The theory of intergovernmentalism differs in its approach to the neo-functionalist theory by its belief in the dominance of the state. The theory asserts that the EU is not a supranational authority but that the MS are only involved in the EU in order to pursue their national interests. Where the actors have common goals, the European countries will join together in pursuit of these goals, these being primarily economic advancement. Interestingly, this is what neo-functionalists refer to as political spillover. Intergovernmentalists argue that EU integration is a zero-sum game and that policy areas will not touch issues of national sovereignty. However, it is clear in the case of the ECJ in particular, that national sovereignty has been surpassed on a mass scale by Community laws. It is more a theory of international relations rather than of a supranational system and is an idea based on realism.
Haas predicted that supranational authority would surpass the national.
“Political integration is the process whereby political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states. The end result of a process of political integration is a new political community, superimposed over the pre-existing ones.”
This has been seen in the areas of supremacy and direct effect. In 1963 in Van Gend en Loos vs. Nederlandse Administratie the Court ruled that the Treaties conferred both obligations and rights to individuals, national and Community institutions and that these rights and obligations must be upheld by national courts. This has since been known as the principle of direct effect. In 1964 in the Costa vs. ENEL case, it was decided that where Community and national laws clashed, that Community laws could not be overruled. This is known as the principle of supremacy. These two main principles form the basis of the spillover theory and can no longer be separated. As nations have progressively lost sovereignty over their laws, this is a concrete example of neo-functionalism in action.
In the Francovich case of 1991 it was decided that MS would have to apply Community laws and that failure to do so would result in them having to undergo sanctions. This case began the principle of state liability. National courts were now obliged to order MS to give compensation to individuals or other legal persons provided the case met the following three criteria: ‘(1) the directive confers rights on individuals, (2) the contents of those rights are apparent from the directive, and (3) there is a causal link between the state’s failure to implement the directive and the loss suffered.’ In the adjoining cases, Brasserie du Pêcheur and Factortame III, the Court increased their original ruling to include all cases of breach by all governmental departments, whether administrative, political or judicial. They also amended (2) to include all incidents where the breach was ‘sufficiently serious’. The question of what constituted a sufficiently serious breach therefore had to be addressed. In a further three cases, British Telecommunications, Hedley Lomas, and Dillenkofer, the Court ruled that the states were not liable if they had acted in good faith or where legislation had not been sufficiently clear, however, all other instances were to be taken as sufficiently serious. Tallberg applies the contemporary economic principle-agent (P-A) theory with the addition of a supervisor to explain decentralized sanctions against non-complying MS.
“In the simple P-S-A model presented here, the member governments of the EU (multiple principals) assign to the Commission and the Court (supervisors) the task of enforcing the implementation of and compliance with EC law, as delegated to the individual member states (multiple agents). Member states are thus conceived of as both principals and agents, who at t0 collectively reach decisions in intergovernmental bodies, and at t1 are expected to individually carry out the adjustments necessary to realize these decisions. The supranational institutions, for their part, function as supervisors engaged by national governments for the purpose of monitoring actual member state behaviour and enforcing compliance with Community rules. This configuration reflects the roles of member states and institutions as laid down in the Treaties and as exercised in practice.”
This gradual increase in sanctions again shows the effect of spillover present in neo-functionalism. Nevertheless, besides this process involving official sanctions, The Open Method of Coordination (OMC) has been operating within the EU since the 1990s. This idea uses psychological coercion as a tool of compliance – naming and shaming and peer pressure. As no MS wants to be seen as performing the worst in any particular area, despite fulfilment being voluntary, this process works rather well and is therefore an argument in favour of intergovernmentalism.
Haas did not have the ECJ at the forefront of his mind when writing his Uniting of Europe (1958). Nevertheless, according to Moravcsik, the ECJ is unique amongst Community institutions in that the neo-functionalist approach has been validated empirically. The Court’s workload has increased dramatically, which is primarily why the CFI had to be created in order to ease the caseload. The addition of pillar three (JHA) cases has added to this but has also increased co-operation between the national and supranational levels, although the ECJ can only give preliminary rulings at present. Burley and Mattli (1993) saw that the ECJ was undergoing “‘substantive penetration’, meaning ‘the spilling over of community legal regulation from the narrowly economic domain into areas dealing with issues such as occupational health and safety, social welfare, education, and even political participation rights’”. The Court now also deals with cases relating to the free movement of peoples for the purposes of employment, including discrimination and asylum. This has been a necessary spillover resulting from the free movement of goods. It can be seen from this that a European system of social policies is being created and it would not be unfair to say that Europe is moving towards becoming a federalist system with a supreme court to match. De Burca and Weiler argue that the ECJ has expanded due to a growing mistrust amongst the population of national governments.
The second aspect of the neo-functionalist theory is the upgrading of common interests. This idea is that as people become more involved at the European level they will increasingly shift their loyalties from national to supranational. This is in the case of Community workers. But also interest and lobby groups have shifted their attentions towards the EU institutions and this has caused national politicians to also alter their focus. A recent development has been that powerful interest groups are now even involved in the decision-making process of shaping new EU legislation. These groups also provide a check on the Court to make sure it is upholding these new laws in their particular areas. This is important because public interest litigation is only possible if the interest group was involved in the process leading to adoption of the measure, e.g. in the Greenpeace cases of 1995 and 1998. There has also been a cultural move of individuals to settle disputes via legal channels and this has also given more power to the ECJ as well as other courts. Judges are being increasingly called upon to settle not just legal disputes but also to make moral judgements.
The third aspect of neo-functionalism which will be looked at now is the behaviour of the elites within the system. The MS elites have shifted their loyalties to the European level by becoming more involved at the European level both through their increased contact with the institutions but also out of self-interest. The judges and litigators are looking for personal advancement. They then encourage MS elites to do likewise. It must also be stressed that the judges of the ECJ are at the very top of their field and are chosen by the MS elites. They often have economic interests in large multinationals and are therefore likely to give rulings which will positively affect large corporations. An example of this would be the opening up of competition throughout Europe. This often does not help small or medium-sized businesses at all but greatly enhances the revenues of the former. This in turn, has lead to protectionist laws which safeguard the interests of regional producers, for example. Having said that, the ECJ cannot scrutinize the European Council (made up of the heads of MS) because their decisions are political and not legal. This is one of the many reasons for the EU being charged with having a democratic deficit. The participants of the ECJ have been accused of ‘judicial activism’. The EU elites are said to be on a special elite mission pushing the political agenda of integration by exceeding the limits provided in the Treaties at the expense of the interests of MS. Again, a further example of the democratic deficit. In so doing, argue Bengoetxea, MacCormick and Soriano, the Court has become interventionist and has crossed the line between the legal and the political realms. Perhaps the overlapping of legislative and judicial could be another example of spillover.
In conclusion, this essay has shown that the theory of neo-functionalism fits almost perfectly with the history of the ECJ. The effects of spillover can be seen with increasing jurisdiction of the Court not just in economic areas such as regulation of the Central European Bank and the Euro but also with the resulting increase in sanctions, and most certainly within the increase in the overall caseload. Interests and loyalties are being upgraded, in particular due to interest groups now being involved in the decision-making process of new laws. And finally, the much-criticised judicial activism shown by the Court in advancing the European agenda both for the self-advancement of the elites involved as well as for the sake of pressing forward for an ever more united Europe.
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Karen Oliver 000522483 Page |
Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007, p.189
Churchill, W. The Gathering Storm. The Reprint Society Ltd, London, 1950
Moravcsik, A. 'The European constitutional compromise and the neofunctionalist legacy',
Journal of European Public Policy, 12 (2), 2005, pp.349-386
Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007, p.189-192
Ibid., pp.193-195 & de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001, p.13
Cited in Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007, p.89
Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007, pp.196-197 & de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001, p.11
Wincott, D. Law, Order and Administration in the European Union. Sage Publications, London, 2001
Hosking, R. ‘European Law’, Spectrezine. Available at [accessed 11/01/2010]
de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001
Tallberg, J. ‘Supranational influence in EU enforcement: the ECJ and the principle of state liability’, Journal of European Public Policy, 7 (1), March 2000, pp.104-121
EFAH. (March 2007) ‘The Open Method of Coordination’, EFAH. Available at [accessed 11/01/2010]
Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007, pp.86
Moravcsik, A. 'The European constitutional compromise and the neofunctionalist legacy',
Journal of European Public Policy, 12 (2), 2005, pp.349-386
de Búrca, G. 'Rethinking law in neofunctionalist theory', Journal of European Public Policy,12 (2), 2005, pp.310-326
Arnull, A. The European Union and its Court of Justice (2nd edn.). Oxford University Press, New York, 2006, pp.462-481
Vesterdorf, B. ‘A constitutional court for the EU?’, International Journal of Constitutional Law, 4 (4), 2006, pp.607-617
de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001, p.10
de Búrca, G. 'Rethinking law in neofunctionalist theory', Journal of European Public Policy,12 (2), 2005, pp.310-326
de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001, p.23
Hosking, R. ‘European Law’, Spectrezine. Available at [accessed 11/01/2010]
Bounds, A. (30 June 2007) ‘EU trade chief to rebut Sarkozy in Paris’, FT.com. Available at [accessed 15/01/2010]
Cini, M. European Union Politics (2nd edn.). Oxford University Press, Oxford & New York, 2007
de Búrca, G & Weiler, J. The European Court of Justice. Oxford University Press, New York, 2001, p.43
