Governing With Judges

by Henry Farrell on January 18, 2004

Interesting times for the European Union’s Growth and Stability Pact, according to an “Economist”: story that touches on a disagreement between Dan Drezner and I. Over the last couple of years, big member states such as France and Germany have been flouting the terms of the Pact, which is supposedly binding. It’s looked as though they were going to escape any punishment for doing this.

Dan has argued “here”: and “here”: that the shambles over the Growth and Stability Pact provides evidence that the EU is just a standard supranational organization: i.e. that it’s under the control of its member states. In Dan’s words:

bq. Neither the European Commission nor the European Council seems prepared to punish France for defecting. In other words, at present the European Union, for all of its supranational characteristics, remains an ordinary international organization.

I’ve argued “here”: and “here”: that Dan’s wrong – the real evidence that the EU is not the mere plaything of its more powerful member states can be found in the rulings of the European Court of Justice (ECJ). The ECJ has succeeded in effectively ensuring the primacy of EU law over the law of the member states, which is not something that you would expect if the European Union were a simple international organization. Even big member states such as France and Germany, have complied with ECJ rulings that went against their interests.

On Thursday, the European Commission took an action in the ECJ against the member states (the Council of Ministers) for violating the terms of the Growth and Stability Pact. The _Economist_ describes this as perhaps the most important ruling that the ECJ will ever make. So, what does this say about the nature of the EU? More immediately, what’s likely to happen?

It seems to me that there are three plausible outcomes.

(1) The ECJ rules against the member states, but the more powerful member states refuse to accept the ruling, and aren’t punished
If this happens, it’s strong (and perhaps overwhelming) evidence that Dan is correct. It would show that when the ECJ makes a ruling on a subject that is of vital importance to big member states, the big member states will refuse to comply and get away with it. It would suggest that the EU’s legal framework will only be implemented when it matches the broad preferences of powerful member states. People like Walter Mattli, Anne-Marie Slaughter, Karen Alter, Alec Stone (and, rather less prominently, I), who’ve argued that EU law is binding on powerful member states, will suddenly have a lot of explaining to do.

(2) The ECJ rules against the member states, and the more powerful member states accept the ruling
This would be strong evidence that I (and the more distinguished scholars whom I rely on) am right. In a matter that touches directly on the vital economic interests of large member states, these member states will subject themselves, however grudgingly, to the power of EU law. If this happens, expect a sudden resurgence of academic interest among IR scholars in the niceties of the EU legal system.

(3) The ECJ finds some way to duck the issue, on procedural or technical grounds
Sadly for international relations scholars, this is much the most likely outcome – and the most ambiguous from the point of view of the theories that Dan and I are interested in. On the one hand, Dan could very reasonably argue that this result would show that the ECJ is not prepared to take the member states head-on, when there is a clear clash of interest, in which the court is likely to come out second best. On the other, I (and people who share my position), could point to the rather particular circumstances that the ECJ faces in this case at this time. The proposed “European Constitution”:, which is now in limbo, proposes in Article 10.1 that

bq. The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it , shall have primacy over the laws of the Member States.

This clause has received very little debate, perhaps because it simply ratifies in formal terms the standing legal doctrines of the ECJ, and (more or less) the various court systems of the member states. But if it is adopted by the member states, it will provide the ECJ with a cast-iron guarantee of judicial supremacy, and the considerable legal and political influence that goes along with that. The last thing that the ECJ wants at the moment is a large-scale political controversy over its role and competences, which might cause the member states to have second thoughts. Thus, it’s not unreasonable to expect that the ECJ will kick this case into the high grass, but will become much more activist when and if the Constitution is finally accepted and ratified. At that stage, there wouldn’t be much that the member states could do about it (they need unanimity to reverse Constitutional changes), and the ECJ would have _carte blanche_ to assume a more prominent role. This isn’t good news if you think that courts shouldn’t be in the business of making politics.



roger 01.19.04 at 12:01 am

Let’s hope Drezner is right. A suprastate run, essentially, by Central Bankers is a nightmare. The inability of the EU to show any flexibility about state spending — especially at a time of worldwide deflation, one that seems to be ending with the fall of the dollar — has materially hurt France and Germany. It’s defenders call it a corrective — which is like saying castration is a birth control method. Having prepared for inflation for the past 12 years, the EU economists might celebrate their prescience as the bill comes due for America’s super-large deficits. But that is just foolishness, showing that a stopped clock is right twice a day. Hopefully, the court will rule against France and Germany, and they will defy the court. A triumph for democracy against a judiciary that represents the interests of a very narrow technocratic elite.


can't resist 01.19.04 at 3:52 am

Between Drezner and ME–your mother overcorrected you.
Or maybe the mothers and their dutiful children have changed our grammar and the cause is lost.


Henry 01.19.04 at 4:00 am

Ummm … nope. Not that I don’t make occasional mistakes (and I’m very grateful to be corrected when I do) but my understanding is that “between [another] and I” is perfectly acceptable English, if perhaps a little Latinate and archaic. It’s the “between [another] and me” folks who are the newcomers and interlopers, to be fended off at all costs ;)


Richard 01.19.04 at 8:39 am

Point 2 is already happening in the field of corporate taxation, where considerable amounts of anti-avoidance measures and various reliefs have been ruled to discriminate unfairly between companies resident in the EU-member country, and those resident in the rest of the EU.

Something like 90% of tax cases going before the ECJ have gone in the taxpayers’ favour, going off the top of my head.


Joe Jupille 01.19.04 at 10:25 am

A fourth option might also be likely: the ECJ rules in favor of the member states in the case at hand, but establishes some general principle of law that suits development of supranationalism in the long run. It just seems that, given the attention and (related) stakes, it will be hard for the ECJ to duck the case, though it would probably rather do so.


raj 01.19.04 at 11:34 am

Preposition “between” takes the dative case.

“Me,” not “I”

On the whole, though, your analysis is excellent.


Doug 01.19.04 at 11:55 am

Henry, I think you and Dan will be able to have this debate for a long time. The US Supreme Court is often loathe to directly confront the executive, and the practical details of judicial supremacy are still sometimes contested, 210 years into the republic’s run. (An untraceable Jackson quote has sprung to mind, “Mr. Madison [or similar] has made his ruling, now let him enforce it!”) Thus even if an EU Constitution codifies the primacy of Union law, the struggles of actually implementing that supremacy will give you both fodder for the debate.

What make you thing that courts aren’t in the business of making politics every day?

Finally, why does “between” take an object with the plural (between us) and not with a multiple singular (between Dan and I)? Color me puzzled on that one.


Robert Lyman 01.19.04 at 2:33 pm


That’s “Mr. Marshall,” but as you say, the quote is allegedly apocryphal. Still, it certainly does illustrate the relative weakness of the judiciary.

I’m finding the whole EU process fascinating. Many of the struggles of the US, from more than 200 years ago (small vs. big states in the propsed constitution, the role of judges, etc.) are playing out before our very eyes. Personally, I’m expecting (and hoping for) the collapse of the EU, but then again, many Europeans expected and hoped for the collapse of the American Republic…


Henry 01.19.04 at 2:52 pm

On the burning and controversial ‘between’ question, my grammar texts suggest that the more common modern usage does indeed take the dative, but that there’s a strong minority position (taken by Shakespeare for one) that there should be two nominatives when there’s an ‘I’ involved.

Doug – sure, courts are always making politics – the question is _how much_ politics, and under what sorts of restraints.

Joe – nice to see someone who really knows about this stuff commenting. Everyone else – if you really want to understand the effects of the Treaty texts and ECJ on day-to-day politics in the EU, you’re going to have to read Joe’s forthcoming book from Cambridge U P. It’s a major contribution to the field.


PK 01.19.04 at 3:07 pm

I’m surprised at you. “Between” takes an accusative pronoun. “…between Dan Drezner and me.”


Randy McDonald 01.19.04 at 6:48 pm

Mr. Lyman, I’m curious: Why do you want the EU to collapse?


Joe Jupille 01.19.04 at 7:45 pm

Please, those people you named above (and lots of others besides) are the ones who know, certainly not I (or is that ‘me’?).


Antoni Jaume 01.19.04 at 11:04 pm

“[…]are the ones who know, certainly not I (or is that ‘me’?).”

Not being a native English user, I am not aware of most idomatical trait of the languge, but I feel that both “me” and “I” are acceptabre in this position.

However “The people who know[s]is me.” seems better.


Robert Lyman 01.20.04 at 3:52 pm


That’s a question with a very, very long answer. And this isn’t my blog, so and I don’t want to hijack it.

But broadly, because I think the EU is destructive of individual liberty and has no corresponding benefits to the people whose liberty is being attacked. Note that I differentiate between an economic union, which is a great idea, and the political one, which seems to serve no pupose other than consolidating power for the few.


Antoni Jaume 01.20.04 at 9:19 pm

The EU is no more destructive of individual liberty than any other state. What is more, it is an enhancer of the political liberties of all EU citizen. The EU allows us at least to have an aggregate effect that no European individual country can have. Now nationalists who have dellusion of greatness, and no reasonable policy, may feel that when they cannot impose their politics it is bad, but that is not so straightforward.


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