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The scholarly literature on European legal integration has been well surveyed elsewhere (e.g., Burley and Mattli, 1993). In this section, we discuss current approaches to understanding the relationship between the ECJ and national judges, paying particular attention to propositions that are (1) either explicit or derivable from these approaches, and (2) capable of being tested against time-series and cross-sectional data on art. 177 activity. There is broad agreement on two important points: that the constitutionalization of the EC treaties by the European Court was a bold and momentous act of judicial activism; and that the European Court has pushed the integration project further than member state governments would have been prepared to go on their own.[2] Disagreement centers on how and why national courts have participated in legal integration.
Research on the development of Community law is dominated by legal scholars, whose point of departure, most commonly, is doctrinal exegesis. Such scholarship has focused heavily on the formal consequences of supremacy and direct effect, and the relative ease or difficulty with which national judges have accommodated these doctrines (see Slaughter, Stone Sweet, and Weiler, eds., 1997). The orientation makes perfect sense. In some national jurisdictions, supremacy required judges to abandon certain deeply-entrenched, constitutive principles, such as the prohibition against judicial review of legislation; and direct effect required some judges to set aside traditional rules of standing and recognition, and to evolve new ones. Further, in some member states, international law enters into the national legal order only through implementing acts like legislation, a system of coordinating domestic with international law called dualism; in others, international law binding upon the state is immediately applicable within that state, a coordinative system called monism. Supremacy forbids the use of traditional, dualist solutions to conflicts between national and international law (such as the lex posteriori doctrine) and direct effect enables private actors to sue member-state governments for non-compliance with EC law, including failure to implement EC secondary legislation. While recognizing the importance of these obstacles, students of EC law have insisted that, over time, the ECJ's vision of an integrated legal Community has prevailed, and for one very good reason: it's the law. According to the European Court, supremacy and direct effect are binding rules within the EC legal order, and national judges, when they adjudicate disputes about the relationship between EC law and national rules and practices, are part of that order. In fact, national judges have employed a variety of techniques to accommodate supremacy and direct effect, not all of them perfectly compatible with the European Court's preferred means. Whether the national courts have been convinced of the soundness of the European Court's reasoning, or whether they feel obliged to respect the Court's pronouncements as they would other authoritative sources of law, the result has been the same. Today, every jurisdiction in the Community has accepted supremacy, and enforces EC law, even in the absence of national implementing measures.
Legal scholarship has been more interested in tracing the development of the ECJ's case law and its formal impact on national legal orders, than in explaining judicial behavior. Nevertheless, the approach generates expectations about practice, and these expectations can be expressed as testable propositions. Most important, the announcement of supremacy and direct effect should have initiated a steady increase in references. Further, in those countries that can be characterized as monist (compared with those that can be characterized as dualist), and in those countries in which judicial review of legislation is exercised (relative to where judicial review is formally prohibited), we should expect more references, other things being equal.
This approach focuses on "extra-legal" factors, namely, the extent to which judges work to enhance their own authority to control legal (and, therefore, policy) outcomes, and to reduce the control of other institutional actors, such as national executives, parliament, and other judges, on those same outcomes. Two academic lawyers, Eric Stein (1981) and - especially - Joseph Weiler (e.g., 1981, 1990, 1994) pioneered studies of the strategic choice-contexts facing European judges. In constitutionalizing the treaty system, the ECJ breathed life and agency into EC law, and simultaneously expanded its own role within the institutional framework of the Community. To the extent that member state governments were hostile to the Court's moves, they were unlikely (and ultimately unable to) reverse them.[3] The success of the Court's gambit depended critically on whether the national courts could be induced to play along. Weiler argued that the evolution of EC law and of the incentive structure facing national judges pushed in the same direction, in favor of integration. National judges could acquire - many for the first time - the power to control state acts previously beyond their reach, such as statutes. And art. 177 not only legitimized what would become a complicit relationship between the ECJ and the national courts, it also afforded both judicial levels a good deal of protection from potential political fallout. The European Court responds to preliminary questions, as the Treaty requires, but the ECJ does not apply EC law within the national legal order; the national courts provide the ECJ with case load, but only "implement" the Court's preliminary rulings, as the Treaty requires. Thus, at critical moments, each court can claim to be responding to the requirements of the law, and the demands of the other court. Once national judges understood that they were advantaged by participating in the construction of EC law, the delicate mixture of the active and the passive in this new legal system flowed naturally, gluing the two levels together.
Weiler's synthesis of formal-doctrinal and rational-behavioral perspectives has been enormously influential. Anne-Marie Burley (now Slaughter) and Walter Mattli (1993), for example, translated the core elements of this account into the language of neo-functionalism, helping to invigorate the study of the Court by social scientists. Neither Weiler nor Burley-Mattli were much concerned with disincentives to "playing the Eurolaw game." Their objective was to explain how the ECJ was able to integrate EC and national law into a new legal order, not to emphasize and then seek to explain inconsistencies in that order. In this version of the approach, too, we can expect the relationship between the European Court and the national courts to grow tighter over time, measurable in part by increasingly higher levels of art. 177 activity.
Others, however, did consider anomalies and their sources. Stone Sweet (1995) noted three of them. Clearly, the logic of empowerment did not apply to all national judges, such as those sitting on constitutional courts. Other judges could be expected to resist participating in the construction of EC law to the extent that they believed that the ECJ's case law would undermine their own carefully-curated jurisprudence. And still others might see that the development of EC law would, in effect, expand the "menu of policy choices" available to them, and exploit this development creatively, but not always in pro-integrative directions. Jonathan Golub (1996) and Karen Alter (1996) made some of these same points, and were the first to publish social science on the resistance of national judges to legal integration processes.
Golub argued that the "traditional model" (essentially the Weiler synthesis, but Golub references virtually the entire field of EC law studies) is flawed in that the evidence available fails to support "hypotheses" he derives from the model. Focusing on the UK experience, Golub formulated three of them:
(1) "judicial cooperation between British judges and the ECJ has yielded frequent references from British courts";
(2) "as a new member state, the [frequency] of references from Britain followed a learning curve, increasingly steadily over time"; and
(3) "over time, [the frequency] of British references converged with those of other states so that states of equal size exhibited similar numbers of references as courts faithfully carried out their duties under Article 177" (Golub, 1996, p. 365).
With the possible exception of statement 3, these statements are not hypotheses, at least not in the usual sense, because they do not posit clear, causal connections between at least two variables. The dependent variable - levels of references - is explicit enough, but what pushes levels upward, other than "judicial learning," is not. Presumably, the causal mechanisms are latent in the "traditional model." Further, because Golub does not tell us how to operationalize "frequent," the first statement is difficult to evaluate. Finally, the third statement is probably not derivable from existing scholarship. To our knowledge, and Golub does not reveal his source, no one had theorized the connections between national "size" - which he later equates with population (p. 368) - and references.
After analyzing preliminary references comparatively, Golub concludes that "Britain has distinguished itself as a nation loathe to provide preliminary references from national courts, and therefore loathe to engage in judicial cooperation with the ECJ" (p. 365). Why? Golub (pp. 375-80) proposes that UK judges possess significant judicial discretion, which they exercise, often enough to make a difference, by enforcing national rules even when they come into conflict with EC rules. He illustrates the point with selected examples of environmental litigation. Golub also speculates that UK judges are following the lead of the government in power, noting that the failure to enforce EC environmental rules came during the 1980s, a time when the Conservatives opposed moves toward greater integration. While the arguments are suggestive, the important theoretical questions - to what extent, under what conditions, and in what policy areas, do national judges exercise judicial discretion, defer to the wishes of national executives, and refuse to apply EC law? - are left unanswered.
Alter's central claim is that the "lower courts were the motors of legal integration ... through their referrals to the ECJ" (p. 467). A more nuanced version of the judicial empowerment thesis - she characterizes it as an "alternative explanation" [p. 483]) - Alter argues that the balance of incentives and disincentives facing any national judge differs depending on the position of that judge in the national judicial hierarchy. Thus: "the higher courts had the most to lose by the extension of the ECJ's ... authority over national legal issues"; and the "lower courts found few costs and numerous benefits in making their own referrals to the ECJ and in applying EC law" (pp. 464, 466). The ECJ encouraged the lower courts to make referrals, to increase the opportunities for constructing the European legal system and to enhance its own autonomy; the lower courts used referrals to enhance their own autonomy and to circumvent the authority of appellate courts above them. According to Alter, the judges on higher courts "tried to stop lower courts from making references to the ECJ" in order to maintain their status and to preserve the sanctity of their case law, but at this they proved spectacularly unsuccessful. Failure was due, in part, to the incomplete procedural controls available to higher courts, and in part to the ECJ's insistence that legal procedures in the member states, including those organizing relationships between high and lower courts, would not be permitted to hinder the enforcement of EC law through art. 177.
The argument is under-theorized, making assessment difficult. Alter asserts, for example, that:
since ECJ jurisprudence did not affect all high courts equally, there was seldom a unified opposition by [higher] national courts to any ECJ decision. Thus a varied pattern emerged within and across national legal systems of acceptance and refusal by national high courts of ECJ decisions and jurisdictional authority (p. 468).
Although she argues that this "varied pattern" contributed to the inability of higher courts to contain the penetration of EC law into national legal orders, Alter does not specify the underlying sources of variance, nor does she describe it (either substantively in law, or systematically across jurisdictions). Most unfortunately for our purposes, Alter fails to provide a stable, working definition or coding protocol for what she means by "higher," as opposed to, "lower" courts. At times, she uses the phrase "high courts," which we take to mean the highest appellate instance within any given jurisdiction; at other times, she assimilates appellate courts that are not the highest appellate court in the system into a class called "higher courts."[4]
In our analysis of the data, we coded courts into one of three categories: lower courts (of first instance); intermediate courts (of appeal, but not courts of final appeal in any given court system); and higher courts (of final appeal within any given court system).
A third set of approaches, whose point of departure is for all practical purposes the Weiler synthesis, emphasizes the role of private actors in activating and sustaining European legal integration. Litigants and their interests are understood to be fueling the machine. In a seminal article, Burley and Mattli (1993) proposed that the European legal system had been constructed according to a self-sustaining logic: in announcing the doctrines of supremacy and direct effect, the ECJ opened up the European legal system to private litigants, undermined certain constitutional orthodoxies in place in Continental legal systems, and radically enhanced the potential effectiveness of EC law within the member states; private actors, motivated by their own interests, provided a steady supply of litigation capable of provoking art. 177 activity; preliminary references generated the context for judicial empowerment, which proceeded in the form of a nuanced, intra-judicial dialogue between the ECJ and national judges on how best to accommodate one another; and, as the domain of EC law expanded, this dialogue intensified, socializing more and more actors - private litigants, judges, and politicians - into the system, encouraging more use.
The present authors have also developed (and have begun testing) a theory of European legal integration (Stone Sweet and Brunell, forthcoming 1998); the theory is broadly consistent with the Burley-Mattli approach. We conceive European integration - the construction of a transnational society and polity - as a response to the demands of those individuals and companies who need European rules, and those who are advantaged by European law and practices compared with national law and practices. We argue that the pace and scope of integration depends critically on the development of (1) rules to govern transnational activities, (2) the capacity of supranational organizations, like the Court and the Commission, to respond to those demands, and (3) a stable and effective means of resolving legal disputes, particularly those that embody conflicts between supranational and national rules. We hypothesize that levels of preliminary references will vary - across member states, court systems, and legal domain - as a function of the intensity of transnational activity, and the density of EC law (such as secondary legislation).
We argue that these three variables - transnational activity, EU rules, and dispute resolution - will develop together, in a dynamic and relatively autonomous system of mutual influence.[5] For example, higher levels of transnational activity, such as trade, will produce more preliminary references; and to the extent that the ECJ's rulings stabilize expectations about the meaning of EC law, and to the extent that they remove national hindrances to trade, the operation of the legal system will encourage more trade, and the sequence begins anew. As an area of EU law develops (as measured, say, by the quantity of secondary legislation adopted in that sector), private litigants gain grounds on which to attack national rules or practices for being in non-compliance with EC rules. And more transnational exchange, and more litigation of EC law in national courts will encourage legislators (national governments and parliaments, the Council of Ministers and the European Parliament) to adopt pro-integrative rules, to the extent that legislators wish to meet the demands of those (growing) segments of society that want these rules, and to the extent that they hope to avoid judicial censure at the hands of the ECJ and the national courts. This self-sustaining logic of institutionalization inheres in the Weiler and the Burley-Mattli accounts, and should be familiar to students of Haas' neofunctionalism (Haas, 1961; Stone Sweet and Sandholtz, 1997), policy feedback (Pierson, 1993), path dependence and increasing returns (Arthur, 1994; North, 1990; Pierson, 1996), and judicial politics (Landfried, 1984, 1992; Stone, 1994b).
The adaptation of private actors and public officials to the development of EC law and to judicial rulemaking is an important component of our theory, that is, how courts decide cases regularly feeds back onto the behavior of social and political actors, structuring how non-judicial actors make decisions. Nevertheless, we believe that the logic of judicial empowerment, as it relates to national judges, has been overemphasized. (We do not claim that this logic does not operate, only that it supplements other forces). We wish to propose a more banal interpretation of national judicial behavior, one that we suspect may explain better the variance we find in the relationship between the ECJ on the one hand, and different sets of national judges on the other. Congruent with our theory, we expect that judges who handle relatively more litigation in which EC law is material (such as disputes that arise out of transnational activity) will be more active consumers of EC law, and of preliminary rulings, than judges who are asked to resolve such disputes less frequently. We assume that national judges strongly prefer to dispose of their cases efficiently, that is, they would like to go home at the end of the day having disposed of more, rather than fewer, work-related problems. As the percentage of cases involving EC law rises, so do judicial incentives to master the tools that are most appropriate for the job, and those tools have been supplied by the European Court. Judges that do not need these tools will be more reticent to master them, and have less reason to be concerned with the overall effectiveness of EC law.
[2] Intergovernmentalist approaches to European integration are all but irrelevant to the concerns of this paper, not least, because they ignore the role of national judges and litigants (but see Moravcsik, 1995).
[3] In order to reverse an ECJ judgment interpreting treaty law, the member states can only revise that law. Revision requires unanimity among the member-states and national ratification.
[4] See her discussion of the British Court of Appeal (Alter, 1996, p. 467).
[5] The theory is elaborated more fully in Stone Sweet forthcoming.
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