the court of justice and the member states

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The European Court of Justice and Member State Relations:

A Constructivist Analysis of the European Legal Order

Stephanie Bier

Graduate Fellow

University of Maryland, College Park

May 2008



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I. Introduction

Since its establishment in 1952, the European Court of Justice (ECJ) has been a central

player in the process of European integration. Initially, the ECJ was created to fulfill three

limited roles for member states of the European Community (EC): (1) to act as a check on the

EC’s legislative and executive bodies, (2) to clarify and interpret vague EC laws, and (3) to

enforce non-compliance of EC laws by member states.1

Gradually, however, the ECJ has

expanded its role; throughout the 1960s and 1970s the ECJ developed a substantial set of legal

doctrine that, today, allows it to decide on issues traditionally considered to be the exclusive

purview of member states, including social policy, gender equality, and competition policy.

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Member states, in turn, have largely complied with the ECJ’s rulings, voluntarily surrendering

their jurisdiction over key policy areas and deferring to the ECJ’s decision-making authority.

This trend raises serious concerns about the erosion of European Union (EU) member states’

sovereignty. In this way, an important question that needs to be asked is: considering the

challenge that supra-national law poses to national sovereignty, why have EU member states

accepted the jurisdiction of the ECJ?

Combining international relations theory with legal scholarship, this paper offers a multi-

disciplinary approach to answering such a question. In the first section of the paper, I present a

brief overview of some of the key literature that addresses the empirical puzzle I seek to solve:

that is, why member states have voluntarily relinquished their sovereignty in key policy areas in

favor of a strong supra-national legal order. I then proceed to offer an alternative theoretical

framework for solving this conundrum that attempts to fill in the gaps left by existing

scholarship. Specifically, I discuss the ways in which the ECJ has worked to develop a supra-

national legal doctrine in the EU over the last few decades. I also provide evidence



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demonstrating how member states have accepted the authority of the ECJ as supreme to national

law. I then present a constructivist model that illustrates how the ECJ, in effect, taught member

states to accept its jurisdiction in policy areas that have traditionally been the exclusive right of

sovereign states. Finally, I suggest how a union of constructivism and legal analysis makes a

contribution to future research on EU legal integration in general; namely, a synthesis of the two

disciplines offers particular insights that are absent from existing theoretical frameworks.

II. Current Trends in EU Legal Integration Scholarship

In the literature on EU integration, there are two broad theoretical perspectives

concerning the development of the European legal system. The following section presents a brief

overview of some of the existing literature on the development of a European legal order and

highlights some of the flaws that are apparent in these analyses.

The “political power” approach suggests that member states have actively supported

European legal integration in order to “increase the effectiveness of the incomplete contracts the

governments have signed with each other.”3

EU member states are by no means considered by-

standers in the process of European legal integration. Rather, member states have delegated a

particular authority to the ECJ, that is, to carry out certain functions that the state cannot itself

execute.4

The logical extension of the “political power” argument is that the ECJ would be

unlikely to make decisions that are contrary to the interests of member states; however, as a

cursory analysis of some of the case law of the last few decades reveals, this is certainly not the

case. The ECJ has in fact, on a number of occasions, issued rulings that seemingly contradict

national interests. The landmark 1979 ruling of the Cassis de Dijon case (Case 120/78) clearly

demonstrates this point. In its preliminary ruling on a German regulation blocking the sale of a

French liqueur because it did not meet particular German criteria on alcoholic beverages, the



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ECJ explicitly declared that the German government’s quantitative restrictions constituted an

illegal barrier to trade.5

Thus, the principle of “mutual recognition” – whereby a product

lawfully produced and marketed in one member state must be accepted in another member state

– was established.6

Furthermore, an earlier preliminary ruling in the Kramer case (Case 3/76) -

concerning the establishment of a common structural policy for the fishing industry in the

Netherlands - stated that the taking of action by the EC in a particular area of competence

deprives national authorities of their powers to act independently.7

In these instances and others,

the ECJ clearly ruled against member states’ sovereignty in favor of greater supranational

authority.

In general, the “political power” approach in the literature on the development of the ECJ

is part of a broader set of claims regarding the process EU integration, specifically neo-liberal

intergovernmentalism. Initially developed in the 1960s, liberal intergovernmentalism suggests

that EC decision-making reflected the “continuing primacy of the nation state.”8 In other words,

EC member state governments, rather than supranational institutions, played the central role in

the EC integration process.9

In the early 1990s, Andrew Moravscik expanded upon this line of

reasoning, suggesting that general theories of international relations could be applied to the case

of European integration and putting forth a three-step model for neo-liberal

intergovernmentalism: preference formation, inter-state negotiation, and institutional choice.10

In the first stage of his model, Moravscik suggests a liberal theory of national preference

formation; that is, national leaders develop foreign policy objectives by aggregating the

preferences of domestic social groups.11

In the second stage of the model, national leaders

engage in rationalist bargaining in interstate negotiations.12

In the final stage of neo-liberal

intergovernmentalism, national leaders delegate decision-making authority to international



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institutions to solve subsequent problems of compliance among member states.13

In this way,

Moravscik’s version of neo-liberal intergovernmentalism combines a rationalist theory of

preference formation and interstate bargaining with a functionalist account of institutional

design.

However, in applying the liberal intergovernmentalist approach to the rise of the ECJ in

Europe, it becomes apparent that Moravscik’s framework is inappropriate for studying European

legal integration. Specifically, stages one and three of his neo-liberal intergovernmental model

do not accurately reflect the processes by which national interests are aggregated and then

carried out by international institutions. Firstly, to assume that national leaders are solely

responsible for representing domestic interests in international bargaining schemes misses the

importance of transnational actors in furthering European legal integration. As Stone Sweet and

Brunell argue, transnational exchange is fundamental to the development of the EU legal system;

that is, transnational commercial exchange generates social demands for a transnational triadic

dispute resolution.14

Specifically, greater levels of transnational exchanges produce conflicts

between national and EU law, thereby pushing for supranational governance to replace national

laws.15

Therefore, the demand for dispute resolution by transnational actors – and not national

leaders - is seminal to the emergence of supranational governance. Not only does neo-liberal

intergovernmentalism fail to acknowledge the causal role of transnational and non-state actors in

the European integration project, but it fails to mention that supranational institutions do not

always represent the interests of member states. As demonstrated by the Cassis de Dijon case

(Case 120/78) and the Kramer case (Case 3/76), the ECJ has issued rulings that are contrary to

member states’ national interests. Given neo-liberal intergovernmentalism’s inability to account



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for this reality, it appears then that this framework is misapplied to the study of EU legal

integration.

An alternative theoretical framework, e.g. the “legal autonomy” approach, offers a more

appropriate set of conceptual and analytical tools for examining EU legal integration. In

particular, the “legal autonomy” perspective argues that “national governments paid insufficient

attention to the Court’s behavior during the 1960s and 1970s when the Court developed a

powerful set of legal doctrines and co-opted the support of domestic courts for them.”16

By the

time that member states realized that the ECJ had gone beyond its mandate, controlling the ECJ

became nearly impossible.

17

In contrast to the “political power” approach, the “legal autonomy”

perspective is founded upon the neo-functionalist school of thought in regional integration

theory. Initially developed by Ernst Haas in the 1950s, neo-functionalism posited a process of

“functional spillover” in which the initial decision by national governments to place certain

sectors under the authority of European institutions created pressure to extend the authority of

these supranational institutions to other policy areas.18

Therefore, integration in one sector

produced the “unintended and unforeseen” consequences of promoting deeper integration in

other issue areas.19

Eventually abandoned by Haas himself, neo-functionalism ultimately failed

to reflect the reality of European integration; in particular, its conception of integration as a

linear, incremental process failed to account for the setbacks of the mid-1970s to the mid-1980s.

Specifically, the momentum created by the accession of the UK, Ireland and Denmark was

significantly stalled by the 1973 oil crisis and the inability of the EC to develop a common

response coupled with the erosion of sovereignty of member states by the EC.20

More generally,

however, neo-functionalism has been sufficiently criticized for posing as a cohesive theory when



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in fact it is a “framework of unrelated claims”, which are unfalsifiable, overambitious, and being

exceptional rather than central to empirical reality of regional integration21

One argument in the literature on EU legal integration, put forth by Anne-Marie Burley

and Watler Mattli, suggests that the expansion of EU law into domestic law of member states

corresponds with the neo-functionalist model developed by Ernst Haas in the late 1950s.22 As

neofunctionalism predicts, the drivers of EU legal integration are the supra-national and sub-state

actors pursuing their own self-interest.23

Accordingly, the key actors involved in the

development of a supra-national legal order in the EU in Burley and Mattli’s analysis are the ECJ

and the lower national courts of member states. By appealing to the lower national courts in

their role as “protectors of individual rights” the ECJ was able to construct a legal order that

seemingly originated from within member states.24

As the authors suggest, “while offering

lower national courts a ‘heady’ taste of power, the ECJ simultaneously strengthens its own legal

legitimacy by making it appear that its own authority flows from the national courts.”25 In this

way, Burley and Mattli’s neo-functionalist framework neglects to accord a distinct role for

member state governments, pinpointing the forces of integration at the supra-national and sub-

national levels. Overlooking the role of member states, in this manner, is a convenient solution

for not having to address a host of questions, including: the challenge that the ECJ poses to

national sovereignty, issues of compliance among member states, and the political importance of

EU law for member states.

In an effort to understand the dynamics of legal integration, most EU scholars have

couched their analyses in terms of (or in response to) neo-liberal inter-governmentalism and neo-

functionalism. However, alternative analyses employ rationalism as a theoretical framework for

understanding why member states have accepted the jurisdiction of the ECJ as superior to



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national law. Elaborating upon a principal-agent analysis, Geoffrey Garrett, for example, has

argued that the ECJ, as an agent of EU member states, serves the interests of member state

governments.26

As Garrett argues, “member governments could, if they so chose, either ignore

ECJ decisions or amend the legal order through multilateral action. The fact that governments

have done neither to any important degree thus implies that the extant order serves their

interests.”27

Using a game theoretic model for understanding the ECJ’s decisions on trade

liberalization in the EU, Garrett suggests that national governments accept adverse ECJ rulings

where the short-run domestic costs are outweighed by the broader benefits of increased trade.28

Citing the Cassis de Dijon case as an example, Garrett argues that the “German government’s

behavior can easily be explained in terms of its rationalist self-interest.”29 According to his

calculus, the primary cost of a ruling against the German government would have been the loss

of market share for firms producing low-alcohol liqueurs and fortified wines, a small portion of

the German economy.30 Accepting the ECJ’s decision in turn, he argues, proved advantageous

for future German bargaining positions; that is, in complying with the Court’s decision, Germany

could exercise leverage vis-à-vis its trading partners to push for more trade liberalization.31

In

this way, Garrett adopts a rational choice framework for explaining why member states continue

to invest their trust in the ECJ’s decisions in the long run, even though they may appear to be at

odds with domestic interests in the short term. Ultimately, Garrett’s analysis suggests that

member states established the ECJ as a “means to solve problems of incomplete contracting and

monitoring compliance with EU obligations, and they rationally accepted ECJ jurisprudence,

even when rulings went against them, because of their longer term interest in the enforcement of

EU law.”32



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It should be noted, however, that this rationalist model, with its emphasis on the ECJ’s

role in the enforcement of contracts and dispute resolution, is historically inaccurate. That is,

Garrett’s account misattributes to the ECJ certain responsibilities that belong to the European

Commission, missing the “main role the member states wanted the ECJ to play in the EU

political system: keeping the Commission from exceeding its authority.”33 Furthermore,

Garrett’s conclusion that member states would have reformed the existing legal order, had they

determined that the ECJ did not represent their interests, is a tautological statement. That is, as

Karen Alter suggests, “failure to act against judicial activism cannot be assumed to mean

political support for the transformation of the preliminary rulings system.”

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In other words,

though member states have not explicitly challenged the ECJ’s preliminary ruling mechanism,

this does not serve as evidence that the ECJ sufficiently represents member states’ national

interests. Rather, as Alter continues to argue, member states may lack the institutional means to

challenge the ECJ’s authority.35 In this way, an absence of outright refusal to comply with the

ECJ’s decision cannot be assumed to mean that member states inevitably agree with the ECJ’s

authority.

While Garrett puts forth an alternative rational-choice model for ECJ-member state

relations, other scholars have adopted a more nuanced perspective in discussing EU legal

integration, highlighting the inter-relationships among supra-national, national, and sub-state

actors and building upon the “political power” and “legal autonomy” approaches. Rather than

positing legal integration as a “top-down” or “bottom-up” process in which either the ECJ or

member states drive the development of supra-national law, Alter suggests that the influence of

the ECJ and the role of domestic courts in the development of the EU legal order are mutually

reinforcing. That is, she argues that the ECJ managed to “escape” member state control at the



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same time that domestic courts sought to empower their role within the state by enforcing ECJ

rulings.36

Alter outlines three ways in which the ECJ evaded member state control: (1) judges

and politicians have different preferences regarding the outcome of individuals cases, (2)

extralegal measures to challenge ECJ decisions have become more difficult for member states to

use, and (3) the empowerment of national courts has made it more difficult for states to organize

a cohesive challenge to ECJ decisions.37

In this way, Alter’s analysis challenges neo-liberal

intergovernmentalism as a theoretical framework for understanding EU legal integration; that is,

in her view, the deepening of EU legal integration occurred in spite of the interests of politicians

in member states.

38

This view, however, is premised on the faulty assumption that member states

were “actively rejecting supranationalism” throughout the period that the ECJ was developing its

body of case law.39

While members states were indeed reluctant to further deepening of the

common market throughout the 1970s, conflating politicians’ attitudes towards economic

integration and legal integration is a serious methodological error. A more holistic

understanding of politicians’ attitudes towards European integration would thus examine

political responses towards integration within distinct policy areas and highlight patterns across

the gamut of policy issues.

Within each of these theoretical frameworks outlined so far, there are profound

shortcomings in the analyses; namely, current scholarship on ECJ-member state relations does

not take into consideration the mutually constitutive nature of legal integration in the EU.

Building upon the “legal autonomy” approach this study assumes that the ECJ established

precedent that strengthened its position vis-à-vis member states without the explicit consent of

national governments. It should be noted, however, that this paper does not adopt the neo-

functionalist assumptions that in many ways have shaped the current “legal autonomy”



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argument. Rather, in the tradition of Alter’s work, this paper seeks to explain how the ECJ

developed precedent in spite of the political interests of member states. In this way, examining

the case law developed by the ECJ throughout the 1960s and 1970s provides ample evidence in

support of the “legal autonomy” perspective on the development of the ECJ.

The following analysis builds upon certain key findings of existing scholarship on EU

legal integration while attempting to remedy some misconceptions. In particular, I propose

viewing domestic courts as forums in which member states express their preferences regarding

the EU legal order. In discussing the tension between member states and the ECJ, it does not

make sense to otherwise separate the legal and political apparatuses of the state, as previous

scholars have done. My operationalization of EU member states is thus fundamentally different

from existing literature in that I present member states as cohesive- but by no means unitary -

entities that express a consistent set of preferences on a given issue through various mechanisms,

including domestic courts. Seen in this light, national courts are one such mechanism by which

member states express their preferences towards the supra-national legal order.

Defining member states in this way helps to simplify the debate on whether legal

integration is driven by national or supra-national actors. While both Alter and Burley and

Mattli’s analyses attempt to reconcile the “top-down” vs. “bottom-up” divide that characterizes

much of the scholarship on EU legal expansion, their explanations of EU legal integration are

still only partial. That is, neither Alter nor Burley and Mattli take into account the role of

international norms in the creation of a supra-national legal culture in the EU. International

norms, as the following section demonstrates, are an important factor in the process of European

legal integration because they account for both how the ECJ managed to expand its jurisdiction

and why member states have largely complied with EU law. While neo-liberal



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intergovernmentalist, neo-functionalist, and rationalist models reveal certain dynamics of how

the ECJ developed a supra-national legal order, these models fail to effectively demonstrate why

member states have accepted the jurisdiction of the EU, particularly in light of the threat that the

existing legal order poses to the preservation of national sovereignty. A constructivist analysis,

as I suggest, uses international norms as an explanatory tool in solving this theoretical puzzle.

Before engaging constructivism as a theoretical framework for understanding the role of the ECJ

in European legal integration, it is critical to lay the groundwork. In the next section I propose

how a constructivist framework explains certain features of the legal integration process. In

particular, I demonstrate how legal scholarship is an inherently constructivist project that reveals

certain dynamics underlying member states’ acceptance of the ECJ’s authority.

III. A Constructivist Model of Legal Integration in the EU

In an effort to broaden the scope of scholarship on the role of the ECJ in European legal

integration, I propose positing the development of the ECJ within a constructivist theory of

international relations. In this section, I explain how constructivism, as a theoretical toolkit, helps

solve the puzzle of European legal integration. I begin with an overview of key concepts in

constructivist analysis and discuss how these concepts relate to my particular research question.

Constructivists acknowledge that meaning is not static, and that at any particular point in

time multiple meanings may co-exist, often in tension with one another.40

For this reason,

constructivists are reluctant to offer universal theories of politics or make definitive claims about

state behavior, and instead often situate their research questions within specific spatial, historical,

and social contexts.41 That is, constructivists seek to understand how and why certain practices

prevail in particular contexts, and not others.42

In this tradition I seek to understand how legal



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integration proceeds in the EU context and to what extent member state acceptance of the

supremacy of supranational authority varies within the EU.

One way that constructivists conceptualize the questions they study is to think about the

relationship between what people do and how societies shape their actions. Collectivities, such

as groups of people, “live within and interact through overlapping social (ethnic, national,

ideological, gendered, cultural, religious, and other) groupings, including states. Such

collectivities…act in ways that create, perpetuate, and alter the environments in which they

live.”43

Constructivists characterize this interaction as the “mutual constitution”44

of structures

and agents, where structures refer to the set meanings within a society, and agents are the

individuals who reinforce such meanings. As multiple structures can exist simultaneously, it is

the main task of the constructivist researcher to develop strategies for “untangling various

mechanisms of mutual constitution in empirical research.”45

Among the questions

constructivists attempt to answer are: What are structures? Why do certain structures prevail

over others? By what processes do agents reinforce dominant meanings?

In order to answer these questions, constructivist ontology relies on three components:

intersubjectivity, context, and power. Intersubjectivity refers to the set of norms, rules,

meanings, languages, cultures and ideologies that create identities and guide actions.46

Intersubjective understandings are more than the shared beliefs of individuals; they also require

that individuals identify themselves in relation to these beliefs. As Alexander Wendt describes,

“Actors acquire identities-relatively stable, role-specific understandings and expectations about

[the] self-by participating in such collective meanings.”47

In this way, as actors develop certain

identities, particular meanings become stable over time, creating social orders that constructivists

call structures or institutions.48 While structures can often be “codified” in formal rules and



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norms, they are only meaningful to the extent that agents socialize to and participate in collective

understandings.49

As mentioned previously, constructivists posit their research questions in terms of

specific historical, regional, or social contexts. To understand how shifts in structure affect

agents, constructivists adopt a loose conception of culture that is subject to modification or

change.50

Along with constructivism’s emphasis on intersubjectivity, evaluations of change are

measured in terms of the extent to which agents alter their thinking about their place in the

world.51

In this way, constructivists view identities as social relationships that change over time

and across contexts. Identities are not seen as “immutable characteristics of individuals or

groups; people produce and reproduce them, rather than being born with them.”52 Through

empirical research, constructivists investigate the processes that link contexts and actions in the

development of identities.53

Finally, as constructivism acknowledges the co-existence of multiple structures in any

given context, constructivists ask how and why particular understandings shape actors’

conceptions of self and frame interpretations of behavior. With meanings flowing between

people and across borders, power is thus defined as the dominance of certain shared

understandings.54

Whereas agents’ behaviors (or the habitual actions that emanate from certain

interpretations of appropriate behavior) are referred to as "practices”, the combination of

language and techniques employed to maintain a structure is called a "discourse."55

Given this

conceptualization of the behavior of agents and structure, constructivists seek to shed light on

how certain discourses shape practices while others do not. In other words, “since power

operates through relationships, rather than possession of capabilities, constructivists analyze

processes and interactions.”56 In this way, discourse analysis, or the study of the language of



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rules or norms, serves as a way to illustrate the existence and power of particular intersubjective

meanings.57

Given this overview of constructivism as a theoretical approach in the study of

international relations, the question thus arises: how does constructivism help explain why EU

member states have accepted the jurisdiction of the ECJ, particularly in light of the challenge that

supra-national law poses to national sovereignty? Compared to existing scholarship on legal

integration in the EU, a constructivist analysis offers a more complete understanding of the

process by which member states accept the jurisdiction of the ECJ. That is, while principal-

agent analyses, neo-liberal intergovernmentalist, and neo-functionalist accounts of the

development of the ECJ shed some light on how legal integration proceeded in the EU, they do

not explain why member states would voluntarily limit their sovereignty in favor of a supra-

national legal order. By highlighting the role of international norms and their impact on the

development of state identity, constructivism offers the dominant explanatory account of legal

integration in the EU.

To illustrate how constructivism applies to my research question, I rely on Martha

Finnemore’s “teaching-learning” model as developed in National Interests in International

Society. In contrast with traditional neo-liberal causal analyses, Finnemore’s central claim is that

states are “socialized to accept new norms, values and perceptions of interest by international

organizations”.58

Specifically, Finnemore examines how the international system, defined in

terms of international organizations, changes and reconstitutes states; as she explains, the

international system “can change what states want. It is constitutive and generative, creating

new interests and values for actors. It changes state action, not by constraining states with a

given set of preferences from acting, but by changing their preferences.”59 Using the



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development of state science bureaucracies as one example, Finnemore demonstrates how the

United Nations Educational, Scientific, and Cultural Organization (UNESCO) managed to teach

states critical norms regarding the coordination of state-science relations.60

In this way, the

international system, as a structure, teaches states to accept certain norms, thus transforming state

preferences.

Building upon Finnemore’s “teaching-learning” analogy, I propose that member states

accepted the jurisdiction of the ECJ as a result of both (1) teaching on the part of the ECJ and (2)

learning by national courts. In the first place, I suggest that the ECJ “taught” member states to

accept norms regarding the role of supra-national law. Secondly, I propose that member states

“learned” or internalized these norms by way of the national courts, and created a new identity,

not based on maintaining national sovereignty, but derived from their desire to become part of a

broader union of nation states – the EU. In this way, I suggest that legal integration in the EU is

a reciprocal process in which (1) the ECJ shaped member states’ understandings about the

importance of EU law, and (2) member states, vis-à-vis domestic courts, actively supported the

ECJ in its efforts to create a supra-national legal doctrine as a result of its shift in identity.

The “teaching-learning” model provides a useful foil for applying constructivist

methodology to the case of EU legal integration. Specifically, the model functions as a strategy

for “untangling” the various components of mutual constitution: intersubjectivity, context, and

power. Applied to the scenario of legal integration in the EU, intersubjectivity addresses the

socialization of member states to the new supra-national legal order. As an institution, the ECJ’s

rulings and decisions would be meaningless if they were not recognized or internalized by

member states. What makes the ECJ’s conception of the supra-national legal order dominant is

the fact that EU member states have assimilated these norms and identify themselves in terms of



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the new legal order. That is, states no longer viewed themselves as unitary sovereign actors, but

redefined themselves as part of a broader confederation of states, the EU. “On this view,

institutionalization is a process of internalizing new identities and interests, not something

occurring outside them and affecting only behavior…”61

In this way, identities, as Wendt notes,

“are the basis of interests. Actors do not have a ‘portfolio’ of interests that they carry around

independent of social context; instead, they define their interests in the process of defining

situations.”62

In this way, my research hypothesis takes into account the roles of both structure

and agency in the process of identity formation within the European legal order. Member states,

as agents in the development of supra-national law, were not coerced into accepting the ECJ’s

rulings, but complied with its decisions as a result of a shift in identity.

This transformation of states’ identities is critical to explaining why EU member states

have accepted the jurisdiction of the ECJ. Conversely, looking at how member states responded

to the new supra-national legal order is one way of understanding how and why member states

created a new “European” identity for themselves. In the case of EU legal integration, member

states did not adopt new “European” identities immediately following the establishment of the

ECJ; rather this process developed unevenly and slowly over the period of several decades, as

the integration project expanded across the European continent and deepened across policy areas.

EU legal integration, in this way, is part of a broader transformation of state identities. Situating

the development of the supra-national legal order within the context of European integration

helps to explain this change in state identities from unitary and sovereign nation states to

members of a union of states.

Likewise, my hypothesis also accords certain power to the “teacher” of EU legal

integration: the ECJ. As the producer of discourse, the ECJ creates certain norms, codified in its



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decisions, regarding acceptable behavior of member states and the supremacy of EU law over

domestic law. My research hypothesis thus acknowledges the ways in which the ECJ managed

to shape member state practices and how the ECJ’s understanding of supra-national law

conditioned how states behave. In this manner, the “teaching-learning” model seeks to uncover

the power relationship that exists between the ECJ and member states in order to explain the

structure of the supra-national legal order in the EU. In the next section I discuss how each of

these key concepts is measured and operationalized within my research project.

Research Design Elements

While various scholars have raised the question of why member states have accepted the

EU legal order current explanations do not sufficiently account for the complexity of the

relationship between the ECJ and member states. Constructivism offers an alternative

framework for understanding the development of the supra-national legal order in the EU. Using

Finnemore’s “teaching-learning” model, I demonstrate how the ECJ as an international structure

creates certain norms that are in turn adopted by member states. Member states accept these new

norms as a result of an underlying transformation in their identity; no longer unitary nation

states, member states view themselves primarily as part of a greater union. In this section, I

discuss the practical issues of hypothesis testing, measurement of variables, and

operationalization of key concepts as they relate to my research question.

Covering the 1952-2007 timeframe, my analysis examines how the ECJ “taught” member

states to accept norms regarding the role of supra-national law and how member states “learned”

or internalized these norms by way of the national courts. In an effort to develop a causal theory

of European legal integration, my research hypothesis is thus comprised of a two independent

variables. I account for two independent variables because I understand the final outcome of



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European legal integration as being the product of the interaction between the ECJ and member

states (i.e. the learning-teaching process). In this way, my first independent variable examines

the extent to which the ECJ taught member states about the supremacy of EU law, namely

through the development of the doctrines of direct effect and primacy of EU law. To explain

how the ECJ “taught” member states to accept its jurisdiction, I include an historical overview of

the key decisions made by the ECJ, primarily Costa v. Enel, Van Gend en Loos, and Francovich.

As a constitutive process, the development of precedent by the ECJ will explain how certain

norms, such as the primacy of EU law and the direct effect doctrine, originated. Having

established that the ECJ shaped member states’ understandings about the supremacy of EU law, I

will then discuss the ways in which member states, vis-à-vis domestic courts, internalized these

norms. In this way my second independent variable takes into account the extent to which

member states “learned” from the ECJ. I define this “learning process” by member states with

two measures; (1) assessing the extent to which member states utilize the preliminary ruling

mechanism and (2) the degree to which national courts overturn national law in favor of

supranational authority. In the case of my research hypothesis, my dependent variable is the

extent to which states accept the supremacy of EU law. Although the institutions and

mechanisms for upholding the supra-national legal order exist, it is not yet clear the degree to

which this order has been adopted by member states. In the next section I present an overview

of ECJ-member state relations and key trends that highlight member states’ acceptance of the

ECJ’s authority. At the same time I will discuss these trends in light of the constructivist model I

have put forth in the above section.

IV. ECJ-Member State Relations



19

The question of why member states have accepted the authority of the ECJ throughout

the last few decades, giving up sovereignty over critical policy areas, is relevant both empirically

and theoretically. Firstly, explaining the contradiction of how seemingly independent and

sovereign states have given up their jurisdiction in favor of supranational authority and at the

same time have rejected the codification of an EU “constitution” is timely. In recent years,

efforts to formalize member state-EU relations vis-à-vis a written constitution have failed

miserably; yet, the constitutional elements – namely a set of shared principles and loyalty to a

common authority - that underlie such an agreement have been present for decades. Secondly,

understanding how the ECJ managed to develop an extensive supra-national legal doctrine that,

in many ways, challenges the traditional notion of state sovereignty, sheds light on the

transformation of the European state. The state is no longer an independent, sovereign actor in

Europe, but is simultaneously a sub-unit of a larger European project. Finally, understanding

ECJ-member state relations may help elucidate certain features of European identity. Namely,

how do European citizens view themselves in relation to European integration? Is national

loyalty disappearing? These represent but a few of a host of potential questions regarding the

significance of the ECJ-member state relations.

The ECJ, i.e. the “constitutional court” of the EU, is considered to be the highest

authority on the body of EU law that collectively comprises the EU “constitution.”63 Comprised

of 27 judges – one from each EU member state – the ECJ is primarily responsible for dealing

with the failure of member states to fulfill obligations, issue preliminary references, and handle

appeals against the lower EU court - the Court of First Instance, as per the Treaty of Rome.64

The ECJ cannot take action by itself; that is, it must wait for cases to be brought to it before it

can deliver a judgment. With regards to addressing member states’ failure to fulfill their



20

obligations under the acquis communautaire, direct actions - defined as cases in which the ECJ is

called upon to give a judgment in a dispute between two or more parties - can be brought to the

ECJ by either the Commission or other member states. Failure by a member state to comply

with EU regulations, in this way, constitutes the largest number of direct action cases that come

before the ECJ.65 References for preliminary rulings, by contrast, are requests made by national

courts to the ECJ in order to clarify the interpretation of a particular EU treaty or other legislative

acts made by the relevant EU institutions. In this way, the preliminary ruling mechanism is the

“exclusive prerogative” of national courts. References for a preliminary ruling not only help

ensure that national courts make legally sound judgments but also promote uniform

interpretation of EU law among member states.66 Finally, the ECJ may review appeals to cases

that were previously decided upon by the Court of First Instance, namely on procedural grounds

or a misinterpretation of EU law.

The Treaty of Rome did not provide a mechanism by which individuals could challenge

their own governments or confer upon national judges the power of judicial review of national

legislation. Both of these phenomena are the outcomes of a lengthy constitutionalization process

by which the ECJ created precedent expanding the scope of its jurisdiction and confirming the

supremacy of EU law vis-à-vis national law. This constitutionalization process – defined as the

process by which the Treaty of Rome evolved from a set of legal arrangements binding upon

member states into a legal regime conferring rights and obligations on member states and

individuals within the EU - has been driven primarily by the relationship between private

litigants, national courts, and the ECJ.67

Stone Sweet and Brunell conceptualize this process

according to two distinct phases: in the 1962-1979 period, the ECJ “secured the core

constitutional principles of supremacy and direct effect” without the express authorization of the



21

Treaty of Rome or member states.68

In the second phase of the constitutionalization process,

beginning in 1980, the ECJ provided national courts with the means of guaranteeing the

supremacy of EU law.69

In particular, three seminal ECJ rulings demonstrate the extent to which

the ECJ has been able to develop a powerful body of case law in spite of member states’ interests

during the process of the constitutionalization of EU law, including: Van Gend en Loos (Case

26/62), Costa v. Enel (Case 6/64), and Francovich and Others v. Italy (Joined Cases 6/90 and

9/90). What is perhaps more remarkable, for the purposes of this study, is that member states

have largely adhered to EU law and accepted the supremacy of EU law over domestic law. In

following sections, I seek to illustrate both the ways in which the ECJ established the

foundational principles of EU law and how member states have largely complied with the ECJ’s

rulings over the past 55 years.

EU Law and Precedent

In 1962, a Dutch national court referred a case between a Netherlands customs agency

and a Dutch import firm, Van Gend en Loos, to the ECJ. The firm claimed that the Dutch

government had violated an EC treaty provision prohibiting member states from enacting new

import taxes on goods once the state had entered the EC. The unprecedented fact about this

particular ECJ case was that it marked the first time a private actor claimed an EC law in its own

defense.70

Thus, with the 1963 Van Gend en Loos decision ruling in favor of the Dutch importer,

the ECJ established the principle of direct effect , whereby “certain provisions of EU law may

confer rights or impose obligations on individuals that national courts are bound to recognize and

enforce.”71 In other words, the ECJ decided that a citizen of any EC member state would be able

to enforce a right granted by EC legislation both horizontally – that is, against other private

actors – and vertically – or more precisely, against a member state itself.72 (In a later decision



22

( Marshall Case 152/84) the ECJ decided that EC directives were no longer directly

effective horizontally.) In this way, the ECJ ruled “some EU provisions could have direct

effect, conferring rights on individuals rather than simply imposing duties on governments.”73

Over the decades, the ECJ has elaborated upon this principle in a series of judgments (most

notably Van Duyn Case 41/74), gradually expanding the scope of direct effect so that it now

applies to most secondary legislation, namely directives.74 These later efforts by the ECJ to

expand the direct effect doctrine to secondary legislation provoked much criticism on the part of

member states, who argued that EU directives only acquire legal force once they have been

adopted within national law.75

Subsequent analysis, however, illustrates that private actors

within member states have taken advantage of the doctrine of direct effect, largely benefiting

from their legal standing under EU law. That is, private litigant cases have been an effective

mechanism for influencing domestic policy.76

However, even after the doctrine of direct effect was established by the ECJ, the question

of which law – national or EC – was supreme if both coexisted, still remained. In 1964, the ECJ

was able to resolve this conflict with the Costa v. Enel case; in this case, there was a conflict

between Italian laws on the national electricity monopoly and EC provisions allowing for the

free movement of goods.77

With the Costa v. Enel decision in 1964, the ECJ established a clear

hierarchy between EC and national law, stating that: “By creating a Community of unlimited

duration…the member states have limited their sovereign rights, albeit within limited fields, and

have thus created a body of law which binds both their individuals and themselves.”78

EC law

(or EU law, since the 1992 Maastricht Treaty), in this manner, constitutes an autonomous legal

system, imposing obligations and rights both on individuals and Member States, hence, limiting

the sovereignty of member states.79

In this way, the ECJ articulated the primacy of EU law , or



23

the notion that in the event of a conflict between domestic and EU law, national courts must

apply EU law.80

The implications of this decision were transformative for the role of the ECJ –

it no longer served as a check on EU institutions, but now arbitrated the validity of national laws

against EU regulations.

With both the Van Gend en Loos and Costa v. Enel decisions, the ECJ established the

core foundational principles of EU law, direct effect and primacy, thus constructing a

“decentralized enforcement mechanism” for EU law.81

Together these decisions strengthened

the role of the ECJ by transforming the preliminary ruling mechanism from a “conduit for

national court questions and challenges to EU into a mechanism that also allows individuals to

invoke European law in national courts to challenge national law.”82 Keeping in mind the

original mandate for the ECJ, member states initially gave the ECJ powers to hear disputes

between states and the EU’s governing institutions and review challenges to EU laws in an effort

to keep the EU’s institutions in check. Specifically, with the 1957 Treaty Establishing the

European Economic Community, member states created the preliminary ruling mechanism that

allowed national courts and private litigants to refer cases to the ECJ on questions relating to the

validity of EU law.83

After the ECJ articulated the principles of direct effect and primacy of EU

law, private litigants have been able to challenge national law in domestic courts.84

The ability of

private actors to do so, inevitably calls into question the integrity of member state sovereignty.

The ECJ continued to refine its legal doctrine throughout the 1980s and 1990s,

culminating in the 1991 landmark decision of Francovich and Others v. Italy. In this particular

case, Francovich et al. sued the Italian government for failing to provide them with their salaries

even after their employer had become insolvent. In the Francovich decision, the ECJ ruled that

individuals are entitled to financial compensation if they are “adversely affected” by the failure



24

of a member state to carry out an EU directive within the prescribed timeframe.85

In this

manner, the ECJ announced the doctrine of state liability, which claimed that a national court can

hold a state financially accountable for damages incurred by individuals due to the failure to

properly implement an EC legislation.86

The implications of the Francovich decision were far-

reaching; not only did the ruling attempt to “ensure real member government compliance with

[EU] directives”, but the decision also asserted “individuals’ claims to damages from the

violation of EU law did not depend on the doctrine of direct effect.”87

In other words, the

Francovich ruling extended the ECJ’s jurisdiction on matters relating to secondary legislation, or

any regulations, directives or decisions made by the European Commission, Parliament, or

Council. Consequentially, the potential range of claimants bringing a case against a member

state to the ECJ was “virtually without limit.”88

What is interesting to note about the Francovich

ruling is that it assumed a particular relationship between the ECJ and the national courts – i.e.

that of a “working partnership” in the construction of rule of law in the EU.89 Empowering

national courts in this way has, as some scholars argue, led to the transformation of national

courts as agents of EU law.90

In this way, the ECJ’s decisions in Van Gend en Loos, Costa v. Enel , and Francovich

represent core legal precedents in the thirty-year effort by the ECJ to expand and entrench its

authority in the EU. Together, these three cases have fundamentally transformed the role of the

ECJ from a check against supra-national authority to a monitor of compliance by EU member

states. Ultimately, the legal precedents established in these landmark cases collectively form a

“decentralized enforcement mechanism” for EU law, relying on the initiative of private actors

who are given authority by the doctrine of direct effect.91

It should be said though that the ECJ’s

establishment of the doctrines of direct effect and primacy does not in itself constitute a



25

European legal order. Rather, member states acknowledgment of and participation in the ECJ

are essential components of European rule of law. However, in light of the threat that supra-

national law poses to national jurisdiction, the question of why member states accepted the ECJ’s

authority remains to be answered. What evidence is there demonstrating that member states

have accepted the authority of the ECJ as supreme to national law? Furthermore, to what extent

have domestic courts used the direct effect doctrine to challenge domestic law in an effort to

uphold the supremacy of EU law? The remaining portion of this section outlines some general

trends in ECJ-member state relations that may help to address these questions.

The Preliminary Ruling Mechanism and the Primacy of EU Law

The main indicator pointing to member states’ affirmation of the jurisdiction of the ECJ

is member states’ request for a preliminary ruling by the ECJ. The preliminary ruling

mechanism is perhaps the most accurate way to measure states’ acceptance of the ECJ’s

authority because it is completely voluntarily. Unlike direct action cases, in which the

Commission or a member state can claim that another member state has failed to comply with

EU law, the preliminary ruling mechanism is not a mandatory act on the part of member states.

Furthermore, once the ECJ has made the preliminary ruling, it is not binding upon member

states; that is, it is the “exclusive prerogative” of national courts to uphold the ECJ’s

interpretation.92

To recapitulate, references for a preliminary ruling are requests made by

national courts to the ECJ. Specifically, national courts may ask the ECJ to clarify the

interpretation of a particular EU law so that a national court can make an informed decision on a

domestic case. In this way, preliminary rulings not only help national courts make legally sound

judgments, but promote “uniform interpretation and application of EU law in the member

states.”93



26

According to the 2007 Annual Report of the European Court of Justice, the number of

references for a preliminary ruling had sharply increased from 1 request in 1961 to 265 requests

in 2007.94

This increase in itself signifies little; after one has taken into account that the EU

expanded five times over the course of 55 years from 6 to 27 members, this increase does not

appear to be remarkable in any way. What is more interesting, for the purposes of this analysis, is

where the preliminary ruling requests originate. As a cursory overview of the data reveals,

nearly three-quarters of all the total references for a preliminary ruling come from the founding

members of the EU – Belgium, Germany, France, Italy, Luxembourg, and the Netherlands.95

While the most recent enlargements in 2004 and 2007 and the addition of countries from Central

and Eastern Europe are not correlated with an influx of requests for a preliminary ruling96, it is

interesting to note that the original six members of the EU have collectively dominated the use of

the preliminary ruling reference. Clearly this data could be subject to more rigorous statistical

analysis in order to determine the strength of the relationship between member states and the

likelihood of submitting a request for a preliminary ruling. However, this kind of analysis is

neither the intention of the author nor meaningful in the context of the theoretical framework that

is to be presented in the following sections. Instead, the key point here is that a relatively small

number of states have taken advantage of the preliminary ruling mechanism. Ultimately, this

discovery forces a reconsideration of the question at hand: that is, what evidence is there

demonstrating that member states have accepted the authority of the ECJ as supreme to national

law? Based upon this preliminary observation, it appears that this question overstates the extent

to which member states have accepted the authority of the ECJ as supreme to national law.

Instead, as the concentration of requests for preliminary rulings reveals, only certain states have

voluntarily demonstrated their acceptance of the authority of the ECJ as supreme to national law.



27

According to this reasoning, other measures of member states’ acceptance of the

supremacy of EU law – such as compliance with direct actions - do not necessarily constitute a

voluntary act on the part of member states. Given that member states are fined if they fail to

fulfill an obligation mandated by the EU (and assuming that member states are rational actors

that do not want to be imposed with fines or other penalties), compliance with EU law does not

in itself serve as an indicator that a member state accepts the authority of the ECJ. Acceptance,

as defined in this analysis, thus assumes a voluntary act on the part a member state to uphold the

authority of the ECJ. Compliance with EU legislation or ECJ rulings can be interpreted as non-

voluntary behavior by rational actors – that is, one argument is that member states are coerced

into accepting the authority of the ECJ because to do so would risk punishment. The voluntary

act by national courts to actively seek after the ECJ’s advice on a matter of interpretation, does

however, constitute a sign of acceptance on the part of member states of the supremacy of EU

law.

Challenging National Law with Direct Effect

As demonstrated by the variable use of the preliminary ruling mechanism among EU

member states, not all national courts in the EU behave similarly. More concretely, the use of

the direct effect doctrine by litigants in member states is not uniform, but is conditioned by

several extenuating factors. In particular it is essential to look at which domestic actors are

likely to turn to EU law to promote their objectives in national courts. Additionally the question

of which domestic actors are most likely to find litigation an “attractive strategy”97 to shape

national policy is relevant. With this in mind, a national court’s decision to take advantage of the

preliminary ruling mechanism does not mean that it is bound to comply with EU law. If it is not

sufficient to say that member states’ use of the preliminary ruling mechanism is enough to



28

illustrate support for the EU legal order, then another indicator that illustrates that national courts

have directly challenged national law, privileging EU law, is needed. Specifically, the question

that needs to be asked is: are national courts subverting national law? In other words, do national

courts use their authority to change domestic law to conform to EU expectations on member

states’ actions? In the following section I suggest that the direct effect doctrine has in fact

created numerous opportunities for national courts to revisit and revise national law. In

particular, as a result of the direct effect doctrine, national courts have been empowered to

consolidate EU law in the national arena. As Stone Sweet notes, the “Europeanization”98

of

national law – i.e. the adoption of rulemaking practices and discourses – in many ways serves as

a “kind of central nervous system for the EU.”99 Otherwise stated, the Europeanization of

national law permits the EU legal order to firmly take root among member states.

One prevalent argument in the literature on the transformation of domestic judicial

structures vis-à-vis the ECJ focuses on the variation within domestic institutional features that

may in turn impact the extent to which national courts “respond to Europeanization”.100

One

feature of this argument puts forth that the greater the dispersion of political power within a

government the more likely a member state will facilitate EU law.101

Secondly, the presence of

institutions that provide access points necessary for litigation is a key factor in enabling the

pursuit of European rights. Furthermore, the extent of conflict between national and EU law

across issue areas generates the need for legal challenges.102

Given these three criteria, Lisa

Conant argues that member states have not responded “uniformly” to the Europeanization of

national law. For example, as a comparison of the domestic institutional structures of France,

Germany, and the United Kingdom illustrates, states that have a greater dispersion of political

authority generate more opportunities for public interest groups to challenge national law.



29

Hence, France and the United Kingdom, which both concentrate political power at the level of

the central state, are less likely than Germany, a cooperative federalist state, to allow interest

groups to demand constitutional review.103

Indeed, this hypothesis is confirmed by the unusually

high rate of preliminary ruling references to the ECJ by German courts; over 25% of all referrals

originate in Germany, the highest of any member state.104 Nonetheless, access to institutions by

interest groups is insufficient in itself as an underlying causal factor for challenges to national

law. As an examination of the extent of conflict between national and EU laws reveals, certain

states are more likely to raise challenges to national law in substantive issue areas where national

law is more developed and institutions exist to facilitate private access to European justice. The

United Kingdom, as Conant concludes, provides one such case study: regarding the provision of

social welfare, the UK does not only have a highly complex system of universal welfare

provisions that often conflict with EU law regarding the free movement of people, but also a

number of public institutions that provide legal service to plaintiffs to pursue their rights under

EU law.105

In this way, it would appear that the direct effect doctrine is contingent upon pre-

existing relationships between domestic political structures, access to legal arenas and the

specificity of substantive law.106

Given these suggestions a more in depth analysis of each of the

member states mentioned in this section is in order. Thus the remainder of this section will

present brief case studies on France, Germany, and the United Kingdom, in an effort to untangle

the relationships between direct effect, institutional access points to challenge national law, and

the Europeanization of national law by national judiciaries.

France

Historically, France’s involvement in the European integration project has been at best

contradictory. On the one hand, France was one of the driving forces behind the initial European



30

Coal and Steel Community (ECSC) and in subsequent decades, a proponent for further

integration into a supranational European Union. On the other hand, France has demonstrated a

great deal of resistance to the Europeanization of national law, namely towards the doctrines of

direct effect and supremacy.107

Although the three supreme courts of France (Conseil d’Etat,

Cour de Cassation, and the Conseil Constitutionnel) have de facto accepted the supremacy of EU

law over national law and the integration of EU law into the national realm, this acceptance has

been a difficult process, with support for EU law varying between the three courts.108

For

example, the Cour de Cassation has long been considered the most pro-European court of

France; in 1975, the Cour de Cassation established the supremacy of EU law over French law,

thereby abandoning the “Matter doctrine,” a French legal doctrine which proposed that in the

event of a conflict between national law and any other non-domestic law, national law will

always take precedence.109

The Conseil d’Etat, the court that was traditionally the guardian of de

Gaulle’s Constitution of 1958, did not acknowledge the supremacy of EU law until as late as

1986 in its Smanor decision in which it declared that a judge could examine the conformity of

regulations with an international treaty.110

Even after the 1986 decision, it was not until 1992 (in

its Rothmans and Phillip Morris decisions) in which the Conseil d’Etat formally pronounced the

supremacy of EU law over national law.111

In this way, the question of why the Cour de

Cassation enforced the supremacy of EU law in advance of the Conseil d’Etat remains

unanswered.

One possible explanation for this discrepancy is the social context in which French

judges make their decisions. In the case of the Cour de Cassation the judges “saw a chance to

strengthen its position within the French legal system as a whole.”112

While the judges of the

Conseil d’Etat are generally career civil servants who are indoctrinated into the French legal



31

tradition over the course of decades, the Cour de Cassation is comprised of an elite group of

judges who were not educated in the tradition of distrust towards the European integration

project.113

In this way, the individual preferences of the supreme court judges play a key

explanatory role in variation in attitudes towards the supremacy of EU law. However, the

institutional framework in which these decisions are made also matters. In particular, the

Conseil d’Etat was not in a position in the 1960s and 1970s to hand down decisions that

contracted the government – that is, its role was specifically to interpret the legality of public

administrative actions, cases which may be politically sensitive. Furthermore, given the

encroaching authority of the Conseil Constitutionnel over matters that had previously been the

sole jurisdiction of the Conseil d’Etat, the judges comprising the Conseil may have viewed direct

effect and supremacy as an additional challenge to their authority.114

More broadly, however, France’s slow acceptance of the supremacy of EU law is in large

part attributable to “ignorance”115 among members the French judiciary and political elite. EU

law was simply not part of the formal legal training of most French supreme court judges. Up

until the 1980s, only those members who had specialized in EC/EU law had a working

knowledge of Community law. Furthermore, French legal publications did not recognize the

important developments that were happening at the level of EU legal integration in the 1960s.

For example, in one leading scholarly journal – Revue du Marché Commun – the 1963 decision

in Van Gend en Loos was not even mentioned. While this general lack of knowledge about

Community law will be explored in greater theoretical depth in the next section, it is sufficient to

say that French judges were unaware of the significance of the developments in the EU legal

integration process.

Germany



32

Unlike the French legal order, there is only one supreme national court in Germany – the

Germany Federal Constitutional Court (GFCC). While the most important decisions made by

the GFCC vis-à-vis European legal integration (Solange I and II and Maastricht decisions) are

not inconsistent (as in the French example), they do reflect different approaches to European

legal integration.116 Specifically, they can be understood in terms of the politico-doctrinal

context of their time. For example, the 1974 Solange I decision, in which the GFCC effectively

denied the autonomy of EC law, subjecting it to national constitutional review, demonstrates the

role of the GFCC in upholding the authority of the German legislature post-Third Reich

Germany. More concretely, as Juliane Kokott suggests, certain “elements of the identity of

post-war Germany” may “help to explain the Federal Constitutional Court’s requirement in

Solange I ...”117

In this way, constitutional and human rights patriotism in post-war Germany –

elements that defined the new German state – may have been driving factors behind the GFCC’s

decision. Despite the GFCC’s effort to uphold German constitutionalism, the Solange I decision

was heavily criticized by national and international legal scholars who suggested that the

decision might damage the process of European integration in Germany.118

In the larger scheme

of European integration, it should be noted that the Solange I decision was pronounced during an

unequivocally stagnant period for EU integration – as mentioned previously, member states were

concerned with fighting inflation and dealing with the repercussions of the oil crisis as opposed

to expanding the EC.119

However, throughout the 1970s and 1980s the ECJ further developed its

case law on fundamental rights, ultimately leading to a revision of Solange I with the 1986

Solange II decision, in which the GFCC essentially handed over the jurisdiction of fundamental

rights to the ECJ. Furthermore, while the 1993 Maastricht decision in general underlines the

“cooperative” relationship between Germany and the ECJ, it also expresses concern over future



33

integration. This hesitancy, in light of increasing Euro-skepticism and further monetary

integration, was not entirely misplaced. In general as this brief sketch of the GFCC’s response to

EU legal integration demonstrates, German identity and concerns about statehood indeed played

into legal considerations. The implications of these considerations will be discussed in the

following section.

United Kingdom

Traditionally, the doctrine of parliamentary sovereignty – i.e. the sovereign, unlimited

power of the British Parliament over executive and judicial bodies – had defined the UK’s legal

order. However in the unprecedented Factortame I and II cases (1990 and 1991 respectively)

the House of Lords challenged the traditional notion of sovereignty, confirming the supremacy of

European Union law over national law in the areas in which the EU has competence. Given this

decision, why did the House of Lords essentially limit its own powers? Two explanations are

typically provided by scholars: (1) the UK knew when it joined the EC that EC law was supreme,

and therefore any “blame” for the loss of UK sovereignty was inherent to the Parliament’s

contract with the EC at the time of accession and (2) supremacy of EC law was inherent to the

functioning of the Community, which could only continue to exist if EC took precedence over

domestic law.120

In terms of direct effect, the Factortame decisions means that UK courts have

not contested ECJ rulings granting individuals direct effect, except with regards to directives.121

Regarding the preliminary ruling mechanism, national courts have been increasingly likely to

refer cases to the ECJ, as it serves to empower the UK national judiciary, particularly since

British courts do not have the formal power to attack primary legislation.122 Rather than

focusing on the limitations imposed upon the national legislature by acknowledging the



34

supremacy of EU law, the Factortame decision can be seen as a mechanism allowing national

courts to assert their newfound authority.

Ultimately, these three portraits of member states’ reactions to the rise of the ECJ suggest

that the way in which member states view themselves in relation to the ECJ has shaped their

acceptance of EU legal supremacy. In particular, in each of the three examples, member states

exhibited certain features of a nascent European identity. In the following section, I will

demonstrate how this notion of identity – and constructivism more broadly – serve to explain and

elucidate certain aspects of the legal integration process in Europe. I will further discuss the

theoretical implications of the case studies presented above in an attempt to illustrate how the

development of a European identity – as demonstrated by member states’ compliance with EU

law - is in fact symptomatic of a deeper constitutionalization process in the EU.

V. Constitutionalization as a Constructivist Project

To recapitulate, in the previous sections I have demonstrated how the development of a

supranational legal culture in the EU is the product of the relationship between the ECJ and

member states. In the first step of this process, the ECJ teaches member states – or more

specifically, national courts - to accept its authority. That is, by creating legal precedent –

namely the direct effect doctrine and the primacy of EU law – the ECJ has sought to educate

member states with regards to the supremacy of EU law. Member states, in turn, demonstrate

that they have internalized the supremacy of EU in one of two ways: (1) thorough the use of the

preliminary ruling mechanism and (2) to the extent that national courts challenge national law

using EU law. In the language of constructivists, I have illustrated that the ECJ developed norms

regarding the supremacy of EU which were then adopted by member states, albeit to varying

extents.



35

The three case studies (France, Germany and the United Kingdom) that I presented

earlier speak to the variation among member states with regards to the internalization of EU law.

In other words, member states have each “learned” to accept the authority of the ECJ at a

different pace. France’s initial resistance to the supranational authority of the ECJ and

subsequent internalization of the direct effect doctrine and the supremacy of EU law demonstrate

one such learning process. In the French case, the different levels of awareness of EU law point

directly to the uneven process by which member states become integrated into the supranational

legal order. That is, member state preferences vis-à-vis the ECJ are in fact an aggregation of

political preferences regarding the EU project as well as individual preferences of judges. In this

way, the extent to which EU law is a part of French legal education and part of the overall legal

culture in France shapes how national courts, or more specifically the judges within those courts,

view EU law.

In both the French and English case studies, acceptance of the supremacy of EU law

effectively empowered national judiciaries. More precisely, judicial empowerment means that

national courts became legitimate enforcers of ECJ decisions, often forcing national governments

to accommodate the jurisprudence of the ECJ.123

Thus, the French and English experiences

illustrate the importance of having domestic institutions adhere to international norms that could

potentially be politically constraining at the domestic level. Based on the role of national courts

in upholding the supremacy of EU law, one could then argue that international norms are most

influential when they are adopted by domestic actors to transform the behavior of other domestic

political actors.124

In terms of the constructivist “teaching-learning” model, the empowerment of

national courts thus figures as a stage in the learning process of member states.



36

However, the question of why states adopted these norms remains unanswered. As I

discussed in the previous section on my particular constructivist model, constructivism argues

that states act on the basis of their interests, which are in turn derived from their identity. The

German experience with EU law suggests that national identity may indeed conflict with the

goals of European integration. Germany’s initial reluctance to hand over authority to the ECJ, as

noted in the brief case study, reveals that national considerations trumped further integration into

the EC. Specifically, constitutional and human rights patriotism in post-war Germany –

elements that defined the new German state – may have hindered the German Federal

Constitutional Court from handing power over to a supranational authority; throughout the

1970s, German national interests to defend fundamental rights thus overrode international

considerations. In this way, the variance in Germany’s attitudes towards the ECJ is a function of

particular national interests and political preferences.

As actors develop certain identities, particular meanings become stable over time,

creating social orders that constructivists call structures or institutions.125

Given that states tend

to act on interests, and interests are indicative of identities, what then explains the shift from

national protectionism in legal affairs to acceptance of a supranational legal order? In the

remainder of this section I argue that member states that accept the supremacy of EU law are in

the midst of an “identity crisis” in which their primary loyalties are shifting to further EU

integration. In giving up their sovereignty and adopting EU legal norms, member states are

signaling a deeper transformation in the notion of what constitutes a European state. I suggest

that this shift in member state identity is indicative of a deep-rooted constitutionalization process

in the EU. Constitutionalization, as an institution in constructivist terms, thus describes the



37

overarching context in which member states relinquish their sovereignty in favor of a

supranational legal order.

Constitutionalism, defined as self-imposing limits on majority decisions126

, can take a

number of forms. Though it is traditionally discussed in the context of a written text,

constitutionalism refers more generally to the commitment by a state to set limits on its own

future actions.127

In the case of EU member states, this commitment signifies a willingness to

renounce sovereignty and its jurisdiction over certain policy areas in favor of greater

supranational authority. Though the 2004 European Constitution failed to gain ratification in

France and the Netherlands, thereby preventing the Constitution from taking effect, its failure

does not mean that the constitutionalization process per se has come to a halt. Rather, it is more

accurate to think of constitutionalization in terms of simultaneous processes that occur among

EU citizens, national politicians, and domestic judiciaries. Given the multi-layered nature of

constitutionalism, the failure of the European Constitution to take effect merely signals a

resistance among certain populations (namely the French and Dutch) to formally codify a

European constitution. Nonetheless, a European Constitution does in fact exist.

Supranational institutions, such as the EU, may or may not have formal constitutions, but

do have a legal basis in international treaties.128

Regarding the European Union, this basis has

long been considered by scholars to be the Maastricht Treaty.129 However, I would broaden this

definition to include the legal norms that the ECJ established prior to the Maastricht Treaty.

As I mentioned in previous sections on the way in which the ECJ has taught member states to

accept supranational authority, there does indeed appear to be a set of self-binding principles

upon member states, namely the precedents set forth in Van Gend en Loos, Costa v. Enel, and

Francovich. Together, these three cases constitute the fundamental building blocks of the



38

European legal order – direct effect and supremacy of EU law. As J.H.H. Weiler rightly notes,

“within its ever increasing sphere of activities, the writ of the Union displaces any conflicting

national legislation.”130

Although states do not decide whether or not to accept the jurisdiction of

the ECJ (as that is inherent in accession to the EU), I would modify Weiler’s contention by

adding that states do in fact have some degree of leverage over the extent to which they support

the integration of EU law into the domestic sphere. As the variance of acceptance of the

supremacy of EU law among France, Germany and the United Kingdom – along with the

increasing use of the preliminary ruling mechanism – illustrate, the extent to which member

states give up sovereignty in favor of a supranational order is dependent on what its national

preferences are at any given time. Given this trend, I would further argue that the member states

that have illustrated a high degree of compliance with EU law (as indicated by their likelihood of

submitting a preliminary ruling and their incorporation of EU law into national legislation)

reflect preferences of their newly formed identity as EU member states.

According to a constructivist framework, considering that the ECJ has propagated certain

norms and that these norms have been internalized (to varying degrees) by member states, it is

possible to further conclude that EU member states are acting on the basis of their developing

identity as EU member states. On what grounds, however, can one suggest that a European

identity is in fact present? As Jurgen Habermas suggests, one can deduce that there indeed exists

a “European people” who do not identify themselves vis-à-vis a nation state but out of a “society

that wants to constitute itself as a political unit.”131

In other words, Habermas favors a top-down

understanding of identify formation in which the development of a collective identity is based

upon a “politically constituted context of solidarity” – namely that of the European



39

constitution.132

Applying this logic to the case of the EU, then, it can be argued that a union of

states cannot exist without a sense of collective solidarity among the European citizenry.

To make this statement, however, requires an abandonment of prior understandings of

statehood. While “identity” is generally linked primarily to states, European identity is not based

on statehood. That is, the European Union is not a state in any traditional understanding of the

concept of statehood. More specifically, the EU is not comprised of “territorially defined, fixed

and mutually exclusive enclaves of legitimate dominion.”133

True, though the EU is comprised

of member states that are territorially bound, this does not mean that the EU is a territorial state –

its boundaries are by no means fixed nor mutually exclusive. Furthermore, its authority was not

established through the conquest of territory but with the voluntary consent of national

politicians. Instead, what we observe in the EU is multiple overlapping systems of authority in

which the distinction between domestic and international is virtually meaningless.134

From a

historical perspective, this overlap in political authority is hardly unprecedented. As Hedley Bull

duly reminds us, the current state system – based upon territorial jurisdiction – is not historically

the only possible configuration of “loyalties” particularly in light of feudalism, for example.135

Perhaps, as Bull and others have suggested, the EU is a new model of governance – “a

postmodern international political form”136

in which authority is not geographically rooted and

borders do not delineate sovereignty.

That said, the way in which we begin to think about identity in the EU is not to be

equated with how we conceptualize statehood and national identity. Rather, as Habermas and

others have noted, European identity is essentially based upon shared constitutional principles137

:

respect for human rights, advancement of democracy, and support for the EU integration project

over national interest. These principles, it should be noted, are furthermore the product of EU



40

institutions; as Habermas argues, EU political institutions have an inducing effect on member

states.138

This so called “inducing effect: is critical for the constructivist model that I have put

forth; the ECJ, as an EU institution, has “taught” domestic courts to accept its authority by

creating a European identity for them. By creating a set of legal precedents, the ECJ has put

created a particular role for domestic courts in the EU legal order, a role that domestic courts

have – in the examples I suggested earlier in the paper - willingly taken upon themselves. As

member courts view themselves as agents in the EU integration process they consequently

“learn” to respect the supremacy of EU law, hence acting in crucial ways against national

sovereignty.

VI. Contributions to Scholarship

While constructivism, as an analytical framework, has been largely applied to European

integration, relatively little constructivist scholarship has been done on the legal order of the EU.

Existing literature frames the legal integration process in the EU as either a “top-down” or

“bottom-up” process in which either the ECJ or member states and its sub-state actors drive the

development of EU law. I suggest an alternative framework for understanding the construction

of the EU legal order. Specifically I argue that the relationship between the ECJ and member

states is a reciprocal one, based on the articulation of certain norms by the ECJ, which are in turn

adopted by national courts. In this manner, my specific contribution to the debate on EU legal

integration focuses on the role of norms and the process of norm diffusion as an explanatory

variable in the question: why have member states given up sovereignty in favor of greater

supranational authority by the ECJ? Through a discourse analysis of the ECJ’s rulings and case

studies of member states’ compliance with EU law, I have illustrated this dynamic. Furthermore,



41

with my discussion of identity politics in the EU I have attempted to illustrate how European

identity is articulated by EU institutions and is indicative of a deep-seated constitutionalization

process that is underway in the EU. In this way, I hope that my contribution here will encourage

future research on constructivism as a model for understanding the process of regional

integration.

References

1Karen J. Alter. 1998. Who are the ‘Masters of the Treaty?’: European Governments and the European

Court of Justice. International Organization 52 (1): 124.2

Ibid., 121.3

Geoffrey Garrett, R. Daniel Keleman, and Heiner Schulz. 1998. The European Court of Justice,

National Governments, and Legal Integration in the European Union. International Organization 52 (1):150.4

Ibid, 150.5

Judgment of the Court of 20 February 1979. http://eur-

lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61978J0

120#I2.6

Neill Nugent. 2006. The Government and Politics of the European Union, Sixth Edition. Durham:

Duke University Press: 207.7

Alec Stone Sweet. 2004. The Judicial Construction of Europe. Oxford: Oxford University Press: 68-69.8

Mark A. Pollack. 2005. Theorizing EU Policy-Making. In Policy-Making in the European Union, 5th

edition, edited by Helen Wallace, William Wallace, and Mark A. Pollack. Oxford: Oxford University

Press: 17.

9 Ibid., 17.10

Mette Eilstrup-Sangiovanni. The 1992-Project, the Revival of Neofunctionalism and the Liberal

Intergovernmentalist Challenge. In Debates on European Integration: A Reader, edited by Mette

Eilstrup-Sangiovanni. Houndsmills: Palgrave Macmillan: 189.11

Andrew Moravscik. Preferences and Power in the European Community: A Liberal

Intergovernmentalist Approach. In Debates on European Integration: A Reader, edited by Mette

Eilstrup-Sangiovanni. Houndsmills: Palgrave Macmillan: 271-272.12

Ibid., 282-283.13

Ibid., 291.14

Alec Stone Sweet and Thomas L. Brunell. 1998. Constructing a Supranational Constitution: Dispute

Resolution and Governance in the European Community. American Political Science Review 92 (1): 66.15

Ibid., 66-67.16

Garrett, Kelemen, and Schulz 1998, 149.17

Ibid., 150.18

Pollack 2005, 15.19

Pollack 2005, 15.20

J.H.H. Weiler. 1999. The Constitution of Europe: “Do the New Clothes Have an Emperor? And Other

Essays on European Integraion.” Cambridge: Cambridge University Press: 39-43.21

Andrew Moravscik. April 2005. The European Constitutional Compromise and the Neofunctionalist

Legacy. Journal of European Public Policy 12 (2): 350.



42

22Anne-Marie Burley and Walter Mattli. 2006. Europe before the Court: A Political Theory of Legal

Integration. In Debates on European Integration: A Reader, edited by Mette Eilstrup-Sangiovanni.

Houndsmills: Palgrave Macmillan: 227.23

Ibid., 228.24

Ibid., 241.25 Ibid., 241.26

Geoffrey Garrett. 2006. The Politics of Legal Integration in the European Union. In Debates on

European Integration: A Reader, edited by Mette Eilstrup-Sangiovanni. Houndsmills: Palgrave

Macmillan: 254.27

Ibid., 253-254.28

Ibid., 262.29

Geoffrey Garrett. Winter 1995. The Politics of Legal Integration in the European Union. International

Organization 49 (1): 175.30

Ibid, 175.31

Ibid., 176.32

Pollack 2005, 35.33

Alter 1998, 123.34 Ibid., 136.35

Ibid., 136.36

Ibid., 123.37

Ibid., 122-123.38

Ibid., 128.39

Ibid., 128.40

Audie Klotz and Cecelia Lynch. 2007. Strategies for Research in Constructivist International

Relations. Armonk, NY: M.E. Sharpe: 10.41

Ibid., 9.42

Ibid., 10.43

Ibid., 6-7.44

Ibid., 7.

45 Ibid., 7.46

Ibid., 7.47

Alexander Wendt. 1992. Anarchy is What States Make of It: The Social Construction of Power

Politics. International Organization 46 (2): 397.48

Klotz and Lynch 2007, 8.49

Wendt 1992, 399.50


Ibid., 10.52

Ibid., 65.53

Ibid., 65.54

Ibid., 24.55

Ibid., 10.56

Ibid., 11.57

Ibid., 19.58

Martha Finnemore. 1996. National Interests in International Society. Ithaca: Cornell University Press:

5.59

Ibid., 5-6.60

Ibid., 36.61

Wendt 1992, 399.62

Ibid., 298.63

Stone Sweet and Brunell 1998, 65.



43

64Nugent 2006, 298-299.

65Nugent 2006, 300.

66Nugent 2006, 304-305.

67Stone Sweet 2004, 65- 68.

68Stone Sweet and Brunell 1998, 65.

69 Stone Sweet and Brunell 1998, 6670

Margaret McCown. 2005. Judicial Law-Making and European integration: The European Court of

Justice. In European Union: Power and Policy Making , edited by Jeremy John Richardson. London:

Routledge: 172.71

Garret, Keleman, and Schulz 1998, 29272

Stone Sweet 2004, 69.73

Ibid., 169.74

Nugent 2006, 292.75


Alter 2000, 493.77

McCown 2005, 173.78

Nugent 2006, 291.79 Ibid., 29280

Alter 2000, 491.81


Alter 2000, 491.83

Nugent 2006, 304.84

Alter 2000, 499.85

Nugent 2006, 306.86


Garrett, Keleman, and Schulz 1998, 170.88

Ibid., 170.89


Alter 1998, 144.

91 Stone Sweet 2004, 69.92

Ibid., 304.93

Ibid., 305.94

2007 Annual Report of the European Court of Justice.

<http://curia.europa.eu/en/instit/presentationfr/rapport/stat/07_cour_stat.pdf >. See pages 21 and 22.95

Ibid., 21-22.96

Ibid. 22-22.97

Alter 2000, 496.98


Ibid., 240.100

Lisa Conant. 2001. Europeanization and the Courts: Variable Patterns of Adaptation among National

Judiciaries. In Transforming Europe: Europeanization and Domestic Change, edited by Maria Green

Cowles, James Caporaso, and Thomas Risse. Ithaca: Cornell University Press: 98.101

Ibid., 98102

Ibid., 99.103

Ibid 103104

2007 Annual Report of the European Court of Justice105

Conant 2001, 110-111.106

Ibid.,115.



107Jens Plotner. 1998. Report on France. In The European Court and National Courts – Doctrine and

Jurisprudence: Legal Change in its Social Context , edited by Anne-Marie Slaughter, Alec Stone Sweet,

and J.H.H. Weiler. Oxford: Hart Publishing: 41.108

Ibid., 42.109

Ibid.,44-45.110 Ibid., 46.111

Ibid., 48.112

Ibid., 54.113

Ibid., 56.114

Ibid., 57-58.115

Ibid 73116

Juliane Kokott. 1998. Report on Germany. In The European Court and National Courts – Doctrine

and Jurisprudence: Legal Change in its Social Context, edited by Anne-Marie Slaughter, Alec Stone

Sweet, and J.H.H. Weiler.. Oxford: Hart Publishing: 137.117

Ibid., 118118

Ibid., 188.119

Ibid., 121120 P.P. Craig. Report on the United Kingdom. In The European Court and National Courts – Doctrineand Jurisprudence: Legal Change in its Social Context , edited by Anne-Marie Slaughter, Alec Stone

Sweet, and J.H.H. Weiler. Oxford: Hart Publishing: 203.121

Ibid., 204.122

Ibid., 216.123

Alter 1998, 144.124

Ibid., 144.125


Jon Elster. 1988. Introduction. In Constitutionalism and Democracy, edited by Jon Elster and Rune

Slagstad. Cambridge: Cambridge University Press, 2.127

Ibid., 8.128

Dieter Grimm. 1997. Does Europe Need a Constitution? In The Question of Europe, edited by Peter

Gowan and Perry Anderson. London: Verso: 239.129

Grimm 1997, 240; J.H.H. Weiler. 1997. Demos, Telos, Ethos and the Maastricht Decision. In The

Question of Europe, edited by Peter Gowan and Perry Anderson. London: Verso: 3.130

Weiler 1999, 4.131

Jurgen Habermas. 1997. Reply to Grimm. In The Question of Europe, edited by Peter Gowan and

Perry Anderson. London: Verso: 262.132

Ibid., 263.133

John Gerard Ruggie. Winter 1993. Territoriality and Beyond: Problematizing Modernity in

International Relations. International Organization 47 (1): 151.134

Stephen J. Kobrin. Spring 1998. Back to the Future: Neomedievalism and the Postmodern Digital

World Economy. Journal of International Affairs 51 (2); 367.135

Hedley Bull. 1977. The Anarchical Society: A Study of Order in World Politics. New York:

Columbia University Press.136

Ruggie 1993,140.137

Habermas 1997, 262.138

Ibid., 264.

the court of justice and the member states

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