In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe

Mayoral, Juan Antonio Monterrey

doi:10.1111/jcms.12488

Cited by 13 publications

(4 citation statements)

References 42 publications

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“…Still, there are significant differences in the use of the reference system in the member states (Mayoral 2016). Analysing the British case, Golub pointed to disincentives to refer cases, which allows policy outcomes to be controlled while slowing down the integration process (Golub 1996: 381).…”

Section: The Ecj's Supporting Coalition: Member-state Courts and Private Litigantsmentioning

confidence: 99%

The European Court of Justice and the Policy Process

Schmidt

2018

115

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The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

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Section: The Ecj's Supporting Coalition: Member-state Courts and Private Litigantsmentioning

confidence: 99%

The European Court of Justice and the Policy Process

Schmidt

2018

115

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“…Furthermore, the extra margin of maneuver to the national courts might ease the application of the judgment at the national level, and thus respond to an awareness of the need to ensure the "functional legitimacy" of the Court argued by Bobek (2013). This, in turn, might improve chances of compliance with legally innovative rulings, and encourage national courts to keep engaging with the Court, thus contributing to building a trust bond between the Court and its national counterparts (Mayoral, 2017). As the Court provides a decision on the compatibility of the national measure, we expect that the national courts' preference for clear guidance is met (Van Gestel and De Poorter, 2019).…”

Section: Discussionmentioning

confidence: 99%

A Spoonful of Sugar: Deference at the European Court of Justice

Zurita,

Brekke

2023

Preprint

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This article analyses the European Court of Justice’s strategic use of deference as a resilience technique in the preliminary reference procedure. It focuses on the strategic potential of using deference in two scenarios: First, when the Court uses teleological interpretation or expands the scope of the EU legal order; second, when it declares national measures incompatible with EU law. The findings indicate that the Court is more likely to use deference when expanding EU law, and less likely to defer when it declares national measures incompatible with EU law. The article challenges commonly held assumptions regarding the use of deference. First, the findings substantially qualify accounts linking the increase of deference to the maturity of the EU legal order and a certain halt of judicial activism. Deference allows the Court to explore new frontiers of EU law, suggesting that although the legal order might have matured, the Court does not perceive the project of legal integration as completed. Second, the article defies claims that deference is used by the Court as a "weapon of restraint".

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“…Research demonstrates that AOs have a negative effect on deliberation, and cause frustration among referring judges (Karin Leijon and Monika Glavina, 2020;Mayoral, 2016). The Court risks weakening the 'per se compliance pull of a dialogue conducted between courts in legalese' (Weiler, 1999).…”

Section: Discussion: It Was Too Good To Be Truementioning

confidence: 99%

That's an Order! The Orders of the CJEU and the Effect of Article 99 RoP on Judicial Cooperation

et al. 2020

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The benefits of timely justice and rigorous judicial argument are impossible to overstate and hard to reconcile. In its struggle to deliver both, the Court of Justice of the European Union has initiated several reforms of its procedures. The so-called adjudicating orders arguably achieve the impossible: They fast-track recurring questions while safeguarding legal coherence. The present article unpacks this premise. It shows that seemingly inconsequential procedural amendments, often overlooked by scholars, give the Court full control over relevant European legal problems, and centralize its power. Concretely, the analysis introduces a typology of orders of the Court, to demonstrate the unique legal character of adjudicating orders. It then investigates their effects against the backdrop of manifold procedural reforms and institutional adjustments. The findings indicate that the greatest efficiency gains follow reforms, which the Court initiates and implements in relative anonymity. Moreover, the use of adjudicating orders increases in response to a sudden and considerable increase of legally similar preliminary references from one Member State. An equal increase of references from the courts of several Member States has no such effect. The findings suggest that the Court uses adjudicating orders to disengage from 'local' problems and unilaterally terminate the conversations with resolute national courts. Thereby, the preliminary reference procedure, envisaged and promoted as a collaborative tool, transforms into a centralized mechanism of speedy and authoritative dispute resolution.

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In the CJEU Judges Trust: A New Approach in the Judicial Construction of Europe

Cited by 13 publications

References 42 publications

The European Court of Justice and the Policy Process

The European Court of Justice and the Policy Process

A Spoonful of Sugar: Deference at the European Court of Justice

That's an Order! The Orders of the CJEU and the Effect of Article 99 RoP on Judicial Cooperation

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