The Court of Justice in times of politicisation: ‘law as a mask and shield’ revisited

Abstract

This contribution analyses if and under what conditions bottom-up pressures constrain the Court of Justice of the European Union (CJEU). Neofunctionalists famously explained the power of the Court by its use of 'law as a mask and shield'. Due to its technical nature, the Court is able to mask the political substance of 'integration through law' and to shield it from political challenges. We revisit this argument in times of politicisation of the EU and develop a typology of four constellations depending on different kinds of bottom-up pressures. We argue that depoliticised integration through law still functions, to varying degrees, in face of either governmental contestation or public politicisation. By contrast, if member state governments and the public jointly oppose further integration through law, the Court is constrained as further expansive jurisprudence could even reinforce politicisation and risk political backlash. We illustrate our argument with case law on EU citizenship.

EU Actors under pressure: politicisation and depoliticisation as strategic responses

“…Against this backdrop, the Special Issue conceptualises bottom-up politicisation; theorises the mechanisms underlying EU-level responses (Schimmelfennig, 2020); and analyses the types of responses chosen. The contributions look at supranational actors, like the Court of Justice of the European Union (CJEU), the European Central Bank (ECB) and the European Commission (Blauberger & Martinsen, 2020;Moschella, Pinto, & Martocchia Diodati, 2020;Reh, Bressanelli, & Koop, 2020) as well as intergovernmental ones, like the Council of the EU (Hobolt & Wratil, 2020). Also, they zoom in on different decision-arenas, including law-making and inter-institutional relations (Bunea, 2020;Franchino & Mariotto, 2020), and explore a variety of governance challenges, including transparency and the rule of law (Hobolt & Wratil, 2020;Kelemen, 2020).…”

“…Third, if EU-level actorsin particular non-majoritarian institutions like the Commission or the ECB, designed to be insulated from public opinion and domestic electoral cyclesrespond to bottom-up functional as well as political pressures, then they are 'responsive' and not just 'responsible'. Indeed, several contributions in this collection show that institutions react to the signals sent by public opinion, party political competition and electoral politics across the member states (Blauberger & Martinsen, 2020;Hobolt & Wratil, 2020;Moschella et al, 2020;Reh et al, 2020). Contributing to a nascent research agenda on this aspect of EU and international governance (Hagemann, Hobolt, & Wratil, 2017;Rauh, 2016;Schneider, 2018;Wratil, 2018), the collection reflects on the responsiveness of individual actors and on the implications for the EU polity more broadly.…”

Illiberal Trends and Anti-EU Politics in East Central Europe: Major Findings and Avenues for Future Research

“…This is problematic since the selective self-expansion of competences by case law has already damaged the acceptance of court rulings (for an overview, see De Waele 2010). Moreover, it becomes questionable if the CJEU's jurisprudence will be accepted and complied when the court increasingly decides on politically sensitive and contested issues (Blauberger and Martinsen 2020).…”

The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

“…We demonstrate that this major reform was catalyzed by a bureaucratic conflict within the Ministry of Labor and a resistance campaign by government o cials to thwart opportunities for the EFTA Court to build its caselaw. These findings suggest that the same politics of resistance to judicial review that comparative and international relations scholars have hitherto tied to backlash (Voeten 2020, Madsen, Cebulak and Weibusch 2018, Abebe and Ginsburg 2019, Blauberger and Martinsen 2020 or to legislative and bureaucratic noncompliance campaigns (Rosenberg 2008, Conant 2002, Martinsen 2015, Martinsen et al 2019) can also catalyze preemptive reforms indicative of a type of judicial impact that is as often overlooked as it may be undesired by judges.…”