How the Legal System of the European Union Works - and Does Not Work:
Response to Carrubba, Gabel, and Hankla
Alec Stone Sweet
and Thomas Brunell
In a recent paper published by the
, Carrubba, Gabel, and Hankla claim that the
decision-making of the European Court of Justice (ECJ) has been constrained – systematically –
by the threat of override on the part of Member State Governments, acting collectively, and the
threat of non-compliance on the part of any single State.
They further purport to have found
strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory.
this paper, we reject CGH’s claims on the basis of our analysis of the same data.
We show that
the threat of override is not credible, and that the legal system is activated, rather than paralyzed,
Moreover, in a head to head showdown between the Commission (and
Neofunctionalism) and the Member State Governments (and Intergovernmentalism), the
Commission wins in a landslide.
The data appear to provide support for the view that the ECJ
engages in “majoritarian activism.”
CGH most robust finding is that when Member States urge
the Court to censor a defendant Member State for non-compliance, the ECJ tends to do so.
such cases, the Member States work to reinforce the Court’s authority, not to “constrain” it.
In “Judicial Behavior under Political Constraints: Evidence from the European Court of
Justice,” Carrubba, Gabel, and Hankla [hereinafter CGH] (2008) make three provocative claims.
First, CGH claim (436) to have developed a new methodology that solves the inference problems
afflicting all prior research.
Their approach involves evaluating the influence of
filed by Member State Governments [MSGs] and the EU Commission, on the rulings of the
European Court of Justice [ECJ].
Second, having analyzed the Court’s holdings on some 3,176
legal questions over an 11-year period (January 1987-December 1997), the authors declare that
the ECJ has been constrained by
the threat of override
on the part of MSGs, acting collectively,
the threat of non-compliance
on the part of any single MSG.
They summarize their
findings as follows (449): “Our analysis provides systematic evidence that judges at the ECJ are
sensitive to these two constraints.
Moreover, these threats have a substantively large effect on
Third, CGH revive a classic debate in scholarship on European integration,
Leitner Professor of Law, Politics, and International Studies, Yale Law School and Yale Department of Political