11 November 2015

Politicians condition the influence of the Court of Justice of the European Union (CJEU)


EU politicians have decisive influence on the broader impact of the Court’s jurisprudence. That is the conclusion by Professor Dorte Sindbjerg Martinsen, who is one of the first to analyse the judicial influence on EU politics.

The CJEU is the EU’s highest judicial authority. It is also at times a very criticised court, accused of activism. The Court is criticised of extending the EU’s competences through judicial activism, whereby the EU juristocracy becomes the actual decision makers, leaving EU politicians powerless.

EU politicians take an active and critical stance

Professor Dorte Sindbjerg Martinsen, Centre for European Politics, has just finished her higher doctoral thesis. She is one of the first to analyse the political influence of the CJEU. By investigating the dynamics between legal and political integration over time and for a number of more recent cases she has disentangled the complex puzzle of the political processes which unfold after judicial decisions have been rendered. She concludes that EU politicians have the ability to modify the impact of judicial decisions:

"I have been surprised by the extent to which EU politicians take an active and critical stance towards the interpretations of the CJEU. EU politicians have the capacity to modify the actual impact of legal decisions. Judicial decisions matter for those who sue but jurisprudence does not necessarily translate into rights or obligations for the many," says Dorte Sindbjerg Martinsen.

1-0 victory to the EU member states

As an example she mentions the patients’ rights directive for cross-border healthcare. According to the CJEU the directive should give patients the possibility for treatment in another EU country without prior authorization. Except in cases which demanded hospitalization. However, EU politicians in the European Parliament and in the Council of Ministers had the directive amended so that the free movement was limited by the introduction of prior authorization for a much larger scope of treatments:

"Today the member states to a large extent define themselves which treatments demand prior authorization, and so far the patients’ rights directive has had limited effect on patients’ movements across borders. The high hopes that some patients attached to the legal rulings were not fulfilled. The EU member states thus won the first set against the Court," says Dorte Sindbjerg Martinsen.

The EU professor has explored the relationship between law and politics within a range of social policy areas; social benefits across borders, healthcare policies, gender equality and labour market regulations. According to Dorte Sindbjerg Martinsen social policy is a strong example that the political battlefield condition judicial influence on EU regulation.

The struggle for welfare autonomy

Welfare is a very sensitive issue causing debate in the EU countries as this is a policy area in which the member states struggle to maintain autonomy. Dorte Sindbjerg Martinsen explains that ideology and strong interests drive the political processes characterised by deep conflicts between EU and national politics as well as along ideological cleavages. Responses for or against CJEU rulings are indeed informed by strategy, interest and politics. 

"Social Democratic EU politicians supported the CJEU when it was about strengthening social rights in relation to working time. However, when the Court challenged the right to strike, they went strongly against the Court’s jurisprudence," Dorte Sindbjerg Martinsen explains.

Increased awareness of the consequences

Today She has looked at the development of the cases during a long time span and finds that the EU politicians over time have become less willing to accept that the Court’s decisions are written into the legislation. Politicians and their civil servants have learned over time and political awareness as to legal integration has grown. Dorte Sindbjerg Martinsen finds that the lines of disputes are much more pronounced today:

"It has become much more apparent that the Internal Market has far reaching consequences for all most every policy area. The argument has been that the political power of the Court has been shielded behind legal language and reasoning. However, my findings suggest that EU politicians are today much more conscious about legal integration and its implications," explains Dorte Sindbjerg Martinsen.

The doctoral thesis is published as a monograph entitled “An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union” with Oxford University Press. Dorte Sindbjerg Martinsen will defend her doctoral thesis at the Department of Political Science, University of Copenhagen Friday the 13th of November. The defense is open to all interested.

Professor Dorte Sindbjerg Martinsen
Centre for European Politics
Mobile: +45 50 90 72 16