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This chapter examines the impact of EU enlargement on the Translation Services of the Court of Justice of the European Communities. The Translation Service is already struggling with stagnating resources and an ever-increasing workload. Eastward enlargement will not only amplify existing problems, but create new ones.

European Union governments have delegated judicial powers to the European Court of Justice primarily to monitor national compliance with EU law and to solve problems of incomplete contracting, and they have granted the Court extraordinarily wide discretion to do so.

Member‐state principals enjoy a comparatively small range of control mechanisms vis‐a‐vis the ECJ (e.g. the power of appointment, legislative reversal of Court judgments, and unilateral non‐compliance with those judgments). The Court's broad discretion has allowed it to pursue an integrationist agenda with little regard to the preferences of powerful member states or to the likelihood of legislative overruling. In response to such judicial activism, however, EU member governments have recently been more reluctant to delegate extensive new powers to the Court, which enjoys no jurisdiction in the area of Common Foreign and Security Policy and only partial jurisdiction in the area of Justice and Home Affairs.

The evolution of the European Community (EC) towards a supranational constitution is charted by combining three different perspectives. First, an examination is made of the major features of the integration process since 1959, which argues that the European market and polity developed symbiotically, as the activities of economic actors, organized interests, litigators and judges, and the EC's legislative and regulatory organs became linked, to create a self‐sustaining, dynamic system. Second, the ‘constitutionalization’ of the treaty system is investigated, and the activities of the European Court of Justice (ECJ) surveyed; among other things, constitutionalization secured property rights for transnational market actors, expanded the discretionary powers of national judges, and reduced the EC's intergovernmental character. Third, the relationship between the ECJ and the national courts is considered, focusing on how intra‐judicial conflict and cooperation have shaped the production of specific constitutional doctrines; through these ‘constitutional dialogues’, the supremacy of EC law was gradually achieved, rendering it judicially enforceable. Overall, the chapter situates the development of the European legal system within the overall process of European integration.

The sources and consequences of constructing a supranational constitution in Europe are traced. The relationship between private litigants, national judges, and the European Court of Justice has been central to this process. Thus, the ECJ fashioned a judicially enforceable constitution out of international treaty law—a unique achievement that is shown to have fundamentally transformed the European polity in the process in a multitude of ways.

This chapter analyses the European Court of Justice case-law on State liability with particular reference to the Opinions of the Advocates General. The chapter begins by examining Advocate General Mischo's Opinion and the European Court of Justice's judgment in Francovich with reference to the pre-Francovich case-law. Second, Advocate General Léger's Opinion in the Lomas case and Advocate General Tesauro's Opinions in the Brasserie du Pêcheur/Factortame III, ex parte BT and Dillenkofer cases are analyzed in the context of the origin and nature of the State liability principle under Community law and the conditions of liability for legislative, administrative and judicial failures of the State. Third, a selection of the subsequent Opinions and European Court of Justice judgments are considered, focusing in particular upon those which have helped to refine the conditions of liability. The chapter concludes with an appraisal of the Advocates General's contribution to the creation and development of this principle of Community law.

The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.

The ability of supranational agents such as the European Commission and Court of Justice to influence policy outcomes in the European Union varies as a function of the control mechanisms established by member governments to limit supranational discretion. Examines three cases of market liberalization representing a range of control mechanisms, in the areas of external trade (negotiation of the Uruguay Round), competition policy (the De Havilland merger decision) and the free movement of goods within the Union (ECJ jurisprudence from Cassis de Dijon through Keck). Taken together, these three case studies suggest that the Commission and the Court have indeed been activist in their mission to establish a single European market, but also that their successes have been limited as a function of the control mechanisms established by member governments to control their discretion.

The ability of supranational agents such as the European Commission and Court of Justice to influence policy outcomes in the European Union varies as a function of the control mechanisms established by member governments to limit supranational discretion. Examines three cases of market regulation representing a range of control mechanisms, in the areas of social regulation (the 1993 Working Time Directive), regional policy (the 1988 and 1993 Structural Fund Regulations) and equal pay for men and women (ECJ jurisprudence from Defrenne through Barber). Taken together, these three case studies suggest that the Commission and the Court have indeed been activist in their mission to establish regulations to govern the single European market, but also that their successes have been limited as a function of the control mechanisms established by member governments to control their discretion.

The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.

Provides an introduction to the book by explaining its origin, purpose, approach, and structure. The first section presents the generic question posed by the book: how is a particular mode of governance, the judicial mode, consolidated as a stable set of practices; it explains that the approach taken combines three strains of theory – theory on judicialization and governance, on the courts as commitment devices, and on the dynamics of judicial rulemaking and precedent. The second section, European Integration and the Legal System, indicates that the book expands on previous efforts to elaborate and test a theory of European integration, and shows that its primary focus is on the impact of adjudicating European Community law on the institutionalization of the European Union (EU), rather than on the impact of EU law on national legal systems. The third section, Determinants of Judicial Discretion in the EU, looks at the question of how the European Court has been able to have such an impact on the course of European integration and the work of the national courts. The fourth section, Precedent and the Path Dependence of Legal Institutions, focuses on why legal institutions tend to develop in path dependent ways; it begins by conceptualizing precedent, and then attempts to show how legal systems can develop in path dependent ways, and discusses how the book goes about analysing precedent in Europe. The last two sections look at the case selection and data used in the book and give a brief outline of its structure.

This chapter focuses on Advocate General Francis Jacobs and his contributions to intellectual property law. Jacobs was appointed Advocate General in 1988, at a time when the European Project had just been restarted with the adoption of the Single European Act and the establishment of the Court of First Instance. He retired in December 2005, making him the second longest holder of the office. During his 17 years in office he delivered over 500 Opinions. The chapter begins with a brief resume of the case law on intellectual property rights prior to his appointment; consideration is then given to the Opinions he delivered on the relationship between the EC Treaty rules on competition and free movement and the exercise of intellectual property rights. Finally, the Opinions he delivered in cases where interpretation questions were raised in respect of the Trade Mark Directive and the Trade Mark Regulation are examined.

The member states of the European Union have delegated functions to the Commission and the Court of Justice, which correspond closely to the functions predicted by principal‐agent models; delegation to the European Parliament, however, fits poorly with such models, and appears to be driven primarily by concerns about democratic legitimacy. Turning from delegation to the subsequent activities of supranational agents, the evidence suggests that the EU's supranational agents generally act as unitary actors with a preference for further integration, and that the discretion of these actors to realize their preferences varies systematically with the institutional control mechanisms established by member governments. Looking beyond the European Union, the increasing delegation of executive and judicial powers to international organisations, secretariats and tribunals calls for further study using the tools of principal‐agent analysis. Such international delegation promises significant benefits to participating states, but also raises normative concerns about democratic accountability.

Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.

Maurice Lagrange was appointed Advocate General in 1953 and retired in 1964. He delivered over 60 Opinions in a period of 10 years, covering a wide range of issues. This chapter focuses on the Opinions delivered by Advocate General Lagrange on the admissibility of direct actions before the European Court of Justice brought by undertakings, and on the scope of new procedures introduced by the EC Treaty which have played a significant role in creating and sustaining a uniform Community legal order (Article 226 action and Article 234 preliminary ruling).

An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.

Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has supported trade and commerce in determining whether national legislation is protectionist or serves a legitimate function in promoting health, safety, and other public policy objectives. Analogies with the US are also discussed, particularly in promoting interstate commerce by addressing trade discrimination, and in developing legal principles to balance sovereign state powers with the need for integrated markets. The central argument is that a common framework of market rules has been pursued within a setting of well‐defined legal and judicial mechanisms, which have also provided mechanisms of enforcement and compliance with treaty goals. Of central importance is that legal reasoning shifted the focus of market integration from harmonization to mutual recognition as a key trade strategy to integrate markets. The role of law has been critical in sustaining a market economy, and case law shapes both states and markets, determining the constitutional limits to state intervention in markets and the level of government at which regulation is most appropriate and legitimate through legal mechanisms of non‐discrimination, balancing standards, and proportionality.

This chapter focuses on the effort to translate the judicial dimension of the postwar constitutional settlement into supranational form. The chapter initially summarizes the critical role played by the European Court of Justice (ECJ) in the integration process. The focus of the chapter, however, is on the national high courts and their role in legitimizing European integration from the perspective of the postwar constitutional settlement. As this chapter shows, the national high courts have been caught between two competing tendencies: first, between the 1960s and the 1980s, the tendency toward strong deference to the political choice in favor European integration; and second, since the 1990s, with the German Federal Constitutional Court (Bundesverfassungsgericht) at the forefront, the desire to limit that strong deference in their Kompetenz-Kompetenz jurisprudence. This chapter revises conventional understandings of that latter jurisprudence by showing its foundations in normative principles which were central to the postwar constitutional settlement of administrative governance on the national level, notably delegation and mediated legitimacy. This grounding suggests an idea of European governance as less sui generis than normally supposed. Rather, it is seen as a new dimension of the diffusion and fragmentation of regulatory power away from the historically constituted bodies of the nation-state, which remain the locus of democratic and constitutional legitimacy in the European system.

To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This second paper, which was originally published in the American Political Science Review in 1998, employs econometric and other modes of statistical analysis as well as qualitative ‘process tracing’ to evaluate specific causal propositions about how European Community (EC) integration and the construction of the European legal system (as enforced by the European Court of Justice) have proceeded. The research design constitutes a mixed means of testing: (1) deductive derivation of hypotheses from materials developed in prior comparative research, (2) collection of data to operationalize the theorized variables, (3) testing of the hypotheses through quantitative data analysis, and (4) cross-checking of these results and exploration of other theorized relationships or dynamics (qualitatively). The research leads Stone Sweet and Brunell to propose a theory of European legal integration (i.e. the process by which Europe has constructed a transnational rule-of-law polity), which integrates three interdependent causal factors: contracting among individuals, third-party dispute resolution, and the production of legal norms. The theory is tested, with reference to the EC, in two stages: first, the construction of the legal system is explained and the relationships between the three key variables are analysed over the life of the EC; second, the impact of the operation of the legal system is examined on governance (i.e. on policy processes and outcomes) at both the national and the supranational levels.

Proposes and tests a theory of legal integration as a process by which a supranational legal system has been constructed in Europe, centred on the European Court of Justice. It argues that legal integration has been driven by the emergence and consolidation of specific causal linkages between three factors: transnational exchange, triadic dispute resolution, and the production of legal rules. Once forged, these linkages generate a self‐sustaining dynamic that serves to expand the scope of supranational governance and to accelerate the institutionalization of existing supranational policy‐making authority at the expense of intergovernmental arrangements. The chapter begins by elaborating the principal‐agent model of delegation that is supported by the intergovernmentalist approach, and provides a theoretic explanation of the process by which bargaining between the principals (national governments) is replaced by decision‐making within the agents (supranational organizations). The application of the theory is tested against two policy domains—the free movement of goods and the provision of social services.