Gerard Conway's thought-provoking study starts from the familiar distinction between two broad types of judicial interpretation: the literal or originalist versus the purposive or teleological approach. The Court of Justice of the EU, Conway argues, relies on the second type to a greater extent than most other courts. More specifically, he demonstrates that the Court of Justice has shown a marked tendency towards a meta-teleological approach by which the Court is less concerned with specific objects and aims of legislation or specific treaty provisions but refers to the purposes of the EU treaty order at a very high level of systemic unity. This has favoured and enhanced the tendency toward further integration and harmonization in Union law.

Conway does not commit himself to the view that the Court adopts a markedly different approach from most others courts in all, or even most cases; rather the Court's meta-teleological approach has been most evident in a relatively restricted number of key cases concerned with the division of competences between the Union and Member States, which have had a disproportionate and absolutely crucial effect on the development of Union law. Through the development of a de facto doctrine of precedent the Court has reproduced and entrenched the key principles laid down in these fundamental ‘constitutional’ cases throughout the entire body of Union law. As a result, it has driven the borderline between Union and national law far more deeply into the realm of national competences than many of the original signatories of the Treaties might have anticipated or than many of the peoples of the EU would voluntarily endorse.

Conway maintains that this is problematic from the viewpoint of democracy, which remains the official justificatory cornerstone of both the national political systems and the EU itself. Courts, he reminds us, are not democratically endorsed, and where they are asked to interpret treaties or legislation they should be guided above all by the actual language of the words used. Judicial independence in this context, he is adamant, should not be confused with unrestrained judicial power. Instead, courts are, or perhaps should be, constrained by the ‘objectivity’ of the law. Conway's hopes in this regard might be a touch over-optimistic, but he is surely right when he warns that every step away from the ordinary meaning of legislation is a dangerous one as it is also a step away from the language adopted or endorsed by democratically accountable bodies.

Conway's book does not purport to be comprehensive or to trace the Court's approach in most areas of Union law. Instead, it focuses on a number of case studies across select areas of law. He convincingly shows that in those key cases, as indeed in many others, the Court enjoyed very considerable discretion or a wide margin of choice between alternative interpretative solutions and thus between very different outcomes. The Court's meta-telelogical approach has meant that it has generally favoured an integrationist outcome. Had the Court adopted a more literal approach the outcome would have been different in many cases. The overall impact on the development of Union law would have been decisive. The Court's integrationist predisposition, Conway argues, is evident at many levels: not only at the level of meta-teleology, but in the choice it commonly has in statutory interpretation between several potentially relevant interpretative criteria and between different levels of generality when laying down or redefining a judge-made rule. The reason for this lies in the fact that judicial interpretation, whether by the Court of Justice or any higher or constitutional court, lacks clear interpretative criteria and a strict hierarchy governing their application. It follows that judges always enjoy discretion. The Court of Justice, Conway clearly believes, exercises that discretion strongly and consistently in one direction: the promotion of further EU integration.

Conway's study is timely, well argued, intelligent and provocative. In my view, anyone interested in the question of how the Court of Justice approaches its judicial function and how it justifies its decisions would profit from engagement with it. Conway's conclusions might be controversial, but they have to be taken seriously; and he provides powerful evidence and observations to substantiate his views. At the same time, Conway's study takes a few things for granted, and this might be the place to spell out some of the assumptions which highlight important features of legal reasoning and its limits. For those limits are often not confined to the specific approach of the Court of Justice. Indeed, that approach might have more in common with that of other courts than Conway might be taken to suggest.

Legal uncertainty is a pervasive and inescapable feature of primary legal materials and judicial reasoning alike and has its origin in a combination of linguistic vagueness, value pluralism, ‘gaps in the law’ and rule instability as a specific source of uncertainty which is associated with precedent. Legal uncertainty is not only a common feature of all primary legal materials including judge-made rules, but an inescapable feature of the process of judicial interpretative argumentation which is designed to, or purports to, resolve primary legal uncertainty through the application of techniques and criteria of statutory and case law interpretation. The application of these techniques and criteria, however, cannot escape, and is itself governed by, uncertainty.

The EU treaty framework and much of the secondary legislation made under successive treaties embody political compromises which are characterized by a high degree of conceptual and norm uncertainty in EU law. Conway emphasizes norm collision as a feature of EU law, which reflects the fact that the EU treaty framework and much of the secondary legislation made under successive treaties incorporate political compromises, whereby the EU Member States effectively left it to the Court of Justice to find the best interpretation of European integration evolving over time. Detailed analysis of the Court's case law suggests that in that process the Court of Justice's reasoning does not differ fundamentally from that of other higher courts, especially higher constitutional courts, in that the Court relies on broadly the same kinds of interpretative arguments and techniques of case law interpretation as national constitutional courts. In general terms, the Court of Justice's interpretative reasoning is best understood in terms of a tripartite approach whereby the Court justifies its decisions in terms of the cumulative weight of purposive, systemic and literal arguments. That approach is more in line with orthodox legal reasoning in other legal systems than is commonly acknowledged and differs from the approach of other higher courts only in degree.

In Conway's view, the Court of Justice attaches comparatively less conclusive status to literal arguments than almost all other higher courts. The ordinary meaning of statutes is often conclusive in national law. The Court of Justice, too, attaches considerable importance to it; but ordinary meaning is somewhat less likely to be conclusive in Union law and somewhat more likely to be displaced by purposive considerations in the deliberations of the Court of Justice. The Court's tripartite interpretative approach allows the Court to justify its decisions by reference to the literal, teleological and systemic criteria of legal argumentation, with no automatic primacy accorded to literal arguments, although this does not mean the Court will lightly depart from the clear meaning of treaty or legislative provisions. In part the nuanced difference in the judicial approach of the Court of Justice and most national courts can be accounted for in terms of the specific features of the primary materials of the EU legal framework. At the same time the tripartite approach leaves the Court considerable discretion in determining the relative weight and ranking of the various interpretative criteria from one case to another. The Court's exercise of that discretion in turn can be best understood in terms of the combination of constraints imposed by the accepted justificatory discourse and certain extra-legal steadying factors of legal reasoning, which include a range of political factors influencing the Court's underlying motivation, such as sensitivity to Member States’ interests, political fashion and deference to the ‘EU legislator’. Case law analysis across most areas of EU law suggests that the ECJ has used its interpretative discretion to resolve norm pluralism and vagueness in the Treaties broadly in favour of the meta-objective or overall goal of ‘ever closer’ union objective of the EU Treaties through the dual mechanism of promoting the uniform application of EU law combined with the incremental extension of equal treatment for EU citizens, subject, however, to i.) regard to the political, constitutional and budgetary sensitivities of Member States, ii.) depending on the constraints and extent of interpretative manoeuvre afforded by the legal uncertainty of the case in issue as determined by the degree of linguistic vagueness of the provisions in question, the relative status of and potential conflict between the applicable norms, and the clarity and hierarchical ordering between the second-order interpretative methods designed to resolve first-order legal uncertainty, and, finally, iii.) bearing in mind the largely unpredictable personal element in all adjudication. Conway's book does not state its conclusions in exactly these terms, but they might be said to be implicit in his analysis or a logical progression or detailed elaboration of what he says with one proviso.

Conway makes a very convincing case that the Court of Justice's decision-making is characterized by a strong communautaire tendency. What, perhaps, he fails to appreciate is that, over many decades, the Court has shown remarkable political acumen. It often starts tackling a key issue with a strong integrationist claim by laying down a radical theoretical principle—an integrationist stance in theory which may well be combined with a degree of deference to Member States on the exact facts in the case. In subsequent cases the Court often fine-tunes its approach: its overall direction remains integrationist but the Court retains flexibility to modulate or adjust its decisions on a case-by-case basis. There is no doubt that Conway's arguments will repay close study. Given the complexity of the subject matter and many of the issues it is remarkably accessible and clearly developed.

Conway favours a literal interpretation as laws and treaties are agreed by national governments which are democratically accountable. Judges are not. A ‘creative’ judicial approach is more likely to depart from legislative intention than an originalist approach. At the same time, however, and this Conway neglects, national political processes seem almost as undemocratic as judicial decision-making: governments rarely do what even majorities in their own countries want, and popular participation is minimal and at best reactive anywhere outside Switzerland.

Which facet of the comprehensive lack of democratic accountability will ultimately be more problematic: the apparent lack of electoral choice at national political level or the lack of democratic control over potentially activist or interpretatively ‘creative’ judicial bodies? This is a question which is difficult to answer, for they often are closely related. An ideal illustration of this fact is the ‘synchronized’ politico-juridical reaction to the announcement by ECB President ‘Draghiavelli’ in August 2012 that the ECB will engage in unlimited purchases of government bonds from the embattled eurozone members. Despite the evident unlawfulness of the ECB's actions,Footnote ¹ the German and other national governments as well as the European Commission have made clear that they have no intention of initiating proceedings against the ECB before the Court of Justice. Where there is no plaintiff, the law can be ignored without impunity. The reason for the effective suspension of the rule of the law in the EU since the outbreak of the euro debt crisis, may not necessarily or even primarily lie in judicial creativity or bias by the Court of Justice; it may result from deliberate and persistent breaches of the law by the Member States and their determination to turn a blind eye to treaty violations by the Members States or EU institutions.

Conway does not give the degree of consideration to the anti-democratic nature of much of national politics that perhaps that malaise deserves. Yet, his reservations about the dangers of judicial politics deserve to be taken seriously. Illustrations can be found both in recent decisions by the German Constitutional Court and the EU courts.

In Pringle the Court of Justice dismissed a challenge to the European Stability Mechanism (ESM) Treaty between the members of the eurozone. The ESM provides a mutual assistance fund by which eurozone members provide loans and guarantees for financially embattled euro governments. The Court upheld the Treaty notwithstanding the fact that Article 125 TFEU expressly prohibits that eurozone governments stand in for each other's debts. In justifying its decision the Court effectively turned the natural meaning of that provision on its head. The ruling is an ideal example of Conway's main thesis but also illustrates the wider truth that, in emergency situations where the interests of the executive and the established political institutions are engaged, the Court will not hesitate to ‘bend’ the rules and both defy all the ordinary conventions of legal reasoning if need be and disregard the natural meaning of plainly and clearly expressed provisions as the situations require.

That such judicial deference to the executive is not confined to the EU courts is perhaps a point worth stressing. Before the Court of Justice handed down its judgment, the German Constitutional Court had to assess the lawfulness of the ESM under the German Basic Law. The highest German court gave a powerful demonstration of judicial bias and deference to the executive and political correctness when it in effect decided in its ESM judgment of 12 September 2012 that unlimited liability for the debts of other eurozone members was somehow compatible with the constitutionally protected budgetary autonomy of the German Bundestag provided the Bundestag itself voted to accept such liability. The Court here in effect went back on its previous Lisbon and EFSF judgments, in which it had held that financial commitment made by the German government must not deprive it of the room to manoeuvre in determining the effective level of public expenditure in the central areas of national sovereignty.Footnote ² The Constitutional Court is yet to rule on the legality of the unlimited bond buys programme announced by ‘Draghiavelli’ in the summer 2012.

However, there is no doubt that the Court will not rule against the ECB. First, the German government has expressed support for the programme, and the Court has never ruled against the Government on an EU-related issue. Second, in early October 2012 the Handelsblatt reported that President Voßkuhle had hinted that his Court is likely to delay its judgment on the ECB's actions until next year due to other urgent business and lack of judicial time. At a social gathering with students in Oxford President Voßkuhle was less cryptic: his Court would somehow avoid ruling against the ECB, notwithstanding its previous indication to the contrary at para 278 of the ESM judgment.

Integrationist bias, it seems, is as common an attitude in certain national courts as it may be in the Court of Justice. This complements but in no way diminishes Conway's controversial but helpful examination of the issue. What Conway does not fully convey is that the EU integration process has been driven not only by judicial activism but by the acquiescence, and at times overt contempt for democratic principles by national governments. There are three aspects to the integration process. First, there is the integrationist predisposition of the Court of Justice; second, the failure of national constitutional courts to take themselves, their national constitutions and the law itself seriously. But judicial disregard for the law is one failure of the political systems we live under. The other is the persistent failure of governments to take their own citizens seriously. Conway's highly intelligent book provides an excellent entry to the study of the decision making of the Court of Justice. He shows that the Court has a predisposition towards a meta-communautaire reading of the treaties in those cases where it matters most.