Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community

Abstract

N o international organization in world history has attracted as much scholarly attention as the European Community (EC).l The reason is straightforward: The EC has evolved from a relatively traditional (albeit multifaceted) interstate system into a quasi-federal polity. In a word, Europe has integrated, as the linkages between politics on the EC level and politics on the national level have expanded in scope and deepened in intensity. Scholars working in diverse fields, including public law, international relations, and comparative politics, have been fascinated by the integration process, not least because of the challenge of understanding the reciprocal effect, over time, of international and domestic systems of governance.Current theoretical disagreements about how to understand European integration are largely disputes between intergovernmentalists, whose imagery is drawn from the international regime literature (Garrett 1992;Keohane and Hoffmann 1991;Moravcsik 1991Moravcsik , 1993Taylor 1983), and supranationalists, whose imagery is often federalist (Burley and Mattli 1993; Leibfried and Pierson, eds., 1995;Marks, Hooghe, and Blank 1996;Sandholtz 1993Sandholtz ,1996Sbragia 1993;Stone Sweet and Sandholtz 1997). Intergovernmentalists accord relative priority to member state governmentsrepresentatives of the national interest-who bargain with one another in EC fora to fix the terms and limits of integration. Supranationalists (especially the heirs of neofunctionalism), accord relative priority to EC institutions-representatives of the interests of a nascent transnational society-who work with public and priAlec Stone Sweet is Associate Professor and Thomas L. Brunell is a Ph.D. candidate, Department of Politics and Society, School of Social Sciences, University of California, Irvine, CA 92697-5100.The authors are grateful to the National Science Foundation, Grant No. SBR-9412531, the National Endowment for the Humanities, Grant No. FA-32480-94, the European Court of Justice, and the Robert Schuman Centre of the European University Institute for their support of this research. We also wish to thank James Caporaso, Lisa Conant, Russell Dalton, Harry Eckstein, Jonathon Golub, Bernard Grofman, Ronald Jepperson, Gary King, and Wayne Sandholtz for helpful comments.Although "European Union" is now commonly used to denote the European polity, we use "European Community" throughout. Formally, the EC remains distinct from the EU, and the EC is the most inclusive term for how the organization and its legal system function most of the time.vate actors at both the European and national levels to remove barriers to integration and to expand the domain of supranational governance. This paper is implicated in these disputes. One of our claims is that, on crucial points, the intergovernmentalists have gotten it wrong.More important, we propose a theory of European legal integration, the process by which Europe has constructed a transnational rule-of-law polity. The theory integrates, as interdependent causal factors, contrac...

The European Court of Justice, State Non-Compliance, and the Politics of Override

“…of MSG noncompliance. After all, the EU's legal system has uniquely evolved to deal with compliance failures (Kelemen 2010;Stone Sweet and Brunell 1998;Tallberg 2002b). Over the past two decades, scholars have charted how noncompliance on the part of MSGs has generated litigation and helped organize the court's dynamic construction of EU law, thereby creating new compliance failures.…”

Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting

“…; and Alesina and Wacziarg 1999+ 68+ For example, Stone Sweet and Caporaso 1998 show that over time, a linear relationship exists between the amount of transnational economic transactions and the pressure exerted by private suitors who demand supranational rules; see also Stone Sweet and Brunell 1998;andCarrubba andMurrah 2005+ 69+ See Pollack 1997;Alter 2001, chaps+ 2 and 5; and Maduro 1998, chap+ 3 on "majoritarian activism+" pean area of nondiscrimination+ We distinguish two subdimensions of this form of integration: protection against discrimination based on characteristics such as gender, age, and ethnicity, on the one hand; and discrimination-free transnational access to the social security systems of the member states, on the other+ In many member states, the improvement in protection against discrimination based on gender, age, sexual orientation, ethnic origin, or religious affiliation is attributable to the EU+ This is particularly true for protection against on-the-job discrimination and against discrimination blocking access to labor markets+ While such policies are not redistributive in a stronger sense, they have social content because they protect market participants who would be likely to perform worse if discrimination were legal+ Both European politics and judicial case law are responsible for these successes+ For example, the commission's negotiation skills are to credit for four antidiscrimination directives that were passed in the years 2000 to 2004+ 70 Even if the relative importance of political agreements in creating European antidiscrimination policy is greater than in the measures we discussed in marketenforcing policy, we should not underestimate the major role case law has played in formulating European equal treatment policy+ On the basis of comparatively few clauses in the European treaties-in particular, the principle of wage equality for the sexes and the free movement of workers-the ECJ has developed a farreaching antidiscrimination jurisprudence that has had an impact in all member states~and that is among the reasons why some, such as Alesina and Wacziarag, argue that European integration has gone too far!+ 71 Examples of the most recent case law are the Mangold decision, in which the ECJ overruled an element of the German labor market reforms that aimed at making fixed-term contracts more flexible for older employees; the Maruko decision, which came down against the refusal to award survivor pensions to homosexual partners; and the Coleman decision, in which the ECJ expanded previous case law governing the workplace to also cover family members of employees+ 72 Many other examples for the extensive equal treatment case law of the ECJ could be mentioned+ We suggest treating this line of case law as being "social" in the wider sense, but not as an element of~or a substitute for! " Polanyian," market-restricting policies at the European level: it aims to create free access to the market, unhampered by discrimination, in other words: free but fair markets+…”

Governance in International Trade: Judicialisation and Positive Integration in the WTO

“…During the Uruguay Round, GATT contracting parties eliminated these veto points, which had stalled the judicial procedures (GATT 1990). The introduction of binding third-party dispute settlement at the WTO created the expectation that a gradual expansion of the courts jurisdiction would slowly develop (Stone & Brunell 1998;Stone 1999). WTO panels and the Appellate Body, however, cannot rely on allies in domestic national courts like the ECJ was able to when strategically using preliminary references (Alter 1998;Burley & Mattli 1993).…”