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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.

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.

We test two of the main explanations of the formation of political ties. The first states that political actors are more likely to form a relationship if they have similar policy preferences. The second explanation, from network theory, predicts that the likelihood of a tie between two actors depends on the presence of certain relationships with other actors. Our data consist of a unique combination of actors' policy positions and their network relations over time in the Council of the European Union. We find evidence that both types of explanations matter, although there seems to be variation in the extent to which preference similarity affects network evolution. We consider the implications of these findings for understanding the decision-making in the Council.

We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their rulings. This view combines a strategic perspective on judicial decision making with a conception of persuasion that allows courts to widen their zone of discretion. We support our argument with data from the European Union, where we find that the Court of Justice improves its legal justifications—by embedding its decisions in case law—when it faces a more adverse political environment. Our findings suggest both that the limits of judicial independence are set largely by political preferences, and that legal rhetoric may be an opportunity for courts to extend their room for maneuver. They also indicate that political audiences may indirectly influence the development of case law, by triggering courts to engage in precedent.