This chapter first introduces the main debates on the legitimacy of judicial review. It then turns to the most problematic examples of non-accountable decision-making that recently took place in the EMU, causing problems for individuals accessing fora of legal accountability, most visibly in the reduction of the protection of fundamental rights. The purpose of this exercise is to offer a sneak-peek preview of what went wrong, how (the lack of) judicial review contributed to this problem, and why traditional arguments against judicial review do not work in this context. Given that the EMU is an area characterised by high redistributive effects coupled with a wide discretion on the part of decision-makers, courts are in the perfect position to ensure that such decisions meet the Treaty objectives of the common interest. Any review of decisions in the EMU entails two duties. First, the starting point for courts must be an assumption of a full review. Second, decision-makers have an extensive duty of giving reasons for their decisions and put to the court the arguments on the nature of their discretion and how they used it. The chapter closes with conclusions on how the proposed framework will be used in the book.

Very little is known about the role litigating parties play in the cases ending up before the CJEU through the preliminary reference procedure and greater empirical insight into how and why individuals and interest groups use (or don’t use) EU law in national courts allows us to better gauge whether European law can truly be a ‘shield and a sword’ or whether it remains a ‘hollow hope’. This chapter describes the use of a bottom-up approach in studying the dynamics behind litigation before the CJEU by drawing on research conducted among litigating parties that saw their cases referred to Luxembourg. By following the cases from generation-to-conclusion research can shed new light on the proper social and political context of each case. Going beyond the legal interpretation and surface-level statistics, and by combining in-depth semi-structured interviews with other sources like legal documents, newspapers articles and personal documentation of parties involved, this approach is able to unearth the ways in which cases reach the CJEU. This chapter shows how the triangulation of insights from different sources and actors allows researchers to reconstruct the social processes that ultimately lead to potentially groundbreaking CJEU judgements, thereby uncovering the micro-foundations of EU law mobilization.

It is an understatement to say that law is important in the process of European integration. Understanding the EU without understanding the particular (and peculiar) role that law has assumed in the first decades of European integration is impossible. By making it legally impossible for Member States to resist the application of both specific norms of EU law and the general objectives of European integration, EU law gets European integration ‘done’. The CJEU’s understanding of the EU legal order as something that is hierarchically superior and autonomous from national legal systems, however, irritates national legal systems, which are increasingly articulating limits to the process of ‘integration through law’. This tension has become more pronounced as the EU moves into policy domains that are politically more salient and touch on Member States’ core powersThis indicates a fragility at the core of an EU that is, fundamentally, a legal order.

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.