The weakness of strong policies and the strength of weak policies: Law,experimentalist governance,and supporting coalitions in European Union health care policy

The experience of European Union (EU) health care services policy shows the importance of supporting coalitions in any effort to effect policy change and the extent to which the presence or absence of such coalitions can qualify generalizations about policymaking. EU health care services law is substantively liberalizing and procedurally driven by the courts, with little legislative input. But the European Court of Justice (ECJ) has been much better at establishing an EU competency in law than in causing policy development in the EU or member states. Literature on courts helps to explain why: courts are most effective when they enjoy supporting coalitions and the ECJ does not have a significant supporting coalition for its liberalizing health care services policy. Based on interview data, this article argues that the hard law of health care services deregulation and the newer forms of health care governance, such as the Open Method of Coordination and the networks on rare diseases, depend on supporting coalitions in member states that are willing to litigate, lobby, budget, decide cases, and otherwise implement EU law and policy. Given the resistance that the Court has met in health care sectors, its overarching deregulatory approach might produce smaller effects than expected, and forms of experimentalist governance that are easy to deride might turn out to have supporting coalitions that make them unexpectedly effective.     

How the European Union constrains the state: Multilevel governance of taxation

This article challenges the common assumption that the European Union (EU) has little power over taxation. Based on a comprehensive analysis of EU tax legislation and European Court of Justice (ECJ) tax jurisprudence from 1958 to 2007, the article shows that the EU exerts considerable regulatory control over the Member States' taxing power and imposes tighter constraints on Member State taxes than the American federal government imposes on American state taxation. These findings contradict the standard account of the EU as a regulatory polity that specialises in apolitical issues of market creation and leaves control of highly politicised core functions of government (defence, taxation, social security, education, etc.) to the Member States; despite strong treaty safeguards, national tax autonomy is undermined by EU regulation.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

Europäisierungsdruck und Parteiendifferenz in den deutschen Bundesländern

Based on the 2008 Rüffert judgment by the European Court of Justice (ECJ) which dealt with wage-related compliance requirements laid out in several German federal state procurement laws (Tariftreueerfordernis) the convergence induced by Europeanization through law is being investigated. Contrary to the initial presumption of unilinear adjustment, three different responses are identifiable. Conservative-liberal governments abolish the respective regulations. Conservative governments which are subject to influence from associations representing small- and medium-sized business enterprises absorb the adjudication by a rapid adjustment consistent with the European requirements. Coalitions led by the Social Democratic Party tend to a policy expansion influenced by smaller coalition partners. They codify more rather than less social and environmental standards in policy amendments. The case study points out the persistence of political party differences in the face of Europeanization which is dependent on a sufficient degree of programmatic incongruence as well as on the plurality of European law.     

Enter at your own risk: free movement of EU citizens in practice

The citizenship jurisprudence of the European Court of Justice has raised hopes for a more social Europe and triggered fierce debates about ‘social tourism’. The article analyses how this case law is applied by EU member state administrations and argues that they are actively containing the Court’s influence. As a result, rather than reconciling the logics of ‘opening’ and ‘closure’, they are heading towards an uneasy coexistence between free movement and exclusive welfare states. The argument here is illustrated with empirical evidence from Austria and Germany. Although both countries have taken different approaches to EU migrants’ residency and social rights, they produce similar effects in practice: increasingly, EU migrants are being tolerated as residents with precarious status without access to minimum subsistence benefits. Ironically, attempts to restrict residency rights have resulted in a temporary extension of EU migrants’ access to welfare in some instances.     

The European Court of Justice as a Federator

The European Court of Justice is often seen as the motor ofEuropean legal integration because it "constitutionalized "the treaties establishing the European Communities (EC) throughits jurisprudence. In reality though, the Court's role has ratherbeen that of a promotor or provocateur because the member statesand the national courts have been, by and large, cooperativepartners in this process, and many of the political consequencesof the Court's rulings have been hidden in its legal language.The Court will likely be careful in the future about continuingits judicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentiallyopen to the Court's interpretation. In addition, the cooperativeattitude, by member states and the national courts, is no longerguaranteed.     

National Responses to European Court Jurisprudence

The power of the European Court of Justice (ECJ) to promote European integration through law has been broadly acknowledged, but the court’s domestic impact has received less attention and remains contested. In particular, the ambiguity of many ECJ judgments is said to have two opposed effects: According to one logic, legal ambiguity enables national policy-makers to contain the impact of court rulings, i.e. to ignore potentially broader policy implications. According to another logic, ambiguous case law provides opportunities for interested litigants to pressure national policy-makers into (anticipatory) adjustments. Which of these two logics prevails, it is argued, depends on the distribution of legal uncertainty costs between supporters and challengers of the regulatory status quo. The argument is supported by two in-depth case studies on the domestic responses to series of ECJ rulings concerning the free movement of capital (golden shares) and services (posted workers).     

The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice

The recognition that courts play a significant role in the process of European integration has focused attention on the interaction between national judges and the European Court of Justice. The prevailing theoretical model of this interaction holds that a variety of incentives impel national judges to co‐operate with the ECJ by providing it with frequent preliminary references. This article tests the ability of the model to account for the behaviour of national courts during the period 1972–94. In assessing the utility of the model two central claims are made. First, that the model as currently constructed is incapable of explaining the patterns of references originating from various member states, particularly the consistent lack of references from British courts. Second, that the level of British references, and patterns of judicial co‐operation in general, can be better understood by questioning the model's core assumption ‐ that national judges face powerful incentives to refer to the ECJ. As a first step in this direction, the article examines how the discretion to make or withhold references bestows on national judges the power to hasten or retard the pace of integration as well as to influence specific policy outcomes.     

Of Garbage Cans and Rulings: Judgments of the European Court of Justice in the EU Legislative Process

This article addresses the problem of how to explain the influence that rulings of the European Court of Justice (ECJ) have on the political decision-making of the EU. It will be argued that a framework developed by Kingdon which follows the garbage can model of Cohen, March and Olson is a good approach to conceptualising this influence. This framework explains political processes in terms of problems, solutions, participants and choice opportunities. In order to illustrate the argument, two famous rulings, Dassonville and Cassis de Dijon, are examined in detail. Both rulings dealt with the same subject but had different impacts on political decision-making. The difference in influence depended on the conditions of the political arena at the time the rulings were given and not on their legal contents.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

A New Phase of European Integration: Organised Capitalisms in Post-Ricardian Europe

In the past, economic integration in Europe was largely compatible with the preservation of different national varieties of capitalism. While product market integration intensified competition, member states could build on and foster their respective comparative advantage. Today, this no longer unequivocally holds true. This article contends that a new, ‘post-Ricardian’ phase of European integration has emerged in which the Commission's and the European Court of Justice's (ECJ's) attempts to promote economic integration systematically challenge the institutions of organised capitalism. It demonstrates this by discussing recent disputes over the Services Directive, the Takeover Directive, and company law. In the current phase of European integration, the Commission's and the ECJ's liberalisation attempts either transform the institutional foundations on which some of the member states' economic systems rely or they create political resistance to an extent that challenges the viability of the European project.     

The Legal Obligations of Albania in the Stabilization and Association Agreement Between Albania and EU

The purpose of this article is to discuss the legal effects of the preliminary agreement between Albania and EU （European Union） on the EU and on the Albanian national legal system. The topic is ＂The Legal Obligations of Albania in the SAA （Stabilization and Association Agreement） With EU＂, and the purpose is to address the issue of harmonization and application of the obligation in the most effective way regarding the EU legislation. The method used is systematic, comparative and teleological analysis of the European and national legal systems and inherent principles and reflection on the ways of integration and coordination between them. At first the sources and features of the EU legal system will be presented. Then the application of these principles in preliminary and pre-accession agreement and through them their influence over the EU and over the national legal system of the pre-accession states will be presented. The contribution will be to argue that the preliminary agreement between EU and Albania creates legal effects both on the EU and on the national legal system of the pre-accessions countries. Their lull and effective application will be the duty of national court and legislators.     

Towards an internal health market with the European court

This article examines the process through which a European healthcare dimension has been established and which has gradually extended the rights of European patients to cross-border healthcare. The integrative course has been charted by the legal activism of the European Court of Justice, whereas political voice has largely been absent. Judicial activism alone has applied the principle of the free movement of services to the policy field of healthcare, and thereby further energised the process. The political impact of this specific process of integration through law is, however, clear. The dynamic evolution of Community law has increasingly challenged the national instrument to retain health supply within own borders. Furthermore, the position of the European patient has been empowered by new individual rights, emanating from a supranational locus of rights against which the discretion exerted by national authorities can be challenged. Through the indeterminacy of European rules, open to continuous contestation and clarification, healthcare institutionalisation has proceeded and the European Union has extended into the core of the welfare state.     

The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

REPRESENTATION, REAPPORTIONMENT, AND THE SUPREME COURT

Abstract. The reapportionment of congressional and state legislative districts occasioned by decennial censuses has generated intense political and judicial conflict. This conflict has made clearer several obstacles to a deeper understanding of the nature of representation. It has also led to the fashioning of a new equal protection jurisprudence by the Supreme Court in an attempt to grapple with apportionment disputes. The Court has established clear standards for redistricting congressional and state legislative seats. Yet after two decades, the Court has still not produced judicially manageable standards to deal with the problems of partisan gerrymandering, affirmative gerrymandering,'political fairness', and the Court's impact on public policy. A review of the pertinent cases makes it possible to forecast the probable outcome of litigation involving these issues in the 1980 round of reapportionments.     

Globalization and legal change: The “Americanization” of European law?

Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path‐dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.     

Europeanisation with Many Unknowns: National Company Law Reforms after Centros

Negative integration through the expansive interpretation of European market freedoms is said to undermine domestic social regulation – by vertically imposing a strictly liberal interpretation of EU rules and by pushing EU member states into horizontal regulatory competition. This article analyses domestic policy responses to one particularly prominent instance of negative integration: the CJEU’s case law on the freedom of establishment since its first landmark ruling on Centros in 1999. The analysis shows that national company laws have only converged downwards in one particular subfield – minimum capital requirements – but they remain strikingly diverse across, and increasingly within, member states on most other issues, such as workers’ codetermination rights. Legal uncertainty about the Court’s case law, the mixed economic incentives it provides for firms and political disagreement about appropriate policy responses leave considerable space for differential Europeanisation. The crisis adds to these uncertainties and thus reinforces the trend towards differentiation rather than convergence.     

Managing Pluralism: The European Case

This article begins by clarifying the meanings attributed to pluralism; it then places the European case in a global context. The body of the article looks at the management of religious pluralism in Europe in terms of commonality and difference. At one and the same time, Europe is becoming increasingly secular and religiously plural—both trends are important if we are to understand the issues at stake. A close examination of four individual cases (Britain, France, the Netherlands and Greece) reveals, however, that it is important not to jump to conclusions regarding outcomes. Each country must be considered on its own terms. The final section introduces a rather different feature: the European Court of Human Rights, noting its place in the management of religious pluralism. A growing jurisprudence emanating from the Court is becoming increasingly influential.     

The judicialisation of EMU politics: Resistance to the EU's new economic governance mechanisms at the domestic level

Courts are increasingly asked to deal with fundamental political disagreements in liberal democracies. Because of its political salience and the extent of its consequences, the crisis of the Economic and Monetary Union (EMU) has exposed such fundamental disagreements between and within its member states, which numerous plaintiffs have brought before domestic courts and the Court of Justice of the European Union (CJEU). This article analyses this judicialisation of the EMU crisis. Using a database on lawsuits introduced in all 28 member states with regard to crisis measures and the new EMU governance mechanisms introduced since 2010, the authors study which actors use the courts and under which circumstances. Based on a combination of judicialisation and political economy approaches, the article develops a series of assumptions on actors’ motivations in order to understand the reasons for judicialisation in debtor and creditor countries.