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Europe Before the Court: A Political Theory of Legal Integration

  • Anne-Marie Burley and Walter Mattli
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The European Court of Justice has been the dark horse of European integration, quietly transforming the Treaty of Rome into a European Community (EC) constitution and steadily increasing the impact and scope of EC law. While legal scholars have tended to take the Court's power for granted, political scientists have overlooked it entirely. This article develops a first-stage theory of community law and politics that marries the insights of legal scholars with a theoretical framework developed by political scientists. Neofunctionalism, the theory that dominated regional integration studies in the 1960s, offers a set of independent variables that convincingly and parsimoniously explain the process of legal integration in the EC. Just as neofunctionalism predicts, the principal forces behind that process are supranational and subnational actors pursuing their own self-interests within a politically insulated sphere. Its distinctive features include a widening of the ambit of successive legal decisions according to a functional logic, a gradual shift in the expectations of both government institutions and private actors participating in the legal system, and the strategic subordination of immediate individual interests of member states to postulated collective interests over the long term. Law functions as a mask for politics, precisely the role neofunctionalists originally forecast for economics. Paradoxically, however, the success of legal institutions in performing that function rests on their self-conscious preservation of the autonomy of law.

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1. The reference is to the title of Haas's magisterial study of early integration efforts focused on the European Coal and Steel Community. See Ernst Haas, B., The Uniting of Europe (Stanford, Calif.: Stanford University Press, 1958).

2. See, for example, Robert Keohane and Stanley Hoffmann, , “Conclusions: Community Politics and Institutional Change,” in Wallace, William, ed., The Dynamics of European Integration (London: Pinter, 1990), pp. 280–81.

3. The definitive account of the “constitutionalization” of the treaty is an article by Stein, Eric, “Lawyers, Judges, and the Making of a Transnational Constitution,” American Journal of International Law 75 (01 1981), pp. 127. For a more recent account from an ECJ judge, see Mancini, G. Federico, “The Making of a Constitution for Europe,” Common Market Law Review, vol. 26, 1989, pp. 595614.

4. This apparent indifference to larger political questions has been so profound as to earn reproach even from a member of the ECJ itself. Judge Ulrich Everling offered his own account of the relationship between the Court and the member states in 1984, beginning, “The central problem of the European Community is the tension which exists between it and its Member States.” He further observed in a footnote that “this problem is largely ignored and underestimated in the legal literature.” See Ulrich Everling, The Member States of the European Community Before Their Court of Justice,” European Law Review, vol. 9, 1984, p. 215. See also Everling's works “Das Europäische Gemeinschaftsrecht im Spannungsfeld von Politik and Wirtschaft” (EC law in tension between politics and economics), in Grewe, Wilhelm G., Rupp, Hans, and Schneider, Hans, eds., Europäische Gerichtsbarkeit und nationale Verfassungsgerichtsbarkeit: Festschrift zum 70. Geburtstag von Hans Kutscher (European jurisdiction and national constitutional jurisdiction: Festschrift on the 70th birthday of Hans Kutscher) (Baden-Baden: Nomos, 1981), pp. 155–87; and “Europäische Politik durch Europäisches Recht?” (European politics through European law?), EG–Magazin, 01 1984, pp. 35.

5. A noteworthy exception is Scheingold, Stuart, The Rule of Law in European Integration (New Haven, Conn.: Yale University Press, 1965). Other early works on the Court will be discussed below.

6. The one major exception, discussed below, is Garrett, Geoffrey, “International Cooperation and Institutional Choice: The European Community's Internal Market,” International Organization 46 (Spring 1992), pp. 533–60. See also Geoffrey Garrett and Barry Weingast, “Ideas, Interests and Institutions: Constructing the EC's Internal Market,” manuscript, Dept. of Political Science, Duke University, Durham, N.C., 1992.

7. After reviewing the events of the late 1980s and the new flurry of interest in the literature, Keohane and Hoffmann resurrected neofunctionalism and restored it to the agenda of EC research, reminding their readers of its more sophisticated aspects. See Keohane and Hoffmann, “Conclusions,” p. 286 ff. In the same article, drawing on the work of Joseph Weiler and Renaud Dehousse, Keohane and Hoffmann also acknowledge that the “Community legal process has a dynamic of its own,” (p. 278). They fail to put these two insights together, however. An argument that neofunctionalists mistakenly overlooked the ECJ is found in Philippe Schmitter, C., “Interests, Powers and Functions: Emergent Properties and Unintended Consequences in the European Polity,” in Lange, Peter and Marks, Gary, eds., The Future European Polity, forthcoming.

8. A quantitative illustration of the growing importance of community law is the number of cases referred to the ECJ by domestic courts. The number jumped from a low of nine in 1968 to a high of 119 in 1978.

9. Legal integration does not necessarily need to take place within the framework of supranational institutions, although that is our focus here. For a noninstitutional analysis of the dynamics of legal integration among liberal states, see Anne-Marie Burley, “Liberal States: A Zone of Law,” presented at the annual meeting of the American Political Science Association, Chicago, 3–6 September 1992.

10. Stein, , “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 3.

11. Shapiro, Martin, “Comparative Law and Comparative Politics,” Southern California Law Review 53 (01 1980), p. 538. For a similar view, see Kaiser, Karl, “L'Europe des Savants. European Integration and the Social Sciences,” Journal of Common Market Studies 4 (10 1965), pp. 3646, esp. pp. 3940.

12. Justice Lord Mackenzie Stuart writes: “It is the Treaties and the subordinate legislation which have a policy, and which dictate the ends to be achieved. The Court only takes note of what has already been decided.” See Stuart, Mackensie, The European Communities and the Rule of Law (London: Stevens, 1977), p. 77. For a similar argument, see Lecourt, Robert, L'Europe des Juges (The Europe of the judges) (Brussels: E. Bruylant, 1976), p. 237.

13. Mancini, “The Making of a Constitution for Europe,” p. 600. For variations on the same theme, see Lecourt, , L'Europe des Juges, pp. 241–47; Pescatore, Pierre, The Law of Integration (Leyden: Sijthoss, 1974), pp. 8990; Hans Kutscher, “Methods of Interpretation: As Seen by a Judge at the Court of Justice,” presented at the Judicial and Academic Conference, Luxembourg, 1976, as cited by Rasmussen, Hjalte, On Law and Policy in the European Coun of Justice: A Comparative Study in Judicial Policymaking (Dortrecht: M. Nijhoff, 1986), pp. 179–83; Everling, Ulrich, “The Court of Justice as a Decisionmaking Authority,” Michigan Law Review 82 (04/05 1984), pp. 1294–310; Bettati, Mario, “Le ‘law–making power’ de la Cour” (The law-making power of the court), Pouvoirs, no. 48, 1989, pp. 5770; and Barav, Ami, “The Judicial Power of the European Economic Community,” Southern California Law Review 53 (01 1980), pp. 461525.

14. Writers in this tradition point frequently to Article 4 of the Rome treaty, which lists the court as one of the institutions to carry out the tasks entrusted to the community by member states who, according to the treaty's preamble, are “determined to lay the foundations of an ever closer union among the people of Europe.” See Treaties Establishing the European Communities (Luxembourg: Office for Official Publications of the European Communities, 1987).

15. Rasmussen, , On Law and Policy in the European Coun of Justice, pp. 195–96, n. 127.

16. This approach was pioneered by Scheingold in a study of the early Court (1953 to the early 1960s) when it served as the judicial arm of the European Coal and Steel Community (ECSC) and in 1957 extended its activities to the European Economic Community (EEC) and the Atomic Energy Community. See Scheingold, Stuart, The Rule of Law in European Integration (New Haven, Conn.: Yale University Press, 1965).

17. Weiler, Joseph, “The Community System: The Dual Character of Supranationalism,” Yearbook of European Law, vol. 1, 1981, pp. 268306.

18. ibid., p. 270.

19. ibid., p. 291.

20. In his most recent article, Weiler retreats from his earlier causal proposition, claiming instead to offer a “synthesis and analysis … in the tradition of the ‘pure theory of law’ with the riders that ‘law’ encompasses a discourse that is much wider than doctrine and norms and that the very dichotomy of law and politics is questionable.” See Weiler, Joseph, “The Transformation of Europe,” Yale Law Journal 100 (06 1991), p. 2409. As a newly self-proclaimed legalist, Weiler avoids the difficulties of empirical proof. He borrows two concepts from Albert Hirschman's Exit, Voice, and Loyalty—Responses to Decline in Firms, Organizations, and States (Cambridge, Mass.: Harvard University Press, 1970). The concept of exit describes the mechanism of organizational abandonment in the face of unsatisfactory performance; voice describes the mechanism of intraorganizational correction and recuperation. Weiler claims that the process by which community norms and policy hardened into binding law with effective legal remedies constitutes “the closure of Selective Exit” in the EEC. This in turn increased the importance of voice. Crucially, Weiler adds: “Instead of simple (legal) cause and (political) effect, this subtler process was a circular one. On this reading, the deterioration of the political supranational decisional procedures, the suspension of majority voting in 1966, and the creation and domination of intergovernmental bodies such as COREPER [the Committee of Permanent Representatives] and the European Council constituted the political conditions that allowed the Member States to digest and accept the process of constitutionalization.” See ibid., pp. 2428–29. The direct causal sequence of his earlier work is now reversed, and his conclusion as to the ultimate nature of the Court's impact on the integration process is equivocal, simultaneously recognizing the positive contributions of the Court and warning against the dangers of excessive judicial activism.

21. Rasmussen, , On Law and Policy in the European Court of Justice, p. 3.

22. ibid., p. 8.

23. ibid., p. 12.

24. ibid., p. 13.

25. Lenaerts, Koen, “The Role of the Court of Justice in the European Community: Some Thoughts About the Interaction Between Judges and Politicians,” University of Chicago Legal Forum, 1992, forthcoming.

26. ibid., p. 35.

27. We borrow this expression from Weiler, Joseph, “Community, Member States, and European Integration: Is the Law Relevant?Journal of Common Market Studies 21 (0912 1982), pp. 3956.

28. Taylor, Paul, The Limits of European Integration (New York: Columbia University Press, 1983), p. 280.

29. ibid., p. 284.

30. ibid., p. 294.

31. Scheingold, Stuart A., The Law in Political Integration: The Evolution and Integrative Implications of Regional Legal Processes in the European Community, Occasional Papers in International Affairs, no. 27, (Cambridge, Mass.: Center for International Affairs, Harvard University, 1971).

32. ibid., p. 16.

33. ibid., p. 3, emphasis added.

34. ibid. For a related argument on the virtues of the “federal rhetoric,” see Pryce, Roy, “Past Experience and Lessons for the Future,” in Roy Pryce and Wolfgang Wessels, eds., The Dynamics of European Union (London: Croom Helm, 1987), pp. 273–96.

35. See Garrett, “International Cooperation and Institutional Choice”; and Garrett and Weingast, “Ideas, Interests, and Institutions.”

36. For a discussion of the “rationalist” approach versus the “reflectivist” approach to institutions, see Keohane, Robert O., “International Institutions: Two Approaches,” International Studies Quarterly 32 (12 1988), pp. 379–96.

37. Garrett, , “International Cooperation and Institutional Choice,” p. 556.

38. ibid., p. 557.

39. See Garrett, and Weingast, , “Ideas, Interests, and Institutions, p. 27; and Garrett, , “International Cooperation and Institutional Choice,” pp. 540 and 557.

40. Garrett, and Weingast, , “Ideas, Interests, and Institutions,” p. 27.

41. ibid., p. 13.

42. See Garrett, , “International Cooperation and Institutional Choice,” p. 557; and Garrett, and Weingast, , “Ideas, Interests, and Institutions,” pp. 2728.

43. Garrett, , “International Cooperation and Institutional Choice,” p. 558.

44. ibid., p. 559.

45. See discussion below.

46. For a compelling overview of the evidence, see Stein, , “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 25.

47. See discussion of the Sheepmeat cases below.

48. Moravcsik, Andrew, “Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community,” International Organization 45 (Winter 1991), pp. 1956.

49. Andrew Moravcsik also has pointed out this parallel. See ibid., p. 24, n. 17. Ironically, the authors themselves explicitly disavow the usefulness of neofunctionalism to the understanding of Europe 1992; see Sandholtz, Wayne and Zysman, John, “1992: Recasting the European Bargain,” World Politics 42 (10 1989), pp. 95128.

50. See Sandholtz, Wayne, “Choosing Union: Monetary Politics and Maastricht,” this issue of International Organization.

51. See Haas, The Uniting of Europe.

52. See in particular the following works by Haas, Ernst: “International Integration: The European and the Universal Process,” International Organization 15 (Summer 1961), pp. 366–92; Beyond the Nation-State (Stanford, Calif.: Stanford University Press, 1964); “Technocracy, Pluralism, and the New Europe,” in Stephen Graubard, ed., A New Europe? (Boston: Houghton Mifflin, 1964) reprinted in Nye, Joseph, International Regionalism (Boston: Little, Brown, 1968), pp. 149–79 (our citations refer to this latter version); and The Study of Regional Integration: Reflection on the Joy and Anguish of Pretheorizing,” International Organization 24 (Autumn 1970), pp. 607–46. See also Ernst Haas, B. and Schmitter, Phillipe, “Economic and Differential Patterns of Political Integration: Projections About Unity in Latin America,” International Organization 18 (Autumn 1964), pp. 705–37.

53. Haas, , “The Study of Regional Integration,” p. 610.

54. Haas, , “International Integration,” p. 366. See also, Haas, , The Uniting of Europe, p. 12.

55. Scheingold, Stuart A. and Lindberg, Leon N., Europe's Would-be Polity (Englewood Cliffs. N.J.: Prentice-Hall, 1970), p. 92.

56. ibid., p. 78.

57. We borrow this expression from Reginald Harrison, , Europe in Question: Theories of Regional International Integration (London: Allen and Unwin, 1974), p. 80.

58. Haas, , The Uniting of Europe, p. xiv.

59. Haas, , Beyond the Nation-State, p. 34.

60. This idea points to an affinity of neofunctionalism with rational choice theories. Self-interest need not be identical with selfishness. The happiness (or misery) of other people may be part of a rational maximizer's satisfaction.

61. Haas, , The Uniting of Europe, p. xiv, emphasis added.

62. Note that the idea of spillover is not new. There are numerous variations on the theme. Claude notes that writing before World War I, Paul S. Reinsch adumbrated a “concentric circles” concept of International Organization, according to which the idea of multilateral attack upon world problems will function like a pebble dropped into the international pond, giving rise to a series of circles of cooperation which will expand from a limited area of technical agencies to vast circumference of a global political and security organization (Public International Union, Boston, Ginn, 1911). Paul Hoffman has suggested that “the good thing about the spirit of unity is that it ramifies out; when you cultivate habits of unity in the economic sphere, they naturally spread over to the political sphere and even to the military sphere when the need arises.” (Peace Can Be Won, New York, Doubleday, 1951, p. 62). See Claude, Inis L., Swords into Plow Shares, 4th ed. (New York: Random House, 1971, p. 384).

63. Lindberg, Leon, The Political Dynamics of the European Economic Integration (Stanford, Calif.: Stanford University Press, 1963), p. 10. We follow George's suggestion of strictly distinguishing those two types of spillover. See George, Stephen, Politics and Policy in the European Community (Oxford: Clarendon Press, 1985), pp. 1636. George also offers a compelling illustration of functional spillover. He argues that the removal of tariff barriers will not in itself create a common market. The fixing of exchange rates also is required in order to achieve that end. But, the surrender of control over national exchange rates demands the establishment of some sort of monetary union, which, in turn, will not be workable without the adoption of central macroeconomic policy coordination and which itself requires the development of a common regional policy, and so forth (pp. 21–22).

64. Haas, , The Uniting of Europe, p. 297.

65. Haas, , “Technocracy, Pluralism, and the New Europe,” p. 165.

66. Haas, , Beyond the Nation-State, p. 48.

67. “The European executives [are] able to construct patterns of mutual concessions from various policy contexts and in so doing usually manage to upgrade [their] own powers at the expense of the member governments.” Haas, “Technocracy, Pluralism, and the New Europe,” p. 152.

68. ibid.

69. Mitrany, David, A Working Peace (Chicago: Quadrangle Books, 1966), p. 99. Besides Mitrany's work, see also Sewell, James Patrick, Functionalism and World Politics, (Princeton, N.J.: Princeton University Press, 1966); Haas, Ernst, Beyond the Nation-State, especially chaps. 14; and Claude, , Swords into Plowshares, especially chap. 17.

70. Haas, , “Technocracy, Pluralism, and the New Europe,” p. 152, emphasis added.

71. Haas, , “International Integration,” p. 102.

72. ibid., p. 372.

73. Nye, Joseph, “Patterns and Catalysts in Regional Integration,” International Organization 19 (Autumn 1965), pp. 870–84.

74. See Hoffmann, Stanley, “Obstinate or Obsolete? The Fate of the Nation–State and the Case of Western Europe,” Daedalus 95 (Summer 1966), pp. 862915; Hoffmann, Stanley, “Discord in Community: The North Atlantic Area as a Partial System,” reprinted in Wilcox, Francis and Haviland, Henry Field, eds., The Atlantic Community: Progress and Prospects (New York: Praeger, 1963).

75. Haas, Ernst B., The Obsolescence of Regional Integration Theory (Berkeley: University of California Press, 1975). See also Haas, Ernst B., “Turbulent Fields and the Theory of Regional Integration,” International Organization 30 (Spring 1976), pp. 173212.

76. Haas and Schmitter, “Economic and Differential Patterns of Political Integration,” p. 710.

77. For a cross-section of the résumés of both judges and advocates general, see Brown, L. Neville and Jacobs, Francis, The Court of Justice of the European Communities (London: Sweet and Maxwell, 1977), pp. 3348.

78. It may seem odd to characterize lower national courts as subnational actors, but as discussed below, much of the Court's success in creating a unified and enforceable community legal system has rested on convincing lower national courts to leapfrog the national judicial hierarchy and work directly with the ECJ. See Volcansek, Mary L., Judicial Politics in Europe (New York: Peter Lang, 1986), pp. 245–67; and Usher, John, European Community Law and National Law (London: Allen and Unwin, 1981).

79. Rasmussen, , On Law and Policy in the European Court of Justice, p. 245.

80. The Court's rules allow member states to intervene to state their position in any case they deem important, but this provision is regularly underutilized.

81. See Brown, and Jacobs, , The Coud of Justice of the European Communities, pp. 180–81.

82. Schermers, Henry, “Special Foreward,” Common Market Law Review, no. 27, 1990, pp. 637–38.

83. Prominent examples include The Common Market Law Review, The European Law Review, Yearbook of European Law, Legal Issues of European Integration, Cahier de Droit Européen, Revue trimestrielle de Droit Européen, and Europarecht. A vast number of American international and comparative law journals also publish regular articles on European law.

84. See Case 25/62, Plaumann & Co. v. Commission of the European Economic Community, European Court Reports (ECR), 1963, p. 95. See also Rasmussen, Hjalte, “Why is Article 173 Interpreted Against Private Plaintiffs?European Law Review, no. 5, 1980, pp. 112–27.

85. Case 26/62, N.V. Algemene Transport & Expeditie Ondememing Van Gend & Loos v. Nederlandse Administratie der Belastingen, ECR, 1963, p. 1.

86. ibid., p. 12, emphasis added.

87. See Stein, , Lawyers, Judges, and the Making of a Transnational Constitution.

88. Case 57/65, Alfons Lütticke GmbH v. Hauptzollamt Saarlouis, ECR, 1986, p. 205.

89. See Case 36/74, Walrave, B.N.O. and L.J.N. Koch v. Association Union Cycliste Internationale, ECR, 1974, p. 1405; and Case 149/77, Gabrielle Defrenne v. Societe Anonyme Belge de Navigation Aerienne Sabena, ECR, 1978, p. 1365.

90. See Case 9/70, Franz Grad v. Finanzamt Traunstein, ECR, 1970, p. 825; and Case 411/74, Yvonne Van Duyn v. Home Office, ECR, 1974, p. 1337.

91. Bundesfinanzhof decision of 25 April 1985 (VR 123/84), Entscheidungen des Bundesfinanzhofes, vol. 143, p. 383 (noted by Crossland, H. Gerald, European Law Review, 1986, pp. 476–79). The decision was quashed by the Bundesverfassungsgericht (the German Constitutional Court) in its decision of 8 April 1987 (2 BvR 687/85), [1987] Recht der Intemationalen Wirtschaft 878. See also the Cohn Bendit case, Conseil d'Etat, 22 12 1978, Dalloz, 1979, p. 155.

92. See Case 152/84, Marshall v. Southhampton and South West Hampshire Area Health Authority (Teaching), Common Market Law Review, vol. 1, 1986, p. 688; and Case 152/84, ECR, 1986, p. 737. On the relationship between Marshall and Marleasing, See Rasmussen, Hjalte, “The Role of the Court in the European Community: Towards a Normative Theory of Interpretation of Community Law,” University of Chicago Legal Fomm, forthcoming.

93. Van Duyn, p. 1342.

94. ibid., p. 1348. For a discussion of more recent cases in which the Court explicitly has carved out individual rights in the enforcement of community directives, see Curtin, Deirdre, “Directives: The Effectiveness of Judicial Protection of Individual Rights,” Common Market Law Review, vol. 27, 1990, pp. 709–39.

95. Mancini describes this process in great detail; see Mancini, , “The Making of a Constitution for Europe,” pp. 605–6. See also Pescatore, , The Law of Integration, p. 99; and Rasmussen, , On Law and Policy in the European Court of Justice, p. 247.

96. More prosaically, but no less effectively for the construction of a community legal system, the Article 177 procedure offers “clever lawyers and tacticians … the possibility of using Community law to mount challenges to traditional local economic restrictions in a way which may keep open a window of trading opportunity whilst the legal process grinds away.” In a word, delay. See Gormley, L., “Recent Case Law on the Free Movement of Goods: Some Hot Potatoes,” Common Market Law Review, vol. 27, 1990, pp. 825–57.

97. Haas, , Beyond the Nation–State, p. 128.

98. Rasmussen describes a “generous information campaign,” as a result of which a steadily increasing number of national judges traveled to the Palais de Justice, at the ECJ's expense, for conferences about the court and the nature of the Article 177 procedure. See Rasmussen, , On Law and Policy in the European Court of Justice, p. 247.

99. Mancini, , “The Making of a Constitution for Europe,” p. 605. In this regard, Mary Volcansek offers an interesting discussion of the various “follow–up mechanisms” the ECJ employed to further an ongoing partnership with the national courts, including positive feedback whenever possible and gradual accommodation of the desire occasionally to interpret community law for themselves. See Volcansek, , Judicial Politics in Europe, pp. 264–66.

100. Shapiro, Martin, “The European Court of Justice,” in Sbragia, Alberta M., ed., Euro-politics: Institutions and Policymaking in the New European Community (Washington, D.C.: Brookings Institution, 1991), p. 127.

101. Weiler, , “The Transformation of Europe,” p. 2426.

102. ibid. Anecdotal evidence also suggests that lower national courts who refer questions to the ECJ save themselves the work of deciding the case themselves and simultaneously protect against the chance of reversal.

103. Van Gend & Loos, p. 22.

104. See, e.g., Lütticke, p. 10, where the ECJ announced that the direct effect of the treaty article in question depends solely on a finding by the national court; see also Case 33/76 Rewe–Zentralfinanz Gesellschaft and Rewe-Zentral AG v. Landwirtschaftskammer fur das Saarland, ECR, 1989, p. 1998; and Case 45/76 Comet BV v. Produktschap voor Siergewassen, , ECR, 1976, pp. 2052–53.

105. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. [1978] ECR 629.

106. ibid., p.643.

107. Riasmussen, , On Law and Policy in the European Court of Justice, p. 245.

108. See Lenaerts, Koenrad, “The Role of the Court of Justice in the European Community: Some Thoughts About the Interaction Between Judges and Politicians,” University of Chicago Legal Forum, forthcoming.

109. For a number of specific examples, see Evening, “The Court of Justice as a Decisionmaking Authority,” pp. 12991301.

110. The “Jean Monnet Action,” a program of the European Commission, has recently created fifty–seven new full-time teaching posts in community law as part of a massive program to create new courses in European integration.

111. Pescatore, , The Law of Integration, pp. 8990.

112. ibid., p. 87, emphasis added.

113. Mancini, , “The Making of a Constitution for Europe,” p. 600.

114. ibid.

115. ibid., p. 601.

116. This is the way Joseph Weiler describes the supremacy cases, again tacitly emphasizing a necessary logical progression. See Weiler, “The Transformation of Europe,” p. 2414.

117. Nugent, Neil, The Government and Politics of the European Community (Durham, N.C.: Duke University Press, 1989), p. 151.

118. See Council Directive on Voting Rights for Community Nationals in Local Elections in Their Member States of Residence,” Official Journal, 1988, C256/4, and Amended Proposal, Official Journal, 1989, C290/4.

119. For further reading, see Leleux, Paul, “The Role of the European Court of Justice in Protecting Individual Rights in the Context of Free Movement of Persons and Services,” in Eric Stein and Terrence Sandalow, eds., Courts and Free Markets, vol. 2 (Oxford: Clarendon Press, 1982), pp. 363427.

120. Schermers, Henry, “The Role of the European Court of Justice in the Free Movement of Goods,” in Eric Stein and Terrence Sandalow, eds., Courts and Free Markets, vol. 1, pp. 222–71.

121. See Haas, , “International Integration,” p. 366; and Haas, , The Uniting of Europe, p. 12.22

122. Weiler, , “The Transformation of Europe,” p. 2425.

123. Rasmussen, , On Law and Policy in the European Court ofJustice, pp. 275–81.

124. As is now widely recognized, Belgium, Germany, and the Netherlands all filed briefs strongly objecting to the notion of direct effect in Van Gend & Loos. None subsequently suggested revisiting that decision.

125. The first of these cases was Case 48/74, Mr. Charmasson v. Minister for Economic Affairs and Finance, ECR, p. 1383, involving a suit by a French banana importer challenging import restrictions imposed by the French banana market organization; the second was the Potato case, Case 231/78, Commission v. UK, ECR, 1979, p. 1447, an action by the commission against Britain for the activities of its potato market organization in which the French government supported the British position against the interests of its own potato exporters. The final installment in this saga was a challenge by the commission against the French again, this time for restrictions on sheepmeat from Britain. See Case 232/78, Commission v. France, ECR, 1979, p. 2729.

126. For a more detailed account of the arguments of the various parties in these cases, see Rasmussen, , On Law and Policy in the European Court ofJustice, pp. 281–84 and 338–45.

127. Case 22/70, Commission of the European Communities v. Council of the European Communities, ECR, 1971, p. 363.

128. Pescatore, , The Law of Integration, p. 88.

129. ibid., p. 89.

130. See, for example, Shapiro, Martin, “The Constitution and Economic Rights,” in Harmon, M. Judd, ed., Essays on the Constitution of the United States (Port Washington, N.Y.: Kennikat Press, 1978), pp. 7498.

131. See Dumon, F., “La jurisprudence de la Cour de Justice. Examen critique des methodes d'interpretation” (The jurisprudence of the ECJ. Critical study of methods of interpretation) (Luxembourg: Office for Official Publications of the European Communities, 1976), pp. 5153; Green, A.W., Political Integration by Jurisprudence (Leiden: Sijthoff, 1969), pp. 2633 and 498; Mann, Clarence, The Function of Judicial Decision in European Economic Integration (The Hague: Martinus Nihjoff, 1972), pp. 508–15; Scheingold, , The Rule of Law in European Integration, pp. 263–85; and Stein, “Lawyers, Judges, and the Making of a Transnational Constitution, passim.

132. For a discussion of “the oral tradition” of criticism that European scholars refuse publicly to acknowledge, see Rasmussen, , On Law and Policy in the European Court ofJustice, pp. 147–48 and 152–54.

133. Shapiro, , “Comparative Law and Comparative Politics,” p. 542.

134. Pescatore, , The Law of Integration, p. 89.

135. Van Gend & Loos.

136. Mancini, , “The Making of a Constitution,” p. 606.

137. ibid., pp. 612–14.

138. The classic study documenting this proposition is Eric Stein, “Lawyers, Judges, and the Making of a Transnational Constitution,” p. 25. Out of ten landmark cases, Stein found only two in which the Court had diverged from the Commission.

139. Pescatore, , The Law of Integration, p. 80.

140. ibid., pp. 80–82.

141. ibid., p. 82.

142. See Rasmussen, , On Law and Policy in the European Coun ofJustice, pp. 238–40.

143. The most notable proponents of this approach to American judicial politics were Justice Felix Frankfurter and his intellectual protégé Alexander Bickel. See Bickel, Alexander, The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970).

144. Mancini, , “The Making of a Constitution for Europe,” p. 605, emphasis original.

145. Treaty on European Union, Articles 126129 (Luxembourg: Office for Official Publications of the European Communities, 1992).

146. We are indebted to Joseph Weiler for this reading of the Maastricht Treaty.

147. Treaty on European Union, Article 143.

148. For a discussion of the distinctive characteristics of reflectivism, see Keohane, “Two Views of Institutions,” pp. 389–93. See also Kratochwil, Friedrich and Ruggie, John Gerard, “International Organization: A State of the Art on an Art of the State,” International Organization 40 (Autumn 1986), pp. 753–75; Kratochwil, Friedrich V., Rules, Norms, and Decisions (Cambridge: Cambridge University Press, 1989); Ruggie, John Gerard, “Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis,” World Politics 35 (1983), pp. 261–85; and Wendt, Alexander, “Anarchy is What States Make of It,” International Organization 46 (1992), pp. 391426.

149. See Stone, Alec, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (Oxford: Oxford University Press, 1992); and Stone, Alec, “Judging Socialism: Constitutional Politics in France and Germany,” Comparative Political Studies, forthcoming.

150. Shapiro, , “Comparative Law and Comparative Politics,” pp. 540–42.

151. It should be noted here that Volcansek has integrated similar arguments into a more comprehensive political theory about the impact of ECJ judgments on national courts, arguing for the importance of “legitimacy and efficacy” as one of four factors determining the nature of that impact. See Volcansek, , Judicial Politics in Europe, pp. 267–70.

152. Weiler, , “The Transformation of Europe,” p. 2428.

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International Organization
  • ISSN: 0020-8183
  • EISSN: 1531-5088
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