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A spoonful of sugar : deference at the Court of Justice
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0021-9886; 1468-5965
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Journal of common market studies, 2024, Vol. 62, No. 5, pp. 1177-1203
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BREKKE, Stein Arne, A spoonful of sugar : deference at the Court of Justice, Journal of common market studies, 2024, Vol. 62, No. 5, pp. 1177-1203 - https://hdl.handle.net/1814/78005
Abstract
This article analyses the European Court of Justice’s strategic use of deference as a resilience tech-nique in the preliminary reference procedure. It focuses on the strategic potential of using defer-ence in two scenarios: first, when the Court uses teleological interpretation or expands the scopeof the EU legal order and, second, when it declares national measures incompatible with EUlaw. The findings indicate that the Court is more likely to use deference when expanding EUlaw and less likely to defer when it declares national measures incompatible with EU law. The ar-ticle challenges commonly held assumptions regarding the use of deference. First, the findingssubstantially qualify accounts linking the increase of deference to the maturity of the EU legal or-der and a certain halt of judicial activism. Deference allows the Court to explore new frontiers ofEU law, suggesting that although the legal order might have matured, the Court does not perceivethe project of legal integration as completed. Second, the article defies claims that deference isused by the Court as a ‘weapon of restraint’.
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Published online: 01 October 2023