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The politics of the Court of Justice of the European Union

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Abstract

This chapter is based on the assumption that the Court of Justice of the European Union (CJEU) is better understood through a combination of law and politics. The Court, although constrained by law, is not isolated from politics but, on the contrary, plays a major role within a system of power relations. Since the development of the ‘integration through law’ approach in the 1980s, several authors have emphasised the political dimension of the Court. Drawing on the existing literature dealing with the CJEU, it is argued that politics can improve the understanding of the Court in three main directions. First, politics within the Court is considered and the issue of the Court being biased, in accordance with the judges’ preferences, is tackled. Then politics through the Court is studied, seeking to explain how the Court has gained power in the EU system of governance. Finally this idea of the Court as a political power is contrasted with the different attempts at circumventing the Court. However, in policy areas that are not subject to judicial control, the Court sometimes ‘strikes back’ by restrictively interpreting the limits of its jurisdiction, and ‘comes back’ when the Member States eventually decide to ‘judicialise’ the policy area. In the end, the most promising way to analyse the Court is to see it as an embedded actor, an influential political actor whose capacity to influence EU integration is dependent on both the constraints of law and the main features of the EU political system.
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Dates and versions

halshs-02933494 , version 1 (08-09-2020)

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Fabien Terpan, Sabine Saurugger. The politics of the Court of Justice of the European Union. Paul James Cardwell; Marie-Pierre Granger. Research handbook on the politics of EU law, Edward Elgar Publishing, pp.31-49, 2020, Research handbooks in law and politics, 978-1-78897-127-0. ⟨10.4337/9781788971287.00011⟩. ⟨halshs-02933494⟩
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