"Member States Governments and the European Court of Justice: Governments as Repeat Players in Judicial Decision Making at EU Level"

Granger, M.P.F. (2003) "Member States Governments and the European Court of Justice: Governments as Repeat Players in Judicial Decision Making at EU Level". In: UNSPECIFIED, Nashville, Tennessee. (Unpublished)

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Abstract

Is the European Court of Justice (hereinafter ECJ or the Court) like a puppet in the hands of Member States governments? Or has it run wild, following its own interests and agenda, so as to independently influence the course of events in European integration? Or are the judges so compelled by the rule of law, by the spirit, scheme or terms of the Treaties and secondary Community law, that they cannot be under much influence from political actors such as governments? Or is the ECJ decision-making a complex social process in which legal actors, including governments lawyers, have a predominant role to play? These questions represent schematically the dominant political and legal approaches which consider the possibility for governments to influence ECJ decisions. This paper proposes an integrative big picture perspective of the ECJ decision-making process and of the role played by governments in that process, with the view to assess more comprehensively the influence of governments on the making of the Community case law. It suggests the use of a structurationist approach to the process of decision-making at the ECJ, so as to reveal the multiple structural dynamics of that process and the wide range of actors which can play a part in it. Adopting such standpoint makes it possible to identify a wide variety of means by which governments can influence ECJ decisions, beyond the formal control means which are the center of focus of much of the political science literature. One of these means consists in participating in proceedings before the Court. Governments participation strategies, that is their rationale, policies and organizational, procedural, human and material resources are analyzed so as to provide some indications as to whether governments can be considered as Repeat-Players capable of substantially shape legal change at the level of the European Union (EU), through their influence on the ECJ judicial decision process.

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