Are constitutional judges well equipped to deal with fundamental constitutional questions about the EU? Should national constitutional courts aim to address the EU democratic deficit? Several scholars see national constitutional courts as a constructive force in the EU legal order. Nik de Boer argues differently, and reasons why is it better to leave certain issues to parliaments rather than constitutional courts.
In this conversation with Kasia Krzyżanowska, Nik de Boer discusses his recent book “Judging European Democracy. The Role and Legitimacy of National Constitutional Courts in the EU” (Oxford University Press 2023). The transcript was amended to improve readability and clarity.
Nik de Boer is Associate Professor in Constitutional Law at the University of Amsterdam, a member of the editorial board of the European Constitutional Law Review and a founding board member of the University of Amsterdam’s platform for Democratic Resilience (DEMRES). His research focuses on constitutional courts, EU constitutional law, central banks and democratic backsliding.
Kasia Krzyżanowska: Your book poses an essential question on the constitutional courts’ role within the European integration process. The book’s main argument is that the national constitutional courts’ review of European law frequently risks constraining and narrowing democratic debate over the EU’s constitutional underpinnings. What were the main inspirations to write your book? What kind of new insights does your book offer?
Nik de Boer: In the book, I deal with constitutional courts’ review of European law. By this I refer not just to EU law, but also to something broader – for example, when a constitutional court reviews a new EU treaty that hasn’t yet come into force, or sometimes even an instrument of international law that is related to the EU, such as the European Stability Mechanism Treaty.
The role of national constitutional courts in relation to the EU has been a topic for debate for a long time. This debate emerged in the context of major judgments. The German Constitutional Court’s PSPP-judgment of May 2020 is a relatively recent example that reignited this debate. There are also concerns that the review of European law by constitutional courts is susceptible to abuse, as in the case of the Polish Constitutional Tribunal.
My thinking was that the debate on the role of constitutional courts doesn’t fully take into account the position of these courts in relation to political institutions. If you summarize the literature on constitutional courts in relation to the EU, there are roughly two main views. One account states that the review by constitutional courts of European law is a bad idea because it threatens the EU legal order and the principle of supremacy (this is, for example, the position of the European Court of Justice). Related is a more recent idea: there’s the possibility of abuse by captured constitutional courts.
The second account, a very influential one, can be referred to as constitutional pluralism. Constitutional pluralism has a specific conceptualization of the relationship between national constitutional law and EU law, namely as non-hierarchical. There are various ideas within this account. One idea is that where a constitutional court challenges EU law, this promotes contestation or dialogue. Related is the idea that such review leads to respect for constitutional diversity or respect for the identity of national constitutional orders. Some people say that the constitutional courts are a counterforce to the European Court of Justice – this is the position of Dieter Grimm, a former constitutional justice of the German Constitutional Court. There is also a claim that review by constitutional courts has a democratizing effect on the EU. Because constitutional courts challenge the authority of the EU on constitutional grounds, their review could lead to further democratization of the EU, which is of course known to have a democratic deficit.
In my view, these are really interesting positions, but they don’t take into account the role of these courts in relation to political institutions, legislatures in particular.
If you think that dialogue is a great idea, you also need to consider who is doing the talking. My intuition was that it can’t just be a conversation between constitutional courts and the Court of Justice. If a constitutional court says that there are certain limits to European integration or there are certain things that the EU cannot do, that is a contestation, but it also limits political actors to decide on those issues. So I saw a problem in the positive evaluation of constitutional courts offered in the literature. My question was: how should we think about the constitutional courts’ role if we take their relation to political actors very seriously? That led me ultimately to a very critical appreciation of the role of some national constitutional courts.
How do you resolve the classic constitutional question — is a constitutional court better equipped to provide a more reasonable resolution of constitutional questions than other institutions, particularly the legislature? Under what circumstances should the constitutional court be deprived of its power to resolve core constitutional questions so that the legislature can decide?
In the book, I have a large chapter devoted to this classical debate on judicial review and democratic legitimacy. I discuss the views of those who criticize judicial review of legislation. They emphasize that constitutional courts are special, because they have the authority to decide on democratically enacted legislation that goes against the constitution.
Now, the argument is that this is a democratic problem because it allows judges to override the assessment of legislatures based on quite indeterminate constitutional norms.
The critic would say that it leads to judges making political decisions.
This critique rests on two broad ideas. One is that there is lots of possibility to reasonably disagree about constitutional issues, particularly on fundamental rights. We can reasonably disagree about what freedom of expression means, for example, including the dilemma of whether to prohibit hate speech or not. There’s reasonable disagreement about what human dignity requires or what is the best way to protect other fundamental constitutional principles. If a court decides on these issues, it will often take a position in a reasonable debate and will do so at the expense of the assessment made by the legislature.
There’s an additional argument: the courts are not necessarily better equipped than legislatures to deal with these questions.
Courts often focus on quite technical legal reasoning. The moral stakes in these debates are not always so prominent in the judgments. Also, courts, may not be so good at embodying diversity, contrary to legislatures. The argument, made particularly by political constitutionalists, such as Jeremy Waldron and Richard Bellamy, is that the legislature can represent the diversity of opinions and that often our politicians will act reasonably. Also, citizens generally will be reasonable because they are committed to the idea of fundamental rights and the foundational principles of the constitution.
The claim I make in my book is that these are powerful arguments, but at least one problem is that the debate is in large part empirical. There are lots of claims about how legislatures and courts function. Many people will doubt that politicians always behave reasonably and that citizens have a firm commitment to fundamental rights.
This theoretical debate is not so clearly informed by empirical insights. For example, Jeremy Waldron has written a very influential article against judicial review (‘The Core of the Case against Judicial Review’). But he only refers to one example in one country (the UK) from a specific period as evidence that legislatures will behave reasonably. My assessment is that judicial review is justified if you can show that legislatures don’t always behave so reasonably as this theory would suppose and that constitutional courts offer a necessary correction.
In the book, I delved deeper into that question, specifically for the role of constitutional courts in relation to the EU. I tried to understand how political institutions deal with core constitutional questions about the EU and how that compares with how constitutional courts have tackled these questions.
What does a claim to conduct a weak form of judicial review mean for a constitutional judge?
The idea of weak-form review is one of the ideas that has come forward in constitutional thinking as a solution to the democratic problem of judicial review. It exists in several systems around the world, for example in the Canadian system and in the United Kingdom. In these systems, there is judicial review of legislation, but it’s ultimately either up to the legislature to decide what to do with the court findings, or the legislature is in a position to override the assessment of the judges.
In the Canadian system, the legislature has a right to override Supreme Court rulings. In the United Kingdom, there is a declaration of incompatibility where the courts can declare that some laws violate fundamental rights but it’s up to the politicians to do something about that. The advantage of weak review, at least in theory, is that it still gives an individual the right to challenge legislation on the basis of its infringement of fundamental rights.
But this approach avoids the democratic problem, because it leaves the last word to the legislature. Ideally, in such a system the court would be more of a contributor to these fundamental constitutional debates rather than an end point of the discussion. But of course, it depends on politicians’ or legislators’ willingness to take these judgments seriously and to reflect on the constitutional principles.
With the arrival of the Solange case law, the national constitutional courts reserved the right to review EU law as long as a higher standard of human rights protection was guaranteed on the national level. However, with the enactment of the EU Charter of Fundamental Rights, deemed as providing sufficient protection by the German CC, it is no longer the key issue. The main problem now relates to the EU’s democratic legitimacy problems — and again, constitutional courts attempt to remedy the democratic shortcomings of the EU. But you argue that courts “risk constraining legitimate political decision-making in this role.” Why should we be wary of judicial review of European law on democratic grounds?
That’s a bit of a paradoxical question. On the one hand, the constitutional courts might claim they’re actually protecting democracy and therefore it seems a bit strange to say that it is a democratic problem. I argue, however, that democracy is a very open standard that can be interpreted in many ways.
To focus on the EU, there is of course the debate about the EU democratic deficit – and I agree with certain problems in the EU’s set-up. But there’s also fundamental disagreement about how to assess the EU democratically and what is the best way to change the situation. For me, the best way to understand the debate is the difference between an intergovernmental/democratic approach and a more federalist approach.
If you believe that democracy is something essentially national because you need national media organizations and parties, a national public sphere, a shared identity and language to have a fully functioning democracy, you will be skeptical of transferring too many powers to the EU. You may also be skeptical about how much the European Parliament could achieve, so you’d argue that transforming the EU into a nation-state with a parliamentary system would not be the best idea. In this view, the institutions that represent the Member States should be in charge. This would lead you to a more intergovernmental vision of the EU, where the European Council and the Council would be in the driver’s seat, subject to control by the national parliaments.
Other people would say that such an intergovernmental set-up creates all kinds of democratic problems, such as executive dominance, or high majority requirements which then in turn empower institutions like the Court of Justice. Some people argue that in order to make the EU more democratic, more power should be given to the European Parliament.
These are both democratic assessments.
These are reasonable views, but they lead to opposing ideas. The strengthening of the European Parliament would be undemocratic because it is likely to take power away from the nation-states and their governments, whereas, according to the other view, that’s precisely what you need to do.
Then coming to the courts – if a court is using democracy as a standard of review, it’s very likely to take a position in these debates. The question is: can it use democracy to avoid these debates, or will it take an ultimately political position on one of the most fundamental questions about the EU and its nature? There is fundamental disagreement about how the EU should be democratized, my claim is that we need to work out in democratic politics what we think about this.
The type of ideology you adhere to also matters for the way you look at this question. If you are pro-markets and quite liberal, then you will be more likely to favor an EU with a limited set of competences focused on the internal market. But if you are a social democrat, or you are a Green politician, then you may want to have a much more powerful EU with redistribution, market correction, or climate action.
Just a final more personal example. Consider how our response to the question of democratizing the EU can impact people differently, depending on their position. Take my grandmother, she is very old now, her use of English is very limited. The idea that she would be able to fundamentally connect to a European body at the EU level is very improbable. For her, to be a real democratic citizen means connecting to the Dutch parliament in the nation-state context. But for me, it’s very different. My English, I think, is reasonably okay, and I care about all kinds of European issues, I have a very international family. These are different positions. We need to understand all the different interests and values that come with this debate. The risk is that a court decides the answers for us.
Can you envision a future situation where a national constitutional court declares a revised Treaty on the European Union (e.g., with an altered voting mechanism with unanimity abandoned in some areas) incompatible with the national constitution — and could it be deemed a legitimate contestation?
My conclusion is that constitutional courts should have a very limited role in relation to the EU. What are the ways in which the constitutional courts may contribute in a fairly uncontroversial way to the legitimacy of the EU? One of the ideas I developed in the book is a minimal democratic review.
We could say, for example, that constitutional courts shouldn’t determine the debate between intergovernmental and federalist ideas, but they could say that the executive operating at the EU level should be subject to parliamentary control, whether the national parliament or the European Parliament.
Also, executive actors should be transparent in their decision-making so that we can democratically debate their decisions. That’s the minimal review that constitutional courts could exercise, but I would be hesitant to say they should do much more.
There is of course also the possibility that there will be a right-wing populist wave in Europe, and we get a significant increase in authoritarian governments, and then the EU may become a very unreasonable organization, so to speak. In this situation, I would envision a much more forceful role for constitutional courts to play in protecting the constitutional democratic minimum. But in the current situation, these constitutional courts are likely to get embroiled in difficult political assessments. Their review should be minimal.
I can envision a future situation where a national constitutional court takes steps to declare a new European Treaty unconstitutional. Take, for example, the German Constitutional Court: it has imposed certain limits to European integration but in the end always declared that in general the European Treaties were acceptable. With some other steps, however, the so-called red line is crossed. It’s always a bit vague where these red lines are, there’s always quite a lot of flexibility. But I think that if the German Court would declare a future Treaty incompatible with the constitution, it would put itself in a very complicated situation – it would catalyse a constitutional crisis and put its own position in danger. You already saw this with the PSPP judgment of May 2020. The German Constitutional Court declared an act of the European Central Bank and a judgment of the European Court Justice ultra vires. There was a significant backlash to this finding: there were lots of discussions and significant contestation. This contestation will lead to a more careful Court. And maybe the change in the Court’s composition over time will make it more moderate. I see that as the most likely scenario.
The Treaty on the European Union stipulates that the EU should respect the national identities of the member states. However, it does not mention the ways of paying this respect — it was a matter of practice that the European constitutional courts assumed the role of guardians of national constitutional identities. So, two questions arise here: the historical and normative. First, what does the process of proclaiming constitutional identity by constitutional courts look like? Second, should the definition of the core constitutional principles that are part of national identity be developed by constitutional judges? And if not, how can we envision defining constitutional identity on the national level?
This is a very interesting and complicated question. I must confess I haven’t looked at the historical development of the idea of constitutional identity in detail. The answer that would come from constitutional courts, particularly from the German Constitutional Court, would be: ‘It’s self-evident that we guard constitutional identity because constitutional identity refers to the fundamental principles of our Constitution and we have the authority to rule on the Constitution’.
Article 4(2) of the Treaty on the European Union is not so relevant because EU law does not confer the competence and authority on constitutional courts to do this. For example, the German Constitutional Court says it’s rather the other way around – there are certain unamendable principles of the German Constitution and not even EU law can derogate from them. You could say something similar about other constitutional courts. Although the Italian Constitutional Court historically hasn’t always used the notion of constitutional identity, it mentioned the idea of counter limits or contro-limiti. I think it’s a similar concept: there are certain essential constitutional principles that the Italian Constitutional Court just sees as its task to protect. For constitutional courts, it’s evident that they protect the constitution.
I argue, however, that we should leave the fundamental constitutional principles to political actors, at least in large respects.
Perhaps this also reflects my Dutch perspective: we still have a prohibition on constitutional review of legislation by the courts. The main reason is to leave a significant leeway to political actors to determine what constitutional identity is. When we are talking about constitutional identities, it’s often not so clear what it means and it’s not so clear what constitutional norms are part of it and which are not. Even if it is clear which constitutional norms are part of this identity, they are often fairly abstract principles. In Germany, these are democracy, the core of fundamental rights and other principles. There are many possible ways in which you can think about democracy. I argue that a court should have a limited role in saying something about this.
Another compelling example that demonstrates the complications arising when courts overreach in their decisions is, once again, the German Constitutional Court. This Court has said that democracy is something essentially national. Therefore, substantial competences must remain for the German Parliament, the Bundestag. You cannot hollow out those competences to a significant degree, and there is a certain moment when you would confer too many competences on the EU. The German Constitutional Court said in the Lisbon judgment that there are certain areas that are particularly sensitive, for example, criminal law, family law, or the budget rights of the Bundestag. Such a ruling, however, risks limiting political discussion about which competences you need to transfer to the EU. There’s good reason to say that criminal law is very sensitive and that it should be the national Parliament that makes the essential decisions. But you could also say ‘look if we have an area without internal borders and criminals can move wherever, it may mean that you need to start thinking about EU criminal law’. It’s not so clear where that discussion would end. It’s not so clear which aspects of criminal law you have to keep national.
A similar problem is with budget rights and potentially EU taxes. If you say budget rights and taxes are so central to democratic decision-making that they should be national – so you’re very skeptical of having EU-level taxes – that might mean that it’s very difficult to do something about tax evasion, and it’s difficult to fully take into account free movement of capital in the EU.
Once courts start making these kinds of judgments, they risk taking a position in a political debate and will ultimately constrain the ability of democratically elected politicians to decide these issues.
Judicial Euroskepticism is one of the core concepts you coin in the book, based on the analysis of the German Constitutional Court’s behavior. In what sense was the German CC skeptical of the European integration process? In the broader perspective that you adopt in your book and based on the discussed case law, would you perceive the Court as a legitimate actor in a democratic debate on European integration, the scope of EU law, and the division of competencies in the EU?
It was a bit provocative to use the phrase ‘judicial Euroskepticism’, it’s a bit cheeky. I don’t know if it’s a core concept. I did a few case studies on the German Court in my book. One of the issues I looked at was the Maastricht Treaty judgment. My way of explaining or appreciating this judgment was to see it as a form of judicial Euroskepticism.
Why did I come to that conclusion? The Maastricht judgment was, of course, the judgment in which the German Constitutional Court used the principle of democracy to assess the European Union. The court said that democracy is essentially something national. There are limits to the number of competences that the German state can transfer to the EU and the German court will be very strict on supervising those competence limits, while the pre-legal conditions for democracy at the EU level do not exist yet. In this respect, the German court pointed to a shared national identity, a common language and, particularly to the idea of a public sphere, including common media organizations.
There’s been lots of criticism of that judgment. But you could also say that, despite everything, it at least gave us a very principled statement about democracy in the EU. On this line of reasoning, the court started the debate about the democratic deficit in the EU.
Then I thought: how did the political actors of that time deal with this question? Did they completely ignore this issue of democracy or did they elaborately discuss it? I looked at the Treaty negotiations, as well as the ratification debates in Germany.
What I found is that democracy was really a major topic. In the Treaty negotiations, there was disagreement between the French and the Germans, where the French wanted a more intergovernmental Union, and in Germany, they wanted to strengthen the European Parliament. The Maastricht Treaty was a compromise between these two different visions, but still with a very strong intergovernmental component, which Germany ultimately accepted.
If you then look at the ratification debates in Germany, you see that almost everyone is very disappointed by this outcome. German parliamentarians believed that the Maastricht Treaty had a lot of democratic problems because the European Parliament hadn’t been strengthened enough – so they rely on a pro-European vision of democracy. Everyone wants democracy, but it needs to be realized at the European level. The German Parliament accepted the Maastricht Treaty as a compromise.
We can contrast this with the German Constitutional Court’s approach. It offered a more national perspective on democracy, stressing the connections between the nation-state and democracy, and certain preconditions for democracy. I thought that this was something you see in more Eurosceptical discourse – this relation between the people and democracy is something that’s very prominent in more Euro-critical views. This is why I qualified the German Constitutional Court’s Maastricht ruling as a form of judicial euroskepticism. And it’s understandable because there were no real Euro-critical parties in the German Parliament at that time. There were public opinion polls that indicated German citizens were more hesitant about European integration than their political representatives.
With the Maastricht judgment, the Court opens up the possibility to challenge measures of EU law and treaty ratifications and gives a more critical perspective on European integration. This I considered a form of judicial Euroskepticism.
But the German Constitutional Court was not the only institution offering us a reflection on constitutional principles, and debate on democracy. It gave us a more Euro-critical vision. That’s the way to understand the German Constitutional Court’s relation to the EU.
Not only have you done the analysis of the ratification debates but you also conducted more than 20 interviews with politicians, policymakers and even judges. What are your insights from this empirical analysis? What surprised you or is there maybe something that did not surprise you at all?
The Maastricht Treaty debate really surprised me with how democracy was such a central topic. The German political debates were really pro-European. Then I also looked at the Euro crisis. Here the German Constitutional Court becomes the voice of a Euro-critical parliamentary minority and an extra-parliamentary opposition to the EU. We can understand this in the context of the German political system, where, for a long time, Euroskepticism was a political taboo for historical reasons. This has, of course, changed because they now have a very clearly Euroskeptical party prominent in the Parliament.
But during the crisis, individual members of the Parliament within the bigger parties had a more Euro-critical attitude, for example, Peter Gauweiler. It’s not always clear that the parliamentary debates reflected their position so well – the majority of their party has a different position than they have, and it is the party leadership that determines who speaks in the parliamentary debates. So some of the more Euro-critical parliamentarians used the Constitutional Court as an extra forum to bring forward more Euro-critical claims.
To a certain extent the German Court is going along with that because of the interpretation they chose in Maastricht. That’s my analysis. In a way, you can say there is a democratic benefit, because it promotes contestation, it brings in a diversity of viewpoints not fully reflected in the parliamentary debate. But the fundamental problem is that the constitutional court is ultimately, of course, in a special position. It rules about the fundamental constitutional norms that regulate the political game. If you are going to interpret those constitutional norms in a specific way, you risk limiting political debate and the diversity of opinions that you have in a polity.
Maybe it will be a bit provocative, but I found that the German Constitutional Court is sometimes a bit like a populist actor, as it legitimates itself as the true voice of the people.
At a certain point, a debate emerged in Germany about the need to hold a referendum to make significant changes in the EU’s structure constitutionally possible. That suggests that the Bundestag, cherished in the German Court’s case law, is actually not representing the people’s opinions very well when it comes to matters of European integration, and it’s only when the people speak themselves through a referendum, we can have real democratic decisions about the EU. I found this a very strange position because there are hardly any provisions for direct democracy and referenda in the German Constitution. There were debates about direct democracy at the time of Maastricht, but the Bundestag rejected further possibilities for referenda in the German Constitution. Why? Because, they argued, the architects of the German constitution had explicitly chosen a representative democracy in light of the Weimar history.
Then there were some people on the Court who seemed to suggest that if you have a simple referendum on the German Constitution, you could do away with the entire Constitution, even with the unamendability clause, and abrogate this order as a whole. I found that position very surprising and difficult to understand. It showed to me the limitations of the difficult position that the Court had put itself into.
A final point on the theoretical debate on constitutional courts and judicial review of legislation; all these findings on how it has worked in practice are not so easy to fit into the theoretical debate. A classical argument for judicial review of legislation would conceptualize these courts as very principled and reasonable actors. From the empirical viewpoint, I wasn’t so sure about that.
Based on your insights of the empirical analysis, how can we design an institutional balance between constitutional courts and the legislature that makes judicial review more democratically legitimate? In this context, what is judicial review understood as participation?
I don’t know if I would necessarily call judicial review a form of participation. In the conclusion I have two ideas that would have to be worked out by others. One idea is minimal democratic review. I also have a chapter on how the German Constitutional Court helped to strengthen the position of the German Parliament in relation to decisions of executives, for example by demanding more information on European decision-making and ensuring that the German Parliament has a say on certain issues. These are ways to think about a more democratic role for constitutional courts that would allow democratic deliberation and contestation to take place rather than risking to constrain it. Perhaps here constitutional courts should really be strong and assertive, but careful in trying to do too much.
I argue that if you want dialogue and contestation, what you need is a court that puts certain things on the agenda but leaves them explicitly to political actors to deal with them.
If you think again about the Maastricht judgment, you could say the German Constitutional Court should have said: ‘there are different positions in a democracy, some are attached to the idea that there’s a close link between the nation-state and democracy, while others would like to strengthen the European Parliament’. It could say: ‘These issues are debated within the Parliament. They go beyond our competence because there are reasonable disagreements about these issues’.
But I’m not 100% sure if a constitutional court can do that. A constitutional court is not always able to reflect that disagreement so much. I suggest a weak form of review that encompasses declarations of incompatibility, where a constitutional court declares that some issues have not been seriously considered so other actors should do it.
In collaboration with Karen Culver.
