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The European Court of Justice and the Policy ProcessThe Shadow of Case Law$
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Susanne K. Schmidt

Print publication date: 2018

Print ISBN-13: 9780198717775

Published to Oxford Scholarship Online: February 2018

DOI: 10.1093/oso/9780198717775.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 February 2020

The Interaction of Judicial and Legislative Policymaking

The Interaction of Judicial and Legislative Policymaking

Chapter:
(p.93) 4 The Interaction of Judicial and Legislative Policymaking
Source:
The European Court of Justice and the Policy Process
Author(s):

Susanne K. Schmidt

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198717775.003.0004

Chapter 4 systematizes the different ways that judicial policymaking can have an impact on European legislation. Identifying the codification of case-law principles in secondary law contributes to research on the EU in two important ways: it shows how EU legislation is embedded in case-law development, and that the impact of case law cannot be reduced to the question of compliance with single rulings. A differentiation is made between several types of judicial ‘shadow’ over the legislative process. Then the Services Directive and the regulation on the mutual recognition of goods are analysed. The principles of case law that were motivated by the specific circumstances of individual cases constrain the design of general rules. Secondary law cannot modify constitutional principles. At best, the legislature can hope to signal its political preferences to the Court.

Keywords:   Interaction of judicial and legislative policymaking, EU policymaking, codification of case law, Services Directive, regulation on the mutual recognition of goods

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