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AbstractHow has the research on the European Council and the Council of the EU engaged with Moravcsik's theory on liberal intergovernmentalism (LI)? This article analyzes 25 years of Council research. Most of this literature does not refer to LI, and a majority of the references that are made raise critique against LI. However, compared to other major works on European integration, LI is by far the most important source in the Council literature. Furthermore, a closer look at the most significant challenges raised against LI indicates that its account of intergovernmental bargaining in the EU is not in serious question. On the other hand, few studies provide systematic tests of the key assumptions of LI with regards to interstate bargaining. As a result, the self‐proclaimed status of LI as a baseline theory is confirmed in the Council literature more by implicit, somewhat reluctant, consent than by overt support.

I argue that the transparency reforms that have been implemented in the Council of the EU in the last decades are unlikely to change the perception of the Council as a non-transparent institution. My argument is based on three distinctions: the distinction between transparency (availability of information) and publicity (spread and reception of information); between transparency in process and transparency in rationale; and between plenary and committee decision-making arenas in legislatures. While national parliaments tend to have all these features, the Council of the EU only has two (transparency in process and committee decision-making). As a consequence, publishing ever more documents and detailed minutes of committee meetings is unlikely to strengthen the descriptive legitimacy of the Council. Furthermore, I argue that the democratic transparency problem is the reverse of what is most often argued: It is not the lack of transparency that causes a democratic deficit, but the (perceived) lack of a democratic infrastructure that makes more serious transparency reforms unthinkable to government representatives.

I argue that the transparency reforms that have been implemented in the Council of the EU in the last decades are unlikely to change the perception of the Council as a non-transparent institution. My argument is based on three distinctions: the distinction between transparency (availability of information) and publicity (spread and reception of information); between transparency in process and transparency in rationale; and between plenary and committee decision-making arenas in legislatures. While national parliaments tend to have all these features, the Council of the EU only has two (transparency in process and committee decision-making). As a consequence, publishing ever more documents and detailed minutes of committee meetings is unlikely to strengthen the descriptive legitimacy of the Council. Furthermore, I argue that the democratic transparency problem is the reverse of what is most often argued: It is not the lack of transparency that causes a democratic deficit, but the (perceived) lack of a democratic infrastructure that makes more serious transparency reforms unthinkable to government representatives.

AbstractScholars have long emphasised the consensual nature of the intergovernmental negotiations in the Council of the European Union. Unlike other international organisations, where surface consensus has been found to be merely a cover for the dominance of powerful states, the EU literature describes a norm of generosity that works as a real constraining factor. In contrast, this article warns against descriptions of the EU as different in kind. Based on interviews with 231 EU Member State representatives involved in day‐to‐day negotiations in the Council, it finds a strong bias in generosity on behalf of the three dominant powers: France, Germany and the United Kingdom. The 'Big 3' are strikingly unwilling to make generous concessions, compared to other states. Furthermore, from a rational perspective, there are good reasons for expecting this pattern. The study also shows that extensive pooling of power in the form of qualified majority rule and hard law commitment is associated with less generosity, while there seems to be no socialising effect towards generosity from exposure to the 'Brussels community'. These findings cast a new light on the common narrative of the EU as a 'soft‐bargaining' anomaly among international organisations, where national interests are upgraded into common interests by a process of norm socialisation. Instead, it seems that the purported 'consensus norm' has been far from successful in transcending fundamental power asymmetries between the EU Member States.

AbstractThe interest group literature has long struggled with how to empirically approach the normative idea of a non-biased group system. While most previous attempts have focused on the descriptive representation of different types of groups, this article argues that substantive representation of citizens' attitudes is closer to the democratic principle of equal effective participation. It develops a methodological approach that captures substantive representation with respect to agenda priorities and policies by surveying interest groups on how much time they spend on lobbying in different policy areas, and in which direction they lobby on salient policy issues. The responses are compared with opinion data to estimate the level of political (in)equality. The findings from the case of Sweden – where relatively high levels of equality would be expected, but striking levels of inequality based on socio-economic status are instead found – highlight the perseverance of what Schattschneider once called the upper-class bias of the pressure system.

Litigation has long been a part of interest groups' lobbying tactics in the U.S. In Europe, by contrast, taking political conflicts to court has traditionally been viewed with skepticism. However, in the wake of an increasing judicialization of politics in Europe, litigation has also become part of the toolbox of European interest groups. Using original survey data from five European countries, we study how they use that tool. We show that European interest groups go to court somewhat less often than their American counterparts, but that the groups that do end up in court have similar characteristics. Overall, we find that the more politically active and resourceful a group is, the more likely it is to turn to the courts. However, a subset of politically active groups, one that deploys distinct outsider tactics, is more likely to use litigation than the rest. Government funding, however, reduces groups' propensity to litigate.

AbstractLitigation has long been a part of interest groups' lobbying tactics in the U.S. In Europe, by contrast, taking political conflicts to court has traditionally been viewed with skepticism. However, in the wake of an increasing judicialization of politics in Europe, litigation has also become part of the toolbox of European interest groups. Using original survey data from five European countries, we study how they use that tool. We show that European interest groups go to court somewhat less often than their American counterparts, but that the groups that do end up in court have similar characteristics. Overall, we find that the more politically active and resourceful a group is, the more likely it is to turn to the courts. However, a subset of politically active groups, one that deploys distinct outsider tactics, is more likely to use litigation than the rest. Government funding, however, reduces groups' propensity to litigate.

The mutual dependence between courts and their compliance constituencies is a fundamental feature of judicial power. Actors whose rights and interests are reinforced by court decisions may use these as legal ammunitions while contributing to ensuring that court decisions are effectively implemented. We argue that judgments that contain dissenting opinions are less powerful in this regard, compared with unanimous decisions. The reason is that dissent reduces the perceived legal authority of the judgment. Using data from the international human rights judiciaries in Europe and the Americas, we provide evidence of a negative relationship between judicial dissent and compliance. Our findings have important implications for questions relating to the institutional design of courts, for courts' ability to manage compliance problems, and for understanding the conditions for effective international judicial protection of human rights.

AbstractThe European Union (EU) offers an example of deep judicialization, where highly salient political values are adjudicated on a regular basis. In such contexts, political attention may shift from national sovereignty costs (the vertical dimension) to distributive conflicts within and between states (the horizontal dimension), creating a multidimensional legal policy space. We discuss the implications of this setting for judicial behavior and argue that it may create both opportunities and pitfalls for international judges, depending on how the dimensions are related. If the institutional interests of judges in promoting international law systematically favor some states over others on the horizontal dimension, judicial activism is likely to provoke feedback effects in the form of severe legitimacy problems. If the dimensions are unrelated, on the other hand, adjudicators become further empowered. We draw on a large dataset to show how the Court of Justice of the EU has been able to use divisions between states on the left-right dimension to enhance the legitimacy and autonomy of European law.

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views ('observations') to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states' subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe. ; ISSN:0304-4130 ; ISSN:1475-6765

AbstractThe preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views ('observations') to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states' subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.

AbstractThere is broad agreement in the literature that international courts (ICs) make decisions with bounded discretion in relation to state governments. However, the scope of this discretion, and the determinants of its boundaries, are highly contested. In particular, the central mechanism in separation-of-powers models of judicial politics—the possibility of legislative override—has raised controversy. We argue that the uncertainty that judges face regarding the political reactions to their decisions has important and undertheorized implications for their behavior. On the one hand, cautious judges are likely to be attentive to signals that contain information about the probability of an unfavorable override. On the other hand, misjudgments of the political risks are likely to be made. Thus, the possibility of override is a significant factor affecting judicial behavior, but it is also a fairly blunt mechanism for balancing the independence and accountability of courts. The empirical study focuses on the Court of Justice of the European Union (CJEU), which has long been at the center of theory development regarding the legalization of world politics and the rise of international courts. The results demonstrate a strong correlation between the CJEU's rulings and the political signals it receives, in a pattern that goes beyond legal merit, and that fits with the override mechanism. State governments are crucial parts of the broader audience that defines the political boundaries of judicial discretion.