European Administrative Governance

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1 European Administrative Governance Series Editors Thomas Christiansen Maastricht University Maastricht, The Netherlands Sophie Vanhoonacker Maastricht University Maastricht, The Netherlands

2 European Administrative Governance maps the range of disciplines addressing the study of European public administration. In particular, contributions to the series will engage with the role and nature of the evolving bureaucratic processes of the European Union, including the study of the EU s civil service, of organization aspects of individual institutions such as the European Commission, the Council of Ministers, the External Action Service, the European Parliament, the European Court and the European Central Bank and of inter-institutional relations among these and other actors. The series also welcomes contributions on the growing role of EU agencies, networks of technical experts and national officials, and of the administrative dimension of multilevel governance, including international organizations. Of particular interest in this respect will be the emergence of a European diplomatic service and the management of the EU s expanding commercial, foreign, development, security and defence policies, as well as the role of institutions in a range of other policy areas of the Union. Beyond this strong focus of EU administrative governance, the series will also include texts on the development and practice of administrative governance within European states. This may include contributions to the administrative history of Europe, which is not just about rules and regulations governing bureaucracies, or about formal criteria for measuring the growth of bureaucracies, but rather about the concrete workings of public administration, both in its executive functions and in its involvement in policy-making. Furthermore the series will include studies on the interaction between the national and European level, with particular attention for the impact of the EU on domestic administrative systems. More information about this series at

3 Christian Adam The Politics of Judicial Review Supranational Administrative Acts and Judicialized Compliance Conflict in the EU

4 Christian Adam München, Bayern Germany European Administrative Governance ISBN ISBN (ebook) DOI / Library of Congress Control Number: The Editor(s) (if applicable) and The Author(s) 2016 The author(s) has/have asserted their right(s) to be identified as the author(s) of this work in accordance with the Copyright, Design and Patents Act This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Macmillan Publishers Ltd. London

5 To my wife, Miriam, and to my parents, Ursula and Alfred

6

7 PREF ACE This study expresses a discontent with the course that compliance research has predominantly taken in the EU context. While this literature deals with the highly relevant questions of why states violate European law and how this can be avoided, it suffers, in my view, from two probably related shortcomings. To begin with, this literature tends to strictly adopt a top-down perspective. Thereby it often overlooks the interdependencies between conflicts over questions of compliance and policy implementation on the one hand and policy-making and governance reforms on the other hand. In this sense, this literature sometimes seems to fall behind insights gathered by implementation research throughout the 1970s, which strongly emphasized the relevance of feedback loops between these two phases in the policy process: policy-making affects policy implementation, and policy implementation, in turn, influences policy-making. Yet, how compliance conflict might feed back into the process of policy formulation and reform is not really a question addressed by this literature. In this regard, compliance research in the EU context remains rather distinct from the growing literature on Law and Politics, which emphasizes the political relevance of litigation and court rulings. While the literature on compliance understands the judicial arena as one of policy enforcement, the Law and Politics literature has long recognized that this arena is also one of (judicial) policy-making. As a result, existing compliance research seems to have difficulties in understanding the role of noncompliance and compliance conflict in terms of policy and institutional reform. vii

8 viii PREFACE This study is a humble attempt to address these shortcomings by showing how national governments try to exploit the law-making powers of the Court of Justice of the European Union by strategically transferring compliance conflict to the judicial arena in the hope of sustainably influencing the distribution of competences in the multilevel system. This way, the judicialization of compliance conflict with the European Commission becomes a tool of institutional politics to national governments. Although this study is a monograph, research is at least according to my experience never a solitary exercise. The same is true for this study, which is one result of a larger research effort to better understand national patterns, causes, and consequences of annulment litigation. I was fortunate enough to be able to join the research group that includes Michael W. Bauer and Miriam Hartlapp, and recently joined by Emmanuelle Mathieu. Thank you very much for your support. Furthermore, I want to thank Sabine Mehlin and Frieder Bürkle, who supported the process of data collection as student research assistants. The Young Scholar Fund of the University of Konstanz provided part of the funding, enabling me to spend time on this topic and project. The support is greatly appreciated. I am also thankful to Dirk Leuffen. This volume really profited from your thorough and very constructive criticism. Of course, without the moral support of my family, this book would not have been possible. Above all, I am grateful to my wife and my parents for their patience, encouragement, and help. Finally, I want to thank Christoph Knill and Michael W. Bauer for being a constant source of inspiration and motivation ever since I joined the academic world. München, Bayern, Germany Christian Adam

9 CONTENTS 1 Introduction 1 Part I Tracing Causal Mechanisms: Why Governments Activate the Court of Justice 21 2 Policy Misfit and Governmental Litigation 23 3 Governmental Litigation as a Form of Legal Activism 43 Part II Moving Beyond Anecdotal Evidence: The Role of Policy Misfit and Legal Activism in the EU s State Aid Policy Regime 79 4 State Aid Control in the European Union 81 5 Governmental Litigation, Policy Misfit, and Legal Activism in the EU s State Aid Regime 117 ix

10 x CONTENTS 6 Conclusion 155 Technical Appendix 165 Index 177

11 LIST OF FIGURES Figure 1.1 Three possible government reactions to supranational administrative acts 13 Figure 4.1 Structure of interactions within the EU s state aid regime 88 Figure 4.2 Number of state aid decisions by type and member state 101 Figure 4.3 Negative and conditional decisions litigated against 103 Figure 4.4 Most frequent litigants in state aid policy 110 Figure 5.1 Degrees of state aid policy misfit 122 Figure 5.2 Average level of legal activism 129 Figure 5.3 Effect of state aid policy misfit 136 Figure 5.4 Impact of policy misfit by conflict potential 137 Figure 5.5 The role of legal activism by conflict potential 138 Figure 5.6 The role of legal activism 139 xi

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13 LIST OF TABLE Table 5.1 Poisson regression results 133 xiii

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