The ECJ as a motor of integration Flashcards
Werner on ECJ abatement mechanisms: how has the ECJ narrowly avoided marginalization as an institutional power, and not just a talking shop?
- Incremental development of case law has gradually pushed the ECJ into political territory
- Fallback solutions for “loser” member states
- Case specific concessions
Describe the change in the ECJ in recent years
Has become more involved in politically sensitive issues, which has prompted debate on whether the judiciary has become more activist, or whether the realm of law has begun to infringe on the boundaries of politics.
Why has the CJEU faced little opposition in recent years despite its increasingly interventionist decisions
Because judicial decisions with regards to politically significant matters have only produced low and short term costs.
How has the court been confronted with increasingly controversial questions?
Has been forced to respond to justiciable matters with regards to the freedom of movements (the four freedoms)
Why has the EU faced increasing “judicialization”?
Self reinforcement through the frequent usage of the very institutions established by judicial rule (so neofunctionalist), self fulfilling
Does the CJEU tend to carry out the will of member states?
In the case of the sovereign debt crisis, as confirmed by the ruling in Pringle, pretty much yes given violations of TFEU Article 125. ESM overrode TFEU Article 125 in this case, which shows increasing move towards integration and the ironic contravention of previously established EMU principles.
Again can be seen in Golden Shares cases, the case of Volkswagen Law, which allowed Germany
How has the literature analyzed the paradox of unpronounced judicial harassment in face of interventionism by the judiciary?
Maduro has looked into cases in which the judiciary has overstepped its powers. Others such as Sweet and Stone have analyzed whether the ECJ has been insulated from retaliation.
Attempts at answering the question of why the CJEU has been able to become more activist and interventionist?
- Law as a legitimate source of jurisdiction
2. the low costs of abiding to a ruling
Explain the case of Golden Shares
Golden Shares - a shareholder device which allows MSGs to control a company without being the majority share holder - entered the sphere of judicial attention. Was questioned for its compliance with freedom of capital. Golden Shares a politically sensitive matter, at the heart of the question as to who owns the most important organisation in a member state.
Previously attempts at regulating corporate governance practices widely unpopular, as can be seen in the Takeover Directive.
How was the rule in the Volkswagen Law arrived at?
Disproportionality of outcomes
Binding legislation
Skewing of interests
How was the CJEU able to maintain its position?
By ambiguity. Golden Shares alone did not automatically mean court dissent, as can be seen in a case of Golden Shares involving Belgian authorities.
Concessions provided by Court?
In Volkswagen law, yes concession by allowing revised legislation which really had the same effective impact on shareholder rights.
