lecture 6 Flashcards
Jaremba - at the crossroads of national and EU law
what does she focus on?
Focussed on the experiences of first instance private law judges in 3 EU countries. She applied a mixed methods approach and different theories.
conclusion: many national judges were unfamiliar with EU law and the CJEU; they dont use it in their daily work
Urszula Jaremba 2013 article
theories:
- Legal Pluralism
- Legal Consciousness
study question
What are the consequences of Jaremba’s findings for the practical significance of European law in the member states?
More preliminary ruling cases, because if judges arent familiar, they can send it to the courts (one of the consequences).
However, judges might not even make use of this possibility, if they are unfamiliar with EU law
- It’s just not applied, so it can’t be effective.
why…:
i. Because national law is embedded to the national legal order, it will influence they way of EU law and compromise its effectiveness
ii. Judges feel overwelhmed with eu law, so that jepordizes the legal certainty of it
mobilisation of the law
= why and when do people go to court
First step = to recognise a legal component in a conflict
How many of 100 potential legal conflicts are taken to a national court?
First step before = to recognise a legal component in a conflict, but what if they do go to court…
research has said that there is a legal iceberg (so only the very tip)
- dutch research has showed that only in 3% of problems a procedure has started
- 5% of all disputes in US
Miller & Sarat (1980)
what are the 5 stages in (the processing of) disputes?
-
grievance (pre-conflict)
= individual’s belief that they are entitled to a resource controlled by another party (they feel like they have been wronged) -
claim
= when aggrieved party confronts offending party and asks for redress. Claims can be rejected, accepted or they can result in a compromise offer. -
dispute
= when offending party rejects claim - contact lawyer
- Filing court case
in the 80’s they held a telephone servey with 500 US households to see how they handeled their problems
-> litigation pyramid or legal iceberg..?
Conclusion: out of 1000, the majority makes a claim but at the end almost none of they actually go to court
The shape of the pyramid always differs depending on the type of subject
Infringement procedures started 1988-1994
Of the 20,000 infringement proceedings, most are mutually resolved
Which factors influence whether a potential legal conflict will be submitted to the court?
a. Acces to court
- knowlegde of rights
- litigation costs
- availibility of legal aid
- thresholds to make a case
- burden of proof
- duration of proceedings
- procedure (like waiting too long to make a case)
b. Preparedness to go to court
- relational distance with counterparty (long-term
personal vs incidental stranger)
- availability of alternative ways of resolving conflicts
- legal culture (litigation as routine, provocation or right)
- personal evaluation of situation/interest
- expected outcome (succes?)
- previous experiences with law
- relational distance (understand theory on this)
relational distance theory
Black, 1976
as people:
- have more long-term relationships with each other
- which comprises several aspects
- that is of a more personal character (instead of businesslike)
- that is more embedded in a social field, social network or in a group (compared to a loose relationship)
the chance that a conflict will become a court case is smaller
Miriam Hartlapp: why some EU institutions litigate more often than other
Hartlapp conceptualizes litigation decisions as resulting from an interplay of agency and structure
- Litigation between public actors (annulment)
- EP, Commission and Council
- Structural factors and actor motivations
Miriam Hartlapp’s article summary
explores why some EU institutions (like the Commission, European Parliament, and Council) are more likely than others to initiate horizontal annulment actions—legal disputes between EU institutions at the Court of Justice of the EU
She identifies three key motivations behind litigation:
1. Material interests (e.g., protecting budgets)
2. Policy goals (e.g., defending specific ideological or legal positions)
3. Institutional power (e.g., defending or expanding competences)
What does it mean that Hartlapp conceptualizes litigation decisions as resulting from an interplay of agency and structure?
This means that she sees litigation as the product of two interacting forces
a. Structure: The formal rules, institutional design, legal standing, and organizational constraints that shape what is possible. For example, how easy it is for an institution to bring a case to court, how many legal staff it has, and what decision-making procedures are required.
b. Agency: The motivations, goals, and choices of actors within those institutions—what they want to achieve, such as protecting resources, influencing policy, or defending institutional power
Structure defines the playing field, but agency decides how (or whether) to play the game.
Research inductive or deductive? If you base findings on studies which have done before
deductive research
New cases before the CJEU
There is a decrease on the number of infringements procedure ➞ contious effort of the MS and commission to do this
why is there an increase on the prliminary reference procedure?
thinking of the article of jaremba: parties are more familiar with EU law, and they tell the judge about it e.g
Courts have a dispute-resolving function. What other functions have courts in society?
Study question
- Protecting the rule of law, and therefore also protecting people from the government
- Explaining the law
- Setting norms for society
Socio-legal theories on ligitating parties and theri chance of success: one-shotters and repeat-players
2 different types of litigating parties:
1. Repeat players: involved in many different proceedings and are strategic = companies (insurance e.g.), the government, NGO’s
2. One-shotters: go to court only once, it’s not routine, and more at stake = an individual
repeat-player (‘haves’)
one of the parties in litigation
- party involved in many similar proceedings
- experience
- expert support
- can litigate strategically
Strategic advantages of Repeat-players
• Knowledge and expertise
• More resources (ready access to specialized experts)
• Economies of scale, low start-up costs for any case
• Opportunities to develop informal relations with functionaries of the court
• Assessment which rules will be effective and adjust their behavior accordingly (eg agreement, building a file)
• More options for influencing rules (consultation and lobbying when rules are drawn up, adjusting rules
through case law)
• Long-term interests (not profit in specific case) Strategic calculation to maximise gain over long series of
cases
• Sometimes interested in ‘rule component’ of the outcome of a case, rather than tangible component
➞ so, in short, repeat-players have a strategic advantage:
- before a dispute comes to court;
- during court proceedings;
- after the end of legal proceedings.
One-shooter and repeat-players at the CJEU
Success in a court case is not always a real success, why?
• Litigant may be deceased or expelled
• The situation may have changed in such a way that the court ruling is not relevant anymore
• The court ruling may not be about the real conflict
• Court rulings are not always implemented
In the European transport sector there is a ‘race to the bottom’ in which wages and conditions of employment of drivers are under pressure and worsen. The Dutch trade union FNV speaks of ‘wage dumping and distortions of competition’. According to the trade unions, there is nothing wrong with the European rules. The problem is the lack of compliance with and enforcement of those rules.
➞ Would it help when afflicted drivers would get more and better opportunities to force their employer through the national courts to comply with national legislation and collective bargaining provisions? Why (not)?
There is a close relational distance, so could be harmfull for their relationship (so in that case, no)
- If they don’t understand the EU law, they won’t do so either because the judge wouldn’t know how
- Trade uninions, is a way to deal with the equality of chances
