The European Court of Justice, an able and unwilling lawmaker: evidence from 920 free movement of persons judgments

Abstract

Does the European Court of Justice respond to political divisions by authoritatively settling or cautiously avoiding salient legal matters? The existing literature suggests the former but this chapter, surveying 920 free movement of persons judgments, suggests the latter: the Court issues fewer audacious rulings in times of uneven political support while also disproportionately increasing chamber size. The findings cast the Court as a selectively audacious lawmaker, primarily concerned with procedural legitimacy. They nuance the established narrative of the Court as the motor of integration able and willing to make law in times of political stalemate and legislative paralysis. More broadly, the chapter demonstrates that courts do not make policy in lieu of legislators when and because they can but avoid policymaking if and until they can.

Reference

• Sadl, Urska, Silje Synnøve Lyder Hermansen (2024) “The European Court of Justice, an able and unwilling lawmaker: evidence from 920 free movement of persons judgments” Revisiting Judicial Politics in the European Union, Ed. Mark Dawson, Elise Muir and Bruno deWitte. Edward Elgar Publishing. Chapter 14. pp. 282-304.