The European Court's Political Power Across Time and Space (original) (raw)
Related papers
The European Court's Political Power: Selected Essays – By Karen J. Alter
European Law Journal, 2010
EU scholarship has seen several 'turns' during the last decade-most of them are theoretical, but some have also been empirical and even methodological. The most notable ones have been the institutionalist turn (eg Aspinwall and Schneider, Bulmer, Olsen), the constructivist turn (eg Checkel, Risse), the deliberative turn (eg Eriksen and Fossum), the governance turn (eg Kohler-Koch), and the government turn (eg Egeberg, Trondal). These turns have contributed to bringing EU scholarship closer to the mother disciplines of political science, law and economy, and also to bring these disciplines into mutual interaction. It may also have turned EU scholarship into more generic research compared to the sui generis EU studies that characterised the 1950s and 1960s. New questions are being asked, new theoretical tools are introduced to address old questions, and new methods have been applied. The book by Luc Verhey, Phillipp Kiiver and Sandor Loeffen perhaps illuminates an 'accountability turn' in EU scholarship. This turn contributes to import lessons from domestic governance to our understanding of continuity and change in EU governance, for example with respect to the relationship between legislative and executive institutions, as well as the relationship between government institutions and citizens. This review addresses the main arguments of the book, whilst also making some comments on each of them.
Introduction: the European Court of Justice as a political actor
Judicial Activism at the European Court of Justice
The context within which this volume was developed is the rise, in the last years, of concerns among national authorities and judiciaries, and within European civil society, about alleged judicial activism at the European Court of Justice. The subject of judicial activism has become a fashionable topic of academic commentary once again. This volume does not take sides in this debate, in the sense that it does not seek to offer a simple answer to the question of whether the European Court of Justice (ECJ) is indeed an activist court. Indeed, a simple answer would be misleading when the question itself is underdetermined. Arguing that a court is activist may indeed mean many different things. We do, however, assume that the Court of Justice is (also) a political actor. It is sometimes claimed by judges of the ECJ that their institution cannot be a political actor for the simple reason that it is a passive institution which has to wait and see which cases will come its way, and which then will try to solve those cases as best it can, without the capacity to steer the evolution of EU law on the basis of political priorities. Although one can understand why members of the Court should claim such a politically neutral status, that claim is not very plausible. Indeed, the kinds of cases that will be submitted to the Court are often quite predictable, and some of the 'unexpected' cases (those that arrive at the Court in a surprising manner) may still have strong political connotations, in that they involve contrasting political preferences among the parties to a case regarding the interpretation of an ambiguous norm of EU law. The national authorities and judiciaries generally do not mind this political role of the Court of Justice. Today still, the dominant perception among political actors is that the Court of Justice plays a useful role in the European integration process. Harsh criticism is sometimes made of single judgments, and sometimes States hesitate to extend the Court's power to new areas of cooperation (most famously, at the time of Maastricht Treaty, in respect of the new areas of cooperation on foreign affairs and home affairs), but only a few governments have ever expressed
The politics of the European Court of Justice
1998
Examining the major, if controversial, role of the European Court of Justice in the development of the European Union, this text argues that the Court is a highly political body - contrary to the legal formalism which sees the Court's decisions as the unfolding of pure legal principles. Kuper also argues that the Court has played and is still playing a significant part in the direction and very definition of the European Community. This then raises issues of democratic legitimacy, and the Court's work is evaluated with reference to issues concerning the distribution of powers and competences among the various bodies of the Community - the Court, Commission, Council, Parliament and Member States.
2013
Legal and political sciences scholars have described at length how the European Court of Justice (ECJ), driven by the ultimate goal set by the founding fathers the ’ever closer union between the peoples of Europe’ and prompted and supported by supranational institutions (Commission, European Parliament) and sub-national actors (national courts, litigants) promoted its own idea of Europe (supranational, federal, centralised, unified, and driven by law). Post-Maastricht trends, away from the classic Community method and exploring alternative ways of making Europe, are challenging the Court’s ideal. These developments are captured under the analytical label of new intergovernmentalism. This paper investigate the Court’s contribution and reaction to these transformations, by analysing judicial developments (case law, procedures, practices and communications) to find out whether, indeed, the Court’s is still pursuing the same European ideal, how it approaches the setting up of new decisi...
A Response to S. Hix and B. Høyland: "Judicial Politics and the European Court of Justice"
This paper is in response to Hix and Høyland and their analysis of the overall theory and current quantitative understanding of the European Union’s judicial politics. In their work, the authors aimed to give a brief theoretical overview of judicial politics, courts, and constitutions, subsequently moving on to a focus on the European judicial system and the European Court of Justice in particular.
The Political Impact of the Case Law of the Court of Justice of the European Union
European Constitutional Law Review, 2021
Conceptual framework for understanding the degree and scope of the political impact of the case law of the Court of Justice of the European Union – Definition of ‘the political’ – Carl Schmitt’s concept of political realism – Chantal Mouffe’s agonistic theory of ‘the political’ – ‘The political’ in the light of three classical categories: (1) polity, (2) policy, and (3) politics – Framework for understanding polity as competing values, policy as conflicts over resources, politics as fights for power – Criteria of political significance and impact of the Court of Justice case law – Two illustrations: Case C-391/09 Runevič-Vardyn v Vilniaus miesto savivaldybės administracija and Case C-192/18 European Commission v Republic of Poland set against the broader context of politically significant cases from the Court of Justice of the European Union.
The European Union legal order was created in the realm of International Law. Some time after, the European Court of Justice qualified it as a “new order of international law” (‘Van Gend & Loos’). Since then the epiphet ‘international’ has disappeared and the ‘new legal order’ has been modeled inspired by a ‘certain idea of Law’ - the State or national legal order. This paper describes briefly some of the pathways followed by the ECJ in its activist action of building a Law.