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|a The concept of ‘backlash’ has gained significant prominence in international legal discourse in understanding the dynamics between supranational legal and institutional regimes and their constituent states. When a state shows resistance towards an international legal regime and its court, the nature, extent, purpose, means, and actors involved in the process can vary significantly. As the term ‘backlash’ evolves from a colloquial expression to a technical term in international law, its consistent application to different forms of national resistance becomes increasingly important. As to how backlash can be distinguished from other forms of resistance against international courts, Madsen et al. have developed a comprehensive model that categorizes resistance as either stronger (backlash) or weaker (pushback) based on well-defined criteria. Putting the CJEU as a regional international court (although with distinct characteristics) into the focus, this paper examines where national resistance to the CJEU may be positioned within Madsen et al.’s conceptual framework. Of course, resistance or non-compliance with the CJEU varies dynamically across time and space and in terms of actors. However, in recent years, a form of resistance that had previously only been speculated about has become a reality: on a few occasions, national constitutional courts (or supreme courts) have ruled that a judgment of the CJEU exceeded the powers conferred upon it, overstepping its competences. This paper situates such instances of national judicial resistance within the conceptual framework established by Madsen et al. Additionally, it explores contextual factors that provide valuable insights for a comprehensive analysis.
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