The Policy Impact of the Court of Justice of the European Union

doi:10.1017/9781009672580.021

17 - The Policy Impact of the Court of Justice of the European Union

from Part III - Themes

Published online by Cambridge University Press: 08 April 2026

Lucía López Zurita and

Dorte Sindbjerg Martinsen

Edited by

Daniel Naurin,

Urška Šadl and

Jan Zglinski

Show author details

Daniel Naurin: Affiliation:
University of Oslo
Urška Šadl: Affiliation:
European University Institute, Florence
Jan Zglinski: Affiliation:
London School of Economics and Political Science

Book contents

Summary

This chapter focuses on the policy impact of the judgments of the Court of Justice of the European Union. It defines policy impact as the ability of the Court to produce change in the political domain. The chapter analyses this impact across two different dimensions: horizontal and vertical. The horizontal dimension looks at the impact of the Court’s rulings on European Union policies, that is, to what extent the judgments of the Court impact the policy output of the European Union legislator. The vertical dimension focuses on the impact of the Court’s judgments on Member States’ legal orders. This is understood broadly as encompassing change as showing through in legislation, case law, policies, and administrative decisions. The chapter begins by developing a conceptual framework to delimitate what we understand as policy impact. It then systematically reviews the existing literature in this area to systematise existing knowledge and identify lacunas, shortcomings and challenges. Finally, it proposes, based on the strengths and weaknesses of this literature, a new way for thinking about how to empirically study the policy impact of the Court.

Keywords

CJEU policy impact EU legislator Member States

Information

Type: Chapter
Information: Empirical Legal Studies in EU Law , pp. 347 - 363
DOI: https://doi.org/10.1017/9781009672580.021 [Opens in a new window]
Publisher: Cambridge University Press
Print publication year: 2026
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

17 The Policy Impact of the Court of Justice of the European Union

17.1 Introduction

The Court of Justice of the European Union (the CJEU or the Court) has been central to the development of the European project, and its role in fostering European integration is widely acknowledged. From early on, the Court was presented as the motor of EU integration, capable of issuing key legal decisions with a high transformative power and then relying on its authoritative force to have them implemented by national courts.Footnote ¹ This role has, however, not gone unnoticed or uncriticised. The Court has frequently been accused of activism, favouring EU integration over Member State preferences and economic goals over social ones. Ultimately, the main complaint relates to the Court’s alleged capacity to set the direction of EU integration: legal integration impacts on political integration; domestic policies and political preferences are overturned by the Court and the supremacy of EU law.

Whereas judicial power is often said to mark EU integration, the actual impact of the CJEU and its ability to generate policy change remains disputed. What happens after a ruling is issued by the Court is, to an important extent, still a black box and occupies a space of stark disagreements in EU law and politics. In this chapter, we examine how the rulings of the CJEU might impact public policy at the EU (horizontal) and national (vertical) levels, that is, the extent to which the Court’s decisions shape the policy output of other processes.Footnote ² Consequently, our understanding of public policy is broad and includes any choice by political, executive, and judicial actors.Footnote ³ We further consider different decision types (from contained compliance to over-compliance), including instances in which the decision of the political actors is to not act (negative or non-decisions).Footnote ⁴

While there is no agreed framework for directly assessing the impact of the Court in the design, modification, and implementation of policy, most accounts focus on the extent to which the Court is capable of driving integration. These theories explore the extent to which the CJEU can push integration against the political preferences of other actors, or by taking those preferences into account. The divide between intergovernmentalism and neofunctionalism remains the central point of debate. Most of the discussion revolves around how other actors influence and react to the rulings of the Court, and how the Court takes this input into account. Thus, both theories provide a good entry point to think about the Court’s impact on policy. However, we will argue in this chapter that we need to move beyond this divide to properly address impact as an autonomous area of study.

Intergovernmentalist approaches highlight the influence of Member States’ preferences on the decisions taken by the CJEU.Footnote ⁵ Intergovernmental logic argues that politics drives integration, and that national policy preferences define judicial outcomes.Footnote ⁶ The Court is likely to make a decision in the sense of preserving national interests if several Member States have argued for such an outcome in their interventions.Footnote ⁷ The reason for this is that the Court has a limited impact when its rulings contradict the preferences of the Member States, who could override that decision with new or amended legislation or lack of implementation. Overturning or defying a ruling means refusing its general impact and isolating the design of public policy at both the EU and domestic level from the influence of the Court.

For neofunctionalists, the Court is relatively insulated from the influence of the Member StatesFootnote ⁸ and can take decisions independently of the preferences of Member States or, more generally, of other political constraints. The possibility of override is remote and does not significantly influence the Court. Moreover, the Treaties are ‘incomplete contracts’ and require specification in legislation and judicial decisions.Footnote ⁹ In terms of impact, this implies that the Court can define policy at the EU level and in the national legal orders, as the possibility of overturning its decisions is, at best, slim.

While these theories remain central in understanding the political impact of the Court, they are less specific about the concrete impact of its rulings in designing, modifying, and implementing policy at the EU and national levels. Yet, a lot of research in the last two decades has tried to investigate precisely that, building on different theories, methodologies, and disciplines, and frequently focusing on concrete case studies in specific policy areas. While these different literatures shed light on several aspects, they do not speak to each other and, consequently, provide only a patchy or fragmented knowledge of the impact of the Court on policy. It is here where empirical legal studies (ELS) can provide a research agenda aiming to achieve a global view of this phenomenon and bridge the distance between the different disciplines and methodologies. Our premise is clear: without empirical research, any estimation of the real impact of the Court’s case law is necessarily incomplete, and the knowledge thus remains to a large extent disconnected from the reality on the ground.

The chapter is structured as follows: Section 17.2 presents the state of the art. As the literature cuts across the fields of both law and political science, our aim is to connect the different approaches. We first summarise the existing research on how the CJEU’s decisions impact on EU policies (horizontal impact) and then examine how the decisions of the Court impact on three policy dimensions at the domestic level (vertical impact): (1) national legislation, (2) administrative practices and enforcement, and (3) national judicial decisions. Section 17.3 reflects on where research gaps remain and how ELS can contribute to filling them.

17.2 State of the Art in EU Law

This section maps out the literature on the policy impact of the CJEU’s decisions. In order to provide a complete picture of the impact of the decisions in policy,Footnote ¹⁰ when analysing the potential influence of the Court’s rulings we take into account the three components of public policy as defined by Hall:Footnote ¹¹ (a) the abstract or general policy goals pursued, (b) the concrete policy instruments to implement them, and (c) the operational settings or calibrations used when the instruments are deployed.Footnote ¹² Therefore, we look not only at the possible influence of the Court in setting a legislative agenda, but also on how it might affect the concrete formulation of the policy and/or its implementation at the street level.

This section does not study the policy process as such, but it does consider its different stages (agenda setting, policy formulation, decision-making, policy implementation, and policy evaluation).Footnote ¹³ It does so along two axes: horizontal and vertical. The former refers to the impact of the Court on policy at the EU level and thus focuses on how other EU actors are constrained, or not, by the case law of the Court. The latter explores the impact of the Court’s rulings at the domestic level. This distinction is useful to systematise the literature, but these two axes are not completely disconnected: for instance, Member States might be impacted by the judgments not only in the production of their national policies, but also as members of the Council.

17.2.1 Horizontal Impact

17.2.1.1 The Dynamic Court

The dynamic view perceives the CJEU as able to drive political and social change, and thus seriously limit the autonomy of the legislator. Yet, the extent of these limitations is difficult to grasp and the existing literature is only partially helpful: research is circumscribed to individual case studies or policy areas, making comparisons difficult. Furthermore, concepts are used differently by different authors (see below the example of codification), further muddling the picture.

The Court’s competences on constitutional review allow it to set the parameters of legislation and, to a certain extent, the agenda of integration. The idea is captured by Stone Sweet: the legislator passes an act, already taking into account possible challenges before the Court.Footnote ¹⁴ The act is eventually reviewed by the Court at the initiative of some actors. As it should, the Court’s ruling settles the matter, and in so doing specifies the parameters of any future amendment (or new piece of legislation), and removes policy options from the agenda.Footnote ¹⁵ In this way, the Court is also able to influence how an issue is perceived by potential decision-makers and stakeholders, further granting it discursive, agenda-setting power. For what is relevant here, this means that the Court can influence stakeholders’ views on the validity and viability of certain policy options and, importantly, the rulings of the Court ‘can durably shape the terms of a policy issue, creating a relatively systematic bias in favour of certain solutions or, on the contrary, invalidating others’.Footnote ¹⁶

The fragmented nature of politics enhances judicial power and translates to difficulties, or a downright impossibility, to overturn unwanted judicial responses.Footnote ¹⁷ Consequently, the dynamic court view expects codification to be the response to judicial lawmaking, that is, that legislation will incorporate the decisions of the Court, ‘as part of a self-sustaining dynamic’,Footnote ¹⁸ as it is easier to simply accept a policy proposal than it is to amend it, in this case via legislation.Footnote ¹⁹

Lawyers have remained particularly sceptical of the risks of override.Footnote ²⁰ The main argument against the existence of a threat of override is the high degree of constitutionalisation or, indeed, over-constitutionalisationFootnote ²¹ of the EU: any decision of the Court concerning the interpretation of the Treaty determines the meaning of primary law and sets the scenario for what the legislator may or may not do in future legislative proceedings. Because the Treaties are incomplete contracts, the Court has many opportunities in its rulings to establish a connection with primary law, particularly the market freedoms, so that its interpretations become constitutionalised.Footnote ²² A Treaty amendment is necessary to override such rulings.Footnote ²³ The difficulties to amend the Treaties are evident. Unsurprisingly then, some authors posit that there is not a single significant example of successful legislative override of a ruling of the Court.Footnote ²⁴ Davies goes as far as saying that ‘the Commission, Council and Parliament display collective legislative subservience to the Court’.Footnote ²⁵ In his view, the legislator in the EU acts as an ‘agent’ of the Court and has no capacity to force the law in a certain direction. At most, the legislator can try to nudge or persuade the Court.Footnote ²⁶

17.2.1.2 The Constrained Court

The opposite view posits that the CJEU is not an independent agent of change, capable of prescribing policy choices, but rather depends on the Member States.Footnote ²⁷ When in disagreement with a decision, Member States might decide to ignore, modify, or override the Court legislatively.

Recent empirical literature shows that the Court is indeed influenced by the threat of override: it takes into account the submissions of the Member States and exercises judicial restraint.Footnote ²⁸ Naurin and Larsson demonstrate that the Court is particularly receptive to the observations against a given outcome in areas of qualified majority voting, where the risk of override is higher.Footnote ²⁹ Yet, they find that only an exceptional unity among Member States can match the impact of the observations of the Commission and the Advocate General. The Court equally pays attention to the submissions of the Member States to decide on the degree of deference that it will allow national courts in a ruling.Footnote ³⁰

This literature suggests that the influence of the Court is conditioned, and its role in policy-making, overstated.Footnote ³¹ The influence of the Court depends on ‘how a larger set of forces might align to overcome Member State resistance’,Footnote ³² which makes it necessary to investigate the conditions under which a ruling becomes influential and may result in policy impact.Footnote ³³ These examples highlight the need to move beyond the antagonistic categories of override/codification to capture the nuances in the interactions between the legal and the political in EU policy-making.Footnote ³⁴ Recent research has added to the conceptual and empirical toolboxes to fill this lacuna.

First, Martinsen has developed a taxonomy of four possible responses from the EU legislator to the case law of the Court. The first two, codification and override, are derived from the scholarly debate and represent the two extreme sides of judicial influence. Codification implies that the output of the Court is incorporated to EU legislation on the Court’s terms. If the Court is overridden, the judgment has no impact. Martinsen adds two intermediate categories to possible responses from politics to the rulings of the Court: non-adoption and modification. Non-adoption occurs when political actors are unable or unwilling to respond collectively to the Court’s jurisprudence and no further legislative actions are therefore taken. In this situation, case law does not result in policy change.

Modification, on the other hand, constitutes an active political response to judicial integration and represents an inter-category between codification and override. With modification, the Court’s interpretation is not overruled but ruled in, meaning the impact of its case law is confined by the legislature. The concrete instruments of modification come from the adoption of specific articles in EU legislation, which constitute a partial refusal of a principle, doctrine, or specific interpretation coined by the Court, by for example inserting conditions or exemptions to such principles or doctrines. Modification thus extends Member States’ discretion and control and hereby reduces the policy impact of the case law on the ground. For instance, Article 24 of the Citizens’ Rights Directive (CRD)Footnote ³⁵ includes a modification of the ruling in Grzelczyk,Footnote ³⁶ which states that Member States are not obliged to confer entitlement to study grants or student loans to students from other Member States before acquiring permanent residence.Footnote ³⁷

Second, and similarly, Larsson distinguishes constitutional and political override. The former constitutes ‘constitutional revisions of or challenges to a court’s mandate and by extension its authority’,Footnote ³⁸ while political overrides are ‘any change to a court decision which affects the court’s desired outcome’.Footnote ³⁹ Larsson identifies three types of political override: politicians might nullify a decision of the Court, modify it or insulate an adjacent policy area from ‘the consequences of the decision, such that the same case would have been decided in the same way but subsequent cases would be decided differently’.Footnote ⁴⁰ Larsson finds no example of constitutional override in the case law of the Court, but identifies seven instances of the political one. For instance, he also states that the CRD nullified the rulings in Bidar and Grzelczyk by establishing an exception to the principle of non-discrimination for students.

17.2.2 Vertical Impact

17.2.2.1 Impact on National Legislation

Changes in national legislation, when they occur, are the most visible policy impact of the Court’s judgments. To what extent such impact actually takes place, however, largely depends on the conditions at the national level. In particular, Member States might be able to make their policies ‘CJEU-proof’ after a ruling by building alliances at the national level.Footnote ⁴¹ Moreover, the rulings of the Court might offer room for various policy responses at the domestic level.Footnote ⁴²

Where rulings of the Court impact national policies, scholars have identified two main responses to judicial decisions by national authorities: ‘contained compliance’ and ‘far-reaching adjustments’. Contained compliance refers to instances in which a Member State implements or complies strictly with the concrete judgment without any further or more general changes to the affected policy.Footnote ⁴³ In other words, the Member State limits changes in their domestic policies to the bare minimum required to comply with the individual Court judgment and keeps the rest of the policy untouched. Yet, it is also noted that mobilisation by organisational or institutional actors is capable of preventing such containment.Footnote ⁴⁴

Far-reaching adjustments are particularly likely to follow a judgment when individual litigants rely on it to push for policy changes at the national level.Footnote ⁴⁵ Yet, Member States might introduce policy adjustments in an attempt to preserve some regulatory control. This might be particularly relevant, as ‘contained compliance measures’ can trigger even more judicial challenges, which are more difficult to contain for governments as they do not control national courts.Footnote ⁴⁶ Put differently, governments might opt for ‘anticipatory obedience’,Footnote ⁴⁷ and ‘choose to define rather than to be defined’.Footnote ⁴⁸ On occasion, national governments might opt for a combination of both strategies to shield their national policy preferences. For instance, to keep its state monopoly over gambling, Finland first adopted a contained compliance strategy, only responding to the rulings of the Court in a limited manner. When this strategy seemed to no longer bear fruit, and facing an infringement procedure, Finland opted for a systematic revision of its legislation on gambling, which allowed it to show sufficient alignment with EU legislation while preserving its key policy preferences.Footnote ⁴⁹

Faced with the two options, contained compliance or far-reaching adjustments, some scholars argue that Member States will decide based on the distribution of costs connected to legal uncertainty. When the burden is higher for supporters of the status quo pre-judgment, governments will more likely opt for anticipatory obedience, to ‘avoid sustained conflicts’.Footnote ⁵⁰ In the opposite case, contained compliance is a plausible option, and Member States will resist any policy change. Finally, it should be considered that EU legal constraints are not always clear, so a lot depends on whether national actors are prepared to make use of judicial rulings and how national courts follow suit. For instance, Seikel shows that the highly concentrated Swedish construction sector was more eager to liberalise working conditions via EU law than the Danish building sector, which is composed of smaller firms.Footnote ⁵¹

Sometimes, though, governments adopt an over-compliance strategy even where legislation would allow them to limit the extent of the ruling. The reaction of the UK Government following the Court’s judgment in Bidar is a good example:Footnote ⁵² Faced with Bidar in 2005, the UK government adopted the judgment in a ‘copy-paste fashion’ and granted maintenance support to all students with three years’ residence.Footnote ⁵³ Interestingly, the CRD would have allowed the Government to maintain a stricter, five-year, ‘real link’ period, but it did not do so.Footnote ⁵⁴ Nor did it change that period after Förster in 2008,Footnote ⁵⁵ but waited until 2014 to contain the ruling.Footnote ⁵⁶ Similarly, following the CJEU’s preliminary ruling in Metock,Footnote ⁵⁷ which replied to a question posed by an Irish court, Italy decided to extend the new, more beneficial rules to its own citizens to avoid reverse discrimination.Footnote ⁵⁸ At times, over-compliance does not even require a judgment: the Dutch administration went for a far less restrictive interpretation of its migration legislation and issued a residence permit to an Afghan national wishing to reunite with her family in the Netherlands after a national court sent the reference in Imran. The Court did not even have to reply to the question, as the matter had already been solved.Footnote ⁵⁹

Yet, the Court’s rulings very frequently do not lead to any changes in national legislation. This can happen in two ways: The most obvious one is that a Member State, for whatever reason, decides not to comply with a judgment and consciously chooses not to introduce any changes in national legislation. Such lack of change might also follow from previous judgments of the Court, which in fact pre-empted one or more policy choices at the domestic level. We refer to this as ‘non-decisions’.

The extent to which Member States refuse or fail to implement rulings is hard to estimate, because non-compliance is difficult to detect and official reports are likely to misrepresent reality.Footnote ⁶⁰ Based on a review of studies on compliance with infringement rulings, Hofmann concludes that compliance is not a given.Footnote ⁶¹ For preliminary rulings, compliance is even harder to measure because the national court will still need to deliver a judgment on the application of the preliminary ruling of the case, as the Court can only provide an interpretation of EU law, but not apply it to the facts before the national judge.

Non-decisions refer to instances in which Member States are unable to take a given policy choice because of the constraints imposed by the CJEU case law.Footnote ⁶² For instance, Shank and Schmidt showed that the case law of the Court on the right of nationals to receive student support when pursuing studies abroad have led many Member States to refrain from introducing any portability in the grants.Footnote ⁶³ Similarly, writing on ‘benefit in kind-substitutes’, Martinsen concludes that the policy options of the Member States in the configuration and practical application of its social services of general interest are limited. As a result, when deciding on this matter Member States might opt for non-decisions in order to prevent, or at least mitigate, the impact of EU law. For example, Martinsen posits that domestic political authorities are likely to ‘think more than twice’ if a given long-term benefit should be designed as a benefit in cash, as the case law of the Court has established that those kinds of benefits can be exported abroad (for instance, D anish pensioners who have taken up residence in Spain).Footnote ⁶⁴

17.2.2.2 Impact on National Administrative Practices and Enforcement

The Court’s rulings may also impact national administrative and enforcement practices. Admittedly, this type of influence is at times difficult to disentangle from general reactions or legislative changes, but we argue that it is distinct and, to a large extent, independent from changes in legislation. This scenario needs to be taken into account to properly understand the policy impact at the national level of the Court’s case law. After all, administrative bodies bring life to EU law.Footnote ⁶⁵

Compared to the impact on national legislation and judicial decisions, the impact of the Court’s rulings on the day-to-day work of administrative bodies is less emphasised in the literature, where the focus is once again on national case studies.Footnote ⁶⁶ Yet, administrative bodies present peculiarities that determine the extent to which they can be influenced in their decisions and policy choices by rulings of the Court. Contrary to national legislators and judges, as a rule administrative bodies have no way to directly engage or interact with the Court. At most, they might defend their position before the Court as any other party to the case. And yet, in the absence of an EU administration, national administrative bodies implement EU law, including judicial rulings, almost entirely on their own.

The impact on administrative bodies is largely dependent on the general legislative framework in which they operate and the incentives of those bodies to opt for one practice or another regarding compliance. Yet, national legislation designed to limit the influence of the Court’s rulings might lead to unintended consequences at the implementation stage. Heindlmaier and Blauberger have shown that the restrictive legislation of access to benefits for non-nationals in Germany and Austria can be interpreted broadly by administrative authorities. Instances of ‘generosity by accident’, where migrants are granted a benefit they are in principle not entitled to, are not uncommon, in particular due to the lack of administrative knowledge regarding how to apply rulings in practice.Footnote ⁶⁷

National administrators may take the multi-level legal framework in which they operate into account, and may recur to EU law in their decisions, particularly when the national guidelines are unclear or superficial. Dörrenbächer conducted interviews with street-level bureaucrats in Foreign Registration Offices in Germany.Footnote ⁶⁸ Her results show an awareness of the CJEU case law (interviewees mentioned Chakroun and Dogan), but a preference for the implementation of national legislation and national case law.

Responsiveness to the Court’s judgments when they are not transposed into national legislation or guidelines varies across administrators. For example, in Sahin,Footnote ⁶⁹ the Court declared that application fees for Turkish citizens and their families had to be in line with the EU-Turkey Association Agreement. The German federal legislature considered for a while that the judgment did not alter the national situation, and a later decision of the Bundesverfassungsgericht declaring the judgment applicable was not immediately transposed. Faced with legal uncertainty, and in the absence of any instructions, some administrators turned to the judgment of the Court and lifted the fees. However, most felt that ‘CJEU rulings confront us sometimes with the situation that national law is no longer applicable, but for us legally binding are of course only the national laws’.Footnote ⁷⁰

This suggests that administrative units take national law and politics as reference points, which implies that changes arising exclusively from the Court’s case law, without any changes in legislation or policy, are relatively exceptional. In other words, national civil servants usually need specific instructions or a legislative shift to make the CJEU’s rulings impact on their administrative practices.Footnote ⁷¹ Indeed, recent research on the application of the Court’s rulings by street-level administration suggests that the lower administration follows signals from their domestic legislative and administrative superiors.Footnote ⁷² According to this research, lower administrators look for guidance from their political and managerial superiors and as a result tend to contain the Court’s rulings, so the impact of the rulings at the administrative level becomes limited.Footnote ⁷³ Martinsen et al. showed that street-level bureaucrats in Denmark, Austria , and Germany were receptive to the various types of signalling national authorities put into place. Strikingly, and notwithstanding the stark differences between the three legal systems, the domestic signalling led to fairly uniform restrictive practices across the countries.

Furthermore, the design of national administrations might further enhance or limit the impact of the Court’s rulings at the level of implementation. In their study on the impact of negative integration in the meat sector, Blauberger and Schmidt described the enormous impact of the Court’s rulings on posting workers on the meat industry, which is heavily reliant on this type of workers.Footnote ⁷⁴ They showed that the attempt by Germany to control the impact of the rulings at the legislative level was unsuccessful due to the complexities in Germany’s administration, which ‘allowed companies to remain one step ahead of administrations aiming to control working conditions’.Footnote ⁷⁵ On the opposite side, Member States have managed not to treat employees on zero-hours contracts as workers by restricting the notion of work. The Court has not been able to push back on these restricted definitions in all cases.Footnote ⁷⁶

17.2.2.3 Impact on National Judicial Decisions

National courts play a key role within the EU judicial system, not least because their interaction with the Court through the preliminary reference procedure in Article 267 TFEU serves as a bridge between EU citizens and EU law.Footnote ⁷⁷

National courts might use the interaction with the CJEU through the preliminary reference procedure in different ways. First, they might decide not to interact with the Court. Given that the preliminary reference procedure only works if national judges send references, not interacting is as easy as withholding references.Footnote ⁷⁸ Rejecting to refer can be due to personal preferences, external guidelines, or legal culture,Footnote ⁷⁹ or the willingness to shield national legislation and policies. This approach might save national policies for a while, or delay changes, but given that a preliminary ruling is to be implemented across all Member States, regardless of their direct involvement, the strategy might prove short-lived. Most national courts do not have an obligation to refer, which is imposed only on courts of last instance against which there is no possibility of appeal.Footnote ⁸⁰ The national courts have exclusive competence to decide on the need to refer, and parties cannot force national judges to refer, so a decision of the national court not to refer is unchallengeable.Footnote ⁸¹ It is difficult to calculate to what extent courts do not refer when EU law is at stake.Footnote ⁸² Hübner analysed over 1,000 national cases dealing with the interpretation of EU directives and found that national judges referred a question in 22 per cent of cases.Footnote ⁸³ The fact that national courts do not refer in four out of five cases involving the interpretation of a directive might indicate that EU law is routinely applied by national judges, but it equally raises a question regarding Eurolegalism – that is, the legislator’s reliance on detailed, transparent, judicially enforceable ‘rights’ backed with public enforcement litigation and enhanced opportunities for private litigation by individuals, interest groups, and firmsFootnote ⁸⁴ – as a mode of governance.Footnote ⁸⁵

A second option is non-compliance: national judges might refer a question to the Court but then avoid the implementation of the ruling. Hofmann identifies three ways in which non-compliance by national courts occurs: the national court might decide to resend the question, state that the interpretation provided by the Court does not apply to the facts of the case, or simply ignore the interpretation of the Court without expressing overt disagreement.Footnote ⁸⁶ After a review of the literature, Hofmann concludes that non-compliance among national courts is uneven, and oscillates between 4–10 per cent of cases in the studies he reviews.Footnote ⁸⁷

Third, national courts might use their interaction with the Court precisely to foster policy changes at the national level. In this sense, national courts might rely on the judgments of the Court to gain advantage in conflicts with other courts within the national legal order.Footnote ⁸⁸ For instance, German labour courts referred the question that led to Mangold as a way to shield their activist case law on anti-discrimination from a more restrictive reading by the Constitutional Court.Footnote ⁸⁹ Spanish judges flooded the Court with questions on consumer protection, in a (successful) attempt to bypass the outdated Spanish legislation on mortgage contracts.Footnote ⁹⁰ In this regard, national courts can send very specific questions to the Court,Footnote ⁹¹ and include ‘pre-emptive opinions’, in which they indicate their preference as to how the question should be answered.Footnote ⁹² Moreover, national courts might build on the Court’s rulings to go for activist or expansive interpretations than those requested by the Court, thus promoting broader policy changes at the national level.Footnote ⁹³ This strategy might prove ephemeral, though, if the national legislator can constrain national courts. For instance, German social courts’ generous reading of the right to social benefits of EU citizens was quickly countered by a legislative modification in Germany, which ironically was made possible by rulings of the Court granting Member States more autonomy to restrict social benefits to foreigners .Footnote ⁹⁴

17.3 Conclusion

In this chapter, we explored the policy impact of the judgments of the Court of Justice. We aimed at conceptualising this impact drawing on theories of integration and systematising the many examples in the literature. In so doing, we proposed to disentangle the study of policy impact from the more frequent, and broader, study of the political impact of the Court. We posit that a clearer, more exhaustive view can be gained from keeping the focus on the way in which the rulings of the CJEU shape public policy at the EU and national levels. To do so, we argued that a new methodological approach is needed, and the first step is to differentiate the impact of the Court’s rulings horizontally (on EU public policy) and vertically (on national public policy). We examined the literature on policy impact along these two lines.

Our review highlighted that research in this area is rich. Research on the horizontal level is more prominent, and a lot of the discussion has centred on conceptual divergences and a strong focus on constitutionalisation. This literature is also not definitive as per the extent of the impact of the Court’s rulings in the legislative output of the Union. While some authors see the impact of the Court considerably limited by the EU legislator, others go as far as to consider the EU legislator as ‘an agent of the Court’. This disagreement seems largely a disciplinary divide: political scientists see more limitations to the influence of the Court than legal scholars, who focus on the effects and consequences of the over-constitutionalisation of EU law and legal integration.

At the vertical level, most scholars look at individual case studies, focusing on concrete policy areas (most frequently social law) in a given country or set of countries and within a temporal framework. The literature review carried out in this chapter suggested that the impact of the Court on national policies varies greatly across Member States and policy fields. Indeed, even with similar conditions, the degree to which Member States are able to shape their own policies differs greatly, and any study of the influence in national policies needs to take the domestic conditions into account.Footnote ⁹⁵ As a result, we have only limited knowledge on how the Court’s judgments impact policy at the domestic level.

Research in the area might appear patchy, which in our view is due to the varied methodologies, disciplines, and theories on which it relies. Indeed, the studies reviewed are grounded on different traditions, from political science to sociology and economy or law, and are thus interested in different aspects and provide diverse findings. Even if much is gained from delving into this research, what is missing is a connection between the different strings, leaving knowledge in this domain, to a large extent, fragmented. Consequently, we lack a comprehensive understanding of the policy impact of the Court and our knowledge remains unavoidably limited.

We posit that for more exhaustive and generalisable knowledge we need a more comprehensive framework and better empirical strategies. This is where ELS can make a significant contribution, one which could expand our understanding of the Court. We propose to start from what seems the most obvious, peremptory need: a research agenda aimed at building bridges and connections between the different strands of the literature in order to provide a more comprehensive view of the policy impact of the Court. For instance, a new and comprehensive empirical strategy could overcome the seemingly strict division between the dynamic and constrained views on the Court, which would also provide more nuance on the extent and effect of negative integration.

ELS is ideally situated for connecting strands in the literature and developing new strategies for the study of the Court given its strong methodological grounds and its intrinsic interdisciplinary nature. In this sense, the chapter highlights many aspects in which more comprehensive research could greatly improve our understanding of the Court. For instance, we still know little on the implementation of judgments of the Court at the national level, particularly in fields outside of social policy. Similarly, little is known about the administrative application of Court’s judgments, even though ultimately national administrations are in charge of EU law on the ground. We believe that a growing awareness on the need of transparency will provide ample opportunities for gathering new data, hence allowing access to the material needed for developing a solid empirical strategy for the study of impact.

Notwithstanding the promise of ELS for the study of policy impact of the Court, this chapter has not concealed the myriad difficulties in measuring that impact. These difficulties are logical for several reasons: First, compared to legislation, judgments have a certain degree of ambiguity, which necessarily affects their influence.Footnote ⁹⁶ Second, and perhaps more importantly, measuring the impact or influence of the Court’s judgments is complex, insofar as it involves a multiplicity of factors, not always apparent, and access to data, which is oftentimes not public. Thus, even if ELS open new and promising ways for studying impact by the Court, any empirical legal scholar should take the difficulties and limitations of this approach into consideration to be successful. Some of these difficulties are intrinsic to the project and common to any interdisciplinary research: how to define policy impact? How to measure it? Other problems are of a more pragmatic nature. Perhaps most pressingly, the poor availability of data hampers large quantitative studies data: decisions of national courts are not always published and administrative decisions are rarely public. Establishing what is realistic and implementable will simultaneously show the potential and the limitations of ELS. However, we have recent examples of how limitations in data access might be overcome by interdisciplinary approaches and coordinated work between different disciplines.Footnote ⁹⁷ We suggest this as a new inroad for improving the study of the policy impact of the Cour t.

Footnotes

¹ Federico Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 Common Market Law Review 595; J.H.H. Weiler, ‘A Quiet Revolution: The European Court of Justice and Its Interlocutors’ (1994) 26 Comparative Political Studies 510.10.1177/0010414094026004006

² Dorte Sindbjerg Martinsen, An Ever More Powerful Court? The Political Constraints of Legal Integration in the European Union (1st edn. Oxford University Press 2015).10.1093/acprof:oso/9780198753391.001.0001

³ Thomas Dye, Top Down Policymaking (CQ 2001).10.4135/9781483330150

⁴ Michael Howlett and Benjamin Cashore, ‘Public Policy: Definitions and Approaches’ in Giliberto Capano and Michael Howlett (eds), A Modern Guide to Public Policy (Edward Elgar 2020) 11.

⁵ Geoffrey Garrett, ‘The Politics of Legal Integration in the European Union’ (1995) 49 International Organization 17110.1017/S0020818300001612; Clifford J. Carrubba and Lacey Murrah, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’ (2005) 59 International Organization 399.10.1017/S0020818305050137

⁶ Olof Larsson and Daniel Naurin, ‘Judicial Independence and Political Uncertainty: How the Risk of Override Affects the Court of Justice of the EU’ (2016) 70 International Organization 37710.1017/S0020818316000047; See also Per Cramér and others, See You in Luxembourg?: EU Governments’ Observations under the Preliminary Reference Procedures (2016), https://www.sieps.se/en/publications/2016/see-you-in-luxembourg-eu-governments-observations-under-the-preliminary-reference-procedure-20165/Sieps_2016_5.pdf?.

⁷ See Clifford J. Carrubba, Matthew Gabel, and Charles Hankla, ‘Judicial Behavior under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 435.10.1017/S0003055408080350

⁸ Daniel Kelemen, ‘The Political Foundations of Judicial Independence in the European Union’ (2012) 19 Journal of European Public Policy 43.10.1080/13501763.2012.632127

⁹ Alec Stone Sweet, The Judicial Construction of Europe (Oxford University Press 2004).10.1093/019927553X.001.0001

¹⁰ Howlett and Cashore (Footnote n 4) 13.

¹¹ Peter A. Hall, ‘Policy Paradigms, Social Learning, and the State: The Case of Economic Policymaking in Britain’ (1993) 25 Comparative Politics 275.10.2307/422246

¹² Howlett and Cashore (Footnote n 4) 13.

¹³ Peter Hupe and Michael Hill, ‘The Three Action Levels of Governance: Reframing the Policy Process beyond the Stages Model’ in B. Guy Peters and Jon Pierre (eds.), Handbook of public policy (Sage 2006); See also the analysis in Howlett and Cashore (Footnote n 4).

¹⁴ Alec Stone Sweet, Constructing a Supranational Constitution (Oxford University Press 2004).10.1093/019927553X.003.0002

¹⁵ Fritz W. Scharpf, ‘The Asymmetry of European Integration, or Why the EU Cannot Be a “Social Market Economy”’ (2010) 8 Socio-Economic Review 211.10.1093/ser/mwp031

¹⁶ Alexis Lubow and Susanne K. Schmidt, ‘A Hidden Champion? The European Court of Justice as an Agenda-Setter in the Case of Posted Workers’ (2021) 99 Public Administration 32110.1111/padm.12643.

¹⁷ Rachel A. Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge University Press 2007)10.1017/CBO9780511491924; Daniel Kelemen, Eurolegalism: The Transformation of Law and Regulation in the European Union (Harvard University Press 2011).10.4159/harvard.9780674061057

¹⁸ Dorte Sindbjerg Martinsen, ‘Judicial Influence on Policy Outputs? The Political Constraints of Legal Integration in the European Union’ (2015) 48 Comparative Political Studies 1622.10.1177/0010414015592591

¹⁹ Henning Deters and Gerda Falkner, ‘Remapping the European Agenda-Setting Landscape’ (2021) 99 Public Administration 290.10.1111/padm.12716

²⁰ Gareth Davies, ‘Legislative Control of the European Court of Justice’ (2014) 51 Common Market Law Review 158210.54648/COLA2014133.

²¹ Fritz W. Scharpf, ‘The Joint-Decision Trap Revisited’ (2006) 44 Journal of Common Market Studies 84510.1111/j.1468-5965.2006.00665.x; Scharpf (Footnote n 15); Sacha Garben, ‘Competence Creep Revisited’ (2019) 57 Journal of Common Market Studies 20510.1111/jcms.12643; Susanne K. Schmidt, The European Court of Justice and the Policy Process: The Shadow of Case Law (1st edn. Oxford University Press 2018)10.1093/oso/9780198717775.001.0001.

²² Alec Stone Sweet and Thomas Brunell, ‘The European Court of Justice, State Noncompliance, and the Politics of Override’ (2012) 106 American Political Science Review 20410.1017/S0003055412000019; Davies, ‘Legislative Control of the European Court of Justice’ (Footnote n 20); Scharpf (Footnote n 15). Stone Sweet and Brunnel, Reference Stone Sweet and Brunell2012.

²³ Gareth Davies, ‘The European Union Legislature as an Agent of the European Court of Justice’ (2016) 54 Journal of Common Market Studies 84610.1111/jcms.12353; Schmidt, The European Court of Justice and the Policy Process (Footnote n 21).

²⁴ An example could be the Protocol concerning Article 119 of the Treaty Establishing the European Communities (Barber Protocol).

²⁵ Davies, ‘The European Union Legislature as an Agent of the European Court of Justice’ (Footnote n 23) 847.

²⁶ Other legal scholars oppose this reading. Some recent examples in Martijn van den Brink, Mark Dawson, and Jan Zglinski, ‘Revisiting the Asymmetry Thesis: Negative and Positive Integration in the EU’ (2023) 32(1) Journal of European Public Policy 209–34; Eadaoin Ní Chaoimh, ‘Introducing the Legislative Priority Rule: A Constitutional Compass for the Court’ (2023) 42 Yearbook of European Law 84.10.1093/yel/yead014

²⁷ Garrett (Footnote n 5).

²⁸ Olof Larsson and Daniel Naurin, ‘Judicial Independence and Political Uncertainty: How the Risk of Override Affects the Court of Justice of the EU’ (2016) 70 International Organization 37710.1017/S0020818316000047; Cramér and others (Footnote n 6); Philipp Schroeder, ‘Seizing Opportunities: The Determinants of the CJEU’s Deference to National Courts’ (2023) Online preview Journal of European Public Policy 1; Lucía López Zurita and Stein Arne Brekke, ‘A Spoonful of Sugar: Deference at the Court of Justice’ (2023) 31(9) Journal of Common Market Studies 2986.

²⁹ Larsson and Naurin (Footnote n 28).

³⁰ Schroeder (Footnote n 28).

³¹ Martinsen, ‘Judicial Influence on Policy Outputs?’ (Footnote n 18) 1630. See further Morten Rasmussen, ‘Establishing a Constitutional Practice: The Role of the European Law Associations’ in Wolfram Kaiser and Jan-Henrik Meyer (eds.), Societal Actors in European Integration (Palgrave Macmillan 2013) 17310.1057/9781137017659_9; Daniel Wincott, ‘The Role of Law or the Rule of the Court of Justice? An “Institutional” Account of Judicial Politics in the European Community’ (1995) 2 Journal of European Public Policy 58310.1080/13501769508407008.

³² Martinsen, ‘Judicial Influence on Policy Outputs?’ (Footnote n 18) 1630.

³³ Karen Alter, The European Court’s Political Power: Selected Essays (Oxford University Press 2009)10.1093/oso/9780199558353.001.0001, Tobias Nowak, ‘Of Garbage Cans and Rulings: Judgments of the European Court of Justice in the EU Legislative Process’ (2010) 33 West European Politics 75310.1080/01402381003794605; Cf. Stephen Weatherill, ‘The Principle of Mutual Recognition: It Doesn’t Work Because It Doesn’t Exist’ (2018) 43 European Law Review 224.

³⁴ Martinsen, An Ever More Powerful Court? (Footnote n 2).

³⁵ Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77.

³⁶ Case C-184/99 Grzelczyk v. Centre public d’aide sociale de Bruxelles ECLI:EU:C:2001:458; [2002] 1 CMLR 35.

³⁷ Fabio Wasserfallen, ‘The Judiciary as Legislator? How the European Court of Justice Shapes Policy-Making in the European Union’ (2010) 17 Journal of European Public Policy 112810.1080/13501763.2010.513559.

³⁸ Olof Larsson, ‘Political and Constitutional Overrides: The Case of the Court of Justice of European Union’ (2020) 128(12) Journal of European Public Policy 1932.

³⁹ Larsson (Footnote n 38) 4.

⁴⁰ Larsson (Footnote n 38) 7.

⁴¹ Michael Blauberger, ‘With Luxembourg in Mind … the Remaking of National Policies in the Face of ECJ Jurisprudence’ (2012) 19 Journal of European Public Policy 10910.1080/13501763.2012.632150.

⁴² Blauberger (Footnote n 41); Michael Blauberger and Susanne K. Schmidt, ‘Negative Integration Is What States Make of It? Tackling Labour Exploitation in the German Meat Sector’ (2003) 61(4) Journal of Common Market Studies 917.10.1111/jcms.13431

⁴³ Lisa Conant, ‘The European Court of Justice and the Policy Process: The Shadow of Case Law’ (2018) 96 Public Administration 628.10.1111/padm.12536

⁴⁴ Conant (Footnote n 43).

⁴⁵ Susanne K. Schmidt, ‘Beyond Compliance: The Europeanization of Member States through Negative Integration and Legal Uncertainty’ (2008) 10 Journal of Comparative Policy Analysis: Research and Practice 299.

⁴⁶ Fritz W. Scharpf, ‘Legitimacy Intermediation in the Multilevel European Polity and Its Collapse in the Euro Crisis’ (2012) MPIfG Discussion Paper 12/6.

⁴⁷ Michael Blauberger ‘National Responses to European Court Jurisprudence’ (2014) 37(3) West European Politics 457–74.10.1080/01402382.2013.830464

⁴⁸ Martinsen, An Ever More Powerful Court? (Footnote n 2).

⁴⁹ Jani Selin, ‘National Gambling Policies and the Containment of the EU’s Politico-Legal Influence’ (2019) 36 Nordic Studies on Alcohol and Drugs 77.10.1177/1455072519835703

⁵⁰ Michael Blauberger, ‘National Responses to European Court Jurisprudence’ (2014) 37 West European Politics 457.10.1080/01402382.2013.830464

⁵¹ Daniel Seikel, ‘Class Struggle in the Shadow of Luxembourg: The Domestic Impact of the European Court of Justice’s Case Law on the Regulation of Working Conditions’ (2015) 22 Journal of European Public Policy 1166.

⁵² Case C-209/03 Bidar ECLI:EU:C:2005:169.

⁵³ Angelika W. Schenk, ‘The Role of Politicisation in the Implementation of EU Free Movement and Cross-Border Welfare Rights’ (2020) 21 European Politics and Society 570.10.1080/23745118.2019.1693858

⁵⁴ Article 24 of the Citizens’ Rights Directive, Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L 158/77.

⁵⁵ Case C-158/07 Förster v. Hoofddirectie van de Informatie Beheer Groep ECLI:EU:C:2008:630 [2009] 2 CMLR 17.

⁵⁶ The author explains this with politicisation: it was not until the matter became very politicised, and the disagreements amplified by the media, that the government launched an inquiry to change the real link to five years, see Schenk (Footnote n 53).

⁵⁷ Case C-127/08 Metock and Others v. Minister for Justice, Equality and Law Reform ECLI:EU:C:2008:449 [2009] 2 CMLR 17.

⁵⁸ Susanne K. Schmidt, ‘Judicial Europeanisation: The Case of Zambrano in Ireland’ (2014) 37 West European Politics 769.10.1080/01402382.2014.919775

⁵⁹ Order of the Court in Case C-155/11 PPU Imran v. Secretary of State for the Home Department ECLI:EU:C:2011:387 [2012] 1 CMLR 24.

⁶⁰ Andreas Hofmann, ‘Resistance against the Court of Justice of the European Union’ (2018) 14 International Journal of Law in Context 258.10.1017/S174455231800006X

⁶¹ Hofmann argues that second round infringements are an accurate predictor of the level of compliance. These are infringements relating to a previous decision of the Court. The Court initiated second round infringement proceedings in 461 cases between 2003 and 2016, which according to Hofmann indicates delayed or non-compliance in around 50 per cent of all rulings issued by the Court in that period.

⁶² Peter Bachrach and Morton S. Baratz, ‘Decisions and Nondecisions: An Analytical Framework’ (1963) 57 American Political Science Review 632.10.2307/1952568

⁶³ Angelika Schenk and Susanne K. Schmidt, ‘Failing on the Social Dimension: Judicial Law-Making and Student Mobility in the EU’ (2018) 25 Journal of European Public Policy 1522.10.1080/13501763.2018.1488884

⁶⁴ Dorte Sindbjerg Martinsen, ‘Welfare States and Social Europe’ in Ulla Neergaard and others (eds.), Social Services of General Interest in the EU (TMC Asser 2013).

⁶⁵ Rike U. Krämer-Hoppe, ‘The Relationship between “Luxembourg” and European and National Administrative Bodies’ (2018) 40 Journal of European Integration 803.10.1080/07036337.2018.1500567

⁶⁶ Krämer-Hoppe (Footnote n 65).

⁶⁷ Anita Heindlmaier and Michael Blauberger, ‘Enter at Your Own Risk: Free Movement of EU Citizens in Practice’ (2017) 40 West European Politics 1198.

⁶⁸ Nora Dörrenbächer, ‘Europe at the Frontline: Analysing Street-Level Motivations for the Use of European Union Migration Law’ (2017) 24(9) Journal of European Public Policy 1328.

⁶⁹ Case C-242/06 Sahin ECLI:EU:C:2009:554.

⁷⁰ Dörrenbächer (Footnote n 68) 1339.

⁷¹ Wasserfallen (Footnote n 37).

⁷² Dorte Sindbjerg Martinsen and others, ‘Implementing European Case Law at the Bureaucratic Frontline: How Domestic Signalling Influences the Outcomes of EU Law’ (2019) 97 Public Administration 814.10.1111/padm.12603

⁷³ Anita Heindlmaier, ‘“Social Citizenship” at the Street Level? EU Member State Administrations Setting a Firewall’ (2020) 58 Journal of Common Market Studies 1252.10.1111/jcms.13028

⁷⁴ Michael Blauberger and Susanne K. Schmidt, ‘Negative Integration Is What States Make of It? Tackling Labour Exploitation in the German Meat Sector’ (2023) 61(4) Journal of Common Market Studies 917.

⁷⁵ Blauberger and Schmidt (Footnote n 42) 6.

⁷⁶ Charlotte O’Brien, ‘Civis Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 Common Market Law Review 937.10.54648/COLA2016089

⁷⁷ Bruno De Witte, ‘The Preliminary Ruling Dialogue: Three Types of Questions Posed by National Courts’ in Bruno De Witte and others (eds.), National Courts and EU Law: New Issues, Theories and Methods (Edward Elgar 2016) 1510.4337/9781783479900; Pierre Pescatore, ‘Van Gend En Loos, 3 February 1963: A View from Within’ in Miguel Poiares Maduro and Loïc Azoulai (eds.), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) 15.

⁷⁸ Jonathan Golub, ‘The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the Eurpean Court of Justice’ (1996) 19 West European Politics 360.10.1080/01402389608425138

⁷⁹ Marlene Wind, Dorte Sindbjerg Martinsen, and Gabriel Pons Rotger, ‘The Uneven Legal Push for Europe: Questioning Variation When National Courts Go to Europe’ (2009) 10 European Union Politics 6310.1177/1465116508099761; Monika Glavina, ‘National Judges as European Union Judges? Evidence from Slovenia and Croatia’ (KU Leuven 2020), https://lirias.kuleuven.be/retrieve/559659.

⁸⁰ Article 267(3) TFEU.

⁸¹ Morten Broberg and Niels Fenger, The Procedure before the Court of Justice (Oxford University Press 2021)10.1093/oso/9780198843580.003.0010. The exception are courts bound to refer according to Article 267(3), especially with the Court’s current more aggressive stance on the obligation to refer. See cases C-561/19 Consorzio Italian Management and Others v. Comune di Venezia ECLI:EU:C:2021:799 [2021] 3 CMLR 47 and C-416/17, Commission v. France [2018] ECLI:EU:C:2018:811 [2019] 1 CMLR 31.

⁸² Hofmann (Footnote n 60) 265.

⁸³ Denise Carolin Hübner, ‘The Decentralized Enforcement of European Law: National Court Decisions on EU Directives with and without Preliminary Reference Submissions’ (2017) 25(12) Journal of European Public Policy 181710.1080/13501763.2017.1376701.

⁸⁴ Kelemen (Footnote n 8).

⁸⁵ Hübner (Footnote n 83) 14–15.

⁸⁶ Hofmann (Footnote n 60) 264.

⁸⁷ Hofmann (Footnote n 60) 266–67.

⁸⁸ Alec Stone Sweet and Kathleen Stranz, ‘Rights Adjudication and Constitutional Pluralism in Germany and Europe’ (2012) 19 Journal of European Public Policy 9210.1080/13501763.2012.632148.

⁸⁹ Stone Sweet and Stranz (Footnote n 88).

⁹⁰ Juan A. Mayoral and Aida Torres Pérez, ‘On Judicial Mobilization: Entrepreneuring for Policy Change at Times of Crisis’ (2018) 40 Journal of European Integration 719.10.1080/07036337.2018.1502285

⁹¹ Stacy A. Nyikos, ‘The Preliminary Reference Process: National Court Implementation, Changing Opportunity Structures and Litigant Desistment’ (2003) 4 European Union Politics 397.10.1177/146511650344002

⁹² Anna Wallerman Ghavanini, ‘Mostly Harmless: The Referring Court in the Preliminary Reference Procedure’ (2022) 47 European Law Review 310.

⁹³ Gareth Davies, ‘Activism Relocated: The Self-Restraint of the European Court of Justice in Its National Context’ (2012) 19 Journal of European Public Policy 76.10.1080/13501763.2012.632146

⁹⁴ Michael Blauberger and Susanne K. Schmidt, ‘Free Movement, the Welfare State, and the European Union’s Over-Constitutionalization: Administrating Contradictions’ (2017) 95 Public Administration 437.10.1111/padm.12313

⁹⁵ Schmidt, ‘Beyond Compliance’ (Footnote n 45).

⁹⁶ Blauberger (Footnote n 41).

⁹⁷ See, for instance, the work in the IUROPA Project: https://www.iuropa.pol.gu.se.

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