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Chapter 4
Judicial Politics
Figure 4.1 A collective action problem in the establishment of a common market
[Figure in here]
Political theories of constitutions and courts
The EU legal system and the European Court of Justice
In this hypothetical example, the EU member states agree to establish a common
‘Constitutionalization’ of the European Union
market, by removing barriers to the free movement of goods and services between them – in
Penetration of EU law into national legal systems
other words, as in the Treaty of Rome. However, without a constitution, the member states
Explanations of EU judicial politics
are free to decide whether or not to implement this agreement, and in making this decision
Conclusion: ‘unknown destination’ or emerging equilibrium?
each government calculates the costs and benefits of their available options. Suppose the cost
for each government of implementing the common market is €10 million; for example, these
could be administrative costs plus job losses in some domestic industries. Also, suppose that
No treaty, constitution, piece of legislation, or executive decision can account for all possible
if one state opens its markets each state will benefit €7 million from the extra trade,
developments. They are always ‘incomplete contracts’. As a result, the actors responsible for
economies of scale and market efficiencies. Hence, if both states open up their markets, each
enforcing these contracts in democratic polities – the courts – can often use their discretion,
will benefit €4 million: (7 x 2) – 10. This would be the best (‘optimal’) collective solution, as
and hence shape policy outcomes beyond the intention of the legislators. This battle, between
it would produce the greatest total benefit: €8 million (cell IV).
the intentions of legislators and the discretion of courts, is what political scientists call
However, this outcome is unlikely. Instead, each state will see that their ‘best strategy’
‘judicial politics’. Judicial politics is particularly interesting in the EU, where the flexible
is to not implement the agreement. For example, if state A chooses not to implement the
‘constitution’ of the EU and the nature of the EU’s legal instruments allows the European
agreement, either state B will implement the deal, in which case state A will gain €7 million
Court of Justice (ECJ) and national courts a high degree of discretion. To help explain how
(cell II), or state B will not implement the deal, in which case state A will lose nothing (cell
‘judicial politics’ works in the EU we shall first look at some general theories in political
I). Conversely, if state A implements the agreement, state B can simply choose not to
science of the role and power of courts.
implement the agreement, gaining €7 million while member state A loses €3 million. To
minimize the risk of losing, and to prevent the other state ‘free riding’, the only option for
state A is to not implement the agreement. Consequently, if each state pursues their best
Political theories of constitutions and courts
strategy, neither state will implement the common market. But, this is a ‘sub-optimal’
outcome as the EU as a whole will miss the collective benefits of cooperation (cell IV). The
A common argument in political science is that constitutions are created to resolve ‘collective
prisoners’ dilemma hence illustrates that in a constitution-free world, it may be in the
action problems’ (Buchanan and Tullock, 1962; Taylor, 1976; Ostrom, 1990). A simple way
collective interest to cooperate, but it is often in individuals’ interests to ‘defect’.
of illustrating why collective action is often problematic is the so-called ‘prisoners’ dilemma
However, this collective action problem can be overcome if the parties set up a ‘rule of
game’ (Luce and Raiffa, 1957; Hardin, 1971). A version of this game using the example of
law’.
the EU is shown in Figure 4.1 (cf. Ordeshook, 1992, p. 166).
mechanisms (courts) for punishing defection, cooperation can be enforced. In our example, if
By establishing that agreements are binding on participants, and by creating
an EU rule of law (a quasi-constitution) exists, a member state not implementing the common
market can be challenged before the ECJ. In this situation, both states have incentives to
cooperate, which produces the optimal outcome.
1
2
Nevertheless, this solution requires that enforcers of law (the courts) are independent
Weingast, 1996, pp. 172-4). The model assumes that the legislature, the executive and the
from the legislative majority. If a legislative majority is able to determine whether or not
court are unitary actors in a unidimensional political space, with symmetrical and single-
there has been a breach of the law, or can ignore a court’s decision, the incentive for parties to
peaked preferences, and ideal policy positions at points L, E and C, respectively (see Chapters
abide by the law (to ‘cooperate’) is reduced (Moe, 1990). Hence, for the rule of law to be
2 and 3 for more explanations of spatial analysis). Legislation X is an agreement between the
credible it must be supported by a ‘separation of powers’ between the judiciary and the
legislature and the executive. However, if the court is free to interpret the legislation when
legislative majority (Dicey, 1939 [1885]). As Madison, Hamilton and Jay (1987 [1788], pp.
cases are brought before it, it will try to move the political outcome towards C. When the
438-9) extol:
opportunity arises, the court moves the policy outcome to point Y. This is equally as close to
the ideal point of the executive as position X, so the executive is indifferent between the
If it be said that the legislative body are themselves the constitutional judges of their own
original piece of legislation and the new court interpretation. However, if it is relatively
powers … the Constitution could … enable the representatives of the people to substitute
costless for the executive to initiate new legislation, the executive will propose legislation that
their will to that of their constituents. It is far more rational to suppose that the courts were
amends the court’s ruling, at position E. The legislature would then agree to this new
designed to be an intermediate body between the people and the legislature in order … to
legislation, as E is closer to L than Y. Hence, because of the court’s discretion, and the
keep the latter within the limits assigned to their authority.
executive’s collusion with the court, the final policy outcome is E rather than X.
The assumption here is that this separation of powers works because judges are neutral
political actors: they exercise ‘judgement’ instead of ‘will’ (ibid., p. 440). Put another way,
Figure 4.2 Court discretion in a separation-of-powers system
[Figure in here]
the rule of law requires that judges simply follow the formula: ‘Rules x Facts = Decisions’
(Frank, 1973).
An implication of this type of analysis is that a court’s discretion varies inversely with
But judges do have ‘wills’, and constitutions and laws are sufficiently flexible
the probability that new legislation can be introduced to repeal its decisions (Ferejohn and
documents to enable them to exercise these wills. As the judicial review of legislative acts
Weingast, 1992; Cooter and Ginsburg, 1997; Vanberg, 1998), and with the level of
has evolved, and as societies have become more litigious, judges have become increasingly
information the legislators have about the court’s preferences and the probability that it will
involved in making choices between different ideological positions. Consequently, ‘judicial
receive cases that allow it to act on these preferences (Rogers, 2001; Rogers and Vanberg,
preferences’, and the court judgements that result from these preferences, are crucial
2002). As the ease of adoption of new legislation and the information about the likely action
determinants of the final political outcome of the policy process (for example Cohen, 1992).
of the court goes up, the discretion of the court goes down. As a consequence, courts have
This realization has spawned a growing literature on the comparative study of ‘judicial
most potential power where there is a low level of information about the likely court’s
politics’ and ‘judicial policy-making’, of which research on the ECJ is part (for example
actions, as at the birth of the European Communities. Courts also have more freedom where
Shapiro, 1981; Stone, 1992; Shapiro and Stone, 1994; Volcansek, 1993b; Shapiro and Stone
there are many ‘veto players’ who could block changes to the court’s interpretations; such as
Sweet, 2001).
multiple political parties, multiple legislative chambers, or a separation of authority between
To explain judicial policy-making, political scientists have begun to develop models of
the executive and the legislature (Tsebelis, 1995c, 2000, 2002). Hence, in separation-of-
the strategic interaction between legislators and courts (Miller and Hammond, 1989;
powers systems (such as the US and the EU), and where legislation must be adopted by
McCubbins, Noll and Weingast, 1990; Eskridge, 1991; Gely and Spillar, 1992; Steunenberg,
oversized and multiple legislative majorities (as in Germany and the EU), a court can
1997; Vanberg, 1998, 2001; Shipan, 2000; van Hees and Steunenberg, 2000; Rogers, 2001).
reasonably assume that at least one actor will prefer the court’s interpretation to the original
One such model, based on the US system of government, is illustrated in Figure 4.2 (cf.
legislative intention, and hence block a repeal of the court’s decision.
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4
Conversely, the discretion of courts is more restricted under constitutional arrangements
where there is a fusion of judicial and legislative powers. For example, in Britain there is no
codified constitution and the doctrine of ‘parliamentary sovereignty’ asserts that no legislative
majority can introduce rules or laws that bind a future majority: as a result, parliaments are
free to overturn court rulings. Similarly, in France the Constitutional Council is composed of
ex-politicians who are highly partisan, and it is consequently more like a ‘third chamber of
1. Regulations, which have general application, and which are binding at both the EU and
the national level and are directly applicable in the member states;
2. Directives, which are addressed to any number of member states, and which are binding in
terms of the result to be achieved but must be transposed into law by national authorities;
3. Decisions, which are addressed to member states or private citizens (or legal entities, such
as firms), and which are binding in their entirety;
parliament’ than an independent ‘supreme court’ (Stone, 1993, p. 30). Nevertheless, even in
4. Recommendations and
these systems the ability of judges to make policy has developed as the practice of judicial
5. Opinions, which can both be addressed to any member state or citizen, and which are not
review has restrained the legislative authorities (Stone, 1992; Drewry, 1993; Steunenberg,
1997; Vanberg, 2001; Stone Sweet, 2002).
binding.
However, this description is somewhat misleading, particularly in the distinction
In sum, at the heart of judicial politics is a paradox. On the one hand, constitutions,
between regulations and directives. Directives are often so detailed that they leave little room
backed by the rule of law and independent courts, are necessary for free citizens to enforce
for manoeuvre in the transposition of the legislation by the member states. Also, through a
collective agreements. On the other hand, constitutions enable judges to ‘make’ law rather
series of judgements, the ECJ has made directives much closer to regulations, in terms of their
than simply ‘apply’ law. Legislative majorities could design constitutions to limit the power
ability to confer rights directly on private citizens.
of judges or introduce new legislation to repeal court decisions, but this would undermine the
ability of the legal system to preserve property rights and enforce contracts fairly.
In addition to these two formal, written sources of law, a third source of EU law are
‘general principles of law’. As in all legal systems, primary and secondary sources of law are
unable to resolve all legal issues. However, Article 220 of the EU Treaty instructs the ECJ to
ensure that ‘the law is observed’, which the ECJ has interpreted to mean that when applying
The EU legal system and the European Court of Justice
the primary and secondary acts, it can apply general legal principles derived from the EU’s
basic principles (as expressed in other articles in the Treaty, such as the preamble) and from
‘EU law’ (which I shall use as short-hand for the legal acts of the EC and EU) constitutes a
the constitutions of the member states. There are four main types of these principles:
separate legal system which is distinct but closely integrated with international law and the
• Principles of administrative and legislative legality, which are drawn from various
legal systems of the EU member states, and which derives from three main sources (cf.
member states’ legal traditions, such as ‘legal certainty’ (laws cannot apply retroactively,
Hartley, 2003).
and litigants can have legitimate expectations about EU actions), ‘proportionality’ (the
First, there are the ‘primary’ acts between the governments of the EU member states.
These include the Treaty of Paris, the Treaty of Rome, the Merger Treaty (establishing a
means to achieve an end should be appropriate), and ‘procedural fairness’ (such as the
right to a hearing and the right of legal professional privilege).
single set of institutions), the Single European Act, the Treaty on European Union (the
• Economic freedoms, which are drawn from the EU Treaty, and include the ‘four freedoms’
Maastricht Treaty), the Treaties reforming the European Union Treaty (the Amsterdam and
(the freedom of movement of goods, services, capital and persons), the freedom to trade,
Nice Treaties), the four Accession Treaties, the two Budgetary Treaties and the various other
and the freedom of competition.
Conventions reforming the basic institutional structure of the EU.
Second, there are the ‘secondary’ legislative and executive acts of the Council, the
European Parliament, and the Commission, that derive from the articles in these Treaties.
• Fundamental human rights, which are not defined in the EU Treaty, but are set out in most
member states’ constitutions, in the European Convention on Human Rights (of the
Council of Europe), and in the Charter of Fundamental Rights of the European Union.
Article 249 of the EU Treaty sets out five different kinds of secondary acts:
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• Political rights, which have been introduced in ‘Declarations’ by the member states and
are referred to in the EU Treaties, such as ‘transparency’ (access to information) and
‘subsidiarity’ (the EU can only act in policy areas not included in the Treaties if the policy
aims cannot sufficiently be achieved at the national level).
• A public hearing is then held at which the lawyers of the parties’ involved present their
views orally, and at which the judges and advocates-general question the lawyers.
• The advocate-general appointed to the case submits a report to the judge-rapporteur,
outlining how the case fits with existing EU law and suggesting a judgement.
• On the basis of the advocate-general’s report, the judge-rapporteur presents a draft
Composition and operation of the European Court of Justice
To apply these sources of law, the member states created the European Court of Justice, in
Luxembourg (not to be confused with the European Court of Human Rights, in Strasbourg,
decision to the Court.
• Each judge expresses an opinion on the decision, and the final decision is then taken by a
simple majority vote.
which is the Court of the Council of Europe). The Court has ‘one judge per member state’,
There is a specific order of voting, where the most junior judge (in terms of their order
and eight Advocates-General. The number of Advocates-General can be increased by a
of precedence) votes first and the most senior last. Unlike the US Supreme Court, there are
unanimous decision by the Council, acting on a request from the Court.
no provisions for judges in the minority to register dissenting opinions. In fact, the judges on
Article 223 of the Treaty sets out how they are appointed:
the ECJ swear an oath to preserve the secrecy of the vote.
The workload of the ECJ has increased dramatically. The number of cases brought
The Judges and Advocates-General shall be chosen from persons whose independence is
before the ECJ was 79 in 1970, 279 in 1980, 384 in 1990, and 543 in 1999. On 1 January
beyond doubt and who possess the qualifications required for appointment to the highest
2000, 896 cases were pending before the ECJ. To cope with this increase, the Court of First
judicial offices in their respective countries … they shall be appointed by common accord
Instance (CFI) was created in 1989, but the CFI soon became as back-logged as the ECJ. On
of the governments of the Member States for a term of six years. Every three years there
1 January 2000, 732 cases were pending before the CFI.
shall be a partial replacement of the Judges and Advocates-General … The Judges shall
The ECJ also established procedures to allow cases to be handled in a ‘chamber’ of
elect the President of the Court of Justice from among their number for a term of three
three or five judges, instead of the full plenary. The Treaty of Nice extended this practice by
years. He [sic.] may be re-elected.
formally reversing the precedence between the chamber system and the full-court: whereby
the ECJ now sits in chamber as the general rule, and the ‘Grand Chamber’ of eleven judges or
The staggered terms of office of the judges ensures continuity. However, the other
the fully plenary of the court only meet on special occasions (Johnston, 2001, pp. 511-2). The
elements of the article are somewhat misleading. In practice, ‘by common accord of the
Nice Treaty also introduced provisions for the establishment of specialised ‘judicial panels’
member states’ means that each member state proposes a judge, who is then ratified by the
(by unanimity in the Council, on a proposal from the Commission of the ECJ, and after
other member states.
Also, by convention, the large member states each appoint one
consultation of the EP). The impetus behind this new practice was the need for a new
advocate-general, with the remaining places rotating between the smaller member states. In
procedure for dealing with EC staff related cases. And, it is likely that these panels will be
addition, the independence and qualifications of the judges is sometimes compromised. There
used in many highly technical areas of EC law, such as intellectual property rights (ibid., pp.
is little evidence of explicitly ‘political’ appointments to the ECJ, unlike the US Supreme
513-4).
Court. But, several member states have tended to appoint ‘academic lawyers’ instead of
recruiting judges from the senior ranks of their judiciary.
The ECJ has also introduced the US practice of ‘docket control’, whereby it can refuse
to hear a case which it thinks should be resolved by a national court. This was used on an
When a case comes before the ECJ, the court follows a carefully defined procedure:
informal basis. But, the Treaty of Nice introduced a new procedure, whereby the CFI has
• An advocate-general and a judge-rapporteur are appointed to gather the information
jurisdiction to reject referrals from national courts, on the grounds that they do not fall under
relating to the case and to hold the necessary preparatory oral and written enquiries.
7
the jurisdiction of Article 234. However, the Treaty of Nice left the wording of Article 234
8
(the preliminary reference procedure) untouched, hence rejecting calls by several member
own prerogatives. Finally, private citizens can bring actions against a decision by the EU
states and some members of the ECJ to allow only the domestic courts of last instance to refer
institutions which is of direct concern to them. A further aspect of the ECJ’s power of
cases to the ECJ (see, especially, Court of Justice, 1999; Turner and Muñoz, 2000).
judicial review is the ability to hear actions against the EU institutions for failing to act when
Nevertheless, justice via the ECJ is a long and drawn-out process, with the average
they have been called upon by the EU Treaty or a piece of secondary legislation (such as the
length of proceedings at 21 months for direct actions, and 18 months for references for
delegation of powers to the Commission), under Article 232. These actions can be brought by
preliminary rulings. Various suggestions have been made to speed up this process, such as
any member state or EU institution.
the creation of ‘circuit courts’ modelled on the US federal legal system (cf. Weiler, 1993).
Third, under Article 234, the ECJ has jurisdiction to give preliminary rulings on
However, further reform would require a substantial overhaul of the EU court system and the
references by national courts. Under this procedure, any national court can ask for the ECJ to
national court referrals procedure, which up to now the governments have refused to
issue a ruling on any case brought before the national court that relates to any aspect of EU
contemplate (cf. Craig, 2001).
law. The national courts then have some discretion in determining how they use the ECJ
ruling when making their judgement on the case in hand. At face value this suggests that it is
Jurisdiction of the European Court of Justice
the national courts that give the final ruling on many cases of EU law, which was probably
As defined in the EU Treaty, the ECJ has jurisdiction in three main areas (cf. Weatherill and
the intention of the drafters of the Treaty of Rome. In practice, however, the jurisdiction of
Beaumont, 2004). First, the ECJ can hear actions brought against member states to ensure
the ECJ under this article has been far more significant for the development of EU law and
that they comply with their obligations under the EU treaties and EU legislation. These
the constitutionalization of the EU system than the ECJ’s jurisdiction in any other area. The
actions, known as ‘infringement proceedings’, can either be brought by the Commission
ECJ often interprets EU law in a manner that gives little discretion to national courts when
under Article 226, by another member state under Article 227, or in the area of state aids by
applying ECJ interpretations. Also, Article 234 rulings constitute the majority of all ECJ
either the Commission or a member state under Article 88. Article 228 also asserts that the
judgements. On the one hand, this reveals a high penetration of EU law into the national legal
member state concerned ‘shall be required to take the necessary measures to comply with the
systems (see below).
judgement of the ECJ’. The ability of the ECJ to enforce rulings against the member states is
judgements, the preliminary references procedure has the effect of making national courts the
limited.
lower tier of an integrated EU court system, and the ECJ the quasi-supreme court at its
Until the Maastricht Treaty, the Commission was only able to introduce new
infringement proceedings against a state in an effort to embarrass it into submission.
On the other hand, by enabling national courts to enforce ECJ
pinnacle.
Nevertheless, the Maastricht Treaty enabled the ECJ to impose financial sanctions on a
The ECJ has jurisdiction in a number of other miscellaneous areas under which a small
member state if the Commission brings an additional action for failing to comply with the
number of cases are heard each year. These include: actions for damages against the EU
ECJ’s original infringement judgement.
institutions by either a member state or a private individual, under Article 235; and
Second, like many national constitutional courts, the ECJ has the power of ‘judicial
employment disputes between the EU and the staff of the various EU institutions, under
review’ of EU legislative and executive acts. Under Article 230, the ECJ can review the
Article 236. These ‘staff disputes’ general account for about 8 percent of all cases before the
legality of acts (other than recommendations and opinions) adopted by the Council, the EP,
ECJ.
the Commission and the European Central Bank, and acts of the EP intended to produce legal
In sum, the Treaty of Rome created a new legal system and a powerful supranational
effects on third parties. Under this article, any member state, the Council or the Commission
court to enforce this system. Nevertheless, when signing the Treaties the ‘founding fathers’
can bring an action to the ECJ under this article either on the grounds of lack of competence,
probably did not realize the potential long-term implications of their actions: the gradual
or because of an infringement of the Treaty or procedural requirement. In contrast, the EP,
‘constitutionalization’ of the EU through the operation of the legal system and the judgements
the Court of Auditors and the European Central Bank can only bring actions to protect their
of the ECJ.
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commentators) that directives only have vertical direct effect, because they must be
transposed into national law by the EU member states (case 152/84 Marshall I [1986] ECR
‘Constitutionalization’ of the European Union
723; case C-91/92 Faccini Dori [1994] ECR I-3325).
Nevertheless, to compensate for this lack of the horizontal direct effect of directives, the
In a now renowned statement, in a judgement in 1986, the ECJ described the founding
ECJ has developed the doctrine of ‘states’ liability’. This implies that the state is liable for all
Treaties as a ‘constitutional charter’ (case 294/83 Parti Ecologiste ‘Les Verts’ v. European
infringements of EU directives. For example, when an Italian firm became insolvent and did
Parliament [1986] ECR 1339). This was the first time the Court had used the term
not make redundancy payments to its employees, the ECJ found that the Italian state should
‘constitution’ to describe the Treaties, although academic lawyers had been pointing to the
foot the bill because it had not transposed Directive 80/987 properly, which required the
constitutional status of the Treaties for some time (Green, 1969). Nevertheless, the EU
establishment of guarantee funds for redundancy compensation (cases C-6,9/90 Francovich I
constitution lies less in the founding Treaties than in the gradual ‘constitutionalization’ of the
[1991] ECR 1-5357).
EU legal system (Stein, 1981; Hartley, 1986; Mancini, 1989; Shapiro, 1992; Weiler, 1991,
The central implication of direct effect is that EU law is more like domestic law than
1997a). The two central principles of this constitution are the direct effect and the supremacy
international law. The subjects of international law are states: if a state fails to abide by its
of EU law, which are classic doctrines in ‘federal’ legal systems.
obligations under an international convention, individuals cannot invoke the convention in
their national courts unless the convention has been incorporated into domestic law. In
Direct-effect: EU law as ‘the law of the land’ for national citizens
contrast to international law, the subjects of domestic law and EU law are private citizens
The direct effect of EU law means that individual citizens have rights under EU law that must
who can invoke their rights in domestic courts.
be upheld by national courts. This makes EU law ‘the law of the land’ in the EU member
The establishment of the doctrine of direct effect led to a dramatic increase in the
states (Weiler, 1991, p. 2413). The ECJ first asserted the direct effect of EU law in a
number of cases brought by individuals in their national courts to defend their rights under
landmark judgement in 1963 (case 26/62 Van Gend en Loos v. Nederlandse Administratie der
EU law. The effect, as Weiler (1991, p. 2414) argues, was that:
Belastingen [1963] ECR 1). In this case, a private firm sought to invoke EC law against the
Dutch customs authority in a Dutch court, and the Dutch court made a reference to the ECJ
individuals … became the ‘guardians’ of the legal integrity of Community law within
for a preliminary ruling on whether EC law applied. Four out of the then six member states
Europe similar to the way that individuals in the United States have been the principal
argued before the court that the specific article in the EC Treaty the case referred to (Article
actors in ensuring the vindication of the Bill of Rights and other federal law.
25) does not have direct effect. Despite the opposition of the majority of the signatories of
the Treaty, the ECJ ruled that the individual did have the right to invoke EC law because ‘the
Supremacy: EU law as ‘the higher Law of the Land’
Community constitutes a new legal order … the subjects of which comprise not only member
Unlike the US Constitution, the Treaty of Rome did not contain a ‘supremacy clause’ stating
states but also their nationals’. This was accepted by the Dutch court. This ruling meant that
that when there is a conflict between national and EU law, EU law is supreme – although such
direct effect applies to primary Treaty articles, and in subsequent judgements, the ECJ has
a clause is contained in the proposed EU Constitution.
expanded the doctrine to all categories of legal acts of the EU.
establishment of direct effect, the ECJ asserted the supremacy of EU law, and like direct
However, direct effect works differently for regulations and directives. Regulations
However, shortly after the
effect this doctrine was confirmed and reinforced in subsequent rulings.
have ‘vertical’ and ‘horizontal’ direct effect: enabling citizens to defend their rights against
The landmark judgement on this doctrine was in the case of Costa v. ENEL in 1964
both the state (vertical) and other individuals or legal entities (horizontal). In contrast, the
(case 6/64 [1964] ECR 585). An Italian court asked the ECJ to give a preliminary ruling on a
ECJ has taken the view (against the opinion of several Advocates-Generals and academic
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case where there was a clear contradiction between Italian and EC law, and the ECJ duly
‘Integration through law’ and ‘economic constitutionalism’
argued that:
The application of these basic doctrines enabled the Court to play a central role in the
By creating a Community of unlimited duration, having its own institutions, its own
economic and political integration of the EU system (cf. Weatherill and Beaumont, 2004).
personality, [and] its own legal capacity … the member states have limited their sovereign
For example, in the area of economic freedoms, Article 28 states simply that ‘quantitative
rights, albeit within limited fields, and have thus created a body of law which binds both
restrictions on imports and all measures having equivalent effect shall be prohibited between
their nationals and themselves. The integration into the laws of each member state of
the member states’. This article seems pretty innocuous. However, through a series of
provisions which derive from the Community … make it impossible for the states, as a
judgements the ECJ has transformed the EU’s economic system on the basis of this article
corollary, to accord precedence to a unilateral and subsequent measure over a legal system
(Alter and Meunier-Aitsahalia, 1994).
In 1974, in the Dassonville decision (case 8/74 [1974] ECR 837), the ECJ declared
accepted by them on a basis of reciprocity.
illegal any national rule that is ‘capable of hindering, actually or potentially, directly or
In other words, the logic of the Court was that the doctrine of supremacy was implicit in the
indirectly, intra-Community trade’.
transfer of competences to the EU level and the direct effect of EU law.
restrictions on imports, but also internal rules affecting the competitive position of imported
Formally speaking, EU law is superior over national law only in those areas where EU
goods.
These hindrances not only cover quotas and other
The implication of this interpretation became clear with the Cassis de Dijon
law applies. But, as the competences of the EU have expanded into almost all areas of public
judgement in 1979 (case 120/78 [1979] ECR 837). In this decision, the Court ruled that a
policy, the application of supremacy no longer applies to the ‘limited fields’ to which the ECJ
German law that specified that a ‘liquor’ must have an alcohol content of at least 25 percent
referred in 1964.
Also, through successive judgements, the ECJ has established that
cannot prevent the marketing of the French drink Cassis de Dijon in Germany as a liquor,
supremacy applies to all EU norms, whether an article of the EU Treaties, a secondary act of
which has an alcohol content of less than 20 percent. This is known as the principle of
the EU institutions (no matter how minor, such as administrative regulations of the
‘mutual recognition’: that any product that can be legally sold in one member state can be
Commission), and even a ‘general principle of EU law’ as defined by the ECJ.
legally sold anywhere in the EU. Mutual recognition subsequently became one of the basic
As a result, the supremacy doctrine further distanced the EU legal system from
principles in the establishment of the single market (see Chapter 8).
international law. Direct effect was insufficient by itself to establish the EU legal system as a
This interpretation of Article 30 is inherently ‘deregulatory’. It obliges member states
system of domestic law. Where international conventions are incorporated into domestic law,
to delete numerous social and economic rules that in many cases were established as
individuals can invoke them in domestic courts. But, if a domestic legislature subsequently
expressions of particular social, cultural and ideological preferences. The effect is a specific
adopts a national law that contravenes the international convention, the provisions of the
type of ‘economic constitution’ of the EU: where there is competition between different
international law no longer apply. With the supremacy of EU law, in contrast, national
national regulatory regimes, which has the potential of facilitating a ‘race to the bottom’ (cf.
legislative majorities are permanently bound by the provisions of EU law. As Weiler thus
Chalmers, 1995; Joerges, 1994; Streit and Mussler, 1995; Ehlermann and Hancher, 1995;
concludes: ‘parallels of this kind of constitutional order … may be found only in the internal
Maduro, 1997) (see Chapter 8).
constitutional order of federal states’ (Weiler, 1991, p. 2415). By establishing the dual
doctrines of the direct effect and supremacy of EU law, the ECJ had transformed the EU from
State-like properties: external sovereignty and internal coercion
an international organization to a quasi-federal polity.
As discussed in Chapter 1, the EU is not a state. In particular, the EU does not have external
sovereignty in the international legal system to act independently and above the interests of
the member states, neither does the EU have the internal legitimate monopoly on the use of
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14
coercion to enforce its decisions. Nevertheless, the ECJ has been instrumental in developing
article as a substitute for the lack of direct enforcement powers of the EU system (cf. Shaw,
‘state-like’ properties for the EU in both these areas.
1996, pp. 208-13; Weatherill and Beaumont, 2004). For example, the ECJ has ruled that
First, on the external side, the EU has the formal power to make treaties with third
member states must adapt all relevant national rules to the requirements of EU law (cases
parties under Article 133 (common commercial policy) and Article 310 (association
205-215/82 Deutsche Milchkontor GmbH v. Germany [1983] ECR 2633), and that article 10
agreements). However, even in these limited fields most member states originally felt that
applies to all state organs at all levels of government (Case C-8/88 Germany v. Commission
these articles merely provided for the Commission to negotiate agreements on behalf of the
[1990] ECR I-2321).
member states, and that sovereignty remained with the member states. Nevertheless, in 1971
Furthermore, the ECJ has broadened the definition of the types of actions a member
the ECJ established the principle that in making agreements with third countries, the EU is
state must use to enforce EU law. For example, in 1997 the ECJ found that the French
sovereign over any existing or future acts between the individual member states and the third
government should have used the state security forces more effectively to ensure the free
countries involved (case 22/70 ERTA [1971] ECR 263). In the same judgement, the Court
movement of goods in the internal market (case C-265/95 Commission v. France [1997]).
argued that the jurisdiction of the EU in the international sphere covers all areas of EU
The Court recognized that member states ‘retain exclusive competence as regards the
competence, not just those covered by articles 133 and 310. In other words, in one stroke the
maintenance of public order and the safeguarding of internal security’. However, the ECJ
ECJ conferred new treaty-making powers to the EU and deprived the member states of their
went on to argue that:
own independent powers relating to EU competences.
The ECJ’s interpretation of the legal sovereignty of the EU in the international sphere
it falls to the Court … to verify … whether the member state concerned has adopted
was further expressed in two Opinions on the proposed ‘European Economic Area’ between
appropriate measures for ensuring the free movement of goods… . [In the present case] the
the EU and the European Free Trade Area (EFTA) (Opinion 1/91 EEA I [1991] ECR I-6079;
French police were either not present or did not intervene … the actions in question were
opinion 1/92 EEA II [1992] ECR I-2821). The original proposal for the EEA, which was
not always rapid … [and] only a very small number of persons has been identified and
approved by the EU and EFTA states, provided for the establishment of the EEA as a new
prosecuted.
type of legal order, partially merged with the EU, but no longer under the sole judicial
authority of the ECJ. However, the ECJ rejected this idea out of hand. The Court again
In other words, the EU does not need a police force of its own to have access to coercive
argued that the EU Treaty is a ‘constitutional charter of a Community based on the rule of
powers. According to the ECJ, the EU obliges the member states to take all measures that are
law’, and consequently that the proposed EEA arrangement would compromise the
reasonable to enforce EU law, including the use of security forces.
independence and sovereignty of the EU. The ECJ approved a revised version of the EEA
agreement after it gave jurisdiction over the EEA exclusively to the ECJ (even over the
‘Kompetenz-Kompetenz’: judicial review of competence conflicts
national courts of the EFTA states). What was remarkable about this episode was that the
A key weapon in the arsenal of supreme courts in any multi-level political system is the
supposedly sovereign nation-states of the EU accepted the ECJ’s assertions and duly revised
ability to police the boundary of competences between the states and central government:
the international treaty.
what German constitutional laws call ‘Kompetenz-Kompetenz’. The EU Treaty gives no
The proposed Constitution would institutionalise this existing
external sovereignty of the EU by formally establishing a ‘legal personality’ for the EU.
formal powers to the ECJ to undertake this task (esp. Bogdandy & Bast, 2002). The Treaty
Second, on the internal side, Article 10 of the EC section of the EU Treaty instructs the
refers to the principle of ‘subsidiarity’: meaning that the EU can only act in areas that are not
member states to ‘take all appropriate measures … to ensure the fulfilment of their obligations
better tackled at the national level. And the European Council has agreed a set of rules about
arising out of the Treaty’. Most member states originally assumed that this article took effect
how this principle should apply; for example, whereby the Commission must explain in any
only in relation to the other Treaty articles and to EU law. However, the ECJ has used this
draft legislation how the legislation does not breach the principle of subsidiarity.
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Nevertheless, it is open to question whether the subsidiarity principle is justiciable before a
constitutional court’ composed either of national parliamentarians or judges from the highest
national court or the ECJ.
The Treaty does not contain an explicit ‘catalogue of
courts of the member states. By ruling against the legislative majorities in the Council and
competences’, and under Article 308, the EU governments (acting by unanimity) can add any
EP, however, the judges demonstrated that they can be trusted to protect the rights of the
policy area to the competences of EU without it being challenged before a national court or
states who are on the losing side in the EU’s legislative process.
the ECJ.
The Convention subsequently proposed a catalogue of competences in the draft EU
Nevertheless, the ECJ has gradually developed a power to police the vertical allocation
Constitution: with areas defined as either exclusive competences of the EU, shared
of competences. Most significant in this respect was the ECJ’s judgement in 2000 to annul a
competences between the EU and the member states, areas for mutual cooperation between
directive on tobacco advertising and sponsorship (case 376/98 Germany v. European
the governments, and exclusive competences of the member states. The Convention also
Parliament and Council [2000]). In 1998, the Council and EP had adopted a directive
proposed a mechanism for policing the boundaries between these categories: if a certain
banning tobacco advertising and sponsorship under Article 95 of the EC Treaty, covering the
number of national parliaments protests against a legislative proposal, the matter is referred to
harmonisation of laws for the completion of the single market. The Court ruled, however,
the ECJ. In other words, following the tobacco advertising ruling, the Convention decided to
that: ‘Article [95] should be available as a legal basis only in cases where obstacles to the
grant exclusive Kompetenz-Kompetenz to the ECJ rather than to a new body. Whether or not
exercise of fundamental freedoms and distortion of competition are considerable.’ As a result,
the Constitution eventually enters into force, the agreement in the Convention suggests that
a ban on tobacco advertising could only be adopted under Article 95 if it allowed products
the governments are content to allow the ECJ to develop as the main adjudicator of
that circulate in the internal market (such as newspapers or magazines) to move more freely
competence conflicts.
than if there were different national tobacco advertising rules. Since the proposed ban was
Convention would have been able to establish this important precedent.
Without the tobacco advertising judgement, it unlikely that the
more widespread than simply covering these goods, the ECJ pointed out that ‘the national
measures affected are to a large extent inspired by public health policy objectives’. However,
Even if the proposed Constitution, agreed in June 2004, is not ratified, an EU ‘constitution’
the public health competences in the Treaty (Article 152) only allows for the adoption of EU
exists in a ‘formal-legal’ sense, in terms of the rules governing the operation and powers of
legislation to adopt common safety standards in organisations, and hence does not extend to
the EU institutions, the separation of competences between the EU and the member states,
the harmonisation of national public health standards more generally.
and the quasi-federal rights the EU granted to individuals and member states (cf. Grimm,
Some observers were surprised by the judgement to annul the directive, as the ECJ had
1995; Habermas, 1995). An EU constitution also exists in a ‘social’ sense, in terms of the
applied Article 95 quite broadly in the past (Hervey, 2001). However, the ruling can be
acceptance of the EU system and the doctrines established by the Court of Justice by national
interpreted as a strategic signal by the ECJ to the governments that it can be trusted in
legal and constitutional authorities – to which we shall now turn.
competence-conflict decisions: in this case between harmonisation of rules in the single
market (an exclusive EU competence) and public health standards (an exclusive competence
of the member states). By ruling that the EU could only apply the harmonisation of rules in
Penetration of EU law into national legal systems
the single market if there is a clear case of market distortion, the ECJ had effectively defined
a boundary between the ‘federal’ powers of the EU and the ‘rights’ of the states.
The penetration of EU law into national legal systems has developed both quantitatively and
This was particularly significant because the ECJ judges were aware that the
qualitatively. On the quantitative side there has been a substantial increase in the use of the
Convention on the Future of Europe was about to begin, and that one of the key issues in the
Article 234 procedure for requesting preliminary rulings from the ECJ by national courts, and
design of an EU Constitution would be the policing of vertical competences. Several member
on the qualitative side national courts have gradually accepted the existence and supremacy of
states had already proposed a new quasi-judicial body for this task: a special ‘EU
the EU legal system over national law and constitutions.
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openness of a member states’ economy: in other words, the larger the market and the larger
Figure 4.3 Growth of Article 234 references
[Figure in here]
the volume of imports, the great the incentives for importing firms to take cases to the ECJ to
guarantee market access for their goods and services.
Table 4.2 Proportion of Article 234 references by subject matter
Quantitative: national courts’ use of ECJ preliminary rulings
[Table in here]
Figure 4.3 shows the number of Article 234 references by all national courts to the ECJ in
each year between 1958 and 1997. In this period, whereas the EU grew from six member
The subject matter of the references to the ECJ from national courts has also changed
states to 15, the number of references to the ECJ grew from 1 to 2 per year in the early 1960s
significantly.
to over 250 per year in the late 1990s. The period of rapid growth in the 1970s immediately
references related to the Common Agricultural Policy. However, by the early-1990s, issues
followed the establishment of the doctrines of direct effect and supremacy, which encouraged
relating to the operation of the internal market – such as the free movement of goods, free
national courts to use the references procedure to strengthen their position in the domestic
movement of workers, taxes, freedom of establishment, and the approximation of national
political systems, and encouraged private litigants to use the procedure to invoke their rights
laws – comprised over half of all references to the ECJ. This consequently reflects the fact
in the domestic courts.
that the majority of laws governing the regulation of the market are set at the European rather
As Table 4.2 shows, in the whole period between 1968 and 1987 most
than the national level (see Chapter 8).
Table 4.1 Number of Article 234 references by member state
[Table in here]
Table 4.3 Non-compliance cases before the ECJ
[Table in here]
However, not all national courts use the references system to the same extent. As Table
4.1 shows, the number of references from each member state has risen over time, and the
Finally, there has also been considerable national variation in the extent of compliance
figures suggest a ‘learning curve’, with the original member states making more references in
with EU law. Table 4.3 shows the average number of infringement cases brought before the
each period than the member states that joined later. Nevertheless, there are several other
ECJ between 1972 and 1993. At face value, these figures reinforce the conventional wisdom
factors cross-cutting this trend. First, within each wave of EU members, the larger states
that the ‘southern’ EU states (except Portugal) are general less likely to enforce EU law as
made more references than the smaller states: Germany, France and Italy made more
effectively as the ‘northern’ states. However, Mbaye (2000) finds that in addition to the
references than The Netherlands, Belgium and Luxembourg; the United Kingdom made more
efficiency of the domestic bureaucracy (the ‘southern’ effect), greater political and economic
than Denmark and Ireland; Spain made more than Portugal; and Austria and Sweden made
power of a member state, in terms of its voting weight in the Council and its importance to the
more references than Finland (Stone Sweet and Brunell, 2000). Second, despite the learning
European economy, reduces the likelihood that a state will be subject to infringement
curve, British courts made less references in the early 1990s than Dutch or Belgian courts,
proceedings before the ECJ (cf. Börzel, 2001).
which perhaps reflects the sceptical attitudes towards the EU of the public and elite in Britain
(Golub, 1996a). However, in Ireland, Portugal and Luxembourg, where the publics and elites
Qualitative: national courts’ acceptance of the EU legal system
are strongly pro-European, the courts also made few references to the ECJ. Nevertheless,
Despite the above, not all national courts capitulated to the emerging constitutionalization of
Stone Sweet and Brunell (1998a, 1998b, 2000) argue that one of the key factors explaining
the EU at the same time (Mattli and Slaughter, 1998a, 1998b). The Benelux states accepted
the variation in national use of the preliminary reference procedure is the combined size and
the direct effect and supremacy of EU law almost immediately upon the establishment of
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these doctrines: since the 1920s, Belgian courts have accepted that international law is
EU courts, in 1984 the Italian Constitutional Court ruled that the EU does not have the power
inherently part of Belgian law, and saw their role vis-à-vis the EU and the ECJ as a logical
to repeal Italian law, but where EU law and national law apply in the same area, Italian judges
extension of this practice (Bribosia, 1998). Dutch courts applied a similar norm, and the 1983
should choose to apply EU law.
reform of the Dutch constitution introduced provisions explicitly referring to the application
supremacy. Laderchi (ibid., p. 166) hence points out that: ‘The Court was cheating when it
of EU law over Dutch law (Claes and de Witte, 1998).
said that the results of its new doctrines coincided with the requirements set by the ECJ’.
In other words, this was a conditional acceptance of
Like the Benelux courts, the German Constitutional Court (Bundesverssungsgericht)
In the United Kingdom, British courts accepted direct effect immediately upon
originally acknowledged the ECJ’s proclamation that the EU system constituted ‘an
accession to the EU in 1973. However, it was more difficult to accept the supremacy of EU
autonomous legal order’ (Kokott, 1998), and also accepted the supremacy of EU law, but in
law, as this doctrine inherently conflicts with the central concept of the British constitution, of
the narrow form of ‘priority in application’ rather than the more general ‘priority of validity’
‘parliamentary sovereignty’ – that acts of parliament immediately override all existing law or
(Alter, 2001, pp. 64-123). Nevertheless, the German Constitutional Court retreated from this
legislation (Craig, 1998). Nevertheless, in 1990 the House of Lords found a way to reconcile
position when in 1974 it ruled that where there is a conflict between national and EU law, the
parliamentary sovereignty and supremacy. On a reference from the House of Lords, the ECJ
German Court can decide the limits on the supremacy of EU law. The implication of this
ruled that a 1988 act of the British parliament was in breach of EU law, and the House of
ruling became clear with the landmark Brunner judgement of the German Constitutional
Lords accepted this judgement on the grounds that in passing the 1972 act of accession to the
Court in 1993 on the constitutionality of the Maastricht Treaty.
EU, the British parliament had voluntarily accepted the EU legal system of which the
In the Brunner judgement, the German Constitutional Court ruled that the German
supremacy of EU law is a central part. The House of Lords also argued that this does not
Basic Law limits the transfer of powers to the EU, and argued that the EU is a sui generis
compromise parliamentary sovereignty, as a future British parliament could repeal the act of
organization which is not a ‘state’ based on democratic norms. It argued that because the
accession, and so withdraw Britain from the EU.
German Constitutional Court is commanded under the German constitution to defend the
In France there was a marked difference in how and when the EU legal system was
basic rights and principles of democracy as set out in the German Basic Law, the German
accepted by the Cour de Cassation (the highest civil court) and the Conseil d’Etat (the highest
Court has the jurisdiction to declare acts of the EU ultra vires (beyond the legal authority of
administrative court) (Plötner, 1998; Alter, 2001, pp. 124-181). The French constitution
the EU) if they breach the German Basic Law (but it will seek to cooperate with the ECJ if
combines a monist approach to international law, but a philosophy of parliamentary
faced with such a prospect). Having said this, the German Court declared that the Maastricht
sovereignty. Initially, the French courts interpreted this combination to mean that EU law is
Treaty can be ratified in Germany because the German parliament maintains the right to
supreme over acts of parliament prior to the Treaty of Rome, but that the French Courts are
transfer (or withdraw) German government competences to the EU. The Court warned,
free to determine whether subsequent acts are in breach of EU law. However, in 1975 the
however, that the EU can only legitimately become a ‘state’ if it is fully democratic: with the
Cour de Cassation accepted that in all cases EU law is superior to French national law. The
institutions of parliamentary democracy, a clearly defined hierarchy of rights, and a single
Conseil d’Etat, on the other hand, did not reach the same conclusion until 1990 and, in so
demos (Weiler, 1995).
doing, the Conseil d’Etat argued that EU legal supremacy only applies because all interna-
The initial acceptance of the direct effect and supremacy doctrines by the Italian courts
tional Treaties ratified by the French parliament are sovereign over French law. In other
was more problematic (Catabia, 1998; Laderchi, 1998). Direct effect was accepted in 1973,
words, the EU constitution was justified through the lens of national rather than European
but the highest Italian court refused to accept the supremacy of EU law and did not make a
constitutional norms.
preliminary reference to the ECJ for four years following the Costa v. ENEL judgement. The
In Sweden, there was dispute over whether the domestic constitution needed to be
Italian Court maintained this position by arguing that Italian and EU law are separate and
changed for Sweden to become a member of the EU (Bernitz, 2001). The constitution had
parallel legal orders. Nevertheless, highly conscious of its almost complete isolation amongst
been amended in 1965 to allow for the conclusion of Treaties with the then European
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Communities. But, most experts in Sweden took the view that because of the development of
the EU and its competences in the 1980s and 1990s, this provision was not enough to allow
for the substantial transfer of power that would result from accession. Nevertheless, the new
Explanations of EU judicial politics
constitutional provision that was finally agreed upon by the Riksdag (the Swedish parliament)
was significantly less extensive than many legal experts had proposed, stating that:
Why was the ECJ able to promote legal integration and the constitutionalisation of the EU?
Why was this process accepted by the member state governments and the national courts?
The Parliament may transfer a right of decision-making to the European Communities
Scholars of the EU have come up with five different answers: (1) the ‘formalism’ of law; (2)
so long as the Communities have protection for rights and freedoms corresponding to
the strategic behaviour of the European Court of Justice; (3) the strategic behaviour of
the protection provided under this Instrument of Government and the European
national courts; (4) the interests of transnational private actors; and (5) the strategic behaviour
Convention for the Protection of Human Rights and Fundamental Freedoms.
of national governments.
In other words, this amendment installed constraints on EU law that flowed directly from the
Legal formalism and legal cultures
German Brunner judgement. If a conflict arose between an EU law and a fundamental right
Legal scholars of the EU have traditionally emphasised the internal logic of law and the legal
protected by a national constitution and backed by a national democratic majority, a Swedish
process. As Weiler (1994, p. 525) explains: ‘The formalistic claim is that judicial process
court would be forced to reject the EU law unless it was clear that the relevant right was
rests above or outside politics, a neutral arena in which courts scientifically interpret the
sufficiently protected at the EU level by a European ‘charter of fundamental rights’.
meaning of policy decided by others’. In other words, the ECJ simply applies EU law as set
In sum, EU law is accepted as an integral part of national legal systems and is sovereign
out in the EU Treaties and in secondary legislation, without any conscious desire to promote
over national law. Nevertheless, in several states the highest national courts maintain that this
its own power or institutional interests. Nevertheless, an EU constitution develops because
is conditional on national constitutional norms: for example that parliaments remain sovereign
the EU legal system has its own internal ‘integrationist’ logic. Without an explicit definition
to revoke the supremacy of EU law by withdrawing the transfer of sovereignty to the EU (as
and separation of competences in the EU Treaty, there was no clear hierarchy of norms. So,
in Germany, Britain and France). One could argue that this solution is driven primarily by the
the EU had to apply the goal of ‘ever closer union’ as the ultimate norm of the EU polity,
desire of national courts not to renounce their previous positions towards the EU, or to declare
hence forcing the ECJ to develop the doctrines of direct effect and supremacy. Furthermore,
basic constitutional principles null and void (such as parliamentary sovereignty in the British
there is an effect utile in the legal workings of the EU (where the ECJ prefers to apply EU law
case). Only in Germany has a constitutional court withdrawn from a previously unconditional
in the most efficient and effective way), which compels the ECJ to promote legal integration
acceptance of supremacy. But, this German decision has had profound effects on the other
to prevent the EU political system from becoming ineffective and unworkable (Cappelletti,
member states, as in the Swedish case, and has forced the EU to confront the protection of
Seccombe and Weiler, 1986).
From this
In the same vein, legal formalist explanations posit that national courts were eager to
perspective, the decision in December 2001 to hold a Convention on the Future of Europe,
find ways to reconcile their previous jurisprudence with the emerging EU legal system.
and to charge this forum with proposing a codified ‘constitution’, results at least partly from
Through the preliminary references system, the ECJ provided national courts with the
the growing ambivalence of national judiciaries towards the EU’s un-codified constitutional
appropriate argumentation and rationale for them to accept the new doctrines in the national
settlement.
legal systems (cf. Wincott, 1995). Variations in the use of the preliminary references system
fundamental rights and the democratic accountability of the EU institutions.
and the dates of acceptance of the ECJ doctrines can be explained by variations in national
legal ‘cultures’ and ‘doctrines’ (Chalmers, 1997; de Witte, 1998; Mattli and Slaughter, 1998a,
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1998b; Maher, 1998; Stone Sweet, 1998). On the cultural side, different systems of training
In this explanation, the ECJ is a strategic actor with specific institutional interests and
judges, different promotion systems, and different career paths produce different patterns of
policy preferences that it has promoted and protected. In terms of institutional interests, the
behaviour and reasoning by judges – such as formal versus pragmatic, deductive versus
ECJ wants to strengthen its position vis-à-vis the other EU institutions, and, hence, the Court
inductive, or abstract versus consensual. Also, each system has a different relationship
has consciously sought to develop its powers of judicial review of Commission and Council
between administrative, constitutional and common law courts, and different rules, traditions
actions. The Court has also used preliminary references by national courts to develop a
and powers of judicial review. On the doctrinal side, the place of fundamental rights in
‘policy-making’ role in areas where the Treaty is vague or legislation is absent or incomplete,
domestic constitutions and how the concept of ‘sovereignty’ is defined both affect the
and has sought to establish a jurisdiction for itself in determining the division of competences
relationship between national legal norms and the EU constitution.
between the national and EU systems.
Nevertheless, legal-formalist approaches have some important shortcomings. At an
In terms of its policy preferences, this theory argues that the ECJ has promoted
empirical level, the doctrines of supremacy and direct effect are not simply logical extensions
European integration at every opportunity.
The pursuit of this goal stems from the
of the EU Treaty: if the federalization of the EU had been intended from the outset, the EU
assumption that further economic and political integration will eventually turn the ECJ into an
Treaty would have contained a ‘supremacy clause’ like other federal constitutions. Also,
all-powerful supreme court – perhaps like the US Supreme Court. To this end, the Court has
many national courts were not immediately convinced of the ECJ’s justification of direct
asserted the ‘autonomy’ of EU law from the very beginning, implying that the EU legal order
effect and supremacy (cf. Alter, 1998a, pp. 230-4). From the general study of courts and
is fundamentally different from international law. Also, the doctrines of direct effect and
judicial politics, as we discussed, we know that the institutional interests of courts and the
supremacy smack of an explicit federalist plan, and similarly, in establishing the principle of
personal policy preferences of judges also drive judges’ actions. In a sense, the structural and
‘mutual recognition’ the Court knew that the doctrine would be a powerful motor of economic
cultural logic of the law are simply another set of constraints within which courts and judges
integration (Alter and Meunier-Aitsahalia, 1994).
secure these aims. Consequently, at a theoretical level, explanations of the emergence of the
Nevertheless, this approach also has its limitations. At an empirical level, the ‘activism’
EU constitution must also take account of the institutional and policy incentives of European
of the ECJ has not been linear (Chalmers, 1997). The ECJ has responded to the pace of the
and national judges, and the strategic motivations of other actors in the systems.
integration process, and has been sensitive to anti-Court feelings amongst certain national
governments, and why did it take so long to establish the principle of mutual recognition? The
‘Activism’ by the European Court of Justice
strategic behaviour of the ECJ must be analysed in terms of the opportunities and constraints
In direct contrast to the legal-formalism approach, an alternative explanation sees the ECJ as
the court faces: from the institutional and cultural factors of the EU system, and in the face of
an explicitly ‘political’ actor (for example Rasmussen, 1986; Mancini, 1989; Volcansek,
the competing interests and preferences of the member state governments, national courts and
1993a; Weiler, 1981, 1991). The pioneering author from this perspective was Eric Stein
private litigants.
(1981, p. 1), who opened his ground-breaking article with an oft-cited passage:
Strategic national courts: judicial empowerment and inter-court competition
Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with
Related to this approach are explanations that see the constitutional development of the EU as
benign neglect by the powers that be and the mass media, the Court of Justice of the
a product of the strategic behaviour of national courts in cooperation with the ECJ (Weiler,
European Communities has fashioned a constitutional framework for a federal-type
1993; 1994; Alter, 1996, 2001). Unlike the ECJ, national courts are not interested in the
structure in Europe.
emergence of an EU constitution to promote the policy goal of European integration. Instead,
national courts seek to use the EU legal system to secure their interests and policy preferences
within their own national legal and political contexts. And national governments are unable
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to resist the penetration of EU law into domestic polities because of the special role of law in
domestic democratic polities. In the words of Burley and Mattli (1993, pp. 72-3):
At a theoretical level, these explanations develop sophisticated conceptions of the
interaction between courts’ preferences and their domestic institutional and political
environments. However, at an empirical level they have some important shortcomings. For
Law ultimately proved impervious to political interference, not only due to ‘the mask’ of
example, these approaches do not explain why certain national courts accepted EU doctrines
technical discourse, but also ‘the shield’ of domestic norms of rule of law and judicial
before others. Also, analysing their data on the use of preliminary references, Stone Sweet
independence.
and Brunell (1998b, p. 90) dispute the inter-court competition argument because they find that
on average higher courts have been more active than lower courts in using the preliminary
There are two main variants of this ‘national courts approach’.
reference procedure.
First, several scholars argue that national courts have been ‘empowered’ by the
Accepting these problems, later works from this perspective have moderated the earlier
emergence of the EU constitution (for example Weiler, 1991, 1994). In many domestic
claims. For example, Alter (2000, 2001), Golub (1996a) and Mattli and Slaughter (1998a,
European political systems the powers of judicial review are weak, parliaments are sovereign,
1998b) accept that different national political and institutional settings affect the way national
and governments have substantial administrative and political resources at their disposal.
courts respond to EU law. For example, there are different levels of public support for
Consequently, national courts welcome the direct effect and supremacy of EU law and
European integration, levels of awareness of the ECJ, levels of satisfaction with the ECJ, and
actively use the preliminary references system to strengthen their hand in the national policy
general satisfaction with courts and judges (Caldeira and Gibson, 1995; Gibson and Caldeira,
process. At one extreme of this argument, the ECJ and its rulings are instruments of national
1995, 1998).
courts in promoting the rule of law, judicial review and the protection of individual rights
challenges to their judicial autonomy and undermining the public acceptance of courts and the
against the domestic state. For example, the ECJ has often been asked by national courts to
judicial systems. Also, each national system has a different structure of domestic legal
make preliminary rulings on issues that are parochial national court obsessions (Volcansek,
institutions, such as court procedures, powers of judicial review, cost of access for litigants,
1986). Alternatively, national courts are in cahoots with the ECJ to strengthen the judicial
and legal training of judges (Alter, 2000). As a result, variations in public support for the EU
system against national governments at both the European and national levels of the EU
and the structure of legal systems explains a significant amount of national variations in the
political system. In the other words, the ECJ consciously seeks to appeal to national courts’
use of the preliminary references procedure, the acceptance of ECJ doctrines, and the
self-interest (Weiler, 1994; Mancini, 1989).
application of EU law in some areas more than others (Alter, 2000, 2001; cf. Craig, 1998;
Second, within each national legal system, lower and higher courts have different
If courts ignore these mass opinions they risk provoking parliamentary
Chalmers, 2001).
institutional incentives vis-à-vis the EU legal system. Alter (1996) contends that lower judges
and courts have particular incentives to use EU law: to increase their prestige and power vis-
Private interests: the other ‘interlocutors’ of the ECJ
à-vis higher courts. Through the preliminary references procedure, lower courts are able to
In addition to national courts there are a number of other private ‘interlocutors’ of the ECJ
‘play higher courts and the ECJ off against each other to influence legal developments in the
who have actively promoted the integration of the EU legal system (Weiler, 1993, 1994).
direction their prefer’ (Alter, 1998a, p. 242). In all member states except Luxembourg, either
Primary amongst these are private litigants. As noted, the doctrine of direct effect enables
lower or intermediate level courts made more use of the preliminary references procedure
individual citizens to invoke EU law in national courts, and this gave private citizens a ‘stake’
than higher courts, and in seven member states both lower and intermediate level courts made
in the EU legal system early in the integration process (Burley & Mattli, 1993, pp. 60-1).
more references than the higher courts (Stone Sweet and Brunell, 1998b). In other words, EU
Lisa Conant (2002, p. 3) goes even further:
legal integration is an ‘inadvertent’ product of this inter-court competition in the national
arena.
27
28
Pressures for policy responses to innovative judicial interpretations consist of strategic
the Legal Service of the Commission, the Legal Counsel of the Council, lawyers in national
litigation campaigns of copycat cases, the mass filing of parallel claims before
ministries, attorneys appearing before national courts, legal scholars and writers, and the
bureaucracies, the systematic prosecution of parallel cases by enforcement agencies, and
‘legal establishment’ in political positions. Weiler (1994) also points out that academic
the lobbying of officials and elected representatives.
lawyers, particularly in continental Europe, are often ‘custodians of La Doctrine’. In several
states, this has enabled the law professorate to play a crucial role in the acceptance of EU
In her view, variations in the organisation of private interests consequently explain why EU
legal norms, by supplying ideas and arguments to national courts to enable them to reconcile
law has developed in areas other than those of direct interest to the ECJ or national
EU and national constitutional doctrines.
governments. ‘Concentrated’ interests (who potentially face large costs/benefits from EU
In other words, this explanation is a logical extension of general theories of European
law) tend to be better organised than ‘diffuse’ interests (who potentially face small
integration that place emphasis on the role of transnational economic and social activities in
costs/benefits from EU law) (see Chapter 6). But, the relatively low costs of access to the
promoting integration: such as neo-functionalism (see Chapter 1) (for example Stone Sweet
ECJ from national courts has meant that EU law has been a vehicle for the promotion of some
and Sandholtz, 1997). However, this explanation suffers from some of the same weaknesses
interests that are underrepresented in several domestic systems of interest representation
as these general theories. In particular, it overemphasises the autonomy of supranational
(Pollack, 1997b). For example, women’s groups, trade unions and consumer groups have
institutions and transnational interests in the promotion of EU legal integration.
forced national courts and the ECJ to develop and apply EU law in the area of gender
scholars argue that once transnational activities and supranational institutions have been un-
equality, labour rights and consumer protection.
leashed, there is little national governments can do to stop them (Pierson, 1996). However,
These
Nevertheless, Stone Sweet and Brunell (1998a, 1998b) argue that firms involved in the
national governments are the signatories of the Treaties, and if provoked they can restrict the
import and export of goods are the dominant private litigants in the EU legal system. These
powers of the ECJ and redefine the nature of the EU constitution. In other words, as with the
interests have a particular incentive to secure the effective application of the free movement
ECJ and national courts, there are strategic constraints on the actions of transnational
of goods and services, and have sufficient resources available to take actions ‘all the way to
interests.
the European Court’. Stone Sweet and Brunell consequently find that the average annual
volume of intra-EU trade – which they use as a proxy for the level of transnational economic
Strategic member-state governments
interests in each member state – is the strongest predictor of the annual number of referrals by
Hence, several scholars have argued that the development of the EU constitution has been a
member states to the ECJ (cf. Golub, 1996d). Also, because these litigants have particular
deliberate strategy of national governments (for example Garrett, 1992, 1995a; Garrett and
policy interests, there is a significant relationship between the volume of inter-EU trade and
Weingast, 1993; Cooter and Drexl, 1994; Garrett, Kelemen and Schulz, 1998; Kelemen,
preliminary references in subjects relating to the operation and regulation of the internal
2001). This explanation argues that governments have consciously allowed the ECJ, national
market (Stone Sweet and Brunell, 1998a, p. 75).
courts and transnational litigants to promote legal integration in the EU because it has been in
Another set of transnational interests with a vested interest in the development of the
the governments’ political or economic interests. The flip side of this interpretation is that if
EU legal system is the ‘legal community’ outside the ECJ (Weiler, 1994). The process of
the ECJ or a national court took an action that is contrary to a governments’ interest, the
European integration is primarily elite-driven, and this is as true in the legal field as in the
government will simply ignore the ruling. Cases of high-profile clashes between the national
political and social fields. Also, the legal community in Europe is highly integrated at both
governments and the ECJ or national courts over EU legal issues are rare. But, this does not
economic and social levels, and so has a vested interest in promoting further legal and
mean that governments are powerless in the face of court activism. It simply suggests one of
political integration of Europe to support their activities. As a result, Stein (1981) argues that
two things: either (1) courts are careful not to make decisions that threaten government
the list of actors that have played an active role in the promotion of EU law should include:
29
30
interests; or (2) governments accept decisions that appear to be against them, because they are
in fact in their long-term interests.
Nevertheless, by focusing on the centrality of national governments in the EU system,
and conceptualizing their actions as highly rational, these explanations have some of the same
On the first issue, Garrett and Weingast (1993, pp. 201-2) explain why courts exercise
restraint:
limitations as the intergovernmentalist explanations of European integration (see Chapter 1).
At an empirical level there is substantial evidence that the ECJ and national courts have often
taken decisions that governments have opposed, and which have had negative effects on the
Embedding a legal system in a broader political structure places direct constraints on the
competitiveness of national economies in the single market (Mattli and Slaughter, 1995). At
discretion of a court, even one with as much constitutional independence as the United
a theoretical level, this can be explained by the fact that governments do not have perfect
States Supreme Court … The reason is that political actors have a range of avenues through
information about the likely outcome of delegating adjudication to the ECJ and national
which they may alter or limit the role of courts… . the possibility of such a reaction drives
courts (esp. Alter, 2001, pp. 182-208; cf. Pierson, 1996). For example, when the EU Treaty
a court that wishes to preserve its independence and legitimacy to remain in the arena of
was signed few governments realised that the EU could establish the doctrines of direct effect
acceptable latitude.
and supremacy, or the potential impact of the Article 234 procedure (Alter, 1998b).
In later work, in fact, Garrett, Kelemen and Schulz (1998) accept that governments are
If courts are strategic actors, then they are constrained by the possibility of government
not completely free to ignore adverse rulings. For example, were the EU Treaties are clear
threats, such as reform of the EU Treaty or passing new legislation. For example, faced with
and the legal precedent is strong, the costs of governments ignoring an adverse ruling (in
potential opposition from several national governments, the ECJ has refused to establish that
terms of threatening the very foundations of the EU) will be high. In other words, although
directives have horizontal direct effect, despite the opinions of several advocates-general and
national governments are strategic, there are long-term constraints on governments as a result
numerous academic lawyers.
of allowing the ECJ to develop its own legal precendents and norms. However, the main
On the second issue, Garrett (1995a) proposes a simple model to explain why
thrust of the Garrett et al. argument remains: that the ECJ is heavily constrained if the
governments often accept ECJ rulings against them. The model posits that governments take
potential costs to a powerful domestic constituency are high or if a large number of
two main factors into account: the domestic political clout of the industry that is harmed by
governments are likely to be adversely effected by an ECJ ruling. For example, the Barber
the ECJ decision; and the potential gains to the whole national economy as a result of the
judgement (on the question of equal pension rights for men and women) imposed substantial
decision. Consequently, if the industry is domestically weak and the general economic gains
costs on all governments. In response, the governments added a protocol to the treaty that
are large, the government will ‘accept’ the ECJ ruling (and put up with complaints from the
prevented the retroactive application of the judgement, and following this protocol the ECJ
domestic industry). For example, in the Cassis de Dijon judgement, Garrett argues that the
moderated its activism in this area – although extended its activism in other areas of pensions
German government accepted a ruling that would damage its (relatively small) spirits industry
rights (cf. Pollack, 2003, pp. 360-72).
because the rest of the German economy stood to benefit from the trade liberalization that
resulted from the principle of ‘mutual recognition’. Faced with the contrary pressures, where
the subject industry is domestically powerful and the general economic gains are small, the
Conclusion: ‘unknown destination’ or emerging equilibrium?
government will pursue ‘overt evasion’ of the Court’s decision. However, following this
logic, this situation rarely occurs because the ECJ is careful to avoid such a showdown. The
The EU has a legal-constitutional framework that contains two of the basic doctrines of a
implication is that in the Cassis de Dijon case, the ECJ waited for the right case to come along
federal legal system: the direct effect of EU law on individual citizens throughout the Union,
to establish the principle of mutual recognition – for a similar model of ECJ behaviour on
and the supremacy of EU law over domestic law and constitutions. Also, in the European
international trade disputes see Kelemen (2001).
31
32
Court of Justice the EU has a powerful constitutional and administrative court overseeing the
with the emerging equilibrium in the vertical allocation of competences (discussed in the
implementation of EU law and keeping the EU institutions in check.
Introduction). Put this way, the constitutional settlement relating to the allocation of market
How this came about is a matter of contention. The truth probably lies somewhere
between the explanations discussed.
regulation competences to the European level relies on a stable structure for the enforcement
On the one hand, political actors – national
of contracts in these policy areas. Furthermore, the de facto existence of these parallel
governments, the ECJ, national courts and transnational litigants – have particular interests
equilibria enabled the Convention and the 2003-04 Intergovernmental Conference to codify
and policy goals.
On the other hand, these actors are constrained by their cultural,
the main elements of the EU settlement in a single constitutional text without too much
institutional, political and informational contexts (environmental constraints), and by the
dispute (the IGC was dominated by arguments over the design of the EU institutions, such as
interests of other actors in the system (strategic constraints).
the weighting of votes in the Council, rather than the allocation and policing of competences
In special ‘windows of
opportunity’, nevertheless, actors can shape their environmental surroundings, for example by
reforming institutional structures, establishing institutional norms or modifying national legal
cultures.
between the EU and the member states).
Nevertheless, this equilibrium could be upset by changes in the political context – such
as public opinion, party competition and ideology, and interest group politics – which could
As we saw in the discussion of general theories of judicial politics, courts have more
push the EU towards a full-blooded federal constitutional arrangement, or even result in a
discretion under certain institutional designs than others. The ECJ has a relatively high room
constitutional step backwards (as happened with the German Constitutional Court ruling on
for manoeuvre because there is only a small probability that the EU Treaty will be reformed
the Maastricht Treaty). Consequently, it is to the political context of institutional politics that
to reduce the ECJ’s powers or that new legislation will be passed to overturn one of its
we turn in Part II of this book.
decisions. Because there are many ‘veto players’ in the EU system, at least one member state,
the Commission, the European Parliament, or a group of powerful transnational economic
actors is likely to bloc a reduction of the ECJ’s powers or the overturning of one of its
decisions.
But, the ECJ has imperfect information about how other actors will react to its
decisions. Governments have shorter time horizons than courts because they have to be
reelected every few years. This means that governments are less interested in the long-term
implications of delegating powers to the ECJ than the immediate political salience of a
decision.
But, it also means that the ECJ is uncertain about what issues will become
politically salient in which states.
This judicial politics game has produced an incomplete constitution. For example, the
EU does not have a bill of rights and who has Kompetenz-Kompetenz will remain unclear
until the proposed EU Constitution is ratified and has been operating for some time. Weiler
(1993) consequently argues that the EU has an ‘unknown destination’ (cf. Shonfield, 1973).
However, the theoretical analysis in this chapter suggests that the current constitutional
set-up is already a relatively stable equilibrium: a balance between the discretion of the
ECJ/national courts on the one hand, and the conscious decision by national governments to
construct a rule of law to enable economic integration on the other. This goes hand in hand
33
34
Figure 4.1 A collective action problem in the establishment of a common market
Figure 4.3 Growth of Article 234 references
Member State B
Cell IV
A = +€4m
A = -€3m
B = +€4m
B = +€7m
No. of References
B = -€3m
Cell III
Implement
common market
(‘co-operate’)
225
200
A = +€7
A = €0
B = €0
Member
State A
250
Cell II
Cell I
Don’t implement
common market
(‘defect’)
275
Implement common
market
(‘co-operate’)
Don’t implement common
market
(‘defect’)
175
150
125
100
75
Note: Cost of implementing a common market for each member state = €10 million
Benefit of one member state opening its markets = €7 million to all states
Benefit of two member states opening their markets = €14 million to all states
50
25
Year
Source: Calculated from the Stone Sweet and Brunell (1999) dataset.
Figure 4.2 Court discretion in a separation-of-powers system
L
X
E
C
Y
Note: L = position of the legislature
E = position of the executive
C = position of the court
X = position of a policy agreement between L and E
X-E = E-Y (i.e. the executive is ‘indifferent’ between X and Y)
35
36
1997
1995
1993
1991
1989
1987
1985
1983
1981
1979
1977
1975
1973
1971
1969
1967
1965
1963
1961
0
Table 4.1 Number of Article 234 references by member state
Member State
Germany
France
Austria
Italy
Netherlands
Belgium
United Kingdom
Spain
Sweden
Greece
Denmark
Finland
Portugal
Ireland
Luxembourg
1958-67
1.6
0.5
0.2
2.0
0.5
0.2
Average annual references in each period
1968-77
1978-87
1988-97
1958-97
21.1
34.4
48.6
26.4
5.8
24.7
25.9
14.2
13.3
13.3
5.5
11.6
33.1
12.6
6.1
19.1
19.1
11.6
6.3
12.3
19.9
9.8
1.6
6.8
16.9
9.8
1.0
10.6
9.0
6.3
6.3
2.7
3.0
2.9
0.4
2.3
4.4
2.8
2.3
2.3
0.0
2.4
2.0
0.6
1.7
1.4
1.4
0.4
1.5
1.8
1.0
Note: For each member state, the total number of references in a period was divided by the number of years the
member state was a member of the EU in the period, rather than by the number of years that references were
made.
Table 4.2 Proportion of Article 234 references by subject matter
Subject matter
Agriculture
Free movement of goods
Social security
Taxation
Competition
Establishment
Social provisions
Approximation of laws
Free movement of persons
External
Environment
Transport
Commercial policy
Other
Total references per period
Percent of all references in 1958-97
Percentage of total references in each period
1958-67 1968-77 1978-87 1988-97 1958-97
9.8
36.1
26.0
12.8
20.3
14.8
19.7
18.5
16.3
17.5
34.4
12.6
7.5
8.4
9.0
18.0
4.3
5.4
10.9
8.3
9.8
6.4
5.0
7.4
6.5
1.6
2.8
3.7
8.3
6.0
0.0
0.6
2.5
7.3
4.7
1.6
1.2
3.3
5.9
4.4
0.0
3.1
3.5
4.4
3.8
0.0
2.4
2.5
1.8
2.1
0.0
0.0
1.1
2.4
1.6
0.0
1.2
1.3
1.8
1.5
0.0
1.2
1.2
1.7
1.4
9.8
8.4
18.5
10.5
12.9
61
1.2
675
13.7
1635
33.2
Source: Calculated from the Stone Sweet and Brunell (1999) dataset.
Source: Calculated from the Stone Sweet and Brunell (1999) dataset.
37
2547
51.8
38
4918
100.0
Table 4.3 Non-compliance cases before the ECJ
Italy
Greece
Spain
Belgium
Germany
France
United Kingdom
Netherlands
Ireland
Denmark
Portugal
Average number of non-compliances cases per
year, 1972-1993
7.0
4.3
3.4
3.1
1.9
1.8
1.5
1.2
1.1
0.6
0.4
Note: These figures count the number of cases in which the ECJ declared that a failure to fulfil a Treaty
obligation had occurred, regardless of whether this was at the administrative or judicial phase of an
infringement proceeding.
Source: Calculated from the data in Mbaye (2001).
39

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