EU constitutionalisation revisited: Redressing a central assumption in European studies

• Published date: 01 May 2019
• Date: 01 May 2019
• DOI: http://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 decision‐making 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

proto‐federal 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: Euro‐lawyers 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;25:251–272. © 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 mid‐1980s, 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 mid‐1960s 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 law’explanation 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 ‘constitutionalisation’and ‘integration through law’into a neo‐functional theory, claiming

that legal integration constituted a progressive and self‐reinforcing 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 law’worked. Alec Stone Sweet and Thomas L. Brunell argued, based on large‐scale 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,1–27. 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, 859–892.

3

Weiler was the de facto manager of the ‘Integration through Law’project. 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, 1531–1556.

4

J.B. Cruz, ‘Joseph Weiler and the Experience of Law’, in M.P.Maduro and M. Wind (eds.), The Transformation of Europe: Twenty‐Five Years On (Cambridge

University Press, 2018), 193–205 and S.K. Schmidt, The European Court of Justice and the Policy Process: The Shadow of Case Law (Oxford University Press,

2018), 135–148, at 142–143.

5

J.H.H. Weiler, ‘TheTransformation of Europe’(1991) 100 Yale Law Journal, 2403, 2426–2430 and J.H.H. Weiler, ‘A Quiet Revolution: The European Court

of Justice and its Interlocutors’(1994) 26(4) Comparative Political Studies, 510–534.

6

For an example of how Joseph Weiler and the ‘Integration through Law’project 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. Hagel‐Sørensen, U. Haltern and J.H.H. Weiler (eds.),

Europe: The New Legal Realism (DJØF, 2010), 1–11.

7

A.‐M. Burley and W. Mattli, ‘Europe before the Court: A Political Theory of Legal Integration’(1993) 47(1) International Organization,41–76.

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,63–81; 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), 45–108.

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 Courts—Doctrine and Jurisprudence: Legal Change in Its Social Context

(Hart Publishing, 1998), 227–252 and K. Alter, Establishing the Supremacy of European Law (Oxford University Press, 2001).

252 RASMUSSEN AND MARTINSEN