In the May 16th edition, the Frankfurter Allgemeine Zeitung lets us have it right between the eyes: ‘Is the ECJ ruling justified?’. This question, enclosed in a polling-feature, regarding Opinion 2/15 on the EU’s powers to conclude the EU-Singapore Trade Deal, is intriguing – perhaps even revolutionary. Probably for the first time, a European newspaper included internet polling to shed light on the public debate over ECJ decision making. Such a ‘popular judicial culture poll’ works two ways. It is not only a useful public opinion indicator, it also encourages readers to think about the European Court of Justice (ECJ) not as some alien institution but rather as part of the national public debate. As I will argue in this blog post, this popular judicial poll is one of the most recent ‘bottom-up’ signs of alignment between European judicial cultures, that is, the ideas and practices regarding judging and judicial organisation which have developed over time.
Two questions immediately present themselves: how does this new feature function and what does it look like? To begin with the first question: after you have read the polling question ‘Is the ECJ ruling justified’, you can choose between two options: ‘Yes, it [trade deals] must have national approval’, or ‘No, it is hurting the case for free trade’. After picking a side, you see the percentage of Yes and No responses. Whenever you find yourself on the side of the minority, a notification appears. Regarding the second question: a picture paints a thousand words.
But there is more to this than meets the eye. Media coverage impacts the public perception of the ECJ. Newspapers ‘color’ public knowledge by framing Court’s decisions or by not writing about them at all. We should acknowledge that reading a newspaper is not just amusement. It leads people to adopt shared arguments and it shapes conversation topics. Benedict Anderson, in his groundbreaking Imagined Communities: Reflections on the Origin and Spread of Nationalism, argues that newspapers are the technical means for “re-presenting’ an imagined community’, such as nation states or the European Union (an imagined community in the making). They are imagined communities because the members will never know all of their fellows. Anderson explained the idea this way: each newspaper reader ‘is well aware that the ceremony he performs is being replicated simultaneously by thousands of others of whose existence he is confident, yet of whose identity he has not the slightest notion.’ This knowledge of others reading exactly the same suggests communality, which is also crucial to the shaping of (judicial) cultures. And there is more: by letting readers take a stance the Frankfurt Allgemeine prompts people to identify with the ECJ, a court which is situated miles away.
Courts and eye-catching headlines
This is an arresting thesis, even though there is no newspaper today that reaches the majority of Europeans. The readership of the ‘great European dailies’, from Le Monde to La Repubblica remains overwhelmingly national. However, they share ideas about what is the best angle on a given topic. Over the past weeks, the same frame of the ECJ Singapore-ruling popped up in European newspapers. The eye-catching headlines that appeared in the May 16th edition of Le Monde and the Frankfurter Allgemeine are exemplary: ‘Free trade: the EU does not have exclusive competence to conclude ‘new generation’ trade agreements’ (Le Monde) and ‘National parliaments can veto EU trade deals’ (FAZ).
Viewed that way, the ECJ seems like a defender of national sovereignty. That is not to say, necessarily, that this frame resembles the truth. It is only a perception, an interpretation of a court’s ruling within a particular judicial culture. These headlines imply, for example, far more positive connotations with the nation state than the Financial Times heading ‘An easier path for EU trade agreements’. As usual, the truth lies somewhere in the middle. The ECJ ruling in question maintained that some issues related to investment in a trade deal with Singapore needed unanimous backing by member states, not all issues.
On-the-ground knowledge of the public debate
This specimen of popular judicial knowledge, however, is part of judicial culture(s). It goes without saying that ideas regarding judging and judicial organisation are affected by public opinions. Just like other forms of ‘shared’ thinking, judicial culture is never an act of creation ex nihilo: it always draws on available information.
All this might make you wonder: why is this judicial poll being introduced now? It is surely no coincidence that the Frankfurter Allgemeine selected this ECJ decision to try the polling feature. The poll is popular, in part, because of its dramatic perspective – between nation states and European Union. And drama sells.
However, with this feature, the traditional relationship between legal authority and popular will has been upended, making it easier for the broader public to give voice to their concerns. Of course, the Frankfurter Allgemeine is just one newspaper, and a unique one. Drawing general lessons from its experience is tricky. Nevertheless, as one of the flagships of European journalism, the Frankfurter Allgemeine has provided something of a bright spot in setting up a poll which allows readers to give their opinion on (European) judicial decisions. This, in turn, opens up new paths for legal scholarship. If other newspapers follow suit, academics will be served with an instrument that generates regular, on-the-ground knowledge of the public debate regarding ECJ decision making.