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By Marie De Somer, Head of the Migration & Diversity Programme at the European Policy Centre (EPC) and Guest Professor at the KU Leuven Centre for Public Law.

Dr. Marie De Somer is author of the book ‘Precedents and Judicial Politics in EU Immigration Law’. This blogpost elaborates on one of the arguments developed in the book.

The Court’s Fluctuating Case Law

Much has been written about the role of the Court of Justice of the European Union (CJEU) in processes of European integration. It is clear that the progressive expansion of EU competences into ever more areas of law owes a lot to Court-driven dynamics. What is less clear, however, is the extent to which these dynamics took place at the expense of Member States’ intentions.

This question has long occupied both legal and political science scholarship. Academic debates on whether or not the Court acts independently from Member States’ political preferences can be traced back as far as the 1980s for legal scholarship (see e.g., famously, Weiler’s or Rasmussen’s early work) and the early 1990s for political science (see Garrett and Burley & Mattli). In spite of this long academic lineage, neither of the two disciplines has thus far produced much consensual understanding on the topic (see the book’s second chapter for further detail).

Instead, recent legal scholarship continues to discuss questions on the Court’s legitimacy – or whether or not it is an ‘activist’ institution – in light of observations of case law outcomes that reverberate beyond the strictly legal sphere (see Adams et al. or De Witte et al.). Similarly, political science on the Court remains occupied with, and divided on, the degree of interpretative leeway the EU judiciary enjoys relative to Member States’ preferences (see for a recent contribution e.g., Blauberger et al.)

The salience of these debates has increased significantly in recent years. Writing against the background of the Brexit vote and a generally increasing politicisation of European governance, the topicality of understanding the Court’s precise role and autonomy could hardly be greater.

Debates around the Court’s role in the area of migration are particularly relevant in that respect, given the issue area’s strong political sensitivity. They were recently the subject of discussion at the Odysseus annual conference. Iris Goldner-Lang, providing input, described the Court’s recent immigration rulings as marked by ‘judicial passivism’; or, by consciously self-restraining behaviour from the Court in an effort to “accommodate itself to political reality and the Member States’ intentions”. However, as she also highlighted, other and similarly recent rulings (Mengesteab or Slovakia and Hungary v Council) pointed in a different direction; i.e., one in which the Court did not shy away from reaching politically sensitive conclusions. What we were left with, Daniel Thym remarked in follow-up, was a ‘mixed outcome’.

Such observations of ‘mixed outcomes’ are not new. In fact, the ‘mixed’, non-linear nature of the Court’s case law, particularly when observed in the short-run, is one of the principal reasons that accounts for the sustained nature of academic debates on the Court’s role (other reasons relate to a failure to integrate qualitative and quantitative methodological approaches and a shortage of interdisciplinary engagements combining insights from political science and law; see chapter two). Where a certain ruling may appear to favour a certain policy outcome over another, a next judgment may redress the previous policy implications, typically leading to the matter being picked up again in yet another case; and so on. Accordingly, scholars can formulate – and have formulated – opposing answers to questions on whether or not the Court is responsive to Member States’ preferences depending on which judgments they base their analysis on.

Analysing Precedents

In this light, it is no surprise that the need to analyse cases within a broad temporal scope is often recognized. Scholars repeatedly refer to the requirement of contextualising a new judgment with reference to earlier case law or, vice versa, in light of the follow-up litigation that is expected.

Comments on, for instance, the high-profile Zambrano ruling from 2011 provide ample illustrations of such references. Analysing the case, Hailbronner and Thym highlighted the need to hold off final judgment on the ruling as “later refinement” would certainly follow in light of the “open formulations” used by the Court. These “open formulations” would enable the Court, in subsequent case law, to take “political and academic criticism on board”. Similarly, Dawson, commenting on the case and its later refinements in McCarthy and Dereci, referred to a “repeat game” strategy by means of which the Court could set down an “integrationist principle” but “limit its temporal or material impact” depending on the “levels of resistance emerging from governments”. Lenaerts, in analogy, referred to a “stone-by-stone approach” by means of which the Court adopts an open-ended reasoning so that it can be left to future cases to opt for an either “strict or broad interpretation”. This was a matter of “judicial prudence” in cases which, like Zambrano, touch on “politically sensitive questions”.

More examples of such observations, across more areas of case law, can be cited. What has been lacking, however, are systematic theoretical and empirical analyses of these time-sensitive dynamics and their eventual effects. Taking cues from disclaimers such as the ones cited above, as well as further legal theory and political science works, a number of such long-term dynamics can be identified. They all relate, in an either more or less direct sense, to the CJEU’s penchant for using precedents in setting out its case law.

As is clear, precedents hold no binding authority in EU law. The concept can nevertheless be usefully applied, for analytical purposes, to describe the Court’s well-documented practice (see e.g., Jacob or Tridimas) of deciding new cases with reference to decisions reached in earlier proceedings. Such practices hold a number of advantages for the Court from a legal, judicial point of view. These advantages are explored in full in the book’s third chapter.

Importantly for the purpose of questions relating to the Court’s independence vis-à-vis political actors, such practices also help strengthening the Court’s interpretative leeway in relation to Member States’ preferences. Three dynamics of note can be cited in this respect and will be discussed below.

This discussion draws on examples from the Court’s case law on family reunification. As this jurisprudence is partially embedded in EU free movement law, it can be traced back as far as 1976, providing for a long-term perspective. More specifically, from the very outset, EU free movement law has provided ancillary rights of entry and residence for the family members of moving EU nationals, including family members with a third-country nationality. On that basis, free movement rules have, also from the very onset, held the potential to intersect with domestic immigration policies. In order to ensure a connection with immigration policy contexts, the study only considered free movement law cases involving at least one third-country national. These cases were considered in addition to – more straightforwardly – the Court’s case law based on EU immigration law instruments (most notably, the 2003 Family Reunification Directive). The book engages with this case law record as a whole and considers its evolution over time.  In the below, the text is limited to providing illustrations from within that larger record.

  1. As a first dynamic, reasoning by precedent enables the Court to be experimental in setting out its case law and, more importantly, the political implications attaching to this case law. For instance, and in line with the observations cited above, by advancing new premises in a broad, open-ended language, the Court can first launch ‘trial balloons’ aimed at getting a feel of reactions and potential political resistance. Depending on these first reactions, the Court can then either continue expanding on the first set of premises in follow-up cases or, instead, restrict their remit by introducing exceptions or limiting conditions when antagonism appears too strong. The Zambrano case and its follow-up rulings – as also emerges from the comments cited above – provide a case in point.
  2. Second, as a connected technique, a precedent-based, step-by-step development of its jurisprudence also enables the Court to set out the potentially sensitive implications of its rulings in a similarly slow, piece-by-piece way over the course of several lines of case law. In that manner, the exposure of these implications can be deferred to a later stage when it is possible to present them as derivations of pre-existing rules. One of the Court’s standard moves in that respect is to first introduce what are to later become important legal principles as ‘side-issues’ in cases that essentially revolve around other questions. What are side-principles in a first case, however, later turn out to hold revolutionary implications.
  3. As a related move, the Court can also set out important new principles centrally rather than in passing, but then find a reason as to why the principle does not apply to the case at hand. The principle is created but since no material consequences attach to it, it is unlikely to incite much reaction. At later points in time, however, its full and potentially sensitive implications can be revealed. Again, this can then be done with reference to pre-existing rules.

A telling example in this respect can be found in the Court’s extensive consideration of fundamental rights arguments in the 2006 EPvCouncil case. These fundamental rights arguments were eventually found not to apply to the case at hand since the contested provisions of the Family Reunification Directive (2003/86/EC) did not ‘expressly or impliedly’ authorise Member States to act in a manner that would run counter to fundamental rights protection standards. Accordingly, the case did not incite antagonism from Member States. To the contrary, it was considered a victory for the Council. In the later Chakroun judgment, however, the application of the arguments first expounded in EPvCouncil resulted in a highly sensitive outcome; i.e., that the Dutch application of a sufficient resources condition for family reunification at a standard equivalent to 120% of the national minimum income was precluded.

The above techniques enable the Court to play out the inherently shorter time horizons of politicians. Because the decisions of voters, which determine political success, are taken in the short run, politicians – in parallel – tend to prioritize the immediate political impact of judicial decisions over their possible long-term effects. This does not imply that Member States are oblivious to potential long-term consequences, or that they will be fooled by the Court. Rather, it means that – until new principles are applied in unacceptable ways – politicians will lack a compelling interest to mobilise against them (see on this argument also Alter). This leads on to a third dynamic by means of which reasoning by precedent enables the Court to strengthen its independence from political actors.

As Member States prioritise the immediate material impact of a case over its longer term implications, when intervening before Luxembourg, governments will also tend to find that the short-term benefits to be gained from winning the new dispute are more important to them than the smaller chances of scoring a moral victory by openly challenging preceding CJEU statements (see also McCown). As a result, when submitting written observations, and in order to promote their chances of winning the case at hand, they will often present their arguments in a language recognized by the Court, or rooted in lines of reasoning that were considered important in earlier decisions. This also explains an often observed ‘puzzling’ behaviour from the part of Member States (see e.g., early on Rasmussen or Burley & Mattli). While political objections to Court rulings can often be registered outside of the courtroom, in written observations submitted to Luxembourg, Member States will rarely argue against an earlier, disliked judgment. In fact, they can often be found to use judgments to which they were previously opposed, or to which they were even the losing party, as a point of departure in their own submissions. The disliked rulings will serve as a basis from which to argue for a narrow interpretation in the new case, or on the basis of which to distinguish the settings of the new dispute from those that underpinned the prior unfavourable ruling.

In the long run, however, such tactical adaptations to the legal rules of the game end up strengthening the Court’s influence rather than Member States’ ability to call the tune. First, judges inherently enjoy a privileged position in the courtroom as they decide what is or is not relevant and accordingly, what weight is to be attached to Member States’ arguments (whether or not grounded in prior Court statements). Second, inasmuch as prior Court-constructed rules start shaping their own arguments, Member States are left, even if only implicitly, acceding to these rules. Over time, in the context of repeated litigation, they can be found to implicitly internalize ever more Court-created rules in slow but certain ways. On that basis, as more time – and reinforcements – go by, precedents start carrying an ever stronger weight of prior acknowledgment and grow increasingly resistant rollback.

The Zambrano case and its follow-up rulings can again serve as a case in point. Member States vocally opposed the new ‘substance of the rights’ doctrine created in Zambrano in both domestic and European political arenas. The case was heavily discussed both in national capitals as well as in the Council where working group meetings were convened specifically for the purpose of investigating the case’s likely effects (further detail is provided in chapter six). When intervening before Luxembourg in the context of follow-up litigation however (e.g., Dereci, Iida, O and S, Alopka and Ymeraga), Member States’ written observations were premised on an (implicit) acknowledgment of the new doctrine. Zambrano was widely used by national governments as a starting point from which to argue for a narrow interpretation in the new circumstances.

In the Dereci case, for instance, eight Member States intervened and none of them, in spite of earlier vocal opposition, argued against the outcome of Zambrano. Instead, efforts went out to highlight how the events which gave rise to the Dereci proceedings differed substantially from those of Zambrano; more specifically, in so far as – different from Zambrano – the Union citizens in Dereci were not at risk of having to leave the territory of the Union. The Court followed this line of reasoning and highlighted (as it had already done in McCarthy and would continue to do in follow-up jurisprudence) that the application of the new ‘substance of the rights’ doctrine was to be seen as limited in scope, or as relating to ‘very specific situations only’. The doctrine itself, however, was never explicitly revoked. Instead, it was consistently reiterated by the Court and continued, in parallel, featuring in Member States’ written observations. Over time – and through continued follow-up litigation – its premises became ever more entrenched in the discourses used in the courtroom, including by Member States.

In the latest case law within this line (e.g., CS, NA, Rendon Marin, Chavez Vilchez, K.A.) which, by virtue of its recent nature, can only be studied in the short run, the Court’s jurisprudence again takes on a more fluctuating or ‘mixed’ image. Depending on the judgments selected for review, or elements within those judgments, it is possible to provide evidence of either more restrictive (e.g., NA) or less restrictive readings (e.g., Rendon Marin) of the original Zambrano principles. In any event, should the Court in the future move towards a more extensive application of the ‘substance of the rights’ doctrine, it will be much more difficult to counter the disliked grounding principles, which have by now gained more traction, than it would have been when Zambrano was first rendered. This is precisely how, with time, precedents create outcomes that stick.

Concluding Thoughts

The above arguments do not entail that, by playing out different time horizons, the Court becomes omnipotent. In fact, the empirical analyses also showed numerous occasions in which the Court met with fierce political resistance, in spite of time-based ‘camouflaging’ or other techniques (e.g., after the Chakroun case referred to above). After such instances, the Court could often be found to take a step back in the next case, continuing the non-linear image that marks its case law in the short-term.

The point is, rather, that the important dynamics in the relationship between the Court and the Member States and, accordingly, the independence enjoyed by the Court in that relationship, play out over time. A short-term perspective, for the reasons described above, merely offers a fluctuating image of cases that move back and forth between sometimes more audacious and, at other times, more politically prudent rulings. A long-term perspective, on the other hand, opens up to a series of consistent patterns in which the Court can be found to construct its case law in a step-by-step manner. As the book details further, for the area of family reunification immigration these step-by-step patterns, and their long-term outcomes, moved the case law gradually, but surely, away from Member States’ political preferences.