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The Agendas of the Court of Justice

The Agendas of the Court of Justice. By Damian Chalmers. Conditions of Judicial Politics. Stable, insulated field of litigation Stable judicial role where not switching between different identities (mediator, securing State capacity, property rights, liberal conscience)

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The Agendas of the Court of Justice

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  1. The Agendas of the Court of Justice By Damian Chalmers

  2. Conditions of Judicial Politics • Stable, insulated field of litigation • Stable judicial role where not switching between different identities (mediator, securing State capacity, property rights, liberal conscience) • Particular relationship between actor preferences and legal norms and judicial opportunity structures

  3. Relationship between legal structures and actor preferences I • Judges not policy entrepreneurs • Instability of field vs strategies to limit that instability • Legal stabilisation of expectations • Dialectic politics whose rules set by initial legislative choice. Limited judicial discretion and limited entitlements vs generalised discretion/entitlements

  4. Relationship between legal structures and actor preferences II • Formal and epistemic autonomy of law • Institutionalised monopoly of correctness. Specialised community with own episteme and possibility for rent-seeking • Law of authoritative settlement • Counter-majoritarian politics where courts expect to deviate from preferences where salient issues of individual autonomy/minority rights/post-material values

  5. Stable Litigation Field • 6140 Regulations, 1820 Directives (31/12/2009), 6620 judgments • 7-ish fields six or more cases account for 159/259 references (approx. tax, econ freed., envir, afsj. Agricult, social) • Stable with except of afsj over last 10 years

  6. Profile of Docket

  7. The Court of Justice: Stable Insulated Fields? • Public/private disputes equal proportions • Legislative dispersal between legisl instrts. • No economic/social actor dominate use of EU law as sword. • Suggest multiple fields that relatively stable

  8. Spectrum of Litigants

  9. Public/Private Disputes

  10. Domestic/Transnational

  11. Primary/Secondary Law

  12. EU Secondary Legislation

  13. EU Law as Sword

  14. EU Law as Shield

  15. Approximation of Laws • MNEs account for 38% of docket. Domestic firms 23% docket • Very few salient judgments with ECJ mediator • MNE/State jockeying where seek to advance ex post preferences of transnational rules of game • Very limited as inefficient system of mediation

  16. Approximation of Laws

  17. State Enhance Fiscal and Regulatory Capacity • State dominant litigator in taxation (46%) and environment cases(36%) • Sword/shield particularly problematic • Enhance State capacity in these fields (not direct taxation cases)

  18. Environment/Consumer

  19. Protector of Property Rights from Excessive State Intervention • Domestic firms particularly high in FMG (30%), taxation (25%), FMS (25%) cases • High proportion of these less than 1,000 employees • Much more fragmented litigant base with many cases no transnational element • Strong lines of case law and domination by specialised communities • Opportunity structures only make sense where State imposing excessive cost

  20. FMG

  21. Type of parties in freedom to provide services cases 17% 25% 17% 0% 41% Firms Multinationals State Individuals Associations/NGOs Free Movement of Services

  22. Agriculture Cases

  23. Court as Moral Conscience of EU • Individuals/Assocs highest in AFSJ (50%), Social Policy (63%) and Envir (43%) • Decisions where highest value salience • Most controversial decisions • Strong lines of case law and domination by specialised communities

  24. AFSJ

  25. Social Policy cases

  26. Question of Institutional Design • Court most contentious in role as protection of property rights/EU moral conscience • Role in other two fields unclear • Protector of property rights very imperfect jurisdiction • Diffuse support for position as moral conscience?

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