Abstract
Filing written observations before the European Court of Justice (ECJ) is one of the most direct channels through which private actors, national governments, and the European Commission shape legal rules. Historically, the Commission's legal service has leveraged this route by supplying the Court with its preferred interpretations of EU law, asserting is position as `guardian of the Treaties'. Yet recent scholarship suggests that member states’ observations and private actors influence the Court’s decisions. In this article I explore this tension by asking: under what conditions do private actors and governments displace the executive as the main source of court rulemaking? Drawing on newly available full-text observations data between 2022 and 2025, this article examines whose proposals — those of the Commission, national governments, or private parties — come closest to the Court’s operative part. The results show that the Commission’s presumed interpretive primacy does not hold in recent years. In particular, member states are almost as likely as the Commission to propose legal rules closest to the Court’s operative part. Private actors’ proposals are closest in more than a third of cases, although individual rights claimants specifically are less likely to be closer.
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