regulators, NGOs, civic organizations, and lawyers.
Although by some estimates up to forty percent of Member
State legislation has come to be partially or fully harmonized by EU law,
the EU relies heavily on actors below the
national state to invoke these rules and pressure national governments into compliance.
In this respect, there is no more essential broker of the EU's governance capacity thanthe national judge. Without
the force of law and the authority of domestic courts, the EU would scarcely be able to govern a transnational market
spanning half a billion people and over two dozen national states.
This raises one of the great puzzles of European
integration that we revisit in this article: How did the EU's supreme court –the European Court of Justice (ECJ)
‘tucked away in the fairyland Duchy of Luxembourg’with limited resources and uncertain authority –successfully
join with national courts to fashion ‘a constitutional framework for a federal‐type structure in Europe?’
ECJ had a clear interest in cajoling national courts into enforcing EU law, why did domestic judges and governments
cooperate and gradually accept the ECJ's transformative legal doctrines?
The ‘judicial empowerment thesis’(hereafter, the JET) provided a powerful answer to this puzzle. Developed by
scholars such as Weiler, Burley and Mattli, and Alter,
the JET extended broader theories of the ‘judicialization of pol-
itics’at the domestic and international levels.
It suggested that ordinary judges in lower level national courts saw
engaging in dialogue with the ECJ and accepting its rulings as a way to expand their own powers. The linchpin to this
dialogue was a provision of the Treaty of Rome, the so‐called preliminary reference procedure, which enables even
the most humble local court to send a ‘reference for a preliminary ruling’to the ECJ to obtain an interpretation of
those EU laws relevant to the resolution of a dispute before it.
The procedure empowered ordinary national courts,
which previously lacked wide‐ranging powers of judicial review and might regularly see their rulings overturned upon
appeal, because it enabled them to circumvent their national judicial hierarchy. Lower courts could now refer cases
directly to a higher judicial power in Luxembourg –an alternative judicial authority to domestic high courts, or what
Alter vividly referred to as a ‘second parent’–to challenge government policies or the jurisprudence of their supe-
Simultaneously, this procedure empowered the ECJ by providing it with a steady flow of cases and a direct
channel into national legal systems. High courts had more to lose from the ECJ's intrusion into their domestic legal
orders and were far less enthusiastic; in some cases, they ardently opposed dialogue between lower national courts
and the ECJ. However, when ordinary national courts referred cases and applied ECJ rulings, they made Community
a reality on the ground within Member States –and did so using a procedure that all governments had agreed
to in theTreaty of Rome. If higher national courts or national governments wanted to challenge ECJ decisions or their
A.M. Slaughter, A New World Order (Princeton University Press 2004); B. Eberlein & A.L. Newman, ‘Escaping the international governance dilemma? Incor-
porated transgovernmental networks in the European Union’,(2008) 21 Journal of Governance, 25; K. ALTER,Terrain, above, no. 3; T. Pavone, ‘From Marx to
Market’, (2019) 55 Law & Society Review,1.
A. Toeller, ‘Measuring and Comparing the Europeanization of National Legislation’, (2010) 48 Journal of Common Market Studies, 417.
R. D. Kelemen, Eurolegalism (Harvard University, Press 2011); A. Vauchez, Brokering Europe (Cambridge University Press, 2015).
‘Strictly speaking, Court of Justice of the EU (CJEU) refers to the entire set of EU courts in Luxembourg including both the Court of Justice (ECJ) and the
subsidiary General Court. Using the acronym CJEU to refer to the ECJ alone is improper, so we use the term ECJ instead.
E. Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’, (1981) 75 American Jounrnal of International Law,1,at1.
J.H.H. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal, 2403; A.M. Burley & W. Mattli, ‘Europe Before the Court’,(1993) 47 Interna-
tional Organization, 41; J.H.H. Weiler, ‘A Quiet Revolution’, (1994) 26 Comparative Political Studies, 510; K. Alter, ‘The European Court's Political Power’,
(1996) 19 West European Politics, 452.
M. Shapiro & A. Stone Sweet, On Law Politics and Judicialization (Oxford University Press, 2002); T. Ginsburg, Judicial Review in New Democracies: Consti-
tutional courts in Asian cases (Cambridge University Press, 2003); R. Hirschl, Towards Juristocracy (Harvard University Press, 2007); C. Davis, Why Adjudicate?
(Princeton University Press, 2015).
The procedure was outlined in Article 177 of the original Treaty of Rome, now in Article 267 of the Treaty on the Functioning of the European Union
K. ALTER,European, above, n.9, at 466, 467.
‘Community Law’was the term traditionally used to refer to law deriving from the Treaties, secondary legislation andECJ rulings. Since the entry into
force of the Lisbon Treaty in 2009, Community Law is referred to as ‘European Union Law.’
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