Conflicts of Rights in the European Union. A Theory of Supranational Adjudication. Oxford: Oxford University Press 2009, 224p., ISBN

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1 337 Aida Torres Pérez Conflicts of Rights in the European Union. A Theory of Supranational Adjudication Oxford: Oxford University Press 2009, 224p., ISBN M. Ambrus* There is a growing literature dealing with the phenomenon of legal-political pluralism and with the question of how to manage the institutions concerned. It could be said that legal-political pluralism is not only a theoretical concept, but also a reality in many contexts. Several forms or aspects of pluralism can be identified both in the real world and in legal writing. The book of Aida Torres Pérez on Conflicts of Rights in the European Union: A Theory of Adjudication explores one aspect of this reality, namely the pluralist political context within the European constitutional order and its effect on adjudicating fundamental rights norms. When acts of national authorities fall within the field of application of European Union (EU) law, EU and national constitutional rights may overlap and their interpretations might diverge. In these situations national courts are requested to comply with the standard of protection established by the European Court of justice (ECJ). In other words, the ECJ claims authority for adjudicating fundamental rights norms. This book aims to devise a theoretical model for legitimate supranational adjudication in this pluralist political context including a proposed mode of judicial reasoning. After critically assessing the institutional models developed so far when conflicting rights are at stake, the author suggests the adoption of a pluralist model concerning the power structure of the EU as opposed to hierarchical (or non-hierarchical) models. The arguments in favour of this model are political in nature: they are based on a balance between confining state sovereignty by transferring certain forms of public power to the supranational level, on the one hand, and limiting the concentration of power at the supranational level, on the other. In other words, this proposed pluralist model is based on the idea that the concentration of power, be it at the supranational or the national level, needs to be restricted, and that power should be shared by the participants of the political system. In the view of the author, [a] pluralist model provides a better account of boeken * Dr. M. Ambrus is assistent professor at the department of Public International Law at the Erasmus University Rotterdam.

2 338 boeken JULI 2012 TVCR the European reality, and should be normatively embraced as well (p. 4 and 67). In this political context, the question to be answered is how supranational adjudication can be justified; i.e. is there a conceptual model of adjudicating fundamental rights that could respond to this pluralist framework? In this pluralist model the theory of dialogue elaborated by Habermas is argued to be able to serve as a model for adjudication and could at the same time operate as a source of legitimacy for supranational adjudication. This argumentative communication based on exchange of reasons between domestic courts and the ECJ would, so the argument goes, result in better-reasoned outcome for the community as a whole, would enhance participation, would be able to contribute to building a common identity and is the most consistent form of interaction, given that certain prerequisites are met. In the words of the author, [j]udicial dialogue contributes to conflict management in a process of mutual accommodation over time (at 141). In turn, this judicial dialogue is argued to have implications for the mode of judicial reasoning in interpreting fundamental rights. More concretely, the application of the so-called comparative law method combined with deference (self-restraint) by the ECJ to the national courts when necessary is called upon in this pluralist context. The reliance on this method would, arguably, advance participation and enhance the quality of the decision. The purpose of this method should not be the identification of the lowest common denominator as it is in the context of the European Convention on Human Rights (ECHR). It should rather aspire to achieve a synthesis and identify interpretations adequate for the community as a whole (at 166). Aida Torres Pérez s proposed theory or model of supranational adjudication is an interesting, original and innovative approach to adjudicating fundamental rights norms. The innovativeness and originality of the model can be linked to at least three aspects: its comprehensiveness, its general approach to fundamental rights, and its creativity in connecting existing concepts and theories. First, the theory is comprehensive. Not only does the author consider the concrete institutional background when devising her theory on supranational adjudication, she also recognizes that legitimacy concerns of such adjudication should be addressed. In addition to designing the institutional model of supranational adjudication, the theory also crafts a desired mode of interpretation that could and should be used by a legitimate supranational adjudicative body within the EU. Moreover, the book is novel in its approach to human rights. The literature which places fundamental rights in a political-institutional context and

3 339 relies on it as a framework of analysis is rare. Many of the human rightsrelated literature takes the need to provide higher protection for the rights of human beings as the framework of analysis and design an institutional model for this purpose. The author has chosen another path: she postulates the institutional structure and its underlying political context and places the protection of fundamental rights within this reality. Last but not least, the book is groundbreaking in that it applies already existing concepts and theories to this specific context and in an ingenious combination. For instance, the application of the comparative law method as well as judicial deference have been addressed and explained within the context of the ECtHR, and is now applied to the ECJ. The author made interesting assemblages: legitimacy and adjudication by the ECJ, legitimacy and judicial reasoning within the context of the EU, fundamental rights and legal pluralism within the context of the EU and so on. While the author provides an excellent analysis and convincing argumentation about the devised theory (or model) of supranational adjudication in case fundamental rights norms are at stake, some of the book s premises can still be debated. This is the case, for instance, with respect to the book s underlying concept of legitimacy. The book seems to be founded on the idea that a comprehensive and coherent system can establish and/ or enhance the legitimacy of the ECJ s adjudication in that it can justify the claim of the ECJ s authority to deliberate over fundamental rights norms. Accordingly, the author s concept of legitimacy is mainly based on legal justification, and the socio-legal aspect of legitimacy is not explicitly addressed. When she mentions building a common identity as an important positive effect of judicial dialogue, the author seems to argue that providing a justification for the authority of the ECJ would also make EU citizens/member states perceive it as legitimate. Whether this is really the case or justification can have such an effect on the society as a whole is generally debated and arguably requires a socio-legal study. Second and closely related to the above point, the book also rests upon the idea of an ever-closer and ever-stronger European Union. This image is confirmed by the author s insistence on a consensus to be reached among the member states concerning fundamental rights norms. This consensus or common understanding of European peoples should be created even at the price of reducing the level of human rights protection. In other words, the level of protection might be sacrificed at the altar of creating unity within the EU. Whether lower protection of human rights for the sake of achieving consensus is acceptable as justification is really doubtful, even if certain protective elements are built in the system, such as judicial deference.

4 340 boeken JULI 2012 TVCR Third, the book conceives the ECJ as a judicial body with the capacity, ability and resources to carry out proper comparative analysis and judicial dialogue. Again, this is also one of the difficulties the ECtHR faces. In other words, designing the institutional operation of supranational adjudication should, arguably, also consider the workload and capacity of the judicial organisation. Fourth, judicial dialogue, in actual fact, seems to refer to the following: the ECJ listens to the arguments of the member states and later includes them in its argumentation. So it is not so much a direct dialogue between the participants, it is rather a two-phased process of communication. In the first phase, the ECJ is passive, while the member states are active. In the second phase, the ECJ is active, while the member states are passive. Given the lack of actual dialogue, this model carries the risk that the member states will not be able to react to a misinterpretation given by the ECJ in its judgment, at least not within the context of the very same case. This misinterpretation might, nevertheless, be clarified in the long term. Accordingly, it seems that the dialogue and the synthesis to be reached are understood as long-term goals. The question is, to what extent the participants are able and willing to see the long-term effect of such a dialogue, given also the fact that the legal system continuously evolves. Put differently, it is precarious whether and to what extent this type of dialogue and the synthesis implied can serve as justification for the claim of authority of the ECJ. As mentioned, an important added value of this book is its comprehensiveness. Admittedly, there is hardly any book with such an overarching purpose that has not been called upon to elaborate more on certain aspects of their proposed model or theory. Some issues addressed in this book can also be further researched and elaborated upon. First of all, the concrete working and theory of the comparative law method certainly needs to be addressed. Suffice to refer to the practice of the ECtHR. This Court has experience in this respect, but the way it has applied the comparative law method has been subject of criticism. Second, the concept and extent of deference also requires some further elaboration. On the one hand, it is unclear how it is different from the doctrine of margin of appreciation applied by the ECtHR; and on the other hand, the circumstances which influence the extent of judicial self-restraint should be explored and analysed. Third, it might be argued that not all aspects of fundamental rights norms would warrant supranational adjudication. Under deference, the author briefly referred to the application of the proportionality principle, which could be left up to the member states. This aspect might also be considered in terms of the norms; for instance, assessing all the aspects of the justification given for the interference with a

5 341 fundamental right might not be a task for the ECJ. In other words, it should also be refined what fundamental rights norms or the scope of the rights means and how it relates to judicial deference. Finally, the suggested approach of achieving synthesis, as opposed to the lowest common denominator or the highest standard of protection, needs some more explanation and/or exploration. The explicitly stated aim of this synthesis is to find consensus among the majority of the member states in order to create a common identity. Accordingly, it needs to be further addressed how it is different from the lowest common denominator. Not only does this book offer a refreshing and novel theory of supranational adjudication of fundamental rights norms, it might also stimulate further research in the field of international adjudication. An interesting question would, for instance, be to look at whether and to what extent this model can be applied to international adjudication in general. Inspirations can also be gained from this theory for addressing the phenomenon of proliferation of courts and tribunals and its consequences for international and European law. All in all, Torres Pérez work is a well-written, clear and stimulating book.

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