Abstract
ABSTRACT This contribution analyses if and under what conditions bottom-up pressures constrain the Court of Justice of the European Union (CJEU). Neofunctionalists famously explained the power of the Court by its use of ‘law as a mask and shield’. Due to its technical nature, the Court is able to mask the political substance of ‘integration through law’ and to shield it from political challenges. We revisit this argument in times of politicisation of the EU and develop a typology of four constellations depending on different kinds of bottom-up pressures. We argue that depoliticised integration through law still functions, to varying degrees, in face of either governmental contestation or public politicisation. By contrast, if member state governments and the public jointly oppose further integration through law, the Court is constrained as further expansive jurisprudence could even reinforce politicisation and risk political backlash. We illustrate our argument with case law on EU citizenship.
Highlights
Among all major EU institutions, the Court of Justice of the EU (CJEU) is the least likely to be affected by the bottom-up politicization of EU decision-making
We develop a typology of four constellations depending on whether Court of Justice of the European Union (CJEU) jurisprudence is subject to bottom-up pressures stemming from member state governments and/or politicization
Member states have become more skillful in penetrating the shield of law and as EU integration has moved into core areas of national sovereignty, the political implications of jurisprudence have become harder to mask
Summary
Among all major EU institutions, the Court of Justice of the EU (CJEU) is the least likely to be affected by the bottom-up politicization of EU decision-making. We argue that the Court faces a ‘constraining consensus’ if further expansive jurisprudence is contested by member state governments, but faces public politicization. Under these circumstances, judges have to choose between self-restraint and the risk of political backlash (Madsen et al 2018). The following theoretical section briefly summarizes the original neofunctionalist account, before we develop our own argument and typology of different constellations of CJEU contestation. We illustrate these four ideal typical constellations with empirical evidence from the area of EU citizenship, complemented with examples from other policy areas. The concluding section discusses the prospects of further Court-driven integration through law in times of politicization
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