The Court of Justice of the European Union and policy change: Analysing the influence of the CJEU on Justice and Home Affairs policies

The extent to which supranational courts, such as the Court of Justice of the European Union (CJEU), generate policy change, and can influence European Union (EU) legislation and national legislation has been an issue of long-term debate. This research endeavours to contribute to the policy and law literature, by analysing how CJEU jurisprudence has influenced key Justice and Home Affairs (JHA) policy outputs, before and after the 2009 Treaty of Lisbon (Trauner and Ripoll Servent, 2014:1142-1143). The puzzle that this PhD thesis seeks to address is whether, and to what extent, the CJEU has influenced policy change within the Area of Freedom, Security and Justice (AFSJ). The central guiding research question is as follows: To what extent, and under what conditions, does the Court of Justice of the European Union (CJEU) influence Justice and Home Affairs policy outputs?

The CJEU has often been considered to be a 'driver' of European integration, due to its political power and its judicial activism (Terpan and Saurugger, 2018: 1; Martinsen, 2015: 2; Alter, 2009; Stone Sweet and Brunell, 2012; Weiler, 1991). Some scholars have argued that supranational courts have become powerful political institutions that are able to drive policy change (Alter, 2014; Kelemen, 2013; Cichowski, 2007; Stone Sweet, 2000). Other scholars have argued that the political power of supranational courts has been overstated, and that these courts are constrained by political, administrative and constitutional factors (Martinsen, 2015: 25). The question of whether supranational courts are able to drive policy change (resulting in changes to the core of the policy and changes of secondary order) addresses the political impact of judicial decisions, and the transfer of decision-making powers to a non-majoritarian institution (Martinsen, 2015: 23).

This research aims to go beyond the narrow and oversimplified view of the impact of courts in the literature. This PhD thesis will use a constructivist (sociological institutionalism) approach. This project will examine secondary EU legislation, CJEU case law, and findings from semi-structured elite interviews with civil servants involved in decision-making processes in key JHA sub-policy areas. The field of Justice and Home Affairs is a sensitive area of policy-making. JHA policies impinge upon the sovereignty of EU member states and the human rights and mobility rights of nationals and third country nationals (TCNs) (Wolff, 2015: 129-130). The influence of the CJEU on Justice and Home Affairs policies remains under-explored. Much of the existing literature (Ripoll Servent in Ripoll Servent and Trauner, 2018; Martinsen, 2015: 20-23) has focused on one specific area in isolation, such as asylum or social policy, which has limited the ability to draw wider patterns across JHA policy domains. For this reason, this research will focus on four main JHA sub-policy areas: immigration (family reunification), border control (the Schengen regime), asylum (the Dublin system), and data protection. The timeframe of this research is from 2005 to 2017. In this research, judicial influence on EU policy outputs occurs when interpretations generated by a CJEU judgment are incorporated into the final policy outputs, which results in political integration (Martinsen, 2015: 9). Policy outputs refer to EU secondary legislation that has been proposed by the European Commission, and adopted by the European Parliament (EP) and the Council of the European Union (Martinsen, 2015: 6).

The research methods used in this PhD thesis are qualitative. This study will make use of the value of a comparative case study method. Three additional methods have been selected as constituting the empirical framework of this study: document analysis, process tracing, and semi-structured elite interviews.