The reference points of EU judicial politics

Abstract

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.

The ‘National Decisions’ database (Dec.Nat): Introducing a database on national courts’ interactions with European Law

“…Directives constitute a major source of non-compliance with European law (Falkner et al., 2005; Tallberg, 2002: 624) and case studies indicate that there is variation in their enforcement through national courts (Börzel, 2006; Slepcevic, 2009). Furthermore, they have been shown to account for a substantial amount of preliminary references submitted to the ECJ (Chalmers, 2000: 10; Chalmers and Chaves, 2012: 33; Conant, 2002: 83). Hence, they are suitable for demonstrating the usefulness of Dec.Nat for studying the enforcement of European law through national courts.…”

Introduction – the European Court of Justice and legal integration: perpetual momentum?

“…These communities can empower the ECJ -by bringing cases to its docket, helping it to build up lines of case law in a pathdependent fashion (Schmidt 2012) and spreading its jurisprudence within national legal orders -but the very fact that these constituencies are limited in number, in specialization and in their interests may itself constrain the ECJ's impact (Chalmers and Chaves 2012).…”

“…Only some areas of law advance to this extent, as Chalmers and Chaves (2012) argue, resulting in a very uneven development across legal fields. And according to Davies (2012), where this expansion does take place, it is not driven solely or even primarily by the ECJ, but rather is rooted in broad interpretations of EU law made by national courts.…”

“…But just how sensitive should we expect the Court to be to such criticism? Often, when governments increase political pressure on courts, this simultaneously increases normative pressure on courts to act in a 'countermajoritarian' fashion and to defend minority interests (Chalmers and Chaves 2012). Moreover, if the Court enjoys a high degree of diffuse public support relative to the politicians who criticize it, this may shield the Court against such criticisms (Kelemen 2012).…”

Perpetual momentum: directed and unconstrained?

“…The first of these issues is highlighted by the fact that, in Chalmers and Chaves's (2012) cross-tabulation, 'domestic firms' constitute a large segment of the litigants in the free-movement fields (and in taxation) -which the authors find puzzling since 'competition, free movement of services and freedom of establishment all require, in principle, the presence or imminence of transnational trade for their instigation'. Under the Court's definition of free-movement rights, however, such constraints do not play a role.…”