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

Published date01 July 2019
Date01 July 2019
The Evolving Judicial Politics of European
Integration: The European Court of Justice and
national courts revisited
Tommaso Pavone |R. Daniel Kelemen*
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 thesisproved
selferoding 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.
Despite being the most consolidated of all transnational legal orders,
the European Union lacks the coercive and
bureaucratic capacity that national states use to govern from the top down.
EU institutions must therefore project
their authority by forging subnational compliance constituencies
comprised of ontheground 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
T.C. Halliday & G. Shaffer, Transnational Legal Orders (Cambridge University Press, 2015).
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 StateBuilding Explain the EU, (European Union Studies Association (EUSA) BiAnnual
Conference 2017).
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;
regulators, NGOs, civic organizations, and lawyers.
Although by some estimates up to forty percent of Member
State legislation has come to be partially or fully harmonized by EU law,
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.
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)
tucked away in the fairyland Duchy of Luxembourgwith limited resources and uncertain authority successfully
join with national courts to fashion a constitutional framework for a federaltype structure in Europe?
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,
the JET extended broader theories of the judicialization of pol-
iticsat the domestic and international levels.
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 socalled preliminary reference procedure, which enables even
the most humble local court to send a reference for a preliminary rulingto the ECJ to obtain an interpretation of
those EU laws relevant to the resolution of a dispute before it.
The procedure empowered ordinary national courts,
which previously lacked wideranging 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-
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
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
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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.
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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.
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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.
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).
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
K. ALTER,European, above, n.9, at 466, 467.
Community Lawwas 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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