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Europe Before the Court: A Political Theory of Legal Integration

Published online by Cambridge University Press:  22 May 2009

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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International Organization , Volume 47 , Issue 1 , Winter 1993 , pp. 41 - 76
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Copyright © The IO Foundation 1993

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References

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).Google Scholar

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38. ibid., p. 557.

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44. ibid., p. 559.

45. See discussion below.

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47. See discussion of the Sheepmeat cases below.

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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).Google Scholar 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).Google Scholar See Claude, Inis L., Swords into Plow Shares, 4th ed. (New York: Random House, 1971, p. 384).Google Scholar

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68. ibid.

69. Mitrany, David, A Working Peace (Chicago: Quadrangle Books, 1966), p. 99.Google Scholar Besides Mitrany's work, see also Sewell, James Patrick, Functionalism and World Politics, (Princeton, N.J.: Princeton University Press, 1966)CrossRefGoogle Scholar; Haas, Ernst, Beyond the Nation-State, especially chaps. 1–4Google Scholar; and Claude, , Swords into Plowshares, especially chap. 17.Google Scholar

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

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

72. ibid., p. 372.

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

74. See Hoffmann, Stanley, “Obstinate or Obsolete? The Fate of the Nation–State and the Case of Western Europe,” Daedalus 95 (Summer 1966), pp. 862–915Google Scholar; 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).Google Scholar

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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. 33–48.Google Scholar

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

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.Google Scholar

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

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.Google Scholar See also Rasmussen, Hjalte, “Why is Article 173 Interpreted Against Private Plaintiffs?” European Law Review, no. 5, 1980, pp. 112–27.Google Scholar

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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.Google Scholar

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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.Google Scholar

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

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99. Mancini, , “The Making of a Constitution for Europe,” p. 605.Google Scholar 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.Google Scholar

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

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. 1998Google Scholar; and Case 45/76 Comet BV v. Produktschap voor Siergewassen, , ECR, 1976, pp. 2052–53.Google Scholar

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

106. ibid., p.643.

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

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 ForumGoogle Scholar, forthcoming.

109. For a number of specific examples, see Evening, “The Court of Justice as a Decisionmaking Authority,” pp. 1299–1301.Google Scholar

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. 89–90.Google Scholar

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

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

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.CrossRefGoogle Scholar

118. See “Council Directive on Voting Rights for Community Nationals in Local Elections in Their Member States of Residence,” Official Journal, 1988, C256/4Google Scholar, 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. 363–427.Google Scholar

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

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

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

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.Google Scholar

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

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

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. 74–98.Google Scholar

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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.Google Scholar

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

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

135. Van Gend & Loos.

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

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.Google Scholar

140. ibid., pp. 80–82.

141. ibid., p. 82.

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

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).Google Scholar

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

145. Treaty on European Union, Articles 126–129 (Luxembourg: Office for Official Publications of the European Communities, 1992).Google Scholar

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. 753–75CrossRefGoogle Scholar; Kratochwil, Friedrich V., Rules, Norms, and Decisions (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar; Ruggie, John Gerard, “Continuity and Transformation in the World Polity: Toward a Neorealist Synthesis,” World Politics 35 (1983), pp. 261–85CrossRefGoogle Scholar; and Wendt, Alexander, “Anarchy is What States Make of It,” International Organization 46 (1992), pp. 391–426.CrossRefGoogle Scholar

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

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

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.Google Scholar

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