Resisting the European Court of Justice examines one of the least-studied aspects of European integration: how the ‘new legal order’ was received by a member state, and how that reception influenced the future direction of the European Union. The author, Bill Davies, has made an extensive analysis of German archive material in order to show the reactions to the Treaties and, in particular, to the Court's jurisprudence, of three major groups in West Germany: legal academia, the general public and the government ministries. At the centre of the book stands the Federal Constitutional Court's Solange decision. Davies demonstrates how Germany was able to resolve the conflict between its post-war constitutional identity, with its emphasis on fundamental rights, and its strong support for European integration, via Solange.
Davies, Assistant Professor in Justice, Law and Society in the School of Public Affairs at American University in Washington, DC, is a legal historian specialising in the evolution of the constitution of the European Union. Resisting the European Court of Justice had its genesis in work carried out for his PhD at King's College, London, in the course of which he was given access not just to records of academic conferences and speeches but to opinion poll data, newspaper and broadcast media of the time and archived documents of the Foreign, Economics, Justice and Interior Ministries. He uses this wealth of historical evidence to overcome what has been a woeful under-documentation of the historical and constitutional context in which European law was received in each member state and thereby address several lacunae in the leading models of European integration.
The book is organised into five chapters. In the first, scene-setting, chapter, Davies introduces the theme of conflict between sovereignty and integration, in the context of which West German debate took place; he then provides an admirably lucid exposition of the prevailing “integration through law” theories. The second part is divided into three chapters which provide thorough accounts of the reception of European legal integration by legal academics, public opinion and government respectively. Chapter 5 is entitled ‘Dealing with the Fallout’ and documents the consequences of the Solange decision for the West German government, the Federal Constitutional Court and the future governance of Europe. Davies here discusses one of his central hypotheses: that the human rights protection now in place in the EU is a direct consequence of national resistance to a supranational legal system that offered inadequate rights provision. The concluding chapter argues that the dialogue between the Federal Constitutional Court and the Court of Justice is still ongoing, with the narrative of Solange continuing through the Solange II, Maastricht, Lisbon and Bailout decisions of the FCC and in the EU's accession to the European Convention on Human Rights. Davies then applies the evidence he has uncovered to the different “integration though law” models and concludes that these theories only partly stand up to historical scrutiny.
Davies concentrates on how well each of the prevailing integration models explains how the Court of Justice was able to employ the doctrines of direct effect and supremacy to constitutionalise the European legal system with so little national protest. He finds support, albeit partial, for Alter's model of a “negotiated compromise” in which the Court of Justice sought to minimise political backlash in the member states (Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford 2001)). It is perhaps not surprising that his approach supports a model that accords most significance to the sociopolitical environment in which constitutional development takes place. The narrow legalist explanation, based on the autonomy of legal reasoning, is contradicted by Davies's evidence that the Court of Justice “was, and remains, susceptible to pressure from outside the courtroom” (p. 210). Davies demonstrates that the realist model, in which a government's acceptance of integration is based on the perception that it is in the national interest, fails to account for the fact that no single definition of “national interest” was to be found amongst the many groups that contributed to the constitutional debate. Regarding the neofunctionalist model of European integration, Davies argues that the evidence of widespread resistance to the Court's jurisprudence, as articulated by the Federal Constitutional Court in decisions such as Solange, is strong counter-evidence to the “legal spillover” that is central to the model. Finally, he picks out Weiler's “exit” and “voice” model as one for which he can find only slight historical evidence (J.H.H. Weiler, The Constitution of Europe – “Do the New Clothes Have an Emperor?” and Other Essays on European Integration (Cambridge 1999)).
Davies emphasises that the evidence he presents is not just of historical interest, but is “crucial to those interested in comprehending the full mechanics of European legal integration and the development of the EU's political and judicial system” (p. 216). The reviewer does not disagree. It could be argued, however, that his approach is incomplete as a basis for testing integration models in two significant ways. One is that empirical evidence to support any of these theories of European integration can be drawn not just from the individual ground-breaking cases of the Federal Constitutional Court such as Solange, but the mass of everyday cases about customs tariffs, VAT or social security. The dialogue between West Germany and the Court of Justice encompassed, for instance, more than 270 preliminary reference decisions in this period as well as other forms of action. More important, perhaps, is another limitation. Davies makes it clear that there was no such thing as “the West German position” in these debates: there were differences of views between the government and the Federal Constitutional Court, between and within different ministries and between different levels of government, between the supranationalist and traditionalist positions in legal academia and between different tendencies of the press and public. As such, the interplay between West Germany and the Court of Justice is better characterised as discourse than dialogue. And evidence pertaining to one aspect of that discourse is largely lacking from this account (although it is central to the neofunctionalist model): the dialogue between the other national courts and the Court of Justice that is implied by those preliminary references. Clearly this aspect is less susceptible to Davies' admirably thorough archival research. However, it could be argued that the historical evidence Davies presents cannot alone confirm, or rule out, a given theory of European integration.
Davies observes that, in comparison with the citizens of the United States, the European public is very little aware of the key constitutional moments of the European Union; few, indeed, could even locate the Court of Justice within Europe. He suggests that this “is probably, in no small part, caused by the fact that the histories available to chronicle the development of Europe's legal system are few and far between” (p. 214) and that this lack is sorely in need of redress. For the general reader, this book does not fulfil that role, but for the student of European integration, it is an important and fascinating account.
