Toward a New History in European Law: New Wine in Old Bottles?
Egan, Michelle, American University International Law Review
Over the last thirty years, research in both law and political science has adhered to a dominant discourse that looks like a coherent set of notions about European constitutionalism and the role of law in fostering the momentum for further European integration.1 Emblematic of this traditional view are Eric Stein, Joseph Weiler, Renaud Dehousse, and Pierre Pescatore, whose work on legal integration has shaped the field of EU studies.2 At the core of this research is the question: How do we account for the expansion of judicial power in the European Union? Much of this research describes a constitutional narrative where legal decisions set the European integration process on a clear trajectory, in which it shifted from being an intergovernmental organization, transforming itself into a federal system, and subsequently advocating for a more democratic constitutional union. The so-called "judicial empowerment" thesis provided the dominant theoretical and empirical explanation for why the European Court of Justice through its legal doctrines reconstituted the jurisdictional foundation of the legal regime in Europe by expanding judicial power of courts at both the national and European level through joint allocation of legal authority to both levels.3 Through the seminal rulings, Van Gend en Loos and Costa v. ENEL in 1963 and 1964 respectively, the Court established direct effect and supremacy as core principles on which to build the subsequent case law over the next five decades.4 National courts acquiesced to this constitutional practice, referring thousands of cases to the European Court of Justice ("ECJ") for preliminary rulings concerning a wide range of socio-economic disputes. This well-known legal analysis describes an evolutionary development that seems natural and inevitable as the subsequent rationale for deepening integration through law rests on a functional premise, framed in terms of efficiency gains, in which the extension of the market, promotion of economic freedoms, and rise of regulatory agencies require legal doctrines that provide solutions to the growing complexity of "shared rule."5
However, the contraction of the European economy due to the sovereign debt crisis has raised concerns about both the effectiveness of the European Union and its constituent Member States and the institutional and administrative capacity of the political system to deal with the crisis. In the current context, European constitutionalism has become seemingly disengaged from the major debates about growth, prosperity, and competitiveness. While for some the locus of power has shifted away from Member States to central banks or international financial institutions, in terms of promoting macro-economic stability, the jural state is as central to the history of European economic integration as it is central to the history of American political development.6
In contemporary European history, courts also operate in the context of social and economic change and political volatility. The economic recession and ensuing euro crisis in Europe has generated pressure on domestic wages and prices through cuts to public spending aimed at reducing a state's debts and deficits and increasing the overall economic competitiveness and investment climate. However, judicial intervention has played a critical role in reviewing the bailouts, the so-called fiscal compact and its constitutionality, in several Member States. In Germany, petitions challenged the lack of parliamentary involvement in the passage of the "bailout" treaties. The German Constitutional Court ruled that the resulting European stabilization mechanism conforms to German budgetary sovereignty.7 By comparison, the Portuguese Constitutional Court ruled that specific austerity measures passed by the legislature breached the Constitution, as they discriminated between public and private workers.8 Courts at the national level can therefore provide a level of uncertainty to European Union efforts to address the eurozone debt crisis. …