Assessing the transformation of Europe: A view from political science

Abstract

The Transformation of Europe (TE) is arguably the most influential paper ever published on the European Court of Justice (ECJ). Read as political science, the importance of the piece is threefold. First, it laid out a subtle, reconstructive account of the Court's ‘constitutional’ case law. This discussion quickly became a standard reference point for scholars developing new empirical research on the legal system's impact on integration. Second, Weiler described (and reflected normatively on) the steady expansion of the scope of the EU's jurisdiction, findings that would be confirmed in more systematic research to come. Third, it blended doctrinal analysis with a strategic, ‘political’ account of why two sets of actors – Member State governments and the national courts – did not destroy the process of legal integration in its infancy, though each had the power to do so. Weiler showed how the ECJ's (often conflictual) interactions with national judges had served to allocate joint authority between the supranational and national legal orders, while enhancing judicial power on both levels. The so-called judicial empowerment thesis remains a dominant approach to explaining legal integration. Third, and most important for present purposes, TE presented a theory of how the Court's doctrinal moves related to state power within the EU's system of law-making and governance. Weiler forcefully argued that the consolidation of the various ‘constitutional’ doctrines (direct effect, supremacy, pre-emption, human rights, and implied powers) had ‘radically’ reconstituted the juridical foundations of the regime, transforming an international organisation into something akin to a federal arrangement. At the same time, he stressed the fact that the Member States had resisted the move to supranationalism within legislative processes, which he conceived as majority voting in the Council of Ministers to enact EU measures to complete the common market. Spurred by this paradox, Weiler developed the following thesis: The ‘harder’ the law in terms of its binding effect both on and within States, the less willing States are to give up their prerogative to control the emergence of such law…. When the international law is ‘real’, when it is ‘hard’ in the sense of being binding not only on but also in States, and when there are effective remedies to enforce it, [State control of] decisionmaking suddenly becomes important, indeed crucial. In this account, governments had tolerated the legal transformation of the regime only because each retained a veto over important new policy.