Contested authority: explaining supreme and constitutional court resistance to an expanding CJEU

Abstract

The relationship between the Court of Justice of the European Union (CJEU) and national governments is a critical issue in contemporary European law. This thesis explores how and why national governments within the European Union resist or backlash against the authority of the CJEU, and the implications of such actions for ensuring a balance between legal supremacy and national sovereignty. The research focuses on three sensitive areas: asylum policies, judicial independence, and the Data Retention Directive. The analyses demonstrate that resistance takes various forms, including delays in implementation, continued application of contested practices, and attempts to negotiate changes to EU legislation. Factors driving resistance include national security concerns, public opinion, the principle of subsidiarity, and different legal traditions. Implications of resistance include undermining uniform application of EU law, legal uncertainty, weakening fundamental rights protection, and challenging the EU's credibility and legitimacy. The thesis emphasizes the need for constructive dialogue, compromise, clearer delineation of competences, safeguards for national constitutional identities, and targeted legal frameworks. Future research directions are also discussed.