The European Court's Brokered Legitimacy: Conceptualising the Sociological Legitimacy of the Court of Justice of the European Union during the OMT Saga

The Euro Area crisis raised numerous questions about the legitimacy of the EU as a justified power-holder. If the legitimacy of the European Commission, European Parliament and the European Central Bank were widely commented and criticized in EU studies during the Great Recession, the Court of Justice of the European Union (CJEU) remained absent in these debates, even if the Court was the heart of tensions surrounding the adoption of the European Stability Mechanism and the use of "non-standard measures" by the ECB. This paper aims at developing a conceptual framework to understand the legitimacy of the CJEU and will use the Euro Area Crisis as a crucial case study. Scholars usually distinguish between the normative side of legitimacy (what standards ought to be respected by the power holder) and its sociological side (how the “audience” believes an authority to be legitimate): if the former is well developed and has been a raison d’être in EU legal scholarship for decades, the latter received scarce attention in the literature. If the relationship between the CJEU and national courts (with a focus on the preliminary reference procedure) is still, albeit with diverging results, the focus of inquiries on the Court, it tells us little about what the ‘audience’ of the Court is nor does it identify the key stakeholders judges need to get support from. A way to assess sociologically the legitimation processes of the CJEU is to look at how judges justify themselves their decisions and from whom they seek to get approval of their actions. Based on judges’ own writings and the newly published list of external activities of the members of the Court, this paper argues that EU judges interact mainly with a specific audience – corresponding to Vauchez’ “European legal field” (ELF) – via various means to explain their actions and secure an approval they may or not receive with only the publication of judgements. ELF players, acting as legitimacy brokers, also play a role in shaping the Court’s case law via various channels (academic articles, government briefs, conference presentations) and mediate the CJEU’s actions to the broader citizenry (students, domestic legal professionals and public at large). This interactive process allows the Court to gauge the response of the field and to side with the majority or to contain potential controversy within the ELF, fine-tuning eventually its case-law if the majority of stakeholders still disagree with the Court’s doing. The Euro Area crisis constituted a challenge to the Court’s legitimacy, especially regarding the existence of the Outright Monetary Transaction programme (OMT). The period between the referral of the Bundesverfassungsgericht and the final acceptance of the German judges to declare OMT compatible with the Basic Law will be used to display the various interactions between judges and their partners to approve a common solution, despite the unprecedented challenge to the Court’s legitimacy raised by the first ever preliminary reference issued by the German constitutional court.