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Iudex Calculat: The ECJ's Quest for Power

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  • Stefan Voigt

    (University of Kassel)

Abstract

Judicial Independence is a crucial aspect of the rule of law and the concept of separation of powers. It gives judges considerable leeway in interpreting and thereby modifying the constitution. In this paper, the role of the European Court of Justice (ECJ) as an actor in the strategic game played between the other actors on the European level as well as actors on the nation-state level (the respective governments, but also national courts, corporate actors and individuals) is inquired into. After describing the changes of the ECJs competence that have occurred since 1953, an attempt at explaining them is undertaken. It is shown that the ECJ has been able to bring about implicit constitutional change because its members are constrained less stringently than most supreme court judges on the nationstate level. It is furthermore shown that lower court judges have incentives to cooperate with the ECJ sometimes to the detriment of national supreme court judges.

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Bibliographic Info

Paper provided by Berkeley Electronic Press in its series German Working Papers in Law and Economics with number 2003-1-1066.

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Handle: RePEc:bep:dewple:2003-1-1066

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Related research

Keywords: European Court of Justice; Economic Analysis of Court Behavior; Implicit and Explicit Constitutional Change; Preliminary Reference Procedure; Positive Constitutional Economics;

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References

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  1. Cooter, Robert D. & Ginsburg, Tom, 1996. "Comparative judicial discretion: An empirical test of economic models," International Review of Law and Economics, Elsevier, vol. 16(3), pages 295-313, September.
  2. Burley, Anne-Marie & Mattli, Walter, 1993. "Europe Before the Court: A Political Theory of Legal Integration," International Organization, Cambridge University Press, vol. 47(01), pages 41-76, December.
  3. Alter, Karen J., 2000. "The European Union's Legal System and Domestic Policy: Spillover or Backlash?," International Organization, Cambridge University Press, vol. 54(03), pages 489-518, June.
  4. Cooter, Robert & Drexl, Josef, 1994. "The logic of power in the emerging European constitution: Game theory and the division of powers," International Review of Law and Economics, Elsevier, vol. 14(3), pages 307-326, September.
  5. Eli Salzberger & Stefan Voigt, 2002. "On the Delegation of Powers: With Special Emphasis on Central and Eastern Europe," Constitutional Political Economy, Springer, vol. 13(1), pages 25-52, March.
  6. Mattli, Walter & Slaughter, Anne-Marie, 1998. "Revisiting the European Court of Justice," International Organization, Cambridge University Press, vol. 52(01), pages 177-209, December.
  7. Andrew Moravcsik, 1995. "Liberal Intergovernmentalism and Integration: A Rejoinder," Journal of Common Market Studies, Wiley Blackwell, vol. 33(4), pages 611-628, December.
  8. Voigt, Stefan & Salzberger, Eli M, 2002. "Choosing Not to Choose: When Politicians Choose to Delegate Powers," Kyklos, Wiley Blackwell, vol. 55(2), pages 289-310.
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Cited by:
  1. Bodo Knoll & Andreas Koenig, 2010. "Leviathan Europa - Stärkung der Nationalstaaten und der EU durch konstitutionelle Schranken?," Diskussionspapiere aus dem Institut für Volkswirtschaftslehre der Universität Hohenheim 321/2010, Department of Economics, University of Hohenheim, Germany.
  2. Lars Feld, 2005. "The European constitution project from the perspective of constitutional political economy," Public Choice, Springer, vol. 122(3), pages 417-448, March.
  3. Roland Vaubel, 2009. "Constitutional courts as promoters of political centralization: lessons for the European Court of Justice," European Journal of Law and Economics, Springer, vol. 28(3), pages 203-222, December.
  4. Peter Mankowski, . "Kommentar zu Georg von Wangenheim: Wie kommt es zu umfangreichem Sozialschutz im Zivilrecht?," German Working Papers in Law and Economics 2004-1-1096, Berkeley Electronic Press.
  5. Jean-Michel Josselin & Alain Marciano, 2007. "How the court made a federation of the EU," The Review of International Organizations, Springer, vol. 2(1), pages 59-75, March.
  6. Jean Michel Josselin & Alain Marciano, 2006. "The political economy of European federalism," Economics Working Paper Archive (University of Rennes 1 & University of Caen) 200607, Center for Research in Economics and Management (CREM), University of Rennes 1, University of Caen and CNRS.

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