The European Court of Justice as a Political Actor and Arena: Analyzing Member States’ Observations under the Preliminary Reference Procedure
The Laval case demonstrates yet again the political significance of the seemingly technical-legal decisions taken by the European Court of Justice. It is clear that EU policy is being made not only in Brussels and Strasbourg, but also in Luxemburg.
However, the strong public reactions to the Laval decision and the intense coalition-building and lobbying of the Court by Member State governments defending different sides in the case demonstrate that the Court is not only a political actor but also a political arena. Thus, it is equally clear that EU politics is being played out in Luxemburg.
Although there is quite a literature on to what extent the Court has been a strategic political actor we propose a new research design to analyze this phenomenon empirically. The Court as an arena, on the other hand, has been much neglected in previous research. As a consequence, we know little about how this important forum for European politics works.
This project will analyze how the EU Member States’ governments have acted in order to influence the Court’s decisions by making observations before the Court under the preliminary reference procedure. We will collect and code all written observations that have been made since the early 1960s, to be able to analyze the impact on the Court’s judgments and the structure of the political conflicts played out at the Court arena over time and across policy issues.
Daniel Naurin, Göteborg University
2008-2013
The main aim of the project has been to make use of a unique documentary material from the archives of the Swedish Foreign Ministry to build a database that may be used for research on the decision making of the Court of Justice of the European Union (CJEU). The documents contain the "observations" (positions and arguments) that the member states of the EU may submit to the CJEU in relation to its handling of the requests for preliminary references submitted by national courts. The possibility to submit observations is the formal channel by which the governments may affect the Court's decisions. The documentary material is therefore central to the research on the relations between the CJEU and the most important political actors of the EU, the member states' governments. The decisions of the CJEU often have important political and social consequences (e.g. the Laval case, which impacted on the Swedish labour market model), which means that there is often a political interest in trying to influence the Court. These interests may come into play in the governments' observations. The balance between judicial independence and the political interests of democratically elected legislative institutions is an important issue in all political systems. This project has aimed at laying the ground for further research into this theme.
The project has successfully completed the data collection and coding, resulting in a data set containing almost 4000 legal issues raised by national courts under the preliminary reference procedure during the years 1997-2008. For all these issues the member states' observations, the opinions submitted by the European Commission and the General Advocate and the judgment of the CJEU have been coded. The variety of positions have been noted, which means that we can study who argues for what, when, together with whom, on which types of issues, etc. A coding has also been made of the substantive content of the positions with respect to European integration, i.e. whether the party argues for an interpretation of the law that limits or safeguards national autonomy vis-à-vis the European Union. The data set also includes several other variables, such the effect of the case in hand on doctrinal development, the political-institutional context, etc. A reliability test of the coding has been performed showing that the data is highly reliable (Naurin et al 2013).
The three most important results of the project
In the paper "Stretching the Leash. EU Governments vs the European Court of Justice" we perform a logistic regression analysis, including the judgments of the CJEU and the positions of the member states and the General Advocate (Larsson and Naurin 2012). The analysis shows that the member states observations have a substantial effect on the CJEU's decisions. We can also reasonably assume that this effect is based on political concerns rather than legal arguments, since the effect remains significant when controlling for the position of the General Advocate, whose role it is to bring forward legal argumentation. Furthermore, the effect is stronger when the member states argue in favour of more European integration, which is in line with the assumptions about the preferences of the judges and the high threshold for performing a legislative override of the Court's decisions in the Council of the EU. We develop a theoretical model that explains the correlation found in the data on these grounds.
Preliminary descriptive analyses of the data also show interesting variation with respect to the positions taken by the actors involved. Particularly striking is the difference between the member states, on the one hand, and the CJEU, the Commission and the General-Advocate, on the other hand, with respect to the member state sovereignty and European legal integration. The supranational institutions have a tendency to prefer interpretations of EU law that in practice limit the autonomy of the member states. It is clear that the member states generally use their right to submit observations to advocate positions in favour of protecting national autonomy against this supranational bias. However, there is also substantial variation between the member states in this respect, where some member states (e.g. Poland, Czech Republic and Greece) are less prone to defending national autonomy than others (such as Ireland, Germany and Denmark).
Another intriguing result comes from a multidimensional scaling analysis, which shows that there is a geographical pattern in the positioning of the member states. A two-dimensional description of the positions at the aggregate level shows a clear North-South-East pattern. Spain and Italy, for instance, tend to make legal interpretations more similar to each other and to France and Greece than to Poland and Czech Republic or the UK and Denmark. These are patterns that we recognise from previous research on the Council of the EU where the member states' governments meet to take legislative decisions. Finding the same patterns in relation to the Court's proceedings indicates that similar conflict dimensions between the member states are at play both in the political legislative arena and in the (formally) independent legal arena.
New research questions generated by the project
As noted, the main aim of the project has been to construct the database in order to lay the ground for further research on the relationship between law and politics at the Court of Justice of the European Union. The main questions for our future research using the database will be derived from the variation described above: Why are some member states more prone to defending national autonomy at the Court than others? What explains the tendency of member states in Northern, Southern and Eastern Europe to argue in favour of similar positions as geographically close countries? Other interesting variations between the member states that have been found in the data and that call for further research are the different levels of activity and success rate. Why are some member states (e.g. the Netherlands and Austria) more active in using their right to submit observations than others (such as Spain and Sweden)? Why do the judgements of the CJEU coincide with the positions of some member states (e.g. Sweden and the UK) more often than with others (such as Finland and Germany)? These questions will be central for our future research within this field.
The two most important publications of the project
The project has been the first step in a longer-term research focus on the interaction between politics and law at the CJEU. Building up the database has been the primary task in this phase. This work, including a reliability test of the coding, is documented in Naurin et al 2013. As described above we also have a paper presented at international conferences during 2012 (Larsson and Naurin 2012). In the coming years, the database will form the basis for a range of publications, not only from the research team at the Centre for European Research at the University of Gothenburg, but also from other researchers who will be able to take part of the data when it is published.
Other types of dissemination of the results of the project
We have presented the project and preliminary results at several international conferences, such as the European Political Science Association General conference, Berlin, 21-23 June 2012, the European Consortium for Political Research Sixth Pan-European Conference on EU Politics, Tampere, 13-15 September 2012 and the conference "The European Union as an Economic and Political Environment", Nordic Centre, Fudan University, Shanghai, 29 November-2 December 2012.
The database has raised a lot of interest and we have been invited to present the project at Trinity College Dublin 12 Mach 2010 and the University of Stockholm 4 maj 2012. During the spring 2013 we have presentations confirmed at the University of Antwerp 6 mars, the Midwest Political Science Association, Chicago, 12 April and the European Union Studies Association, Baltimore, 9 May.
Publications
Larsson, O. and Naurin, D. (2012) “Stretching the Leash. EU governments vs. the European Court of Justice”. Paper presented at the European Political Science Association General conference, Berlin 21-23 June, at the European Consortium for Political Research Sixth Pan-European Conference on EU Politics, Tampere, 13-15 September 2012 and at the conference “The European Union as an Economic and Political Environment”, Nordic Centre, Fudan University, Shanghai, 29 November-2 December
Naurin, D., Cramér, P. Larsson, O., Lyons, S., Moberg, A. and Östlund, A. (2013) “Coding observations and ECJ judgments under the preliminary reference procedure 1997-2008: Data report”, CERGU Working Paper Series, 2013:1