(Differentiated) integration through law: the CJEU’s varied responses to big and small claims on EU values inside and outside the rule of law crisis case-law

This paper revisits the integration through law thesis, by focusing on the CJEU’s varied responses to challenges to Article 2 TEU values, through identifying disconnects within and between ‘big’ claims and ‘small’ claims that revolve around them. This investigation is prompted by the emergence of the principle of non-regression as asserted by the CJEU on account of judicial reforms regarding the rule of law, one of the Article 2 TEU values. While there has been scholarly debate on the rule of law crisis, a more holistic tracing of the impact of the CJEU’s approach to the principle of non-regression in distinct types of claims on the integration through law thesis is still missing. On ‘big' claims that involve assertions of constitutional identity by the member states (eg judicial reforms) contestation on the EU level turns into a seemingly perpetual dialogue across political and legal spaces. The rule of law crisis confirmed that, as an unintended side effect, the dialogue on big claims on the EU level freezes the contested status quo on the domestic level – enabling member states that contest the primacy of EU law and its founding values to shape EU law through the weight of social facts on the ground. The CJEU responded to the corrosive effect of such domestic changes through the principle of non-retrogression, arguably, to prevent the erosion of the EU acquis. Here, albeit twisted, integration through law remains apparent. At the same time, it has long been known that on ‘small' claims, such as religious accommodation at the workplace, the original individual claim or concern often becomes invisible (or at least is hardly recognisable). Litigants who are disadvantaged (at times intersectionally) often lack the resources to bring such claims. Instead, they rely on altruistic actors for legal mobilisation, ending up activating EU law quasi-accidentally - despite the strong connection to Article 2 TEU values of equality, human rights and the rights of minorities. Even when EU law is mobilised in their case, the outcome is unlikely to be to their benefit, or to that of the EU acquis; grand proclamations of non-regression are yet to happen in this area and the impact of Article 2 TEU values is muted. Here too, Member States appear able to shape EU law through social facts on the ground, but without triggering a robust counter-response by the CJEU. The CJEU does not engage in integration through law, despite similar sets of actors resulting in legal integration in the past. By engaging in a comparison across the big versus small claims dichotomy, the paper aims to map and explain distinct judicial responses to the EU values and their impact on the EU acquis and the integration through law thesis. The paper draws on reflexive approaches to litigation as a field to make better sense of the discrete contribution of similar sets of actors, resulting in distinct patterns of judicial responses and the impact thereof on the continued relevance of integration through law thesis.