The Agendas of the Court of Justice

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?