The European Union and its Court of Justice have been studied almost ad nauseam. Legal scholars and political scientists have indeed written much on the impact of the Court on the Union, and especially how its case law has transformed the legal system. Equal attention has been paid to the interaction between judges, national governments and other interlocutors, as well as to the standards of behaviour for this ‘least dangerous branch’. The record is less clear, however, on whether the EU’s judiciary has been an effective agent for societal change, resembling a scientific lacuna that a paper presented at the upcoming Leiden conference aims to fill. This blog post sketches the paper’s contours, offering a teaser of what will be divulged.

The gambit

The Leiden conference is dedicated to the theme ‘Courts as an Arena for Societal Change’, and links up with cross-university research on conflict-solving institutions. Obviously, the Court of Justice of the European Union (CJEU) qualifies as one of the latter. Beyond solving conflicts however, from the existing literature, it becomes less clear to what extent the CJEU has been an effective agent for societal change. We know that the Court’s pronouncements have had an impact on the law – and naturally so. Its output has also influenced or modified political decisions and strategies at the national level, even when domestic interlocutors have been found to anticipate and contain expected implications, often trying and managing to avert too radical changes to sensitive pieces of legislation. Yet, what piques the author’s curiosity above all is to what extent the Court has genuinely been able to ‘deliver’ in this respect, something still left unaddressed in the latest studies. In other words, how far did it actually manage to go beyond? And might it be said that, due to its case law, something has really changed at the society level – changing perceptions, triggering different patterns of behaviour, a willingness to live up to adjusted norms in reality? Or, to put it in more clichéd terms, was merely the ‘law in the books’ altered at the Member State level, or did the ‘law in action’ undergo any modifications too?

Definitions and method

By moving away from purely legal appraisals, the current paper is for sure not alone in wrestling with the key concept of ‘societal change’. Various interpretations are likely – and inevitable. Thus, a broad notion may be preferable, even when running the risk of increasing fuzziness and inviting Babylonic misunderstandings. Arguably indeed, it constitutes a novel ambition to survey to what extent the CJEU has been able to effectuate more general developments within countries, not limited to statutes and jurisprudence, political and judicial actors, but giving rise to a broader momentum – transforming ideas, habits or preferences of different groups and communities, either in a single Member State or in Europe more widely. Convincing evidence would have to have an empirical, or at least have a legal-empirical foundation – i.e. data collected not necessarily via social science methods, but nevertheless acceptable for such audiences. To that end, a law-in-context approach, fine-tuned in various other quarters, has been adopted. It is complemented by elements from the causal process tracing method, in order to identify with greater accuracy which phenomena may be properly attributed to the dealings of the Court.

Case studies

The question of representativeness has plagued scientific inquiry no less, and will continue to do so, meaning that even the most credible theories may all too easily be (dis)proven for being overly tied to the fields analysed. In the literature on EU compliance for instance, stressing this simple truth has helped to expose leading perspectives as only ‘sometimes-true theories’. In comparison though, the gambit seems easier in light of the aims of the present paper, whereby a series of plausible insights should already suffice to falsify the main theorem: either the CJEU succeeds in effecting societal change, or it cannot (yet) be fully asserted whether it ever does so. Nonetheless, the ‘excavation sites’ must be cautiously selected. The choice has been made to first focus on a traditional domain wherein the Court has allegedly managed to bend the rules in its favour in the past decades, correspondent with its specific agenda of realising a transnational policy. Subsequently, an analysis was made of the contrasting, deliberately less-likely field of LGBT rights, where the legal instruments to be interpreted and applied are overall relatively younger, as is the CJEU’s case law. The latter holds by and large for the third and last terrain surveyed, that of environmental rights, which has recently witnessed a flurry of litigation fuelled by global trends – with the judicial outcomes potentially sparking grass-roots activism in turn.

(Juxtaposing) Potential findings

Subsequent to these individual explorations, the paper places the domains in a comparative perspective, aiming to discern possible patterns and draw common inferences. Whilst the foregoing set-up should guarantee verifiable results, the usual constraints of space and time do mean the sketch ultimately has to remain impressionistic. Moreover, it remains very well possible for the (tentative) conclusions in one area to contradict those that may credibly be drawn elsewhere. By connecting the current (cumulative and empirical) state of play in the Union back to the original pronouncements of the CJEU, the paper eventually demonstrates how the Court can, at least in particular circumstances, exert a marked yet variable influence. It appears able to sometimes incidentally, sometimes structurally, recalibrate the views or conduct of societal actors in actual practice.

More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.