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Explaining Case Selection for Judicial Review at the Court of Justice of the EU

Sun, September 1, 8:00 to 9:30am, Marriott, Delaware B

Abstract

Scholars widely agree that the Court of Justice of the EU (CJEU) may exploit policy conflict in the EU legislature in order to make pro-integrationist judgments. Taking a step back, however, we do not know which kinds of cases end up before the court in the first place. I examine the three main judicial procedures – annulments, infringement proceedings and preliminary references – and develop a strategic account for under which procedure laws might be reviewed. Analyzing 160,000 legal acts, from the early days of the European Coal and Steel Community until 2018, I find that policy conflict in the legislature affects the probability that legal acts will be subject to an annulment request or an infringement proceeding. For preliminary references, I find that policy conflict is an important factor when judges decide whether to hear a case or not. My findings imply that policy conflict may hinder rather than help the CJEU, as case selection sets important scope conditions for judicial activism to materialize. They also provide novel insights for the debate on whether unelected judicial actors can drive European integration.

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