Politics As Usual in the Court? Government Interests and Preference Alignments in the European Court of Justice 1997-2008

Like other constitutional and international courts the European Court of Justice (ECJ) not only applies the law, but also makes law, by filling the gaps in treaties and secondary legislation. Private litigants, interest groups and EU governments have increasingly become aware of the opportunity for political change that the Court provides. Thus, even if the Court itself would make decisions purely on a legal-professional basis, the input it receives from external actors will be grounded in political interests. However, the trustee model of international courts argues that courtroom deliberations are different from intergovernmental negotiations, due to the constraints set by law and legal procedure. In the proposed paper, therefore, we study to what extent the Court as an arena for political conflict differs from other political venues, in terms of how conflict is structured. Our analysis is based on the positions of EU governments, the Commission and the Court in the preliminary reference proceedings in 1997-2008. We use dimensional and regression analyses on the full data set, but also qualitative analysis of selected cases. We find that the two most important conflict dimensions relate to more European integration vs Preserved National Sovereignty and Liberal vs Social Market economic models. While the first dimension is driven largely by conflict between governments and supranational actors, the latter takes a moderate median position on the second dimension.