A Spoonful of Sugar: Deference at the Court of Justice

Abstract

This article analyses the European Court of Justice's strategic use of deference as a resilience technique in the preliminary reference procedure. It focuses on the strategic potential of using deference in two scenarios: first, when the Court uses teleological interpretation or expands the scope of the EU legal order and, second, when it declares national measures incompatible with EU law. The findings indicate that the Court is more likely to use deference when expanding EU law and less likely to defer when it declares national measures incompatible with EU law. The article challenges commonly held assumptions regarding the use of deference. First, the findings substantially qualify accounts linking the increase of deference to the maturity of the EU legal order and a certain halt of judicial activism. Deference allows the Court to explore new frontiers of EU law, suggesting that although the legal order might have matured, the Court does not perceive the project of legal integration as completed. Second, the article defies claims that deference is used by the Court as a ‘weapon of restraint’.