EU constitutionalisation revisited: Redressing a central assumption in European studies

AuthorMorten Rasmussen,Dorte Sindbjerg Martinsen
Published date01 May 2019
Date01 May 2019
DOIhttp://doi.org/10.1111/eulj.12317
ORIGINAL ARTICLE
EU constitutionalisation revisited: Redressing a
central assumption in European studies
Morten Rasmussen* |Dorte Sindbjerg Martinsen
Abstract
The constitutionalisation of the European Union has since the early 1990s become a truism in
European studies. This article revisits the constitutionalisation theory drawing on the insights from
emerging historical research and new strands of political science research. We find that the
conventional constitutional narrative is less convincing when confronted with the new evidence
from historical and political science research. New historical research show that Member State
governments, administrations and courts have generally been rather reluctant to embrace the
constitutional project of the ECJ. Furthermore, at the level of European politics, the ECJ and its
case law have far from judicialized European decisionmaking to the extent often claimed.
Concluding, we reject the notion that the ECJ has successfully constitutionalised the EU,
emphasising instead the inherent tensions in the process, which continue to complicate the
efficiency of European law.
1|INTRODUCTION
Since the early 1990s, it has been a truism in European studies that the European Court of Justice (ECJ) successfully
constitutionalised the European Union (EU). Through its case law, the ECJ transformed the Treaties of Rome into a
protofederal constitution, thereby turning law into a central dynamic of European integration. As a consequence,
the EU has been thoroughly judicialised to the extent that European politics is framed and often decided by law.
1
This
article fundamentally questions this truism and offers an alternative interpretation of how European law has
developed from 1950 to the present, grounded in new empirical research by legal historians, sociologists and political
scientists. Before we begin, however, let us briefly take a closer look at the key elements of the standard interpreta-
tion of the historical development of European law.
*Saxo Institute, History Section, University of Copenhagen, Denmark.
Department of Political Science, University of Copenhagen, Denmark.
1
Recent and sophisticated examples of this trend are A. Vauchez, Brokering Europe: Eurolawyers and the Making of a Transnational Polity (Cambridge Univer-
sity Press, 2015) and G. Davies, The European Legislature as an Agent of the European Court of Justice(2016) 54(4) Journal of Common Market Studies,1
16.
Received: 20 August 2018 Revised: 21 January 2019 Accepted: 22 February 2019
DOI: 10.1111/eulj.12317
Eur Law J. 2019;25:251272. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 251
The notion that European law had been constitutionalised was originally launched in 1981 by the American legal
scholar Eric Stein.
2
In the mid1980s, a major research project at the Department of Law of the European University
Institute (EUI) led by the Italian Professor Mauro Cappelletti, together with a young Joseph H. H. Weiler, further devel-
oped Stein's original idea into a broader explanation of integration through law.
3
In his doctoral thesis and later pub-
lications, Weiler argued that constitutionalisation through ECJ case law from the mid1960s had transformed European
law into a binding legal order with directly effective legal norms, supported by strong enforcement mechanisms.
National governments tacitly acquiesced to this development because there had been a certain balance between
law and politics in the European Community (EC) ever since the Luxembourg compromise of 1966 had granted national
governments an informal veto right in the legislative process. Weiler emphasised that there was no direct causal link
between the two spheres of law and politics, but he nevertheless maintained that there was a nexus in which develop-
ments in one sphere influenced the other.
4
When the Single European Act (SEA) in 1986 introduced majority voting for
Single Market legislation, Weiler wondered if the result would be that national governments would curb the compe-
tences of the ECJ and limit judicial influence on the integration process.
5
With the renewed success of European inte-
gration in the last half of the 1980s and early 1990s, Weiler's explanation of the role of European law in the integration
process became mainstream in European studies. Therefore, it was only natural that a new young generation of Amer-
ican political scientists, fascinated by the revival of Europe at the end of the Cold War, would take Weiler and the inte-
gration through lawexplanation as the starting point of their own inquiry into European law.
6
Drawing on old disciplinary debates within political science, the new generation of American political scientists
translated the notions of constitutionalisationand integration through lawinto a neofunctional theory, claiming
that legal integration constituted a progressive and selfreinforcing dynamic of European integration fuelled by eco-
nomic and social interests.
7
Competing explanations offered a new degree of precision about just how integration
through lawworked. Alec Stone Sweet and Thomas L. Brunell argued, based on largescale quantitative research,
that the litigation of firms seeking trade liberalisation developed into a virtuous circle of legal integration. The case
law of the ECJ, which generally favoured liberalisation, was codified by Council legislation facilitating further
liberalisation and, in turn, more litigation.
8
In contrast, Karen Alter focused on how lower national courts cooperated
with the ECJ in developing the European legal order in a power struggle against national courts of last instance.
9
Political scientists, such as Stone Sweet and R. Daniel Kelemen, tended to dismiss Weiler's fear of a backlash of
2
E. Stein, Lawyers, Judges and the Making of a Transnational Constitution(1981) 75 American Journal of International Law,127. Eric Stein was close
friends with one of the key actors behind the introduction of a constitutional interpretation of European law, Michel Gaudet, who was the director of
the legal service of the Commission from 1958 to 1969. Stein was allegedly present in the offices of the legal service when the famous position of the legal
service in the Van Gen den Loos case was discussed in 1963. For a biographical history of Stein and his relation with Gaudet, consult A. Boerger, At the
Cradle of Legal Scholarship on the European Union: The Life and Early Work of Eric Stein(2014) 62 American Journal of Comparative Law, 859892.
3
Weiler was the de facto manager of the Integration through Lawproject. The project compared the American federal experience of legal integration with
the EC and produced a multivolume publication. For the first historical analysis of the project based on unique primary sources drawn from the private
archive of Cappelletti, see R. Byberg, The History of the Integration through Law Project: Creating the Academic Expression of a Constitutional Legal Vision
for Europe(2017) 18(6) German Law Journal, 15311556.
4
J.B. Cruz, Joseph Weiler and the Experience of Law, in M.P.Maduro and M. Wind (eds.), The Transformation of Europe: TwentyFive Years On (Cambridge
University Press, 2018), 193205 and S.K. Schmidt, The European Court of Justice and the Policy Process: The Shadow of Case Law (Oxford University Press,
2018), 135148, at 142143.
5
J.H.H. Weiler, TheTransformation of Europe(1991) 100 Yale Law Journal, 2403, 24262430 and J.H.H. Weiler, A Quiet Revolution: The European Court
of Justice and its Interlocutors(1994) 26(4) Comparative Political Studies, 510534.
6
For an example of how Joseph Weiler and the Integration through Lawproject inspired the new, young generation of American political scientists, see K.
Alter, On Law and Policy in the European Court of Justice: An American Perspective, in H. Koch, K. HagelSørensen, U. Haltern and J.H.H. Weiler (eds.),
Europe: The New Legal Realism (DJØF, 2010), 111.
7
A.M. Burley and W. Mattli, Europe before the Court: A Political Theory of Legal Integration(1993) 47(1) International Organization,4176.
8
A.S. Sweet and T.L. Brunell, Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community(1998) 92(1)
American Political Science Review,6381; A.S. Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000), and A.S. Sweet
and T.L. Brunell, Constructing a Supranational Constitution,in A.S. Sweet (ed.), The Judicial Construction of Europe (Oxford University Press, 2004), 45108.
9
K. Alter, National Courts: Explaining National Court Acceptance of European Court Jurisprudence: A Critical Evaluation of Theories of Legal Integration,in
A.M. Slaughter, A.S. Sweet and J.H.H. Weiler (eds.), The European Court and National CourtsDoctrine and Jurisprudence: Legal Change in Its Social Context
(Hart Publishing, 1998), 227252 and K. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001).
252 RASMUSSEN AND MARTINSEN

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