European Integration and National Courts: Defending Sovereignty Under Institutional Constraints?

Abstract

The present paper examines the response of national high courts to the ECJ’s integrationist agenda and tries to uncover the logic behind their qualified acceptance of EU law supremacy and direct effect. Drawing on the legal and political science literature, I discuss and develop several possible explanations for the observed inter-court variation: the courts’ type and organisation; their power to review legislative acts under domestic law; the rules governing access to the judicial forum; the monistic tradition of the legal system and the level of public support for European integration. I then assess the empirical validity of these hypotheses using a new dataset coding the doctrinal positions and institutional constraints of 34 domestic high courts. The direction of the correlation is found to be in line with that hypothesised for all predictor variables. Most of the correlations, however, prove to be small. Only one variable – the power to review statutory legislation under national law – appears to have a significant influence on the courts’ doctrinal response to legal integration. While the empirical analysis does not quite capture the effect of all relevant factors, it lends some support to the argument that the varying institutional constraints and incentives under which high court judges operate shape the way they accommodate and reconcile two conflicting goals: (1) the imperative to ensure the application and supremacy of EU law over national legislation, and (2) the desire to keep integration under control by preserving an at least hypothetical last word for the Member States and, thereby, the notion of national sovereignty.

Keywords: European Integration, European Union, Courts, Sovereignty, Judicial Behaviour

JEL Classification: K10