This essay will argue how the conduct of the European Court of Justice (ECJ) supports the neo-functionalist theory of European integration. It will also show how the counter-argument of intergovernmentalism, whilst having some merits, does not explain the ECJ’s development as well as neo-functionalism. The principle-supervisor-agent (P-S-A) model will also be touched upon briefly. The ECJ was created under the same Treaty as the European Coal and Steel Community (ECSC) in 1951. The Treaty was signed by six states: Belgium, France, Germany, Italy, Luxembourg and the Netherlands.
1 Following the horrors of the two world wars, the ECSC was created in order to make it much more difficult for the two main protagonists, France and Germany, to begin any further wars. It was necessary for the ECSC to be scrutinised by an overriding Court to ensure that agreements were carried out. It was due to the failure of the League of Nations to monitor the rearmament of Germany during the interwar years, whilst her European neighbours were decommissioning their weapons en masse, which allowed the Second World War to be responsible for so much bloodshed.
2 The ECJ was set up as an independent judiciary to oversee the continued economic integration of the Member States (MS). Its role has since expanded into other areas, a subject which will be returned to later in this essay. The ECJ is limited in its function both politically and legally by MS shown by its more cautious approach taken during recent years. 3 The integration of Europe is described as being divided into three pillars. The first pillar is involved with economic integration and it is this pillar with which the ECJ is primarily concerned.
The second pillar is the formulation of a Common Foreign and Security Policy (CFSP) and thirdly, a Justice and Home Affairs (JHA) policy. These last two pillars were created within the Maastricht Treaty of 1992, broadening the scope of assimilation. The European Union was established to supersede the European Economic Community (EEC). The Treaty of Amsterdam gave more powers to the ECJ in particular with regards to the third pillar. The Court of First Instance (CFI) commenced operations in 1989 following the Single European Act (SEA) of 1986.
At first the CFI was attached to the ECJ but later became a court in its own right. Following the Treaty of Nice amendments in 2004, the ECJ transferred jurisdiction of certain direct actions brought by MS against Community institutions over to the CFI and in addition cases brought by natural and ‘legal persons’ (legal entities such as companies) are also dealt with there. In addition, the CFI examines appeals against decisions made by the European Civil Service Tribunal. 4 The ECJ is comprised of 25 judges, one from each MS.
There are also eight Advocates-General (AGs), who give opinions on cases which have a great bearing on the final result. 5 The ECJ’s jurisdiction covers direct actions and references for preliminary rulings. The two main types of direct actions are infringement proceedings against MS under Article 169 (non-compliance/implementation of Community law) and judicial review (the ECJ scrutinizes new legislation to make sure it is lawful and not contradictory to existing laws). MS and private parties can also seek annulment of Community laws under Article 173.
The ECJ also takes cases referred by national courts regarding Community law under Article 177, who make a ruling before passing their decisions back to the MS. The ECJ is therefore interlocutory in this capacity. The national courts are under no obligation to accept the ECJ’s rulings, but if they do, are bound by the Court’s decision. 6 The theory of neo-functionalism was first published by Ernst Haas (1924-2003) in 1958. The trend during these post-war years was for grand theorizing and this theory did explain the technical spillover and loyalty transfer hoped for by the integrationists.
The concept remained popular throughout the 1960’s but waned substantially during the 1970’s due to European stagnation. However, the idea has since been revived from the 1990’s until the present day due to a surge in both the widening and deepening of the European Union. There are three main areas to the neo-functionalist theory, which will form the basis of this essay. Firstly, spillover. This is the idea that integration in one area will necessitate co-operation in a new area and so on. This can be in both technical arenas as well as political.
Secondly, the involvement and upgrading of interest groups and loyalties to the supranational level. With the national level becoming increasingly less important, political actors will progressively start to think more at the European level. And finally, importance is attached to the role played by the elites, at both the national and the supranational level. 7 The theory of intergovernmentalism differs in its approach to the neo-functionalist theory by its belief in the dominance of the state.
The theory asserts that the EU is not a supranational authority but that the MS are only involved in the EU in order to pursue their national interests. Where the actors have common goals, the European countries will join together in pursuit of these goals, these being primarily economic advancement. Interestingly, this is what neo-functionalists refer to as political spillover. Intergovernmentalists argue that EU integration is a zero-sum game and that policy areas will not touch issues of national sovereignty.
However, it is clear in the case of the ECJ in particular, that national sovereignty has been surpassed on a mass scale by Community laws. It is more a theory of international relations rather than of a supranational system and is an idea based on realism. 8 Haas predicted that supranational authority would surpass the national. “Political integration is the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states.
The end result of a process of political integration is a new political community, superimposed over the pre-existing ones. “9 This has been seen in the areas of supremacy and direct effect. In 1963 in Van Gend en Loos vs. Nederlandse Administratie the Court ruled that the Treaties conferred both obligations and rights to individuals, national and Community institutions and that these rights and obligations must be upheld by national courts. This has since been known as the principle of direct effect. In 1964 in the Costa vs.
ENEL case, it was decided that where Community and national laws clashed, that Community laws could not be overruled. This is known as the principle of supremacy. 10 These two main principles form the basis of the spillover theory and can no longer be separated. 11 As nations have progressively lost sovereignty over their laws,12 this is a concrete example of neo-functionalism in action. In the Francovich case of 1991 it was decided that MS would have to apply Community laws and that failure to do so would result in them having to undergo sanctions. 13 This case began the principle of state liability.
National courts were now obliged to order MS to give compensation to individuals or other legal persons provided the case met the following three criteria: ‘(1) the directive confers rights on individuals, (2) the contents of those rights are apparent from the directive, and (3) there is a causal link between the state’s failure to implement the directive and the loss suffered. ‘ In the adjoining cases, Brasserie du Pi?? cheur and Factortame III, the Court increased their original ruling to include all cases of breach by all governmental departments, whether administrative, political or judicial.