With Margaret McCown
In the previous chapter, we 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. We also provided evidence in support of our contention that, under the Court's tutelage, negative integration (the removal of barriers to transnational exchange) provoked, and helped to organize, positive integration (the development of common European policies to regulate transnational exchange). Here, we provide 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.
It should come as no surprise that traders influenced, disproportionately in comparison to other private actors, the early development of the legal system. The Treaty prioritized the construction of a common market for goods, through rules that prohibited tariffs, quotas, discriminatory taxation, and other charges, as well as less obvious protectionist policies. Just as important, supremacy, direct effect, and related doctrines, once accepted by national courts, made it possible for private actors to activate the legal system in order to enhance the effectiveness of these same rules. Traders and producers had both the incentive and the resources to litigate; and trade litigation quickly generated much of the context for legal integration.
In this chapter, we assess the impact of adjudicating the free movement of goods provisions of the Treaty of Rome on integration and supranational governance. Although findings for the domain as a whole are reported, our focus is on the problem of non-tariff barriers, as governed by Arts. 28-30 (EC). No other part of the Treaty of Rome has been more implicated in the ongoing attempt to define the relationship between the scope and authority