Blauberger_WithLuxembourgInMind - With Luxembourg in Mind...

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Unformatted text preview: With Luxembourg in Mind The Remaking of National Policies in the Face of ECJ Jurisprudence Michael Blauberger Paper presented at the EUSA Twelfth Biennial International Conference Boston, MA, March 3-5, 2011 ABSTRACT This contribution analyses EU member state political responses to ECJ challenges. Faced with high consensus requirements at the European level, member states often have to respond unilaterally and explore how to pursue autonomous regulatory goals in ECJ-proof ways. Based on an actor-centered institutionalist framework, member states domestic responses to one prominent series of ECJ judgments ( Laval, Rffert, Commission vs Luxembourg ) are traced empirically. By anticipating potential legal challenges through the European Commission or private parties and building on existing legal precedent, the case studies show that member state governments manage to preserve significant parts of their original legislation while making it ECJ-proof. Michael Blauberger, Jean Monnet Fellow European University Institute / RSCAS Via delle Palazzine 17 I- 50014 San Domenico di Fiesole Email: 2 INTRODUCTION 1 When the European Court of Justice (ECJ) delivered its preliminary ruling on the Laval 2 case in December 2007, critical comments on the EUs judiciary reached an extraordinary level. The ECJ was accused of promoting social dumping and launching an attack on workers rights (cf. Mayer 2009: 8). Due to the ECJs expansive interpretation of European market freedoms, it was argued, the very autonomy of Member States labour and social constitutions is undermined (Joerges and Rdl 2009: 13). As a response, commentators considered the nuclear option of member states deliberate non-compliance with European jurisprudence in order to constrain court activism (Scharpf 2009b: 200). Notably, recent criticism towards the ECJ is not limited to accusations of social blindness from the left. Referring to a different strand of jurisprudence (on anti-discrimination), the conservative and former German president Roman Herzog pleaded to Stop the European Court of Justice which was accused of depriving member states of their very own fundamental competences (Herzog and Gerken 2008). Certainly, balancing community and autonomy has become ever more delicate for the ECJ in an enlarged and deeply integrated European Union (EU). Yet, the nuclear option of outright resistance against ECJ rulings has not been drawn or threatened by member state governments. At the same time, joint responses to correct the European judiciary are faced with high consensus requirements of EU decision-making. Consequently, challenged by ECJ jurisprudence, member state governments are typically left with one immediate option to respond: They may explore unilaterally how to preserve domestic regulatory goals in a way that is compatible with the requirements of the European judiciary. Thus, in response to the that is compatible with the requirements of the European judiciary....
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This note was uploaded on 02/05/2012 for the course 790 395 taught by Professor Tillery during the Fall '09 term at Rutgers.

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Blauberger_WithLuxembourgInMind - With Luxembourg in Mind...

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