Supranationalism, constrained? Locating the Court of Justice on the EU integration dimension
| Author | Michal Ovádek |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| DOI | http://doi.org/10.1177/1465116520967414 |
| Subject Matter | Articles |
Article
Supranationalism,
constrained? Locating
the Court of Justice
on the EU
integration dimension
Michal Ova
´dek
Centre for Empirical Jurisprudence, KU Leuven, Leuven, Belgium
Abstract
The European Court of Justice is generally known to use its institutional role to
advance European integration. Scholars have disagreed, however, on the extent to
which the Court fears and anticipates negative reactions to its rulings from the
Member States. Without a possibility to access internal deliberations, such strategic
behaviour by the Court makes it empirically challenging to identify its preferences
relative to other actors. I tackle this problem using an item-response theory model
designed to estimate institutional preferences from cases concerning procedural and
competence disputes. I find that the Court leans on average towards more suprana-
tional positions, while also systematically adjusting its rulings in response to Member
States’ preferences. Controlling for these effects reveals the European Court of Justice
to be even more partial to supranationalism than the pattern of its decisions suggests.
Keywords
European Courtof Justice, ideal point estimation, item-response theory, supranationalism
Introduction
How pro-integration is the European Court of Justice (ECJ)? Much of political
and legal literature portrays the ECJ as being biased towards outcomes that favour
Corresponding author:
Michal Ova
´dek, Centre for Empirical Jurisprudence, KU Leuven, 45 Tiensestraat, 3000 Leuven, Belgium.
Email: michal.ovadek@gmail.com.
European Union Politics
2021, Vol. 22(1) 46–69
!The Author(s) 2020
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DOI: 10.1177/1465116520967414
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more European integration at the expense of national competences (Garben, 2015;
Mattli and Slaughter, 1998; Moravcsik, 1999; Pollack, 2013: 1265; Rasmussen,
1986; Vauchez, 2012). These allegations are hardly groundless, even if legalists
reject that judges would actively favour some political outcomes over others
(Burley and Mattli, 1993; Shapiro, 1980). Ideology was shown to exert an impor-
tant influence on the decision-making of the United States Supreme Court (Segal
and Cover, 1989; Segal and Spaeth, 2002). Moreover, because peak courts’ prom-
inent place in institutional systems provides them opportunities to wield consider-
able power over legislative and constitutional direction (Davies, 2016; Dyevre,
2010), they are, similarly to political actors, not indifferent to how influence is
distributed in the policy-making process (Jupille, 2004).
1
Seeing the potential for courts to shape political outcomes, other institutional
players seek to constrain judicial decision-making to preserve their own power.
The extent to which courts’ discretion has been effectively contained by political
actors has fuelled considerable debate in the European Union (EU) context.
Whereas some scholars see few to no political constraints on the ECJ (Davies,
2016; Mattli and Slaughter, 1998; Pollack, 1997: 118; Scharpf, 2012; Sweet and
Brunell, 2012), others found threat of override, by legislative or Treaty revision
means, and non-compliance, to constitute effective limits on judicial behaviour in
the EU (Carrubba et al., 2008, 2012; Castro-Montero et al., 2018; Larsson and
Naurin, 2016). A number of scholars reached a middle position (Blauberger and
Schmidt, 2017; Martinsen, 2015b; Wasserfallen, 2010). Martinsen (2015a: 236)
notes that ‘judicial influence is not a question of whether but a question of degree’.
A well-known empirical challenge in this strand of scholarship is finding evi-
dence of judicial restraint when courts are capable of strategic behaviour.
Observing, as in the EU, that override and non-compliance are relatively rare is
in itself insufficient to establish their irrelevance. The Court might be strategically
adjusting its behaviour precisely to avoid actions that would damage its reputation
or result in policy reversal (Bailey, 2007; Carrubba et al., 2008: 436). As a result, we
may underestimate at once the magnitude of the ECJ’s true preferences – which are
generally agreed to favour advancing European integration – and the existence of
political constraints on judicial discretion.
In this study, I attempt to reveal the ECJ’s institutional preferences alongside
and relative to the Member States, the Commission and the Parliament, while
taking into account the possibility that the Court decides strategically, with poten-
tial Member State reactions on its mind. To this end, I collect a new dataset of ECJ
cases concerning interinstitutional disputes relating to procedural and competence
issues. I scale the positions of all actors using an item-response theory (IRT) model
to obtain estimates of their ideal points along the underlying dimension of conflict
which I validate as preference for supranational (intergovernmental) institutions.
I find that the Court leans on average towards more supranational positions, while
also systematically adjusting its rulings in response to the Member States’ prefer-
ences. Controlling for these effects reveals the ECJ to be even more partial to
supranationalism than the pattern of its decisions suggests.
Ova
´dek 47
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