One how this process is best explained, and second

One
of the particular characteristics of the European Union is the high level of
legally binding mechanisms and the power its supranational Court of Justice has.

In this scenario, law has been hailed throughout the academic literature (Dehousse,
1999; Stone Sweet, 2004) as being the
motor –at least one of the main ones– of European integration. What is
often argued is that law was the main instrument of integration from the second
half of the 20th century until the 1990’s, when it took a diminished
role alongside the rise of new forms of integration and cooperation. However,
given a continued process of integration and the maintained existence of law as
an instrument in it, is is worth asking if law is still the the motor of European integration. This
paper will seek to answer this question by first, showing how has law, and especially the CJEU, have been the motors of
integration and how this process is best explained, and second by exposing how
law in fact has never ceased to be a centerpiece of integration. This will be done
through a “governance” approach (Saurugger & Terpan, 2014) which seeks to
explainin the role of the CJEU through its interactions with the other
political actors.

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To
start, there are four domains in which European integration takes place
(Terpan, 2014, p.51-57): economic, concerning mainly the establishment of the
common market and the monetary union. Political, concerning the enlargement and
strengthening of the competences of institutions, and the emergence of a
political life and a European political
community. Societal, referring to the implication of citizens and societal
groups in the construction of the union and the emergence of solidarities and
closeness within this ‘European citizenship’. Finally, juridical integration comprises
generally the set up of binding treaties by the states, the reinforcement of
effects of UE law, the constitutionalization
of the treaties, and the increase of normative production by the institutions.

Moreover, on this last domain it can be seen that EU law increasing penetrates
into national legal systems and these in turn increasingly ‘cooperate’ with EU
legal institutions.

            Give the framing of integration given above, and while the
guiding question here concerning ‘European integration’ in a broad sense, this
paper will focus mainly on juridical integration and more specifically on the
role the Court of Justice of the European Union (previously the Court of Justice
of the European Communities). This is because, somewhat tautologically, the
domain of juridical integration is the one in which the effects of law as motor
of integration can be seen. Moreover, as Terpan (2014, p.51-57) shows, legal
integration serves to further and strengthen integration in the other three
domains. Finally, the emphasis this paper will place on the role of the Court
is due to the fact that this institution is often considered to be one of the
most, if not the most, important actors in the process of legal integration.

The
CJEU is charged with guaranteeing the normative coherence of the Union by
ensuring the respect of law in the interpretation and application of the
treaties, and the unvarying application of law in all of the Union. It can be
seen then that it has both an administrative function in the workings of
institutions and actors within the EU and a constitutional function with
regards to the delimitation of competences of those actors and institutions. (Terpan,
2014, p.130-131). It is considered however that it has gone beyond those powers
and has historically gave itself the task of furthering the continent’s
integration by interpreting the treaties in favor of the stated goal of an ever
closer union.

            The Court has favored European
integration through its “activism”, a term that refers to “… a process
through which judges and judicial institutions act as policy-makers, thereby
complementing, substituting or competing with political actors.” (Saurugger
& Terpan, 2017, p.3). The Court is largely regarded as having turned the
base treaties into a sort of “constitutional charter” of the European communities
–and later of the Union– (Dehousse, 1999, p.134). By way of its innovative and
audacious rulings, the Court has managed to widen the range of action of
private and European actors in the European legal landscape, and has also
strengthened not only its own powers but also those of national judges
concerning the application of EU law (Dehousse, 1999, p.146). In this way it
has has contributed to the expansion of decisions that increasingly have been
taken by judicial authorities, thus strengthening the domain of legal integration.

When
approaching the idea of the constitutionalisation
of the European treaties, a key element in the process of the Court-driven
legal integration, there can be seen two landmark legal cases in which the
rulings of the Court have had remarkable impact on European integration. The
first one to consider is the vam Gend en
Loos ruling of 1963, which instated the doctrine of direct effect of the
Treaties’ dispositions in the national legal orders (Saurugger & Terpan,
2017, p.20). The second ruling to consider is Costa vs. ENEL of 1964, which had a remarkable impact on national
sovereignty as it instilled the superiority of the Treaty’s law over national
legal systems (Saurugger & Terpan, 2017, p.21-22). Moreover, various
rulings during the 1970’s have incorporated the protection of fundamental
rights into the European legal system and have also contributed tot the
development of European-level social policy (Saurugger & Terpan, 2017, p.29-30).

Furthermore, the case law of the Court had been used in the legislative area in
order to further economic integration by tackling barriers to the establishment
of the common market. It is the case of landmark rulings such as Dassonville or Cassis de Dijon which not only served to remove barriers to free
trade but also permitted the Court to act in new areas where it had rather poor
competence before (Saurugger & Terpan, 2017, p.29).

            Now, it is important to try to delve
into the explanations for this pro-integration activism in order to, later on,
approach the issue of legal integration in more recent times. The activism of
the Court is often explained by it’s supranational character, its independence
–from the States– and the pro-European and pro-integration approach, agenda and
will of its judges. (Saurugger & Terpan, 2014, p.64) Such approach to the
Court can be exemplified in Stone Sweet and Brunell (2012,) who explain that
the Court’s capacity to make law and to develop the European legal system in a
progressive, self sustaining way are permitted by the fact that the Court
essentially has no constraints by the Member States and that the threat of
override of a ruling, while technically possible is in fact not a credible one.

            However, it is important to nuance
such view since, as it will be shown, the integration by law set up and pushed
by the Court is made possible through it’s interactions with the actors along
with it is located, as Saurugger and Terpan (2014) do using what they refer to
as a “governance” approach. To start, it has been necessary that other actors use the Court and accept its rulings in
order to consolidate the latter’s powers. It is the case of, for example, the
use of preliminary rulings by the national courts or the use of the Court by
privates to seek fundamental right’s protection that has empowered the Court
and consolidated its place in the judicial and political system. Also, it is
the national judge who has to apply EU law, and the cooperation of these judges
with the CJEU has enabled the proper functioning of the European judicial
system (Saurugger & Terpan, 2014, p.66). Furthermore, national
jurisdictions have overall, sometimes with difficulties and resistances,
accepted the principles set by the Court in the van Gend en Loos and Costa vs
ENEL rulings (Saurugger & Terpan, 2014, p.67-68). Excluding some cases
of resistances by national constitutional courts, it can be seen that it is the
favorable conditions of the system which enable the Court to pursue to a great
extent its case law.

Another
factor that shows how the Court works within this governance system is the fact
that, regardless of the process of pressures and negotiations before the
signature of the Treaty of Rome, the signatory countries decided overall to set
up the Court and endow it with a large and constraining jurisdiction that was
linked to national jurisdictions and that sought to maintain the respect of
European law (Baquero Cruz, 2006, p.227). Aside from this, numerous transfers
of competences to the Community’s institutions in the subsequent revisions of
the treaties reflect the overall entrusting by Member States of such
institutions and their constraining judicial authority. Furthermore, as
Saurugger and Terpan argue, “Intergovernmental actors have not overruled the
Court in areas where judicial control was set out in the treaties. They have
rarely revised the treaties or legislated with the purpose of opposing the
Court’s jurisdiction. Neither have they used ‘jurisdiction stripping’ …” (Saurugger
& Terpan 2017, p.101). This is not to argue that there have not been any
resistances, nor that the legal system and the Court have no power concerning
the domains of integration, but rather that the workings of the Court –and of
law– as one of the main the motors of European integration has to be understood
as operating in an environment that permits
them to pursue and serve integration.

The
task at hand now will be to see if the aforementioned process of legal
integration has continued to be the case in more recent developments. It is
recurrently mentioned in the literature, as Saurugger and Terpan (2014)
explain, that during 1990’s there was a significant change in the activity of
the Court since it seemed to restrain itself from audacious pro-integration
rulings, and to a lesser extent in the integration process since it appeared to
veer towards new, non-legal forms of integration. Below it will be shown that
even if the role of law and the Court for European integration can be
considered to be subtler and less spectacular
than before, its is still very influential in the process of integration when
considered through the governance approach (Saurugger & Terpan, 2014, p.72).

The
prevalent view concerning the restraint of the Court argues that its rulings
have become less audacious, in the fist place, because institutional reforms by
the Single European Act and by the Maastricht treaty have limited the power of
the Court by extending the competences of Community institutions, and by
explicitly excluding from its control the areas of Justice and Home Affairs and
the Common Foreign and Security Policy. On the second place, it is argued that
there was an increase in public scrutiny and that there was no longer the
“permissive consensus”, or the public passive approval of ongoing European
integration. Third, the establishment of “new modes of governance” by the
treaty of Maastricht and developed by the Lisbon strategy of 2000, gave way to
numerous forms of soft-law, intergovernmental cooperation, like the notably the
Open Method of Cooperation (Smismans, 2011), and overall non-binding and
non-hierarchical forms of governance and integration. It is in this way that it
is argued that since the 1990’s the Court has limited its own influence
(Saurugger & Terpan, 2014, p.71-72).

However,
this view can be nuanced since it not because the Court no longer makes foundational
and existential rulings that it doesn’t exercises influence through its case
law (Saurugger & Terpan, 2014, p.72). So, in the first place, it can be
seen that from the 1990’s onwards there has been a continuing constant acting
of the Court that can be considered to be “activist”. The has been a constant
and often increasing role of claims, legal enforcement and judicial shaping of
policy in areas such as employment discrimination, free movement, and
fundamental rights. (Saurugger & Terpan, 2017, p.39). Moreover, it can be
seen that the activism of the Court takes place unevenly across different areas
over time, so during the 1990’s it is argued that even if has been more
balanced on competences it has been significantly more expansive on citizens’
rights (Baquero Cruz, 2006, p.235). In this way it can still continued to be
considerable activist and thus contributing to the continuing integration of
Europe.

Coming
back to one of the explanations for the apparent restraint of the Court, the
expansion of Community competences by the Treaty of Maastricht, there is an
important point to be considered. As Baquero Cruz argues (2006, p.238) this can
be interpreted as the Court feeling that it non longer needed to be as
expansive on competences and in filling constitutional gaps as before since
this task was at the moment being taken care through the establishment of the
Treaty. If this point would contribute to the thesis of the restraint of the
Court it, however, supports the idea of a continuing and growing process of
legal integration. Furthermore, during the 1990’s and the 2000’s there have
been significant transfers of competence and strengthening of the Community and
subsequently the Union. For example, in the Treaty of Amsterdam in 1997 signatory
states included, and ratified, a clause that openly recognized the principles
of direct effect and supremacy (Baquero Cruz, 2006, p.230). Also through this
treaty, the domain of justice and home affairs was finally incorporated into
the Union and thus placed under control of the Court. Moreover, the European
Charter of Fundamental Rights, has been incorporated into primary law by the
treaty of Lisbon thus making it enforceable by the Court (Saurugger &
Terpan, 2014, p.74). Another example is the area of economic governance, which
initially was excluded from the Courts reach but various measures taken by
Member States in 2011 and 2013, following the financial and economic crisis,
have increased the power of the Court to act in this area (Saurugger &
Terpan, 2017, p.198-199).

Overall,
what the above mentioned examples show is the fact that integration by law
under no circumstance has diminished and can still be considered to be the
motor of integration. The aforementioned transfers of competences are quite
remarkable and very telling of the fact that the Member States do not rule out –and
thus permit– the potential activism and constraining rulings from the Court in
those domains. Again, it it important to take into account the “governance”
approach in order to see, that private and public actors, notably from the
Member States, create a political and institutional environment in which the
Court can act, expand its competence, and contribute to the process of
integration.

            This paper has attempted to argue,
on one hand, that from the 1990’s onwards law and the CJEU have still been key
motors of European integration. On the other hand, it has sough to show how
that first argument is made possible through an analysis of the workings of the
Court in the process of integration through a “governance” approach that seeks
to place it within its interactions with other agents of the European political
environment. The main conclusion to raise here it that while law can be
considered to still be a fundamental motor of European integration, it can only
be such through the interaction it has with other actors in the system. The
question that would arise at this point concerns the future of European
integration and the role the law and the Court could play in it. On one hand,
certain difficulties that Europe seems face these days, such as terrorism, the
influx of refugees, and the alleged threat by Russia would push institutions
and states in the EU into further cooperation and integration. On the other
hand, recent developments concerning resistances from governments, such as
Hungary and Poland, Brexit, and the
rise of Eurosceptic parties all over Europe would be evidencing new societal
resistances to integration –similar to the end of the permissive consensus in
the 90’s–  alongside a political climate
that could lead to a more restrained role of the Court and of law in the
process of integration. As this question remains open, it is key to emphasize
one again the importance of analyzing law and the Court within its political
context in order to comprehend the role it plays for integration.