Critics Claim That Europe’s Courts Are Unaccountable. Recent Cases Suggest Otherwise.

JCMS | 27 June 2019

Brexit supporters have claimed that European courts are out of touch and impose their will on an unwilling British public. Michael F. Harsch, Vladislav Maksimov, and Chris Wheeler argue that European courts are more accountable than these critics contend: when these courts defy the wishes of governments, judgements tend to align with public opinion.

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One of the central claims pushed by Brexit supporters for “taking back control” from the European Union has been that European courts are out of touch and impose their will on an unwilling British public.

Ahead of the 2016 Brexit referendum, then Secretary of State for Justice Michael Gove decried “an unaccountable European Court in Luxembourg, which is extending its reach every week.” During her tenure, Prime Minister Theresa May repeatedly vowed to end the jurisdiction of the European Court of Justice in the U.K.

However, in a new paper, we argue that European courts are more accountable than Gove and other critics contend. When these courts do defy the wishes of governments, judgements tend to be strategically aligned with public opinion in leading member states, as judges seek to protect themselves from political backlash.

Entities like the Court of Justice of the European Union in Luxembourg or the European Court of Human Rights in Strasbourg (which is not part of the E.U.) often seem distant and impenetrable to voters and legislators alike. Even scholars studying these courts have difficulty agreeing on whether governments can effectively control them, for instance by selecting deferential judges or threatening non-compliance and legislative overrides of decisions.

Yet a number of recent European court decisions indicate that judges are responsive to a long overlooked force—public opinion. At a time when international rulings increasingly affect the mass public, the President of the European Court of Justice, Koen Lenaerts has even taken the unusual step to highlight that “judges live in the real world, not on the moon.” European courts might thus become more similar to the U.S. Supreme Court whose responsiveness to public opinion is well-documented.

A powerful example of European courts’ alignment with public opinion is the case of Yassin Kadi—a Saudi multi-millionaire who the U.N. Security Council blacklisted as a terror suspect in late 2001, reportedly at the request of the U.S. government. The E.U. immediately implemented this decision and froze Kadi’s assets.

Kadi challenged the E.U. sanctions in court, claiming that the E.U.’s actions presented a violation of his right to be heard, right to judicial review, and respect for his property. While a lower E.U. court dismissed Kadi’s challenge in 2005—arguing that it had no jurisdiction to review the implementation of U.N. Security Council resolutions—the European Court of Justice overruled this decision in 2008, sending shockwaves through European capitals and the U.N. headquarters in New York. The judges stated that cases like Kadi’s deserve full judicial review, and that governments need to be more explicit in explaining the reasons for imposing sanctions.

In response, the European Commission sent Kadi a scant, one-page explanation of why the Security Council had placed him on the sanctions lists, but kept his assets frozen. After Kadi again challenged this outcome in 2010 and 2013, the E.U. courts set even higher transparency standards for blacklisting decisions, despite protests by member states and E.U. institutions. How did the court become less malleable to pressure from European governments?

The answer to this puzzle may lie not in the smoke-filled rooms of Europe’s capitals or the private deliberation chambers of the E.U. courts but out in the open: through seismic shifts in European public opinion.

In the wake of 9/11, the Madrid train and London 7/7 bombings, European publics were highly supportive of strong counterterrorism measures. When Kadi’s claim was initially dismissed by the European courts, one in seven EU citizens found terrorism to be among the two most important policy issues facing their countries.

However, public opinion dramatically changed as the “War on Terror” became associated with a wider erosion of civil liberties, and European publics began to favor protecting the rights of suspects over authorizing increasingly invasive executive powers. Net support in France, Germany and the U.K. for U.S. anti-terrorism efforts dropped from an average of nearly 50% in 2002 to a net opposition of 11% in 2007.

By 2013, European publics’ concern about terrorism hit a low point and only one in fifty respondents considered terrorism to be an important issue. Other rulings by European courts during this period indicate that public opinion enabled the judges to check executive power on the issues of counter-terrorism and fundamental rights.

Yet in the aftermath of the 2015–16 terrorist attacks in Paris, Brussels, Nice, and Berlin, terrorism has resurfaced as an issue of serious concern for Europeans, and the Court of Justice has since granted governments wider discretion in this policy area.

European courts can thus be agents of legal change and advance human rights against governments’ resistance. But this role is conditional on the presence of public support.

The case of Yassin Kadi suggests that when politicians accuse international courts of being distant and unaccountable, it may not be the judges in Luxembourg or Strasbourg who are the ones out of touch with public opinion, but the governments themselves.

This piece draws on the article International Courts and Public Opinion: Explaining the CJEU’s Role in Protecting Terror Suspects’ Rights published in JCMS.

Please note that this article represents the views of the author(s) and not those of Ideas on Europe, JCMS or UACES.

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Michael F.Harsch