EU law has played a central part in European integration and governance, and had a transformative effect on politics and societies in Europe. As the EU must deal with unprecedented crises (economic and financial crisis, migration, Brexit, rule of law backsliding, Euroscepticism, climate change, etc), EU law must respond and address new challenges, whilst being increasingly contested. Scholarship on EU law also looks for new paths, to develop more accurate accounts of the evolution and impact of EU law. This Research Handbook follows in the ‘law-in-context’ and critical tradition in the study of EU law and builds on other disciplinary insights (in particular from political sciences, international relations and sociology). It brings together both young and more established legal as well as political sciences scholars to reflect on the changing political environment which influences the development and implementation of EU law, and investigate the impact of EU law on politics and society in Europe. The Handbook addresses cross-cutting issues relating to the institutional order and system of governance, and some of the substantive areas where law and politics meet. The Handbook’s first part focuses on the institutional level of analysis, considering the theory and practice of how the EU institutions evolve, including in their interactions with other actors. The second examines in more detail some of the substantive areas where the politics of EU law can be traced and explained.
Marie-Pierre Granger and Paul James Cardwell
Paul James Cardwell
The language of governance has become increasingly accepted and used in discussion of the European Union over the past few decades. Although its use is by no means restricted to the EU, it has had a special resonance for a polity which does not fit into established structures of law and government. The enthusiasm with which governance, new governance and the new modes of governance were greeted in EU scholarship has nevertheless waned in recent years. This chapter traces the various debates and rise and fall of governance, questioning whether it remains a useful means of understanding and characterising it. The chapter suggests that, with some reframing governance to bring in contemporary ‘post-crisis’ elements, governance remains a useful means by which both the law and politics of the EU can be understood.
Fabien Terpan and Sabine Saurugger
This chapter is based on the assumption that the Court of Justice of the European Union (CJEU) is better understood through a combination of law and politics. The Court, although constrained by law, is not isolated from politics but, on the contrary, plays a major role within a system of power relations. Since the development of the ‘integration through law’ approach in the 1980s, several authors have emphasised the political dimension of the Court. Drawing on the existing literature dealing with the CJEU, it is argued that politics can improve the understanding of the Court in three main directions. First, politics within the Court is considered and the issue of the Court being biased, in accordance with the judges’ preferences, is tackled. Then politics through the Court is studied, seeking to explain how the Court has gained power in the EU system of governance. Finally this idea of the Court as a political power is contrasted with the different attempts at circumventing the Court. However, in policy areas that are not subject to judicial control, the Court sometimes ‘strikes back’ by restrictively interpreting the limits of its jurisdiction, and ‘comes back’ when the Member States eventually decide to ‘judicialise’ the policy area. In the end, the most promising way to analyse the Court is to see it as an embedded actor, an influential political actor whose capacity to influence EU integration is dependent on both the constraints of law and the main features of the EU political system.
The exercise of institutions’ powers inevitably leads to frictions with other bodies. The political toolbox of dispute settlement by EU institutions involves unilateral measures, interinstitutional dialogue or negotiation, and litigation. Insufficient attention has been paid in scholarship to the motives pushing institutions to choose the CJEU as an arbiter for their competing interests. This research offers a comprehensive look into litigation between the European Parliament and the Council before the CJEU. Case-mapping yields novel findings on the scope and target areas of disputes submitted to the Court. The resort to the CJEU entails a certain risk as to the outcome and so intra-institutional rational choice decisions should thus balance both the expected benefits and the uncertainty of the outcome when choosing litigation as a suitable conflict resolution tool. The criteria are tested in a frozen bilateral conflict in the field of budgetary discharge that has not yet reached the Court.
After its implementation in 2011, the European Semester has become a much studied governance model. The Semester brings together existing EU socio-economic coordination cycles and introduces new coordination mechanisms, using the rich knowledge the EU has gained in decades of policy coordination. Although building on long-standing structures, the Semester may also be seen as a major step in EU governance, or even as a coordination innovation. This chapter first describes the history of EU socio-economic coordination prior to the Semester. Second, it explains how the European Semester operates, including its complexities stemming from bringing different coordination mechanisms together, and from the dynamic interactions of actors across national and European governance levels. Third, it outlines why the European Semester may be seen as innovative, and gives theoretical and methodological suggestions on how to study the Semester.
Fernando Mendez and Mario Mendez
Direct democracy has played a central role in the EU’s development since a referendum on EU matters was first deployed in the 1970s. Such referendums have come to be used more frequently and, in terms of delivering pro-EU outcomes, with an increasing failure rate. They are mainly held by states to determine whether they should join, or leave, the EU, or whether they should agree to revisions to the founding treaties, along with a diverse and growing array of other issues, most notably whether they should adopt the single currency, or other EU policies, or allow other states to join the EU, or agree to ‘extra-EU treaties’ which are closely connected to EU law. The EU’s referendum experience has been a subject of rapidly growing scholarly inquiry, but it remains to be seen whether a significant driver of this scholarship, the hitherto flourishing referendum practice, continues. The other dimension to the direct democracy landscape is the EU’s attempt to harness its legitimising potential through its very own direct democracy instrument, the European Citizens’ Initiative. In less than a decade it has given rise to a burgeoning body of practice and much scholarship by political scientists and legal scholars. The originally high expectations placed on this instrument were soon replaced by a narrative of the Commission having stifled it through its application of the legal admissibility test and inadequate follow-up to initiatives. It is, however, a contestable narrative and one that conceals the broader impact that the instrument is having, which more nuanced lines of scholarship are beginning to recognise. The narrative was nonetheless important in driving a reform agenda culminating in revisions that will make the instrument more user friendly and participatory, and potentially more effective.
Nieves Pérez-Solórzano Borragán and Stijn Smismans
The implementation of Article 50 is the perfect laboratory to explore the tension between law and politics when legal interpretation on rules defining power relations is at stake. Article 50 TEU is a brief provision for a complex process of withdrawal. The UK’s decision to leave the EU made it clear that the exit clause required further interpretation to put it into practice. By drawing on the concept of legal path-dependency this chapter argues that legal interpretation and the authoritative path-dependency that it sets in motion is not the sole prerogative of courts. Political actors are able to interpret the application of legal texts when these are new and there is no legal precedent to rely on, or when courts have not had the opportunity to adjudicate because a case has not been brought before them. By introducing phasing, conditionality and indivisibility as the principles defining the withdrawal process, the EU has considerably strengthened its bargaining position. Abiding by these principles has set the Brexit negotiations onto specific paths that have bound the EU into a particularly inflexible position, potentially resulting in unintended consequences. Equally, the EU’s interpretation of Article 50 has allowed it to centralise the negotiation process around an enhanced role for the European Commission. This has had the strategic advantage of ensuring EU27 unity. This advantage, however, has set the path for potentially unintended consequences in the form of suboptimal solutions regarding the protection of citizens’ rights and the national strategies developed to mitigate a potential no-deal Brexit.
Andrea S. Aldrich and William T. Daniel
While the EU does not set specific legal requirements for its Member States’ electoral systems, it is perhaps one of the world’s best learning laboratories for comparing the effects of electoral design. The EU is also, in many ways, a leader in the policy space of gendered representation – with a proportionality principle roughly applied across the Commission and Court of Justice, as well as one of the most descriptively representative spaces for female legislators in the European Parliament. In this chapter, we assess the role of the EU in the promotion of women’s descriptive representation. Using the broad variation found in national electoral laws and party organization guiding policies, we are able to assess how national expectations of gendered representation commingle within the EU legal space. In doing so, our work brings to light new descriptive information on the state of gendered representation at the EU, national and party levels of Europe.
This chapter tackles distrust in the technocratic nature of EU decision-making. A starting point for discussion is the notion that technocratic governance, founded in expert knowledge, is a legitimate, even a necessary, institution. Nevertheless, just as at national level, EU technocracy suffers under an epistemological blunder, or an assumption that expertise or science will unveil material inevitabilities, such as general welfare, that are accorded the status of truth. The fault lies not with technocracy itself, but rather with a political system that refuses to make hard choices, especially when they come without any guarantee of future success. If expert decision-making is to survive populist assault, greater efforts must be made within the EU to re-establish political wills, or clear commitments to clear political goals. Expert decision-making will find its proper place within our constitutional system only where we recommit to politicisation.
Anita Heindlmaier and Michael Blauberger
This chapter outlines a general research agenda for the study of interactions between judicial and political integration in the EU. In contrast to most EU legislative and transposition studies, we propose a comprehensive view which also takes into account judicial interpretation as well as administrative implementation of European rules. We illustrate key aspects of this research agenda with empirical evidence from the field of free movement of EU citizens and their cross-border access to social benefits. We show how the Court of Justice has shaped political decision-making at the European and national levels and how, in turn, these political decisions often sought to limit the Court’s broader impact. On the one hand, the Court has extended free movement and transnational social rights of EU citizens even against continued Member State opposition. On the other hand, Member States were able to limit the impact of the Court’s jurisprudence at the stage of domestic implementation and to restrict the cross-border access to social benefits again. In the end, politics prevailed, albeit not necessarily through national legislation, but via informal signalling by political and administrative superiors to street-level bureaucrats. Finally, also the Court pursued a more restrictive line of reasoning, which is closer to Member State preferences and corresponds to changes in the broader political context.