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The European Union’s institutional development is highly imbalanced. It has established robust legal authority and institutions, but it remains weak or impotent in terms of its centralization of fiscal, administrative, and coercive capacity. We argue that situating the EU in terms of the history of state-building allows us to better understand the outcomes of EU governance. Historically, political projects centralizing power have been most complete when both market and security pressures are present to generate state formation. With the EU, market forces have had a far greater influence than immediate military threats. We offer a preliminary demonstration of the promise of this approach by applying it to two empirical examples, the euro and the Schengen area. Our analysis suggests that the EU does not need to be a Weberian state, nor be destined to become one, for the state-building perspective to shed new light on its processes of political development.

Why would a supranational law enforcer suddenly refrain from wielding its powers? We theorize the supranational politics of forbearance– the deliberate under-enforcement of the law– and distinguish them from domestic forbearance. We explain why an exemplary supranational enforcer– the European Commission– became reluctant to launch infringements against European Union member states. While the Commission’s legislative role as “engine of integration” has been controversial, its enforcement role as “guardian of the Treaties” has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. Triangulating between infringement statistics and elite interviews, we trace how the Commission grew alarmed that aggressive enforcement was jeopardizing intergovernmental support for its policy proposals. By embracing dialogue with governments over robust enforcement, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. Our analysis holds broader implications for the study of forbearance in international organizations.

This article explains why autocrats love constitutional pluralism and constitutional identity. Though these concepts were developed by scholars and jurists with the best of intentions in mind, we explain why they are also attractive to and inherently prone to abuse by autocrats. We then describe how the regimes in Hungary and Poland have made use of these concepts in their drive to consolidate autocracy. We conclude that given the dangers inherent in constitutional pluralism and its susceptibility to abuse, it should be replaced with a more traditional understanding of the primacy of EU law.

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law

The European Union (EU) is a community based on the rule of law. EU member states have committed themselves to uphold the rule of law and to respect the primacy of EU law. Yet today, the EU legal order is threatened by the emergence of increasingly autocratic member state governments, particularly those in Hungary and Poland, who routinely violate the fundamental rule of law principles on which the EU is based. This article assesses whether the model of differentiated integration can be applied to help the EU address this rule of law crisis. In recent years, many analysts have called on the EU to embrace a model of differentiated integration as a way to address its many challenges, and some have suggested that versions of differentiation might help the EU resolve tensions with its member states concerning the rule of law. By contrast, this article will argue that differentiation in the rule of law and the theory of constitutional pluralism that some use to justify it are neither normatively desirable nor practically feasible models. In short, we must reject differentiated integration when it comes to rule of law.

However, the concern that a recurrent pattern of integration through crisis may be self-undermining in the long term remains, and has been brought to the fore once again by the public reaction to the EU's initial stumbles in mounting a coordinated response to the coronavirus crisis and a widespread decline in trust in the European Court of Justice in the aftermath of elevated migration and expansive rulings on EU citizenship. She demonstrates that the incompleteness of EU citizenship rights generated policy failures, which in turn triggered litigation and provided European courts the opportunity to push the meaning of EU citizenship forward - all in keeping with the failing forward framework. At the other end of the continuum, in areas where the EU has very little or no competence such as defense and security or neighborhood policy, while supranational actors may seek to leverage the crisis to press for a greater EU role, they may not be in the position to exercise much leverage over national decision-makers. Apart from areas like trade and competition, where EU authority is very extensive, and areas like defense and foreign policy, where it is minimal, most other policy domains the EU is engaged with - from Economic and Monetary Union, to most regulatory policies - fall into the middle of the spectrum where policy competences are shared between the EU and the Member States. [Extracted from the article] Copyright of Journal of European Public Policy is the property of Routledge and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

How are processes of political development structured across space and time by preexisting institutions? This article develops a spatiotemporal theory of institutional change by analyzing the evolving infrastructural power of the European Union's legal order using geospatial methods. Specifically, the authors theorize that the pattern and pace of the domestic spread of EU law has been shaped by preexisting state institutions—particularly by the degree to which national judiciaries are hierarchically organized. To assess this claim, the article compares patterns of domestic judicial enforcement of EU law across France (a unitary state with a centralized judiciary), Italy (a weaker unitary state with a centralized judiciary), and Germany (a federal state with a decentralized judiciary). Developing a geospatial approach to the study of legal integration and historical institutionalism more broadly, the authors leverage an original geocoded data set of cases referred to the European Court of Justice by national courts to visualize how the subnational penetration of Europe's supranational legal order is conditioned by state institutions.

This article responds to Michael Blauberger and Berthold Rittberger's article “Conceptualizing and theorizing EU regulatory networks,” published in Regulation & Governance in 2015. Blauberger and Rittberger challenged our previous work on the politics of Eurocracy, disputing our argument that political considerations, not functional ones, explain the choice of bureaucratic structure in the European Union (EU). Blauberger and Rittberger suggest that functional considerations do indeed explain why policymakers sometimes prefer governance through European Regulatory Networks rather than through more centralized EU agencies, and argue that we have misunderstood the preferences of EU legislative principals. In this article, we argue that there are significant flaws in Blauberger and Rittberger's analysis on both theoretical and empirical grounds. We show that a proper interpretation of developments in both telecoms and competition lends support to our theoretical claims and not those offered by Blauberger and Rittberger.

This article argues for a radical recasting of the European Union democratic deficit debate. Critics have long argued that the EU suffers from a democratic deficit and that growing EU power undermines national democracy. But recent backsliding on democracy and the rule of law in Hungary and Poland reminds us that grave democratic deficits can also exist at the national level in member states and that the EU may have a role in addressing them. This article will place the EU’s struggles with democratic deficits in its member states in comparative perspective, drawing on the experience of other democracies that have struggled with pockets of subnational authoritarianism. Comparative analysis suggests that considerations driven by partisan politics may allow local pockets of autocracy to persist within otherwise democratic political unions.

While the European Union (EU) professes a commitment to liberal democracy, in recent years it has allowed some member governments to backslide toward competitive authoritarianism. The EU has become trapped in an “authoritarian equilibrium” underpinned by three factors. First, the EU’s half-baked system of party politics and its ingrained reluctance to interfere in the domestic politics of its member states help shield national autocrats from EU intervention. Second, funding and investment from the EU helps sustain these regimes. Third, the free movement of persons in the EU facilitates the exit of dissatisfied citizens, which depletes the opposition and generates remittances, thereby helping these regimes endure. While more fully developed democratic federations have the capacity to eventually steer autocratic member states back toward democracy, the EU appears to be stuck in an autocracy trap.

Theories of federalism can provide a set of assumptions, concepts, and arguments that shed light on many aspects of European integration. Applying the federalism perspective opens up EU scholars to a range of relevant comparative cases that provide analytic leverage and insight on the EU. This perspective also enables EU scholars to draw on and contribute to a well-established literature in comparative politics, thus connecting their findings about the EU to broader academic debates. EU scholars have applied theories of federalism to help explain a wide range of questions about European integration, from general questions about why and how the EU came together as a political system to narrow questions about very specific policy areas, to the causes and consequences of the EU’s recent crises. This chapter discusses the main assumptions, concepts, and methodologies in federalism theories of the EU, and explores how this perspective can shed light on the eurozone crisis and the crisis of democratic backsliding among EU member states.

Why has the European Union been able to craft a unified sanctions policy against Russia but failed to rein in Russia's ‘Trojan horses’ within the EU that pursue pro-Putin foreign policies? We argue that the EU suffers from a specific type of disaggregation in its foreign and security policy. While the EU's Common Foreign and Security Policy has increased its capacities over time, the EU still lacks the power to prevent Member States from pursuing their own independent policies. In the face of the Ukraine crisis, for instance, the EU marshaled a surprisingly strong sanctions regime, but could not prevent Member States from pursuing divergent pro-Russia policies, such as signing new energy deals or granting port access for Russian naval forces. As EU foreign and security powers grow, foreign powers face increasing incentives to cultivate Trojan horses among the EU Member States.

Today, the European Union (EU) is confronting a new democratic deficit at the national level. A number of EU member states have experienced an erosion of democracy and the rule of law in recent years, most severely in Hungary and Poland. Drawing on different strands of political science research, the contributions to this section debate the strengths and weaknesses of the various safeguards and tactics the EU has deployed or might deploy to resist democratic backsliding by member governments. This brief introduction raises the main questions of the debate: how politically feasible is the application of existing and proposed EU safeguards, and what are the likely consequences, intended as well as unintended, of various judicial and political approaches?

This article explores the potential efficacy and limitations of judicial mechanisms as tools to combat democratic backsliding in European Union (EU) member states. The article argues that more can be done to maximize the effectiveness of existing judicial tools, such as infringement proceedings brought to the European Court of Justice (ECJ) by the Commission and private enforcement litigation in national courts. At the same time, we highlight risks inherent in many proposals for novel judicial tools to defend national democracy. We conclude that despite their importance, judicial safeguards alone – whether existing ones or novel proposals – will not suffice to stop democratic backsliding by a determined national government: if the Union is to rein in such attacks on its core values, heads of government and other EU leaders will have to intervene politically as well.

For years, the Court of Justice of the European Union (Court of Justice) and national constitutional courts – particularly the German Federal Constitutional Court (Bundesverfassungsgericht; FCC) – have engaged in what developmental psychologists might term ‘parallel play’. The courts have played alongside each other, but not with each other. They have shared an interest in the same object (ultimate legal supremacy), and each has seen that object as its own. Many EU law scholars have celebrated this unsettled state of affairs, labelling it ‘constitutional pluralism’. But constitutional pluralism is unsustainable, and just as children grow out of parallel play, so too must Europe's courts. The FCC's reference to the Court of Justice in the Gauweiler case not only has profound implications for the survival of the Eurozone, but the case also seems to signal the end of an era: Europe's two most powerful courts must finally confront the incompatibility of their positions on the issue of Kompetenz-Kompetenz.

The European Union (EU) project of combining a single market with a common currency was incomplete from its inception. This article shows that the incompleteness of the governance architecture of Europe’s Economic and Monetary Union (EMU) was both a cause of the euro crisis and a characteristic pattern of the policy responses to the crisis. We develop a “failing forward” argument to explain the dynamics of European integration using recent experience in the eurozone as an illustration: Intergovernmental bargaining leads to incompleteness because it forces states with diverse preferences to settle on lowest common denominator solutions. Incompleteness then unleashes forces that lead to crisis. Member states respond by again agreeing to lowest common denominator solutions, which address the crisis and lead to deeper integration. To date, this sequential cycle of piecemeal reform, followed by policy failure, followed by further reform, has managed to sustain both the European project and the common currency. However, this approach entails clear risks. Economically, the policy failures engendered by this incremental approach to the construction of EMU have been catastrophic for the citizens of many crisis-plagued member states. Politically, the perception that the EU is constantly in crisis and in need of reforms to salvage the union is undermining popular support for European integration.

This chapter focuses on the European Court of Justice (ECJ). Like any court, the ECJ has faced constraints in its external context, including constraints imposed by national governments and national courts. But overall, the ECJ has benefitted from a remarkably benign external environment. The ECJ has found much support from key actors including national governments, national courts, and members of the European legal field. In recent years the ECJ faces contextual challenges in its relationship with member governments, national courts, and the European legal field. New member governments with fragile democracies and questionable commitments to the rule of law may increasingly test the extent to which they can defy or evade EU law without incurring a robust response. Moreover, the growth and diversification of the European legal field and the encroachment of EU law on increasingly sensitive policy areas is likely to provoke more intense criticism of the Court.

In recent years, the United States has lagged behind the European Union in its ratification and implementation of major multilateral environmental agreements (MEAs). The development represents something of a role reversal between the US and the EU, given that the US had previously acted as the primary driver behind the adoption of most MEAs since the 1970s, with the EU largely following the American lead. Some have cited the US reluctance to engage on recent major MEAs as evidence of a diminishing American commitment to international environmental law, given prominent domestic political opposition to agreements like the Kyoto Protocol and the Convention on Biological Diversity. This position overlooks the enduring US commitment to previously ratified MEAs, and its general compliance with other major agreements that it has yet to formally ratify. Furthermore, while the EU has clearly become a major player in the realm of international environmental law, its embrace of major MEAs is driven primarily by domestic economic interests more than any abstract commitment to international law as such. We therefore argue that varying levels of commitment to substantive environmental policy goals at the domestic level, rather than varying levels of commitment to international law, may best explain US and EU positions concerning international environmental policy.

This chapter examines why European Union agencies have been created and what impact they are having on European governance. It begins with a discussion of theories that explain law-makersʼ design choices and the increasing popularity of European agencies, focusing on delegation and policy credibility, the politics of agency design, and legal obstacles to delegation. It then looks at the development and operation of three regulatory agencies: the European Environment Agency, the European Medicines Agency, and the European Food Safety Authority. It also considers issues regarding the EU agenciesʼ independence and accountability before concluding with an analysis of the model in which an EU agency serves as the coordinating hub of a network of national regulatory authorities.

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism—one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data privacy field, Francesca Bignami argued that EU regulation was not evolving into adversarial legalism, but rather had come to rely more on agency enforcement and private-sector cooperation, a style she called “cooperative legalism.” The chapter links the discussion of our own work with other important contributions to the debate on European regulation. It concludes by underscoring the enduring importance of understanding the European regulatory style and by highlighting the issues on which future research will be crucial.

Many studies suggest that strict balanced budget rules can restrain sovereign debt and lower sovereign borrowing costs, even if those rules are never enforced in court. Why might public officials adhere to a rule that is practically never enforced in court? Existing literature points to a legal deterrence logic in which the threat of judicial enforcement deters sovereigns from violating the rules in the first place. By contrast, we argue that balanced budget rules work by coordinating decentralized punishment of sovereigns by bond markets, rather than by posing a credible threat of judicial enforcement. Therefore, the clarity of the focal point provided by the rule, rather than the strength of its judicial enforcement mechanisms, determines its effectiveness. We develop a formal model that captures the logic of our argument, and we assess this model using data on U.S. states. We then consider implications of our argument for the impact of the balanced budget rules recently imposed on eurozone states in the Fiscal Compact Treaty.

What is the relationship between widening and deepening in the European Union (EU)? Does the addition of new member states affect the process of centralization – that is to say, whether and how mem...

This contribution presents an institutionalist account of the conditions under which widening either impedes or encourages deepening. We argue that the impact of widening on deepening depends on the position of the enlargement state relative to the preference distributions of existing member states. Also, we argue that while expanding to a laggard may in some cases create short-term gridlock, it may also provide the impetus for institutional changes that facilitate deepening over the long-term. We assess our argument empirically drawing on the European Union's own history and data on federal systems and international organizations.

Germany's highest court stopped short of ruling the European Central Bank's programme to support the euro illegal. Now the European Court of Justice must find a way to make the programme acceptable without making it ineffective.

The process of European integration has encouraged a substantial judicialisation of politics across EU member states. Critics of ‘government by judges’ suggest that this judicialisation undermines democracy by substituting the decisions of unelected, unaccountable judges for those of elected officials. This article argues that on balance the judicialisation related to European integration has strengthened democracy across Europe. Judicialisation has encouraged greater transparency and accountability in policy-making by member state governments and by the EU itself and has enhanced opportunities for access to justice. However, by emphasising the protection of individual rights, judicialisation has pushed member states further from republican to liberal models of democracy.

The character of European states—their approaches to governance, the extent to which they penetrate and shape their societies—has changed radically over centuries. Today, European states continue to vary from one another across many fundamental dimensions. Some are nation states, other states are openly multinational. Some are unitary, others federal. Some command strong bureaucratic capacities, others struggle to collect taxes and keep roads paved. Some states operate impartial and effective systems of justice, while in others judicial systems are riven with corruption or hobbled by inefficiency. Some states intervene heavily in the economy, while others do so minimally. This chapter provides an overview of the contributions that historical institutionalist scholarship has made to our understanding of the origins, evolution and impact of the state in Europe.

This article constitutes the first systematic effort to promote a spatial and a subnational turn in the study of EU legal integration by demonstrating how geospatial methods and the selection of a subnational unit of analysis can improve our understanding of the use of the preliminary reference procedure. We conduct a theory-testing case study leveraging an original dataset of all references submitted by Italian courts from 1964 through 2013 and utilize geographic information systems (GIS) technology to analyze subnational patterns in reference activity. We use these data to evaluate whether several existing hypotheses explain recent subnational variation in reference rates. We uncover several illuminating findings. First, although population levels and domestic litigiousness best explain variation in reference rates, there is evidence that the domestic litigation effect is subnationally heterogeneous. Second, although use of the reference procedure has diffused since the 1960s, subnational reference rates are spatially clustered by issue area.