Pre-Empting the Court: Member State Expectations, Political Oversight and the Nexus of Law and Politics in the EU

Andersen, Stine, and Glencross, Andrew. (2007) Pre-Empting the Court: Member State Expectations, Political Oversight and the Nexus of Law and Politics in the EU. In: UNSPECIFIED, Montreal, Canada. (Unpublished)

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Abstract

This paper seeks to understand the role of the ECJ as a focal point in the inter-relationship between law and politics in the EU system. By conceptualising the Court as a fiduciary, operating within a strategic space, rather than an agent, it shows how member states have tried to respond to the Court’s ability to set the policy agenda. In particular, the paper focuses on attempts to curtail such agenda-setting by restricting potential ECJ interpretation of the treaties, which we call ex ante measures. These measures are intended to constrain the independence of the Court. Yet the constraints on a fiduciary, we further show, are not sufficient to forestall ECJ rulings that create spillover effects in policy areas beyond formal EU competences. Nevertheless, more ex ante restrictive clauses were adopted as the only means of making the insertion of the Charter of Fundamental Rights into the Constitution palatable to certain member states. However, an analysis of the effectiveness of such measures reveals they are highly unlikely to circumscribe the Court’s interpretive discretion. Thus it appears that ex ante measures are not apt to constrain a fiduciary and prevent it from contributing to the policy agenda. Hence Court rulings will continue to highlight both competence questions and the difficulty states have in responding to the actions of supranational institutions.

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