The European Court of Justice and the Policy Process

Abstract

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

The Political Side of EU Annulment Litigation

“…Yet if one acknowledges that case law creates legal path dependence (Schmidt 2012), one has to recognize the highly constraining power of the existing legal stock on judges' decisions. We agree in this context with Susanne K. Schmidt, who has pointed out the crucial role played by litigants in activating case law to their advantage and, thereby, pushing judges into forging and consolidating a given legal path (Schmidt 2012(Schmidt , 2018.…”

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

“…Because this conception bears similarities to other indirect judicial impacts that can be lumped under the umbrella of "radiating," "general," or "feedback" e↵ects (Galanter 1983, Barnes 2019, it is worthwhile to distinguish the shadow e↵ect of courts from related socio-legal concepts, as summarized in Table 1. exogenous or endogenous private actors/policymakers take the judicial rules of the game as given or can seek to shape these rules exogenous policymakers take the judicial rules of the game as given exogenous private actors take the judicial rules of the game as given endogenous policymakers can seek to shape the judicial rules of the game First, unlike the direct and indirect ripple e↵ects of rendered judicial decisions central to implementation or "gap" studies (Erkulwater 2006, Rosenberg 2008, Blauberger and Schmidt 2017, Schmidt 2018, Barnes 2019, we focus on anticipatory actions preceding rulings that may never be rendered. The trigger of change thus shifts from litigation and judicial review to the mere prospect of adjudication.…”

The ECJ's Construction of an EU Mobility Regime‐Judicialization and the Posting of Third‐country Nationals

“…The ECJ's rulings have an expansive effect over time, and constrain member states to deviate from policy choices made in the past. Moreover, along with Davies () and Schmidt () they argued that existing case‐law often forms the basis of the Commission's legislative proposals. Additionally, other authors do not qualify the Court's alignment with member states' preferences as a sign of judicial restraint, but rather as ‘a manifestation of the inter‐institutional dialogue and an expression of the institutional balance in action' (Hatzopulos, , p. 107).…”