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This chapter provides a historical overview of the evolution of European cooperation. It first sketches the historical background to several initiatives for international cooperation after the Second World War. It then discusses the way the EU evolved from the initial founding of the European Coal and Steel Community into what is now the European Union. In doing so it looks at the evolution of its policies, institutions and membership over the decades and highlights major international events and crises that affected developments. The chapter shows that the process of bringing the European countries together was long and winding with many fits and starts. Periods of rapid change and innovation have alternated with long stretches of gridlock and stalemate. The process was often erratic because of fundamentally different views on the nature, pace and scope of integration. While the term ‘European Union’ suggests that the organization was swiftly put in place on the basis of a solid design, the EU in essence is a patchwork that has been stitched together in a step-by-step fashion over the course of seven decades.
This chapter focuses on the origins of the institutions that would evolve into the European Union. Norman argues that a focus on perceptions of fragility provides a fruitful but underexplored perspective on the creation of the early institutions of European postwar political cooperation. The design of these institutions were informed by perceptions of fragility associated with democratic governance. The conventional functionalist story of the EU, where cooperative institutions were set up to prevent new conflicts between the formerly warring countries, while not inaccurate, obscures how the reconstruction of the European political order was also an answer to the breakdown of European democracy before the war. Notions of democracy’s fragility informed the functionalist perspective on politics as well as the perceived for a ‘militant’ protection of democratic institutions. Apart from shaping the origins of the European political order, the chapter argues that perceptions of fragility have continued to inform the institutional development of the EU and even ongoing efforts to strengthen its democratic aspects.
This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms—such as Article 7 of the Treaty on European Union (TEU) and the recent rule of law conditionality regulation—have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: The oral proceedings of Commission v. Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.
Trading Power traces the successes and failures of a generation of German political leaders as the Bonn Republic emerged as a substantial force in European, Atlantic, and world affairs. Over the course of the 1960s and 1970s, West Germans relinquished many trappings of hard power, most notably nuclear weapons, and learned to leverage their economic power instead. Obsessed with stability and growth, Bonn governments battled inflation in ways that enhanced the international position of the Deutsche Mark while upending the international monetary system. Germany's remarkable export achievements exerted a strong hold on the Soviet bloc, forming the basis for a new Ostpolitik under Willy Brandt. Through much trial and error, the Federal Republic learned how to find a balance among key Western allies, and in the mid-1970s Helmut Schmidt ensured Germany's centrality to institutions such as the European Council and the G-7 – the newly emergent leadership structures of the West.
The publication in 2017 of Dawn of a New World (I B Tauris) confirmed Rein Müllerson as one of the great international lawyers of his generation. His career is deeply marked by the recent history of Europe. He was a young director of the Department of International Law of the Academy of Sciences of Moscow in the 1980s, doubling down as legal advisor to Gorbachev during the decisive years of perestroika and glasnost. It is not an exaggeration to say that, in those hectic days, Müllerson saw history unfolding from the machine room of the Kremlin. In the 1990s, after a brief but very intense period as secretary of state of the newborn Estonian Republic, Müllerson joined academia again as professor of international law at the LSE first, then at King’s College. His inexhaustible stamina allowed him to wear a second hat as adviser on human rights to the United Nations, spending quite some time in Central Asia. After his retirement from King’s College, he returned in the 2010s to Tallinn as dean of the newly established School of Governance. The following text is the result of a number of conversations, some in Tallinn, others forced by circumstances through video connection. The range of issues is as wide as Müllerson’s interests, hopefully offering the reader views which are out of the common road. Not only because of the multiplicity of perspectives he is privy to, thanks to his extremely rich academic and personal trajectory, but also because of his commitment to diversity and pluralism.
The conclusion offers new perspectives on how after the crises of the 1930s and the even more horrific Second World War a more durable Atlantic order for the “long” 20th century could be created – an order that was founded as a western system led by the new American superpower and rested on the Marshall Plan, the European Recovery Program and the North Atlantic Treaty Organisation. Reappraising the global significance of these developments, it emphasises that what the principal American and west European decision-makers constructed was not just propelled by the escalating cold war with the Soviet Union but rather, on a deeper level, the outgrowth of longer-term learning processes: attempts to draw deeper lessons not only from the rise of National Socialism, authoritarianism and Stalinism and the Second World War but also from the earlier crises and catastrophes of the “long” 20th century, particularly the First World War and the deficient or unfinished efforts to create a modern international system in its aftermath. Finally, it reflects on the challenges of preserving a functioning and legitimate Atlantic and global order in the early 21st century.
If the judicial construction of Europe was not catalyzed by innately activist judges, who were the pioneers of change? Focusing on the 1960s-early 1980s, Chapter 5 introduces the first Euro-lawyers: A vanguard of independent-minded WWII survivors who sought to unite Europe via bottom-up lawyering. Less institutionally constrained than judges, they nonetheless had to erode ubiquitous knowledge deficits and habits embodied by courts and clients. To this end, they cultivated local litigants and disputes exposing national barriers to European integration; constructed test cases to introduce local judges to European rules they hardly knew; cajoled their interlocutors to solicit the ECJ by ghostwriting their referrals; and thus generated opportunities for the ECJ to render pathbreaking judgments. The chapter combines oral history interviews, materials from the ECJ and lawyers’ personal archives, secondary historiographies and newspaper records, and geocoded data of the first referrals to the ECJ. The chapter speaks to readers seeking a new perspective on the origins of European integration, the creativity and mischievousness of strategic litigation, how lawyers cultivate the rights-consciousness of litigants and the activism of judges, and how individuals promote novel practices that cut against imagined possibilities.
Chapters 7 unpacks how lawyers can serve as brokers of compliance when controversial judicial decisions spark backlash. As European integration became politicized from the 1990s onwards, disruptive European Union (EU) laws and European Court of Justice (ECJ) decisions have often provoked on-the-ground resistance. Yet these controversies can also open surprising opportunities for court-driven change, provided that Euro-lawyers mobilize as "interpretive mediators:" Public advocates who vernacularize EU law and rally local stakeholders and the press to promote compliance. The chapter develops a case study design to compare lawyers' role in two explosive controversies that generated litigation before the ECJ: The 1991 Port of Genoa case (analyzed in this Chapter), which quashed the control over port labor of a centenarian union of dockworkers, and the 2015 Xylella case (analyzed in Chapter 8), which mandated the eradication of thousands of centenarian olive trees. The chapter traces how Euro-lawyers in the Port of Genoa case preempted backlash and promoted compliance by mobilizing public and interest group support via media savvy advocacy. It speaks to readers interested in how contentious politics transform legal mobilization, how lawyers cultivate people's legal consciousness when the law is politicized, and how these efforts shape judicial policymaking and Europeanization.
Chapter 9 proposes a normative and historical evaluation of the book's findings. It first considers how lawyers compare to other ghostwriters of institutional change, suggesting that what distinguishes lawyers is their capacity to wield a mediatory, boundary-blurring agency to seize opportunities for change that may be lost upon actors shackled to single institutional settings. It then addresses the ethics of lawyers’ ghostwriting, submitting that while concealed actions pushing the bounds of the acceptable are often necessary to jump-start institutional change, Euro-lawyering became more normatively problematic as it corporatized and stratified access to transnational justice. Finally, the chapter concludes by taking stock in light of the contemporary challenges plaguing the rule of law in Europe. As a wave of illiberalism and constitutional breakdowns has swept some EU member states, Euro-lawyers have gained a new raison d’être in the struggle to reclaim the elusive liberal promise of the judicial construction of Europe.
Chapter 2 sets the descriptive, theoretical, and methodological stage for revisiting the behavior of national courts in the process of European integration. It describes the central institutional mechanism through which national courts can partner with the European Court of Justice (ECJ) to apply European law, exercise de facto judicial review, and promote integration: the “preliminary reference procedure.” It summarizes how national courts’ use of this procedure has been theorized by the prevailing account of the judicial construction of Europe: the “judicial empowerment thesis.” And it highlights suggestive qualitative and quantitative evidence that this thesis may conceal as much as it reveals. The chapter concludes by outlining the fieldwork strategy deployed to revisit the judicial empowerment thesis in Chapters 3 and 4 and probe whether national judges have harbored more diffuse and persistent resistances to European law, the ECJ, and institutional change than has hitherto been acknowledged.
Chapter 8 unpacks how the absence of Euro-lawyering and mediatory public advocacy can embolden on-the-ground backlash to European Union (EU) laws and European Court of Justice (ECJ) decisions. The chapter contrasts Chapter 7's analysis of the Port of Genoa case with a similarly explosive controversy yielding a far more regressive outcome: The 2015 Xylella case. As a plant pathogen described as "the coronavirus of olive trees" began devastating olive groves in southern Italy, the European Commission and the ECJ intervened by mandating the eradication of thousands of diseased trees. Farmers revolted against these decisions and called for disobedience, yet a legacy of noncompliance was hardly inevitable. Contentious resistance proliferated because it unfolded in a context devoid of Euro-lawyers ready to proactively advocate for compliance in a way that resonated with local stakeholders, judges, and journalists. In fact, some local lawyers and judges even joined resistance efforts and began trafficking in conspiracy. The chapter speaks to readers interested in how contentious politics can produce a defiant legal consciousness, how this consciousness can diffuse from the streets to the bar and bench, and how it threatens to corrode the judicial construction of Europe.
Chapter 1 illuminates the concealed politics behind the growing reliance on law and courts to shape public policy and resolve political struggles. Focusing on what is often depicted as a cradle of judicial activism and the "judicialization of politics" – the European Union (EU) – the chapter develops a revisionist theory of lawyers, courts, and political development that animates this book. Beneath the radar, the EU's political development through law is an exemplary story of how lawyers mobilize courts to catalyze institutional change – alongside the limits, mutations, and consequences accompanying these efforts. It is a story that places in stark relief how political orders forged through networks of courts emerge, why judges would resist these institutional changes when they would augment their own power, and the conditions whereby lawyers can overcome bureaucratic and political resistances to judicialization. The chapter introduces the concept of ghostwriting to describe lawyers who act as agents of change while cloaked behind the sheepskin of rights-conscious litigants and activist judges. It then outlines a research design to exhume how the politics of lawyers shaped the tortuous development of the world’s sole supranational polity, concluding with a roadmap for the rest of the book.
This article seeks to remedy a fundamental flaw in the debate about European integration and European Union (EU) law: the almost complete absence of a reckoning with the legacy of empire and imperialism. The article shows that the significance of EU law can be understood only against the background of the historical transformation of the European public law order with the decline of the European empires. European integration is an integral part of a new European public law order that finally replaced the public law order of the European empires – Droit Public de l’Europe or Jus Publicum Europaeum – in which the European states held a privileged place as the only ‘civilised’, and hence, sovereign states in the world. The post-World War II European public law order entailed a new vision for domestic public law, but also constituted intra-European relations anew, and established a new set of external relations between Europe and its former colonies. With the shift from ‘European’ international law to ‘universal’ international law in the twentieth century, European integration helped carve out a space for ‘Europe’ in a world where Europe was no longer the centre of gravity.
The article is a discussion of Floris de Witte’s ‘Here be Dragons: Legal Geography and EU Law’. It argues that this essay is a direct challenge to the traditional institutional thinking of European integration. This new approach suggests a turn to new empirical studies. But it also implies the elaboration of a new conceptual language for Europe. This language is still to come.
The European Union is often depicted as a cradle of judicial activism and a polity built by courts. Tommaso Pavone shows how this judge-centric narrative conceals a crucial arena for political action. Beneath the radar, Europe's political development unfolded as a struggle between judges who resisted European law and lawyers who pushed them to embrace change. Under the sheepskin of rights-conscious litigants and activist courts, these “Euro-lawyers” sought clients willing to break state laws conflicting with European law, lobbied national judges to uphold European rules, and propelled them to submit noncompliance cases to the European Union's supreme court – the European Court of Justice – by ghostwriting their referrals. By shadowing lawyers who encourage deliberate law-breaking and mobilize courts against their own governments, The Ghostwriters overturns the conventional wisdom regarding the judicial construction of Europe and illuminates how the politics of lawyers can profoundly impact institutional change and transnational governance.
Amidst the first wave of the coronavirus pandemic, the German Federal Constitutional Court rendered a little-noticed, but potentially far-reaching decision regarding European integration. When it declared the law ratifying the Unitary Patent Court Agreement unconstitutional, it did so because it is a treaty “supplementing or being otherwise closely tied to the EU”, in other words, a satellite treaty, inter-se agreement, or more generally: an international law agreement furthering European integration outside the EU law framework. This commonly used integration technique is therefore going to be a lot more difficult in future whenever Germany is involved. At the same time, the court order gives all German citizens a far-reaching right to have laws ratifying such treaties checked before the Constitutional Court, which is a significant extension compared to its earlier case-law. In future cases of disagreement, EU Member States may have to find different ways to proceed than resorting to international law, such as using the enhanced cooperation mechanism.
The establishment of the Court of Justice of the European Union (‘CJEU’) is often still regarded today as an unequivocal success story, especially compared to the troubles experienced by kindred institutions elsewhere. For non-specialist audiences, it would even seem that its performance has only recently been cast in a more negative light, pursuant to the pushback of the German Federal Constitutional Court in the Weiss/PSPP saga. The current article aims to unpack a collection of shortcomings that have accumulated gradually and persist right up to the present, which have however not been interrogated in sufficient depth so far. It starts off with a contextual depiction of the tug-of-war between the supranational and the national judiciaries, juxtaposing the earlier confrontations with contemporary debates and controversies. Subsequently, attention is drawn to the sustained imperfections of the judicial selection and appointment process, addressing a few pervasive questions of institutional propriety. Hereafter, the article engages in a meta-analysis of ongoing discussions on the quality of the case law, testing the veracity of popular contentions pertaining to its constant variability. Lastly, it canvasses the pressures and agitations internal to the CJEU that have become increasingly manifest since the creation of the Court of First Instance. Overall, this fourfold re-appraisal aims to put back on record some of the B-sides on the sountrack of the new legal order, so as to compensate for the lack of airplay they have received hitherto.
Over the last 150 years, the standing that the British constitution once held in the minds of the people has suffered a remarkable decline. Uncertainty about its supposedly fixed characteristics has been such that it is now extremely difficult to present an account of its nature and meaning in an impartial manner. Against this background, this chapter presents a simplified history in which, over six successive phases and in response to prevailing political concerns of the period, the meaning of ‘constitution’ changes in subtle ways. Reflections on this development helps us set contemporary constitutional controversies in an appropriate context. It also enables to see more clearly the significance of a basic question which modern constitutional development had hitherto managed to suppress: the constitution of what?
The German Christian Democrats are one of the most successful parties of the mainstream right in post-war Europe. They have held the Chancellor’s office for approximately forty-nine years, compared with just short of twenty years for the Social Democrats (SPD), their primary opponents on the mainstream left. Although the silent revolution eventually pulled the Christian Democrats to the left as the party followed public opinion, its primary contribution has been to cause fragmentation on the left. This fragmentation has meant that the left side of the political spectrum has been weaker overall. German unification also contributed to left-party fragmentation, helping the Christian Democrats to dominate politics. The silent counter-revolution, on the other hand, has been unusually weak in Germany. This weakness meant that the Christian Democrats did not face much of a threat from the right side of the political spectrum. The combination of a strong silent revolution fragmenting the political left and a weak counter silent-revolution minimizing a threat from the right has contributed to the long-term success of the German Christian Democrats.
Using Voting Advice Application (VAA) data from the EU Profiler/euandi Trend File, we studied how parties’ positions towards European integration relate to their positions on other important issues, and how this varies across EP elections, and between European regions. We hypothesized that the association between parties’ EU-integration positions and their positions on other issues was affected by the three major crises that hit the European Union (EU) between 2009 and 2019: the economic, migration, and climate crises. Additionally, we hypothesized that the economic and migration crises asymmetrically affected the association between cultural and economic issues on the one hand and the EU dimension on the other across the EU’s three macro regions (NWE, SE, and CEE). Our results show that neither the economic crisis nor the migration crisis or the climate crisis had an EU-wide impact on how European integration relates to other issue dimensions. As we hypothesized, economic issues were particularly strongly linked to EU-integration positions in SE in 2014, but our results additionally indicated that the longstanding interpretation of EU integration as a mainly economic issue in SE diminished after the start of the migration crisis. Finally, EU integration became related to immigration issues in CEE while this is not the case in the other regions. The main takeaway is that EU integration is interpreted differently by parties across the EU, which is important to recognize for parties that seek to work together in transnational party groups, and for scholars that aim to understand EU policy making.