Just Hitting the Nail or Also the Thumb? The Court’s Deference to Member States

Abstract

The four freedoms are at the heart of the European integration project. Their proclaimed indivisibility contributed to the UK’s decision to withdraw from the EU, after limits to the free movement of persons were deemed unacceptable. Referring to Alexander Bickel’s analysis of the US Supreme Court, Zglinski’s ‘passive virtues’ refer to the practice of the European Court of Justice (the Court) to either grant member states’ executives and legislatures a margin of appreciation when regulating in the realm covered by free movement law, or to give their Courts scope for decentralised judicial enforcement. Such deference to the level of the member state, Zglinski argues, is the other side of the coin of the rise of the proportionality analysis, which empowers the Court to engage in far-reaching analyses of member states policies, entering genuinely political grounds under the ‘camouflage’ (p. 138) of a legal analysis.

The book offers a detailed and systematic analysis of the Court’s free movement case law, tracing the growth of these two kinds of deference to member state institutions. The positive, empirical analysis is followed in the text by a normative argument for deference to member states’ institutions. Thus, Zglinski’s book is a model example of legal scholarship engaging with social sciences’ quantitative methods to describe legal developments as well as making the more traditional normative arguments of the discipline. The discussion of how the Court does and should administer the reach of its case law, and where it should carve out a role for member state institutions, is extremely timely and relevant.

However, within this very convincing empirical and normative analysis, I struggle at times with the relatively mild interpretation of the findings. Is the extent of deference sufficient? Does the Court really meet its many challenges, given this empirical analysis, which uncovers a jurisprudence that is hardly guided by systematic rules and which seems haphazard? Zglinski’s comparison to the US experience, in particular, suggests that we may have to interpret the observations as hesitant steps in the right direction, falling short of what might, ideally, be required.

Given the empirical complexity of the analysis, I will summarise the findings of the book in some detail, before setting out the instances where I find the interpretation lacks bite. I embed this alternative, more sceptical interpretation in a short comparison with what we find in the US, building on the author’s comparisons with the US Supreme Court. I conclude by arguing that without contestation and critical discussion of the right balance, the European Court is not in a good position to successfully master the many challenges it faces.