How the European Union's Legal System Works - and Does Not Work: Response to Carruba, Gabel, and Hankla

Abstract

In a recent paper published by the APSR, Carrubba, Gabel, and Hankla claim that the decisionmaking of the European Court of Justice (ECJ) has been constrained – systematically – by the threat of override on the part of Member States, acting collectively, and the threat of noncompliance on the part of any single Member State government. They further purport to have found strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory. Both claims conflict with prior, serious empirical research on these issues. In this paper, we reject their claims on the basis of the same data. We show that the threat of override is not credible, and that the legal system is activated, rather than paralyzed, by Member State noncompliance. In the small number of important cases in which the Member States formally sought to curb the Court and constrain future developments, they failed miserably. Moreover, in a head to head showdown between the Commission (and Neofunctionalism), on the one hand, and the Member States (and Intergovernmentalism) on the other hand, the Commission wins in a landslide. The data also provide evidence in support of a theory of the ECJ’s “majoritarian activism”: when Member States encourage the Court to “punish” defendant Member States for non-compliance, the ECJ tends to do so. In such cases, the Member States work to enable the Court, not to “constrain” it.