In the latest issue of the European Law Review, Jérémie Van Meerbeeck published an article (E.L. Rev. 2016, 41(2), 275-288) regarding the case law of the CJEU which discusses the many different conceptions of the principle of legal certainty. The paper is centered around the incoherencies in the Court’s judgments regarding said principle and the author argues that the Cartesian logic as a basis for legal certainty should be replaced with the fiduciary logic based upon the notion of trust instead, as it would be in favour of individuals and not the political order, i.e. the European Union (EU).
The principle of legal certainty is a characteristic of any Western legal system. The CJEU provides that the general principle of legal certainty requires the law to be known, precise, clear, stable, certain and predictable. However, the European Courts have a rather inconsistent approach to this principle, which raises the question; what does the general principle of legal certainty actually mean? Van Meerbeeck seeks to explain this principle.
He starts with a history of legal ideas and mentions that the principle of legal certainty can only be understood by looking back in the past. Historically, four logics have been developed concerning the principle of legal certainty. The period of the ancient Greeks was when the political logic first appeared, which focuses mostly on safeguarding the success of the rules, not on protecting the individuals. Furthermore, during the 17th century the remaining logics, the subjective, Cartesian and fiduciary emerged. Firstly, the subjective logic was developed and focused on legal certainty in light of the subjects of law. Secondly, the Cartesian logic is based on ensuring the absolute certainty of law. Finally, the fiduciary logic is built on the notion of mutual trust between the authorities and the people which originated from the Lockean theory of social contract.
During the 20th century, language became the center of attention. The law was furthermore used as a mechanism of social change. Due to the fact of individual interest and the uncertainties of language, most legal theoreticians have come to accept that some uncertainty of law is inevitable, this being from the point of view of legal certainty.
The Conflicting Nature of the Principle of Legal Certainty
Van Meerbeeck explains that currently, the principle of legal certainty in the European legal order, while significant in its theoretical and constitutional value as a general principle of EU law, has had limited effectiveness in practice due to its confusing and sometimes even contradictory way in which it is applied by EU judges.
Two examples of the case law of the CJEU, presented by Van Meerbeeck, highlight the significant contradictions in the Courts application of the principle of legal certainty as a conflict between the political and subjective logics. The first example regards the Orlando judgment (available only in French) in which the General Court created, with retroactive effect, a time limitation. It ruled that a litigation action brought by the European Bank of Investment staff members was not admissible since it had arrived a bit late, even though any relevant time limitation for such particular event had not been established previously in EU law. What is of striking interest is that the General Court relied its decision on the principle of legal certainty. Furthermore, the Court used an analogy with the time limitation that was applicable to European Union civil servants, and stated that this time limitation should have been known in advance.
The second example revolves around the issue of interpretation in a multilingual legal system. The principle of legal certainty requires EU law to be interpreted both according to the “natural and usual” meaning of the words of the national language without, at the same time, diminishing the divergence between the Member States. In the Röser case (238/84), the question of “usual” meaning was put to test. As for the facts, Mr. Röser had been subjected to criminal proceedings in Germany under a Regulation that allowed for two interpretations in its German version whereas other Member States had left no discretion for ambiguity for the same provision. The Court decided that the interpretation least favorable for Mr. Röser should prevail in order to diminish the divergence between the Member States. This meant that Mr. Röser could not legitimately rely on the meaning of the provision, even though it might not have been wrongly interpreted.
As mentioned before, these two presented cases illustrate the conflict between the political logic (preserving the interests of the Union) and the subjective logic (ensuring individuals foreseeability) of the principle of legal certainty. When looking at these cases, it seems that the CJEU, as the author states, is more keen to serve the political logic rather than preserving its subjective logic, even though they are both to be covered by said principle. This is proven through the fact that in both cases, the interest and predictability of law for the legal subject was not chosen as prevailing over the interests of the Union. Instead, ensuring uniformity of EU law was considered more important.
From Certainty to Trust
Nevertheless, the early judgments of the CJEU stated that the principle of legal certainty required that “rules of law be clear, precise and predictable as regards their effects”. Thus, it is reasonable to state that the Union, through its judiciary branch, has been tempted to follow and keep alive the Cartesian logic of legal certainty, and therefore the idea of a full and complete foreseeability of EU law. It is possible to find two main reasons behind this. First of all, since the scientific revolution of the 17th century, there was the thought that the certainty and foreseeability of life once assured through God was from then on to be given through law, which is also the current conception. Moreover, in order to receive the needed legitimacy and effectiveness from the Member States, the young Community had to reassure them from the certainty of its action, therefore implementing the idea of a judiciary power acting as the “mouth of the law”.
More recently, the CJEU has been unable to rule in favor of the application of one logic only. Therefore, Van Meerbeeck makes a two-steps suggestion in order to avoid the inconsistency regarding the judicial conception of the principle of legal certainty. The first step would be to stop referring to the Cartesian logic. Indeed, obvious reasons are strongly opposed to the argument that law is and should be free of any uncertainty. The first one regards the myth and illusion that the legislator, acting as some kind of legal god, can see every situation and predict every legal outcome. Even more, this logic is to be avoided since the EU itself sometimes promotes uncertainties, even if unintentionally, through the adoption of one single act that is supposed to exist in 24 languages and integrate the political opinion of 28 member states that can be fundamentally distinct from one another.
The first step completed, the CJEU should try and inch closer to the fiduciary logic and the idea of “trust” instead of the one of “certainty”. According to this view, EU law is there to give a legal framework surrounding a myriad of situations, bearing in mind that each of them can contain a “potential event”, a fact creating its singularity. This is why, to counter the complexity of social relations, the concept of “trust” with the one of “expectations” (what human being can expect the law to be, but also what lawmakers can expect as a reaction from the subjects of law) is the most reasonable solution as it applies the principle of legal certainty with more flexibility.
From a critical point of view, Van Meerbeeck’s explanation on the conflict between the political and subjective logic, and in turn the Cartesian logic is interesting since the first two mentioned logics hinder the aim of the Cartesian one, which is to ensure absolute certainty of law. This goes to show that the Cartesian logic, although reasonable in theory, does not render any sustainable application in practice. Thus, it seems more realistic to follow the suggestion provided by the author, especially due to the different and conflicting interests of both the EU and the individual.
Nevertheless, the fiduciary logic is not without its own complications. It may not be able to guarantee legal certainty entirely since it relies on abstract notions such as “expectation” and “trust”. Those notions have to be defined and mutually correspond with the understanding of which the State and its individuals may have of those concepts before answering the question of whether a provision is legally certain or not. Thus, expectations to the meaning of law a priori may not, in some event, be satisfied and thus legal certainty would not be attained. For how could the legislator, or the judiciary truly predict all supposedly foreseeable expectations deriving from individuals beforehand? Moreover, the transition from the Cartesian logic to the fiduciary logic would risk constituting a transition of legislative powers, from the control of the legislator towards the judicial branch.
To conclude, Van Meerbeeck sheds light on an important issue of the case law of the CJEU, which should not be taken for granted, given its constitutional value as a general principle of EU law which merits for further studies.
Negin Hamedanian Torghi, Pierre Lempereur, Alexandra Mihaltan