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WALTER MATTLI [*] & ANNE-MARIE SLAUGHTER [**]
©Copyright: Walter Mattli & Anne-Marie Slaughter, June 1996.
II. THE ROLE OF INDIVIDUAL LITIGANTS IN EC LEGAL
INTEGRATION
A. The Actors and the Dynamics of Integration: Neofunctionalism and Legal Integration
III. THE ROLE OF NATIONAL COURTS IN EC LEGAL
INTEGRATION
IV. CONSTRAINTS ON THE PROCESS OF LEGAL INTEGRATION
The process of European legal integration has been characterized by considerable variation in the timing and the extent of acceptance of key doctrines of EC law among different national courts. What explains this variation? We answer this question by refining our earlier model that explained legal integration as the result of cooperation between the European Court of Justice and both individual litigants and national courts. To explain variation, we pay close attention to the specific preferences of the various actors we identify and the constraints shaping their pursuit of those preferences. Regarding individual litigants, we examine the constraints imposed not only by the legal process, but also by a differential ability to bring a series of suits rather than just one. With respect to national courts, we analyze those constraints in the context of specific conceptions of judicial identity and the constraints imposed by legal legitimacy and democratic accountability. We conclude with a review of some developments in legal scholarship that are likely to prove conducive to more interdisciplinary collaboration between political scientists and legal scholars.
Political scientists have discovered the European Court of Justice (ECJ). Three years ago we published Europe before the Court, a political analysis of legal integration in the European Community (EC) within a neofunctionalist framework.[1] We added our voices to a number of others calling for an interdisciplinary approach to EC law, or at least a plea to examining EC law in political, economic and social context. Legal scholars such as Eric Stein, Francis Snyder, Martin Shapiro, Hjalte Rasmussen, and, most notably, Joseph Weiler, had been pushing European and American lawyers away from strictly doctrinal analyses of EC law for over a decade. On the political science side, Mary Volcansek had revived the pioneering tradition of Stuart Scheingold in developing an impact analysis of European judicial politics, focusing particularly on the relationship between the ECJ and national courts.[2] Nevertheless, as we noted at the time, the overwhelming majority of political scientists studying and writing about the European Community gave the Court very short shrift.
This deficit has been remedied. Geoffrey Garrett, for example, has advanced a general model to account for the impact of the Court on the general process of European integration.[3] Martin Shapiro and Alec Stone have begun analyzing the Court from the perspective of comparative judicial politics.[4] In addition, a crop of younger scholars are focusing specifically on the dynamics of European legal integration. Promising dissertations are forthcoming from Karen Alter, Bernadette Kilroy, and Amy Richmond, to name only a few, examining the relationship between the ECJ and national courts, the congruence between national court decisions and economic and political definitions of the national interest in specific countries, and the rate of member state participation in cases before the ECJ.[5] Other contributions include Jonathan Golub's analyses of patterns of references from the national courts, Karen Alter and Sophie Meunier-Aitsahalia's analysis of the Cassis de Dijon decision, and several thought-provoking analyses by Daniel Wincott.[6] At the same time, a new generation of EC legal scholars are adopting a much more lively and critical stance toward ECJ jurisprudence, coupled with reflections on the dynamics of the EC legal community.[7]
Amid this ferment, we seek to revisit our original framework for explaining EC legal integration. We contend that much of the empirical evidence that has emerged in the interim confirms our basic claims concerning the key actors in the legal integration process, their motives, the dynamics of their interaction, and the context in which they operate. EC lawyers themselves are increasingly willing to acknowledge the closely constructed network of sub- and supra-national actors acting within an insulated and self-consciously constructed "community of law."[8] At the same time, the limits of the initial framework are also now becoming clear. This paper seeks to address some of those limits in ways that we hope will contribute to further research.
Scholars have challenged the neofunctionalist explanation of legal integration from two principal directions.[9] First is the neorealist claim that the ECJ has actually had little independent or unforeseen impact on European integration; that although straying occasionally, it has acted largely as the faithful agent of member state interests.[10] In response, we challenged the empirical evidence of congruence between ECJ decisions and member state interests. More fundamentally, we questioned the identification of state "interests" as unitary economic interests. From this perspective, the value of a neofunctionalist analysis is its emphasis on microfoundations, on specifying the interests of particular actors in the process of European integration.
A second challenge to the neofunctionalist explanation of European legal integration concerned its teleological quality. Just as Haas's original neofunctionalist analysis waxed and waned with the fortunes of the Community itself, so too do neofunctional dynamics seem less compelling in 1996 than in 1992. Neofunctionalism seems to be a tale tailored for success, an account of how different actors can overcome obstacles to achieve a common goal. It is less a theory of when integration will and will not happen than a description of the process of how it does. To understand when the conditions favorable to this process are most likely to occur, we need a theory of interest formation. In the context of European legal integration, we originally argued that both individual litigants and national courts cooperated with the ECJ in the construction of the EC legal system. We paid relatively little attention, however, to the specific motives animating these actors, beyond the broad assertion that they were generally pursuing their self-interest. Such generalizations cannot explain the considerable variation in the timing and the extent of acceptance of key doctrines of EC law among different national courts (see Figure 1).
Moreover, national courts are fundamentally dependent on the cases presented for their decision, cases brought to them by individual litigants with a wide range of specific motivations. Of particular importance in this regard is increased awareness in Europe of the way in which courts can be used to achieve a particular political result, as well the growth of a phenomenon that U.S. lawyers refer to as "public interest litigation." The result, particularly in Great Britain, is a stream of cases brought by public interest groups seeking to use EC law to advance the interests of groups such as women and environmentalists.
In addition to refining the specification of interests of national courts and individual litigants, a theoretical account capable of explaining variation in the pace and scope of European legal integration among different member states must disaggregate the state itself. The standard neofunctionalist model assumes that the "state" is a monolith, to be circumvented and influenced by coalitions of sub- and supra-national actors. Yet closer examination of the actual process of integration, with starts and stops within and across states, reveals courts, legislatures, executives, and administrative bureaucracies interacting as quasi-autonomous actors.[11] Each of these institutions has specific interests shaped by the structure of a particular political system, the need to perform specific socio-political functions such as judging or legislating, and the demands of specific political constituencies.
In lieu of standard models of the unitary state, the picture that emerges is one of "disaggregated sovereignty," an image of different governmental institutions interacting with one another, with individuals and groups in domestic and transnational society and with supranational institutions.[12] This picture is closer to general liberal theories of international relations than it is to any particular account of European integration,[13] although it is easily combined with a neofunctionalist framework. Although liberal theories all emphasize state-society relations, they do not challenge the standard assumption of the unitary state. The disaggregated state model refines the analysis of state-society relations by examining the interests and constraints facing specific state institutions as they interact with social actors. This paper explores both the interests and the constraints facing both individual litigants and national courts in the EC. Our discussion of individual litigants is stimulated by a new stream of scholarship examining patterns of EC litigation in Great Britain. Our discussion of national courts flows out of a larger project examining the reception by national courts of the core ECJ doctrines mandating the direct effect of EC law in the national legal systems of EC member states and the supremacy of that law over conflicting rules of national law. This project includes six case studies examining the process of reception of these doctrines in Belgium, France, Germany, Great Britain, Italy, and the Netherlands. The case studies have been written by European legal scholars who were instructed not only to provide a doctrinal account of this process, but also to gather evidence concerning causes "beyond doctrine."[14] On a more theoretical plane, we also seek to pay more attention not only to the preferences of the various actors we identify, but also the constraints shaping their pursuit of those preferences. Regarding individual litigants, we examine the constraints imposed not only by the legal process, but also by a differential ability to bring a series of suits rather than just one. With respect to national courts, we analyze those constraints in the context of specific conceptions of judicial identity and the constraints imposed by legal legitimacy and democratic accountability. The next generation of scholarship on EC legal integration, as with European integration more generally, will require far more nuanced attention to the identification of both interests and constraints in very specific contexts. It will move away from contending paradigms such as realism and neofunctionalism and toward the development of mid-range hypotheses that are both theoretically sophisticated and empirically informed.
In our original account we set out to explain the gradual penetration of EC law into domestic law of its member states. We defined two principal dimensions of this process. First is the dimension of formal penetration, the expansion of the types of supranational legal acts that take precedence over domestic law and the range of cases in which individuals may invoke Community law directly in domestic courts. Second is the spilling over of community legal regulation from the narrowly economic domain into areas dealing with social and political issues. We argued that the independent variables posited by neofunctionalist theory provide a convincing and parsimonious explanation of legal integration. Drawing on the work of legal scholars such as Joseph Weiler, we identified the Article 177 procedure in the Treaty of Rome as providing a framework for links between the European Court of Justice (ECJ) and subnational actors - private litigants, their lawyers, and lower national courts.[15]
The novelty of our study was not the emphasis on sub- and supranational actors per se, for there already existed a rich body of literature on the Commission's relations with various interest groups.[16] We simply argued that the neofunctionalist dynamic was at work in a domain that the integration literature had overlooked: the legal domain. The absence of prior theoretical work on legal integration may be explained by the dearth of empirical accounts of "pressure through law". Revealingly, little mention - if mention at all - is made of the European Court of Justice in the many handbooks for lobbyists.[17] This has, in part, been attributed to the European perception of courts as impartial and judicially independent bodies. An alternative explanation refers to the text of the Treaty of Rome. Only member states and Community institutions are mentioned as entitled to "privileged access" to the Court; not so individuals, firms or European-wide interest groups.[18] Article 173 permits "any natural or legal person [to] institute proceedings [only] against a decision addressed to that person or against a decision which, although...addressed to another person, is of direct and individual concern to the former." Similar restrictions on individuals hold under Article 175 (failure to act). Finally, the right to intervene in a case to present evidence to the Court is reserved to the Commission and member states only.[19]
Nevertheless, the absence of empirical literature on "pressure through law" conveyed no accurate reflection of the true importance of the phenomenon, for lobbying in the legal domain was alive and well. In our original article, we explained the phenomenon of pressure through law by arguing that the ECJ made subnational actors aware of the opportunities offered to them by the Community legal system. The Court in fact created these opportunities by giving pro-Community constituencies a direct stake in the promulgation and implementation of Community law. As a result, individuals (and their lawyers) who could point to a provision in the Community treaties or secondary legislation that supported a particular activity they wished to undertake - from equal pay for equal work to a lifting of customs levies - were able to invoke community law and urge a national court to certify the question of whether and how community law should be applied to the ECJ.[20] Lower national courts partook in this process of legal integration because it bestowed upon them greater powers. This neofunctionalist utilitarian account of integration included the ECJ itself. Any measure that succeeded in raising the visibility, effectiveness, and scope of European Union law also enhanced the prestige and power of the Court.[21]
A refinement of our analysis at the subnational level must start with private litigants. Without individual litigants, there would be no cases presented to national courts and thus no basis for legal integration. The various identities, motivations and strategies of litigants inevitably influenced the nature and pace of integration. This section summarizes new data collected by British scholars on the importance of private litigants in the deepening and broadening process of EC law and highlights its implications regarding the interests and constraints facing national actors. This analysis sets the stage for a closer look at the role played by national courts. Marc Galanter, a prominent observer of efforts to achieve social and economic change through the U.S. legal system, has distinguished between "one shotters" (OSs) can be distinguished from "repeat players" (RPs).[22] This distinction, as well as other socio-economic categorizations of private litigants, offers not only a typology of actors appearing before the courts but also provides insight into different tactical approaches to Euro-litigation.[23] Galanter further observes: "If we analyze the outcomes of a case into a tangible component and a rule component, we may expect that in [a single] case, [an] OS will attempt to maximize [the] tangible gain. But if [a] RP is interested in maximizing his tangible gain in a series of cases..., he may be willing to trade off gain in any one case for rule gain...[I]t pays an RP to expend resources in influencing the making of the relevant rules."[24]
Several different categories of litigants have been RPs before the ECJ. First are public interest "pressure groups," seeking to use a variety of political and legal strategies to advance particular causes. These have been active largely in Great Britain. Paul Craig confirms in his report on the United Kingdom that particular litigants have made strategic use of the greater rights afforded under Community law than under national legal rules to play a significant part in the development of substantive Community law, particularly in employment law and gender equality.[25]
The same theme is evoked in the writings of Carol Harlow. She describes how pressure groups have made calculated use of the litigation strategy offered under Article 177 to establish freedom of movement, to query income tax assessments, to claim social security benefits, equal pay and damages for invalid administrative action, to protest against discrimination, to challenge nationalization and immigration policies, and to dispute elections.[26] Interestingly, a number of these cases were fought by groups that conceal their identity behind "frontman." Harlow notes, for example, that the three celebrated cases involving Madame Defrenne, which established the direct effect of Article 119 EEC Treaty and the ensuing equality directives were on the face all brought by a single individual who took no active part.[27] In actual fact, they were test cases fought in her name by a feminist lawyer who presumably had the backing of groups affluent enough to pay the costs of protracted legal battles.[28]
A second category of RPs in Euro-litigation is large corporate actors. Consider the role played by powerful French firms in forcing the Conseil D'Etat to accept EC law doctrine. Until the beginning of the eighties, the Conseil D'Etat felt little pressure to endorse direct effect and supremacy. Two of its major partners, Germany and Italy, had supreme courts that refused to fully comply with the ECJ's jurisprudence. In 1984, however, the Italian Constitutional Court authorized lower national judges to declare national law incompatible with treaty obligations without having to refer the case to the Constitutional Court.[29] The German Federal Constitutional Court announced in 1986 in the Solange II case that it would no longer control the constitutionality of Community legal acts. The legal context in which corporate interests in France now found themselves put them increasingly at a competitive disadvantage relative to firms operating in member states where supremacy and direct effect doctrines were fully accepted.[30]
To remedy this situation major import- and export-oriented companies in France launched systematic attacks on government decisions that they felt were contrary to Community law. Their aim was to provoke a chain of verdicts by the ECJ condemning France for breach of Community law. This increased the pressure on the French government and the Conseil d'Etat to comply with Community rule. It is no coincidence that the decision by the Conseil d'Etat confirming direct effect of Community directives in France was initiated by a Philip Morris and Rothmans - classical repeat players.[31]
Richard Rawlings provides another account of the litigation strategy of corporate RPs in the European context in his study on the Sunday Trading saga, appropriately entitled The Eurolaw Game.[32] At issue was the British Shops Act of 1950 that places statutory restrictions on Sunday trading. Large retailers used an Article 177 reference to the ECJ with the practical effect of freezing the enforcement of the national law. The economic incentive for such action is clear. For large retailers Sunday trading represents up to 23% of their turnover.[33] The "European Defense" put forth by the retailers stated that the Shops Act contravenes Article 30 EEC Treaty which prohibits "quantitative restrictions on imports and all measures having equivalent effect." If a shop is prohibited from trading on a Sunday, they argued, its overall sales will be reduced; if sales are reduced, imports from the European Community will be reduced (by about 15 per cent). Ergo the Shops Act amounts to a measure having equivalent effect to a quantitative restriction on imports within the meaning of Article 30.[34] The Sunday trading saga - too long and convoluted to be narrated here in full - illustrates a number of critical points to which future studies on Euro-lobbying must be sensitive. First, the saga demonstrates the potential for the use of Eurolitigation strategies to achieve gains by powerful corporate interests. However, the issue here is not primarily one of coercing compliance with Community legislation. To "win" a case in that sense may not be the principal aim. Interim remedies providing time for retaliation or delays caused by legal proceedings may be the true objective of litigation especially if it involves repeat players.[35] In the Sunday Trading saga, the retailers ultimately lost the case in court, but they managed to reap large profits while the case remained pending. Furthermore, the action of the large retailers inevitably had a "domino" effect on smaller merchants who felt the commercial pressure to start trading on Sundays while the national law was in abeyance. During that protracted period, the big players also helped bring about changes in the shopping habits and in people's expectations about the opening hours of stores. "In short, a social context more favorable to reform was fostered."[36]
Second, the saga contains a subplot that Rawlings calls the Multi-national Game. In this game, large British retailers were part of a coordinated eurowide litigation strategy by corporate interests in other member states that used Article 177 references almost simultaneously to intensify the pressure for abolition of restrictions on Sunday trading in their respective countries. Rawlings characterizes the Eurolaw game played in the Sunday trading saga in terms of outflanking or "trumping" the domestic system.[37] He concludes: "It is not only the doctrines of primacy and of direct effect which give increased scope for litigation strategies...Particular features of the system have a strong tendency towards uncertainty and delay, attributes of a legal order which the...litigation strategy [of repeat players] not only works to generate but also thrives upon."[38]
Ideological commitment and material interest provide the incentives for RPs; lack of resources and short time horizons provide the principal constraints. Pressure groups and large corporate actors may have very different, indeed opposing, motivations with regard to the legal outcomes they seek, but both are well-placed to see the ECJ as a potential ally. Of particular interest is the way in which a repeat-play strategy on the part of a particular litigant dovetails with the Court's preferred method of expanding the reach of Community law: an incremental approach implemented over a series of cases, in which national governments win typically win the battle and lose the war. The Court's standard move is to enunciate a principle of great long-term significance but to find some procedural or factual reason not to apply it to the case at hand.[39] The repeat play analysis suggests that in many of these cases the individual litigant who has sought aid from the Court may be a willing partner in this strategy.
In our original article we also focused on the role of the ECJ itself in forging ties with national courts to create an independent legal community of sub- and supra-national actors. We noted the Court's efforts to make European law attractive to individual litigants and their lawyers through its caselaw and its efforts to educate and appeal to national judges through tactics ranging from weekends in Luxembourg to tacit offers of a judicial partnership. A number of the country studies offer additional evidence for this picture. The judges of lower Italian courts, for instance, were assertedly motivated by a desire to have their cases referring issues to the ECJ "feature at the center of the attention of the world of lawyers."[40] This notoriety resulted from approval of their analysis by the ECJ, in the face of the apparent ignorance of EC law on the part of many law professors and higher court judges.[41]
The French study also highlights the potential importance of the socialization of individual national judges through a tour on the ECJ. Plötner tells the tale of Yves Galmot, the first member of the French Conseil d'Etat nominated as a judge on the ECJ, who was sent off to Luxembourg with the expectation that he would hold the line against judicial activism at the European level. A year after he returned to the Conseil d'Etat - thoroughly converted to Community doctrines - the Conseil took its famous Nicolo decision that implicitly authorized judges to make treaties prevail over national law.[42] Much of the remaining time is spent in each other's company.[43] More generally, many of the country studies emphasize time and again the small size and relatively close knit character of the legal community in each country, forged by ties of education, socialization, and professional mobility between the professoriate, private practice, and the judiciary.
To the extent that we focused on national courts as independent participants in this community of sub- and supranational legal actors, we argued that they were motivated largely by self-interest, borrowing Joseph Weiler's concept of "judicial empowerment."[44] A number of scholars have argued convincingly that this analysis is too crude.[45] It does not specify what power judges seek, nor how they were able to obtain it through acceptance of the authority of the ECJ. We also conflated the professional and personal interests of individual interests with the institutional interests of judges.[46] Finally, such a general concept cannot explain differences in the rate of acceptance of critical ECJ doctrines such as direct effect and supremacy among different courts within the same national legal system. Nor can it account for limits to integration. A much more precise specification of judicial interests is needed, as well as of the constraints on the pursuit of those interests.
Borrowing from our critics, and drawing on the data presented in the country studies, we offer a more refined and differentiated definition of the kinds of power that courts actually seek. First is the power of judicial review to establish the validity of national legislation, which is an increase in power with respect to national legislatures. Some national courts, notably constitutional courts, already exercise this power within their domestic legal system; others gained this power with respect to at least some subset of national statutes in partnership with the ECJ. Second is the pursuit of institutional power and prestige relative to other courts within the same national judicial system. Here we draw primarily on the work of Karen Alter, who has developed an "inter-court competition" approach to explain European legal integration. Third is the power to promote certain substantive policies through the law. In other words, where European law and national law promote different policies or have different distributional effects with respect to a particular class of litigants, a national judge may have the opportunity to achieve the result that she favors through the application of European law.[47]
A noteworthy aspect of this refinement of judicial interests, or preferences, is that each factor may explain resistance to as well as acceptance of EC law. Courts that already exercise the power of judicial review, for instance, are likely to perceive the "parallel" exercise of that power by the ECJ regarding matters of European law as a threat. Alec Stone emphasizes this tension in light of the particular incentives facing national constitutional courts, typically the only European courts entitled to engage in any form of judicial review.[48] Similarly, the inter-court competition model posits that courts that already enjoy substantial prestige and power relative to other courts within the same national legal system are likely to object to the extension or even transfer of that power elsewhere in the system; they may thus reject EC law for the same reasons that their counterparts accept it. Finally, the congruence of EC law with a particular set of substantive legal outcomes in different issue areas can produce opposition from national courts who favor the outcomes produced by the application of national law as easily as it can marshal support from judges who would like to see a change in national law.
The following subsections discuss each of these strands of judicial interests in turn, drawing on evidence from the country studies. The result is a more nuanced and sophisticated understanding of "judicial empowerment." Note, however, that this typology is inevitably stylized. A quest for power has both personal and professional aspects. It reflects a universal desire for individual recognition and acknowledgment by others as well as an instrumental effort to acquire the means to achieve specific goals. Judicial empowerment is likely also to partake of the ideals of the judiciary, closely allied with both the idea and the ideal of the rule of law. Self-images forged in this crucible include courts as protectors of the weak, as impartial dispensers of justice, as checks on the abuse of power by their fellow branches of government, and as guardians of social order through faithful application of the law as written and - occasionally - as felt.
The categories we advance here cannot capture this complexity. Our specification of both judicial interests, and, in the following section, the constraints attendant on the pursuit of those interests, are efforts to isolate specific elements of this mix as part of a more generalizable model.
A number of the country studies offer evidence of a link between acceptance of EC law through adoption of the doctrines of direct effect and supremacy and a desire to exercise some judicial review powers. In the Netherlands, for example, Parliament amended in 1956 the Dutch constitution (introducing Articles 65 and 66) giving national courts the power to review legislation on its compatibility with international treaties. This new power was at odds with a long tradition that banned judicial review of the constitutionality of legislation. Judges could now set aside statutes that violated international obligations, but at the same time, the inviolability of these statutes against any judicial review of their constitutionality was maintained. The judges remained in the beginning reluctant to use their new powers. Only when encouraged by the European Court of Justice did they assume their new task. Claes and de Witte note that in the landmark Van Gend en Loos case, the ECJ's willingness to accept the role of "accomplice" in Van Gend encouraged Dutch courts to exercise their constitutionally recognized powers against the national legislature.[49]
The British situation is similar to the Dutch in that the doctrine of parliamentary sovereignty preempted any courts from attacking primary legislation. With the formal acceptance of EU supremacy in the Factortame case of (1990), however, national courts were granted the right to set aside primary legislation that violated Community obligations. Craig notes that "the UK jurisprudence provides a good example of how readily the national courts can embrace their new found authority."[50] Perhaps the best example, however, of the way in which a desire to exercise judicial review shaped acceptance of direct effect and supremacy comes from the Italian experience. As told by Cartabia and Ruggieri Laderchi, the Italian story is a drama with three principal characters: the ECJ, the Italian Constitutional Court, and the lower courts. Again aided and abetted by the ECJ, lower court judges understood that supremacy afforded them the opportunity to control Italian national legislation for consistency with Community law. The Italian Constitutional Court understood equally well that its prerogative of exclusive constitutional review was in jeopardy and sought to supervise the application of EC law in the face of contrary national legislation by the lower courts. Only in the 1980s, after it perceived that it was lagging behind the supreme courts of virtually all other member states, did it finally accept supremacy more or less on the ECJ's terms.[51]
In France, the monopoly of interpretation of public and constitutional law belonged to the Conseil d'Etat until 1958. In that year, the power to review the constitutionality of legislation passed to the newly-established Conseil Constitutionnel. This body decided in 1975 to abstain from examining the conformity of international treaties with national laws. The Conseil d'Etat - a particularly elitist group of French civil servants - considered any interference by the ECJ in French domestic affairs as a direct menace to its administrative and political power and chose therefore to ignore the ECJ.[52] Not so the Cour de Cassation. It decided only four months after the Conseil Constitutionnel's refusal to review legislation on its compatibility with international treaties to accept the supremacy doctrine in the landmark Jacques Vabre case.[53] Up to that point, the Cour de Cassation had followed the famous Matter doctrine, requiring judges to avoid conflicts between domestic law and international obligations using rules of construction; but if such avoidance was impossible, judges had to enact national law for they "cannot know other will than that of the law."[54]
What motivated the Cour de Cassation to abandon the Matter doctrine? Plötner argues in favor of the judicial review thesis. He writes: "From now on, any simple court could not only control all acts of parliament but also became . . . the common judge of Community law."[55]
Karen Alter has developed an "inter-court competition" model to explain variations in the scope and pace of national court acceptance of the doctrines of direct effect and supremacy.[56] She argues: "different courts have different interests vis-à-vis EC law . . . national courts use EC law in bureaucratic struggles between levels of the judiciary and between the judiciary and political bodies, thereby inadvertently facilitating the process of legal integration."[57] The exercise of judicial review involves a "horizontal" competition between courts and legislatures, allowing a judge to invoke the higher law of the constitution or a treaty as a bar to enforcement of a particular legislative product. Pure inter-court competition, on the other hand, can occur both horizontally, between high courts each charged with superintending a different body of law, and "vertically," between higher and lower courts within different branches of a national court system. The country studies contain substantial evidence for the inter-court competition model, as Alter documents.[58] The model is particularly appropriate to Germany, as benefits to lower national courts from integration are less apparent in Germany than in most other member states. The power to conduct judicial review was already present in the German legal system and cannot be seen as a new introduction of the EC legal system.[59] Vertical competition between lower and higher courts offers a better account of the incentives propelling German courts to accept direct effect and supremacy. But the model also offers a convincing framework within which to analyze variation in other member states. Indeed, it dovetails with Alec Stone's emphasis on the competition between constitutional courts and other national courts, another important chunk of the story.
Judicial interests flowing from inter-court competition reflect interests in relative judicial power -- power and prestige relative to other courts within the same national legal system. These interests may intersect interests in gaining the power of judicial review; in national legal systems in which some courts exercise judicial review while others do not, for instance, those courts lacking the power under the national system may seek to equalize their status with other national courts by arrogating the power to review national law for compatibility with EC law in partnership with the ECJ. For instance, Plötner argues that the Cour de Cassation's institutional position vis-a-vis the Conseil d'Etat improved greatly with its swift endorsement of EC supremacy.[60] Such competitive interests may also intersect with interests in promoting particular substantive policies, to the extent that a lower national court disagrees with a higher national court on a particular set of doctrinal outcomes and seeks to leapfrog that higher court by reference to the ECJ. It is to the interests in promoting substantive policies that we now turn.
Jonathan Golub has recently demonstrated the ways in which a desire to shape specific policy outcomes may motivate national courts to limit the number of references to the ECJ. He shows that British courts have been reluctant to make references in cases in which the environmental protection requirements in EC law are less stringent than in British environmental law.[61] Golub seeks to explain patterns of references, not acceptance of the doctrines of direct effect and supremacy. But other analysts of the reception of Community law by national courts have similarly pointed to judicial policy preferences as an explanatory factor. For Stone, a court has an "interest in using its decisions to make good policy."[62] Alter notes that "lower courts can use EC law to get to policy outcomes which they prefer, either for policy or legal reasons."[63]
How are we to identify and assess judicial policy preferences? The question has long bedeviled students of judicial politics, who have been singularly unsuccessful at generating an algorithm that can help predict the political attitudes of individual judges.[64] It is much easier to demonstrate a correlation between the political posture of a particular judge and a particular set of judicial outcomes than to identify which judge will favor which policies.
This uncertainty is multiplied in the present context by the difficulty of predicting how acceptance of direct effect and supremacy will affect outcomes in individual cases. Suppose, for instance, that a British judge favors high levels of environmental protection. At a given moment, EC directives and ECJ interpretations of those directives might mandate higher levels of environmental protection than British law. Yet those directives could change, as could the composition or disposition of the ECJ. Further, the acceptance of direct effect and supremacy cannot be limited to a particular class of cases. EC law and the ECJ's interpretation of that law could contradict the same national judge's policy preferences with regard to state subsidies for particular industries, gender discrimination, immigration law, or any other substantive area.
But why cannot an individual national judge accept direct effect and supremacy and then control the actual application of EC law simply by manipulating references? Golub's findings suggest that British courts may be pursuing this strategy. However, courts' ability to pick and choose cases to refer will be progressively limited both by the pressure of individual litigants and lower courts, as well as by the overriding need for minimum consistency and coherence in the law itself. Once a court has declared that EC law is supreme over national law, litigants will cite favorable doctrines of EC law and appeal national court decisions that do not follow those doctrines where they clearly apply to the facts in a particular case. Lower courts will similarly seek clarification in cases of apparent conflict between EC and national law. And to the extent that higher national courts refuse to provide such clarification, or selectively apply EC law in individual cases, the resulting patchwork will endanger the legitimacy of the national legal system.
Such pressures from litigants and requirements of the legal process are more properly classified as constraints, as discussed below. For purposes of analytical clarity, a judge's preferences regarding any individual case or class of cases will be a compound of views on a range of substantive issues: highly individualized preferences over specific policy outcomes combined with more general preferences concerning modes of statutory interpretation, the optimal relationship between courts and the legislature, and the need to protect specific classes of litigants. These preferences will then be tempered by a need for consistent, coherent, generalizable rules. It is important to note, however, that legal education, training, and socialization often results in the internalization of the constraints of clarity and predictability as independent preferences. Judges will thus often refer to these attributes as goals that they seek to pursue in upholding the "rule of law."
Returning to the question of preferences concerning direct effect and supremacy, it is still possible to identify situations where accepting direct effect and supremacy may on balance advance a judge's substantive policy preferences. First, some number of national judges may simply favor European integration and would see participation in the construction of the European legal system as an important step in that direction. Second, a national court might have a particular "constituency," such as workers or traders, that will by systematically advantaged by EC law. Plötner appears to provide such an example, noting that the judges of the Cour de Cassation "had closer and more direct ties to French economic agents and the average citizen" than the members of the Conseil d'Etat. These judges "realized that the impossibility of referring to certain Community regulations risked both to put competitive French firms at a disadvantage and to limit French citizens' protection of civil rights."[65] Kokott's study also suggests a similar dynamic with respect to the willingness of German labor courts to make references to the ECJ on the assumption that EC law would be more "employee-friendly" than national law, although she points out that the ECJ has recently gone too far in this regard.[66]
Overall, however, such examples are few, hard to prove, and easy to challenge. Courts typically do not have readily identifiable constituencies[67]; further, it is very difficult to predict the ultimate effect of acceptance of any legal doctrine. It is far more likely that a judge's preferences for coherence, consistency, and generalizability will produce a preference for direct effect and supremacy in situations in which other national courts have already accepted these doctrines, creating a patchwork that can now only be remedied by universal acceptance. Plötner's discussion of the Cour de Cassation, for instance, assumes that national judges across Europe were already applying EC law. The Italian Constitutional Court explicitly noted in accepting supremacy in the 1980s that other high courts across Europe, including Germany, had already taken this step.[68] Indeed, the phenomenon of "judicial cross-fertilization" identified in many of the country studies - meaning instances in which courts of one nation refer to the decisions of another - may be understood not only as a pure intellectual exchange and as a risk minimization strategy with respect to incurring obligations already accepted by other member states,[69] but also as recognition of the need to harmonize European law as law.
In sum, judicial preferences over specific policy outcomes are unlikely to be sufficiently generalizable to explain initial acceptances of direct effect and supremacy, although they may nevertheless be relevant to explaining or understanding the outcome of any particular case. Preferences for consistency and coherence across a body of rules are generalizable and may provide motives for acceptance of direct effect and supremacy. But they are more likely to operate at the end rather than the beginning of the first stage of constructing an EC legal system. Interestingly, Kokott points to the German Labor Court's "right and obligation to ensure a coherent legal system" as the driving factor behind a new phase of references to the ECJ, which she reads as inviting the ECJ to change its caselaw to conform better to the realities of national labor conditions and the specific contours of national law.[70]
In the end, even the most precise specification of the preferences of individual litigants and national courts provides an incomplete account of the legal integration process. It is simultaneously necessary to identify the constraints operating on these actors in their pursuit of their preferences. As outlined above, different courts within different national legal systems have different preferences. However, to the extent that we observe variation in the timing and scope of acceptance of EC legal doctrines by national courts that should have roughly the same preferences (two national constitutional courts, for instance) those differences are likely to flow from the relative constraints that those courts face in pursuing their preferences. We discuss these constraints as they operate on national courts (and hence indirectly on individual litigants) in terms of a more refined conception of judicial identity.
In our initial analysis we focused principally on one very general, albeit fundamental, aspect of judicial identity: the self-conception of courts in countries upholding the rule of law as non-political actors.[71] These courts universally conceive of themselves as courts, as agents and servants of the law, as participants in a specialized normative discourse with other courts. Their receptivity to participation in a dialogue with the ECJ depends in part on their perception of it as a court like themselves, as a fellow member of a community of law. This conception of judicial identity as fundamentally non-political was crucial to our "mask of law argument." Political considerations attach to judicial decisions and may motivate these decisions at the margin. Nevertheless, overt political arguments are illegitimate; actions must be justified with reference to generalizable principles and in a technical discourse that imposes its own constraints.[72] Law thus operated as a mask to conceal the full political import of the ECJ's decisions.[73]
In this account, judicial identity helped to insulate the pursuit of judicial preferences from political interference; it thus functioned primarily to facilitate the pursuit of those preferences as protected participants in a "community of law."[74] We paid less attention to the ways in which a particular conception of judicial identity in liberal democracies committed to the rule of law can function as a constraint on the pursuit of judicial preferences.[75] A closer examination of the constraints flowing from this conception of judicial identity reveals parameters that can vary across countries. Identification and exploration of these constraints thus provides a critical piece in an account of variation in the acceptance of the foundational doctrines of the EC legal system across national courts.
A court in a liberal democracy is charged with interpreting and applying the law without regard to the judge's own political preferences, the power and political preferences of the parties appearing before her, or the power and political preferences of any other branch of government with an interest in the case. Two principal constraints shape this process of rule interpretation and application. First is the constraint of minimum fidelity to the demands of legal discourse: "the language of reasoned interpretation, logical deduction, systemic and temporal coherence . . . ."[76] Reasoning and results that do not meet these requirements may be challenged as "unfounded in law," or as indicative that a court is acting ultra vires -- in excess of its mandate.
Second is a constraint of minimum democratic accountability: the requirement that a court not stray too far from majority political preferences.[77] At first glance, this constraint may seem completely at variance with the conception of courts as non-political actors. By definition, surely, courts are not accountable to voter preferences. A closer look, however, reveals that although judges are not and cannot be directly accountable to the voters, and indeed are specifically safeguarded by guarantees of life tenure and prohibitions on judicial salary reduction from feeling the full effects of electoral disagreement with their decisions, judicial decisions that consistently and sharply contradict majority policy preferences are likely to undermine perceptions of judicial legitimacy and can result in legislative efforts to restrict or even curtail judicial jurisdiction -- the scope of judicial power over particular classes of cases.[78] An astute judge will anticipate these reactions and seek to avoid them.
Yet if a court is constrained by the demands of legal reasoning and discourse, how can it "choose" to decide more or less in line with majority preferences? In many cases the choice will be clear: the weight of text and precedent, the elemental requirements of precision, clarity, and determinacy in rule interpretation and application, or the potentially disastrous social, political, or economic consequences attendant on one of the proffered readings of a textual provision as compared to another, leave little room for doubt as to the correct "legal" outcome. In such cases, should the judicial outcome diverge from majority preferences, then it is up to the legislature to change the law. In other cases, however, the sides are much more evenly matched. The text may be genuinely ambiguous, legislative intent murky, the option of a clear and determinate rule equally available on both sides, equal prospects for creating a cascade of evils or a cornucopia of benefits however the court comes out. In these cases -- hard cases, close cases, frequently very important cases -- judicial outcomes that consistently or persistently stray too far from perceived majority opinion in a particular country, whether expressed through the legislature or not, are likely to trigger suspicions that judges are substituting their own policy preferences for those of "the people."
Both these constraints -- the demands of legal discourse and democratic accountability -- are likely to vary from country to country. The sources of this variation are three: 1) variation in national policy preferences concerning the desirability of European integration; 2) variation in "national legal culture"; and 3) variation in specific national legal doctrines. In the first category, a national court that readily accepts direct effect and supremacy will face less of a challenge to its legitimacy in a polity where public support for European integration is generally strong than in one with a split in public attitudes. In the second category, the demands of legal discourse will vary depending on the nature and strength of the links between the legislature and the judiciary and different styles of legal reasoning. Some national legal cultures prove more hospitable to national judicial participation in the EC legal system than others. In the third category, doctrines governing the relationship between national and international law, the specific function of particular national courts, and the definition and operationalization of national sovereignty pose particular obstacles within national legal discourse and may themselves reflect majority preferences. The remainder of this section explores the ways in which factors in each of these categories produced variations in the constraints facing different national courts.
As discussed above, the case studies show that the rate of acceptance of supremacy doctrine in particular, and to a lesser extent direct effect, generally track national attitudes toward European integration. Figure 1 shows that the first countries to accept the doctrines of direct effect and supremacy were the Netherlands, Germany, and Belgium, followed by Italy, France, and Great Britain, in that order.[79] No surprises here; an observer ignorant of EC law and national legal doctrine but knowledgeable about relative political support for the EC in these various countries is likely to have predicted a similar sequence. It is possible, of course, that national judges simply shared the prevailing attitudes toward European integration held by their fellow citizens and interpreted the law accordingly. We cannot know without interviewing individual judges, who would in any event be reluctant to confirm such speculation. However, such evidence is unnecessary insofar as the democratic accountability thesis would lead to the same result. Based on our assumption that national judges across countries shared uniform preferences concerning the advantages and disadvantages of entering into a partnership with the ECJ, the pursuit of these preferences would be constrained by the need not to allow their decisions to diverge too far from majority political preferences.
Behind the aggregate statistics presented in Figure 1 are a number of stories linking judicial outcomes with national policy preferences concerning European integration, policy preferences that are themselves derived from a composite of historical, geographical, and political factors. Hervé Bribosia, author of the Belgian case-study, notes that Belgium's size and export-dependent economy produce favorable national attitudes toward European integration, a factor that he adduces as a partial explanation for the willingness of the Belgian Cour de Cassation (the highest private law court) to take a high profile stance accepting supremacy in 1971.[80] Monica Claes and Bruno De Witte, writing on The Netherlands, are even more explicit. They trace Dutch support for the direct enforcement and application of international treaties back to Hugo Grotius's magisterial 17th century treatise on the freedom of the seas, locating these attitudes in small size and dependence on open borders for economic prosperity: "[T]he willingness to cooperate with foreign nations is clearly in the interest of a small trading nation that is too small to preserve its dependence on its own and needs open borders for its prosperity."[81] It is no coincidence that ten out of the first thirteen references to the European Court of Justice came from Dutch Courts.
On the other side of the ledger, Paul Craig observes that the reluctance of British courts to accept supremacy was but "one part of [Britain's] more general approach toward the EC."[82] However, he argues further that the view of Britain as consistently seeking to slow the pace of integration is distorted, that the majority of the British population accept EC membership as the political norm, and thus that the House of Lords simply sought "to bring constitutional doctrine up to date with political reality" when it finally accepted supremacy in 1990.[83]
If judges are constrained by majority preferences, however, how then is the construction of the European legal system even a puzzle? What of our story that the system was built by the ECJ and national judges, lawyers, and litigants against the wishes, or at least behind the backs of, member state governments? Are we not now advancing a version of Garrett and Weingast's claim that the ECJ was able to do its job because both its substantive decisions and the legal apparatus it created to enforce them advanced the interests of the states that created it? The answer, of course, is no. But to advance our argument at this level we must move beyond a unitary conception of the state. Our argument, in essence, pits courts and national executives against each other not in deciding whether to support further European integration (a decision ultimately up to the electorate) but in determining the balance of power among governmental institutions in an integrated Europe.
If we assume that the member states of the European Union are arrayed along a spectrum in terms of favorable attitudes toward integration, attitudes broadly determined by the electorate as a reflection of economic interest, historical experience, and geopolitical position, we can nevertheless imagine alternative architectures for an integrated Europe that would be relatively more or less favorable to the interests of national executives, legislatures, and courts. For instance, a Union that required provisions of the Treaty of Rome to be implemented by decisions of the Council of Ministers, which in turn imposed obligations on national executives and legislatures to pass directives implementing these decisions at the national level, affords much more power to national executives than a structure in which Treaty provisions can be directly implemented through national courts. It follows that there is no contradiction between our original (and continuing) assertion that national courts did not follow the preferences of national executives in accepting direct effect and supremacy and our recognition that both national courts and national executives are more or less constrained by majority preferences concerning European integration.
The country studies provide strong evidence for both these propositions. Relative to one another, national courts in all countries accepted direct effect and supremacy in keeping with the general attitudes of the electorate toward European integration: the Dutch first, the British last. At the same time, the Dutch Supreme Court accepted both these doctrines within a year after the Dutch executive argued fervently against the interpretation of the Treaty of Rome that gave rise to them in the landmark case of Van Gend & Loos.[84] In France the highest private court accepted direct effect and supremacy fifteen years before the highest administrative court, the Conseil d'Etat, which plays the dual role of adviser to the executive and most closely identifies with what it perceives to be the executive's interests. In Germany the executive unsuccessfully sought to intervene in the judicial process on the side of the highest financial court against a decision of a lower financial court mandating compliance with an ECJ judgment on the basis of supremacy.[85] The stakes in these cases concerned less the desirability of European integration per se than a struggle over which domestic branch of government would control decisions over the pace, scope, and manner of integration within the broad outlines of the Treaty.
This inter-branch struggle, however, does not always cut in favor of increased integration. A case in point is the relationship between the German constitutional court, the German government, and the ECJ. Like the German government, which has long perceived itself as a "motor of integration," the German constitutional court has sought to develop a special relationship with the ECJ, generally supporting the creation of the EC legal system but periodically applying the brakes by insisting that the ECJ develop Community-wide protections for human rights or, more recently, insisting on delimiting a core area of national sovereignty. The German court's contributions to this dialogue reflect its assessment of a number of different factors: the requirements of domestic constitutional law, the proper interpretation of the Treaty of Rome, and the mood of the people, among others. This assessment may overlap with the German government's position, but may also diverge in ways that can bring the legal and the political into conflict. Thus, regarding its recent Maastricht decision, in which a German legislator challenged the Maastricht Treaty as a violation of the German constitution, the Federal Constitutional Court essentially found for the government by upholding the constitutionality of the Treaty. However, as Juliane Kokott explains: "[T]he Court tried . . . to assure itself of wide support for its judgment" by taking account of rising opposition to monetary integration among the German people in emphasizing the many strict preconditions for monetary union embedded in the Treaty, preserving the right of withdrawal from the monetary union should it prove to be unstable, and upholding the right of the German people to be represented by the German parliament rather than the European parliament.[86]
These constraints may prove tighter than Kohl and his successors would like in pushing for monetary union as the bargaining chip with which to achieve widening of the Community. More generally, however, the Federal Constitutional Court has created a legal situation that will allow and may even spur Germany's negotiating partners to customize their acceptance of Community law. The Court emphasized that the member states remained "masters of the treaties," thereby denying Community institutions complete supranational authority. In the legal sphere, the Court translated this principle into a claim that it retained the power to determine the scope of Community competence. The ECJ would remain supreme with regard to the interpretation and application of Community law, but the Federal Constitutional Court would determine the scope of that law. Should the supreme courts of other EC members follow suit, the uniform administration of EC law, and the bargaining that now depends on the assumption that the deals struck will be uniformly enforced could be imperiled.
Judges are products of specific national legal systems. Their training within particular systems gives rise to a set of professional values and attitudes that overlay, mediate, and temper their political instincts. They not only learn a body of national legal rules, but also absorb specific features of their national legal culture. At the core of this culture are particular modes of legal reasoning -- formal versus pragmatic, deductive versus inductive, abstract versus contextual -- that give rise to a distinctive style of framing and resolving legal questions. Other features of national legal culture include a particular understanding of the role of courts in relation to legislative bodies, differing specifically on the extent to which judges "make" law in the process of interpretation and application of legislative provisions and the extent to which they can fill the gaps in those provisions.
Even wider is the gap between common law judges, who elaborate rules without legislative guidance based on the doctrine of precedent, and civil law judges, whose only source of authority flows from national legal codes. Yet both systems contain room for yet a third feature of national legal culture: relative judicial activism or restraint. How far should a judge depart from a previous decision, or from the strict letter of a particular statute? Individual judges within a particular national legal system can differ on this question, of course, but an entire national legal culture -- due largely to the influence of national history and tradition -- can lean in one direction on the other. Finally, national legal culture may reflect national legal structure: different types of federalism, as in Belgium or Germany, or systems divided into substantively specialized courts (labor courts, tax courts, constitutional courts) in which each court develops its own tradition of protecting a specific set of interests.
These features of national legal culture ultimately condition the relationship between national courts and a supranational tribunal. We posited that such a relationship developed in the EU within "a community of law," a community that required that the participants recognize one another as equivalent legal actors speaking a common language and sharing a common legitimacy. Nevertheless, the forging of such a relationship between specific national courts and the ECJ depended on a number of preconditions. Judicial preferences, constrained by national political attitudes toward integration, created a predisposition; ECJ decisions provided the opportunity by creating the doctrinal "hook." But an additional factor constraining or facilitating the establishment of this relationship -- particularly the acceptance of the legal hierarchy between the ECJ and national courts created by the doctrine of supremacy -- was the relative "fit" between the two legal systems, a fit optimized by traits of national legal culture.
A core element of national legal culture is the delimitation of the scope of judicial relative to legislative power. All the members of the EU uphold the general liberal principle of a division between the legislative and the judicial power; however, its implementation in each country is historically and culturally conditioned. A principal indicator of this distribution of power is recognition of the principle of judicial review, even if it is exercised only by constitutional courts. The existence of judicial review anywhere in the national legal system embodies recognition of a higher law constraining the will of the people as expressed through the legislature. On this dimension, it is not surprising that German and Italian courts, from national legal systems that have judicial review, were quicker to recognize supremacy than French and British courts, which have traditionally been wholly deferential to the national legislature.[87] On the other hand, countries that do not have judicial review, such as the Netherlands, can nevertheless recognize supremacy as the result of the will of the legislature expressed either in the Constitution or the Treaty itself. This is the route that was ultimately taken by both British and French courts.[88]
Legal culture is also conditioned by the specific historic role of courts within a particular society. Here German and Italian courts face specific constraints that other courts do not. The constitutional courts in both countries are specifically charged with safeguarding individual rights and the rule of law against the revival of fascism. In the German case, the commitment to Verfassungspatriotismus, or constitutional patriotism, results in the Constitutional Court's unusual willingness to decide cases with important foreign policy implications. According to Juliane Kokott, this willingness flows from the renewed German commitment to the Rechtstaat in the wake of the Second World War -- no questions are above or beyond the law. The Constitutional Court thus conceives itself as an equal participant with the political branches of the German government in the process of European integration.[89] At the same time, however, the Court's primary commitment to individual rights and the preservation of German democracy has led it to apply the brakes to that process in ways that may well constrain the German government's pursuit of its perception of the national interest.[90]
The French case study offers a striking example of national legal culture constraining normal judicial preferences. Jens Plötner argues that much of the reluctance of the French Conseil d'Etat to accept the supremacy of EC law flows from the specific training and acculturation of its members. Educated at the elite Ecole Nationale D'Administration (ENA) and trained to serve as personal advisers to the most important members of government -- to be, as the name suggests, "counselors to the state" -- they understand their function as definers and defenders of the "French national interest."[91] In the best Gaullist tradition, the Conseil d'Etat took it upon itself to combat the "virus of supranationality," holding out until the "government and even Parliament [were] urging it to change its jurisprudence."[92] By virtue of French legal culture, therefore, the interests of one particular court are subordinated to, or perhaps simply identified with, the interests of a stylized conception of the French executive. A third element of national legal culture concerns style of legal reasoning. Writing about Britain, Paul Craig notes that the "common law mode of adjudication is pragmatic and non-doctrinaire."[93] He argues that these characteristics allowed British courts early on to "acknowledge[] that they were part of a Community legal order, and that the ECJ was the proper court to pass judgment on issues concerning the interpretation of the Treaty."[94] This acceptance included the doctrine of direct effect. At the same time, however, he asserts that the common law method helps explain why British courts had difficulty with the doctrine of indirect effect, which required them to read national legislation to be in conformity with an EC directive even when the national legislature has not implemented the directive directly. The trick is to perform this feat of construction without actually rewriting the statute, often a difficult task. The common law requirement, unlike in civil law countries, that courts write lengthy opinions explaining their reasoning to reach a particular result tends to highlight this tension in ways that lead British courts to stop short of the result desired by the ECJ.[95]
In the most general sense, to say that national judges are constrained by national legal doctrine is to say that courts are constrained by the shape and specific form of national law. Legal doctrines frame particular issues: for an American judge a question concerning abortion must be understood in terms a right of privacy or perhaps of a question of equal protection of the laws; for a German judge it must be analyzed in terms of specified textual rights to life and to human dignity.[96] They also provide the baselines against which the legitimacy of a particular judicial decision can be measured, in terms of linguistic, logical, and teleological consistency with stated principles or precedents. Specific doctrines can thus provide either obstacles or channels to achieving particular results, particularly when a national court faces the task of harmonizing a new set of doctrines laid down by another court outside the national legal system with long-standing national doctrinal traditions and formulations. The resulting constraints, where they exist, are likely to act more as temporary checks than absolute bars, as courts identify various incremental strategies to mesh apparently conflicting principles or to graft new doctrinal formulations onto old.
To some extent, particular national legal doctrines simply reflect and codify aspects of national history and culture that define the role of courts within a particular national legal system. The best example in this category is the "eternal guarantee clause" (Ewigkeitsklausel) in the German constitution, which prohibits amendment of the constitution to abridge fundamental individual rights.[97] The German Constitutional Court thus had strong textual support for its claim that the Treaty of Maastricht could only be consistent with the German constitution to the extent that it did not abridge the fundamental rights of German citizens.[98]
A less obvious way in which national legal doctrine can shape judicial identity in ways that can constrain national courts in accepting direct effect and supremacy concerns the distinction between "monism" and "dualism": between a conception of the national legal order existing as an integrated part of the international legal order and a conception of two distinct legal orders in which rules from the one must be "translated" into the other through specified processes to have any legal effect. The Netherlands has the strongest tradition of monism, leading the Dutch Supreme Court to declare in 1906 that treaties were directly applicable in Dutch law without "transformation" or transposition into national statutes by the Dutch parliament.[99] This tradition made it particularly easy for Dutch courts to accept direct effect of EC law in the wake of Van Gend en Loos. Italy, on the other hand, has a centuries-old dualist tradition, referred to in Italian law as the "plurality of legal orders."[100] After World War II, this tradition became linked with the primacy of the Italian constitution.[101] The Italian case study documents the ways in which the dualist approach hampered acceptance of EC law supremacy by the Italian Constitutional Court for decades.[102] A final example of the interrelationship between specific national legal doctrines and judicial perceptions of their ability to act as autonomous actors concerns different national conceptions of "sovereignty." Bruno de Witte documents the role of the "principle of sovereignty" in all the countries under consideration as a principle "known to all the legal systems under review" and that "can be considered part of the common traditions of European constitutional law."[103] Nevertheless, its different treatment within these national legal systems strongly affected relative receptivity to acceptance of direct effect and supremacy, as well as, more recently, acceptance of the Maastricht Treaty.
In France, Belgium, and the Netherlands, constitutional provisions and doctrinal traditions recognizing the primacy of international treaty law (another facet of a monist tradition) has meant that the absolute supremacy of EC law could be accepted as international law without a perceived infringement of national sovereignty. In Germany and Italy, by contrast, international treaties are regarded as comprising part of a separate legal order, which cannot alter fundamental aspects of the national legal order. In both these countries supremacy was ultimately accepted on the basis of a specific constitutional provision authorizing membership in the Community. The difficulty is that the constitutional courts in both countries interpret these specific constitutional provisions as containing their own implied limits embedded elsewhere in the national constitution, limits that can be asserted as necessary against European Community law. The result is ultimately a conditional acceptance of supremacy, reserving a core of absolute power for the national courts contrary to the doctrine of the ECJ itself.[104] The German Constitutional Court reasserted this power in its Maastricht decision, in ways that will shape the next stage of development of the EC legal system.
This article is part retrospective, part refinement, and part prediction. We conclude that the neofunctionalist model continues to provide a remarkably accurate account of the process of legal integration, with its emphasis on a community of sub- and supranational actors pursuing their self-interest in a nominally apolitical context. However, the model must be refined and coupled with more precise specifications of the interests driving participants in the process and the constraints they face in pursuing those interests. These participants include both state and social actors as well as the ECJ. We have sought to specify those interests and constraints here, taking a preliminary look at the types of litigants most likely to use the ECJ and parsing the motives of national courts in accepting or rejecting the doctrines of direct effect and supremacy.
In the process we have noted the need to move beyond the neofunctionalist assumption of a unitary state, pointing to differences between different levels of courts as well as between courts and other state institutions. Courts are not just the relevant "face of the state" for purposes of legal integration; they are quasi-autonomous actors the wider integration process. A full explanation of this process thus requires combining the neofunctionalist framework with a model of the disaggregated state.
Along the way, we have also sought to signal a need for a shift away from contending "paradigms" toward the generation of mid-range hypotheses and to commend much of the excellent work already being done in this area. This flowering of interest among political scientists in the court and the relationship more generally between legal and political institutions in the EU may bear particular fruit when cross-pollinated with a new generation of EC legal scholarship.[105] It thus seems appropriate to conclude with a review of some new developments in legal scholarship that are likely to prove conducive to more interdisciplinary collaboration. We note five particularly relevant trends.
First, the era of respectful and unquestioning adulation of the Court is over. Where Rasmussen once walked alone, he is joined today by younger scholars such as Coppell and O'Neil,[106] as well as others following in the more measured and careful footsteps of Joseph Weiler. Documenting and encouraging this trend, Jo Shaw has challenged the traditional fusion of law and integration, articulating a "counter-principle" of disintegration[107]. From this perspective, EC law can promote diversity and difference as well as consensus, fragmentation as well as unity and cohesion, disruption of national norms as well as uniformity, and illegitimacy and weakness as well as legitimacy and authority. Fighting words these, particularly in the tightly knit web of pro-EC lawyers, judges, and academics. They reflect a new willingness to see the Court in the round and to move away from implicitly teleological scholarship.
Second, the Court itself is retrenching. Recent decisions sharply curtailing the scope of the prohibition on non-tariff barriers in Article 30 and slapping down the Commission for exceeding its powers under the Treaty have evoked howls of protest from older and more activist generation of judges such as Mancini, themselves following in the founding footsteps of Pescatore and Lecourt.[108] Legal scholars are already actively engaged in speculating about the reasons behind this shift, ranging from strategic calculation in light of the upcoming inter-governmental conference to the maturation of the Court to the emergence of a different legal vision of the Community itself.
Third, legal scholars and the Court itself increasingly recognize the need for amendment of the Community's basic legal architecture. The overload on the Court's docket is becoming painfully apparent, with accompanying calls for both doctrinal change and the creation of new EC lower courts.[109] Attention will also focus increasingly on the Court of First Instance.
Fourth, EC legal scholars will be increasingly engaged in the task so dear to the hearts of American legal academics: debating the role of a court in a democracy. Some of these debates are being powered by changing conceptions of law -- the introduction of legal realist perspectives on traditional European legal formalism. Others flow from changing conceptions of democracy -- the reevaluation of the role of non-elected institutions and their ability to serve the underlying values of the democratic process.[110]
Fifth, many analysts of EC law are likely to reengage the debate concerning the relationship of EC law to international law more generally. The revisiting of these issues will be fueled by the German Constitutional Court's rejection of the ECJ's landmark depiction of the EC legal order as sui generis in Van Gend & Loos, reemphasizing the status of a Treaty of Rome as a treaty and the role of the member states as the "masters of the treaty." As the country studies in this project demonstrate, a number of national courts and commentators never fully accepted the distinction between EC and international law. To the extent that this link is reforged, EC legal scholarship will feed more directly into international legal scholarship on EC law as emblematic of international law in a community of liberal states.
These five trends are part of a larger whole. To quote Jo Shaw, "[w]hat is slowly emerging, out of the traditions of a number of disciplines and out of interdisciplinary work, is a body of commentary which examines European legal processes and legal institutions in their broader social, economic and political context, rather than regarding legal processes as an object of study in themselves."[111] Indeed, several European legal scholars have launched the European Law Journal as a forum for such scholarship. It is appropriately subtitled a Review of European Law in Context.[112]
As political scientists focus on specific developments within national legal systems and the motives driving national and transnational litigants, even tracking the trajectory of individual cases, their work will intersect much of this new legal scholarship. They will learn to take courts more seriously, even while teaching many legal scholars to take them less seriously -- at least in terms of looking beyond the formal authority of the law as written or judicially pronounced. They may even come to understand doctrinal constraints, even if such constraints need to be filtered through the lens of judicial identity. More generally, as broad generalizations concerning "national interest" or "self-interest" give way to a more nuanced understanding of the complex interaction of multiple sub-and supra-national actors, as well the interaction of different government entities jockeying with one another while subject to international, subnational and supranational pressures, the study of legal integration will take its rightful place alongside studies of political and economic integration. With luck, the results will mirror the rich interaction of law, politics, and economics in the European Union.