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How the European Union's Legal System Works and Does Not Work: Response to Carruba, Gabel, and Hankla

In a recent paper published by the APSR, Carrubba, Gabel, and Hankla [CGH] claim that the decision-making of the European Court of Justice (ECJ) has been constrained – systematically – by the threat of override on the part of Member State Governments, acting collectively, and the threat of non-compliance on the part of any single State. They also purport to have found strong evidence in favor of Intergovernmentalist, but not Neofunctionalist, integration theory. In this paper, we reject CGH’s claims on the basis of our analysis of the same data. We show that the threat of override is not credible, and that the legal system is activated, rather than paralyzed, by non-compliance. Moreover, in a head to head showdown between Intergovernmentalism and Neofunctionalism, the latter wins in a landslide. The data do provide support for the view that the ECJ engages in “majoritarian activism.” In fact, CGH most robust finding is that when Member States urge the Court to censor a defendant State for non-compliance, the ECJ tends to do so. In such cases, Governments work to reinforce the Court’s authority, not to “constrain” it.