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About this book

The Court of Justice of the European Union (CJEU) is one of the central institutions of the EU and has played a decisive role in European integration. As one of the most powerful international courts, at a time when political systems around the world are becoming more judicialized, it is a key actor to understand in world affairs. Yet it is not without controversy. As both an interpreter of law and as a political power influencing policy-making through its bold case law, it has become increasingly criticized in recent years for its perceived activism and distance from the European people.

Combining the perspectives of a legal scholar and a political scientist, this important new text gives a uniquely broad-ranging account of the CJEU. It introduces readers to the role and function of the Court and explains how it fits into the broader political system and historical evolution of the European Union. It examines the constitutional contributions made by the Court and the part it plays in policy-making, in areas such as the environment, gender equality and human rights. Drawing on the latest research, the book takes full account of recent changes to the place of the Court in the European political system, and shows how new forms of governance, such as the open method of coordination, have had a significant impact on the role the Court is able to play.

Table of Contents

Chapter 1. Introduction

Courts are key actors in any democratic political and legal system. In recent decades, their one influence has increased hugely in many democratic states, with an impact on literally every aspect of daily life. Understanding how courts ‘speak the law’ and, in so doing, influence politics at the level of the state, is crucial for every student of political science and law. However, international courts – courts established beyond the realm of the state – have traditionally played a lesser role. Their influence varies and is dependent on the good will of states to recognize and adhere to Court decisions in global governance. The Court was created in 1952 by the ECSC Treaty (Treaty of Paris) in order to control the High Authority of the European Coal and Steel Community (ECSC) and protect the sovereignty of the member states. After a little more than a decade, two new treaties, adopted in 1957 in Rome - the EEC Treaty and the Euratom Treaty - began to transform it into a supranational jurisdiction, independent of the member states.
Sabine Saurugger, Fabien Terpan

Chapter 2. The Court in the History of the European Union

To understand the role and function of the Court of Justice of the European Union (CJEU) in the EU’s legal and political institutional framework, and the debates surrounding its significance and scope for independent action, we need to consider it as an institution evolving from its origins through almost seven decades of European integration. This chapter tells the story of the Court, of the judges and advocates-general working in it and of its landmark rulings. Stronger rules put in place, with the EU adopting an automatic procedure for imposing penalties in case of breaches of either public deficit or public debt rules? Or, on the contrary, will we see soft law mechanisms reinforced as a means for the member states to circumvent the Court? In the chapters that follow we try to make sense of these questions by examining how the Court works in detail, when and where it intervenes, and what its relations are with the member states, national courts and civil society. The Court is but one element of the European political and legal system, and it is only in the context of this broader system that we can truly understand its role and its evolution.
Sabine Saurugger, Fabien Terpan

Chapter 3. The Membership and Organization of the Court

In order to understand the Court of Justice of the European Union’s (CJEU’s) role in the EU’s political system, we first need a clear sense of how it is composed and organized. This chapter provides a sociological perspective, focusing on the social characteristics of its judges, as well as an institutionalist perspective that looks closely at the structures of the CJEU. The former approach sees the judges as individuals socially embedded in the European Court, and assumes that judicial output also depends on people acting as judges. The latter approach is based on the idea that the content of case law is partially derived from the way in which the Court is structured. Another European court, the Unified Patent Court, should be created, provided that the 2013 agreement (JOEU C175/01) is ratified by the member states. It will not be part of the CJEU and will be subject to the same obligations under Union law as any national court of the member states, and will thus be obliged to make preliminary references. This chapter presents the members of the courts, with a focus on their social and professional background (sociological perspective), and the organizational structures of the three courts (institutionalist perspective). The composition and functioning of the General Court is similar to that of the Court of Justice (until the end of 2016). The CST, however, was distinctive in that it oversaw a very different type of jurisdiction due to its highly specialized nature. However, any examination of each of the different components of the CJEU raises similar questions related to the effectiveness and legitimacy of the European judiciary.
Sabine Saurugger, Fabien Terpan

Chapter 4. The Role of the Court in the EU Political System

In order to understand the Court of Justice of the European Union’s (CJEU’s) role in the EU’s political system, we first need a clear sense of how it is composed and organized. This chapter provides a sociological perspective, focusing on the social characteristics of its judges, as well as an institutionalist perspective that looks closely at the structures of the CJEU. The former approach sees the judges as individuals socially embedded in the European Court, and assumes that judicial output also depends on people acting as judges. The latter approach is based on the idea that the content of case law is partially derived from the way in which the Court is structured. The duty of the Court of Justice, as defined in article 19 of the Treaty on European Union (TEU), is to ensure that in the interpretation and application of the treaties, the law is observed. In other words, it ensures that the institutions and member states of the EU correctly interpret and apply EU law. In doing so, however, the Court does not act in a political vacuum, but is embedded in a dense network of actors. This chapter aims to explain the interconnectedness of these political and judicial institutions. It first studies how the Court reviews the legality of European acts such as regulations, directives and decisions, how it ensures that the member states comply with obligations under the various treaties, and how it interprets EU law at the request of national courts and tribunals. Two different types of review are examined, the first aimed at the EU institutions (actions for annulment, actions for failure to act, direct actions), and the second concerning EU member states (actions for failure to fulfil an obligation, requests for a preliminary ruling). However, this chapter goes a step further to show that the Court is an embedded actor, and as such, we need to study its powers in relation to the larger political system.
Sabine Saurugger, Fabien Terpan

Chapter 5. The Court, EU Law and the Member States

One of the most intriguing questions for a social scientist is how the law becomes a constraining force. While this is a crucial issue in all political systems, it is even more relevant in the EU. Scholars have observed the transformation of EU law from international treaty to autonomous legal order based on the CJEU’s ‘constitutional doctrine’, which is itself virtually impossible to reverse (Stone Sweet, 2010). They refer to EU law as a quasi-federal legal order and recognize the active way in which the CJEU exercises its legal and judicial power (Weiler & Haltern, 1998; Stone Sweet, 2004) as ‘perpetual momentum’ (Kelemen & Schmidt, 2012). This raises the question as to why the member states have accepted the constraints of European law and the continued interpretations of the Court. How and why the CJEU has managed to influence the member state level to such an extent requires a complex and nuanced analysis. Normative, institutional and sociological factors have influenced the CJEU success as an international and constitutional Court. It is the interplay of these factors that has allowed the Court to become an influential player in the EU political system. The CJEU partially empowered domestic lower courts and legal actors, created salience for specific issues through heated debate on rulings in the national realm (such as Laval (C-341/05)) and influenced EU public policies through its rulings and/or the threat of a possible ruling.
Sabine Saurugger, Fabien Terpan

Chapter 6. The Court and Interest Groups

As we have seen in the preceding chapters, the Court’s power is dependent on actors appealing to the Court. Among those bringing cases before the Court are the member states and the EU institutions. However, another category of actors – interest groups – has consistently brought cases, either directly or indirectly, through the preliminary procedure. The aim of this chapter is to analyse why and how interest groups have used the legal opportunity structure provided by the CJEU, and in turn, to what extent interest groups have themselves been influenced by the Court’s rulings. In this sense, in public policy terminology litigation strategies are clearly part of the implementation phase of policy. They come into play when public policy has already been defined. But litigation strategies can, as we will see, also be considered as an agenda setting process, when interest groups act proactively and, by resisting the implementation of a law, end up being taken to Court. The remaining part of this section examines four, direct or indirect, litigation routes at the disposal of interest groups.
Sabine Saurugger, Fabien Terpan

Chapter 7. The Constitutional Role of the Court

The CJEU has often been depicted as being ‘activist’ (Chapter 2), insofar as it not only ‘speaks’ but ‘makes’ the law. At first sight, activism runs counter to the legal tradition in civil law countries, where core principles are codified into a system of written rules, which serve as the primary source of law. This contrasts with common law systems based on judge-made decisional law and the doctrine of judicial precedent. The legal system within which the CJEU operates is therefore at odds with the legal traditions in EU member states, with the exception of Ireland and the United Kingdom. In civil law countries, the courts are meant to be the ‘mouth’ of the law or the Constitution, and ‘legal interpretation is supposed to distil an objective deductive operation’ (Rosenfeld, 2006, p. 640). In common law countries, judges ‘make or infer or construct the law […] by a process of interpretation, accretion, experimentation, argumentation, and trial and error’ (Rosenfeld, 2006, p. 635). As long as the law is not written in a perfectly clear and precise manner, judges cannot prevent themselves from making law, that is, from explaining how law should be understood and implemented. As far as the CJEU is concerned, this function is displayed at both the constitutional and legislative level. Through its legal doctrines, the CJEU has helped to transform the EU into a polity or an organized and sophisticated system of governance and in so doing, played a role close to that of constituent power, as we argue in this chapter. Yet the CJEU has also contributed to the development of several EU public policies, acting as a policy-maker at the legislative level, which we discuss in Chapter 8.
Sabine Saurugger, Fabien Terpan

Chapter 8. The Court in Policy-Making

While many scholars acknowledge the contribution the Court has made to the ‘constitutionalization’ of the European Union (see Chapter 7), the extent to which it takes part in the policy process remains uncertain. In the treaties we see instances of ‘negative integration’ (Scharpf, 1999) where member states have been prevented from adopting discriminatory behaviour with a view to establishing the internal market. Such prohibitions have been made more effective as a consequence of judicial interpretations of the treaty provisions. The Cassis de Dijon ruling (120/78) concerning the free circulation of French blackcurrant liqueur is one of several cases that has illustrated the readiness of the Court to make sure that the objectives set out in the treaties are achieved. In this case, the Court established the principle of mutual recognition, which reduced the need to harmonize trade standards (see also Chapter 2). At the same time, when it comes to ‘positive integration’ – where new rules are created to influence member state behaviour – the Court has also played a crucial role in a number of policy areas where it has interpreted existing rules and triggered new legislation.
Sabine Saurugger, Fabien Terpan

Chapter 9. Conclusion

Is European integration still based on ‘integration through law’ or has law become less central to European integration since the early 1990s, given the growing political resistance to the EU? As we have seen throughout the book, as far as judicial powers are concerned, the EU can be considered as one of the most highly institutionalized supranational political systems in the world (Stone Sweet & Caporaso, 1998; Alter, 2001, 2009; Kelemen, 2011). The CJEU started out as an international court but today it is both the constitutional and the administrative court of the EU. It seeks to find a legal balance between European integration, member state sovereignty and citizens’ rights. However, judicial integration has been increasingly challenged since the early 1990s on various grounds. A number of new European public policies have developed outside the realm of hard law, through the use of soft law and non- legislative instruments of ‘new public governance’. All these instruments, contrary to hard law, are beyond the Court’s control. In the meantime, the end of permissive consensus – the rather loose but passive support of European citizens for the continual widening and deepening of the European integration process – has put pressure on the supranational institutions, and in particular, the CJEU. A higher degree of public scrutiny in recent years appears to have led the Court to exert self-restraint rather than activism. The chapters have shown that, while this can be observed in several cases, the CJEU remains instrumental in deepening European integration, and is still a core institution of the EU system. This last chapter argues in favour of a continued judicialization of the EU and explains the approach we used to come to this conclusion.
Sabine Saurugger, Fabien Terpan
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