This chapter focuses on transnational solidarity conflicts, that is, a new type of distributional conflict which encompasses both quarrels about the adaptation of domestic welfare systems to EMU requirements and the distribution of costs and benefits between Member States. It seeks to understand how constitutional accountability may contribute to constructive management of such conflicts. In addressing this question, the chapter focuses specifically on the accountability goods of openness and publicness. It analyses the case law of the German and the Portuguese constitutional court as well as of the Court of Justice of the EU (CJEU) following the Eurozone crisis. Domestic courts applied mostly a deductive approach to accountability in the EMU and thereby also tended to ‘nationalise’ transnational solidarity conflicts rather than acknowledge their European dimension. By contrast, the CJEU made the European constitutional dimension visible, thereby contributing more to openness. However, by focusing mostly on economic constitutional values, while only hesitantly applying other constitutional values such as social rights as a benchmark for substantive accountability it ensured publicness only to a limited extent. In conclusion, both domestic and European constitutional accountability mechanisms did not ensure meaningful accountability in the sense of concretizing and re-negotiating constitutional common goods.

This chapter provides the volumes general conceptual framework. It begins by addressing why new approaches to accountability are needed, arguing that accountability literature has reached a stalemate as a result of an impasse between deductive and inductive approaches to accountability in the EU. It then argues that overcoming the stalemate requires developing a generalised framework of what accountability is for, deriving four accountability goods to be used in subsequent chapters. The chapter argues that each of the goods can be delivered in procedural or substantive ways, focusing either on the process by which decisions are made or the substantive worth of decisions themselves. The chapter concludes by discussing the strengths and weaknesses of both varieties of accountability before mapping out how the concepts will be applied across policy fields and institutions in subsequent chapters.

EU law has a complex relationship with the concept of peremptory norms. On the one hand, the case law of the ECJ shows a pattern of ‘avoidance’ of peremptory norms of general international law, namely a reluctance by this Court to consider the legal effects of such norms in cases where they may be relevant. This is clear in the Kadi and Front Polisario/Western Sahara sagas. On the other hand, EU law has ‘assimilated’ the concept of peremptory norms more than it may seem at first sight. Indeed, it may be affirmed that EU law has its own system of peremptory norms. Such as system is based on norms and principles that have some of the defining features of the peremptory norms of general international law (including a system of enhanced responsibility for serious breaches of such peremptory norms). While, in analytical terms, this characterization does not matter much for EU law, it is certainly critical to the proposition that general international law does not exclude the existence of a regional jus cogens.

This chapter studies the role of the EU and EU Member States in relation to disasters and land-use planning. The work analyzes how land-use planning can evaluate and manage risks to avoid disasters, paying special attention to European use of the precautionary principle. The analysis uses especially, but not only, the example of the Spanish legal system, taking into account its inclusion in the more general EU legal system. The study also considers private and public liability in relation to disasters, underlining how, in recent years, EU law and European caselaw have created a common framework based on the right to good administration. The study includes a reference to the famous case decided by the Dutch Supreme Court at the end of 2019 ordering the Government to reduce greenhouse gas emissions in accordance with the duty of due diligence or due care. Finally, this chapter explores possible consequences of maladministration when taking planning decisions in relation to possible public liability, using two real Spanish cases as specific examples.

Chapter 5 investigates the availability of external review under the new economic governance of the Eurozone. It shows that the transformation of the EU’s powers in the economic and fiscal fields have not come together with a parallel intensification of judicial scrutiny by the Court of Justice. It also finds that, considering the Court’s current case law and the conceptual frameworks that continue to structure its action (starting with the concepts of challengeable act and legal effects or the rules on standing) a shift in approach is quite unlikely. The result is a profound disconnect between the evolving nature of law and governance in the realm of EU economic policy and its judicial apprehension by the Court of Justice, an inappropriate level of review and a widening accountability gap. It notes that several bodies have sought to instil a certain dose of review, without compensating the lack of judicial review however. It enjoins the Court to lift the constitutional uncertainty produced by the new economic governance of the Eurozone, to come to terms with what standard economic governance has progressively become and to make sure that supranational judicial scrutiny keeps up with the evolving powers of the EU.

The chapter deals with the assignment of cases to reporting judges and judicial formations at ECJ. EU lawyers generally consider the ECJ’s system of case assignment to be one of the most problematic features in the court’s decision-making process. They perceive a strong tension with the right to a fair trial. The aim of this chapter is to understand why the court maintains a system that has been under severe attack for a long time. By closely analysing the practice of case assignment between 2003 and 2019, charting assignment profiles of individual judges, the chapter argues that the ECJ’s assignment system is a key mechanism for the court’s institutional success. It has allowed the court to maintain a sense of common purpose, a strong and persistent idea of its mandate as a guardian of the effectiveness and primacy of EU law. The chapter identifies three key functions case assignment performs. First, supporting jurisprudential stability and continuity by creating an elite group of judges who writes the bulk of the most important ECJ decisions. Second, integrating new ECJ judges through gradually assigning them more difficult cases thereby structuring a learning process for becoming a full-fledged ECJ judge. And third, the ECJ’s system of case assignment has helped to maintain what is generally lost in courts of the ECJ’s size: a place where all twenty-seven ECJ judges and eleven Advocates General are informed on all incoming cases, jointly engage in systematizing the ECJ’s case law and framing the court’s agenda.

The chapter focuses on the judicial mobilisation of the trade unions before the European Court of Justice in the well-known Viking and Laval cases. It asks how to use the personal archives of the EU lawyers to better understand litigation strategies, by analysing the digital archives (emails and attachments) of a trade union lawyer from the European Trade Union Confederation (ETUC) involved in the mobilisation. Firstly, the chapter discusses the analytical benefits and methodological problems raised by this rare kind of empirical material that brings new qualitative insights on the practices of the litigants behind the official scene. Especially, this material asks ethical and legal questions around confidentiality and privacy that should be addressed. Secondly, thanks to these digital archives, the author brought a new understanding of the issues at stake in the Viking and Laval cases, by focusing on two examples: the judicial lobbying of the Swedish trade unions in the Laval case, and the role of the trade union legal experts in framing the legal and political issues of the two affairs.

Newspapers as the main media of political coverage continue to be primary outlets for reports and opinions on collectively binding decisions. Following a quantitative research strategy, this chapter introduces a new methodological approach that allows us to systematically capture media attention and public salience of court decisions. It provides insight into a new dataset for newspaper coverage of more than 4,000 CJEU decisions in eight EU quality newspapers. The chapter describes the data collection process, the structure of the data, and the opportunities for quantitative analysis. Moreover, it emphasizes the general applicability of this methodological approach for a large number of court cases across a longer time period. The collected data offers new insights into media attention to CJEU cases and various opportunities for future analysis. The contribution also reflects on limitations, strengths, and weaknesses of this quantitative approach of studying the CJEU, compared to other approaches presented in the volume.

Chapter 2 sets the descriptive, theoretical, and methodological stage for revisiting the behavior of national courts in the process of European integration. It describes the central institutional mechanism through which national courts can partner with the European Court of Justice (ECJ) to apply European law, exercise de facto judicial review, and promote integration: the “preliminary reference procedure.” It summarizes how national courts’ use of this procedure has been theorized by the prevailing account of the judicial construction of Europe: the “judicial empowerment thesis.” And it highlights suggestive qualitative and quantitative evidence that this thesis may conceal as much as it reveals. The chapter concludes by outlining the fieldwork strategy deployed to revisit the judicial empowerment thesis in Chapters 3 and 4 and probe whether national judges have harbored more diffuse and persistent resistances to European law, the ECJ, and institutional change than has hitherto been acknowledged.