Public Policy and the CJEU’s Power

Bringing Stakeholders In

Emmanuelle Mathieu, Christian Adam, Miriam Hartlapp

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000759136
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Economic Policy
• Index: Politics & International Relations

Public Policy and the CJEU's Power offers an overarching analytical framework for thinking about the impact of policy contexts on the CJEU's influence on European public policy and the course of European integration. Thereby, it lays out a research agenda that is best described as public policy approach to studying judicial power in the European Union.

The policy contexts within which actors operate do not only structure the incentives to use litigation, they also affect how strongly the implementation of court rulings relies on these policy stakeholders. Therefore, the CJEU's power is strongly dependent on policy contexts and policy stakeholders. This argument is illustrated by a wide variety of empirical analyses covering the three major types of legal actions before the CJEU (infringement proceedings, preliminary rulings and annulments), a wide variety of policy fields (e.g. competition law, internal market regulation, common agriculture policy, social policies, foreign policy), and different types of policy stakeholders (e.g. public, private, subnational, national and European stakeholders). Using this rich empirical material, the book provides an analytic framework for thinking about how policy contexts influence the CJEU's impact.

Bringing together expert contributions, Public Policy and the CJEU's Power will be of great interest and use to scholars working on the European Union, law and politics and public policy. The chapters were originally published as a special issue in the Journal of European Integration.

From high judges to policy stakeholders: a public policy approach to the CJEU’s power

Emmanuelle MathieuiD*, Christian AdamiD and Miriam HartlappiD

ABSTRACT
The debate about the power of the Court of Justice of the European Union (CJEU) has mainly focussed on the preferences, perceptions and strategic considerations of the High Judges in Luxemburg. This Special Issue turns the analytical spotlight to another important determinant: the behaviour of actors with a stake in the policy conflicts resolved by the Court. Indeed, the CJEU’s influence depends, first, on being invited by stakeholders to intervene in the policy process through litigation and, second, on the correct implementation of its ruling by policy stakeholders. This Special Issue shows that actors’ propensity to litigate before the CJEU and their reactions to Court’s rulings are highly dependent on policy-specific actors’ constellations and governance structures. By focussing on how policy stakeholders and sector specific governance structures influence the Court’s impact, this introduction spells out what we call a ‘public policy approach’ to judicial power and summarizes the content and findings of the Special Issue.

From high judges to policy stakeholders

The Court of Justice of the European Union (CJEU) is an influential promoter of the EU integration process and of the Europeanization of public policies (Rasmussen 1986; Weiler 1991; Burley and Mattli 1993; Sandholtz and Sweet 1998; Kelemen and Schmidt 2012; Saurugger and Terpan 2017). While some perceive this as proof for the Court’s high level of activism and independence (Alter 1998; Kelemen 2011; Stone Sweet and Brunell 2012, 2013), others underline the systematic constraints the Court faces as an agent of the member state collective (Garrett 1995; Conant 2002; Carrubba, Gabel, and Hankla 2008, 2012; Davies 2012; Stone Sweet and Brunell 2012; Martinsen 2015; Larsson and Naurin 2016) or its exercise of self-restraint (Solanke 2011). This – often rather heated – debate about the unleashed vs. constrained nature of the Court’s influence on EU politics and policy has strongly focused on the High Judges at Luxemburg: scholars of judicial politics turn to judges’ preferences, perceptions and strategic considerations to evaluate whether rulings accommodate the (anticipated) demands of the Court’s political principals (Garrett, Kelemen, and Schulz 1998). While this line of research clearly focuses on an important determinant of the Court’s impact and power, this Special Issue turns the analytical spotlight over to another important determinant: the behaviour of political and private actors with a stake in the conflicts the Court resolves.

We do so because the CJEU’s capacity to engage in judicial law-making does not only depend on what the judges decide but also, crucially, on the policy environment within which they act (Conant 2002; Martinsen 2015). On the one hand, policy stakeholders are the ones responsible for inviting the Court to intervene by activating it through litigation (Stone Sweet 1999; Kelemen 2011; Chalmers and Chaves 2012). These stakeholders are not only interest groups (Alter and Vargas 2000; Börzel 2006; Conant 2006; Cichowski 2007; McCown 2009) and domestic courts (Alter 2001; Wind, Martinsen, and Rotger 2009; Wind 2010) but also other actors (Harding 1992), such as other EU institutions (McCown 2003; Hartlapp 2018b) and national governments (Granger 2004; Adam 2016). They have to – for whatever reason – decide to try and engage the judicial arena with a particular policy conflict. In this sense, they influence the Court’s power by determining which cases it reviews: ‘judges must have a case load. If actors, private and public, conspire not to activate review, judges will accrete no influence over the policy’ (Stone Sweet 2011, 131). On the other hand, the effectiveness of the Court’s rulings depends on their acceptance and faithful implementation by policy stakeholders (Conant 2002; Blauberger 2014; Schmidt 2014; Martinsen 2015; Heindlmaier and Blauberger 2017). Whether and how the stakeholders implement the rulings of the Court crucially determines the actual impact of these rulings.

Research on the CJEU has thus provided important insights into how policy stakeholders mediate the Court’s impact by litigating or not and by their way of responding to rulings. Interestingly, however, these two lines of study have tended to remain distinct and separate from each other. It is only through a combination of existing insights on bottom-up litigation and top-down reactions each taking place in the context of the same policy field that we can understand patterns in the conditional nature of the Courts’ impact. Therefore this Special Issue attempts to bring both lines of research together in an encompassing analytical framework, which we refer to as a public policy approach to studying the Court. This framework puts policy stakeholders and sector specific governance structures center stage. And while in both strands of the literature researchers have taken interest in policy related explanations, the added value of this framework is to combine them in an integrated and systematic way. Thereby the public policy approach allows to foster, facilitate, and structure theoretical progress among scholars.

More specifically we presume that the Court’s impact crucially depends on the policy context of the Court’s potential intervention. A public policy approach to the CJEU’s power therefore puts the spotlight on the type of instrument, the policy community and interest constellation as well as the institutional setting characterising a specific policy field. First, this means that we put the analytical spotlight on policy styles and policy instruments (Lowi 1972; Richardson 1982; Howlett and Ramesh 1995). Market making policies, for example, generate regulation and legalism (Kelemen 2011; Vogel 2018), which encourages the use of litigation (Kagan 2001; Kelemen 2011). Second, the literature on actor constellations and policy communities (Marin and Mayntz 1991; Marsh and Rhodes 1992; Scharpf 1997) offers insights on the use of litigation and prospects of non-compliance with judgments. The polarization of interests within the policy community can encourage litigation in case of a low level of consensus. This shall be particularly the case in closed policy subsystems, where outsiders that are evicted from the policymaking process have more incentives to turn to courts to pursue their interests (Kitschelt 1986).

Next, characteristics of the target group affected by a given policy should also play a major role. The number of group members and their cohesiveness (Van Waarden 1992), as well their financial and cognitive resources (Knoepfel et al. 2007) are determinant in their capacity to initiate litigation. When the costs of a policy are concentrated on a few resourceful actors, litigation is more likely than in case of diffuse costs weighting on individuals with limited resources, knowledge, and litigation experience. If the actors that benefit from a given policy are organized into influential interest groups, they may even neutralize the impact of the Court’s rulings on policy change. Or, on the contrary, enhance it if they want to foster policy change (Conant 2002).

Third, policy-specific institutions and rules are expected to matter. In this regard, an important factor is competence distribution. The scope of EU competences in a given policy field has an impact on the density of EU rules. The denser the legislative field, the higher the possibilities for conflict with national practices, and the broader the legal stock that can be mobilized by litigants as a resource in their policy conflicts (Knoepfel et al. 2007; Hilson 2017). Another crucial aspect is the fragmentation of responsibilities. A distribution of policymaking and implementation competences that empowers a wide variety of actors favours the adoption of vague laws (Kelemen 2011), broadens the room for conflicting preferences (Pressman and Wildavsky 1973; Hanf and Scharpf 1978), multiplies the number of actors with legal entitlements, all of which encourages the use of litigation. At the same time, a fragmented and multi-level policy implementation arrangement is generally conducive to a lower level of compliance (Haverland 2000). So, while a fragmented system of governance shall encourage litigation, it may also dilute the impact of the Court’s rulings. In this latter respect, the interaction type between authorities involved in policy implementation, e.g. hierarchy or effective coordination mechanisms, might mitigate the negative effect of fragmented governance on compliance with Court’s rulings (Hanf and Scharpf 1978).

This Special Issue aims at opening and structuring a research agenda that analyses the impact of policy contexts on the Court’s policy impact. We do not pretend to provide a coherent and conclusive answer in this regard. Instead, the Special Issue intends to call for scholars working on the CJEU to be more sensitive to the policy context in which the Court operates, and to provide an analytical framework that helps structuring the dialogue among studies sharing this public policy approach to the CJEU’s power.

Content of the Special Issue

The EU policy process is highly complex and interactive. It features the intervention of a wide range of actors whose interests, preferences, values, cultures and understandings often clash, which may lead them to invite the Court to intervene. Who are these litigating policy stakeholders? Why and when do they litigate? What are their incentives and constraints under the EU legal system? This theme – the judicialization of policy conflicts before the CJEU – is the subject of the first part of the Special Issue. The second part of the Special Issue investigates how policy stakeholders receive Court rulings. Court rulings are not mechanically followed and complied with. This raises the question of the factors that shape the answer of national policy actors to the Court’s rulings. When do we find national resistance to CJEU’s case law? What is the impact of different actors (such as interest groups, national administrations, etc.) on national reactions to the rulings? How do policy stakeholders mobilize the court’s rulings to achieve policy change? How do they neutralize judgements to preserve the status quo and under what conditions do judgements feed back into policy-making?

This Special Issue thus turns its focus from the High Judges at Luxembourg over to the policy stakeholders who, first, escalate policy conflicts to the judicial arena and thereby activate the Court and who, secondly, are involved in the subsequent implementation of the Court’s rulings one way or another. Empirically, the Special Issue deliberately covers a very wide variety of different actors acting as litigants before the Court and implementers of its decisions: it discusses private actors such as companies (Adam 2018), interest groups (Hofmann 2018a), the European Commission (Hartlapp 2018a; Hofmann 2018a; Eliantonio 2018; Falkner 2018), other EU institutions like the Council or the European Parliament (Hartlapp 2018a), member state governments (Mathieu and Bauer 2018; Falkner 2018; Hofmann 2018b), regional governments (Mathieu and Bauer 2018), national judges (Mayoral and Torres 2018) as well as national administrative actors (Krämer-Hoppe 2018; Thierry and Martinsen 2018). By either bringing policy conflicts to the Court’s attention or playing a role in the implementation of its rulings, these different actors mediate the Court’s power substantially. Understanding the Court’s impact thus requires us to understand how these actors behave in relationship to the Court.

We found both, the type of legal procedure and the policy field, to be important contexts to understand how actors behave. First, the various contributions focus on different types of legal proceedings. We compiled articles dealing with all of the three major legal channels for activating the CJEU: infringement proceedings (Hofmann 2018a; Eliantonio 2018; Falkner 2018; Hofmann 2018b), preliminary rulings (Mayoral and Torres 2018; Krämer-Hoppe 2018; Thierry and Martinsen 2018) and annulment actions (Mathieu and Bauer 2018; Adam 2018; Hartlapp 2018a). This deliberate choice allows the contributions within this Special Issue to analyse the behaviour and role of stakeholders in policy conflicts on their tendency and ability to activate the Court and to comply with Court rulings across these different legal channels. Secondly, the collection of articles discusses conflicts from a wide array of policy fields, reaching all the way from the Spanish housing crisis (Mayoral and Torres 2018), state aid policy (Adam 2018), public procurement (Krämer-Hoppe 2018), consumer policy and fundamental rights (Hofmann 2018a), environmental policy (Eliantonio 2018), free movement and social rights (Thierry and Martinsen 2018) to the EU’s external affairs (Hartlapp 2018a).

The first part of the Special Issue, which deals with the use of litigation by policy stakeholders, starts with three articles that focus on different types of policy stakeholders taking EU institutions to the Court through annulment actions. Mathieu and Bauer analyse the motivations that bring national and regional governments to litigate against the European Commission (Mathieu and Bauer 2018). When and why do they decide to escalate policy conflicts to the CJEU? The authors answer this question by referring to the attempt to protect financial resources, to defend national competences and to maximise political trust domestically. Adam describes a changing role of governmental actors in the context of actions for annulment directed against the Commission (Adam 2018). While member state governments used to be very prominent in this regard, the author shows how member states have started to leave the role of fighting with the Commission in court more and more strongly to private national actors. But annulment actions are not only used by national actors against the Commission. The next contribution shows that they are also part of the policy-making repertoire of Council, European Parliament and Commission. Hartlapp refers to this as horizontal litigation among EU institutions (Hartlapp 2018a). In an ‘organizational turn’, Hartlapp analyses the internal and external conditions and specific motivations under which the three EU institutions find it opportune and necessary to take each other to Court, and explains why this results in strikingly different judicial activism across policy fields.

The following three articles focus on the initiation of judicial proceedings revolving around the (il)legality of national governments’ measures. Mayoral and Torres focuses on the conditions under which national judges decide to mobilize the CJEU through preliminary rulings. Based on an in-depth case study about judges’ behaviour in the Spanish housing market crisis, they find that factors such as...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• 1 From high judges to policy stakeholders: a public policy approach to the CJEU’s power
• 2 Domestic resistance against EU policy implementation: member states motives to take the Commission to Court
• 3 Multilevel conflict over policy application–detecting changing cleavage patterns
• 4 Why some EU institutions litigate more often than others: exploring opportunity structures and actor motivation in horizontal annulment actions
• 5 On judicial mobilization: entrepreneuring for policy change at times of crisis
• 6 Is the Commission levelling the playing field? Rights enforcement in the European Union
• 7 The role of NGOs in environmental implementation conflicts: ‘stuck in the middle’ between infringement proceedings and preliminary rulings?
• 8 A causal loop? The Commission’s new enforcement approach in the context of non-compliance with EU law even after CJEU judgments
• 9 How long to compliance? Escalating infringement proceedings and the diminishing power of special interests
• 10 The Relationship between ‘Luxembourg’ and European and national administrative bodies
• 11 Lost in translation: how street- level bureaucrats condition Union solidarity
• Index