How the court made a federation of the EU

Abstract

International audienceWe analyze the European institutional integration that took place in the 1950s and 1960s as a two-stage process. Firstly, an explicitly political project aims at establishing a European political community. The project is abandoned in the mid-1950s and political integration stops. At that time, the institutions of the Union take the form of a confederation. In a second stage, because of the failure of the European political community, a legal process of integration driven by the European Court of Justice takes place. This second stage of unification is more centralizing and in effect leads to a federalization of the European institutional structure. The transformation of the political structure of the European Union thus appears to result from the actions and decisions of a legal entity, the European Court of Justice

Politics in Robes?: The European Court of Justice and the Myth of 'Judicial Activism'

“…The preoccupation with the European Court should begin to reflect the shape of national discussions. This does not have to mean that it is perceived as a federal legal order (Josselin/Marciano 2007), or that it is yet comparable to the well-established national legal orders. However, it suggests taking the autonomy (the word is composed of the ancient Greek words auto=self and nomos=law) of European law seriously, and accepting it as what it has long been since the early years of the EEC -an independent context of reasoning and action.…”

“…First, perceiving the ECJ as an actor engaging in profederalist politics (see e.g. Josselin/Marciano 2007, Alter 2009b ignores the legal and craft-bound foundations of its work. It just fades out the embeddedness of the Court in the context of European law as well as the options and restrictions resulting from that.…”

Integration and the Context of Law: Why the European Court of Justice is Not a Political Actor

“…This basic rule applies to all of them: "… propositions of law are true [and only therefore have to be accepted, AG] if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community's legal practice (Dworkin 1986: 225)". Therefore, it is even more astonishing that the European Court, but not individual national judiciary bodies, is regularly confronted with the allegation of engaging in "legal politics" (Conant 2007; see also Josselin and Marciano 2007) or even "radical judicial activism" (Moravcsik 1995: 623). Do the national high courts not also quite regularly produce controversial decisions that have farreaching political implications that are discussed by legal and political experts and are subject to broad debates on principles in the media?…”

“…One of the most persistent stories produced within the rationalist framework of analysis, repeated over and over again in many prominent studies, is the appraisal that the ECJ created the autonomy of European law in the early years of integration driven by a political interest in expansionist lawmaking, laying the cornerstone for a series of further steps that siphon ever more power from the nation states to the European level -all without state consent (Josselin and Marciano 2007;Granger 2006;Kenney 2000;Alter 2000Alter , 2009a; for a good overview see Conant 2007). In this light, the institutionally influential cases like Fédéchar 16 and AETR 17 on the principle of implied powers, van Gend en Loos 18 on the principle of direct effect, Costa/ENEL 19 on the principle of supremacy, or even Internationale Handelsgesellschaft 20 on the protection of fundamental rights, must appear as "original sins" in a continuing story of European judicial empowerment.…”

“…First, perceiving the ECJ as an actor engaging in pro-federalist politics (e.g. Stone Sweet 2004: 232;Josselin and Marciano 2007;Alter 2009b: 44) ignores the legal and craft-bound foundations of its work. It obscures how embedded the Court is in the context of European law, as well as the options and restrictions resulting from that.…”