This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 1 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 2 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 3 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 4 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials. Section 5 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking. Published on-line in the Living Reviews in EU Governance Series, Articles in the Living Reviews in EU Governance series provide critical surveys of the development of knowledge in specific fields of research. Living Reviews are peer-reviewed, up-dated on a regular basis, and fully digitalized. This article has been published at: http://europeangovernance.livingreviews.org/Articles/lreg-2010-2/

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1630248_code718088.pdf?abstractid=1583345&mirid=5&type=2

The European Court of Justice and the Judicialization of EU Governance

In an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decision-making of the European Court of Justice (ECJ) has been constrained systematically — by the threat of override on the part of member state governments, acting collectively, and by the threat of noncompliance on the part of any single state. They also purport to have found strong evidence in favor of intergovernmentalist, but not neofunctionalist, integration theory. On the basis of analysis of the same data, we demonstrate that the threat of override is not credible and that the legal system is activated, rather than paralyzed, by noncompliance. Moreover, when member state governments did move to nullify the effects of controversial ECJ rulings, they failed to constrain the court, which continued down paths cleared by the prior rulings. Finally, in a head-to-head showdown between intergovernmentalism and neofunctionalism, the latter wins in a landslide.

The European Court of Justice, State Non-Compliance, and the Politics of Override

In an article previously published by the APSR, Carrubba, Gabel, and Hankla claim that the decision making of the European Court of Justice (ECJ) has been constrained—systematically—by the threat of override on the part of member state governments, acting collectively, and by the threat of noncompliance on the part of any single state. They also purport to have found strong evidence in favor of intergovernmentalist, but not neofunctionalist, integration theory. On the basis of analysis of the same data, we demonstrate that the threat of override is not credible and that the legal system is activated, rather than paralyzed, by noncompliance. Moreover, when member state governments did move to nullify the effects of controversial ECJ rulings, they failed to constrain the court, which continued down paths cleared by the prior rulings. Finally, in a head-to-head showdown between intergovernmentalism and neofunctionalism, the latter wins in a landslide.

/pdf/the-european-court-of-justice-state-noncompliance-and-the-1njqc4cbce.pdf

The European Court of Justice, state noncompliance, and the politics of override

This Living Reviews article evaluates the most important strains of social science research on the impact of the European Court of Justice (ECJ) on integration, EU-level policymaking, and national legal orders. Section 2 defines the concepts of judicialization and governance, and discusses how they are related. As the article demonstrates, the “constitutionalization of the EU,” and its effect on EU governance, is one of the most complex and dramatic examples of judicialization in world history. Section 3 discusses the institutional determinants of judicial authority in the EU in light of delegation theory. The European Court, a Trustee of the Treaty system rather than a simple Agent of the Member States, operates in an unusually
broad zone of discretion, a situation the Court has exploited in its efforts to enhance the effectiveness of EU law. Section 4 focuses on the extraordinary impact of the European Court of Justice, and of the legal system it manages, on the overall course of market and political integration. Section 5 provides an overview of the process through which the ECJ’s case law – its jurisprudence – influences the decision-making of non-judicial EU organs and officials.
Section 6 considers the role of the ECJ and the national courts in monitoring and enforcing Member State compliance with EU law, a task that has provoked a steady Europeanization of national law and policymaking.

/pdf/the-european-court-of-justice-and-the-judicialization-of-eu-4v1xwvsywq.pdf

The European Court of Justice and the judicialization of EU governance

An interdisciplinary work that comparatively studies rule of law practices and the relationship between the rule of law and regional integration, a topic largely explored in European integration. By looking at the function of the rule of law in ASEAN rather than what it 'means' measured on normative conception, the book situates the rule of law in broader institutional and political processes in the member states and in regional relations to show the motivations of member states in adopting a peculiar type of regional architecture. It asks whether forging the rule of law in the region can help build it internally for member states. The book revisits discourses on the 'spill-over' of economic integration, the impact of globalization in reshaping the state and generating new tools of the rule of law. It makes a comprehensive comparison - the European Union, Africa Union and MERCOSUR - showing the uneven pathways to rule of law in various contexts.

The Development of the Rule of Law in ASEAN: The State and Regional Integration

. While scholars today are well-acquainted with how the European Community preliminary reference process works, little research has been done to investigate strategic court interaction – that is, intentional, procedural court behaviour employed to influence the substantive direction of legal evolution, within that process. The present investigation, which is part of a larger project examining such court behaviour throughout the referral process, focuses on the initial stage: the decision to refer. Within that stage lies the opportunity for national courts to stack the interpretive deck for the entire decision-making process via a preemptive opinion, the submission of which is neither required, suggested nor prohibited by written procedural guidelines. It is assumed that courts are strategic institutions that seek to maximize their policy objectives, and therefore, national courts submit preemptive opinions to obtain that goal. Such strategic behaviour, however, is influenced by intervening factors – namely the acceptance of European Court of Justice intervention, national judicial procedure, issue complexity and individual court experience.

Stacy A. Nyikos

Papers

Strategic interaction among courts within the preliminary reference process – Stage 1: National court preemptive opinions