European Union governments have delegated judicial powers to the European Court of Justice primarily to monitor national compliance with EU law and to solve problems of incomplete contracting, and they have granted the Court extraordinarily wide discretion to do so.
Member-state principals enjoy a comparatively small range of control mechanisms vis-a-vis the ECJ (e.g. the power of appointment, legislative reversal of Court judgments, and unilateral non-compliance with those judgments). The Court's broad discretion has allowed it to pursue an integrationist agenda with little regard to the preferences of powerful member states or to the likelihood of legislative overruling. In response to such judicial activism, however, EU member governments have recently been more reluctant to delegate extensive new powers to the Court, which enjoys no jurisdiction in the area of Common Foreign and Security Policy and only partial jurisdiction in the area of Justice and Home Affairs.
In Chapter 2 , we examined the patterns of delegation and discretion for the European Commission, noting the remarkably broad array of powers delegated to the Commission in both primary and secondary legislation, the numerous control mechanisms designed to limit the Commission's discretion, and the wide variation in both delegation and discretion across issue areas. In this chapter, devoted to the European Court of Justice, our task is made considerably simpler by the fact that the ECJ has been delegated powers almost exclusively by the treaties, and these powers delegated are almost entirely 'horizontal' rather than 'vertical' or issue-specific, the only exceptions being the second and third pillars of the Maastricht and Amsterdam Treaties, in which ECJ jurisdiction is either excluded or limited in a variety of ways.
In the first part of this chapter, therefore, I focus primarily on the provisions of the Union's constitutive treaties delegating powers to the European Court of Justice, which I argue fit closely the functions of monitoring, enforcement, and incomplete contracting emphasized in the principal-agent literature; and on the relatively small number of provisions providing for explicit member-state control or influence over the Court's behaviour, including the appointment procedure, the prospect of legislative overruling, and the unwritten but nevertheless real prospect of national non-compliance with ECJ decisions. Overall, I suggest, the Court enjoys a remarkable amount of discretion in comparison not only with the Commission but also with national constitutional courts.
Nevertheless, while the Court does appear to enjoy broad discretion in the traditional EC pillar of the Union, in recent years the member governments have shown far greater reluctance to extend similar