Oneof the particular characteristics of the European Union is the high level oflegally binding mechanisms and the power its supranational Court of Justice has.In this scenario, law has been hailed throughout the academic literature (Dehousse,1999; Stone Sweet, 2004) as being themotor –at least one of the main ones– of European integration. What isoften argued is that law was the main instrument of integration from the secondhalf of the 20th century until the 1990’s, when it took a diminishedrole alongside the rise of new forms of integration and cooperation. However,given a continued process of integration and the maintained existence of law asan instrument in it, is is worth asking if law is still the the motor of European integration. Thispaper will seek to answer this question by first, showing how has law, and especially the CJEU, have been the motors ofintegration and how this process is best explained, and second by exposing howlaw in fact has never ceased to be a centerpiece of integration.
This will be donethrough a “governance” approach (Saurugger & Terpan, 2014) which seeks toexplainin the role of the CJEU through its interactions with the otherpolitical actors. Tostart, there are four domains in which European integration takes place(Terpan, 2014, p.51-57): economic, concerning mainly the establishment of thecommon market and the monetary union. Political, concerning the enlargement andstrengthening of the competences of institutions, and the emergence of apolitical life and a European politicalcommunity. Societal, referring to the implication of citizens and societalgroups in the construction of the union and the emergence of solidarities andcloseness within this ‘European citizenship’.
Finally, juridical integration comprisesgenerally the set up of binding treaties by the states, the reinforcement ofeffects of UE law, the constitutionalizationof the treaties, and the increase of normative production by the institutions.Moreover, on this last domain it can be seen that EU law increasing penetratesinto national legal systems and these in turn increasingly ‘cooperate’ with EUlegal institutions. Give the framing of integration given above, and while theguiding question here concerning ‘European integration’ in a broad sense, thispaper will focus mainly on juridical integration and more specifically on therole the Court of Justice of the European Union (previously the Court of Justiceof the European Communities). This is because, somewhat tautologically, thedomain of juridical integration is the one in which the effects of law as motorof integration can be seen. Moreover, as Terpan (2014, p.51-57) shows, legalintegration serves to further and strengthen integration in the other threedomains.
Finally, the emphasis this paper will place on the role of the Courtis due to the fact that this institution is often considered to be one of themost, if not the most, important actors in the process of legal integration.TheCJEU is charged with guaranteeing the normative coherence of the Union byensuring the respect of law in the interpretation and application of thetreaties, and the unvarying application of law in all of the Union. It can beseen then that it has both an administrative function in the workings ofinstitutions and actors within the EU and a constitutional function withregards to the delimitation of competences of those actors and institutions.
(Terpan,2014, p.130-131). It is considered however that it has gone beyond those powersand has historically gave itself the task of furthering the continent’sintegration by interpreting the treaties in favor of the stated goal of an evercloser union. The Court has favored Europeanintegration through its “activism”, a term that refers to “… a processthrough which judges and judicial institutions act as policy-makers, therebycomplementing, substituting or competing with political actors.” (Saurugger& Terpan, 2017, p.3).
The Court is largely regarded as having turned thebase treaties into a sort of “constitutional charter” of the European communities–and later of the Union– (Dehousse, 1999, p.134). By way of its innovative andaudacious rulings, the Court has managed to widen the range of action ofprivate and European actors in the European legal landscape, and has alsostrengthened not only its own powers but also those of national judgesconcerning the application of EU law (Dehousse, 1999, p.146).
In this way ithas has contributed to the expansion of decisions that increasingly have beentaken by judicial authorities, thus strengthening the domain of legal integration.Whenapproaching the idea of the constitutionalisationof the European treaties, a key element in the process of the Court-drivenlegal integration, there can be seen two landmark legal cases in which therulings of the Court have had remarkable impact on European integration. Thefirst one to consider is the vam Gend enLoos ruling of 1963, which instated the doctrine of direct effect of theTreaties’ dispositions in the national legal orders (Saurugger & Terpan,2017, p.20). The second ruling to consider is Costa vs. ENEL of 1964, which had a remarkable impact on nationalsovereignty as it instilled the superiority of the Treaty’s law over nationallegal systems (Saurugger & Terpan, 2017, p.21-22). Moreover, variousrulings during the 1970’s have incorporated the protection of fundamentalrights into the European legal system and have also contributed tot thedevelopment of European-level social policy (Saurugger & Terpan, 2017, p.
29-30).Furthermore, the case law of the Court had been used in the legislative area inorder to further economic integration by tackling barriers to the establishmentof the common market. It is the case of landmark rulings such as Dassonville or Cassis de Dijon which not only served to remove barriers to freetrade but also permitted the Court to act in new areas where it had rather poorcompetence before (Saurugger & Terpan, 2017, p.29). Now, it is important to try to delveinto the explanations for this pro-integration activism in order to, later on,approach the issue of legal integration in more recent times. The activism ofthe Court is often explained by it’s supranational character, its independence–from the States– and the pro-European and pro-integration approach, agenda andwill of its judges.
(Saurugger & Terpan, 2014, p.64) Such approach to theCourt can be exemplified in Stone Sweet and Brunell (2012,) who explain thatthe Court’s capacity to make law and to develop the European legal system in aprogressive, self sustaining way are permitted by the fact that the Courtessentially has no constraints by the Member States and that the threat ofoverride of a ruling, while technically possible is in fact not a credible one. However, it is important to nuancesuch view since, as it will be shown, the integration by law set up and pushedby the Court is made possible through it’s interactions with the actors alongwith it is located, as Saurugger and Terpan (2014) do using what they refer toas a “governance” approach.
To start, it has been necessary that other actors use the Court and accept its rulings inorder to consolidate the latter’s powers. It is the case of, for example, theuse of preliminary rulings by the national courts or the use of the Court byprivates to seek fundamental right’s protection that has empowered the Courtand consolidated its place in the judicial and political system. Also, it isthe national judge who has to apply EU law, and the cooperation of these judgeswith the CJEU has enabled the proper functioning of the European judicialsystem (Saurugger & Terpan, 2014, p.66). Furthermore, nationaljurisdictions have overall, sometimes with difficulties and resistances,accepted the principles set by the Court in the van Gend en Loos and Costa vsENEL rulings (Saurugger & Terpan, 2014, p.67-68). Excluding some casesof resistances by national constitutional courts, it can be seen that it is thefavorable conditions of the system which enable the Court to pursue to a greatextent its case law. Anotherfactor that shows how the Court works within this governance system is the factthat, regardless of the process of pressures and negotiations before thesignature of the Treaty of Rome, the signatory countries decided overall to setup the Court and endow it with a large and constraining jurisdiction that waslinked to national jurisdictions and that sought to maintain the respect ofEuropean law (Baquero Cruz, 2006, p.
227). Aside from this, numerous transfersof competences to the Community’s institutions in the subsequent revisions ofthe treaties reflect the overall entrusting by Member States of suchinstitutions and their constraining judicial authority. Furthermore, asSaurugger and Terpan argue, “Intergovernmental actors have not overruled theCourt in areas where judicial control was set out in the treaties. They haverarely revised the treaties or legislated with the purpose of opposing theCourt’s jurisdiction.
Neither have they used ‘jurisdiction stripping’ …” (Saurugger& Terpan 2017, p.101). This is not to argue that there have not been anyresistances, nor that the legal system and the Court have no power concerningthe domains of integration, but rather that the workings of the Court –and oflaw– as one of the main the motors of European integration has to be understoodas operating in an environment that permitsthem to pursue and serve integration. Thetask at hand now will be to see if the aforementioned process of legalintegration has continued to be the case in more recent developments.
It isrecurrently mentioned in the literature, as Saurugger and Terpan (2014)explain, that during 1990’s there was a significant change in the activity ofthe Court since it seemed to restrain itself from audacious pro-integrationrulings, and to a lesser extent in the integration process since it appeared toveer towards new, non-legal forms of integration. Below it will be shown thateven if the role of law and the Court for European integration can beconsidered to be subtler and less spectacularthan before, its is still very influential in the process of integration whenconsidered through the governance approach (Saurugger & Terpan, 2014, p.72).Theprevalent view concerning the restraint of the Court argues that its rulingshave become less audacious, in the fist place, because institutional reforms bythe Single European Act and by the Maastricht treaty have limited the power ofthe Court by extending the competences of Community institutions, and byexplicitly excluding from its control the areas of Justice and Home Affairs andthe Common Foreign and Security Policy. On the second place, it is argued thatthere was an increase in public scrutiny and that there was no longer the”permissive consensus”, or the public passive approval of ongoing Europeanintegration. Third, the establishment of “new modes of governance” by thetreaty of Maastricht and developed by the Lisbon strategy of 2000, gave way tonumerous forms of soft-law, intergovernmental cooperation, like the notably theOpen Method of Cooperation (Smismans, 2011), and overall non-binding andnon-hierarchical forms of governance and integration.
It is in this way that itis argued that since the 1990’s the Court has limited its own influence(Saurugger & Terpan, 2014, p.71-72). However,this view can be nuanced since it not because the Court no longer makes foundationaland existential rulings that it doesn’t exercises influence through its caselaw (Saurugger & Terpan, 2014, p.72). So, in the first place, it can beseen that from the 1990’s onwards there has been a continuing constant actingof the Court that can be considered to be “activist”. The has been a constantand often increasing role of claims, legal enforcement and judicial shaping ofpolicy in areas such as employment discrimination, free movement, andfundamental rights. (Saurugger & Terpan, 2017, p.
39). Moreover, it can beseen that the activism of the Court takes place unevenly across different areasover time, so during the 1990’s it is argued that even if has been morebalanced on competences it has been significantly more expansive on citizens’rights (Baquero Cruz, 2006, p.235). In this way it can still continued to beconsiderable activist and thus contributing to the continuing integration ofEurope. Comingback to one of the explanations for the apparent restraint of the Court, theexpansion of Community competences by the Treaty of Maastricht, there is animportant point to be considered. As Baquero Cruz argues (2006, p.238) this canbe interpreted as the Court feeling that it non longer needed to be asexpansive on competences and in filling constitutional gaps as before sincethis task was at the moment being taken care through the establishment of theTreaty.
If this point would contribute to the thesis of the restraint of theCourt it, however, supports the idea of a continuing and growing process oflegal integration. Furthermore, during the 1990’s and the 2000’s there havebeen significant transfers of competence and strengthening of the Community andsubsequently the Union. For example, in the Treaty of Amsterdam in 1997 signatorystates included, and ratified, a clause that openly recognized the principlesof direct effect and supremacy (Baquero Cruz, 2006, p.230). Also through thistreaty, the domain of justice and home affairs was finally incorporated intothe Union and thus placed under control of the Court.
Moreover, the EuropeanCharter of Fundamental Rights, has been incorporated into primary law by thetreaty of Lisbon thus making it enforceable by the Court (Saurugger , 2014, p.74). Another example is the area of economic governance, whichinitially was excluded from the Courts reach but various measures taken byMember States in 2011 and 2013, following the financial and economic crisis,have increased the power of the Court to act in this area (Saurugger , 2017, p.
198-199). Overall,what the above mentioned examples show is the fact that integration by lawunder no circumstance has diminished and can still be considered to be themotor of integration. The aforementioned transfers of competences are quiteremarkable and very telling of the fact that the Member States do not rule out –andthus permit– the potential activism and constraining rulings from the Court inthose domains. Again, it it important to take into account the “governance”approach in order to see, that private and public actors, notably from theMember States, create a political and institutional environment in which theCourt can act, expand its competence, and contribute to the process ofintegration. This paper has attempted to argue,on one hand, that from the 1990’s onwards law and the CJEU have still been keymotors of European integration. On the other hand, it has sough to show howthat first argument is made possible through an analysis of the workings of theCourt in the process of integration through a “governance” approach that seeksto place it within its interactions with other agents of the European politicalenvironment. The main conclusion to raise here it that while law can beconsidered to still be a fundamental motor of European integration, it can onlybe such through the interaction it has with other actors in the system.
Thequestion that would arise at this point concerns the future of Europeanintegration and the role the law and the Court could play in it. On one hand,certain difficulties that Europe seems face these days, such as terrorism, theinflux of refugees, and the alleged threat by Russia would push institutionsand states in the EU into further cooperation and integration. On the otherhand, recent developments concerning resistances from governments, such asHungary and Poland, Brexit, and therise of Eurosceptic parties all over Europe would be evidencing new societalresistances to integration –similar to the end of the permissive consensus inthe 90’s– alongside a political climatethat could lead to a more restrained role of the Court and of law in theprocess of integration. As this question remains open, it is key to emphasizeone again the importance of analyzing law and the Court within its politicalcontext in order to comprehend the role it plays for integration.