The Power of the European Court of Justice

Susanne K. Schmidt, R. Daniel Kelemen, Susanne K. Schmidt, R. Daniel Kelemen

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9781138108745
• eBook ISBN: 9781317981282
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The European Court of Justice (ECJ) has played a vital role in promoting the process of European integration. In recent years, however, the expansion of EU law has led it to impact ever more politically sensitive issues, and controversial ECJ judgments have elicited unprecedented levels of criticism. Can we expect the Court to sustain its role as a motor of deeper integration without Member States or other countervailing forces intervening? To answer this question, we need to revisit established explanations of the Court's power to see if they remain viable in the Court's contemporary environment. We also need to better understand the ultimate limits of the Court's power – the means through which and extent to which national governments, national courts, litigants and the Court's other interlocutors attempt to influence the Court and to limit the impact of its rulings.

In this book, leading scholars of European law and politics investigate how the ECJ has continued to support deeper integration and whether the EU is experiencing an increase in countervailing forces that may diminish the Court's ability or willingness to act as a motor of integration.

This book was published as a special issue of the Journal of European Public Policy.

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

R. Daniel Kelemen and Susanne K. Schmidt

The European Court of Justice (ECJ)¹ has played an indispensible role as a motor of European integration. In judgments addressing the balance between national and supranational authority, the European Court – not unlike high courts in other federal-type systems (Bzdera 1993; Halberstam 2008; Volcansek 2008) – has demonstrated a bias in favour of centralization. Again and again, the ECJ has demonstrated the independence and the authority necessary to push the scope and depth of European integration beyond what European Union (EU) law-makers had intended. The literature on the European legal integration establishes a number of reasons for this marked bias towards supranationality: there is a comparatively weak legislator at the supranational level and divisions between EU law-makers generate gridlock and open up space for the ECJ to pursue its pro-integration preferences (Pollack 2003; Stone Sweet 2004: 7–9; Tallberg 2002); European lawyers worked early to establish the supremacy and direct effect of European law (Vauchez 2008); national lower courts have had incentives to refer cases to the ECJ through the preliminary ruling system (Alter 2001); private parties had incentives to make legal claims based on their economic rights and other individual rights under European law (Cichowski 2007; Conant 2002; Kelemen 2011). Together these factors have sparked a self-reinforcing process of judicialization that has expanded ECJ power and deepened integration (Stone Sweet 2004; Stone Sweet and Brunell 1998).

Some observers fear that in privileging integration over the safeguarding of national competences, the Court’s jurisprudence may threaten the maintenance of a politically acceptable balance between European-level and national competences in the EU. Political controversy surrounding the ECJ’s major integrative decisions is, of course, nothing new. Powerful national leaders from French President Giscard d’Estaing in the 1980s to German Chancellor Kohl in the 1990s have publicly attacked the court for its activism and overreach. In recent years, however, the expansion of EU law has led it to impact ever more politically sensitive issues. And today EU law treads on this sensitive terrain in a period when the ‘permissive consensus’ concerning European integration has faded. ECJ rulings in controversial cases such as the ‘Laval quartet’ (i.e., Laval, Viking, Luxembourg and Rüffert) (see Malmberg 2010) and Mangold have elicited what many see as an unprecedented level of political criticism. This furore raises the question of whether the ECJ can maintain a politically acceptable balance of European and national competences, and the question of which political and legal factors influence its jurisprudence on this balance.

To date, the expansive jurisprudence of the ECJ seems unbroken. But in a more politically sensitive environment and in a Union that has grown to encompass 27 member states based on very different traditions of the rule of law, one might expect as much change as continuity.

This collection of contributions investigates how the ECJ has sustained its bias toward deeper integration and whether the EU is experiencing an increase in countervailing forces that may diminish the Court’s ability or willingness to act as a motor of integration. Can we expect the dynamics of the Court’s case law to continue as before without member states or other countervailing forces intervening? Other than national governments working to safeguard their authority, national courts and national bars might be expected to react negatively to continued ECJ expansionism where it threatens their authority.

To understand whether the Court can sustain its role as a motor of deeper integration, we need to revisit established explanations of the Court’s power to see if they remain viable in the Court’s contemporary environment. We also need to better understand the ultimate limits of the Court’s power – the means through which and the extent to which national governments, national courts, litigants and the Court’s other interlocutors attempt to influence the Court and to limit the impact of its rulings.

There are many glaring lacunae in our knowledge about European legal integration. Though the literature on legal mobilization in the EU has grown in recent years (for instance, Cichowski 2007; Kelemen 2011; Stone Sweet 2010), we still know far too little about the decision-makers at the heart of the EU’s legal system – the justices of the ECJ. Unlike the United States Supreme Court, the ECJ publishes no votes or dissenting opinions, making it difficult to conduct analyses assessing the impact of the justices’ policy preferences. Based on the ECJ’s pro-integration track record, many assume that ECJ judges always favour integration over the safeguarding of national competences. But can this assumption hold, given that the judges are, after all, appointed by their member state government, having been socialized in their national legal system? Likewise, we still know far too little about the conditions under which private litigants actually claim their European rights in front of national courts. How does the interaction between the ECJ and these courts take place? Given these institutional conditions, how can we explain the way that case law develops? Finally, we know too little about the impact of the ECJ’s case law on member states. Though there is a growing literature on ‘Europeanization’ of public policy, there is still no equivalent in studies of European law to the extensive literature on ‘impact analysis’ conducted by scholars of American public law (but see Conant [2002] for a notable exception). Europeanization studies have predominantly been concerned with the transposition and implementation of European secondary law – directives and regulations (Börzel 2001), and have largely neglected the reactions to case law (Töller 2010).

We should also note what we cannot do. With the broad focus on revisiting and refining our established explanations of the ECJ’s power, we do not purport to take exhaustive account of major ongoing changes that arguably would merit a special collection in their own right. The accession of 12 new member states with very different legal traditions is a major change, and not much is known yet of its implications for the EU’s judicial system, particularly if we include the relationship with the lower and constitutional courts in the new member states. We therefore restrict the discussion of enlargement to its impact on the aggregate level in so far as it is already apparent there, for instance in terms of the increase of judges, or conflict lines (Laval). Other developments to be noted are the increasing impact of the case law of the ECJ on national criminal law, and the changes brought about by the Charter of Fundamental Rights, and the accession to the European Convention on Human Rights.

This collection assembles a number of renowned scholars and more junior scholars conducting cutting edge research on the ECJ. It brings together both political scientists and lawyers and explores legal integration from the perspectives of both disciplines. Collectively, the contributions explore a number of central themes.

How do the composition and structure of the ECJ influence its jurisprudence? Might the appointment by some governments of more Eurosceptic judges influence the Court’s jurisprudence? Malecki’s (2012) innovative research suggests that some judges may indeed hold more Eurosceptic preferences and that the presence of more Eurosceptic judges on chambers of the court is associated with those chambers making decisions that are less supportive of European integration. More generally, in recent years as it has expanded to 27 judges, the Court has dramatically reorganized the way it conducts its work, hearing more and more cases in ‘chambers’ composed of subsets of judges. While decisions are taken in the name of the ECJ as a whole, in fact most decisions are made by groups of three or five judges. Does reliance on a chamber system pose a risk to the coherence of ECJ jurisprudence, or has the system been structured in a way that is likely to maintain the coherence of the law and safeguard the independence of the Court (Kelemen 2012)?

How sensitive is the court to political attacks? As mentioned above, the Court has been subject to an unprecedented degree of political criticism in recent years (Blauberger 2012). 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).

How do litigants, national courts and other members of the ‘legal fields’ involved in ECJ litigation influence the impact and course of ECJ jurisprudence? Though the ECJ is often portrayed as existing in a kind of ‘splendid isolation’ in Luxembourg, the Court is actually surrounded by specialized and often very circumscribed legal communities. These communities can empower the ECJ – by bringing cases to its docket, helping it to build up lines of case law in a path-dependent 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).

How do national governments and national courts further react to or adapt to ECJ jurisprudence? The contributions go beyond simplistic dichotomies between compliance and non-compliance to explore the variety of ways in which national courts and national governments respond to ECJ decisions. The authors find that some national courts may rely on ECJ rulings in their conflicts with other courts within their national legal order (Stone Sweet and Stranz 2012) or that national courts may in fact build on ECJ rulings, offering more ‘activist’ interpretations than the ECJ had required (Davies 2012). National governments, for their part, may craft nuanced legislative strategies to mitigate the impact of controversial ECJ decisions, and the content of these strategies will vary depending on the political composition of the government in question (Blauberger 2012).

Where do the contributions in this collections leave us? First of all, very clearly, they show once again how characterizations of European integration along the supranationalist–intergovernmentalist divide miss the point (Schmidt 1996). Integration advances because the multilevel system offers an opportunity structure for (integrationist) changes not only to supranational but also to national private and public actors. Mobile litigants use European law to circumvent domestic legal constraints. National courts use the opportunity to strengthen their role in the national legal hierarchy, with single judges more often than not realizing specific legal – or policy – preferences in this way. As for the ECJ, the lack of institutionalized court-curbing mechanisms and an apparently functioning permissive consensus insulates it effectively from political pressure. While there are clear differences as to the preferences of the involved judges, the likelihood that member states can use their appointment power to alter the Court’s interpretation towards a more autonomy-regarding course for the member states seem slight. The development of case law can be conceptualized as being path dependent – the entitlement to individual rights established with direct effect and the prohibition of a restriction of economic rights grounded in Dassonville and Cassis offers sufficient incentives to litigants to pursue an extension of the reach of European law.

Yet, the image of an expansionist ECJ does not stand undisputed in this collection. 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. Finally, Michael Blauberger (2012) shows that even highly controversial judgments are absorbed in the domestic political process in a way that a new consensus becomes possible, eventually diminishing the impact of the ruling.

It remains to be seen whether (and, if so, when) the European Union may enter into a phase of consolidation as other federal-type systems have experienced (Bzdera 1993) – a phase in which the ECJ would act less as an engine of integration and more as balancer of EU (‘federal-level’) and national interests. It is clear, however, that the EU has not yet entered such a phase. And as Fritz Scharpf (2012) emphasizes in his conclusion to this collection, the dominant role of the ECJ results in a skewed constitutional balance. While authors disagree as to the extent of the ECJ’s activism, the pro-integrative role of the European court system as a whole – including member states’ courts and the ECJ – is undisputed.

Biographical notes: R. Daniel Kelemen is the Jean Monnet Chair, Director of the Center for European Studies and Associate Professor of Political Science at Rutgers University. Susanne K. Schmidt is Professor of Political Science and Dean of the Bremen International Graduate School of Social Sciences at the University of Bremen.

ACKNOWLEDGMENTS

Susanne Schmidt would like to acknowledge generous funding of the German Research Foundation via the CRC 597. We are very grateful to those colleagues who agreed to act as anonymous reviewers for the contributions. We would also like to thank those participants of the November 2010 workshop in Bremen that acted as discussants of the different papers: Philipp Genschel; Fritz Scharpf; Martin Höpner; Christian Joerges; Michael Blauberger; and Arndt Wonka. Daniel Kosak did a great job preparing the manuscript for this edited collection. Our special thanks go to Fritz Scharpf for agreeing to take over the conclusion!

NOTE

1 The Treaty of Lisbon introduced changes in the names of EU judicial institutions. The Court of Justice of the European Communities is now officially known as the ‘Court of Justice’ – but informally we can still refer to it as the European Court of Justice or ECJ. The Court of First Instance is now known as the General Court. The EU’s judiciary as a whole – including the ECJ, the General Court and the Civil Service Tribunal, and any lower courts that may be established in the future – are collectively referred to as the Court of Justice of the European Union (or CJEU).

REFERENCES

Alter, K.J. (2001) Establishing the Supremacy of European Law – The Making of an International Rule of Law in Europe, Oxford: Oxford University Press.

Blauberger, M. (2012) ‘With Luxembourg in mind … the remaking of national policies in the face of ECJ jurisprudence’, Journal of European Public Policy 19(1): 109–26.

Börzel, T.A. (2001) ‘Non-compliance in the European Union: pathology or statistical artefact?’, Journal of European Public Policy 8(5): 803–24.

Bzdera, A. (1993) ‘Comparative analysis of federal high courts: a political theory of judicial review’, Canadian Journal of Political Science 26(1): 3–29.

Chalmers, D. and Chaves, M. (2012) ‘The reference points of EU judicial politics’, Journal of European Public Policy 19(1): 25–42.

Cichowski, R. (2007) The European Court, Civil Society, and European Integration, Cambridge: Cambridge University Press.

Conant, L. (2002) Justice Contained. Law and Politics in the European Union, Ithaca, NY and London: Cornell University Press.

Davies, G. (2012) ‘Activism relocated: the self-restraint of the European Court of Justice in its national context’, Journal of European Public Policy 19(1): 76–91.

Halberstam, D. (2008) ‘Comparative federalism and the role of the judiciary’, in K...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• 1. Introduction – the European Court of Justice and legal integration: perpetual momentum?
• 2. Who cares about nationality? The path-dependent case law of the ECJ from goods to citizens
• 3. The reference points of EU judicial politics
• 4. The political foundations of judicial independence in the European Union
• 5. Do ECJ judges all speak with the same voice? Evidence of divergent preferences from the judgments of chambers
• 6. Activism relocated. The self-restraint of the European Court of Justice in its national context
• 7. Rights adjudication and constitutional pluralism in Germany and Europe
• 8. With Luxembourg in mind … the remaking of national policies in the face of ECJ jurisprudence
• 9. Perpetual momentum: directed and unconstrained?
• Index