The Politics of Law in the European Union

The Politics of Law in the European Union
Fabien Terpan
Associate Professor at Sciences po Grenoble
Jean Monnet Chair in EU Law and Politics
Visiting Professor at the College of Europe
[email protected]
Theseus Visiting Professor - University of Cologne
In every political system, the link between law and politics is intimate: decision-making
leads to the establishment of law, and law, once established influences politics as well as
policies and policy-making. In the context of the European Union (EU), this coconstitution is no exception. There is a broad consensus among scholars that law has
shaped the speed and scope of the European integration process. In their seminal work
of 1986/1987 -‘Integration through law’- Cappelletti, Seccombe and Weiler have
presented law as both the object and agent of the EU’s political system. Law is the object
of the European system because EU institutions produce legal rules in the form of treaty
articles, regulations and directives as well as rulings of the European Court of Justice
(ECJ). But law is also an agent of the European political system, in that it is widely used
as an instrument of political integration and intergovernmental convergence.
Since the early 1990s, however, the European Union seems to be undergoing a large
transformation, which questions the role of law as a driving factor of political
integration. A first group of scholars defend the idea that ‘integration through law’ has
lost momentum. With the development of ‘new modes of governance’, a great deal of
‘soft rules’ now complement –or replace- the traditional ‘hard rules’ composed of treaty
provisions, regulations, directives and decisions. The European Court of Justice is no
more the activist Court it used to be from the early 1960s until the 1980s, and has no
jurisdiction over several ‘new’ policy areas. The economic/financial as well as legitimacy
crises affecting the EU have shifted the institutional balance towards
intergovernmentalism. On the other hand, a second group of scholars argue that law is
still central to the integration process. Policy areas such as justice and home affairs and
economic governance have been largely ‘legalized’. The process of constitutionalizing
Europe has not stopped since the failure of the Constitutional treaty. The ECJ continues
to issue landmark rulings and to impact the policy process through its bold case law.
The objective of the seminar is to better understand the link between law and politics in
the European Union and see whether or not the role law plays in the European Union is
less central since the early 1990s.
The seminar will be partially based on the discussion of a series of academic articles.
Students are responsible for reading all of the required material in advance, and are
expected to engage in well-informed and fluid exchanges and debates during class. In
particular, they must be able to summarize and discuss the main arguments developed
in the readings. Two lists of readings are provided below. The first one comprises
‘compulsory readings’ to be discussed during the seminar. ‘Other possible readings’
(non-compulsory) are suggested in a second list, for those who would like to dive deeper
into the subject matter.
Seminar participants are also expected to write a 5000 words research paper based on a
theoretical framework, a clear research question and hypotheses, and first-hand
empirical data.
Before handing in the final essay, mid-term reports will be presented and discussed
during a two-day workshop on January 2015, 21 & 22.
Seminar 1: 27-28 October 2015
Inaugural Lecture: 28 October 2015
Seminar 2 / Individual Meetings with Students: 4 December 2015
Seminar 3 / Workshop: 21-22 january 2016
Student presentations (during workshop on 21 and 22 of January 2016)
Topics of student presentations are proposed by the students and validated by the
Professor. They must be related with the overall subject of the seminar.
Presentations should cover the main elements of the paper: research question, project’s
social and scientific relevance, historical background, literature review, main concepts
and theoretical framework, hypotheses, methods, summary of the paper.
All seminar participants are expected to give constructive feedback to the presenters.
Final papers
The final papers should take into account the comments and suggestions made by both
the other seminar participants and the Professor during the workshop. They are to be
sent by 22 February 2016 to the following email address: [email protected] . They must satisfy other plagiarism control procedures at the Uni Köln (see
Presentations and class participation will account for 30% of the final grade, the papers
for 70%.
Compulsory readings
Legalization - Soft and Hard Law - Compliance and Resistance
Börzel T., Hofmann T., Panke D. & Sprungk C. (2010) ‘Obstinate and inefficient: Why member states do not
comply with European law’. Comparative Political Studies, 43(11):1363-1390.
De Búrca, G. (2005) ‘Rethinking law in neofunctionalist theory’, Journal of European Public Policy,
Scicluna, N. (2012) ‘EU Constitutionalism in Flux: Is the Eurozone Crisis Precipitating Centralisation or
Diffusion?’. European Law Journal, 18(4):489–503
The ECJ and the Politics of Law
Alter, K.J. (1996) ‘The European Court's political power’. West European Politics, 19(3):458-487.
Garrett, G., Kelemen, D. and Schulz, H. (1998) ‘The European Court of Justice, national governments and
legal integration in the European Union’, International Organization 52: 149–76.
Vauchez, A. (2012). ‘Keeping the dream alive: the European Court of Justice and the transnational fabric of
integrationist jurisprudence’. European Political Science Review, 4(1):51-71.
Other Possible Readings
Legalization - Soft and Hard Law - Compliance and Resistance
Armstrong, K. (1998) 'Legal integration: theorizing the legal dimension of European integration'. Journal
of Common Market Studies, 36(2):155-74.
Grimmel, A. (2014) 'The Uniting of Europe by Transclusion: Understanding the Contextual Conditions of
Integration Through Law'. Journal of European Integration, 36(6):549-66.
Saurugger, S., & Terpan, F. (2015) ‘Resisting new modes of governance: An agency-centred approach ».
Comparative European Politics, first published online.
Steunenberg, B. & Toshkov, D. (2009) ‘Comparing transposition in the 27 member states of the EU: the
impact of discretion and legal fit’ Journal of European Public Policy, 16(7) :951–970.
Terpan, F. (2015) ‘Soft Law in the European Union—The Changing Nature of EU Law’. European Law
Journal, 21(1):68-96.
The ECJ and the Politics of Law
Blauberger, M. (2012) ‘With Luxembourg in mind’, Journal of European Public Policy 19(1): 109–26
Blauberger, M. (2014) 'National responses to European Court jurisprudence'. West European Politics,
Davies, G. (2014) 'Legislative control of the European Court of Justice'. Common Market Law Review,
Garrett, G. (1995) ‘The Politics of Legal Integration in the European Union’. International Organization,
Grimmel, A. (2012) 'Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies
of the European Court of Justice'. European Law Journal, 18(4):518-35.
Kelemen, R. D. (2012) ‘The political foundations of judicial independence in the European Union’. Journal
of European Public Policy, 19(1):43-58.
Broberg M., Fenger N. (2013) ‘Variations in Member States’ Preliminary References to the Court of Justice
—Are Structural Factors (Part of) the Explanation?’, European Law Journal, 19(4):488–501.
Mattli, W. & Slaughter, A. (1995) ‘Law and Politics in the European Union’. International Organization,
49(1) :183–90.
Sabel, C.F. & Gerstenberg, O. (2010). Constitutionalising an Overlapping Consensus: The ECJ and the
Emergence of a Coordinate Constitutional Order, European Law Journal, 16(5) :511–550.
Saurugger, S., & Terpan, F. (2014) ‘La Cour de justice au cœur de la gouvernance européenne’. Pouvoirs,
Wasserfallen, F. (2010). The judiciary as legislator? How the European Court of Justice shapes policymaking in the European Union, Journal of European Public Policy, 17(8) :1128–1146.
Weiler, J. H. H. (1991) ‘The transformation of Europe’. Yale Law Journal, 2403-2483.
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