‘As you were saying’: Framing decisions at the Court of Justice of the European Union

A growing literature offers evidence that the Court of Justice of the European Union’s (CJEU) interpretations of EU law are shaped by the interests of member states, as judges are well aware that controversial interpretations curtailing national governments’ autonomy are at risk of legislative override and non-compliance. This evidence harbours normative concerns about the Court’s independence from member states: Rather than being driven by judges’ professional interpretations of the law, the CJEU’s decisions appear subject to political calculations and strategic deference to member states. In this paper, we qualify these concerns and argue that the CJEU has means other than outright deference in its toolkit that help the Court to protect its decisions against attempts of legislative override. We argue that the CJEU anticipates controversy and strategically highlights concurring interpretations of EU law held by other EU institutions as well as member states themselves in order to signal political support for its decisions and pre-empt challenges to its jurisprudence. We test this claim, drawing on original data of the CJEU’s references to observations submitted by member states and EU institutions in all preliminary reference proceedings lodged with the Court between 2002 and 2008. Our data allows us to compare the CJEU’s – as we argue, strategic and selective – choice to reference member states and EU institutions’ observations across different political environments with varying risks of legislative override.