The least dangerous branch of European governance? The European Court of Justice under the checks and balances doctrine

Höreth, Marcus

doi:10.4337/9780857939401.00008

Cited by 4 publications

(6 citation statements)

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“…The United States, which has had a powerful constitutional court for much longer than the EU, has generated an extensive critical scholarship on the risks of judicial supremacy and how they can be managed (Harel and Shinar, ; Gant, ). It has, moreover, a number of constitutional features which give its legislature, even if it is subject to the supervision of the Supreme Court, more autonomy than that of the EU (Höreth, , p. 33).…”

Section: Resultsmentioning

confidence: 99%

“…However, at the EU level it represents a misunderstanding of how the system works. Because most Court judgments are Treaty interpretation, akin to constitutional interpretation, they cannot be corrected by legislation (Stone Sweet and Brunell, ; Syrpis, ; Davies, ; Höreth, ; Conway, ; Dawson, ). Only Treaty amendment could reverse such judgments, and this is an unfeasibly high threshold except in the case of catastrophic judgments (Pollack, ).…”

Section: The Myth Of Overridementioning

confidence: 99%

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The European Union Legislature as an Agent of the European Court of Justice

Davies

2016

J of Common Market Studies

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The European Union is unique among jurisdictions in having constitutionalized its policy goals and methods, by embedding these in the Treaties. As a result, the legislature is far more constrained in its activities than is the case in other constitutional orders. Yet the Treaties are indeterminate, and it is the Court of Justice which interprets and delimits them, and instructs the legislature on how and to what extent it may pursue them. There is, in substance, a principal-agent relationship between the Court and the EU legislature, enforceable by the Court's capacity to annul legislation contrary to its preferences. An examination of internal market legislation shows that indeed it consists of codification of prior case law. The judicial constraints on the EU legislature are sufficiently tight that the legislature is more akin to a subordinate implementing regulator than to an autonomous political policy-maker.

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Section: Resultsmentioning

confidence: 99%

Section: The Myth Of Overridementioning

confidence: 99%

The European Union Legislature as an Agent of the European Court of Justice

Davies

2016

J of Common Market Studies

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“…Ultimately, member states may invalidate CJEU decisions or case law by amending the Treaty or refusing to comply with the CJEU's decisions. The CJEU would take this political influence into account in advance in its decisions to avoid eroding its authority and legitimacy (Carrubba, Gabel, & Hankla, 2008;Höreth, 2013;Martinsen, 2015).…”

Section: Law and Politics In The Eumentioning

confidence: 99%

National gambling policies and the containment of the EU’s politico-legal influence

Selin

2019

Nordic Studies on Alcohol and Drugs

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Aims: Research has shown that the EU's politico-legal influence over member states is contained through two political strategies: contained compliance and anticipatory obedience. Previous studies on gambling policies in the EU have quite uncritically presumed that the EU is capable of inducing changes, or even forcing changes, in national gambling policies. In this article, the objective was to investigate whether member states have adopted the two strategies allowing a containment of the EU's influence on their national gambling policies. Design: The politico-legal influence of the Court of Justice of the European Union (CJEU) and the European Commission on national gambling policy is analysed in the case of Finnish monopoly-based gambling policy. The analysis is based on case law and policy documents. Results: The results indicate that Finland has adopted both anticipatory obedience and contained compliance when striving to safeguard its gambling monopoly system. Contained compliance was adopted during the early period of Finland's accession (1995-2001). Anticipatory obedience was exercised between the years 2004 and 2013, a period characterised by several critical legal cases and the infringement procedure commenced by the European Commission against Finland. During the third period (2014-2017), when the merger of three monopoly operators into a single state-owned company was on the agenda, neither strategy was adopted, indicating little EU influence (despite public justifications of the same). Conclusion: The EU's opportunities to induce changes in the gambling policies of member states should not be overemphasised because member states are able to contain the EU's politico-legal influence. Future analyses of national gambling policies in the EU would benefit from taking the interaction between member states and the EU into account.

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“…Put differently, Courts are relied upon ‘to address major public policy issues and political disputes' (Kelemen, , p. 259). Some literature analyzed the far‐reaching case‐law of the ECJ through delegation theory, whereby member states – caught between further market integration and political constraints – acting as principals, empowered the ECJ as agent to enforce law against the member states themselves (Höreth, ; Majone, ; Pollack, , ). In that context, Stone Sweet and Brunell qualified the ECJ as a ‘Trustee Court' or ‘super‐agent', as the ECJ is empowered to enforce the law against states themselves (Stone Sweet and Brunell, 2013).…”

Section: Literature Review: the Judicialization Of Europementioning

confidence: 99%

“…Additionally, other authors do not qualify the Court's alignment with member states' preferences as a sign of judicial restraint, but rather as ‘a manifestation of the inter‐institutional dialogue and an expression of the institutional balance in action' (Hatzopulos, , p. 107). Moreover, Höreth () argued that non‐compliance by member states is not really a threat but rather an opportunity for the ECJ to develop further its judicial regime, as non‐compliance generates new legal actions, hence new rulings. Martinsen (, p. 226), in a thorough study of the power of the ECJ in the development of EU social policy, concluded in a nuanced way that the influence of the ECJ ‘varies over time between full and no impact, depending on how the Commission, the Council, and the European Parliament respond to jurisprudence'.…”

Section: Literature Review: the Judicialization Of Europementioning

confidence: 99%

The ECJ's Construction of an EU Mobility Regime‐Judicialization and the Posting of Third‐country Nationals

Mussche

Lens

2019

J of Common Market Studies

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The role of the Court of Justice in furthering the integration of the European Union is an unresolved topic of debate. This article contributes to the judicialization debate by assessing the impact of the Vander Elst Case‐law, which allowed third‐country nationals (TCNs) to be posted freely across the EU without work permits in the countries of posting. Based on Belgian posting data, we demonstrate that the ECJ introduced a mobility regime that is growing in importance and even outnumbers classical labour migration. We argue that judicialization not only results in ‘codification' of its case‐law or ‘modification' of it, but also in ‘Direct Design', whereby the Court creates new economic realities all by itself. While this regime further lessens the migration sovereignty of member states, the rising use of posting indicates at the same time the increasing role of the free movement of services in developing a single European labour market.

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The least dangerous branch of European governance? The European Court of Justice under the checks and balances doctrine

Cited by 4 publications

References 0 publications

The European Union Legislature as an Agent of the European Court of Justice

The European Union Legislature as an Agent of the European Court of Justice

National gambling policies and the containment of the EU’s politico-legal influence

The ECJ's Construction of an EU Mobility Regime‐Judicialization and the Posting of Third‐country Nationals

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