The ECJ as Agenda Setter in European Audiovisual Media Policy

“Judicialization” is the process by which judicial organs, through their case law, influ- ence 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 audio-visual 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 Audio-visual 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 signifi- cant 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.