A Political Bellwether? The European Commission’s Interaction with the Court of Justice of the European Union under the Preliminary Ruling Procedure

Abstract

Recent quantitative research has shown a sizable impact of the European Commission’s written observations on the preliminary rulings of the Court of Justice of the European Union. In explaining the high success rate of the Commission, scholars have referred to an old assumption according to which the Court uses the Commission as a ‘political bellwether’ to determine how farMember States may be pushed towards enhanced legal integration in any given case. The present study assesses the validity of the assumption that the Commission acts according to such logic in these proceedings. Interviews with central actors in the Commission reveal internal processes and considerations made when determining the Commission’s position in three ‘most likely’ cases. Rather than a political bellwether, the empirical findings suggest that the Commission is better characterized as an activist that seeks to contribute to the development of EU law in line with its own policy preferences or legal analysis irrespective of whether such preferences are politically acceptable to Member States. Scholars seeking to understand the Commission’s success rate under the preliminary ruling procedure should thus consider alternative explanations to the Commission’s success. In this regard, theories stressing the Commission’s expertise, resources and judicial strategy of being a ‘repeat player’ appear to be particularly relevant.