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A Community of Law? ‘European’ Law and Judicial Politics: The Court of Justice and Beyond

  • Daniel Wincott (a1)

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OVER THE LAST DECADE AND A HALF THE PART PLAYED BY THE European Court of Justice (ECJ) in the construction and operation of the European Union has become controversial. Relatively unnoticed beyond specialist legal circles in the 1960s, 1970s and early 1980s, the role of the Court featured prominently in the debates occasioned by the Treaty of Maastricht. In this article I consider the use of heroic and villainous imagery to describe the Court. After arguing that such imagery now conceals more than it reveals, I suggest that if its role is to be understood properly, the Court needs to be placed in strategic context. For convenience, the discussion of strategic context, which makes up the largest part of this article, is divided into five sections. In turn these sections consider member state executives, other European Union institutions, ‘European’ law(s), European Community law and actors in civil society (particularly litigants).

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1 See, for example, Slaughter, Anne-Marie, Sweet, Alec Stone and Weiler, Joseph H. H. (eds), The European Courts and National Courts: Doctrine and Jurisprudence, Oxford, Hart Publishing, 1998 .

2 Wincott, Daniel, ‘Political Theory, Law and European Union’ in Shaw, Jo and More, Gillian (eds), New Legal Dynamics of European Union, Oxford, Clarendon Press, 1995, pp. 295311 discusses some of these issues.

3 See Rometsch, Dietrich and Wessels, Wolfgang (eds), The European Union and Member States: Towards Institutional Fusion?, Manchester, Manchester University Press, 1996 .

4 See, for example, Sir Patrick Neil, ‘The European Court of Justice: A Case Study in Judicial Activism’, Memorandum submitted to the Sub-Committee on the 1996 IGC of the House of Lords European Communities Committee, 26 June 1995, pp. 218–45.

5 Burley, Ann-Marie and Mattli, Walter, ‘Europe before the Court: A Political Theory of Legal Integration’, International Organization, 47:1 (1993), but contrast with Daniel, WincottThe Role of Law or the Rule of the Court of Justice? An ‘Institutional’ Account of Judicial Politics in the European Community’, Journal of European Public Policy, 2:4 (1995), pp. 583602 .

6 Garrett, Geoffrey, ‘International Cooperation and Institutional Choice: The European Community’s Internal Market’, International Organization, 46:2 (1992), pp. 533–58. Strong emphasis on the role of powerful member states might give the analysis a ‘realist’ quality (in terms of international relations theory).

7 Moravcsik, Andrew, ‘Preferences and Power in the European Community: A Liberal Intergovernmentalist ApproachJournal of Common Market Studies, 31:4 (1993), pp. 512–3.

8 Moravcsik, Andrew, ‘Liberal Intergovernmentalism and Integration: A Rejoinder’, Journal of Common Market Studies, 33:4 (1995), pp. 611–28. Pushed to an extreme the Liberal intergovernmentalist position begs the question of why the member states require the apparatus of the ECJ at all. See Pollack, Mark, ‘Delegation, Agency and Agenda Setting in the European Community’, International Organization, 51:1 (1997), pp. 99134 and ‘The Engines of Integration? Supranational Autonomy and Influence in the European Union’, in Wayne Sandholtz and Alec Stone Sweet, Supranational Governance and European Integration, Oxford, Oxford University Press, 1998, pp. 217–249.

9 Alec Stone Sweet and James Caparoso, ‘From Free Trade to Supranational Polity: The European Court and Integration’, in Wayne Sandholtz and Alec Stone Sweet, Supranational Governance and European Integration, op. cit., pp. 92–133. They are very careful to provide detailed accounts of particular policy areas within which agents and choice play an important part. The relationship between these case studies and their overarching account might have been explored in more detail. Nevertheless, this point should be taken as a minor criticism of an extremely important contribution to the literature.

10 Kilpatrick, Claire, ‘Community or Communities of Courts in European Integration? Sex Equality Dialogues between the UK Courts and the ECJ’, European Law Journal, 4:2 (1998), pp. 122–5.

11 Dauses, Manfred A., ‘The Protection of Fundamental Rights in the Community Legal Order’, European Law Review, 10:5 (1985), pp. 318419 .

12 In earlier work I considered the strategic role of the Court through the notion of ‘purposeful opportunism’ that I had borrowed from Laura Cram’s analysis of the Commission — ‘Calling the Tune without Paying the Piper? Social Policy Regulation and the Role of the Commission in European Community Social policy’, Policy and Politics, 21:2 (1993), pp. 135–46. ‘Purposeful opportunism’ describes the strategic role of an actor within a framework of structures that constrain its activity, but also make action possible, see Daniel Wincott, ‘The Role of Law or the Rule of the Court of Justice?’, op. cit.

13 See Shaw, Jo, ‘Introduction’ in Shaw, Jo and More, Gillian (eds), New Legal Dynamics of European Union, op. cit., 1995, p. 10 for the development of an argument around this point.

14 I explore these issues in a little more detail in Daniel Wincott, ‘Political Theory, Law and European Union’, op. cit. To give one example, the end of the cold war has confronted the Court (and the EU more generally) with a much more differentiated context than it might have faced otherwise. If it ever existed, the possibility of developing a conventional ‘statist’ constitution at the European level seems extremely remote in this new context.

15 See Cram, Laura, ‘The Commission as a Multi-organization: Social Policy and IT Policy in the EU’, Journal of European Public Policy, 1:2 (1994), pp. 195217 .

16 On this point see Dashwood, Alan, ‘The European Parliament and Article 173 EEC: The Limits of Interpretation’, in White, Robin and Smythe, Bernard (eds), Current Issues in European and International Law, London, Sweet & Maxwell, 1990 .

17 Although these are usually presented as twin foundational principles of Community law, conceptually Supremacy is the fundamental principle. For a discussion see Wincott, Daniel, ‘The Court of Justice and the Legal System’ in Cram, Laura, Dinan, Desmond and Nugent, Neill (eds), Developments in the European Union, London, Macmillan, 1999, p. 90 .

18 Stein, Eric, ‘Lawyers, Judges and the Making of a Transnational Constitution’, American Journal of International Law, 75:1 (1981), p. 24 ; see also Daniel Wincott, ‘The Role of Law or the Rule of the Court of Justice’, op. cit., p. 588.

19 But see MacCormick, Neil, ‘The Maastricht-Urteil: Sovereignty Now’, European Law Journal, 1:3, (1995), p. 259 for an ‘optimistic’ view of these issues.

20 As a distinguished analyst of and commentator upon European integration put it — see Weiler, Joseph H. H., ‘Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities’, Washington Law Review, 61:3 (1986), pp. 1103–35.

21 Wincott, Daniel, ‘Human Rights, Democracy and the Role of the Court of Justice in European Integration’, Democratization, 1:4 (1994), pp. 251–71 provides a preliminary attempt to bring these political actors back in to the story of the development of fundamental rights protection in the European Union.

22 See, for example, Dolowitz, David and Marsh, David, ‘Who Learns What from Whom: a Review of the Policy Transfer Literature’, Political Studies, 44:2 (1996), pp. 343–57, and also note that the ESRC’s initiative on ‘The Future of Governance’ is likely to add considerably to this literature.

23 Kilpatrick, op. cit., p. 126.

24 Ibid.

25 Some of my own previous work was intended to point out the limits to the role of the Court of Justice (in part by emphasizing the distinction between Community law and the Court): Wincott, ‘The Role of Law or the Rule of the Court of Justice’, op. cit. Nevertheless I, too, was dazzled by the ‘success’ of the ECJ/Community legal system and my attention was largely limited to the ‘constitutional’ cases. So while Kilpatrick is comparatively generous to this paper of mine, it is right that it should still fall within her critique. That having been said, I wish to make two points. First, inasmuch as I have made a ‘highly positive evaluation of the Court’s work’ my evaluation was of its empirical impact and does not necessarily reflect any normative commitment of mine (Kilpatrick, op. cit., p. 125). Secondly, Kilpatrick’s discussion of my assessment of instances where national courts have not fallen in with the ECJ is overly critical, ibid., p. 127. My assessment that ‘on the whole, these differences [between the ECJ and higher national courts] have now been overcome’ (Daniel Wincott, ‘The Role of Law or the Rule of the Court of Justice’, op. cit., p. 592) referred specifically to the issue of direct effect of Community rules and was not extended to the principle of supremacy. I do not believe that this claim can be made with respect to supremacy, at least in any straightforward way.

26 Mancini, G., ‘The Making of a Constitution for Europe’, Common Market Law Review, 26:4 (1989), p. 605 , a claim I have repeated, albeit in modified form — Wincott, ‘The Role of Law or the Rule of the Court of Justice’, op. cit., p. 600.

27 Kilpatrick, op. cit., p. 149.

28 Ibid.

29 Ibid.

30 For a discussion see Richardson, Jeremy, ‘Eroding EU Policies: Implementation Gaps, Cheating and Re-steering’, in Richardson, Jeremy (ed.), European Union: Power and Policy-Making, London, Routledge, 1996, pp. 278–94.

31 Zimmermann, Rienhart, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’, Law Quarterly Review, 112:4 (1996), pp. 576 .

32 Zweigert, Konrad and Kötz, Hein, Introduction to Comparative Law, 2nd edn, Oxford, Clarendon Press, 1987 .

33 Donner, André, The Role of the Lawyer in European Integration, Edinburgh, Edinburgh University Press, 1968, p. xi .

34 Zimmermann, op. cit., is relevant here as well.

35 Donner, op. cit., p. xiii.

36 In June 1965 President de Gaulle instructed French ministers to boycott the Council of Ministers. This ‘policy of the empty chair’ brought the Community decision-making process to a halt. The boycott was ended by the ‘Luxembourg compromise’.

37 Donner, op. cit., pp. 62–3.

38 Compare Kilpatrick, op. cit., p. 136 and Donner op. cit., pp. 29–54, in which he argues that the problem was more complex than one of mere communication (see p. 53).

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A Community of Law? ‘European’ Law and Judicial Politics: The Court of Justice and Beyond

  • Daniel Wincott (a1)

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