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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 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.

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.

The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.

EU membership and parliamentary sovereignty. The Schuman Plan and supranationalism. The United Kingdom's early attempts to join. The 1972 debates. The 1975 referendum. The Single European Act and its incorporation into domestic law. Factortame and the destruction of parliamentary sovereignty.

This chapter analyzes European politics during the period following World War II. A process of supranational integration has gradually aggregated into a common institutional framework, now called European Union, which combines confederal and federal, intergovernmental and Community institutional properties. The growth of European supranationalism, the institutional structure of the EU, the judicial order of supranational EU, and the supranatural EU as a democratic policy are discussed.

This chapter addresses the question of the constitutionalization of the EU. It shows that similarities and dissimilarities between the constitutionalism of the EU and that of America, along three levels of analysis. It discusses in detail the features of the CT signed in Rome in October 2004, stressing its coherence with the compound nature of the EU. Finally, the chapter deals with the contested process of its ratification.

The Community system is not based on separation of powers but on representation of interests. Each European institution is the bearer of a particular, national or supranational interest, which it strives to protect and promote. This makes the European Community a latter-day version of mixed government. The principle of institutional balance, typical of mixed government, entails the preservation of the relative position of each interest, and of the institution which represents it. This key principle, combined with the Commission’s monopoly of agenda setting, has become a serious obstacle to institutional innovation and policy learning in the EU.

Provides basic data on comitology and introduces the normative concerns voiced by the EP. Responding to the inter‐institutional debate and the Commission's proposal concerning the reform of comitology, the chapter proceeds by discussing comitology in the context of supranational governance in general. It is argued that convincing normative justifications must take account of the distinctive nature of the European polity. One way of formulating such a justification is provided by the concept of deliberative supranationalism. This concept corresponds to theoretical interpretations emphasizing the sui generis nature of the EC. It assumes that the legitimation of governance within constitutional nation‐states remains inevitably one‐sided and parochial. Deliberative supranationalism, in this regard, respects the member states’ constitutional legitimacy, while at the same time clarifying and sanctioning the commitments arising from its interdependence with equally democratically legitimized states, and with the supranational prerogatives that the institutionalization of this interdependence requires.

Chapter 4 goes one step further and explores actor‐level supranationalism in the Commission services. The transformative clout of the Commission is assessed by the extent to which seconded national experts (SNEs) adopt a supranational role perception. OLS regression analyses reveal that actor‐level supranationalism among SNEs reflect (a) processes of re‐socialization inside the Commission, (b) the organizational composition of the Commission, and (c) organizational in compatibilities between the Commission and domestic government institutions. This chapter does not report robust evidence of pre‐socialization of SNEs outside the Commission. In sum, Chapter 4 argues that the Commission is a ‘hothouse’ for supranationalism, and challenges a core claim of Hooghe (2005) that socialization of Commission officials mainly occur at the national level and not inside the Commission apparatus.

Ulrike Liebert analyses the dialectics of national intellectual discourses on Europe from the perspective of the controversial issue of democratic legitimacy. She scrutinises the contents of national intellectual contributions to this debate during the most recent phase of contentious debate over European political development, from 2001 to 2009. Liebert argues that European democracy debates oscillate between a communitarian vision that cherishes democracy in collectivist terms and a liberal vision that celebrates diversity, individual rights and legal constitutionalism. Echoing the normative triangle presented in the introduction, she then considers “European demoi-cracy” and “constestatory democracy” as innovative proposals that aim to square the circle of unity and diversity. Here, the third way is not between sovereigntists and supranationalists; rather, it is between both of these seen as communitarians on one hand, and the liberal tradition on the other.

This chapter first challenges the nexus between constitutionalism and nationhood, arguing that like the nation states, which are also the outcome of integration processes merging regions into states, the EU must accommodate difference and that until now she does so by veiling constitutionalism. It then argues that the current problems of the Union resulting from the rejection of treaty revisions stem from the citizens' lack of trust in organs of supranational and national representation, and that this wont is fuelled by the colliding systems of representation simultaneously based on supranationalism and on intergovernmentalism. It discusses the citizens' ambivalences regarding their trust in European institutions as they surface in public opinion polls, and interprets them as a misfit of expectations and results of European politics. Finally, it discusses the democratic potential offered by the Treaty of Lisbon to bridge the gap between representatives and represented through a combination of enhanced parliamentarism and citizens' involvement. Despite all the shortcomings and paradoxes created by the IGC, the ‘Treaty of Parliaments’, it is argued that it would indeed mark a significant turn in European constitutionalism.

This concluding chapter refocuses on two sets of issues which highlight the competing approaches to European integration: the tension between intergovernmentalism and supranationalism, and that between regulation and deregulation. These competing visions have resulted in a European Employment Strategy which is itself an uneven synthesis of rival, yet overlapping, policy discourses. That the attempted synthesis is uneven is evidenced by the dominance of economic policy discourses, which emphasise labour market efficiency and flexibility, over social policy discourses which have been traditionally concerned with employment protection and social protection. Furthermore, the Employment Strategy has exposed tensions between the adoption of minimal regulatory standards at EU level, permitting regulatory competition between Member States (negative integration), and centralised harmonisation through common European policies to shape the conditions under which markets operate (positive integration).

This chapter examines the EU's competences in matters of commercial policy, which formed the basis in the original EEC Treaty for external action. It analyzes turf battles, mostly between the Commission and the Council, and the case law and treaty amendments they gave rise to. This is done from a historical perspective, in the sense of discussing both internal and external events which throw light on how the law on trade policy powers developed. The chapter also shows the significant political dimension of these legal battles, so closely interwoven with the classic struggle between supranationalism and intergovernmentalism. In fact, they may be the epitome of this struggle, because of the potent mix of external relations, exclusive competences, and qualified majority voting — a threesome of political sensitivities.

This chapter identifies the widespread practice of judicial review of law and policy as a potential failure of public law, particularly on democratic grounds. It considers arguments that this democratic problem is exacerbated in respect of supranational courts such as the European Court of Justice and European Court of Human Rights, given that they are not embedded in the polity or political community. However, a closer look at the practices of these courts and, more importantly, their relationship with domestic courts, reveals that supranational judicial review is not as unilateral or authoritarian as sceptics claim. Rather, the analysis undertaken in the chapter shows that interaction between domestic and supranational courts opens up a recursively dialogical space in which national administrations are compelled to justify particular policy choices in response to supranational judicial decisions. In this way, supranational courts force states to ‘look again’ at domestic policy choices, particularly in the interests of individuals or groups such as the elderly, transsexuals, or prisoners who may be disadvantaged or marginalized by these policy decisions or legislative interventions.

Chapter 5 examines the impact of Franco-German bilateralism on the overall evolution of the EC/EU’s basic institutional structure from the Gaullist era to the Treaty of Lisbon. Starting from opposing polity ideas, France and Germany were able repeatedly to strike institutional compromises acceptable to other Member States, leading to the hybrid institutional structure mixing supranational and intergovernmental institutional features that is characteristic of the EU. This chapter emphasizes the partial convergence of French and German constitutional preferences over time, allowing for pragmatic compromise-building. Special emphasis is placed on the Franco-German influence on the long-term evolution of the European Council and the Council system on the one hand, and on the stepwise empowerment of the European Parliament during successive treaty reforms on the other. This chapter holds that the overall evolution of the European polity cannot be explained without reference to the partial convergence of French and German constitutional preferences allowing for bilateral and European-level compromise-building on regional institutional matters.

Chapter 3 explores the dilemmas of the EU’s “split-level” legitimacy, where output and throughput operate primarily at the EU level and input at the national, and then examines the impact of politicization on both national and EU levels. The chapter begins by considering the EU’s legitimacy problems stemming from the fragmentation of its governing activities, with policies and processes located mainly at the EU level while politics remains national. While the EU has been largely successful in improving legitimacy in all three categories over time, it has faced major challenges to legitimacy. In the Eurozone crisis, citizens’ sense of EU legitimacy has suffered even if their EU-related identity may not have. The chapter then focuses on the EU’s biggest challenge, the politicization of EU governance. After briefly describing the longstanding depoliticization of EU technocratic governance, this section argues that the EU’s politicization has been increasing not only at the bottom, as evidenced by the weakening of mainstream parties to the benefit of populist challengers, or from the bottom up, as national politics influences EU actors, but also at the top, where EU actors have become more politicized. The chapter uses the debates about who is in charge or control of EU governance to show how scholars’ defense of “their” actor through “new” or traditional versions of intergovernmentalism, supranationalism, and parliamentarism actually demonstrates the EU’s increasingly political dynamics of interaction. This chapter ends with the question: Is such politicization a good thing or a bad thing?

Chapter 1 analyses, from an empirical perspective, four key aspects of the EU—its foreign policy, economic policy, internal security policy, and its ‘constitutional experiment’ of the early 21st century. In each of these areas, the relevant institutions and decision-making procedures correspond neither to the presumption that the EU is merely the sedimentation of inter-state bargains nor to the notion of an emerging pan-European superstate or integrated political system at the EU level. National representatives and national officials remain at the heart of European governance but act very differently from traditional diplomats engaged in state-to-state negotiations. Their orientation towards consensus and compromise, and the dominance of expertise over ideology as sources of authority within decision-making and as the main form of public justification, contrast with older forms of inter-state cooperation. The chapter concludes that these features of European integration can best be understood by focusing on processes of state transformation.