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Alter_WhoAreTheMastersOfTheTreaty

Alter_WhoAreTheMastersOfTheTreaty - Who Are the `Masters of...

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Who Are the ‘‘Masters of the Treaty’’?: European Governments and the European Court of Justice Karen J. Alter Few contest that the European Court of Justice (ECJ) is an unusually in uential international court. 1 The Court can declare illegal European Union (EU) laws and national laws that violate the Treaty of Rome in areas traditionally considered to be purely the prerogativeof nationalgovernments,includingsocial policy, gender equal- ity, industrial relations, and competition policy, and its decisions are respected. Nev- ertheless, there is signi cant disagreement about the extent of the Court’s political autonomy from member states and the extent to which it can decide cases against their interests. Legal and neofunctionalist scholars have asserted that the ECJ has signi cant autonomy by virtue of the separation of law and politics and the inherent legitimacy of courts as legal actors, and that it can use this autonomy to rule against the interests of member states. 2 Such an analysis implies that virtually any court, international or national, can decide against a government’s interests because it is a legal body. 3 Neorealist analysts have argued that member states have sufficient control over the Court so that it lacks the autonomy to decide against the interests of powerful mem- ber states. 4 This implies that the ECJ, as an internationalcourt, is particularly depen- dent on national governments and must bend to their interests. Research for this article was funded by the Program for the Study of Germany and Europe at the Center for European Studies, Harvard University. I would like to thank the anonymous reviewers of this article, and Suzanne Berger, Brian Hanson, Ken Oye, Paul Pierson, Mark Pollack, and Anne-Marie Slaughter for their helpful comments on earlier drafts. 1. This article discusses the European Court of Justice, the supreme court of the European Union located in Luxembourg.The European Union was known as the European Community during most of the period discussed in this article. The law of the European Union was and usually is still considered European Community (EC) law. I will refer to the European Union and its legal system by its current title, but retain the reference to its law as EC law. 2. See Weiler 1991; and Burley and Mattli 1993. 3. This generalization follows from the logic of the argument, with an important caveat that this argu- ment applies to liberal democracies where the rule of law is a political reality. If domestic courts in general lack political authority, an international court is also likely to lack political authority; Burley 1993. 4. Garrett and Weingast 1993. International Organization 52, 1, Winter 1998, pp. 121–147 r 1998 by The IO Foundation and the Massachusetts Institute of Technology
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Both accounts contain signi cant elements of truth. The legal nature of ECJ deci- sions affords the Court some protection against political attacks, but member states have signi cant tools to in uence it. Neither theory, however, can explain why the
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