How the European Legal System Works: Override, Non-Compliance, and Majoritarian Activism in International Regimes
42 Pages Posted: 19 Mar 2012
Date Written: March 8, 2011
A striking feature of European integration and governance over the past fifty years has been the crucial role played by the European Court of Justice (ECJ). The ECJ is a Trustee court, rather than a simple Agent of the Member States, with the power to determine the scope of its own authority. In a recent paper, Carrubba et al., having examined the ECJ rulings on some 3,176 legal questions rendered over an 11-year period, claim that the decision-making of the European Court of Justice (ECJ) has been constrained - systematically - by the threat of override on the part of Member State Governments, acting collectively, and the threat of non-compliance on the part of any single State. They also purport to have found strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory. We undertake original analysis of the same data. We conclusively demonstrate that the threat of override is not credible, and that the legal system is activated, rather than paralyzed, by noncompliance. We also explore what happened when MSG sought to override the Court - they failed - and organize a contest between the rival theories. In a head-to-head showdown, Neofunctionalism wins in a landslide. Finally, the analysis provides statistical support for the view that the ECJ engages in majoritarian activism. When Member States urge the Court to censor a defendant State for noncompliance, the ECJ tends to do so. The conclusion draws out implications of our findings for research on the two other international regimes that exhibit effective judicial review: the World Trade Organization and the European Convention on Human Rights.
A revised and shorter version of this paper has been accepted for publication in the American Political Science Review.
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