To What Extent Can the CJEU Contribute to Increasing the EU Legislative Process’ Transparency?

Alongside other actors such as the European Ombudsman, the Court of Justice of the European Union (CJEU) plays what looks like, at first sight, a key role in improving the transparency of EU legislative procedures. To take two relatively recent examples, the <em>De Capitani v. European Parliament</em> (2018) judgment was perceived as a victory by those in favor of increased transparency of EU legislative procedures at the stage of trilogues, as was the <em>ClientEarth v. European Commission</em> (2018) judgment regarding the pre-initiative stage. Both rulings emphasize the need for “allowing citizens to scrutinize all the information which has formed the basis of a legislative act…[as] a precondition for the effective exercise of their democratic rights” (<em>ClientEarth v. European Commission</em>, 2018, §84; <em>De Capitani v. European Parliament</em>, 2018, §80). Nevertheless, while the CJEU’s case law may indeed contribute to improving the legislative process’ transparency, its impact on the latter is inherently limited and even bears the potential of having a perverse effect. This article sheds light on the limits of the CJEU’s capacity to act in this field and the potential effects of its case law on the EU institutions’ attitudes or internal organization.

The Perverse Effect

This chapter investigates civil war duration and shows how culpable leaders respond to incentives to fight until the bitter end. It provides quantitative analysis that demonstrates civil wars last longer when culpable leaders are in power during the accountability era. It reviews a case study of Muammar Gaddafi during the 2011 Libyan revolution, which illustrates how the justice cascade has altered the decision calculus of culpable leaders. The chapter describes Gaddafi, who was unlike his peers during the impunity era, as he worried enough about an international prosecution to spurn the exile option. It recounts Gaddafi's decision to risk it all on the battlefield, which prolonged the Libyan conflict.

The Politics of Border Control in the United States

This chapter analyzes the shift in border policy in the United States. The shift evolved with what was framed as the surge of undocumented immigration after 1980, and the securitization of what had been a circulation of workers from Mexico to and from the United States. The perception of failure of immigration policy emerged not from a widespread reaction to a sense of failed integration, as in Europe, but to the increased political focus on the growth of the population of undocumented immigrants. The progressive reinforcement of the border, particularly after 1992, had the perverse effect of providing an incentive for migrants to remain on the US side in larger numbers than ever before. The growth of the undocumented population weighed on the political process in three ways. First, it fed a growing perception of failure of the adequacy of southern border controls. Second, as the issue of the border became politicized, it began to undermine stable understandings of policy within the policy network on immigration. Third, the border became a growing focus for intra- and interpolitical party conflict, and was accelerated by federal dynamics.