Domestic Judicial Defiance in the European Union: A Political Economic Approach

Arthur Dyevre 

Max Planck Institute for Comparative and International Law
June 27, 2013

Abstract:      
Drawing on insights from the international relations literature, I develop a formal framework to analyze interactions between domestic and supranational judges in the EU legal order. I find that domestic high courts differ considerably in their ability to influence ECJ decision making but that, overall, overt judicial non-compliance should remain rare. Weak domestic courts have much to lose and little to win from an escalated conflict with the ECJ. But, while they do wield sufficient influence to contain the European Court's activism, domestic judicial superpowers -- such as the German Federal Constitutional Court -- also have a strong incentive to compromise. I demonstrate that, under certain conditions, their opinions may serve as an effective signalling device in a peaceful issue-trading equilibrium. An analysis of the German Court's opinions on European Integration using computer-based text scaling techniques (Wordscores, Wordfish) provides some empirical support for the way in which the model reinterprets the notion of judicial dialogue.

Number of Pages in PDF File: 32

Keywords: game theory, judicial behaviour, European integration, EU judicial politics, German Federal Constitutional Court, judicial dialogue, political economy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2295034