Tobias Nowak

Of Garbage Cans and Rulings: Judgments of the European Court of Justice in the EU Legislative Process

This article addresses the problem of how to explain the influence that rulings of the European Court of Justice (ECJ) have on the political decision-making of the EU. It will be argued that a framework developed by Kingdon which follows the garbage can model of Cohen, March and Olson is a good approach to conceptualising this influence. This framework explains political processes in terms of problems, solutions, participants and choice opportunities. In order to illustrate the argument, two famous rulings, Dassonville and Cassis de Dijon, are examined in detail. Both rulings dealt with the same subject but had different impacts on political decision-making. The difference in influence depended on the conditions of the political arena at the time the rulings were given and not on their legal contents.

The working time directive and the European Court of Justice

This article sheds light on how judgments of the European Court of Justice can influence the legislative process of the European Community by analyzing the legislative process surrounding the Working Time Directive. In 2000 the European Court of Justice interpreted the Working Time Directive in SIMAP and ruled that the time spent on-call by doctors constitutes working time in its entirety. This ruling seems to have come as a surprise to the Member States and the Commission alike and plans were made to counter the ruling. Since then the ECJ has confirmed the approach it took in SIMAP in several cases. However, in Dellas the Advocate General called upon the ECJ to change its definition of working time in order to exclude time spent on-call and thus anticipate the will of the legislators. The opinion of the Advocate General in Dellas, but also the reactions to the judgments by other political actors, and the fact that the Council of Ministers finally reached a political agreement on a new text for the Directive, make the evolution of the Working Time Directive of particular interest.

Creating EU law judges: the role of generational differences, legal education and judicial career paths in national judges' assessment regarding EU law knowledge

ABSTRACT The judicial protection system in the European Union (EU) is premised on the fact that national judges are supposed to act as decentralized EU judges. This role is exercised through tools enshrined in, inter alia, primacy, direct and indirect effect of EU law, and the preliminary ruling procedure. However, a number of studies show that national judges experience difficulties in exercising EU competences due to their lack of knowledge in the field of EU law. In this contribution we study the differences in the level of self-evaluation of EU law knowledge among judges, which consequently influence the way judges approach EU law. For that purpose we question the relevance of several institutional and socio-legal factors, such as organization of the judiciary, generation, the system of legal education and judicial training and practical experience with EU law. Our analysis is based on data collected from German, Dutch, Polish and Spanish judges.

The Turbulent Life of the Working Time Directive

The case of the Working Time Directive (WTD) is a prime example of a failed attempt by the Member States and the Commission to counter rulings of the European Court of Justice (CJEU) by legislative overrule. Outsourcing the decision making process to the social partners also did not deliver the desired results. After years of trying to reform the WTD, the Commission changed its strategy and issued an interpretive communication instead. However, it is doubtful that this communication will solve all that is wrong with the WTD. What were the obstacles to legislative overrule in this case? What other strategies in avoiding the consequences of CJEU rulings do the Member States apply? What will the future of WTD look like?

The Emergence and Use of Self-Regulation in the European Decision-Making Process: Does it make a Difference?

Abstract Since the mid 1990s the European Commission has started to advocate self-regulation by private economic and social actors as an important new steering mechanism to improve the achievement of the objectives of the Treaties, in particular with regard to internal market policies. This article sheds some light on the emergence of self-regulation as a new mode of governance in the EU and the way it has developed in practice. Has it gained prominence as an alternative to traditional legislation? Has this new mechanism blurred further the distinction between public and private sector by transferring rule-making powers to private interest associations? Does self-regulation offer an attractive new institutional opportunity for economic and social actors to influence European decision-making? We will discuss the appearance and institutionalization of self-regulation and look at three different cases of self-regulation focussing on the relationship between public authorities and private actors in rule making processes.

Book Review: Justice Contained. Law and Politics in the European UnionConantLisa, Justice Contained. Law and Politics in the European Union, Cornell University Press, 2002, xv + 250 pages, hardback, € 51

In this book Lisa Conant analyzes the influence of the European Court of Justice (ECJ) on policy-making in the EU. Her main question is: ‘What are the sources and conditions of judicial power over policy-making in the European Union?’ She considers both the EU level and the domestic level of policy making. She uses an interest based approach derived from political economy to explain the political reactions to rulings of the ECJ. The core of the book consists of four case studies. Two case studies are taken from the field of competition (telecommunication, electricity) and two from the field of discrimination based on nationality (access to public sector employment, access to social benefits). In addition, Conant makes a short comparison between the ECJ and the Supreme Court of the United States of America in the last chapter of the book. This book review starts by describing Conant’s point of departure and her theoretical basis. It then summarizes her four case studies and her conclusions. An assessment of the book is given at the end.