THE EUROPEAN COURT AND CIVIL SOCIETY

Vol. 18 No. 3 (March, 2008) pp.198-203

THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION, AND GOVERNANCE, by Rachel Cichowski. Cambridge and New York: Cambridge University Press, 2007. 310pp. Hardback. £45.00/$91.00. ISBN: 9780521855853. Paperback. £17.99/$34.99. ISBN: 9780521671811. eBook format. $28.00. ISBN: 9780511271489.

Reviewed by Leslie F.Goldstein, Department of Political Science and International Relations, University of Delaware. Email: LESL [at] UDEL.EDU (with thanks to Zachary Liscio for research assistance).

THE EUROPEAN COURT AND CIVIL SOCIETY: LITIGATION, MOBILIZATION, AND GOVERNANCE, by Rachel Cichowski, is a remarkably impressive work. It compiles ten years of a prodigious body of Cichowski research on the European Union. (Cichowski 1998 is the earliest citation of her work on the subject that she lists among the references.) The research is thorough, even exhaustive, strikingly well-documented, and presented both quantitatively and with a detailed narrative that gives a qualitative picture of the politics and legal action on the ground.

As presented, the book is an intervention into debates within the IR literature on the nature and degree of what IR scholars call integration, and it is also a contribution to social movements scholarship in that it documents the genesis and tremendous growth of both environmental activism and women’s rights activism at the European level. That is, as it increasingly became obvious that the European Community/European Union WAS a policy-maker, interest group activity naturally sprang forth to influence the policy being considered and made by this new actor. Both the modern women’s movement and the environmentalism movement happened to emerge on the world stage right around the time of this development, so this book traces the intersection of the expansion of those movements and the growth of the EU as a policy maker. And this is not all. The book also analyzes the interaction of the ECJ (European Court of Justice), the European Commission (the bureaucratic arm of the EU), the Council (formerly Council of Ministers – once the legislative arm of the EU, but in recent years one of the two legislative branches of the EU), and the European Parliament (the other legislative branch). The book tells us which of these arms of government was pushing the goals of each of these movements, which was attempting to pull back, and when and why. What emerges is a rich picture of politicking and governance within the European Union.

The book’s story extends from the early sixties (when the European Community really got going after its formation by the Treaties of Rome in 1957) through 2003, roughly four decades. Cichowski calls what she is examining the process of “institutionalization” of governance within the EU, which process she defines as the increase in the formalization of binding rules and [*199] procedures governing actors and organizations within the supranational policy arena covered by the EU, and also the increase in the number of such rules, the increase in the scope of them, and the increase in the support for them by the various governed players in the system (pp.1-2). She approaches this subject through the lens of two different policy topics, neither of which was involved in the original Treaty of Rome. The Rome agreement set up essentially a free trade area across several European countries. Today the Union includes many more countries, and the agreement to lift tariff barriers has evolved into a system where efforts to enhance free trade are now tempered with rules for environmental protection and a variety of protections for various groups of workers, including women (This evolution foreshadows the worry expressed by many Americans about the one-sided effects of NAFTA and WTO to the neglect of countervailing concerns like worker well-being and environmental integrity, who consequently urge amendments in these directions).

Cichowski calls the EU a “quasi-constitutional polity” (p.1) and attempts both to describe and explain the degree to which this complex supranational polity has already become institutionalized. In other words, her implied conclusion (and I agree) is that the EU has already moved out of the international relations field by becoming a polity, and therefore is appropriate for study within the field of comparative politics/governance. This is an important conclusion and one that the research contained in her book amply supports. Still, the basic thrust of her scholarship is to contribute to the understanding of how this process of transition from international organization to federated union took place, and in that sense it is a contribution to literature in the field of IR. As has been widely known among scholars of Europe, the transition was kicked off by a shocking move by the European Court of Justice back in the 1960s and early 1970s. The ECJ, appointed simply to apply the multilateral Treaty of Rome, transformed the Treaty, along with implementing rules adopted for it by the European Commission or the Council of Ministers (now Council), into enforceable “higher law” that would negate contrary member-country legislation, even legislation adopted AFTER the treaty had been ratified and even in member states that adopted no implementing laws that put European rules into the form of national statutes. In other words, the ECJ invented a “supremacy clause” for the European Community treaties and rules as against the laws of the now subordinated member countries. And member states, for the most part, obeyed, with member-state judges implementing the judgments of the ECJ (Stein 1981; Weiler 1981; 1991).

Many scholars have explored the dynamics by which the ECJ appeared to have been a significant motor of integration (e.g. Goldstein 2001; Sandholtz and Stone Sweet 1998; Slaughter, Stone Sweet and Weiler 1998). This book offers a contribution to that discussion, and quite a contribution it is. Cichowski takes up specifically three of the most prominent explanatory theses in the ECJ literature and demolishes them. [*200]

The first and the best known is the claim by Geoffrey Garrett and Barry Weingast (1993) and their allies that, while the ECJ APPEARED to be thwarting the will of major powers in Europe and forcing them to submit to this supranational polity, it was, in fact, behind the scenes doing the bidding of the major powers in Europe (UK, France, Germany). Rachel Cichowski presents such a thorough and well-documented case against this (ECJ-as-intergovernmentalist-tool) claim that it is unlikely ever again to rear its head.

Secondly, this book demolishes the subordinate claim put forth by Garrett, Kelemen, and Schultz (1998) that the ECJ is more willing to transgress the will of powerful member-states when it is essentially forced to do so by prior detailed and specific precedent. They suggest that the ECJ will still avoid crossing powerful member states when precedent is vague or ambiguous, allowing for judicial leeway. Again, Cichowski demonstrates powerfully with a wide range of data, that the ECJ in fact acts most often to set new, controversial policy when prior judicial doctrine or rules adopted via intergovernmental compromise have been left vague and need clarification, rather than when they are clear and precise.

Thirdly, Cichowski takes on the claim by Karen Alter (2001), based on Alter’s impressionistic look at the cases and interviews garnering non-systematically-deduced impressions from Europeans, that lower courts more often than high courts (i.e. courts of last resort) turned to the ECJ for a ruling because doing so took the lower courts out from under the sway of their own high court, and in this sense empowered them. Cichowski insists that this claim also falls when tested by systematic data, and I believe she is probably persuasive, but her bar graphs do not make the point as compellingly as the open-minded reader might wish. Cichowski shows that if one adds together the times that the high courts ask the ECJ to clarify the meaning of European law (“Preliminary References”) with times that intermediate appellate courts have done so, these outnumber the references from lower courts (courts of first instance). A more persuasive case would have been made (given that the lowest courts vastly outnumber high courts, and Alter probably meant to include intermediate courts with her phrase “lower courts”) had Cichowski presented her readers with the average number of ECJ references PER court rather than these bar graphs showing merely totals for all courts.

This book is comparative in many ways. In attempting to understand the process of “institutionalization” of the EU, it compares not only two different policy sectors but also the relative role of the ECJ, the Commission, the Council, and the Parliament, as engines of integration. It also compares country by country, which member states have done the most to promote integration/institutionalization by sending cases to the ECJ, and/or requesting action from the Council, or Commission or Parliament. And it attempts to answer why. What emerges is a richly contextualized set of findings. For instance, France initially pushed for an EU rule against sex discrimination in pay because it feared being competitively disadvantaged due to its own stronger protections in this regard. Similarly, some countries had much [*201] stronger enforcement agencies for gender equity than others (e.g. the U.K.) and this made a difference for the number of cases taken to EU authorities. Also, certain countries had better-established environmental interest groups than others, or a more hospitable legal environment in terms of allowing such groups to bring complaints to court on behalf of environmental protection. These countries ended up taking more cases to the ECJ than others did, which fact meant that their national legal environment was pushed to adapt more rapidly to EU law. Also, on the matter of women’s rights, the ECJ was way out front most of the time, acting as the primary motor of integration, although the Commission also played a major role because it provided funding and organizational stimulus for a variety of women’s organizations which then lobbied EU bodies for yet more legislation protective of women’s interests. On environmental protection by contrast, the European Commission and the European Parliament played larger roles than the ECJ, for reasons that Cichowski explains in more detail than can be covered here. In sum, integration/institutionalization was pushed by many forces and differing forces over time, across country, and across policy sector.

Cichowski offers a “theory” (p.244) or a “general theoretical approach” (p.22) to explain the institutionalization of what the EU itself has called its “ever stronger union.” This theory might best be characterized as a highly generalized description of what has gone on. The ECJ was brought into action sometimes by government agencies (such as the British Equal Opportunities Commission), sometimes by individuals, sometimes by groups (the latter two motivated sometimes by private concerns but sometimes out of public goals, acting as litigation lobbyists). In the course of these lawsuits, these actors challenged one or another national policy as out of line with EU rules. The domestic judges referred these questions (as the Treaty arranges) to the ECJ for clarification of EU policy. These clarifications begin a feedback process which may prompt the European lawmaking bodies (Council and Parliament) to enact new law or the Commission to adopt new regulations, or they may activate individuals or groups to bring new lawsuits now that the court decision has produced a new rule that makes clear that some other governmental policy is challengeable as out of line with EU rules. And so it continues in an ever thickening process. It is true that the ECJ sometimes goes against the goals of the women activists or the environmentalists, but that refusal itself simply prompts lobbying to move over to a different EU branch where it has often been successful. Cichowski thus describes a process of “institutionalization” driven largely but by no means entirely by interaction among the forces of litigation and the organized interest groups of civil society. Within the EU these groups are funded to a noteworthy degree by the EU itself, because it wants the input of their expertise into the decisionmaking process, and it wants their help in disseminating information about what the EU rules are. Private interest groups are not the whole story because sometimes executive agencies or parliamentary committees themselves push these policies, sometimes by giving support to the interest group to lobby [*202] another EU governance body, or sometimes litigating themselves.

To professors of courses on American government or on other federated governments (e.g. Australia or Canada) with courts who exercise powers of judicial review, this description should sound familiar. The big thing that makes the EU different from these other polities is that it does not have an elected (union-wide) chief executive. If it were to adopt one, there would then be a union-wide electoral constituency, and union-wide political parties would develop. This would introduce a measure of electoral accountability now lacking in the EU (Elections to the EU Parliament tend currently to be dominated by local rather than European questions). Cichowski is optimistic about the potential of NGOs to represent a wide variety of pieces of the public in the policy process, to fill what many have called the “democratic deficit,” but caution is in order: E.E. Schattschneider taught us long ago that the interest group chorus of the pluralist’s heaven sings with a strong upperclass accent (1975), even when one takes into account the voice of organized labor.

THE EUROPEAN COURT AND CIVIL SOCIETY is a wonderful book and one that deserves a wide readership, but it is not a perfect book. As currently presented, it limits its readership to those already familiar with the basics of the EU institutional structure. It would have benefited from an appendix that explains the nuts and bolts of how the EU governing bodies function in order to make it accessible to non-specialists. It also would have benefited from a much stronger hand of a copy editor: the writing style is clunky and sometimes even confusing – e.g., Cichowski often uses the term “governmental organization” which obscures whether she is discussing an executive agency of the Commission or one of the EU legislative bodies, the Parliament or the Council. There are even occasional grammatical errors (perhaps the product of typos) that should have been caught by a copy editor. Cambridge University Press owes its authors better support than this.

In sum, this book will be useful and even enlightening to all scholars of the EU, to scholars of comparative courts, and to scholars interested in the causes and effects of social movements in a comparative context.

REFERENCES:

Alter, Karen. 2001. ESTABLISHING THE SUPREMACY OF EUROPEAN LAW: THE MAKING OF AN INTERNATIONAL RULE OF LAW IN EUROPE. New York: Oxford University Press.

Cichowski, Rachel. 1998. “Integrating the Environment: The European Court and the Construction of Supranational Policy.” JOURNAL OF EUROPEAN PUBLIC POLICY 5 (3): 387-405.

Garrett, Geoffrey and Barry Weingast. 1993. “Ideas, Interests, and Institutions: Constructing the EU’s Internal Market.” In IDEAS AND FOREIGN POLICY, ed. Judith Goldstein and Robert Keohane. Ithaca: Cornell University Press: 173-206. [*203]

Garrett, Geoffrey, R. Daniel Kelemen, and Heiner Schultz. 1998.”The European Court of Justice, National Governments, and Legal Integration in the European Union.” INTERNATIONAL ORGANIZATION 52:149-176.

Goldstein, Leslie F. 2001. CONSTITUTING FEDERAL SOVEREIGNTY: THE EUROPEAN UNION IN COMPARATIVE CONTEXT. Baltimore: Johns Hopkins University Press.

Sandholtz, Wayne and Alec Stone Sweet (eds.). 1998. EUROPEAN INTEGRATON AND SUPRANATIONAL GOVERNANCE. New York: Oxford University Press.

Slaughter, Anne-Marie, Alec Stone Sweet and Joseph H.H. Weiler (eds.) 1998. THE EUROPEAN COURT AND THE NATIONAL COURTS – DOCTRINE AND JURISPRUDENCE: LEGAL CHANGE IN ITS SOCIAL CONTEXT. Oxford UK: Hart Press.

Schattschneider, E.E. 1975. THE SEMISOVEREIGN PEOPLE: A REALIST'S VIEW OF DEMOCRACY IN AMERICA. Hinsdale, Illinois: The Dryden Press.

Stein, Eric. 1981. “Lawyers, Judges, and the Making of a Transnational Constitution. AMERICAN JOURNAL OF INTERNATIONAL LAW 75 : 1-27.

Weiler, Joseph H.H. 1981. “The Community System: The Dual Character of Supranationalism.” YEARBOOK OF EUROPEAN LAW 1: 268-306.

Weiler, Joseph H.H. 1991. “The Transformation of Europe.” YALE LAW JOURNAL 100: 2403-2483.

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