demonstrates that a domestic court need not “bite” in order for its “barking” to be consequential. Far from indicating strength, the decision to disapply EU law may in fact constitute evidence of a domestic court’s relative institutional weakness, which suggests the CCC will sooner or later repudiate a decision that seems to be driven by anger rather than by reason. While ultra vires doctrines have proliferated in the wake of the GFCC’s Maastricht ruling, the Article also points to institutional limits that national courts must reckon with when seeking to import the GFCC’s jurisprudence into their own domestic context.
Number of Pages in PDF File: 42
Keywords: European Union, Legal Integration, Non-Compliance, Game Theory, European Court of Justice, Domestic Courts
JEL Classification: K10, C73working papers series
Date posted: June 16, 2012
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