The Preliminary Reference Process: National Court Implementation, Changing Opportunity Structures and Litigant Desistment

Nyikos, Stacy A.

doi:10.1177/1465116503004004002

Cited by 8 publications

(8 citation statements)

References 3 publications

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“…In addition, there is an over-representation of the State insofar as often it is the body against whom an EU law action must be brought. 9 Nyikos found, for example, that over half of the Court rulings lead to settlement by the parties without the need for further national court intervention (Nyikos 2003). 2010: 94), to which must be added time spent in the domestic legal system.…”

Section: The Arenas Of Eu Judicial Politicsmentioning

confidence: 99%

The reference points of EU judicial politics

Chalmers¹,

Chaves²

2012

Journal of European Public Policy

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Explanations of the dynamics of EU judicial politics must also account for its incidence, namely when and in which sectors litigation of EU law and ECJ judgments occur. This incidence, it is suggested relies on a relationship between three arenas, those for norm-setting, litigation and judgments, as events in each of these arena conditions possibilities for action in the others. This paper analyses the relationship between these arenas through a study of all 2007-9 preliminary rulings and finds EU judicial politics characterised by two predominant dynamics. 'Patrol norms' dedicated to securing common policies give rise to low salient judgments dominated by transnational enterprise and national administration litigation. 'Thickly evaluative norms' are concerned with articulating certain values. Dominated by litigation by domestic undertakings and non-commercial actors, these norms generate the Court's salient judgments.

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Section: The Arenas Of Eu Judicial Politicsmentioning

confidence: 99%

The reference points of EU judicial politics

Chalmers¹,

Chaves²

2012

Journal of European Public Policy

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“…Why did the Commission or the national litigant bring any suit in the first place (e.g., Börzel 2003)? Did the national judge, in its preliminary questions, signal to the Court the type of answer it wished for in return (e.g., Alter 2001;Nyikos 2003Nyikos , 2006? What effects do rulings have on legislative processes and outcomes (e.g., Cichowski 2004Cichowski , 2007Jupille 2004;Kelemen 2006Kelemen , 2010.…”

Section: Qualitative Analysismentioning

confidence: 99%

How the European Union's Legal System Works and Does Not Work: Response to Carruba, Gabel, and Hankla

Sweet

2010

SSRN Journal

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In a recent paper published by the APSR, Carrubba, Gabel, and Hankla claim that the decisionmaking of the European Court of Justice (ECJ) has been constrained-systematically-by the threat of override on the part of Member States, acting collectively, and the threat of noncompliance on the part of any single Member State government. They further purport to have found strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory. Both claims conflict with prior, serious empirical research on these issues. In this paper, we reject their claims on the basis of the same data. We show that the threat of override is not credible, and that the legal system is activated, rather than paralyzed, by Member State noncompliance. In the small number of important cases in which the Member States formally sought to curb the Court and constrain future developments, they failed miserably. Moreover, in a head to head showdown between the Commission (and Neofunctionalism), on the one hand, and the Member States (and Intergovernmentalism) on the other hand, the Commission wins in a landslide. The data also provide evidence in support of a theory of the ECJ's "majoritarian activism": when Member States encourage the Court to "punish" defendant Member States for non-compliance, the ECJ tends to do so. In such cases, the Member States work to enable the Court, not to "constrain" it. In a recent paper, "Judicial Behavior under Political Constraints: Evidence from the European Court of Justice," Carrubba, Gabel, and Hankla [hereinafter CGH] (2008) make three provocative claims. First, CGH (436) assert "that much of the evidence that scholars employ to evaluate judicial influence [in the EU] is uninformative," and they claim that they have developed a new methodology that solves inference problems that afflicted all prior research. Their method involves examining the influence of the amici briefs of the Member States and the EU Commission on the rulings of the European Court of Justice [ECJ]. Second, having analyzed the Court's holdings on some 3,176 legal questions over an 11-year period (January 1987-December 1997), 1 the authors declare that the ECJ has been constrained-systematically

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“…The scholarship has conclusively shown that the legal system of the European Union (EU) has pushed integration further than member states were prepared to go on their own, under extant decision-rules, provoking a process of adaptation on the part of EU legislators and national officials (Cichowski 2007;Mattli and Slaughter 1998;Stone Sweet 2004). A second strain has documented the interactions of the ECJ and the national courts (Alter 2001;Nyikos 2003;Panke 2007), processes resulting in the gradual 'Europeanization' of national legal orders. Our focus here is on the judicial politics of rights protection, specifically on how German courts and the ECJ have interacted to create and enforce a right to be free from discrimination in the workplace.…”

Section: Introductionmentioning

confidence: 99%