Implementing Supranational Justice: Policymakers and the European Court of Justice

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AbstractThis study examines the impact of the European Court of Justice- the best case ofpowerful supranational justice- on the health services of Western Europe- the best casesof welfare states, politically salient and deeply wedded to their domestic order. Since1998, the European Court of Justice (ECJ), the top court of the European Union (EU) and"the most effective supranational body in the history of the world" (Stone Sweet2005:108), has begun to incorporate health and social security into the liberalizing EUsingle market. Existing studies have focused on explaining this case of Europeanintegration and on doing preliminary maps of power and responsibility in EU health carepolicy. This project goes beyond those studies and takes this development as a case of theimpact of supranational justice on policy and implementation. It asks (1) what variance isthere in the concrete policy responses of EU member states to the decisions of the ECJ oncross-border mobility of patients and labor regulation? And 2) what explains the variationin EU member state responses to the developing EU law?Answering the first question requires research to identify what "compliance"means to governments in different states and how much of it there has been. Thisinvolves governments' interpretation not just of EU law but of the likely actions of thedomestic courts that interpret and apply most EU law. For the second question, there aretwo clear hypotheses derived from the literature on the impact of judicial decisions onsociety. One is a political hypothesis, that the success of judicial decisions is a function ofthe existing "support structure"- that decisions, without interest groups who will supportand take advantage of implementation, will have very limited impact. The other isinstitutional, drawn from the literature on "Europeanization". It identifies the problem asa goodness-of-fit problem; states will comply faster and better with decisions that requireless change to existing institutions.The study will be conducted with legal elite-level interviews and legaldocumentary analysis in Spain, France, Germany and the United Kingdom. The countrieshave been selected because they represent a range of relevant variables- legal systems,health systems, bureaucracies, and historic relations with EU law and policy. This playsto the strengths of qualitative case studies in a situation with many hypotheses and fewreliable indicators. Policymakers' perceptions of their legal powers and constraints arecrucial, and best accessed through interviews and research in the relevant law.The intellectual merit of the proposal lies in its approach to the issue ofjudicialization in the EU and beyond. For the EU, it contributes to the analysis both of therising power of the ECJ and of its actual impact- an impact that includes both extendedEU powers over the welfare state, and the potential legitimation or delegitimation of theEuropean project. More broadly, it should contribute to the small literature on theimportant relationship between courts and bureaucracies, identifying the effects of courtson implementers. The broader impact will come in two ways. First, European Unionlaw and the welfare state is an important topic with ample potential to engage incontemporary European debates. Second, the project incorporates student research fromthe undergraduate to doctoral level, exposing students to sociolegal research andEuropean politics.