![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
At the most general level, the perpetual momentum of ‘integration through law’ is driven by the substantive dynamics of legal doctrines extending the protection of individual interests and by procedural conditions facilitating the use of European law to challenge the institutional regimes of EU member states. Given the supremacy and direct effect of European law, and the decision rules of EU policy making, this momentum could not be halted through political or judicial intervention.
Notes
The comparative interpretation of these differences is not obvious, however. In a democracy, political parties, parliaments and governments are supposed to be involved in competition, public contestation and controversy – which implies that their legitimacy cannot be primarily based on ‘trust’. By contrast, the legitimacy of institutions that are not democratically accountable depends entirely on trust in their integrity and competence – and it would quickly erode if they became embattled in serious controversies.
Since the ECJ is only responding to questions of law defined by the national court, it will not consider procedural criteria of ‘standing’, ‘ripeness’ and other requirements of a genuine ‘case and controversy’ – which the US Supreme Court employs to avoid decisions on insufficiently clarified constitutional issues (Bickel Citation1962; Scharpf Citation1966).
The parallel to the pre-1937 US Supreme Court's use of the ‘economic due process’ doctrine to prevent all economic regulation (cf. Ehmke Citation1961; McCloskey Citation1962; Scharpf Citation1966) has been noted and criticized by Miguel P. Maduro (Citation1998).
The free movement of workers is meant to ensure equality between migrant and domestic workers, whereas the free movement of services protects the right of employers to use ‘posted workers’ under conditions that are inferior to those enjoyed by domestic workers.
Interestingly, when patients are seeking healthcare abroad (invoking the freedom of receiving services), it is their home state that is held responsible for the reimbursement of costs, whereas the host state has to bear the cost when students are seeking education abroad (invoking the prohibition of discrimination on grounds of nationality).
It should be noted that in the transition from an authoritarian past in Germany, the constitutional court's interpretation of basic rights has played a very significant liberalizing role. The question is, however, whether the judicial transformation of national societies can be legitimately performed by the European rather than the national high court.
If an ECJ precedent seems to undermine the legality of a particular national law, the government's law-abidingness is likely to be challenged by the opposition (and possibly by a coalition party) – with effects on public opinion that are pointed out in Kelemen's Citation(2012) contribution.
BVerfG, 2 BvR 2/08, 30.06.2009.
The senior author, Roman Herzog, was not only a former president of the Bundesverfassungsgericht but had also been president of the Convention that had drafted the EU's Charter of Fundamental Rights.
BVerfG, 2BvR 2661/06, 06.07.2010.
The ECJ's standard response is that, yes, the regulation of healthcare, etc., is left to member states, but in exercising their powers these must of course respect the Treaty-based rights of individuals. See, for example, Kohll (C-158/96 at # 16, 19-20).
However, the ECJ's individual-rights adjudication has the power to shape the course of European legislation (Scharpf Citation2011; Schmidt Citation2011).
BVerfGE 37, 271.
BVerfGE 73, 339.
The development occurred arguably in response to this and similar assertions of national constitutional courts (Weiler and Lockhart Citation1995).
In German constitutional adjudication, the court is of course aware of, and pays attention to, the requirements of democratic governance when it defines the limits of individual-rights protection in the specific case. But since it never saw a need to explicate these implicit limits in terms of a ‘political question doctrine’ (Scharpf Citation1966), they are of no use in conflicts with the ECJ. In legal as in other battles, one cannot beat something with nothing.