The European Community: A Balancing Act

The European Community has traditionally been analyzed usingtheories and concepts drawn from international relations ratherthan from federalism. This article emphasizes the balance betweenthe representation of territorial and nonterritorial interestsin the Community and argues that concepts drawn from federalismcan be useful in analytically understanding the Community aslong as the American model of federalism is not viewed as thenecessary federal referent. It describes the relative importanceof the territorial dimension within the major Community institutions—theCommission, the Council of Ministers, the European Council,the European Parliament, and the European Court of Justice.The Court of Justice, it is argued, is particularly importantin giving the Community a "federal" contour. However, its methodof operation differentiates it in important ways from the Americanjudiciary. The role of territorial politics within the Communityis such that the Community's policymaking process, while unique,is certainly recognizable to students of comparative federalism.     

The Legal Obligations of Albania in the Stabilization and Association Agreement Between Albania and EU

The purpose of this article is to discuss the legal effects of the preliminary agreement between Albania and EU （European Union） on the EU and on the Albanian national legal system. The topic is ＂The Legal Obligations of Albania in the SAA （Stabilization and Association Agreement） With EU＂, and the purpose is to address the issue of harmonization and application of the obligation in the most effective way regarding the EU legislation. The method used is systematic, comparative and teleological analysis of the European and national legal systems and inherent principles and reflection on the ways of integration and coordination between them. At first the sources and features of the EU legal system will be presented. Then the application of these principles in preliminary and pre-accession agreement and through them their influence over the EU and over the national legal system of the pre-accession states will be presented. The contribution will be to argue that the preliminary agreement between EU and Albania creates legal effects both on the EU and on the national legal system of the pre-accessions countries. Their lull and effective application will be the duty of national court and legislators.     

The European Court of Justice and its political impact

This article reviews recent advances in the study of the European Court of Justice (ECJ) and its political impact at the European and member state levels. New quantitative as well as qualitative analyses show with great empirical precision that member state preferences guide the Court. The article summarises these findings, but argues that greater attention needs to be given to the (over-)constitutionalisation of EU law in order to fully capture the political impact of ECJ jurisprudence. Even if European judges are less activist than is often assumed and individual decisions are more restrained in the face of member state opposition, incrementally, case law evolves in a highly expansive fashion. And, exercising caution regarding unrealistic expectations about quasi-deterministic judicial law-making, it is found that the Court’s constitutionalised jurisprudence impacts heavily on European and member state policy-making.     

Towards an internal health market with the European court

This article examines the process through which a European healthcare dimension has been established and which has gradually extended the rights of European patients to cross-border healthcare. The integrative course has been charted by the legal activism of the European Court of Justice, whereas political voice has largely been absent. Judicial activism alone has applied the principle of the free movement of services to the policy field of healthcare, and thereby further energised the process. The political impact of this specific process of integration through law is, however, clear. The dynamic evolution of Community law has increasingly challenged the national instrument to retain health supply within own borders. Furthermore, the position of the European patient has been empowered by new individual rights, emanating from a supranational locus of rights against which the discretion exerted by national authorities can be challenged. Through the indeterminacy of European rules, open to continuous contestation and clarification, healthcare institutionalisation has proceeded and the European Union has extended into the core of the welfare state.     

Of Garbage Cans and Rulings: Judgments of the European Court of Justice in the EU Legislative Process

This article addresses the problem of how to explain the influence that rulings of the European Court of Justice (ECJ) have on the political decision-making of the EU. It will be argued that a framework developed by Kingdon which follows the garbage can model of Cohen, March and Olson is a good approach to conceptualising this influence. This framework explains political processes in terms of problems, solutions, participants and choice opportunities. In order to illustrate the argument, two famous rulings, Dassonville and Cassis de Dijon, are examined in detail. Both rulings dealt with the same subject but had different impacts on political decision-making. The difference in influence depended on the conditions of the political arena at the time the rulings were given and not on their legal contents.     

The German Federal Constitutional Court and European Judicial Politics

With its decision on the ratification of the Lisbon Treaty, the German Federal Constitutional Court (FCC) has handed over another landmark ruling on European integration. The ruling made Germany's ratification of the Treaty conditional upon the passage of a new law giving the Bundestag greater oversight of European affairs. This and the consequences of stronger parliamentary oversight for the German government and the way it conducts negotiations at European level have been the focus of most early comments on the decision. No less important, however, are the ruling's potential repercussions on European judicial politics. Coming after a series of highly controversial judgments by the European Court of Justice, the FCC's Lisbon decision is clearly meant as a warning to Brussels and, above all, Luxembourg. The decision could undermine the Court of Justice's authority and encourage non-compliance on the part of national courts, thus bringing about a constitutional crisis at European level. Alternatively, the decision may compel the Court of Justice to reconsider some of the most controversial aspects of its activist jurisprudence and to exert more restraint in the foreseeable future.     

The European Court of Justice as a Federator

The European Court of Justice is often seen as the motor ofEuropean legal integration because it "constitutionalized "the treaties establishing the European Communities (EC) throughits jurisprudence. In reality though, the Court's role has ratherbeen that of a promotor or provocateur because the member statesand the national courts have been, by and large, cooperativepartners in this process, and many of the political consequencesof the Court's rulings have been hidden in its legal language.The Court will likely be careful in the future about continuingits judicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentiallyopen to the Court's interpretation. In addition, the cooperativeattitude, by member states and the national courts, is no longerguaranteed.     

Strategic interaction among courts within the preliminary reference process – Stage 1: National court preemptive opinions

Abstract.  While scholars today are well-acquainted with how the European Community preliminary reference process works, little research has been done to investigate strategic court interaction – that is, intentional, procedural court behaviour employed to influence the substantive direction of legal evolution, within that process. The present investigation, which is part of a larger project examining such court behaviour throughout the referral process, focuses on the initial stage: the decision to refer. Within that stage lies the opportunity for national courts to stack the interpretive deck for the entire decision-making process via a preemptive opinion, the submission of which is neither required, suggested nor prohibited by written procedural guidelines. It is assumed that courts are strategic institutions that seek to maximize their policy objectives, and therefore, national courts submit preemptive opinions to obtain that goal. Such strategic behaviour, however, is influenced by intervening factors – namely the acceptance of European Court of Justice intervention, national judicial procedure, issue complexity and individual court experience.     

The judicialisation of EMU politics: Resistance to the EU's new economic governance mechanisms at the domestic level

Courts are increasingly asked to deal with fundamental political disagreements in liberal democracies. Because of its political salience and the extent of its consequences, the crisis of the Economic and Monetary Union (EMU) has exposed such fundamental disagreements between and within its member states, which numerous plaintiffs have brought before domestic courts and the Court of Justice of the European Union (CJEU). This article analyses this judicialisation of the EMU crisis. Using a database on lawsuits introduced in all 28 member states with regard to crisis measures and the new EMU governance mechanisms introduced since 2010, the authors study which actors use the courts and under which circumstances. Based on a combination of judicialisation and political economy approaches, the article develops a series of assumptions on actors’ motivations in order to understand the reasons for judicialisation in debtor and creditor countries.     

Friends of the Court? Why EU governments file observations before the Court of Justice

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.     

Europäisierungsdruck und Parteiendifferenz in den deutschen Bundesländern

Based on the 2008 Rüffert judgment by the European Court of Justice (ECJ) which dealt with wage-related compliance requirements laid out in several German federal state procurement laws (Tariftreueerfordernis) the convergence induced by Europeanization through law is being investigated. Contrary to the initial presumption of unilinear adjustment, three different responses are identifiable. Conservative-liberal governments abolish the respective regulations. Conservative governments which are subject to influence from associations representing small- and medium-sized business enterprises absorb the adjudication by a rapid adjustment consistent with the European requirements. Coalitions led by the Social Democratic Party tend to a policy expansion influenced by smaller coalition partners. They codify more rather than less social and environmental standards in policy amendments. The case study points out the persistence of political party differences in the face of Europeanization which is dependent on a sufficient degree of programmatic incongruence as well as on the plurality of European law.     

Judicial Europeanisation: The Case of Zambrano in Ireland

The Court of Justice of the European Union is an important motor of integration and is said to be particularly strong in those cases where the Council shows an inability to act. What is the relevance of the Court to social Europe? Europeanisation studies analyse how member states change due to European integration. Judicial Europeanisation is a topic that is under-explored in the literature. Using a case-study approach, this paper analyses the Zambrano case, one of the most notable recent cases of judicial activism of the CJEU with regard to EU citizenship rights. Although the literature often assumes that member states only reluctantly embrace the requirements of case law, the Irish government immediately obliged its administration to implement the required changes. Analysing this case in greater detail and comparing it to the responses of several other member states promises to shed some light on the under-explored question of how Europeanisation through case law proceeds, and what the Court may contribute to social Europe.     

Policy Entrepreneurship,Policy Opportunism,and EU Conditionality: The AKP and TÜSİAD Experience in Turkey

This article examines the relationship between European Union (EU) conditionality for membership and policy entrepreneurship in a candidate country. In Turkey, EU conditionality opened a window of opportunity for policy reform by lowering the political costs of controversial reforms. The study demonstrates that the Justice and Development Party (AKP) and the Turkish Industrialists' and Businessmen's Association (TÜS?AD) responded to a window of opportunity by advocating a series of reforms that represented a bold challenge to the traditionally reform‐averse and Euro‐skeptic political culture in Turkey. The study finds a difference in the duration of both actors' commitment to reforms. To explain this difference, we distinguish between policy entrepreneurs, who are actors with a long time horizon, and policy opportunists, who are actors with a short time horizon. The policy implication of this finding is that the European Commission's expectations of the AKP government to deliver the necessary reforms may be too optimistic.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

How the European Union constrains the state: Multilevel governance of taxation

This article challenges the common assumption that the European Union (EU) has little power over taxation. Based on a comprehensive analysis of EU tax legislation and European Court of Justice (ECJ) tax jurisprudence from 1958 to 2007, the article shows that the EU exerts considerable regulatory control over the Member States' taxing power and imposes tighter constraints on Member State taxes than the American federal government imposes on American state taxation. These findings contradict the standard account of the EU as a regulatory polity that specialises in apolitical issues of market creation and leaves control of highly politicised core functions of government (defence, taxation, social security, education, etc.) to the Member States; despite strong treaty safeguards, national tax autonomy is undermined by EU regulation.     

Polanyi in Brussels or Luxembourg? Social rights and market regulation in European insurance

The decision of the Court of Justice of the European Union to ban sex discrimination in insurance has shown the potential reach of the principle of non‐discrimination. This paper discusses the different positions taken by participants in the policy process leading up to the decision, in order to reveal the potential and limitations of non‐discrimination as the basis for market‐regulatory social policy. It is shown that the European Commission's initial support for prohibiting insurance discrimination faltered with the realization that the measure would have little efficacy as a distributive social policy. It was left to the Court to assert that non‐discrimination rights are constitutive for European markets, regardless of their functional and instrumental limitations. The Court's focus was on the market‐integrative potential of rights as sources of norms for the conduct of insurance relationships. It is argued that this form of constitutive regulation is distinct from distributive social policy as it does not require that outcomes are egalitarian, but, rather, that the processes governing market relations should respect fundamental rights.     

A European Security Policy? The Attitudes of Candidates for the European Parliament*

It has been argued that the credibility of the American nuclear deterrent is declining in Western Europe. Whether this is true or not, it seems clear that support for the NATO alliance had reached a remarkably low level among Western European political elites as the 1970s drew to a close. One possible alternative to continued reliance on the Atlantic Alliance would be for Western Europe to develop its own independent defence capabilities. Certainly, in terms of economic and technological resources, this option should be within reach of an integrated European Community. And indeed there seems to be widespread support among European political leaders for the principle of having Western Europe play a more independent role vis-à-vis both superpowers. But there is no clear consensus in favour of the increased defence expenditures that such a policy would entail. Nor is there a consensus in favour of developing a unified West European security system inside or outside the institutional framework of the European Community. Our evidence in support of these conclusions is based on interviews carried out with candidates for the European Parliament in all nine member countries during the months immediately preceding the first direct elections in June, 1979.     

The Strange Story of Judge Robert Bork and a Vacancy on the United States Supreme Court

President Reagan's nomination of Judge Robert Bork to the Supreme Court was expected by most people to lead to confirmation. It did not. This article examines the special importance of the vacancy created by Justice Lewis Powell's retirement, the philosophical debate which the nomination generated, the political and strategic calculations of the actors involved (especially the unprecedented level and nature of interest group involvement) and the performance of Judge Bork himself during the congressional hearings. It posits a multi-causal explanation. The importance of the episode, however, lies less in what it tells us about the Supreme Court appointment process and more in what it tells us about the current unsatisfactory condition of executive-legislative relations in a political system predicated on the separation of powers.     

The Success of the Regionalist Parties in the 2014 Elections in Belgium

In May 2014, and for the second time in her political history, regional, federal and European elections were organized simultaneously in Belgium. In the direct follow-up of the sixth state reform, which increased the powers and autonomy of the Belgian Regions and Communities, these elections were crucial for the future of the country and for the multi-level coalition formation at the regional and federal levels. The political campaign was dominated by socioeconomic issues and demands for further autonomy, particularly in the Flemish region. Regional electoral results confirmed the success of the regionalist parties in Flanders, but also in Brussels and in the German-speaking Community. These successes allowed regionalist parties to enter all regional and federal governments—often as the dominant party—with the exception of the Walloon and the French-speaking Community cabinets.     

The Limits of Judicial Desegregation Remedies after Missouri v. Jenkins

How far can federal courts go to remedy unconstitutional segregation?In Missouri v. Jenkins in 1990, the U. S. Supreme Court appearedto add new taxing powers to the existing tools already availableto the judiciary. By a 5–4 vote, the Court affirmed court-orderedtaxation to fund an elaborate and expensive desegregation planfor the Kansas City, Missouri, School District. This articleexamines that decision, how it developed, what it said, howit was received, and, most important, what its long-term significancemay be. We argue that the "new" judicial taxing authority sanctionedin the decision may not prove nearly as important as at firstanticipated In the long run, Missouri v. Jenkins may prove mostsignificant for the questions about desegregation remedies raisedby Justice Anthony Kennedy in a dissenting opinion. Those questionscould presage a more skeptical Court outlook on substantiveschool desegregation remedies, at least where those remediescall for additional public funding, as well as greater Courtdeference to the outcomes of state-local political processes.