Transition from Austrian to American Model of Judicial Review in the European Court of Justice

Abstract

Legal scholars distinguish between two main models of judi cial review — the American model and Austrian (European) one. In the American model, the scope of discretion and the relative role of the constitutional court in the political system are noticeably higher than in the Aust rian one. The author traces the history of the origin of these two models, explains the differences between them and raises the question of whether the boundaries between these two ideal types are too rigid or whether a gradual transition from the Austrian model to the American one (without formal constitutional reform) is possible. The author provides the answer drawing on the real case of such transition that occurred in the European Court of Justice in the 1960s. This case is unique precisely because the change in the system of the judicial review was the result of the gradual “migration” from one model to the other, rather than the result of an outside reform. Similar to Baron Munchausen, who pulled himself out of the swamp by his own hair, the European Court of Justice was able to independently, through its own decisions, alter the order of the judicial review in the European Union, bringing it closer to the American model. In the final part of the article, the author places this transition into a broader historical context, demonstrating that the success of the construction of a new European legal order was not predetermined and consisted of the decisions taken by the judges in each specific case. However, any national constitutional court finds itself in a similar situation after a change of the political regime. As a rule of thumb, new constitutional courts are created according to the Austrian model and are institutionally similar to the legislative branch of government, but in order to make judicial review efficient, they need to transform into the American model, becoming more similar to the courts of general jurisdiction. In this respect, the experience of the European Court of Justice can be extremely useful for them.