The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

• Published date: 01 July 2019
• Author: R. Daniel Kelemen,Tommaso Pavone
• Date: 01 July 2019
• DOI: http://doi.org/10.1111/eulj.12321

ORIGINAL ARTICLE

The Evolving Judicial Politics of European

Integration: The European Court of Justice and

national courts revisited

Tommaso Pavone |R. Daniel Kelemen*

Abstract

This article analyzes how the judicial politics sparked by the European Union's (EU) legal

development have evolved over time. Existing studies have traced how lower national courts began

cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered

them to challenge government policies and the decisions of their domestic judicial superiors. We

argue that the institutional dynamics identified by this ‘judicial empowerment thesis’proved

self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial

hierarchies and to influence the development EU law in ways that were also encouraged by the

ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ

with comparative case study and interview evidence. We conclude that while these evolving judicial

politics signal the institutional maturation of the EU legal order, they also risk weakening the

decentralized enforcement of European law.

1|INTRODUCTION

Despite being the most consolidated of all ‘transnational legal orders,’

1

the European Union lacks the coercive and

bureaucratic capacity that national states use to govern from the top down.

2

EU institutions must therefore project

their authority by forging subnational ‘compliance constituencies’

3

comprised of on‐the‐ground networks of

*The authors are, respectively, PhD Candidate in Politics, Princeton University, and Professor of Political Science & Law, Rutgers University. We would like

to thank participants of the 2017 APSA annual meeting, the 2018 Philadelphia Europeanists (PHEW) workshop, and workshops at the University of Oslo's

PluriCourts Centre and at Columbia Law School, for invaluable feedback on previous versions of this manuscript. Funding for this research was generously

provided by a Doctoral Dissertation Research Improvement Grant (no. 1628301) by the National Science Foundation's Division of Social and Economic

Sciences

1

T.C. Halliday & G. Shaffer, Transnational Legal Orders (Cambridge University Press, 2015).

2

R. D. Kelemen, ‘European States in Comparative Perspective’, in O. Fioretos, et al. (eds), The Oxford Handbook of Historical Institutionalism (Oxford Univer-

sity Press, 2016); R. D. Kelemen & K. McNamara, ‘How Thoeries of State‐Building Explain the EU’, (European Union Studies Association (EUSA) Bi‐Annual

Conference 2017).

3

K. Alter, The New Terrain of International Law (Princeton University Press, 2014); K. Alter, et al., ‘How Context Shapes the Authority of International Courts’,

(2016) 79 Law & Contemporary Problems, 36.

Received: 29 January 2019 Revised: 28 March 2019 Accepted: 2 April 2019

DOI: 10.1111/eulj.12321

352 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:352–373.wileyonlinelibrary.com/journal/eulj

regulators, NGOs, civic organizations, and lawyers.

4

Although by some estimates up to forty percent of Member

State legislation has come to be partially or fully harmonized by EU law,

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the EU relies heavily on actors below the

national state to invoke these rules and pressure national governments into compliance.

In this respect, there is no more essential broker of the EU's governance capacity thanthe national judge. Without

the force of law and the authority of domestic courts, the EU would scarcely be able to govern a transnational market

spanning half a billion people and over two dozen national states.

6

This raises one of the great puzzles of European

integration that we revisit in this article: How did the EU's supreme court –the European Court of Justice (ECJ)

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‘tucked away in the fairyland Duchy of Luxembourg’with limited resources and uncertain authority –successfully

join with national courts to fashion ‘a constitutional framework for a federal‐type structure in Europe?’

8

While the

ECJ had a clear interest in cajoling national courts into enforcing EU law, why did domestic judges and governments

cooperate and gradually accept the ECJ's transformative legal doctrines?

The ‘judicial empowerment thesis’(hereafter, the JET) provided a powerful answer to this puzzle. Developed by

scholars such as Weiler, Burley and Mattli, and Alter,

9

the JET extended broader theories of the ‘judicialization of pol-

itics’at the domestic and international levels.

10

It suggested that ordinary judges in lower level national courts saw

engaging in dialogue with the ECJ and accepting its rulings as a way to expand their own powers. The linchpin to this

dialogue was a provision of the Treaty of Rome, the so‐called preliminary reference procedure, which enables even

the most humble local court to send a ‘reference for a preliminary ruling’to the ECJ to obtain an interpretation of

those EU laws relevant to the resolution of a dispute before it.

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The procedure empowered ordinary national courts,

which previously lacked wide‐ranging powers of judicial review and might regularly see their rulings overturned upon

appeal, because it enabled them to circumvent their national judicial hierarchy. Lower courts could now refer cases

directly to a higher judicial power in Luxembourg –an alternative judicial authority to domestic high courts, or what

Alter vividly referred to as a ‘second parent’–to challenge government policies or the jurisprudence of their supe-

riors.

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Simultaneously, this procedure empowered the ECJ by providing it with a steady flow of cases and a direct

channel into national legal systems. High courts had more to lose from the ECJ's intrusion into their domestic legal

orders and were far less enthusiastic; in some cases, they ardently opposed dialogue between lower national courts

and the ECJ. However, when ordinary national courts referred cases and applied ECJ rulings, they made Community

law

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a reality on the ground within Member States –and did so using a procedure that all governments had agreed

to in theTreaty of Rome. If higher national courts or national governments wanted to challenge ECJ decisions or their

4

A.M. Slaughter, A New World Order (Princeton University Press 2004); B. Eberlein & A.L. Newman, ‘Escaping the international governance dilemma? Incor-

porated transgovernmental networks in the European Union’,(2008) 21 Journal of Governance, 25; K. ALTER,Terrain, above, no. 3; T. Pavone, ‘From Marx to

Market’, (2019) 55 Law & Society Review,1.

5

A. Toeller, ‘Measuring and Comparing the Europeanization of National Legislation’, (2010) 48 Journal of Common Market Studies, 417.

6

R. D. Kelemen, Eurolegalism (Harvard University, Press 2011); A. Vauchez, Brokering Europe (Cambridge University Press, 2015).

7

‘Strictly speaking, Court of Justice of the EU (CJEU) refers to the entire set of EU courts in Luxembourg including both the Court of Justice (ECJ) and the

subsidiary General Court. Using the acronym CJEU to refer to the ECJ alone is improper, so we use the term ECJ instead.

8

E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, (1981) 75 American Jounrnal of International Law,1,at1.

9

J.H.H. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal, 2403; A.M. Burley & W. Mattli, ‘Europe Before the Court’,(1993) 47 Interna-

tional Organization, 41; J.H.H. Weiler, ‘A Quiet Revolution’, (1994) 26 Comparative Political Studies, 510; K. Alter, ‘The European Court's Political Power’,

(1996) 19 West European Politics, 452.

10

M. Shapiro & A. Stone Sweet, On Law Politics and Judicialization (Oxford University Press, 2002); T. Ginsburg, Judicial Review in New Democracies: Consti-

tutional courts in Asian cases (Cambridge University Press, 2003); R. Hirschl, Towards Juristocracy (Harvard University Press, 2007); C. Davis, Why Adjudicate?

(Princeton University Press, 2015).

11

The procedure was outlined in Article 177 of the original Treaty of Rome, now in Article 267 of the Treaty on the Functioning of the European Union

(TFEU).

12

K. ALTER,European, above, n.9, at 466, 467.

13

‘Community Law’was the term traditionally used to refer to law deriving from the Treaties, secondary legislation andECJ rulings. Since the entry into

force of the Lisbon Treaty in 2009, Community Law is referred to as ‘European Union Law.’

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