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European Commission as a Signal – Legal Mobilisation and Institutional Support

Comparative Politics
European Union
Institutions
Andreas Hofmann
Departments of Political Science and Public Administration, Universiteit Leiden
Andreas Hofmann
Departments of Political Science and Public Administration, Universiteit Leiden

Abstract

Among its interlocutors, the European Court of Justice has been empirically shown to be most responsive to the input of the European Commission. This holds true regardless of the concrete nature of the procedure. The Commission ‘wins’ the vast majority of infringement cases that it brings to the Court of Justice. It is almost equally successful in preliminary reference procedures, the occurrence, content and timing of which is outside its immediate realm of influence. The Commission lodges a legal opinion of its own (so called ‘observations’) in all such procedures, and the Court’s ruling reflects this position in the vast majority of cases. This empirical fact has important implications for all actors engaging with the EU legal system. In an attempt to use EU law to achieve policy objectives, all actors are well advised to either ‘enlist’ the Commission for their cause, or align themselves with the Commission’s legal position. We know very little about the way the Commission acts as a ‘signal’ in legal mobilisation and the way actors (individuals, interest groups, corporations, law firms etc.) seek the support of the Commission in their legal quest. My proposed paper hypothesises that the Commission’s legal success allows it to act as a gatekeeper to legal developments resulting from ECJ judgements, and that the Court’s agenda is substantially influenced by the Commission’s priorities as individual litigants strategically align themselves with the Commission’s positions. Commission support, I argue, becomes both a political and legal resource. I analyse this proposition in a comparative case study of internal market cases (concerning barriers to trade in goods) and EU citizenship cases over the last two decades.