The Judiciary as Legislator? How the ECJ shapes Policy-Making in the EU

Wasserfallen, Fabio (2010). The Judiciary as Legislator? How the ECJ shapes Policy-Making in the EU. Journal of European public policy, 17(8), pp. 1128-1146. Taylor & Francis 10.1080/13501763.2010.513559

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The question of whether, and if so, how the European Court of Justice influences European integration has been a matter of long-standing academic dispute. Several more recent empirical studies have shown that the Court influences the integration path, but scholars have also documented that member states can successfully limit the practical relevance of activist Court decisions. Drawing on this literature, this paper argues that the Court eventually impacts integration in salient policy fields effectively when the legislator incorporates judicial considerations in the policy-making process. The theoretical section conceptualizes the leverage of the Court in the legislation process and the empirical section elucidates how the judiciary shaped legislation in the development of exchange students' social rights. Findings show that the Court can successfully promote distinct legislative outcomes.

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