A call for dissents on the European Court of Justice

BY ANDREW KALLOCH

Vlad Perju, SJD ’07, now Assistant Professor at Boston College Law School
Fortress Mentality

On Thursday, February 19, Vlad Perju, SJD ’07, an Assistant Professor at Boston College Law School, argued for a discursive turn in the legal reasoning of the European Court of Justice (ECJ). This fundamental shift, Perju stated, would require a move away from the unitary nature of ECJ decisionmaking, whereby concurring and dissenting opinions are not allowed, to a system in which such opinions were not only permitted, but encouraged. Perju’s appearance was hosted by the Harvard European Law Association.

Perju’s discussion largely followed the thesis of his recent article, “Reason and Authority in the European Court of Justice” (in the Virginia Journal of International Law, Vol. 49, No. 2). The ECJ, Perju stated, is one of the few courts that demands unitary judgments. He offered “common sense” arguments for and against this system. The positive side of the unitary system is that it allows the court to speak with one voice and to give a sense of unity and authority that comes with it. But given its difficulty producing consensus, the unitary system often makes judgments read like decisions of a committee.

Perju’s central argument is that a shift toward dissenting views within the ECJ must be “seen in larger framework-the relationship between European political institutions and other actors on the European stage,” rather than as a mere technicality of the court’s jurisprudence. Indeed, by politicizing its judicial style-which Perju took pains to explain does not mean a disintegration into national partisanship-the ECJ would, “lift the veil…on the process of judicial deliberation.” “This does not mean violating secrecy of judicial deliberations,” Perju insisted, “It would, however, change the way judgments are written and make the exercise of judicial authority more transparent and robust.”

Thus, in Perju’s view, transparency and the possibility of dissent would move the court toward a justification model of authority that is content-dependent, rather than content-independent model of authority under which the ECJ currently operates.

Perju acknowledged that such a dramatic shift “might erode [the Court’s] authority in the short term.” Indeed, Perju noted that while American jurists are accustomed to having law politicized, European lawyers (and the European polity more broadly), are likely to view the discursive turn as a completely radical shift. However, he ultimately believes that he shift will enhance the court’s authority in the medium and long term and is “merely one part of a larger process of politicizing the European polity including politicizing the European political institutions.”

Perju insisted that his effort to alter jurisprudential strategy was unrelated to his personal policy preferences. “My aim is not ideological. An argument such as this is jurisprudential. My interest is in what law can contribute. What is the relationship between law an collective political learning at the level of an emerging European political consciousness?”

Perju used the case of Chacon Navas v. Eurest Colectividades SA (2006) as a case study to explain how the discursive shift will change European jurisprudence. In that case, Navas was ill and, after eight months at a catering company, she was dismissed. According to Perju, under Spanish law, there are two types of impermissible terminations: unlawful and void. Terminations are unlawful if the employer fails to provide a reason. The remedy for such a termination is money damages. Void terminations are firings for impermissible reasons, such as sex, race, religion, or disability. The remedy for a void dismissal is reinstatement. Navas claimed she was fired due to disability, which constituted a void dismissal.

Perju stated that the court’s decision completely ignored a major shift in thought about the nature of disabilities that had taken place in the European Community during the 1990s. During that decade, there was fierce debate about the very notion of disability. The traditional view was the medical model, which focuses on the physical effects to the individual. That view was challenged by the social model of disability, which focuses on the effects that emerge from society’s inability to respond to an individual’s disability.

The ECJ, required to produce an autonomous and uniform decision, determined that the medical model of disability would be binding on the entire European Community. Perju stated, “That source of reasoning is insufficient. The court stepped up to a debate and screwed up.” He asked rhetorically, “Would it have been different if multiple opinions were allowed?”

Ultimately, Perju concluded, the discursive turn in the ECJ is a long-term project. Even if judges are technically allowed to enter separate opinions, judicial and institutional pressures often combine to thwart dissent, as has been the case in Romania, Poland, Spain, and the courts of the World Trade Organization, all of which are tribunals where concurrences are allowed, but frowned upon.

Despite what is likely an uphill struggle, Perju insisted that the discursive turn was a change worth fighting for. In time, he hopes the ECJ becomes a theater for substantive debate about doctrine, jurisdictional perceptions, and political discourse. “The conflict between different visions of collective life…is relevant and important in the formation of political consciousness, without which the European project will continue to be way less than it could become.”

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