The Court of Justice of the European Union (CJEU) has inched closer to being a truly supranational court than any other tribunal in history. Through key doctrinal innovations and a steady dialogue with national courts, it has successfully redefined the European Union (EU) and positioned itself as the guardian of its legal order. In spite of this politically potent position, resistance against the authority of the CJEU has remained relatively low compared to that observed against most other international courts. In this thesis, I study a series of mechanisms which render the CJEU resilient to different forms of resistance. I do so in through three central chapters that can be read as stand-alone articles. The first article observes the political nature of the cases arriving to the CJEU. It finds that the motivations of the actors before the CJEU affects the political nature of the cases before it already at the docket.
In particular, lower court judges are found to be hesitant to refer questions in highly politicised policy areas, thus creating a mechanism where the Court of Justice (the Court) is less likely to be called upon to rule in potentially sensitive issues. The article furthermore identifies signs of reluctance on the side of the Commission to bring politicised infringement procedures against member states before the Court, as well as contributing to empirical evidence of how the use of the infringement procedure was permanently changed by the Barroso Commission.
The second article investigates the responsiveness of the Court to the political context of the policy areas it rules upon, finding that the Court makes both procedural and substantial amendments to its decision-making in response to the political context. The Court responds to polarising policy areas by assigning cases to larger chambers. This projects legitimacy and bolsters the representativeness of the bench. In highly politicised policy areas, however, the Court publishes judgments with significantly shorter legal deliberations, which suggests a preference for playing a minimal role in topics where rulings are likely to face public contestation.
The third and final article, which is co-authored with Lucía López Zurita, studies the Court’s use of deference to national courts. We find that the Court is significantly more likely to defer parts of its decision to the referring court in judgments containing an expansive interpretation of EU law, which indicates that the Court uses deference strategically in order to get national courts onboard with decisions that might otherwise face resistance. By involving the national courts in the decision-making, even limitedly, the Court decreases the risk of resistance from national judges in the implementation of its decisions, securing its position as the court of last instance of the EU.
In sum, these chapters provide valuable insight into a series of resilience mechanisms which shelter the CJEU from being the object of serious resistance against its authority. On the one hand, this is of importance for those interested in the legitimate authority of international courts, as it unpacks dynamics that often render the Court outside the realm of public contestation. On the other hand, the thesis provides relevant insights for those who seek to design legitimate and successful international tribunals by highlighting how procedural rules and judicial independence can have unforeseen consequences for the resilience of these institutions.
Stein Arne Brekke is a political scientist specializing in judicial politics and European integration. His work uses quantitative methods to study the development of the European legal order and the role of the Court of Justice of the European Union. Before writing his PhD at the EUI, he was a research assistant at the PluriCourts Centre of Excellence at the University of Oslo, following the completion of his master's degree at the same university.