Final Judicial Authority in the European Union: A Normative Framework

Abstract

This is a thesis about final judicial authority, the authority of a court to have the final say over an issue brought before it. It develops a framework for thinking about it, and it applies this framework to the jurisdictional disputes between the Court of Justice of the European Union (CJEU) and the apex courts of the Member States. The first part of the thesis explains why an account of final judicial authority in the EU is necessary for determining how lower-instance courts should decide when conflicting judgments from the CJEU and Member State apex courts are applicable to a case before them. It shows why constitutional pluralism and legal monism cannot provide lower-instance courts with the relevant normative considerations for attributing jurisdictional primacy to one or the other superior court. To develop an adequate account of legitimate judicial authority, the thesis first reconstructs the theories of legitimate authority underpinning the apex courts and the CJEU. These include popular sovereignty and some combination of Member State consent, effectiveness, and the desirability of European integration and of extending democracy beyond state borders, respectively. The second part of the thesis provides a framework for analysing these theories. It identifies normative legitimacy with justified authority, that is, with an institution’s morally justified power to give relatively content-independent protected reasons for action. It then develops an account of legitimate judicial authority based on the need for comprehensively interdependent persons to develop shared institutions, and on a model of effective representation and adversarial deliberation. The third part of the thesis evaluates specific grounds for the jurisdictional primacy of each superior court. These include popular sovereignty, a community’s claim to collective self-determination, the CJEU’s role as umpire between the Union and the Member States, and the EU’s constitutional nature as a political entity whose function is to coordinate comprehensively interdependent groups with politically salient differences.