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Manual The Judiciary, the Legislature and the EU Internal Market

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The Importance of the Origins II. Free Movement and Deprivation of Liberty. Paradigm, Genesis, Laboratory I. EU Law and Deprivation of Liberty. Beyond the Internal Market. Deprivation of Liberty and Substantive Criminal Law. Overview I. Introduction II. Reasons and Methods III. The Policy Context V. The Legal Framework VI. Conclusions 3. The Directive III. Interventions into cases thus mirror political salience only incompletely. In addition, preferences of governments are fluid, not only when accounting for governmental changes.

The European Pillar of Social Rights as a Revival of Social Europe

Within coalition governments, there are frequently differing policy preferences. As the EU often serves purposes of blame avoidance, not all rulings which imply shifts in domestic policy are necessarily unwelcome. But even if governments concur in court-driven changes, this does not necessarily imply that these changes could have found domestic majorities without the Court. Government briefs, thus, do not simply mirror the extent of accepted domestic policy change. In sum, the Court may rule against incumbent governments to a greater extent than is acknowledged in existing studies based on member state written observations.

Transformative change need not be abrupt, but may evolve incrementally Streeck and Thelen Streeck, Wolfang , and Kathleen Thelen Oxford : Oxford University Press , 1 — Hence, even if the ECJ balances all claims cautiously and, by and large, respects strong member state objections in its rulings, its case law may develop a highly expansive effect over time. To capture this expansive effect, we need to analyse lines of jurisprudence rather than individual rulings. Moreover, it is necessary to account for the qualitative importance of legal issues.

The Court may back down on a high number of relatively insignificant issues, while significant changes might result from the minority of issues in which the Court decides against member states. In interpreting the Treaties, the Court may lock in certain policies, while precluding other policy options at the domestic and the European levels. Legal scholars are aware of the problem of overly constraining precedent, which only allows future deviations at the price of legal incoherence.

Cheltenham : Edward Elgar , 11 — The lock-in effect is even more severe for political decision-makers, since they cannot overrule constitutionalised case law. For example, when discussing the Services Directive in the mids, national treatment was not an option the European Parliament could pursue, as past case law on the freedom to provide services precluded such a restrictive interpretation Schmidt Schmidt, Susanne K. Power and Policy-Making. London : Routledge , - Thus, Court rulings may largely conform to governmental preferences at the time when they are adopted — but they also constrain subsequent governments with potentially divergent preferences and, due to its constitutional status, case law can hardly be changed politically.

Courts decide disputes and the studies discussed above treat individual disputes as their unit of analysis.

Assessing winners and losers for individual cases implicitly brings in the assumption that case law is only relevant inter partes , as is common in international law. If this was the case in the EU as well, we could clearly pinpoint the odds of member states having to live with the Court being more integrationist. The relevance of an ECJ ruling, however, is not restricted to the dispute at hand, since it has erga omnes effect.

In sum, focusing on the interaction between member state governments and the Court only gives a partial answer about the importance of the Court. Given the erga omnes effect of rulings, we have to look beyond individual disputes to analyse how case law constrains member states. In this context, it is particularly relevant that over-constitutionalisation implies that in many disputes concerning policy the Court refers to the Treaty next to secondary law.

As is the case for national constitutional courts, interpretations of the constitution become part of the constitution.

About The European Union and Deprivation of Liberty

Accordingly, if the ECJ interprets the four freedoms, EU citizenship, or European competition law in a certain way, the political institutions of the EU and its member states cannot deviate from this interpretation of supreme EU law. We now turn to the question of how case law shapes policy-making. From a Political Science perspective, the question about how courts decide is particularly relevant because of their impact on policy-making.

Surprisingly, Political Science research on the legislative impact of the Court is scarce. In the general field of EU legislative studies, however, researchers tend to ignore the implications of case law. An example is the seminal book by Robert Thomson Thomson, Robert Resolving Controversy in the European Union. Legislative Decision-Making before and after Enlargement.

Cambridge : Cambridge University Press. Being the result of one of the largest empirical exercises in EU studies, analysing the preferences of member states in EU decision-making, the index does not even contain an entry for the Court. Nevertheless, we have two important caveats. Case law is always about highly specific constellations and, therefore, necessarily fragmented rather than prescribing a full-fledged policy.

Turning case-specific jurisprudence into general policy, then, does not amount to modification, but codification. Filling gaps left by and generalising from individual rulings is precisely what codification is about. This process always involves political signals as to whether existing case law should be interpreted more or less extensively in the future.

How does the EU pass new laws?

This is not to say that member states cannot signal their preferences to the Court — ex ante through written observations and ex post in the process of codification. Cheltenham : Edward Elgar , — And finally, EU member states may legislate pre-emptively, before an issue becomes the subject of Court jurisprudence at all. Martinsen includes in her book the Working Time Directive where codification concerned case law on secondary legislation.

It provides pause for thought in the context of the Brexit debate, as regards both the reasons underlying the vote to Leave, and the possible futures facing the UK in the wake of the referendum vote. I explain the strength of the case the book makes against legal constitutionalism in the first part of this post. My argument proceeds on the basis that the theoretical arguments are, ultimately, very finely balanced. In the collection, some of the arguments against legal constitutionalism are overstated. More importantly, the arguments against political constitutionalism are overlooked; as are arguments concerning the way in which the political and legal elements of the constitution overlap and interrelate.

In the context of Brexit, I conclude that the prospect of a return to unadulterated parliamentary sovereignty in the UK, coupled with a conscious and increasingly ignominious retreat from the constitutional settlement we have and are developing as members of the European Union, will herald nothing but years of self-inflicted economic and social harm. It is, from a Left perspective, far better to stop Brexit, and remain within the current constitutional structure. Like most of the contributors to the collection, I choose not to enter into the debate on what the Left is, and what its ultimate aspirations might be.

I am content to take the Labour Party manifesto of as an indicative guide of the current ambitions of the Left. By way of brief context, I should state that, before Brexit seemed to take over, I edited a book in discussing the relationship between the legislature and the judiciary in the EU internal market. My thoughts developed into an article for the Common Market Law Review in on the relationship between primary and secondary law in the EU. There is no doubt that the Court of Justice of the European Union CJEU has a strikingly broad judicial power to interpret the relatively open-textured Treaties, and to interpret and review secondary legislation adopted by the political institutions of the EU.

It has often exercised this power in ways which have surprised Member State governments, and frustrated the ambitions of the Left for example in the infamous Viking and Laval cases; and the other examples cited in my chapter on Labour Law here. On other occasions however, its jurisprudence has shown itself to be sensitive to developments in the political process, for example, changes to the text of the Treaties, and the adoption of secondary legislation, and much more in tune with the ambitions of the Left for example in relation to the development of discrimination law, and in the broad scope accorded to the rights of EU citizens.

The collection is full of instances in which the courts have disappointed the Left. Courts are said to be consistently supportive of capital and hostile to labour in general and trade unions in particular.


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There is said to be no recognition of the inequality of bargaining power between the parties in a contract of service. The judiciary is said to be an instrument of the ruling class, to be trusted only to protect property rights. They have supported and reinforced racial discrimination. Lawyers are not spared. The evidence is drawn from recent and distant history, from a range of mainly common law jurisdictions, and the international legal order. We see how the judiciary has acted in times of plenty and crisis, in response to the acts of governments of all political hues.

My objective here is not to summarise the rich scholarship — I just recommend that you read it. The sections which discuss the negative effects of legal constitutionalism on popular engagement with politics resonate particularly strongly. It is argued that systematically using the courts to decide contentious policy debates will cause the muscles of citizen participation in democratic decision-making to atrophy.

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To set the scene for my critique, it is useful to disentangle the various strands of the case which the book makes against legal constitutionalism. Across history, and across the world, the courts have, as the collection amply demonstrates, decided disputes in ways that are inimical to the interests of the Left.

There are many institutional problems with legal adjudication and legal discourse, and a strong and damaging, connection between legal constitutionalism and depoliticisation.