CEUR Working Paper No 4, August 2012

Anders Kruse

Politics in the Court of Justice of the European Union? Governments before the Bench

Non-lawyers often find it difficult to understand the role and the decisions of the European Court of Justice. Often the Court is described as a policy-making body and its judgments are characterized as influenced by political considerations. Politics are at the core of proceedings before the Court of Justice. Private parties, governments, and EU institutions do their best to influence the decisions of the Court and thereby the future of EU policies and the EU legal order. But how far can Member States’ and EU politics have an effect on the Court’s judgments? And does political pressure itself make the Court a political body? Are there “policies” by the Court which can make the outcome of proceedings foreseeable? How do member states adjust to the jurisprudence of the Court? These are some of the themes discussed in this paper, drawing on the author's ten-year experience as a Government Agent before the Court of Justice and with examples from landmark cases such as Open Skies, Laval and others. But the paper starts with a discussion about the different roles of courts and political institutions, judges and politicians, and also the origins of the European Court of Justice and its role in the development of EU law. The author presents eight theses, the most important of which are the “policies” of the Court to support and promote the integration of Europe into “an ever closer union” and the role of the Court to protect individuals’ rights. But he also discusses the Court’s co-operation with national courts, the importance of precedents, the influence of Member States on the Court’s decisions and their acceptance of the Court’s judgments, and finally the control of the Court. He concludes that the Court is not, and should not be, a political institution and that its judgments are legal, not political, decisions, and that the European Union should not have been where it is today – with an open internal market for 480 million individuals with free movement for workers, services and capital and a right to settle wherever you want to in a Union of non-discrimination and fundamental rights – if the Court of Justice had not been so brave and creative in its judgments and so faithful to the aims and objectives of the Treaties of the Union.