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Article

The Legal History of the European Union: Building a European Constitution  

Morten Rasmussen

Attempts to analyze and understand how European law developed from a set of international treaties in the 1950s to a constitutional, proto-federal legal order, accompanied by a constitutional legal discourse today, has been a key concern in European studies in the last three decades. Legal scholars, political scientists, and sociologists have explored this from their specific disciplinary viewpoints and have produced a rich literature of sophisticated theoretical as well as empirical studies. Since the mid-2000s, historians have also finally—after years of negligence—taken an interest in European law and produced a new body of archive-based studies of the history of European law from 1950 to 1993. Based on primary sources drawn from private, national, and European archives, historians have contributed with much new empirical information and managed to uncover the social, political, and legal forces that have shaped European law in a qualitatively new way. The central argument is that the constitutionalization of European law was part of the broader battle over the political and institutional soul of the European construction. Even though the ECJ successfully constructed a European legal order that resembled and worked as a proto-federal constitution, the project ultimately suffered a defeat in not being able to codify this achievement in the Maastricht Treaty as part of a broader step toward a federal Europe.

Article

The European Court of Justice (ECJ)  

Sabine Saurugger and Fabien Terpan

Considered an unusually powerful actor that has furthered European integration, the Court of Justice of the European Union (CJEU) has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, as well as historians, have studied the Court in the context of it being one of the main actors in the integration process. Those that saw European integration as “integration through law” originally considered the Court to be the core element driving this process. The Court’s case law has influenced market integration, the balance of power among the EU’s institutions, and the “constitutional” boundaries between supranational and national competences. The pathbreaking rulings Costa vs. Enel and van Gend en Loos introduced new legal principles of direct effect and primacy in the 1960s; the 2007 Laval and Viking rulings triggered criticism of the Court’s decision, which was said to put the rights of companies above those of workers; whereas the Mangold ruling in 2005 on age discrimination was widely welcomed in spite of some negative reactions in Germany. Hence, while “integration through law” remains a powerful narrative in the academic field of European studies, the Court’s decisions and its role in the EU system have not remained unchallenged. This view of the Court as being less central to European integration is based on two developments in this field of study. On the one hand, research findings based on various analytical approaches—from rational choice to post-positivist—suggest that “integration through law” since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative, and constitutional counteractions since its establishment in 1952. On the other hand, scholars have identified a number of developments in the integration process from the early 1990s and the Maastricht Treaty, such as the increase in new modes of governance and intergovernmental decision-making, that explain why the Court’s role has come into question. Understanding these debates is crucial to grasping the broader institutional as well as political and legal developments of European integration.

Article

The EU Migration Crisis: A Crisis Analysis Case Study  

Peter Slominski

The European Union (EU) migration crisis has been part and parcel of a conglomerate of crises that have affected the EU since the late 2000s, as have the financial and sovereign debt crisis, “Brexit,” the Russia–Ukraine conflict, as well as tensions within transatlantic relations. Scholarship on the EU has devoted much attention in assessing what the migration crisis means for EU integration at large. In particular, EU scholars are interested why the migration crisis has led to political gridlock and a renationalization of border controls rather than a deepening of integration. While they differ in their explanations, these explanations shed light on different aspects of the crisis and are far from mutually exclusive. Scholars who are more interested in the area of EU Justice and Home Affairs (JHA) largely agree with EU theorists that the field suffers from an incomplete governance design, the dominance of EU member states, and weak supranational capacities. Their analysis also focuses on intra-EU dynamics but offers a more nuanced empirical assessment of relevant EU institutions and decision-making in the course of managing the migration crisis. This growing body of research produces valuable insights and largely confirms existing scholarship, including that on the growing securitization and externalization of EU asylum and migration policy. The EU’s understanding as a norm-based power is particularly challenged by the migratory movements in the wake of the crisis. A small but growing scholarship analyses how the EU is balancing its non-entrée policy with its legal obligation, and what kind of governance arrangements result from that. While this scholarship has enriched our understanding of the EU migration crisis, it has not generated a major refinement of the standard approaches of EU theorists and JHA scholars. To further enrich the literature on the migration crisis, scholars should go beyond studying the dynamics of EU decision-making and the role of EU institutions. Such an approach should engage more systematically with international actors and institutions that have the capacity to influence EU migration policy. At the same time, global phenomena such as war, poverty, or climate change should also be taken into account in assessing the EU’s room for maneuver in handling migratory pressures. Future research on the migration crisis as well as on migration challenges should thus not only connect with other subfields of political science, such as policy analysis or international relations, but also open up to other disciplines such as law, demography, or environmental studies.

Article

Enlargement Policy and European Union Politics  

Eli Gateva

Enlargement has always been an essential part of the European integration. Each enlargement round has left its mark on the integration project. However, it was the expansion of the European Union (EU) with the 10 Central and Eastern European countries (CEECs), Cyprus, and Malta, unprecedented in scope and scale, which presented the EU with an opportunity to develop a multifaceted set of instruments and transformed enlargement into one of the EU’s most successful policies. The numerous challenges of the accession process, along with the immensity of the historical mission to unify Europe, lent speed to the emergence of the study of EU enlargement as a key research area. The early studies investigated the puzzle of the EU’s decision to enlarge with the CEECs, and the costs and benefits of the Eastern expansion. However, the questions about the impact of EU enlargement policy inspired a new research agenda. Studies of the influence of the EU on candidate and potential candidate countries have not only widened the research focus of Europeanization studies (beyond the member states of the Union), but also stimulated and shaped the debates on the scope and effectiveness of EU conditionality. Most of the analytical frameworks developed in the context of the Eastern enlargement have favored rational institutionalist approaches highlighting a credible membership perspective as the key explanatory variable. However, studies analyzing the impact of enlargement policy on the Western Balkan countries and Turkey have shed light on some of the limitations of the rationalist approaches and sought to identify new explanatory factors. After the completion of the fifth enlargement with the accession of Bulgaria and Romania in 2007, the research shifted to analyzing the continuity and change of EU enlargement policy and its impact on the candidate and potential candidate countries. There is also a growing number of studies examining the sustainability of the impact of EU conditionality after accession by looking into new members’ compliance with EU rules. The impact of EU enlargement policy on the development of European Neighbourhood Policy (ENP) and comparative evaluations of the Union’s performance across the two policy frameworks have also shaped and expanded the debate on the mechanisms and effectiveness of the EU’s influence. The impact of the Eastern enlargement on EU institutions and policymaking is another area of research that has emerged over the last decade. In less than two decades, the study of EU enlargement policy has produced a rich and diverse body of literature that has shaped the broader research agendas on Europeanization, implementation, and compliance and EU policymaking. Comprehensive theoretical and empirical studies have allowed us to develop a detailed understanding of the impact of the EU on the political and economic transformations in central and eastern Europe. The ongoing accession process provides more opportunities to study the evolving nature of EU enlargement policy, its impact on candidate countries, the development of EU policies, and the advancement of the integration project.

Article

Israel and the European Union  

Sharon Pardo

Israeli-European Union (EU) relations have consisted of a number of conflicting trends that have resulted in the emergence of a highly problematic and volatile relationship: one characterized by a strong and ever-increasing network of economic, cultural, and personal ties, yet marked, at the political level, by disappointment, bitterness, and anger. On the one hand, Israel has displayed a genuine desire to strengthen its ties with the EU and to be included as part of the European integration project. On the other hand, Israelis are deeply suspicious of the Union’s policies and are untrusting of the Union’s intentions toward the Israeli-Palestinian conflict and to the Middle East as a whole. As a result, Israel has been determined to minimize the EU’s role in the Middle East peace process (MEPP), and to deny it any direct involvement in the negotiations with the Palestinians. The article summarizes some key developments in Israeli-European Community (EC)/EU relations since 1957: the Israeli (re)turn to Europe in the late 1950s; EC–Israeli economic and trade relations; the 1980 Venice Declaration and the EC/EU involvement in the MEPP; EU–Israeli relations in a regional/Mediterranean context; the question of Israeli settlements’ products entering free of duty to the European Common Market; EU–Israeli relations in the age of the European Neighbourhood Policy (ENP); the failed attempt to upgrade EU–Israeli relations between the years 2007 and 2014; and the Union’s prohibition on EU funding to Israeli entities beyond the 1967 borders. By discussing the history of this uneasy relationship, the article further offers insights into how the EU is actually judged as a global-normative actor by Israelis.