Still a flawed decision

von Walther Michl

It might come as a surprise at first glance but I fully agree with most of what Daniel wrote. I simply don’t think that it can count as a defence of the Court’s decision. Daniel’s initial impulse seems to be that most critical contributions so far have indulged in judicial soul-searching through the blurring lens of human rights protection and neglected the nitty-gritty of the legal issues, especially their constitutional significance. However, the outrage among the early commentators – including my own biblical allusion to the CJEU as a jealous entity that tolerates no other courts before it – is not entirely based on emotions but on the sober appraisal of the tone and the arguments of the Court. Having done that, I still see little space for a charitable reading of Opinion 2/13. Daniel himself starts with a comparison of AG Kokott’s view and the Court’s decision (p. 3). His assessment doesn’t sound too different from how I would describe the difference between the two documents: the Advocate General seeks solutions, the CJEU seeks problems.

Acceptable parts of the Opinion

Make no mistake: Opinion 2/13 contains some fully acceptable parts, namely the points about the co-respondent mechanism and Article 344 TFEU which Daniel endorses wholeheartedly (pp. 11 et seqq.). Those are the issues where the Court was only overly cautious in my opinion.

I think it is indeed legally compelling to demand a mandatory co-defendant mechanism in all cases involving EU law including those where only the interpretation of EU law is concerned. In fact, I had strongly argued for such a mechanism in a 2012 article on an earlier draft of the accession agreement (cf. pp. 101-103 here) and I was pondering for a very long time if I should dispute the compatibility of the final draft with the autonomy of EU law. I finally decided against it and contended in my doctoral thesis (cf. pp ...

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