The judiciary as legislator? How the European Court of Justice shapes policy-making in the European Union

Abstract

The question of whether, and if so, how the European Court of Justice influences European integration has been a matter of long-standing academic dispute. Several more recent empirical studies have shown that the Court influences the integration path, but scholars have also documented that member states can successfully limit the practical relevance of activist Court decisions. Drawing on this literature, this paper argues that the Court eventually impacts integration in salient policy fields effectively when the legislator incorporates judicial considerations in the policy-making process. The theoretical section conceptualizes the leverage of the Court in the legislation process and the empirical section elucidates how the judiciary shaped legislation in the development of exchange students' social rights. Findings show that the Court can successfully promote distinct legislative outcomes.

Keywords:

• European Court of Justice
• ECJ
• judicial law-making
• judicial politics
• legal integration
• European social co-ordination

ACKNOWLEDGEMENTS

I would like to thank Klaus Armingeon, Maya Hertig, Marco Steenbergen and Christine Trampusch for suggestions in early stages of this work, and I gratefully acknowledge the most useful comments received from André Bächtiger, Fabrizio Gilardi, Sereina Grünewald, Dirk Lehmkuhl and three anonymous reviewers. The usual disclaimer applies.

Notes

In May 2004 Regulation 883/2004 came into force, replacing Regulation 1408/71. But at the time of writing the new Regulation was not yet applicable, as its implementing Regulation was still under discussion.

Social security payments provide security from social risks like maternity, invalidity or unemployment, whereas social assistance is usually means-tested, non-contributory and financed through taxes.

For a detailed analysis of this dispute see Conant (2002: 177–212) or Verschueren (2007: 315–19).

Piscitello: C-139/82 (1983).

Giletti et al.: C-381/85 (1987).

Commission v. France: C-236/88 (1990).

Regulation 1247/92.

Jauch: C-215/99 (2001), Leclere: C-43/99 (2001).

Van Gend en Loos: C-26/62 (1963), Costa Enel: C-6/64 (1964).

Alter and Meunier-Aitsahalia (1994) have investigated the impact of the famous Cassis de Dijon verdict (C-120/78, 1979) on integration. Even in this quintessential case, which is often used to illustrate how the judiciary can advance European integration, the authors conclude that the Court decision itself did not create policy consequences. Its contribution has rather been to act as a catalyst, triggering and shaping a legislative reaction, which eventually made the general principles of negative integration and mutual recognition the dominant European market strategy. Moreover, they argue that judge-made law on its own would hardly have any general effect, as it can only ‘be applied on a case-by-case basis’ (Alter and Meunier-Aitsahalia 1994: 549). This might be too strong a claim because Court doctrines exert precedential impact beyond the individual case. However, in a European context, an activist legal decision in a salient policy field will on its own not become a generally applied rule. That is why we should focus on how such decisions impact the legislation process.

See Directives 90/364, 90/365 and 93/96.

EC-Treaty: Articles 17–22.

The judiciary ruled that Miss Martinez Sala, a Spanish mother out of work, should obtain a German child-raising allowance (Sala: C-85/96).

Grzelczyk: C-184/99 (2001).

EC Treaty: Article 12.

In the Grzelczyk decision the Court makes clear that students can claim social assistance only in specific situations. The Court explicitly points to the establishment of a certain link to the society in Collins: C-138/02 (2004) and Bidar: C-209/03 (2005).

The Interinstitutional file 2001/011 (COD) keeps record on all policy-making documents. A more detailed version of this paper, documenting the legislation of Directive 2004/38 with reference to all the relevant primary sources, is available upon request.

Commission proposal: Article 21 (2).

Directive 2004/38 has been published in the Official Journal of the European Union, L 158, 77–123.