Precedents and Judicial Politics in EU Immigration Law

Marie De Somer

• Publisher: Palgrave Macmillan
• Year: 2018
• ISBN:
  9783319939827
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

This study explores the use of precedents in the case law of the Court of Justice of the European Union (CJEU). It argues that a strategic use of precedent-based discourses aids the Court in developing its jurisprudence autonomously; that is, independent of the political preferences of EU member states. The study is based on a long-term assessment of CJEU case law in the politically sensitive area of immigration law. It traces the Court's rulings in this area from the 1970s up until the most recent period. The study identifies a series of consistent discursive patterns that slowly, but surely, moved EU immigration law beyond what member states had intended. The work takes an interdisciplinary approach, engaging with both political science and legal discussions on the Court of Justice and its role in processes of European integration.

© The Author(s) 2019

Marie De SomerPrecedents and Judicial Politics in EU Immigration LawEuropean Administrative Governancehttps://doi.org/10.1007/978-3-319-93982-7_1

Begin Abstract

1. Introduction

Marie De Somer¹

(1)

University of Leuven, Leuven, Belgium

Marie De Somer

Keywords

European integrationMixed methodsCourt’s role

End Abstract

1.1 The EU Court of Justice and European Integration Processes

This is a study into the Court of Justice of the European Union (CJEU) and its role in European integration processes. Enquiries of this kind hold a long lineage within academic literature. In social science, to begin with, since the first political scientists who famously ‘discovered’ the Court in the early 1990s advanced opposing readings of its role as either “faithfully implementing the preferences of national governments” (Garrett, 1992, p. 558), or—instead—“systematically overriding member states’ true preferences” (Mattli & Slaughter, 1995, p. 184), competing conceptions of the Court’s autonomy have stirred much contention. Arguably, few scholars would nowadays still frame their conceptions of the Court’s role in such antagonistic terms (although see Carruba, Gabel, & Hankla, 2012 versus Stone Sweet & Brunell, 2012). Nevertheless, differing perceptions on the interpretative leeway which the EU judiciary enjoys relative to the preferences of the Union’s political actors continue to, at its core, divide political science scholarship on the CJEU.

Questions of this kind also occupy debates within legal scholarship. Beginning with Stein’s (1981) ground-breaking survey of the political implications attaching to the Court’s jurisprudence, observations of case law outcomes that, to greater or lesser extents, reverberate beyond the strictly legal sphere and questions on how to appraise such outcomes have formed the backbone to legal scientist debates on the Court’s legitimacy (e.g., Adams, De Waele, Meeusen, & Straetmans, 2013), or whether or not it is activist (De Witte, Dawson, & Muir, 2013, Goldner-Lang, 2018).

1.2 Precedents and Judicial Politics

The current study provides new perspectives on these questions by adopting a long-term analytical approach that looks into the workings and effects of reasoning by precedent. As bears mentioning at the outset, precedents, in this context, are not conceptualized in terms of the formally binding nature they are known to hold in the framework of common law systems. Instead, they are construed more broadly as referring to the Court’s practice of deciding new cases with reference to decisions reached in earlier proceedings.

Practices of this kind are frequently observed within both political science and legal scholarship. In both sets of literature, scholars also generally and repeatedly attest to the need of analysing CJEU rulings in the context of earlier judgments, or in the light of the implications these rulings may come to hold for follow-up litigation.

Within legal scholarship, first, commentaries on the high-profile, 2011 Zambrano ruling for instance provide ample illustrations of such observations. Pointing at the “open formulations” by means of which the Court expounded this decision, Hailbronner and Thym (2011, p. 1257) for example refer to the possibility that the CJEU deliberately left room “for later refinement” which would then allow it “to take on board political and academic criticism”. Dawson (2014, pp. 428–429) similarly linked the judgement, and its later refinements in McCarthy and Dereci to what he called strategic discursive “repeat games” by means of which the Court could set down an “integrationist principle” but “limit its temporal or material impact” so as to reserve “the ability to fine tune, rescind or even expand” depending, amongst others, on the “attitudes and levels of ‘resistance’ emerging from governments”. Lenaerts (2015, p. 3), who sat on the case as a judge, described the “stone-by-stone approach” taken in Zambrano and its follow-up judgments as stemming from a perceived need of “judicial prudence” in contexts touching on “politically sensitive questions”. By adopting an open-ended reasoning in the first case, it could be left to future cases to decide whether the Court would opt for an either “strict or broad interpretation ” of Zambrano.

Similar observations have featured in political science writings on the Court’s role since the earliest beginnings. In fact, the perspective that precedents matter and may hold a politico-strategic advantage, constitutes one of the single consensual understandings on the Court’s role that emerged out of the earliest, polarized debates in the 1990s referred to above. Where Garrett (1995, p. 178) had originally posited that the Court’s behaviour would be “conditioned by its expectations about the likely responses of member governments”, he later conceded, with reference to the arguments of his academic opponents (Mattli & Slaughter, 1995), that “precedent greatly concerns the ECJ”. Amongst others, precedents were found to enable the Court to “embed decisions with potentially important long-term consequences for EU jurisprudence in relatively uncontroversial cases” so as to first entrench its positions (Garrett, Kelemen, & Schulz, 1998, pp. 157–168). At a later time, the Court could then modify its interpretation.

Similar perspectives have also featured centrally in later political science writings. Amongst others, in her seminal ‘Masters of the Treaty’ article, Alter (1998, pp. 130–131) advanced that one of the key explanations for the Court’s power related to the manner in which the Court could play off the shorter time horizons of politicians. As she stated, the Court expanded its power “by establishing legal principles but not applying those principles to the case at hand”. In that manner, it could make sure that the immediate political impact was minimal. However, what were in first instance marginal decisions, politically speaking, would later turn out to hold “revolutionary” implications. Taking examples from the more recent literature, in her “Justice Contained” monograph, Conant (2002, pp. 39–41) advanced that “prudent judgment”, by means of which the CJEU adopts an “incremental approach” to the interpretation of EU law has played a critical role in the construction of the European legal order. It enabled the Court to “project neutrality” and on that basis hide the controversial implications attaching to its decisions. Most recently, Blauberger and Schmidt similarly mention processes of jurisprudential “fine-tuning” whereby the Court is observed to “curtail the demands” of its rulings (Schmidt, 2014, p. 773) when it becomes “sensitized to domestic concerns” (Blauberger, 2012, p. 123).

In spite of these recurring and mirroring observations in both political science and legal scholarship, neither of the two disciplines has thus far invested much efforts to uncover the precise mechanisms that underpin the observed dynamics and their eventual effects. In what follows, the present study draws on these different sets of related observations, made across the disciplinary divides that separate law and political science, and engages in a systematic review of precedent-based patterns within the Court’s case law and the implications of such patterns for the Court’s role in a broader institutional setting. The study argues that, by strategically engaging with precedent, the Court is able to, in the long run, strengthen the interpretative leeway and autonomy that it enjoys vis-à-vis the Union’s political actors, most notably the Member States.

1.3 Testing Strategies

The research question guiding the evaluation of the above argument is whether and how precedent-based reasoning strengthens the Court’s autonomy relative to the preferences of the Member States. Given that the extent to which the Court enjoys such an autonomy vis-à-vis the Member States remains, as indicated above, contested in the literature, examining the first whether question is a precondition before being able to meaningfully engage with the second how question.

The analysis is conducted against the Court’s case law on family reunification immigration. The choice for this case law record is grounded in two considerations. First, EU family reunification law is considered to be a particularly politically sensitive area of law and, on that basis, a ‘least-likely case’ for observing a strong or increasing judicial auto...