First or one among equals? : the CJEU and the construction of EU social policy

Abstract

The argument that the Court of Justice of the European Union (CJEU) is important in the development of European Union law has been present in legal and political science research for years. At the same time, some under-researched questions remain. Among those is the CJEU’s impact on the lawmaking process at the EU level and the way the development of EU law steers the case law in response. Further, the theoretical implications of any such 'horizontal' interaction remain under-explored, especially since the major theories in this area tend to see the Court’s relationship with the lawmakers (both the member states in their role as Treaty-makers and the EU legislature) in conflictual rather than complementary terms. This thesis analyses the role of the CJEU in constructing EU level social policy and proposes to conceptualise the relationship between the CJEU and lawmakers in a novel way. First, this thesis explores the interaction between the Court and the Union lawmakers, how this interaction operates in practice and whether there is an overlap between what the Court and Union lawmakers are occupied with. By using both large scale process tracing and a detailed case study method, I show that there is a remarkable (but not omnipresent) degree of interaction between the CJEU and the lawmakers at various levels. Second, I consider what my results mean for the constitutional understanding of the CJEU’s role and its relationship with the lawmakers. I argue in favour of adopting a modified version of the theory of constitutional dialogue in order to better accommodate the actual nature of the CJEU’s relationship with the lawmakers and in order to facilitate the interaction from the specific standpoint of the CJEU. In the last part of my thesis, I explore how this interaction could be turned into a conscious, coordinated process – the coordinated construction of EU social policy law.