Susanne K. Schmidt
- Published in print:
- 2018
- Published Online:
- February 2018
- ISBN:
- 9780198717775
- eISBN:
- 9780191787287
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198717775.003.0001
- Subject:
- Political Science, European Union
An intergovernmental treaty that has specific aims for cooperation has a very different thrust than national constitutions, which are designed to allow political order and to safeguard individual ...
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An intergovernmental treaty that has specific aims for cooperation has a very different thrust than national constitutions, which are designed to allow political order and to safeguard individual rights. I argue that the literature in political science on the ECJ is too focused on showing how member states can influence the Court. It overlooks the supranational outcomes that ensue when the Treaty contains policy prescriptions, while being constitutionalized through supremacy and direct effect. Through its case law, the Court provides additions to the Treaty. To demonstrate the importance of judicial policymaking through case-law development and codification, three steps are fundamental to the book’s argument. First, we have to understand both case-law development and the impact of the Court. Secondly and thirdly, we must ask how the ECJ’s case law may make a difference to policymaking at both the European and member-state levels.Less
An intergovernmental treaty that has specific aims for cooperation has a very different thrust than national constitutions, which are designed to allow political order and to safeguard individual rights. I argue that the literature in political science on the ECJ is too focused on showing how member states can influence the Court. It overlooks the supranational outcomes that ensue when the Treaty contains policy prescriptions, while being constitutionalized through supremacy and direct effect. Through its case law, the Court provides additions to the Treaty. To demonstrate the importance of judicial policymaking through case-law development and codification, three steps are fundamental to the book’s argument. First, we have to understand both case-law development and the impact of the Court. Secondly and thirdly, we must ask how the ECJ’s case law may make a difference to policymaking at both the European and member-state levels.
Susanne K. Schmidt
- Published in print:
- 2018
- Published Online:
- February 2018
- ISBN:
- 9780198717775
- eISBN:
- 9780191787287
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198717775.003.0003
- Subject:
- Political Science, European Union
Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal ...
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Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.Less
Chapter 3 turns to the analysis of case-law development. The overlapping nature of EU and domestic legal orders, coupled with the great material detail in the EU Treaty, leads to a state of legal uncertainty concerning the reach of EU law. Some private actors benefit from drawing on this supranational, alternative legal setting. The interpretation of the four freedoms and citizenship shows that legal uncertainty about the Treaty’s ever-broader scope is embedded in a path-dependent interpretation of rights. Principles established in one area are transferred to other areas, as most private actors perceive there to be benefits from such a transfer and legitimize their claims through established principles. Legal uncertainty and path dependence appear contradictory, but they are helpful concepts for understanding how the Court can further the stability and predictability of European law while giving new incentives for further integration.
Susanne K. Schmidt
- Published in print:
- 2018
- Published Online:
- February 2018
- ISBN:
- 9780198717775
- eISBN:
- 9780191787287
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198717775.001.0001
- Subject:
- Political Science, European Union
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 ...
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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.Less
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.
Antonio Tizzano
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780190072506
- eISBN:
- 9780190072520
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190072506.003.0028
- Subject:
- Law, Public International Law
The Introductory Note describes the main developments of 2017 with regard to the functioning and the organization of the Court of Justice of the European Union, as well as to its case-law. The Court ...
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The Introductory Note describes the main developments of 2017 with regard to the functioning and the organization of the Court of Justice of the European Union, as well as to its case-law. The Court of Justice and the General Court of the European Union were confronted with many delicate legal questions pertaining to all aspects of EU law. The Introductory Note provides for an overview of the most important judgments that were delivered in 2017, in an array of legal domains, including rights and obligations of third-country migrants, fundamental rights, rules of competition and internal market, common commercial policy and common foreign and security policy.Less
The Introductory Note describes the main developments of 2017 with regard to the functioning and the organization of the Court of Justice of the European Union, as well as to its case-law. The Court of Justice and the General Court of the European Union were confronted with many delicate legal questions pertaining to all aspects of EU law. The Introductory Note provides for an overview of the most important judgments that were delivered in 2017, in an array of legal domains, including rights and obligations of third-country migrants, fundamental rights, rules of competition and internal market, common commercial policy and common foreign and security policy.
