The European Court of Justice, National Governments, and Legal Integration in the European Union

Abstract

We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser the likelihood that the Court will tailor its decisions to the anticipated reactions of member governments. Second, the greater the domestic costs of an ECJ ruling to a litigant government, the lesser the likelihood that the litigant government will abide by it (and hence the lesser the likelihood that the Court will make such a ruling). Third, the greater the activism of the ECJ and the larger the number of member governments adversely affected by it, the greater the likelihood that responses by litigant governments will move from individual noncompliance to coordinated retaliation through new legislation or treaty revisions. These hypotheses are tested against three broad lines of case law central to ECJ jurisprudence: bans on agricultural imports, application of principles of equal treatment of the sexes to occupational pensions, and state liability for violation of EU law. The empirical analysis supports our view that though influenced by legal precedent, the ECJ also takes into account the anticipated reactions of member governments.

Agents or Trustees? International Courts in their Political Context

“…Yet elsewhere Garrett has argued (counter to most P-A presumptions) that the ECJ will have greater autonomy when there is greater clarity in the law (because the ECJ can use the clarity for political cover) and when its case law is well established (Garrett, Kelemen, and Schulz 1998). So is the ECJ autonomous or not?…”

A Judicialisation of Healthcare Policies in Denmark and Spain? The Universalist Healthcare Model Meets the European Union

“…According to Hirschl, bureaucratic disregard or reluctant implementation of unwelcome jurisprudence constitutes a 'lethal' political response to judicialisation (Hirschl 2008, 110;see also Rosenberg 2008;Garrett, Kelemen, and Schulz 1998). At the level of the European Union, scholars have disputed the extent to which legal integration spurs more general change in the EU member states and have criticised the assumption that CJEU "rulings are automatic catalysts for policy change and that innovative legal interpretation prompts wideranging reforms" (Conant 2002, 15).…”

Principal-Agent Analysis and International Delegation: Red Herrings, Theoretical Clarifications and Empirical Disputes

“…and typically by an assumption that PA analyses, once again, negate the possibility of agents enjoying autonomy and influence from their principals. The most common cause of this misunderstanding, it seems, arises from scholars who extrapolate too readily from the very early work of Garrett (1992) and Garrett and Weingast (1993), who drew upon PA analysis in a very preliminary way that almost certainly did underestimate the autonomy of the ECJ and other international agents; in later work, however, Garrett and his colleagues retreated from this extreme position, and began to generate analyses that were more discriminating in identifying the possible sources and limits of ECJ discretion (Garrett 1995;Garrett, Schulz and Kelemen 1998). More broadly, while it may be true that individual scholars bring particular biases to the study of supranational institutions like the ECJ (Kassim and Menon 2003), these biases are extrinsic to PA analyses, which when employed properly allow us to problematize, rather than prejudge, the autonomy and influence of international agents.…”