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The European Court of Justice, National Governments, and Legal Integration in the European Union

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  • Garrett, Geoffrey
  • Kelemen, R. Daniel
  • Schulz, Heiner

Abstract

We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser the likelihood that the Court will tailor its decisions to the anticipated reactions of member governments. Second, the greater the domestic costs of an ECJ ruling to a litigant government, the lesser the likelihood that the litigant government will abide by it (and hence the lesser the likelihood that the Court will make such a ruling). Third, the greater the activism of the ECJ and the larger the number of member governments adversely affected by it, the greater the likelihood that responses by litigant governments will move from individual noncompliance to coordinated retaliation through new legislation or treaty revisions. These hypotheses are tested against three broad lines of case law central to ECJ jurisprudence: bans on agricultural imports, application of principles of equal treatment of the sexes to occupational pensions, and state liability for violation of EU law. The empirical analysis supports our view that though influenced by legal precedent, the ECJ also takes into account the anticipated reactions of member governments.

Suggested Citation

  • Garrett, Geoffrey & Kelemen, R. Daniel & Schulz, Heiner, 1998. "The European Court of Justice, National Governments, and Legal Integration in the European Union," International Organization, Cambridge University Press, vol. 52(01), pages 149-176, December.
  • Handle: RePEc:cup:intorg:v:52:y:1998:i:01:p:149-176_44
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    Cited by:

    1. Tracy H. Slagter, 2009. "National Parliaments and the ECJ: A View from the Bundestag," Journal of Common Market Studies, Wiley Blackwell, vol. 47, pages 175-197, January.
    2. Christian Adam & Michael W. Bauer & Miriam Hartlapp, 2015. "It's Not Always about Winning: Domestic Politics and Legal Success in EU Annulment Litigation," Journal of Common Market Studies, Wiley Blackwell, vol. 53(2), pages 185-200, March.
    3. Carsten Hefeker & Michael Neugart, 2016. "Policy deviations, uncertainty, and the European Court of Justice," European Journal of Law and Economics, Springer, vol. 42(3), pages 547-567, December.
    4. Pablo T. Spiller & Rafael Gely, 2007. "Strategic Judicial Decision Making," NBER Working Papers 13321, National Bureau of Economic Research, Inc.
    5. Alter, Karen J., 2004. "Agents of trustees? International courts in their political context," TranState Working Papers 8, University of Bremen, Collaborative Research Center 597: Transformations of the State.
    6. Andreas Grimmel, 2011. "Integration and the Context of Law: Why the European Court of Justice is not a Political Actor," Les Cahiers européens de Sciences Po 3, Centre d'études européennes (CEE) at Sciences Po, Paris.
    7. repec:kap:ejlwec:v:44:y:2017:i:3:d:10.1007_s10657-016-9551-2 is not listed on IDEAS
    8. Tridimas, George & Tridimas, Takis, 2004. "National courts and the European Court of Justice: a public choice analysis of the preliminary reference procedure," International Review of Law and Economics, Elsevier, vol. 24(2), pages 125-145, June.
    9. Mark A. Pollack, 2007. "The New Institutionalisms and European Integration," The Constitutionalism Web-Papers p0031, University of Hamburg, Faculty for Economics and Social Sciences, Department of Social Sciences, Institute of Political Science.
    10. De Somer, Marie and Maarten P. Vink, 2015. ""Precedent" and fundamental rights in the CJEU’s case law on family reunification immigration," European Integration online Papers (EIoP), European Community Studies Association Austria (ECSA-A), vol. 19, January.
    11. Nikolaos Zahariadis, 2013. "Winners and Losers in EU State Aid Policy," Journal of Industry, Competition and Trade, Springer, vol. 13(1), pages 143-158, March.
    12. Nicole Lindstrom, 2010. "Service Liberalization in the Enlarged EU: A Race to the Bottom or the Emergence of Transnational Political Conflict?," Journal of Common Market Studies, Wiley Blackwell, vol. 48, pages 1307-1327, November.
    13. repec:bla:jcmkts:v:55:y:2017:i:2:p:294-311 is not listed on IDEAS
    14. Jürgen Neyer, 2002. "Discourse and Order in the EU. A Deliberative Approach to European Governance," EUI-RSCAS Working Papers 57, European University Institute (EUI), Robert Schuman Centre of Advanced Studies (RSCAS).
    15. Grimmel, Andreas, 2011. "Politics in robes? The European Court of Justice and the myth of judicial activism," Discussion Papers 2/11, Europa-Kolleg Hamburg, Institute for European Integration.
    16. Andrew Geddes, 2013. "The Transformation of European Migration Governance," KFG Working Papers p0056, Free University Berlin.

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