The Melki Way: The Melki Case and Everything You Always Wanted to Know About French Judicial Politics (But Were Afraid to Ask)
30 Pages Posted: 20 Sep 2011 Last revised: 26 Sep 2011
Date Written: September 18, 2011
Both the ECJ Melki ruling and the new French system of priority constitutional referral have received considerable scholarly attention, whether from the perspective of EU law or from that of domestic or comparative constitutional law. This paper looks at the Melki story primarily from the standpoint of domestic judicial politics. The decision of the Cour de cassation to send a reference for a preliminary ruling to the judges in Luxembourg on the conformity of the new interlocutory procedure with EU law cannot be analysed separately from the context in which it occurred. Nor can the strong reactions that it elicited be properly understood without examining the background of the constitutional reform and the role which EU law and the ECHR have come to play in the French legal system. As what was initially a modest reform was successfully reframed by the Council and its allies in the legal academy as a “legal revolution” promising to bring human rights back to their homeland, the new concrete review mechanism posed a growing threat to the Cour de cassation’s influence. The reform, it is argued, threatened to undermine not only its grip on the lower civil courts but also to chip away at the considerable autonomy it had enjoyed in developing ECHR law in the French context. In these circumstances, the Melki reference may be viewed as a last-ditch (and with hindsight poorly judged) attempt to use EU law to derail a reform that was on its way to reconfigure inter-court relations in France at the expense of the Cour de cassation. With the Melki route - killing the priority referral mechanism by dragging the ECJ into the domestic “guerre des juges” - blocked, the Court is now isolated and under pressure to apply the new procedure in a way that is more favorable to the Constitutional Council.
Keywords: European Law, Constitutional Law, France, Constitutional Council, Cour de cassation, Conseil d'Etat, Court of Justice, Judicial Politics
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