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The aim of this chapter is to consider whether accusations of judicial activism towards the European Courts are rooted not in the activity of the CJEU per se but rather a wider ‘imbalance’ between law and politics in the present-day EU. Revisiting an earlier chapter, the chapter considers three sources of such an imbalance: the gap between the jurisdiction of the CJEU and the EU’s legislative competence; judicial reasoning at the EU level; and the imbalance in the EU between market and non-market objectives. While the chapter argues that the EU retains such an imbalance, recent developments, particularly the increasing dynamism of the EU legislature, have significantly narrowed the gap between the EU’s political and legal capacities in the last decade. As the chapter will conclude, the EU carries a less institutionally ‘lonely’ Court than in the past, providing the Union’s judiciary with greater leverage to temper activist claims.
The Court inhabits a ‘political space’ to which it is called upon to respond. This points to its need to develop cooperative relationships not only with courts but also with political actors (such as national governments and the EU legislature) and even to directly address and explain decisions to EU citizens themselves. This book is aimed at answering the question of ‘How does the CJEU position itself as a political as well as a legal actor?’ with a view to better understanding the work of the Court and addressing its contestation. For that purpose, we explore in this introductory chapter what is meant by judicial ‘activism’ and judicial ‘politics’, before examining the different varieties of judicial politics our authors have shown an interest in. This will pave the way to drawing some lessons on the factors to take into account when seeking to address and respond to contestation of the work of the Court.
The ‘asymmetry thesis’, articulated by Fritz Scharpf, holds that EU governance is characterised by an asymmetry between positive and negative integration. The EU has well-developed capacities for negative integration but only limited capacities for positive integration. The present paper challenges the orthodoxy that this thesis has become in EU law and political science scholarship. It argues that the asymmetry thesis no longer accurately depicts European integration, revisiting its key legal and institutional assumptions. Taking the internal market as the most likely case to test the thesis, we show that negative integration has become weaker, positive integration has gained in strength, and both developments have had an impact on the substance of EU law and policymaking, which is promoting non-economic concerns and market-correcting policies to a greater extent than it used to. These shifts, so we contend, could be even more pronounced in other areas of European integration.
This chapter provides the volumes general conceptual framework. It begins by addressing why new approaches to accountability are needed, arguing that accountability literature has reached a stalemate as a result of an impasse between deductive and inductive approaches to accountability in the EU. It then argues that overcoming the stalemate requires developing a generalised framework of what accountability is for, deriving four accountability goods to be used in subsequent chapters. The chapter argues that each of the goods can be delivered in procedural or substantive ways, focusing either on the process by which decisions are made or the substantive worth of decisions themselves. The chapter concludes by discussing the strengths and weaknesses of both varieties of accountability before mapping out how the concepts will be applied across policy fields and institutions in subsequent chapters.
This chapter serves as the general introduction to the volume. It discusses two major impasses plaguing EMU in the 2020s: the first, a clash between politicization of EMU decisions, on the one hand, and an institutional structure designed to reject political conflict, on the other; the second, a scholarly impasse between those analysing EMU accountability comparatively and those doing so through EMU specific standards. The chapter briefly introduces the core concepts used in the volume as a means of overcoming this impasse: the distinction between procedural and substantive accountability as well as the normative goods framework developed in Chapter 1. It finally provides an overview of the structure and content of the volume, concluding with a plea to focus scholarly attention on EMUs substantive accountability deficits.
This article examines the development of judicialization literature in the EU arguing that – in spite of the obvious advantages of interdisciplinary collaboration – scholarship on judicialization in law and political science is drafting apart in the 21st Century. While early political science research on the European Courts found theoretical inspiration in legal research, law and political science have increasingly diverging epistemological and methodological starting points. As the article argues, using prominent papers, this results in both disciplines producing partial accounts of judicial change with limited external validity. The article concludes by offering routes to improving the inter-disciplinary foundations of judicialization research.
The European Union's history exhibits numerous episodes in which Member States have sought to re-enforce their national autonomy in the face of deepening integration. Efforts to re-gain autonomy, however, are often accompanied by legitimate concerns that autonomy will lead to dis-integration or will have wider destructive consequences. The EU thus faces a dilemma. Calls for autonomy cannot all be dismissed as mere populist rhetoric or national egoism but instead represent a legitimate questioning of the degree of uniformity that EU law and politics presently carry. At the same time, the fear that greater autonomy may carry dis-integrative effects is also legitimate -uniformity is not an accidental by-product of the EU's construction but intrinsically related to its policy goals. Giving too much room for autonomy might create an opportunity structure for the loss of collective goods, deficits in problem-solving, and perhaps even to self-destruction.
The EU requires autonomy, but in doing so, it must also avoid collapse. Can it achieve it, and if so, how? Autonomy without Collapse is devoted to exploring innovative answers to this question. It draws together scholars in law and political science interested in exploring how to overcome the central dilemma of preserving sustainable yet real autonomy in the future European Union.
EU Law and Governance
(2022)
What is the EU for? In light of the current state of European integration, EU law cannot meaningfully be appreciated without understanding the political, social and cultural context within which it operates. This textbook proposes a fresh, accessible and interdisciplinary take on the subject that is suitable for one-semester and introductory courses wishing to engage the reader with the wider context of the EU project. It situates the institutions, legal order and central policy domains of the EU in their context and offer students the tools to critically analyse and reflect on European integration and its consequences. With pedagogical features such as further reading, class questions and essay/exams questions to support learning, this textbook enables students to form their own informed opinion on whether the EU offers an appropriate answer to the many questions that it is asked.