The Court of Justice of the European Union (CJEU) is one of the key institutions in the European political system, and amongst the less well known. Described as one of the most powerful international courts, and perceived as one of the reasons the UK left the European Union (EU) (their main argument being that they did not want to be held to account by an unelected and non-British court), the Court continues to be shrouded in mystery. The aim of this chapter is to facilitate an understanding of the structure, history, and workings of this Court, as a key actor in the EU’s institutional system. As such, it is not only a judicial actor but a ‘political’ actor too. Its constitutional role, as well as its role during the economic and financial crisis, illustrates these multiple facets.
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7. The Court of Justice of the European Union:
a quiet leader
Sabine Saurugger and Fabien Terpan
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Paul James Cardwell
This chapter provides an overview of the Court of Justice of the EU. The Court has emerged as a powerful player in the history and development of the European integration process. Its contribution to the workings of the EU and our understanding of it are central to both legal and political accounts, while its decision-making has at times been controversial. This chapter explores the history of the court as an institution of the EU, its composition, and how it has developed its role. It considers how we can understand the ‘politics’ of the judicial arm of the EU’s institutional framework and also discusses the ‘activism’ of the Court.
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Niamh Nic Shuibhne
This chapter considers the structure and functions of the Court of Justice of the European Union. It first traces the history and development of the European Court of Justice before discussing its structure and functions. In particular, it describes the composition of the Court, judicial appointments, what the Court does, enforcement proceedings, actions for judicial review, and the preliminary rulings procedure. The chapter goes on to explain how the Court works in a practical sense by focusing on its judicial chambers. It also examines the wider political environment in which the Court operates, such as its role in addressing the regulatory steps taken to manage the ongoing euro crisis or the issue of EU citizenship in relation to free movement rights. The chapter also offers some reflections on the nature and influence of the Court and concludes by analysing its relationship with the European Court of Human Rights.
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This chapter focuses on the Court of Justice of the European Union (CJEU), which comprises two courts: the CJEU and the General Court. It first provides an overview of the CJEU’s structure and functions, and then discusses some of its main rulings and their significance. It further considers rulings on the powers of the institutions, some key legal judgments made in response to questions referred to the CJEU by national courts, the impact of CJEU rulings on EU policy, and post-Maastricht trends in the CJEU and EU law. It also assesses the evolving political reactions towards the judgments of the Court, along with the debate over whether the member states have been able to effectively curb the CJEU’s radical jurisprudence.
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Ilias Kapsis
This chapter examines the Court of Justice of the European Union (CJEU), which consists of three courts: the Court of Justice (or ‘the Court’), the General Court, and the Civil Service Tribunal. It focuses on issues of structure and procedure, the extent of the Courts’ jurisdiction, and their role in the promotion of European integration. The chapter also discusses the criticism directed at the CJEU for the way it exercises its judicial powers, which allegedly involve political considerations normally unacceptable for a judicial body. Lastly, the chapter looks at role of the Courts in the current challenging environment facing the EU as a result inter alia of Brexit, the refugee crisis, the rise of populism, and the continuing impact of the economic crisis.
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Hussein Kassim and Vanessa Buth
This chapter examines the impact of Europeanization on member state institutions. Membership in the European Union imposes a variety of constraints and burdens on countries, but it also affords important opportunities and makes available significant resources. Integration initially reinforced the decline of national legislatures, but they have fought back in the last decade. National courts have assumed new functions and become part of a wider Community of law. At the same, the precise effects of the EU have varied cross-nationally as the demands of membership have interacted with differing constitutional arrangements, legal traditions, and political cultures. Moreover, national institutions such as governments, parliaments, and courts have left their mark on the EU and determine to a large extent the capacities of the Union as a system. The chapter considers how EU membership has affected national governments, national parliaments, and national courts.
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Nuno Garoupa and Pedro C. Magalhães
This chapter focuses on the constitutions of European countries as well as on the mechanisms in place to interpret and enforce them. It starts by defining ‘constitution’. It then proceeds to a discussion about the role of courts and constitutional review of legislation. Focusing in particular on centralized constitutional review, it describes the variety of powers enjoyed by contemporary constitutional courts. Existing mechanisms for litigation and judicial appointment are also considered. Finally, it addresses the existing empirical evidence about both judicial behaviour in such courts and their political impact. The chapter concludes with an examination of current trends in the direction of supranational constitutionalism and constitutional review.
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Peter Ferdinand
This chapter examines how laws, constitutions, and federalism provide structure to the context of political life. It first considers the importance of constitutions in determining the basic structure of the state and the fundamental rights of citizens that they establish before asking whether the Universal Declaration of Human Rights is Western-centric. It then explores different ways in which states may attempt to realize justice in applying the law, with particular emphasis on differences between Islamic and Western practice. It also discusses the importance of constitutional courts, the ways that the institution of federalism contains the powers of the state and manage diverse societies, and consociationalism as an alternative approach to managing such diversity. Finally, it comments on the increasing legalization of political life.
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This chapter examines the importance of law and the rule of law by looking at real-life situations through the lens of theoretical models that consider why people obey the law and how judges interpret the law. The chapter considers when and why citizens and elected officials follow the law. It then moves to the conditions under which this obedience of laws falls. It also explores the importance of courts and judges in interpreting the law, and analyses the interaction of politics and law as a way to try to understand how judges come to their decisions. In particular, it looks at the interaction between national and European Union (EU) law.
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Peter Ferdinand
This chapter examines how laws, constitutions, and federalism provide structure to the context of political life. It first considers the importance of constitutions in determining the basic structure of the state and the fundamental rights of citizens that they establish before asking whether the Universal Declaration of Human Rights is Western-centric. It then explores different ways in which states may attempt to realize justice in applying the law, with particular emphasis on differences between Islamic and Western practice. It also discusses the importance of constitutional courts, the ways that the institution of federalism contains the powers of the state and manage diverse societies, and consociationalism as an alternative approach to managing such diversity. Finally, it comments on the increasing legalization of political life.
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This chapter explores the interrelationships between law, constitutions, and federalism. It first explains the importance of constitutions in shaping the basic structure of the state and the fundamental rights of citizens that they establish before discussing the Universal Declaration of Human Rights, in particular asking whether it is Western-centric. It then considers the ways in which states may attempt to realize justice in applying the law, with emphasis on the distinction between Islamic and Western practice. It also examines the role of constitutional courts and judicial review, legal adjudication of political problems, how the institution of federalism is used to contain the powers of the state and to manage diverse societies, and consociationalism as an alternative approach to handling social diversity. Finally, it analyses the increasing legalization of political life.
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10. The European Court of Auditors and the European Ombudsman:
the EU’s ‘watchdogs’
Andreea Nǎstase and Christine Neuhold
Both the European Court of Auditors (ECA) and the European Ombudsman (EO) have been coined as European Union (EU) ‘watchdogs’. They have very different mandates: the Court audits the EU’s finances and the Ombudsman investigates complaints of maladministration by EU institutions and bodies. It might then come as a surprise that they have quite a lot in common. Their main EU institution of scrutiny is the European Commission, and they need to preserve their independence as oversight institutions. Neither has the power to impose sanctions on the institutions they investigate. Both the Court and the Ombudsman also cooperate with their national counterparts. In this chapter, we shed light on these EU ‘watchdogs’, which have thus far been under-researched. We do this by examining the key features of their institutional set-up and how they work. We also analyse how they have succeeded in interpreting their role beyond legal provisions and how they have dealt with crisis.
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Richard Corbett, Daniel Kenealy, and Amelia Hadfield
It is impossible to understand the EU without a careful study of its key institutions and how they work. This chapter examines the six key institutions of the EU: the European Commission; the Council (of ministers); the European Council; the European Parliament; the Court of Justice of the European Union; and the European Central Bank. The chapter discusses the structures and formal powers of the six institutions and how these powers have evolved in practice over time. While it may be tempting to regard EU institutions as dry and complex, they are also dynamic organisms exercising a unique mix of legislative, executive, and judicial power. The chapter explains why these institutions matter in determining EU politics and policy more generally, focusing on three central themes: the extent to which the EU is an experiment in motion; the importance of power sharing and consensus; and the capacity of the EU structures to cope with the Union’s expanding size and scope.
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Brigid Laffan
This chapter examines the politics of financial accountability in the European Union by focusing on two organizational entities designed to protect its financial interests: the Court of Auditors and the European Anti-Fraud Office (OLAF, from the French Office européen de lutte antifraude). It first provides an overview of the two institutionsʼ origins before discussing their internal structures, powers, and their place in the institutional landscape of the EU. It then considers the institutions in context, with emphasis on their respective roles in financial control and the larger EU system, theories on their establishment and development, and their impact. The chapter concludes by assessing the contributions of OLAF and the Court of Auditors to the growing salience of financial management in the EU.
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Marlies Glasius and Doutje Lettinga
This chapter examines the relationship between global civil society (GCS), defined as ‘people organizing to influence their world’, and the normative ideal of a ‘global rule-bound society’. It first explains the concept of GCS before discussing some of the GCS actors involved in human rights issues, with a particular focus on their background, methods, and influence. It then decribes three kinds of activities of individuals and organizations in civil society in relation to human rights corresponding to three different phases: shifting norms, making law, and monitoring implementation. These activities are illustrated with two case studies: norm-shifting activities in relation to economic and social rights, and lawmaking and monitoring activities in relation to the International Criminal Court.
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14. The European Union
A Constitutional Order in the Making
Berthold Rittberger
This chapter examines how the European Union acquired distinctive constitution-like features. It begins with a discussion of three routes to constitutionalization: the first is through changes in the EU's primary law; the second focuses on ‘in between’ constitutionalization; and the third leads directly to the European Court of Justice and its jurisprudence. The chapter proceeds by discussing two developments that have shaped the EU constitutional order almost since the beginning: the emergence of a body of EU law constituting a set of higher-order legal rules, and the consolidation of the constitutional principle of representative democracy. It explains how the supremacy and direct effect of EU law, as well as the EU court's concern with the protection of fundamental rights, helped transform the EU into a constitutional polity. It also considers how the extension of the legislative, budgetary, and other powers of the European Parliament animated the constitutional principle.
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7. Under the Shadow of Stagflation
European Integration in the 1970s
Richard T. Griffiths
This chapter examines European integration during the 1970s. The 1970s is often portrayed as a dismal decade in the history of European integration, when the European Community (EC) experienced severe turbulence as it digested Britain's accession and was buffeted by the global economic downturn. Stagflation and Eurosclerosis — sluggish economic growth combined with institutional immobility — ensued. At the same time, however, the Community developed in important ways. The European Court of Justice generated an impressive body of case law, and the EC coped with the challenges of enlargement, the break-up of the international monetary system, and the consequences of slower economic growth. The chapter rejects the notion that the 1970s was a dismal decade in the history of European integration and describes it as a transitional period between the launch of the Community in the 1960s and the acceleration of European integration in the 1980s.
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13. International criminal justice
From Nuremberg to the International Criminal Court
This chapter assesses whether international politics can be conducted in the courtroom. It begins with an analysis of the post-Second World War Nuremberg tribunal. While flawed in many ways, these proceedings marked a significant change in thinking about international crimes and individual responsibility. Though the onset of the Cold War prevented the translation of the Nuremberg legacy into more permanent, treaty-based international institutions, the ideas Nuremberg incubated were to have a lasting impact on international law. As in so many other areas of international law and international politics, the end of the Cold War was a watershed. The 1990s saw the revival of ad hoc international criminal tribunals, most notably the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda. The chapter then examines the International Criminal Court, which is, in many ways, the culmination of efforts to institutionalize international criminal justice.
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Christian Kaunert and Ori Wertman
This chapter outlines the role of international organizations in battling terrorism. Cross-border cooperation became vital when transnational and global terrorist threats increased. Additionally, the range of legal powers between different international organizations is substantial. The chapter then looks at the counterterrorism efforts, challenges, and success within the United Nations (UN), Association of Southeast Nations (ASEAN), European Union (EU), and the North-Atlantic Treaty Organisation (NATO). It then notes the modalities of counterterrorism cooperation amongst international organizations. The European Court of Justice has shown its willingness to prioritize European interests over global interests, the chapter argues. Meanwhile, NATO-EU counter-terrorism cooperation has mainly improved with respect to areas such as maritime security and cybersecurity.
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This chapter describes the broad challenges involved in establishing global order under conditions of anarchy through international law. The fact that there is no world government with powers akin to national governments means that maintaining cooperative relations between and among states is always a careful balancing act, given the problem of enforcing international law in the absence of a single, overarching sovereign authority. The chapter looks at law in the global sphere through the notion of rule of law. It then considers the emergence of international law in broad historical perspective. Moving on to international law in the twentieth century, and up to the present period, the chapter examines the nature of treaties, charters, and covenants which operate in multiple issue areas from postal services, trade, and aviation to communications, the environment, and human rights. It also focuses on two major international courts: the International Court of Justice (ICJ) and the International Criminal Court (ICC). Finally, the chapter reflects on how the principles and practices of a rules-based international order are faring in the contemporary period with a focus on Russia, China, and the US.
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