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1 Contents List of Boxes, Figures and Tables List of Cases List of Abbreviations Acknowledgements vii viii xiii xv 1 Introduction 1 2 The Court in the History of the European Union 10 The Court s incremental search for a role ( ) 11 From Rome to Maastricht: activism at the Court ( ) 19 Retreat from activism? (1992 ) 34 Conclusion 41 3 The Membership and Organization of the Court 43 The members of the Court 45 Who are the judges and advocates-general? 55 The organization of the Court 62 Conclusion 71 4 The Role of the Court in the EU Political System 73 The judicial powers of the Court 73 The judicial powers of the Court in its political context 94 Conclusion The Court, EU Law and the Member States 106 Conflicts between national high courts and the CJEU 107 Institutional and legal factors explaining compliance 117 Networking hypotheses 127 Exchange programmes between the CJEU and national judges 132 Conclusion The Court and Interest Groups 135 Incentives to litigate 137 Interest groups and their resources in litigation cases 144 Litigation strategies 148 v

2 vi Contents The Court, interest groups and the politics of law in the European Union 154 Conclusion The Constitutional Role of the Court 158 Legal methods of the Court: treaties as a constitutional integrative system 160 The doctrines of direct effect and primacy 163 Horizontal and vertical separation of powers 170 The Court and the protection of human rights 174 The autonomy of the European legal order 176 Conclusion The Court in Policy-Making 180 Areas of policy-making 181 Functions of policy-making 200 Conclusion Conclusion 208 Is judicial integration still the basis of European integration? 208 Combining law and politics to better understand the CJEU 209 What do we understand by integration through law? 209 The EU and its Court: establishing stateness? 211 Continued judicialization 213 Strategic constructivism, the CJEU and the judicial integration of the EU s political system 216 Bibliography 221 Index 253

3 Chapter 1 Introduction Courts are key actors in any democratic political and legal system. In recent decades, their one influence has increased hugely in many democratic states, with an impact on literally every aspect of daily life. Understanding how courts speak the law and, in so doing, influence politics at the level of the state, is crucial for every student of political science and law. However, international courts courts established beyond the realm of the state have traditionally played a lesser role. Their influence varies and is dependent on the good will of states to recognize and adhere to Court decisions in global governance. In this general dichotomy, the Court of Justice of the European Union (CJEU) (Box 1.1) is an exception. It is considered an unusually powerful actor that has furthered European integration. The CJEU has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, and more recently, historians, have studied the Court as one of the main actors in the integration process. Those who saw European integration as integration through law (Cappelletti, Seccombe & Weiler, 1986, 1987) originally considered the Court to be the core element driving this process. At crucial moments, the Court s case law has shaped market integration, the balance of power among EU institutions and the constitutional boundaries between supranational and national competences. Whether dealing with Dutch customs rights (Van Gend en Loos 26/62), Italian electricity production (Costa vs. ENEL 6/64), French liqueur (Cassis de Dijon 120/78), Belgian stewardesses (Defrenne 43/75, 149/77) or, more recently, age discrimination (Mangold 144/04) and the European Stability Mechanism (ESM) (Pringle C-370/12), the Court s rulings have significantly influenced European integration. In recent years, the CJEU has seen its jurisdiction broadened to new policy areas such as justice and home affairs, welfare provisions, citizenship, labour law and fiscal coordination. In light of these developments, 1

4 2 The Court of Justice of the EU and the Politics of Law Box 1.1 The structure and nomenclature of the Court of Justice of the European Union (CJEU) The Court of Justice of the European Union (CJEU) since 2009 formerly the Court of Justice of the European Communities (CJEC) and commonly referred to in the Englishlanguage academic literature as the European Court of Justice (ECJ) In this book referred to as: The CJEU or The European Court or The Court It actually comprises different courts Court of Justice (CJ) Since 2016 Court of First Instance (CFI) since 1988, then General Court (GC) since 2009 Civil Service Tribunal (CST) from 2004 to 2016 In this book referred to as: The courts Court of Justice (CJ) General Court (GC) In this book referred to as: The courts The Court of Justice of the European Union (CJEU) is made up of two courts: the Court of Justice (CJ) and, since 1988, the General Court (GC). A third court, the Civil Service Tribunal (CST), was added in The Treaty of Lisbon (2009) has brought two main modifications regarding the appellation of these jurisdictions: CJEU is now used instead of Court of Justice of the European Communities (CJEC), while General Court has replaced the former Court of First Instance (CFI). The third Court, the Civil Service Tribunal, is to be merged with the General Court as soon as 2016.

5 Introduction 3 For the purposes of this book, we will use the current terms CJEU rather than CJEC and GC rather than CFI regardless of the period in time, whether it is before or after the Treaty of Lisbon. In the English-language academic literature, the term European Court of Justice (ECJ) has been applied either to the CJEU/CJEC or to the CJ. However, we have opted for the use of the Lisbon acronym CJEU and therefore will abstain from using ECJ. For reasons of style and fluidity of the text, we will sometimes mention the Court or the European Court as synonyms of the CJEU, and use the courts when referring to the different jurisdictions making up the CJEU (CJ, GC and CST). the Court is considered instrumental in building up Eurolegalism (Kelemen, 2011) and developing an adversarial rights-based legal system similar to the United States. While scholars have sought to evaluate judicial activism at the European Union (EU) level (Schmidt, 2012; de Witte, Muir & Dawson, 2013), some have taken a more critical perspective to expose the pro-integration agenda of the Court (Adam et al., 2013; Beck, 2012; Conway, 2014) and to open, at the EU level, the debate on a government of judges. The judicial activism of the Court or judicialization of the European political system is not confined to the European realm. Generally it refers to a process through which judges and judicial institutions act as policy-makers, thereby complementing, substituting or competing with political actors. At the European level, this trend may have its origins in the Court itself but may equally be explained by a general trend of judicialization at both the domestic and the international level (Bulmer, 1997; Joerges & Neyer, 1997a; Stone Sweet, 2004; Alter, 2014). Arguably, the significance of the CJEU s impact on its legal and political environment rivals that of the world s most powerful national supreme courts or national constitutional courts (Stone Sweet, 2012). In recent years, however, the Court has not always been a central actor of European integration. While integration through law remains a powerful narrative in the academic field of European studies, the Court s decisions have not always remained unchallenged.

6 4 The Court of Justice of the EU and the Politics of Law This view of the Court as being less central to European integration is based on two developments in the scholarship. On the one hand, research findings based on various analytical approaches from rational choice to post-positivist suggest that integration through law since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative and constitutional counteractions since its establishment in 1952 (Vauchez, 2010; Nowak, 2010; G. Davies, 2012; Rasmussen, 2013; Carrubba & Gabel, 2014; Martinsen, 2015a; Larsson & Naurin, 2016; Larsson et al., 2016). On the other hand, scholars have identified a number of developments in the integration process from the early 1990s, including the Maastricht Treaty (Treaty on European Union), that explain why the Court s role has come into question. First, the extension of the CJEU s legal competences to new policy areas has led to increasing political sensitivity, and as a result, scholars have questioned whether the member states and European institutions continue to comply with the Court s rulings. The Court has recently ruled on issues linked to redistributive policies such as health and social policy, but also sensitive regulatory policies such as civil rights and defence procurement. Member states such as Germany and the Czech Republic have been critical of the Court s interventionism in these fields. Second, since the Maastricht Treaty, new areas of legal competence have been established where the Court previously has had few powers. This is the case for both the Common Foreign and Security Policy (CFSP) and those policy areas covered by the so-called new modes of governance (Dawson, 2011), including parts of social policy, macro-economic policy coordination and education policy. Contrary to directives and regulations, which are compulsory for member states at the domestic level, these new modes of governance are based on policy instruments such as recommendations, peer review, information exchange and structured cooperation, without the provision to control implementation through the Court and its potential sanctions. The more these new modes of governance develop, the more the CJEU is left aside. Third, for those who see recent developments in the European Union as a new form of intergovernmentalism (Bickerton, Hodson & Puetter, 2015), with deliberation and consensus among member states becoming the guiding norm of day-to-day decision-making

7 Introduction 5 at all levels and hence excluding both the European Commission and the Parliament the CJEU is now subject to greater stress (Granger, 2015). Finally, some authors have argued that the CJEU has exercised self-restraint since the early 1990s (Dehousse, 1998; Keeling, 1998; Alter, 2012). Activist rulings have become less frequent, and the Court s case law seems to have become more cautious (Alter, 1996; Dehousse, 1998, p. 148; Keeleng, 1998; Saurugger & Terpan, 2015) in a legal context where supranational institutions face increasing resistance and scepticism from the member states and their citizens. The Court is now less inclined to provide bold interpretations of the treaties and instead sticks to the letter of the texts rather than acting as a policy-maker. In other words, both academic research and political and legal developments since the 1990s give reason to view the Court as taking a more constrained role. This is a trend that seems, paradoxically, to contradict the development of other international tribunals, such as the International Criminal Court and the Dispute Settlement Body, and Case-Specific Panels of the World Trade Organization, whose role and decisions have become more salient, that is to say more present in the public debate. In light of these features of the Court, and its role in European integration, the aim of this book is twofold. Its first objective is to explain the establishment, workings and impact of the CJEU as a central institution in the European political system. Its establishment by the founding treaties of the 1950s, its enormous impact during the 1960s and its changing role after the Maastricht Treaty require in-depth analysis. A second objective is to analyse the role of the Court as an embedded actor through the study of the dynamic relationship between legal and political integration, or what Weiler (1986) termed the dual character of supranationalism. While the study of formal rules and norms at the EU level in the post-war period was largely the preserve of legal scholars, during the 1980s and 1990s political scientists began to investigate various aspects of legal regulation. As the co-authors of this book a legal scholar and a political scientist we aim to transcend the ever visible, albeit diminished, divide between law and politics (Shaw & More, 1995; Stone Sweet & Sandholtz, 1997; Armstrong & Shaw, 1998; Alter, 2010; Stone Sweet, 2012). An analysis of the Court in its political and legal context will help us to understand the developments that have taken place in

8 6 The Court of Justice of the EU and the Politics of Law EU law and the way in which they have influenced the domestic level. Studies on the Court must not focus solely on the impact of the Court s case law on national law (as legal scholars mostly do), nor on the Court s positions with regard to European institutions, member states and non-state actors (as political scientists are prone to do). On the contrary, we need conceptual lenses that allow us to understand, on the one hand, how the Court s actions are embedded in the legal framework of EU law and, on the other, how the Court uses the law to position itself with regard to other actors. The Court s rulings are based on a legal interpretation of the case the doctrine that constrains the judges ability to act but there are also strategic decisions with regard to the external political, social and economic environment, to which the Court must respond. Hence the Court is not simply a political activist, nor is it an automaton agent of formalistic application (Everson & Eisner, 2007, p. 44). In this book, beyond the history of the Court and its internal workings, we analyse the construction of the Court s legal doctrine through the study of landmark rulings. We consider how these rulings are embedded in the Court s relationship with other actors European institutions, member states and interest groups. The CJEU gives the impression of being a unitary actor since the judges individual positions are not known, contrary to the US Supreme Court. It is, however, also an institution, and one that socializes law professionals. Through this socialization process it creates a specific means of making law (Scheingold, 2004, p. 153; Bobek, 2013). In its rulings we can see the doctrine and understanding of the Court s members, judges and advocates-general, supported by referendaires (judicial assistants), as well as the Court s positioning with regard to other actors. This approach to the Court is similar to strategic or actor-centred constructivist approaches in political science and comparative political economy (McNamara, 1998; Jabko, 2006; Blyth, 2002; Saurugger, 2013). Actors are seen to be embedded in a specific logic of appropriateness in our case the legal framework whereby a common understanding of a problem or idea emerges; this understanding can in turn be used strategically by the same actors to reach particular political objectives. Understanding the Court s internal structure and the Court s interaction with its environment will enable readers of this book to analyse how both legal frames and strategic actions of the Court define its own political role in

9 Introduction 7 the EU s wider political system. Combining law and politics, and considering the changing role of the Court in a wider institutional context, helps to better analyse the CJEU and the politics of law. The Court has not evolved in a political vacuum. Its contribution to the integration process has been influenced by sociological, political, institutional and economic factors that have varied over time. This mix of factors needs to be considered when examining the Court s place and influence in the European politics of law. We hope this book will help readers understand the Court s functions and institutional development. Furthermore, analysing the politics of law allows us to grasp the transformation of the EU political system as a whole. The book is structured in line with these two objectives, explaining the Court s place in the European political system, while linking legal and political approaches to analysing its evolution and function. The second chapter examines the role of the Court in the history of European integration, and contextualizes the Court in the broader context of the workings of the European Union. The CJEU is first and foremost an institution and, as such, is engaged in interpreting and shaping perceptions of the law. The aim of this chapter is to chart both its establishment and its evolving role in the history of European integration. The third chapter presents the members and organization of the Court, which have evolved considerably since its creation. We concentrate on the three courts that made up the CJEU until While the Court of Justice of the European Communities gained its jurisdiction in the 1950s, its increasing caseload led to the establishment of two other courts: the General Court formerly called the Court of First Instance (created in 1988) and the Civil Service Tribunal (created in 2004 and merged with the General Court in 2016). This chapter explains the structure of the three courts and the way in which their members judges and advocates-general are appointed. Complementing this institutional dimension, the chapter offers a sociological perspective, focusing on the social characteristics of the judges and how they influence the Court s decision. As underlined above, the Court is embedded in a larger political system. The Court s duty, as defined in the treaties, is to ensure that EU law is interpreted and applied correctly by the institutions and member states. Chapter 4 examines how the Court reviews the legality of acts adopted by the EU institutions, how it ensures that

10 8 The Court of Justice of the EU and the Politics of Law member states comply with obligations under the treaties and how it interprets EU law at the request of national courts and tribunals. Two different types of review are analysed those concerning the EU institutions and those concerning the member states. It also introduces comparative elements in order to distinguish the Court s role and its rulings from those of other national and international courts, including the European Court of Human Rights (ECtHR). The fifth chapter looks at the context in which the judiciary exerts influence and in particular its relations with national courts. We show that while in general the legal transformation of Europe has been backed up by national high courts, some have been anxious to protect national law and reluctant to accept key doctrines such as primacy or direct effect (Davies, 2012). This resistance has considerably decreased over time, but an important remaining exception is primacy over national constitutions, which is still a controversial issue. Discussing the politics of law in the EU, without considering how non-state actors such as interest groups, non-governmental organizations (NGOs) and firms interact with the Court, would result in an incomplete picture of the Court s role in the EU political system. Chapter 6 explains how the Court has achieved greater impact due to the involvement of other private and public actors, which have used the CJEU as a means to advance their own position, creating a virtuous circle that has in turn reinforced the integration process. Chapter 7 looks at the influence of the Court s legal doctrines on integration. It shows how through its audacious rulings the Court has helped the EU transform into a polity and how its active jurisprudence has helped transform the treaties into a sort of de facto European constitution (Stein, 1981). It also examines the role the CJEU has played in helping to establish the institutional setting of the EU, shaping the balance of power between the Commission, Parliament and Council, and its role in strengthening the protection of human rights. While Chapter 7 focuses on judicial activism at the constitutional (treaty) level, Chapter 8 looks at the legislative aspect of the Court s activism. It argues that the Court has not limited itself to a few constitutional principles, but competed with the EU co-legislators Council and Parliament in many fields of European integration. It looks at the areas of policy in which the rulings of the Court have had the most impact and asks whether the impact of the European Court can be described as one of law-making

11 Introduction 9 (Alter & Helfer, 2010) and whether the Court, by making law, is transforming itself into a policy-maker. The aim of Chapter 9 is to make sense of, and embrace, a framework for analysing these empirical developments. It examines how the key theoretical accounts of European integration have understood the role of the Court before arguing that only a combination of legal and political science approaches, that pay due attention also to historical and sociological factors, can allow us to understand the changes in the status of European law within the EU political system. Overall, this book aims to equip the reader with the tools necessary to understand the development, functioning and limitations of the CJEU s influence in the European political system. These tools are crucial for grasping the complexity of the supranational and intergovernmental dimensions of the EU as a political and legal system today. We hope to have made European legal integration and the Court s role in this process comprehensible and useful for students, teachers and researchers alike.

12 Index 255 panel 50, 56 Academics 49, 55, 58, 130 Accountability 41, 48, 54 Acte clair 86, 87, 111, 112 Action(s) for annulment 73, 74, 75, 77, 78, 79, 80, 81, 97, 98, 99 Action(s) for damages 74, 82, 83 Action(s) for failure to act 73, 74, 80, 81 Activism 3, 8, 11, 17, 19, 32, 34, 37, 38, 39, 40, 41, 55, 58, 60, 71, 94, 95, 117, 119, 128, 134, 144, 148,151,153, 158, 160, 161, 162, 163, 174, 175, 178, 179, 188, 192, 193, 197, 203, 206, 207, 208, 209, 210, 211, 216, 220 Actor-centred constructivist approaches/framework 6, 216 Advocate-general 13, 15, 16, 47, 49, 59, 63, 64, 65, 66, 67, 164, 177 Amsterdam treaty (Treaty of Amsterdam) 102, 196, 197, 214 Appointment of judges 48, 54 Arbitration panel 85 Article 263 TFEU 75, 76, 80, 81, 99, 138 Assistant Rapporteur 53, 65 Austria 48, 57, 58, 92, 189 Belgium 12, 56, 59, 66, 90, 92, 113, 116, 140, 149, 166, 182, 186, 194 Cassis de Dijon (case) 1, 26, 29, 31, 120, 126, 131, 167, 180, 182, 183, 184, 196, 202 Central and Eastern European countries 45, 115, 116, 134 Charter of Fundamental Rights 40, 101, 175, 193, 214, 220 Citizens 5, 19, 37, 70, 85, 89, 118, 143, 157, 165, 188, 189, 191, 208, 209, 214 Citizenship 1, 27, 65 Civil law 121, 158 Civil service lawyers 49 Civil Service Tribunal 2, 7, 43, 44 Civil society 42, 72, 157 Class action 142, 143 Committee of the Regions 76, 78 Common Agricultural Policy 23 Common Foreign and Security Policy 4, 101, 102, 103, 207 Common law 70, 71, 121, 158 Community method 101, 196, 207 Companies 16, 39, 138, 139, 142, 143, 151, 157, 201, 209, 210, 215 Competence sharing 172 Competition law, 65, 97, 125, 184, 185, 201 Conseil d État 13, 33, 47, 60, 86, 108, 111, 112, 113, 132, 152, 153, 170 Consequentialist interpretation 161, 217 Constitutional court(s) 3, 13, 14, 15, 27, 33, 51, 53, 56, 104, 107, 108, 110, 112, 114, 115, 116, 117, 127, 129, 132, 133, 134, 157, 163, 170, 175, 178, 198, 200, 209, 210, 214, 216 Constitutional pluralism 104, 116 Constitutionalism 159 Constructivist legal approaches 118, 120 Costa vs. ENEL (case) 1, 19, 21, 22, 23, 24, 30, 31, 33, 107, 108, 114, 119, 120, 131, 163, 166, 169 Court curbing 100, 122 Court of auditors 62, 75,

13 254 Index Court of First Instance 2, 7, 34, 43, 44, 57, 79, 185, 213 Czech Republic 4, 56, 107, 199 De Gaulle 23, 52 Defrenne (cases) 25, 29, 31, 126, 127, 135, 140, 145, 149, 150, 154, 166, 167, 189 Democracy 28, 54, 70, 109, 157, 178, 179, 206 Denmark 57, 66, 195, 203 Deregulation 39, 215 Diffuse public support 100 Direct action 71, 73, 74, 77, 81 Direct effect 8, 19, 20, 21, 22, 24, 25, 28, 30, 33, 60, 61, 86, 107, 108, 112, 114, 119, 120, 121, 127, 131, 135, 150, 152, 160, 161, 163, 164, 165, 166, 167, 169, 176, 178, 186, 190, 198 Discrimination 1, 30, 39, 110, 111, 148, 150, 153, 186, 187, 189, 190, 191, 192, 193, 196, 201, 202 Dualism 121 Economic and monetary union 41, 109, 181, 198, 219 ECSC Treaty 10, 11, 12, 14, 15, 16, 18, 50 EEC Treaty 10, 17, 19, 20, 22, 25, 29, 31, 161, 164, 165 Euratom Treaty 10, 17 European Central Bank 77, 78, 80, 138, 200 European Constitution 8, 160 European Convention on Human Rights (ECHR) 26, 175, 176, 214 European Court of Human Rights (ECtHR) 8, 26, 57, 177 European Defence Community (EDC) 16 European legal order 19, 26, 31, 86, 121, 160, 176, 214 European Ombudsman 62 Europeanization 92 Federal law 104 Federalism 123, 180 Fédération internationale pour le droit européen (FIDE) 130 France 14, 15, 16, 17, 23, 47, 48, 57, 66, 69, 70, 80, 90, 92, 93, 94, 107, 111, 113, 117, 137, 145, 152, 153, 182, 194 Free movement of goods 19, 26, 29, 120, 126, 149, 181, 182, 193, 184, 195, 196, 201, 202, 204, 213 Free movement of persons 25, 126, 181, 186, 188, 189, 194 Full Court 46, 51, 62, 63, 65 Functional interpretation 160, 217 General Court (GC) 34, 43, 44, 45, 47, 49, 50, 55, 62, 65, 67, 79, 80, 83, 84, 97, 185, 213 Germany 4, 12, 14, 20, 27, 29, 33, 34, 47, 48, 56, 66, 107, 108, 110, 113, 117, 120, 140, 141, 145, 166, 175, 189, 191, 192, 193, 194, 203, 205, 211, 218 Government by judges 41 Government of judges 3, 13 Grand Chamber 62, 63, 64, 65, 197 Greece 56, 66, 91, 117, 190, 196 Harmonization 21, 29, 124, 187, 202 Health policy 180, 181, 193 High Authority 10, 11, 12, 13, 15, 16, 17, 18, 99 Implied powers 160, 170, 172, 174 Infringement (procedure) 18, 79, 80, 87, 89, 92, 93, 95, 96, 99, 104, 105, 124, 133, 141, 142, 143, 158, 166, 178, 204 Integration through law 1, 3, 4, 13, 202, 208, 209, 210, 211, 213, 215, 216, 220 Interest groups 6, 8, 39,,135, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 151, 152, 154, 155, 156, 157, 203, 209, 210, 215, 217 Intergovernmental 9, 10, 12, 16, 61, 100, 101, 105, 122, 176, 198 Intergovernmentalism 4

14 Index 255 Internal market 24, 25, 26, 28, 29, 31, 76, 95, 120, 180, 181, 184, 185, 195, 196, 202, 215 International Court of Justice 49, 69, 103, 174 International law 19, 20, 60, 91, 103, 104, 106, 107, 108, 115, 121, 130, 163, 164, 165, 176 Internationale Handelsgesellschaft (case) 23, 25, 27, 28, 31, 109, 169, 175 Italy 12, 19, 26, 27, 30, 47, 48, 55, 66, 90, 107, 113, 114, 117, 124, 175, 197, 214, 218 Jean Monnet 12 Joint decision trap 123, 124 Judge made rules 100 Judicial reregulation 39, 215 Judicialization 181, 208, 211, 213, 215 Jurisdiction stripping 101, 122 Justice and Home Affairs 196, 207 Kelsen, Hans 107, 116 Lagrange, Maurice 15, 16 Landmark rulings 6, 10, 19, 23, 24, 31, 59, 162, 163, 186, 209 Lecourt, Robert 21, 52, 59, 66 Legal positivism 161 Legal reasoning 54, 60, 70, 118, 121, 160, 161, 162, 200, 206, 218 Legal style 70, 71 Legitimacy 10, 45, 46, 48, 50, 52, 63, 70, 71, 104, 119, 120, 179, 192, 206, 210 Lisbon Treaty (Treaty of Lisbon) 2, 3, 38, 41, 43, 50, 56, 76, 77, 78, 102, 110, 168, 175, 176, 193, 197, 214, 218, 220 Literal interpretation 34, 165, 217 Litigation strategies 99, 135, 136, 137, 138, 139, 140, 144, 145, 147, 148, 149, 153, 154, 155, 157 Luxembourg 12, 15, 17, 57, 58, 66, 90, 113, 116, 140, 193, 194 Maastricht decision (case) 23, 32, 202 Maastricht Treaty (Treaty of Maastricht) 4, 5, 19, 23, 33, 34, 37, 38, 41, 60, 62, 98, 100, 101, 102, 109, 127, 170, 173, 196, 198 Mangold (case) 1, 110, 111, 192, 193, 201, 211, 218 Messina Conference 16, Migrants 188, 192, 197, 203 Monism 121, 164 Mutual Recognition 26, 29, 120, 131, 180, 183, 187, 201, 202, 205 National parliaments 166 Natural persons 78 Netherlands 57, 66, 76, 113, 116, 121, 164, 166, 186, 188 New Modes of Governance 4, 38, 101, 105, 199, 207, 212, 214 NGOs 8, 39, 90, 136, 151, 155, 156, 157, 196, 210, 215 Nice Treaty 40, 46, 63, 64, 76, 78, 98, 100 Non compliance 96, 117, 133, 145, 142, 143, 146, 152, 196, 199, 205 Non-privileged applicants 76, 78, 138, 143 Open method of coordination 38, 101, 122 Overrule 13, 22, 37, 39, 53, 101, 115, 123, 156, 159, 166, 213, 216 Permissive consensus 37, 208, 216 Plea for illegality 81 Preliminary procedure 18, 135 Preliminary questions 18, 86, 128, 132 Preliminary references 20, 21, 44, 53, 73, 85, 96, 112, 116, 139, 141, 151, 155, 156, 166, 196 Preliminary ruling 18, 29, 67, 71, 73, 84, 85, 87, 88, 89, 112, 114, 115, 128, 131, 133, 139, 140, 143, 146, 147, 153, 155, 156, 164, 165, 198, 200, 204 Primacy 8, 19, 21, 23, 24, 28, 33, 60, 61, 84, 107, 108, 109, 110, 111, 112, 114, 115, 117, 119, 120, 121, 131, 134, 153, 160, 163, 168, 169, 170, 178, 198 Pringle (case) 1, 199, 200, 218, 219

15 256 Index Private litigants 13, 19, 97, 138, 158, 165, 167 Privileged applicants 76, 78, 81, 138, 143 Qualified majority voting 12, 202 Rapporteurs 53, 62, 64, 65, 66, 67, 69, 70 Resistance 5, 8, 27, 28, 33, 41, 107, 112, 117, 118, 127, 134, 153, 202, 208, 210, 211 Responsibility of a member of the institutions 74 Retreat from activism 34, 37, 38 Rome Treaty (Treaty of Rome) 10, 11, 16, 17, 19, 20, 22, 24, 30, 43, 50, 56, 61, 76, 97, 106, 114, 119, 120, 127, 131, 134, 165, 168, 169, 183, 185, 189, 201, 204, 209, 210 Schuman Declaration 12 Secondary law 28, 33, 53, 101, 102, 122, 137, 173, 184, 185, 201, 202, 203, 205, 206 Self-restraint 5, 34, 71, 162, 174, 191, 194, 208, 213, 216 Semi-privileged applicants 76, 78, 138 Separation of powers 13, 48, 170, 171, 172 Shadow of hierarchy 123, 124, 212, 214 Simmenthal (case) 21, 23, 24, 31, 32, 81, 86, 87, 169 Social policy 4, 24, 25, 29, 39, 126, 144, 147, 149, 150,156, 190, 193, 206 Socialization 6 Sociology 39, 60 Soft law 10, 38, 42, 101, 122, 176, 198, 207, 208, 212, 213, 214, 215 Solange (case) 27, 28, 33, 109, 110, 115, 170, 198, 214 Sovereignty 10,16, 22, 23, 33, 60, 71, 86, 105, 107, 108, 110, 111, 114, 125, 163, 169, 181, 189, 196, 208, 212, 219 Spaak Report 16, 17 Spain 47, 48, 57, 66, 81, 117, 125, 131 Statute of the CJEU 47, 49, 51, 53, 54, 62, 138 Strategic constructism 216 Subsidiarity 173, 174, 185 Supranational 1, 5, 9, 10, 11, 16, 17, 23, 48, 60, 61, 98, 99, 102, 103, 105, 120, 124, 125, 126, 155, 196, 197, 203, 208, 210, 220 Supreme Court 3, 6, 50, 52, 53, 54, 55, 57, 66, 69, 102, 103, 104, 105, 106, 116, 117, 121, 122, 133, 174, 199, 219 Systemic interpretation 161, 162, 201, 217 Teleological interpretation 217, 218 Test Cases 136, 147, 149, 154 To speak the law 1 Trabucchi, Alberto 21, 87 Trade Union 135, 138, 140, 141, 144, 147, 150, 151, 155, 156, 187, 188 Unified Patent Court 44 United Kingdom 37, 47, 48, 66, 92, 115, 158, 164, 170, 185, 194, 199 Useful effect 160, 161 Van Gend en Loos (case) 1, 19, 20, 21, 22, 23, 30, 31, 32, 85, 87, 89, 107, 108, 119, 121, 131, 161, 163, 164, 165, 166, 176, 181, 201 Walter Hallstein 12, 13, 131 Women s Rights 140, 147, 149, 190 World Trade Organization WTO 5 Zuleeg, Manfred 51, 52, 70, 123