McCown, Margaret. (2001) "The use of judge-made law in European judicial integration: Precedent-based arguments in EU interinstitutional disputes". In: UNSPECIFIED, Madison, Wisconsin. (Unpublished)
This paper examines the role of precedent in the adjudication of "legal basis" cases, one type of interinstitutional dispute in EU law. These are the "hared cases" for theories of judicial integration emphasizing the autonomy of the European Court of Justice to explain. In these cases, few of the factors are present which are argued to mitigate the influence of member state opposition to decisions: judgments are not transmitted through mediating national courts, there is no "mask" of technical legal language concealing the political implications of decisions and there are no private litigants to bring pressure on member states and to cultivate the development of linkages between themselves and Community institutions. Instead, the cases are explicitly concerned with contests of powers between the member states and the Council of Ministers and the other EU institutions. And yet, the ECJ is very much the authoritative arbiter of such conflicts. I will show that even in these, most politicized of legal battles, the Court has constructed a case law that imposes constraining rules on member states and increasingly defines the context of all such disputes. Moreover, I argue that the Court's success in doing so, has more to do with its use, and the dynamics, of a precedent based case law, than of any strategic positioning on the part of institutions.
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