Judicial Influence on Policy Outputs? The Political Constraints of Legal Integration in the European Union

Abstract

The ability of courts to generate political change has long been debated in national, comparative and international politics. In the examination of the interaction between judicial and legislative politics, scholars have disagreed on the degree of judicial power and the ability of politics to override unwanted jurisprudence. In this debate, the Court of Justice of the European Union (CJEU) has become famous for its central and occasionally controversial role in European integration. This paper examines to what extent and under which conditions judicial decisions influence European Union (EU) social policy outputs. A taxonomy of judicial influence is constructed, and expectations of institutional and political conditions on judicial influence are presented. The analysis draws on an extensive novel dataset and examines judicial influence on EU social policies over time, i.e., between 1958 and 2014, as well as for case studies of working time regulations and patients' rights. The findings demonstrate that both the codification and overriding of judicial decisions are unlikely in the contemporary EU-28 of fragmented politics. However, modification and non-adoption constitute other political responses to attenuate unwelcome jurisprudence and constrain the legislative effect of judicial decisions.The ability of courts to generate political change has long been debated in studies of national, comparative and international politics (McCann, 1994;Stone Sweet, 2000;Conant, 2002; 1 For contact, dm@ifs.ku.dk. This project is supported by Danish Research Council project no. 10-079675/FSE.2 Rosenberg, 2008;Carrubba et. al, 2012;Carrubba & Gabel 2015;Pollack 2003;. Are courts powerful generators of political change? Can politics override unwanted judicial decisions? What might condition courts' ability to produce broader change? The interaction between judicial and legislative politics has been examined in studies of American, comparative and European Union (EU) politics, alternating between a 'dynamic' and a 'constrained' court view. A growing body of literature presents a dynamic-court view, according to which a judicialization of politics has occurred in which courts have become increasingly powerful political actors in many contemporary democracies (e.g., Stone Sweet, 2000;Cichowski, 2007;Kelemen, 2013;Alter, 2014). A global trend toward constitutional supremacy has placed constitutional courts in the position of powerful institutions of modern democracies. Parliamentary sovereignty and majoritarian rule are no longer the constitutive principles of democratic politics (Stone Sweet 2000). According to this view, courts are key drivers of change; and in practice, politics is unable to override unwanted jurisprudence.Conversely, the constrained-court view deems the judiciary's broader effect to be limited and conditioned by a large set of factors. Thus, courts cannot be independent movers in establishing change (Conant, 2002;Rosenberg, 2008). Law depends on politics to execute its decisions. Politics can overtur...

The European Union Legislature as an Agent of the European Court of Justice

“…Nevertheless, the legislature has a significant weapon which it may use to redress this imbalance: if it dislikes what the Court says it may simply take no action, or limit the scope of its legislation (Conant, ; Martinsen, ), for there is no mechanism for compelling the legislature to adopt laws. The judgments will then lose much impact (Conant, ).…”

“…Martinsen has suggested a third category, modification, where the legislature does not rebuff the Court directly but amends the results of the case law to some non‐trivial extent (Martinsen, ). However, for the purposes of considering the Court–legislature relationship this category is analytically undesirable, even misleading.…”

“…Firstly, discussion of the Court's influence on European integration has tended to focus on its direct impact on Member States, via the direct effect of its case law (Stone Sweet, ; Kelemen, ; Alter, ; Cichowski, ). There is far less discussion of how the Court may exert indirect power over Member States, via its capacity to steer European legislation (Wasserfallen, ; Martinsen, ).…”

“…This absence is remarkable because one of the more persuasive critiques of Court power is that judgments do not, in practice, have the same transformative effect on Member States as does EU legislation (Conant, ; Martinsen, ). It often takes a directive or regulation to make Member States actively integrate European legal rules.…”

“…Secondly, it has been argued that if the Court deviates too profoundly from the preferences of the legislature it will be corrected by new laws (Carruba et al ; Martinsen, ). That suggests a Court whose policy role is clearly subordinate to that of the political institutions.…”