Does the European Court of Justice induce societal change? The record so far—with a green future in mind

• Published date: 01 May 2023
• Author: Henri Waele
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12484

ORIGINAL ARTICLE

Does the European Court of Justice induce

societal change? The record so far—with a green

future in mind

Henri de Waele

*

Abstract

Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well asa

conflict-solving institution. From the existing literature, it becomes less clear however to what extent

it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in

the current day and age, considering the gargantuan challenges of accelerating climate change and

environmental degradation: if the ECJ generally manages to ‘deliver’, at least some further progress

could realistically be expected on this front also. The present article conducts an examination

reviewing the experiences in the green domain from a comparative perspective, seeking to discern

possible patterns and draw common inferences. Thus, it aims to expose how and when judges prove

successful in recalibrating the conduct or opinionsof real people in actual practice. Those insightsmay

well inform future progressin different fields—the ecologicalas much as anywhere.

1|INTRODUCTION: A COURT AND ITS IMPACT

The European Union and its Court of Justice have been studied almost ad nauseam. Legal scholars and political sci-

entists have written much on the impact of the Court on the Union and how its case-law has transformed the legal

system.

1

Equal attention has gone out to the interaction between judges, national governments and other interlocu-

tors, as well as to the standards of behaviour for this ‘least dangerous branch’.

2

It has performed well in its main

* Professor of International and European Law, Centre for State and Law (SteR), Radboud University Nijmegen; Visiting Professor, University of Antwerp;

Senior Fellow, Centre for European Integration Studies, University of Bonn.

1

Seminal treatises are J.H.H. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal, 243–283; A. Stone Sweet, The Judicial Construction of

Europe (Oxford University Press, 2004); A.-M. Burley and W. Mattli, ‘Europe before the Court: A Political Theory of Legal Integration’, (1993)

47 International Organization,41–76.

2

See, e.g., Dorte Sindbjerg Martinsen, An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union (Oxford University

Press, 2015); the contributions in P. Syrpis (ed.), The Judiciary, the Legislature, and the EU Internal Market (Cambridge University Press, 2012) or in M. Adams,

H. de Waele, J. Meeusen and G. Straetmans (eds.), Judging Europe's Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing,

2013); as well as H. Rasmussen, On Law and Policy in the European Court of Justice (Martinus Nijhoff Publishers, 1986).

Received: 12 July 2022 Revised: 6 February 2024 Accepted: 7 February 2024

DOI: 10.1111/eulj.12484

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2024 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2023;29:281–293. wileyonlinelibrary.com/journal/eulj 281