PluriCourts Lunch Seminar: A framework for the analysis of context responsive decision making of the European Court of Justice

Lunch Seminar with Urska Sadl, professor of law at the European University Institute and at iCourts Centre of Excellence for International Courts in Copenhagen. 

The article establishes a comprehensive framework, in which it is possible to develop a conceptually refined and empirically accurate understanding of context responsive decision making of courts. The latter refers to a broadly accepted view that courts interpret the law and decide cases mindful of extra-legal (social, economic or political) factors. Scholarship has fashioned sophisticated theories to explain the law-politics relationship, and several (qualitative and quantitative) studies attest to their overall validity. So far, however, there is no metric to measure the scope and the quality of interaction. Thereby, one could argue, the studies have barely made a dent in the understanding of how and to what extent the legal responds to the societal. The present analysis grapples with the challenge to advance beyond general and imprecise associations and single examples.  

Central to the framework is the concept of discreet outcomes. The main characteristics of discreet outcomes is that a judicial decision about the legal claim (decision in concreto) conflicts with the reasoning that supports this decision or the Court’s interpretation of the law (decision in abstracto). The tension is the result of an attempt to align legal reasoning with an opposing political or other dimension, which will strain the logic of legal justification. The tension will be reflected (and hence, possible to measure) as either doctrinal or methodological inconsistency.  

The article clarifies the framework (and its application) on cases, decided by the European Court of Justice (the Court) in the area of free movement of persons. It proceeds in three steps. The first step identifies the legally relevant parameters of judgments. The parameters reflect the legal characteristics of selected cases and the Court’s approach. Moreover, they directly relay the outcomes in the concrete and the abstract sense. 

The second step consist of the categorization of the selected judgments according to pre-established values, which each parameter can assume. For example, does the Court adopt a broad or a narrow interpretation of the legal sources? Does it carry out a strict or a weak proportionality test (or no test at all)? Does it uphold (partly or fully) the Member State measure, which the applicant is challenging? Does it rule in favor of the individual applicant (or not)? Does it defer the final decision to the referring court (minimally, partly, of fully) in the preliminary reference procedure? How does the judgment affect the autonomy of the Member State and the competence of the European Union (restricts, enhances, does not affect)? 

The third step determines the frequency of discreet outcomes based on the interaction of the parameters. If the parameters interact in unexpected and illogical way, the outcome of the judgment is categorized as doctrinally or / and methodologically inconsistent. To illustrate, if the Court interprets the rights of the individuals broadly and considers that the national measure, which restricts these rights, is disproportionate, but does not rule in favor of the individual applicant in the case in the main proceedings, the outcome is inconsistent. 

The analysis reveals that discreet outcomes are rare, and that among them methodologically inconsistent outcomes are more common than doctrinally inconsistent outcomes. The discussion briefly considers why the Court would be more willing to relinquish its methodology than the coherence of legal justification. 

The article contributes important nuance to the understanding of judicial behaviour by unpacking the varieties of interaction between courts and their environment, and the use of established judicial tools to meet legal (normative) and societal demands. The potential effect of discreet outcomes on the stability of the legal system gives a degree of urgency to the analysis.  


PluriCourts Lunch Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.

Published Sep. 4, 2020 9:23 AM - Last modified Oct. 30, 2020 8:43 AM