A friend in need: How crisis affects the CJEU’s inter-institutional relations

Most legal orders make provision for times of crisis and emergency, particularly by suspending normal safeguards concerning the checks and balances between governmental actors. In particular, the executive powers of the government tend to expand in times of crisis. At the same time, crisis increases political controversy. For the judiciary, this entails, on the one hand, a heightened need for scrutiny to counter the risk of judicial overreach, and on the other, increased deference to the elected branches due to both political salience and need for decisive action. For a European Union in a state of successive or almost perpetual crisis, it becomes imperative to uphold an institutional balance ensuring that executive and legislative actors are subject to judicial control. The purpose of this paper is to examine whether and how crisis affects how the CJEU relates to other institutional actors. In particular, it sets out to explore two questions: First, does the CJEU react to the expected expansion of executive powers in a crisis, and if so does it react by increasing or relaxing its levels of scrutiny? Second, does the Court react to increased politicization of a field, and if so does politicization make it more affirmative or more deferential towards political actors? Using migration law as a case study, the paper relies on a combination of empirical and doctrinal methods. First, using a unique dataset of 283 legal issues decided by the CJEU in the field of migration between 2010 and 2020, the paper compares the Court’s rulings and reasoning before and after the unfolding of the migration crisis of 2015. A similar dataset from EMU law, entirely postdating the 2007 financial crisis, will be used to validate findings. Second, the paper relies on doctrinal methods of legal analysis to conduct an in-depth analysis of key rulings delivered before and after the migration crisis, in which the actions and competences of the Union legislative and executive were brought to the fore before the Court. The results of this analysis will be interpreted within the context of the overall image painted by the empirical findings. Finally, the paper discusses the implications of the findings for the institutional balance in the EU.