The Court of Justice and Treaty Revision: A Case of Strategic Leniency?

32 Pages Posted: 1 Jun 2017 Last revised: 21 Dec 2017

See all articles by Jose Luis Castro-Montero

Jose Luis Castro-Montero

Universidad Andina Simon Bolivar

Edwin Alblas

Sutherland School of Law, University College Dublin

Arthur Dyevre

KU Leuven

Nicolas Lampach

KU Leuven - Centre for Legal Theory and Empirical Jurisprudence

Date Written: June 1, 2017

Abstract

Students of EU judicial politics have debated whether the threat of legislative override can influence the behaviour of the European Court of Justice. Yet because of the high political hurdles for the passage of Treaty amendments, Treaty revision has been dismissed as the "nuclear option", exceedingly effective but difficult to use and, therefore, unlikely to impact judicial decision making. However, in periods when Treaties are being renegotiated and until a formal agreement is reached on the details of the new provisions, the ability of member state governments to use Treaty revision to either punish or reward the Court should be greater. This, we argue, may induce the Court of Justice to display more leniency towards member states. We test this argument by comparing the outcome of infringement rulings coincident with revision to the outcome of infringement cases in normal periods. We find that the ECJ is significantly less likely to render an adverse ruling in years coinciding with a Treaty revision or, using an alternative unit of time, in the three months leading up to the formal signature of a Treaty revision. Because the Court tends, on balance, to have more to gain than to lose from a revision, we suggest that it has a strategic incentive to avoid antagonizing member states until the new institutional deal is finalized.

Keywords: Court of Justice; European Union; Multilevel Model; Bayesian Statistics

JEL Classification: N44; C11; C50; D74

Suggested Citation

Castro Montero, Jose Luis and Alblas, Edwin and Dyevre, Arthur and Lampach, Nicolas, The Court of Justice and Treaty Revision: A Case of Strategic Leniency? (June 1, 2017). Available at SSRN: https://ssrn.com/abstract=2978615 or http://dx.doi.org/10.2139/ssrn.2978615

Jose Luis Castro Montero (Contact Author)

Universidad Andina Simon Bolivar ( email )

Toledo N22-80 (Plaza Brasilia)
Quito, Pichincha 17-12-569
Ecuador

Edwin Alblas

Sutherland School of Law, University College Dublin ( email )

Belfield
Dublin 4
Ireland

Arthur Dyevre

KU Leuven ( email )

Tiensestraat 41
Leuven, B-3000
Belgium

Nicolas Lampach

KU Leuven - Centre for Legal Theory and Empirical Jurisprudence ( email )

Tiensestraat 41
Leuven, B-3000
Belgium

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