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The European Court of Justice and the Policy Process
The Shadow of Case Law
By (author)
Susanne K. Schmidt
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Synopsis
This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read at Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.
The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states' preferences. This book argues that the implications of the supremacy and direct effect of the EU Treaty have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed
into its constitution that are extensively shaped by the Court's case law. If rulings have constitutional status, their impact will be considerable, even if the Court only occasionally diverts from member states' preferences.
By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court's development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation partly codify case law. Judicialization is important in the EU. It also directly constrains member-state policies.
Court rulings oriented towards individual disputes are difficult to translate into general policies-but if they have constitutional status they have to go through this process. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty
change, its case law casts a long shadow over policymaking in the European Union, undermining the legitimacy of this political order. New & Used
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What Reviewers Are Saying
Professor Schmidt uses several case studies to provide a detailed analysis of a number of major ECJ decisions bearing upon the rights of individuals and the binding constraints placed on national courts which, she suggests, must have been one of the factors that drove the British exit from the Union. She is not wrong. When the inevitable obituary of the EU comes to be written, this volume will be an important source in determining the cause of death! * JOURNAL OF CONTEMPORARY EUROPEAN STUDIES * ...hers is a timely text which merits close reading and reflection and is recommended to scholars of EU law and political science. * JCMS: Journal of Common Market Studies * ....Schmidt's book presents a welcome addition to the existing corpus of literature devoted to the ECJ and will undoubtedly become mandatory reading for those seeking to understand, challenge or endorse the vision of this institution as the motor of European integration. * Common Market Law Review * Considered in its entirety, Schmidt's book is an ambitious effort to redirect the debate on European legal integration, whose title ideally would have broadcast the perils of over-constitutionalization. It is an outstanding contribution that demands the attention of scholars and practitioners alike. * Public Adminstration * Finally, Susanne Schmidt's opus magnum! Representing the sum of more than two decades of widely recognized research and publications, it combines a definitive account of the judicial shaping of a European economic constitution and its impact on diverse fields of national economic and social policy with sophisticated analyses of the methodological foundations and political limits of its legitimacy. Essential reading. * Fritz W. Scharpf, Emeritus Director, Max Planck Institute for the Study of Societies. * This is a brilliant and original analysis of a much neglected aspect of the interaction between politics and law. Susanne Schmidt compellingly demonstrates how ECJ case law sets limits to how political actors can shape European policies. It is a 'mustread' for all studying and practicing politics. * Adrienne Heritier, Emeritus Professor, European University Institute. *