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

Abstract

The European Union is unique among jurisdictions in having constitutionalized its policy goals and methods, by embedding these in the Treaties. As a result, the legislature is far more constrained in its activities than is the case in other constitutional orders. Yet the Treaties are indeterminate, and it is the Court of Justice which interprets and delimits them, and instructs the legislature on how and to what extent it may pursue them. There is, in substance, a principal-agent relationship between the Court and the EU legislature, enforceable by the Court's capacity to annul legislation contrary to its preferences. An examination of internal market legislation shows that indeed it consists of codification of prior case law. The judicial constraints on the EU legislature are sufficiently tight that the legislature is more akin to a subordinate implementing regulator than to an autonomous political policy-maker.

Free movement, the welfare state, and the European Union's over‐constitutionalization: Administrating contradictions

“…As a consequence of these peculiarities, EU law and ECJ jurisprudence are very detailed and indeterminate at the same time. As Davies (, p. 848) argues, this makes the ‘Union legislature … more akin to that of a specialist regulator than a national parliament’, the Court acting as its de facto ‘principal’. EU policy, thus, is much more shaped by the EU's constitution – as interpreted by the Court – than is true at the national level.…”

“…Case law of the Court has been an important driver of European integration. In developing this constitution of the EU further through different rulings, the ECJ influences EU legislation that has to follow its Treaty interpretation (Davies ). Largely ignored in research so far, being directly effective, case law of the Court also impacts member state administrations.…”

The European Court of Justice and its political impact

“…Quantitative studies have analysed the influence of member state observations on the Court's jurisprudence (Carrubba and Gabel 2015;Carrubba et al 2008;, and qualitative case studies have traced political corrections in response to ECJ case law (Martinsen 2015a). Other leading scholars have questioned the empirical validity of these claims (Davies 2016;Stone Sweet and Brunell 2012). In this review essay, we enquire into the theoretical significance of recent empirical work on the ECJ.…”

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

“…Flipping around the Principal-Agent theory, Davies (2016) takes the interpretation of the ECJ's activism a step further and argues that the degree of control the ECJ has over the EU Legislature is so substantial that the ECJ can be qualified as the Principal while the EU Legislature (Council and Parliament) in fact acts as agent of the Court. As the The ECJ's Construction of an EU Mobility Regime-Judicialization and the Posting of Third-country Nationals member states have written the EU's core normative principles as well as its policy goals into the treaties (Blauberger and Schmidt, 2017;Grimm, 2015), European law merely implements a constitutionalized plan (Davies, 2016). And as the ECJ interprets the Treaties, the legislatureas agent of the Treatiesis an agent of the Court.…”