Domestic Judicial Defiance in the European Union: A Systemic Threat to the Authority of EU Law?

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, recent decisions by national courts may seem to bode ill for the authority of EU law. In January 2012, the Czech Constitutional Court declared the decision of the Court of Justice in the Landtová case ultra vires. This came on the heels of other domestic rulings stressing the constitutional limits of integration. More recently, in February 2014, the German Federal Constitutional Court passed on its first-ever case to the Court of Justice. But even the German Court’s reference may be viewed as escalating, rather than easing tensions with the European Court. Still, borrowing insights from game theory and international relations, the present Article argues that, in the current configuration of European integration, these developments do not pose an existential threat to the EU legal order. It demonstrates that many aspects of the jurisprudence of constitutional conflict can be captured by a simple Hawk-Dove game in which courts compete over a jurisdictional resource but face costs when the dispute escalates into a constitutional crisis. Extensions to the baseline model then help cast a wider light on the use and effectiveness of non-compliance threats by domestic high courts. The analysis suggests that actual instances of overt domestic non-compliance such as the Czech case are more likely to remain isolated accidents. Also, despite its judicial superpower status, the German Federal Constitutional Court has incentives to seek concessions from the Court of Justice through peaceful dialogue rather than through an all-out judicial war.

Publication year:2016

Accessibility:Open