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The European Court and the National Courts:

European legal integration, the process through which the European legal system is being constructed, has gradually but inexorably transformed the nature of the European Community (EC). The development of a new "constitutional," rule of law polity not only displaced the traditional, state-centric, "international regime" of the diplomat and the international relations scholar (Stein, 1981; Stone, 1994a; Weiler, 1981). It altered, within a very wide zone in Western Europe, how individuals and firms pursue their interests, how judges resolve disputes, and how policy is made.

Legal integration has been sustained by the intimate connections forged among three sets of actors - private litigants, national judiciaries, and the European Court of Justice (ECJ) - pursuant to the announcement, by the European Court, of the doctrines of the supremacy and of the direct effect of Community law within the legal orders of the member states. These connections are themselves organized and sustained by article 177 of the EEC Treaty. According to that article, when Community law is material to the resolution of a dispute before a national court, the presiding judge is permitted to, and in some circumstances must, request the ECJ for a authoritative interpretation of that law. This request is called a preliminary reference. The ECJ responds with a judgment, called a preliminary ruling, which is then applied by the national judge to resolve the dispute. Art. 177 was designed to ensure the uniform application of Community law across national jurisdictions. When combined with the doctrines of supremacy (conflicts between an EC rule and a national rule must be resolved in favor of the former) and direct effect (under certain conditions, individuals possess, by virtue of EC rules, rights and duties that must be enforced by national judges), the preliminary reference procedure developed into a decentralized means of enforcing EC law and - the same thing - of incorporating EC law into national law.

Research on the operation of the EC legal system has exploded into prominence in recent years. Law journals once devoted exclusively to national law, contain an ever-rising percentage of articles documenting the creeping reach of Community law into formerly autonomous legal domains. Important new journals devoted to EC law and the work of the ECJ have appeared, and new perspectives on the European legal system are proliferating.[1] Social scientists, including students of international relations, comparative politics, and law and courts, have debated how the EC's legal system operates, while agreeing on the crucial importance of the Court's moves to constitutionalize the treaties (see Burley and Mattli, 1993; Garrett, 1992; Stone Sweet and Caporaso, forthcoming). In 1996, West European Politics published two articles on the relationship between the ECJ and the national courts (Alter, 1996; Golub, 1996); and in 1997, an interdisciplinary, multi-national group of researchers published a book devoted to the reception of the supremacy doctrine by national courts (Slaughter, Stone Sweet, and Weiler, eds., 1997). To our knowledge, there are at least a dozen doctoral dissertations on the European legal system now being pursued in American political science departments.

We seek to contribute to this research by presenting and analyzing comprehensive data on preliminary references. With the help of the European Court, we collected all 2,978 references made between 1961 (the date of the first art. 177 reference) and mid-1995, coding each by date, member state of origin, referring court, and legal domain of Community law, among other categories. This data had never before been compiled (the complete data set is available from the authors upon request). The data set enables us to examine interactions between the ECJ and national judges across time, jurisdictional boundaries, and issue area, and therefore to build a dynamic, multidimensional view of legal integration. As important, we use it to evaluate existing scholarly approaches to the subject.

We begin by examining how scholars have theorized European legal integration (I) and then, informed by this theorizing, we present our analysis of the data (II).

[1] Such as the European Law Journal.

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