Law-Making in the Shadow of Judicial Politics

Abstract

This chapter analyses a neglected aspect of the Community method: the interaction between legislative and judicial politics. In the classic understanding of the Community method as described in the introduction to this volume, the Commission’s role as an independent initiator and the Court’s mandate to control compliance with EU law are conceptualised as separate stages of integration. The implicit assumption is that the status quo position in EU legislation is set by the member states, from the perspective of liberal intergovernmentalism (Moravcsik 1993), or by an existing piece of European legislation. Often however, the judicial politics of the ECJ defines the default condition of non-agreement. Law-making takes place in the shadow of judicial politics. If the Commission manages to combine the different elements of the Community method (initiation, guardian of the Treaty, and independent court) in this innovative way, the Community method can be considerably strengthened. Weiler showed long ago that judicial politics is an alternative to legislation in the European Union (Weiler 1981; 1991). But despite the fact that the Court of Justice of the European Union (consisting of the Court of Justice (ECJ), the General Court, and specialised tribunals), is widely acknowledged to be an important motor for European integration, the impact of judicial politics has not been sufficiently taken into account.