Legislative responses to supranational courts: The German Bundestag and the European Court of Justice

Although much scholarship exists to demonstrate that national parliaments in Europe are increasingly attuned to the legislative role played by their national courts, very little research has examined the relationship between European parliaments and the supranational court that now exists above national systems in European Union (ELT) Member States, the European Court of Justice (ECJ). This dissertation investigates one EU national parliament, the German Bundestag, and its relationship to the ECJ. Are parliamentarians attuned to the jurisprudence of this supranational court? Do they account for its decisions - and even attempt to anticipate them - as they draft national legislation? I trace the use of ECJ equal treatment decisions in the German Bundestag and use these case studies to evaluate hypotheses about the circumstances under which parties anticipate ECJ decisions. I find that, contrary to the established literature on the interactions between national parliaments and national courts, governing majorities do not engage in anticipatory behavior vis-a-vis the ECJ, nor do they feel threatened by it. The Government's lack of attention to ECJ cases was noted even when the ECJ case was well-publicized and the decision meant sweeping changes for German law. By contrast, parties in the legislative minority view the ECJ as a useful ally and make extensive strategic use of its decisions to secure important partisan victories in parliament, policy victories they may not have won without the Court's decision. I also find evidence that national court decisions exert more influence over parliamentarians than decisions of the supranational court. Findings from the case studies are supplemented with interview data collected at the German Bundestag in Berlin. The interview subjects largely confirmed the findings in the case studies, but suggested that the major obstacle in Bundestag-ECJ relations was the perceptual distance felt between the two institutions, a distance not noted in the Bundestag's relationship with German national courts. Overall, my findings fit well with the established literature on legislative judicial relations (especially the relationship between the Bundestag and Germany's Federal Constitutional Court) but reveal that judicialization from the supranational court to the national legislature is generally weak.