Why do Member States, that are similar in many aspects, still have varying levels of compliance? As current compliance theories are unable to answer this question a new theory has been developed...Show moreWhy do Member States, that are similar in many aspects, still have varying levels of compliance? As current compliance theories are unable to answer this question a new theory has been developed that adds an historical aspect into compliance research: the challenging attitude approach. This theory proposes that earlier adopted attitudes by Member States, that range from agreeable to challenging, which they display before, during and after infringement proceedings, affect future compliance. Member States initially base these attitudes on a normative assumption about the importance of compliance to a policy field. For this research the Netherlands has been compared to Belgium, which yearly faces twice the amount of infringement proceedings as the Netherlands. Portugal has been to Spain, which faces from 10% more to twice the amount of infringement proceedings as Portugal. Their portrayed attitudes in regards to the Dangerous Substances Directive and the Birds Directive have been studied. This research showed, however, that Belgium did not adopt a challenging attitude more often than the Netherlands. Spain did adopt a challenging attitude more often than Portugal. There was also great variation displayed by Member States in adopted attitude per directive. However, there appears to be a correlation between adopted attitude and future compliance. More research is needed to make substantial claims about the challenging attitude approach.Show less
This thesis analyses the European Court of Justice’s (ECJ) development of the right to an individual enforcement of EU law for a path dependence. In a thorough analysis of the origin and further...Show moreThis thesis analyses the European Court of Justice’s (ECJ) development of the right to an individual enforcement of EU law for a path dependence. In a thorough analysis of the origin and further development of this right and an evaluation of the policy context in which it was developed, three major indications for a path dependent development are identified: (i) the introduction of the right to an individual enforcement of EU law in Van Gend en Loos (VGL) is found to have served as a critical juncture which influenced the subsequent development in a path-defining manner, (ii) the ECJ’s subsequent case-law development of the right is found to have been charaterised by decision-making patterns conforming the original decision in VGL, and (iii) the policy context in which the right was developed is found to have been defined by conditions increasing the likelihood of a path dependence. Finally, this thesis underlines the implications such a path dependent development of case-law has for the ECJ’s case-law itself, its analysis and for EU policy-making on the whole.Show less
On regular bases, the Court of Justice of the European Union has been accused of being activist. However, the very nature of the European Union and the great complexity and diversity of the...Show moreOn regular bases, the Court of Justice of the European Union has been accused of being activist. However, the very nature of the European Union and the great complexity and diversity of the European Court of Justice’s case law imply that judicial activism in itself may mean different things. First used and widespread in the United States, the term was rapidly taken for granted and applied to the Court of Justice of the European Union. Yet, the notion of judicial activism has been extensively used by scholars and judges but its meaning has become more and more ambiguous. As American Judge Frank H. Easterbrook already put in 2002 “Everyone scorns judicial “activism”, that notoriously slippery term” (2002: 1402). In fact, too often employed to explain a number of different, even contradictory, concepts, it has become increasingly risky to use it. This thesis does neither aim to provide a single and specific definition of the notion of judicial activism nor to bring a completely new approach to the term. Its purpose is rather to collect a wide body of scholarship, to gather the most top-cited theories, to link them to case law and other literature. Then, the objective is to create a typology of judicial activism to make it easier for the reader to understand and for the scholars to convey their theories more adequately.Show less
The European Court of Justice (ECJ) has been accused of being a judicially activist court in cases such as Van Gend en Loos and Costa v. ENEL. This behaviour has been studied extensively by...Show moreThe European Court of Justice (ECJ) has been accused of being a judicially activist court in cases such as Van Gend en Loos and Costa v. ENEL. This behaviour has been studied extensively by scholars. In recent years, the ECJ has made decisions in the area of Justice and Home Affairs. This thesis looks at the question: to what extent the court has acted in a judicially activist manner in this area through the analysis of three cases: Opinion 2/13, Melloni and Metock. A further aim of this thesis is to determine if certain methods have been used by the court to make its judicially activist behaviour acceptable to member states.Show less
In this thesis, I argue that legitimacy is a complex concept to work with. In order to gain some clarity, it is useful to think about the different aspects of legitimacy. The distinction between...Show moreIn this thesis, I argue that legitimacy is a complex concept to work with. In order to gain some clarity, it is useful to think about the different aspects of legitimacy. The distinction between social and formal legitimacy is interesting because it reminds us that legitimacy cannot be captured by simple statements. In relation to the CJEU, Lenaerts has developed a theory of internal and external legitimacy. Especially external legitimacy is important, because that basically defines the limits of what a court should do and what it should not do. These external limits of legitimacy make that courts need to define what exactly the law is. Subsequently, courts need to be aware of those limits and not overstep them. Determining what the limits are, however, is quite difficult because the court needs to balance the different interests of the parties involved. However, if it is done successfully and the court stays within those limits, it has the potential of enjoying social legitimacy as well as formal legitimacy.This thesis applies this framework to the CJEU and it role in the EU and its role in the development of the EU legal order. It shows that the tension between the competences of the Member States and those of the EU is nearly always present and manifests itself in different ways and in different places. In this thesis, I have argued that legitimacy is a complex concept to work with. In order to gain some clarity, it is useful to think about the different aspects of legitimacy. The distinction between social and formal legitimacy is interesting because it reminds us that legitimacy cannot be captured by simple statements. In relation to the CJEU, Lenaerts has developed a theory of internal and external legitimacy. Especially external legitimacy is important, because that basically defines the limits of what a court should do and what it should not do. These external limits of legitimacy make that courts need to define what exactly the law is. Subsequently, courts need to be aware of those limits and not overstep them. Determining what the limits are, however, is quite difficult because the court needs to balance the different interests of the parties involved. However, if it is done successfully and the court stays within those limits, it has the potential of enjoying social legitimacy as well as formal legitimacy. This thesis has applied this framework to the CJEU and it role in the EU and its role in the development of the EU legal order. It has been shown that the tension between the competences of the Member States and those of the EU is nearly always present and manifests itself in different ways and in different places. In this thesis, I have argued that legitimacy is a complex concept to work with. In order to gain some clarity, it is useful to think about the different aspects of legitimacy. The distinction between social and formal legitimacy is interesting because it reminds us that legitimacy cannot be captured by simple statements. In relation to the CJEU, Lenaerts has developed a theory of internal and external legitimacy. Especially external legitimacy is important, because that basically defines the limits of what a court should do and what it should not do. These external limits of legitimacy make that courts need to define what exactly the law is. Subsequently, courts need to be aware of those limits and not overstep them. Determining what the limits are, however, is quite difficult because the court needs to balance the different interests of the parties involved. However, if it is done successfully and the court stays within those limits, it has the potential of enjoying social legitimacy as well as formal legitimacy. This thesis has applied this framework to the CJEU and it role in the EU and its role in the development of the EU legal order. It has been shown that the tension between the competences of the Member States and those of the EU is nearly always present and manifests itself in different ways and in different places. In this thesis, I have argued that legitimacy is a complex concept to work with. In order to gain some clarity, it is useful to think about the different aspects of legitimacy. The distinction between social and formal legitimacy is interesting because it reminds us that legitimacy cannot be captured by simple statements. In relation to the CJEU, Lenaerts has developed a theory of internal and external legitimacy. Especially external legitimacy is important, because that basically defines the limits of what a court should do and what it should not do. These external limits of legitimacy make that courts need to define what exactly the law is. Subsequently, courts need to be aware of those limits and not overstep them. Determining what the limits are, however, is quite difficult because the court needs to balance the different interests of the parties involved. However, if it is done successfully and the court stays within those limits, it has the potential of enjoying social legitimacy as well as formal legitimacy. This thesis has applied this framework to the CJEU and it role in the EU and its role in the development of the EU legal order. It has been shown that the tension between the competences of the Member States and those of the EU is nearly always present and manifests itself in different ways and in different places.Show less
