The Court of Justice as EU’s Informal Agenda-Setter: the Judicialization of European Audiovisual Policy

“Judicialization” is the process by which judicial organs, through their case law, influence the agenda of non-judicial actors. This article seeks to investigate how and to what extent the ECJ has affected the development of EU policy in the field of audiovisual media. To this end, regard will be had to three distinct stages in the evolution of EU media policy where the ECJ’s influence has been paramount: i) the adoption of the Television Without Frontiers Directive, ii) the amendment of that directive’s rules on jurisdiction, and iii) the codification of the abuse of rights doctrine in Directive 97/36/EC and in the Audiovisual Media Services Directive. For each stage, this article will examine the path dependency between key ECJ holdings and the contents of EU legislation, preparatory acts, and significant Commission documents. Finally, counterfactual analysis will be employed to test the ECJ’s suggested role as informal agenda-setter for the development of EU media law.