The European Court of Justice and the policy process: The shadow of case law
| Published date | 01 September 2018 |
| Author | Lisa Conant |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1111/padm.12536 |
REVIEW
The European Court of Justice and the policy
process: The shadow of case law
Susanne Schmidt
Oxford University Press, 2018, 294 pp., £65(hb), ISBN: 9780198717775
Susanne Schmidt has written a brilliant book. Titled to indicate that it analyses the role of the European Court of Jus-
tice (ECJ) in the European Union (EU) policy process, the book also (1) explains contemporary controversies that
threaten the EU’s future and (2) suggests solutions to its predicament. In exploring the impact of ECJ case law on
European and national policy, Schmidt’s analysis encompasses elements from competing perspectives on European
legal integration: judicial supremacy versus constrained courts. Consistent with accounts that are juristocratic, she
argues that the Court’s constitutionalization of EU treaties—through doctrines of direct effect and supremacy—
enables its interpretations to exert a powerful influence over law and policy (Stone Sweet 2004 and Cichowski 2007).
Unlike most EU scholars, however, Schmidt is critical of this development, joining Grimm (2015) to characterize it as
‘over-constitutionalization’, whereby the judiciary overshadows the legislature in ways that foreclose beneficial policy
solutions and threaten democratic legitimacy. Early judicial interpretations to facilitate the free movement of goods,
extended through analogical reasoning in a path dependentmanner to the Treaty’s other freedoms—workers/persons,
services/establishment, and capital—generate controversial dictates that national governments (and the European
Parliament) never agreed to in treaties or secondary legislation. Far from celebrating the resulting construction of the
Single Market and EU citizenship, Schmidt shares Scharpf’s (2010) concern that negative integration outpaces positive
integration: she emphasizes the costs of this project for legitimate national regulatory aims and the majority of
‘Europeans’who are unlikely to become transnationally mobile to realize supranational rights. Articulating a progres-
sive sympathy for those who need social safety nets and lack the skills to become Favell’s‘Eurostars’(2011), Schmidt
identifies how resentments about European obligations fuel radical resistance to the EU. Her observations point to
inconvenient facts that Europhiles would be wise to heed in order to avoid sowing the seeds of disintegration.
For example, the EU’s refrain in Brexit negotiations that the United Kingdom (UK) cannot ‘cherry-pick’among EU
policiesand that the Single Market entails‘four freedoms or no freedoms’presumes that the paralleltreatment of goods,
enterprises, people, and money is both necessary and desirable. Polanyi (1944) long ago justified why people are not
analogous to goods in the market. Schmidt’s analysis of the BritishConservative government’sefforts to renegotiatethe
terms underwhich it was obligatedto pay social benefitsto EU immigrants and the association betweenthe Brexit refer-
endum outcome and popular resentment about unlimited intra-EU migration suggest that the ECJ’s approach to re-
embedding the market at the European level (Caporaso and Tarrow 2009)was rejected by both governing elites and a
majority of votersin the UK. Schmidt’s detailed process-tracing of member state interventionsagainst expansive inter-
pretations of social rights in ECJ litigation and the fact that 12 of 15 member states imposed the seven-year waiting
periodfor free movement rightsto workers from Central/EastEurope in 2004 reflectthat the free movementof persons
and equal treatment of EU citizens are far from ‘majoritarian’. The typical justification for why the EU cannot readily
arrange a mutually advantageousdeal with the UK is far too broad. The fundamental problem is not thatany beneficial
Brexit arrangement motivatesan exit contagion; it is that most Northern/Western memberstates would want the same
DOI: 10.1111/padm.12536
628 © 2018 John Wiley & Sons Ltd wileyonlinelibrary.com/journal/padm Public Administration. 2018;96:628–630.
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