pdf ebook

Speaking Law, Whispering Politics

Mechanisms of Resilience in the Court of Justice of the European Union

Despite having been described as the most powerful international court in the world, the Court of Justice of the European Union rarely faces severe forms of resistance. Why is this?

This is the question I ask in my PhD thesis, which I defended at the European University Institute in March 2024.

The thesis is written as a compilation of three articles exploring the interactions of the Court of Justice with its political context. I argue that the relative lack of resistance against the Court can be explained in part by a series of resilience mechanisms, defined as intentional or non-intentional mechanisms which shelter international courts from critique or render them resilient to resistance. I proceed to empirically study a series of such mechanisms as they play out at the CJEU, with each article focusing on a different aspect of the work of the tribunal.

The first article, "Feeding the Court", studies the arrival of cases to the docket of the CJEU. I find that the Court benefits from the self interest of the actors before it through the filtering of the cases arriving to its docket. Most importantly, lower court judges are found to be hesitant to make politically sensitive references for preliminary rulings to the Court, indicating a selective preference for the national judicial hierarchy and a possible concern for career sanctions.

The second article, titled "Speak Easy", studies how the itself Court responds to the political context by adapting its decision-making. It finds that the Court assigns larger chamber compositions to polarizing issues, but responds to a constraining consensus when ruling in politicized policy areas: Rather than doubling down on its legal reasoning and publishing judgments that are more embedded in case law, the Court responds to politicized references for preliminary rulings by issuing shorter decisions with more laconic reasoning.

The third and previously published article, "A Spoonful of Sugar", observes the strategic use of deference to the national court by the Court of Justice. Rather than being used as a tool to prevent ruling on controversial topics, we find that the Court is more likely to defer to the national court when making expansive interpretations of EU law, indicating that deference is used as a way to "sweeten the pill" when making decisions that national judges might otherwise be reluctant to accept.

The thesis is available open access in PDF and EPUB formats.