http://orcid.org/0000-0002-7192-3967
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ABSTRACT
National courts all over Europe have faced the challenge of how to protect rights in times of crisis. In the context of the Spanish housing crisis, judges adopted an activist role by mobilizing the Court of Justice of the EU in multiple cases to challenge national legislation. This forced the Spanish government to adopt reforms to strengthen the position of mortgage debtors to fulfil the obligations under EU consumer law. This article discerns the factors that lead Spanish judges to cooperate with the CJEU. We show that, although political and legal opportunities and resources play a role for the judicial mobilization of EU law, the degree to which they matter vary when we consider: the role of ‘judicial entrepreneurs’ who introduce EU law as a novel legal strategy, and the impact of this tactic on how judicial actors frame EU law, with important consequences for the politics within the judiciary.
Acknowledgments
We thank the interviewees for their valuable contribution to our understanding of the judicial mobilization of EU law. We also thank the editors of this Special Issue and the organisers and participants of the workshops “Implementation and judicial politics: Conflict and compliance in the EU multi-level system” (WZB Berlin, 3-4 March 2016) and “Constitución y Crisis Europea” (Pompeu Fabra University Barcelona, 10-11 November 2016), where an earlier version of this article was presented and where we received wide ranging comments. We also wish to express our gratitude to Tommaso Pavone and two anonymous referees for their valuable suggestions and comments. This research is funded and conducted under the auspice of the project “Gobernanza económica europea y transformación constitucional” (DER2014-57116-P) and iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts. (Danish National Research Foundation Grant no. DNRF105).
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
2. C-415/11, Mohamed Aziz v Catalunyacaixa, 14 March 2013.
4. Royal Decree-Law 6/2012 concerning urgent measures for the protection of mortgage holders who might be in a vulnerable situation; and Royal Decree-Law 27/2012 on urgent measures to reinforce the protection of mortgage debtors
5. C-415/11, Mohamed Aziz v Catalunyacaixa, 14 March 2013.
6. Supreme Court Judgment 241/2013, 9 May 2013.
7. Joined Cases C-154/15, C-307/15 and C-308/15, Gutiérrez Naranjo, Palacios Martínez and Irles López, 21 December 2016.
8. C-169/14, Juan Carlos Sánchez Morcillo and María del Carmen Abril García v. Banco Bilbao Vizcaya Argentaria, 17 July 2014, followed by Sánchez Morcillo II, 16 July 2015.
9. Joined Cases C-482/13, C-484/13, C-485/13 and C-487/13, Hidalgo Rueda, 21 January 2015.
10. C-602/13, BBVA v. Quintano Ujeta, 11 June 2015.
11. C-8/14, BBVA v. Pedro Penalva López, Clara López Durán, Diego Fernández Gabarro, 29 October 2015.
12. C-421/14, Banco Primus, 26 January 2017.
13. Joined cases C-240/98, C-241/98, C-242/98, C-243/98 and C-244/98, Océano Grupo Editorial, 27 June 2000
14. Judge Fernández Seijo authorized us to reveal his identity.
15. C-618/10, Banesto, 14 June 2012.
16. C-169/14, Sánchez Morcillo, Order 5 June 2015. Moreover, in this case the CJEU took into account the fact that the litigant and his family ran the risk of losing their home in order to grant the expedited procedure.
18. Constitutional Court Decision 113/2011, 19 July 2011; Constitutional Court Decision 7/2014, 14 January 2014.
20. C-240/98, Océano Grupo Editorial and Salvat Editores, 27 June 2000.
21. Opinion of Advocate General Kokott delivered on 8 November 2012.