Member States' Governments and the European Court of Justice: Governments as 'Repeat Players' in Judicial Decision Making at EU Level Paper delivered at the EUSA's Eight Biennial Conference, Nashville, Tennessee, March 26-29, 2004 Marie-Pierre Granger, PhD University of Exeter (United Kingdom) Department of Law, Center for European Legal Studies (CELS) This paper is based on my PhD thesis The Influence of Member States' Governments on Community Case Law: A Structurationist-Perspective on the Influence of EU Governments in and on the Decision-Making of the European Court of Justice. 1. Introduction Is the European Court of Justice (hereinafter ECJ or the Court) like a puppet in the hands of Member States' governments? Or has it 'run wild',1 following its own interests and agenda, so as to independently influence the course of events in European integration? Or are the judges so compelled by the 'rule of law', by the spirit, scheme or terms2 of the Treaties and secondary Community law, that they cannot be under much influence from political actors such as governments? Or is the ECJ decision-making a complex social process in which legal actors, including governments' lawyers, have a predominant role to play? These questions represent schematically the dominant political and legal approaches which consider the possibility for governments to influence ECJ decisions. This paper proposes an integrative 'big picture' perspective of the ECJ decision-making process and of the role played by governments in that process, with the view to assess more comprehensively the influence of governments on the making of the Community case law. It suggests the use of a structurationist approach to the process of decision-making at the ECJ, so as to reveal the multiple structural dynamics of that process and the wide range of actors which can play a part in it. Adopting such standpoint makes it possible to identify a wide variety of means by which governments can influence ECJ decisions, beyond the formal control means which are the center of focus of much of the political science literature. One of these means consists in participating in proceedings before the Court. Governments' participation strategies, that is their rationale, policies and organizational, procedural, human and material resources are analyzed so as to provide some indications as to whether governments can be considered as 'Repeat-Players' capable of substantially shape legal change at the level of the European Union (EU),3 through their influence on the ECJ judicial decision process. 2. The Theoretical Background: Towards a Structurationist Approach to the ECJ Decision-making The nature of the relationship between the EU Member States' governments and supranational institutions, such as the EC Commission and the ECJ, have been the center of virulent controversies among political scientists engaged in developing substantive theories aimed at explaining the process integration in Europe. On one side of the ring, neo-functionalists, relying on methodological individualism, posit that governments do not control supranational institutions. The Court and the Commission, their argue, act strategically to pursue their own interests, define agendas and mobilize resources in a way which, as they are supported in their policy-making by sub-national actors (in particular national courts and individuals) also pursuing their own interests, enable them to have an autonomous influence on the process of European integration.4mOn the other side of the ring, intergovernmentalist scholars, relying on similar methodologies (e.g. rational choice and game theories and principal-agent analysis), come to the opposite conclusion that governments are ultimately 'in control'. These supranational bodies, they claim, are merely transmission belts, assisting governments in reducing costs linked with implementing, monitoring, enforcing or filling gaps in intergovernmental agreements, thereby improving the credibility of governments commitments. Allegedly, Member States' governments have effective means at their disposal to prevent or sanction any 'shirking'5 on the part of these institutional actors.6 In addition to these two contenders for the title of 'The Ultimate European Integration Theory', a third theoretical framework has gained grounds over the last decade. New institutionalism provides for alternative middle-way explanations of the role of EU supranational institutions and their relationship with governmental actors. Members of this theoretical family start from more neutral premises regarding the (lack of) independent influence of formal as well as more informal institutions. Rational choice institutionalists, focusing on governmental and institutional actors' strategic actions, claim that EU supranational institutions, despite being agents of the Member States, may still enjoy a significant autonomy from their 'multiple principals' (the Member States) and have bearings of their own on outcomes. The extent of this influence, they contend, is contingent to a series of factors, such as the extent of informational asymetries between principals and agents, or the nature and functions of these agents, as these may affect the availability of constraints which could prevent agency shirking or that of credible means of sanctions in case of such agency shirking.7 As to historical institutionalists, they contend that, while the principals (the Member States) may have some significant control over the setting up and design of supranational institutions, the latter engage in a process of gradual 'autonomization' over time, which follows from asymetries of powers and information associated with institutions, routinization, unforeseen consequences and path- dependencies.8 In addition to these three distinctive 'schools', there have been less theoretically positioned works on judicial politics or comparative constitutional politics, which have examined the dynamics and actors of integration by judicial fiat in Europe.9 The common point between all these theoretical frameworks is that they tend to be ontologically rationalist. They emphasize material aspects over ideational ones and the rationality of agents over structural influences. Positivist influences are visible in their insistence on trying to establish strong causal links between actors' actions and outcomes and their tendency to rely on quantitative research strategies and tools (e.g. statistics and mathematical models).10 Finally, many tend to use deductive rather than inductive approaches to research,11 selecting and interpreting events and facts to test and (coincidentally?) support their explanations of European integration. Another possible shortcoming is that these pieces adopt the International Relations tradition which consists in extending the scope of rational analysis beyond individual actors to 'collective' actors, by conceptualizing EU institutions and the Member States' governments as monolithic actors for the purpose of their principal-agent analyses. It is suggested such reductions can impair the explaining virtues of these analyses, to the extent that they are likely to underestimate the complexities involved in administrative or judicial decision-making. At the other end of the meta-theoretical spectrum, reflectivism, the 'antithesis' of rationalism, follows interpretative trends in the sociology of science and consists in considering that all realities are socially constructed and that only social kinds, such as ideas, have significant influence and are thus worth examining. Such ontological orientations are rare in European studies.12 Alongside political scientists, legal scholars have provided their own accounts of integration in Europe and of how judicial decisions are made. Scholars of the Communities' early days were inclined to assume a quasi-monopolistic determination of legal structures and actors (ECJ and national judges) over these processes. They viewed ECJ decisions as the products of the framework Community Treaties and secondary legislation processed through legal reasoning by legal actors, without envisaging the possibility of much interference from non-legal factors or actors. Until the 1990s, little research was carried out on the Community judicial process. Then, Court's members' presentations of the working of their institutions13 and socio-legal or 'law-in-context' approaches14 threw more lights as to the importance of political, economic and social factors on the ECJ decision-making process and the role of the various actors other than the judges themselves in the process. It is accepted that governments contribute to judicial decision-making by participating to judicial proceedings before the ECJ, but other means of governmental influence are played down. Legal accounts of European integration are usually not presented in a systemic way, and incline towards a casuistic nature. The impact of legal and non-legal factors or actors on particular decisions are generally assumed in an intuitive manner rather than identified through the use of a methodological framework. Confronted to all these a priori equally valid although at times contradictory understandings of the ECJ decision-making, viewed by all as a reflection of European integration as a whole,15 one is tempted to investigate what are the roots of such disagreements. Additionally, one becomes concerned with trying to find a way whereby these contradictory findings could be reconciled within a single analytical framework. An interdisciplinary review of the literature on European integration and on judicial decision-making in general and in the Community courts reveals the inherent complexity of the ECJ decision-making process. It indicates that such process can simply not be reduced to the simple (simplistic?) models too often adopted by political scientist or legal scholars alike. Obviously, simple models of ECJ decision-making are attractive, in particular for those who seek to establish strong causal relationships (the less variables the better). However, this oversimplification of judicial decision-making runs the risk of gravely undermining the explanatory value of theories based on these epistemological grounds. This paper advocates moving away from the current tendency, which consists in knowing more and more about less and less and going back to the wider picture. This is not to criticize studies of decision-making processes which focus is on particular policy areas or on the significance of specific players or factors. These works are perfectly necessary and useful, in understanding the multiple dynamics of integration processes. However, it is submitted that there is definitely some spare room in the field of interdisciplinary studies of European integration for more all-embracing views of the ECJ decision-making. In order to design a more inclusive explanatory framework for the ECJ decision-making, one has to look for suitable conceptual foundations. Helpful insights are to be found in the philosophy of social sciences. Constructivism, a 'middle-ground' theory16 developed in International Relations as a reaction against the two extremes of rationalism and reflectivism, may provide an adequate meta-theoretical basis. Constructivism is focused on 'social' ontologies, that is ideational ones rather than material ones. These are in particular intersubjective meanings, norms, rules, institutions, 'routinised' practices, discourses, constitutive and deliberative processes, communicative action, cultures, etc. 17 Sociological constructivism, as represented by Giddens' structuration theory, aims at studying the impact of formal and informal norms on actors' identities, interests and behaviour and stresses the special nature of the interactions of agency and structure, understood as co-constituting each other.18 Constructivist perspectives are gradually surfacing in recent works on European integration ('constructivist turn'). Their presence in EU legal works is now more than embryonic19 and they are increasingly popular among political scientists researching on European integration. Constructivist influence is indeed to be found in works by sociological institutionalists, which take into account the cultural, ideological and normative dimensions of institutions and posit that formal and informal institutions do not only affect the strategic calculations of actors, but also their own preferences and identities.20 3. ECJ Decision-making: Interactions between Anatomy, Environment and Actors It is suggested that the dynamics of the ECJ decision-making can be better understood if one adopts a structurationist perspective on that process. The structuration theory posits that agency, defined as peoples' capabilities of doing things, and structure, defined as the rules and resources recursively implicated in social production, are co-constituting of each other. It follows from that that the structural properties of any social process both enable and constrain agency, but actors can act upon this structural environment through interactions with other actors (emphasis on communicative action and intersubjectivity). Consequently, the ECJ decision-making process can be conceptualize as a 'structured process' on which and within which many players act and interact and judicial outcomes as the products of a complex, continuously evolving and context-sensitive social process, in which structural elements and actors co-constitute each other. Such an approach hints that legal proceedings are only the tip of the iceberg and that an important part of the decision-making process takes place under the water level, that is outside the framework of formal proceedings.21 This immersed part of the process can nonetheless be partly captured by the adoption of a research methodology inspired by Giddens' structuration theory, which emphasizes the need for both qualitative and quantitative research and macro- and microanalyses.22 The structural framework of ECJ judicial decision-making has evolved over time, as a result of agent-structure interactions, and varies depending on the subject-specific context. However, beyond these time and context variations, one may identify two main types of structural elements, which shape the ECJ decision-making. There are the structural characteristics of the ECJ as the judicial institution of the EU (i.e. 'internal' or 'institutional' structures), which can be visualized as the 'anatomy' of ECJ judicial decision-making. These institutional properties can be further divided in four main categories: organizational (e.g. the material and human resources available to the Court, the composition of the Court, its location, its language regime, its working methods and practices, etc.), procedural (e.g. internal procedures and judicial procedures), substantive (e.g. the use of precedent, methods of interpretation, development and reliance on general principles of law) or normative (e.g. judicial and normative philosophies) features. These internal structures interact through agency mediation with the systemic environment in which judicial decision-making at the ECJ takes place (i.e. external structures). These consist in structural elements of the intertwined sub-national, national, supranational and international legal, political, economic and social systems.23 At supranational level, significant structural elements which are likely to affect ECJ decision-making are EU law itself (e.g. the EC and EU Treaties, EU legislation, case law, international agreements, 'soft law', etc.), in particular its nature and scope. Because of the loosely-knit nature of most of Community law provisions, at least in the earlier years (framework nature of the EC and EU Treaties and Directives, imprecisely worded articles, absence of definitions of important terms, constitutional24 and implementation gaps,25 etc.) and the element of indeterminacy which is present in any kind of law, there is a space for discretionary choices by the ECJ judges. Therefore, other structural elements come into play to influence judicial decision-making. These are political structures (e.g. the EU institutional design and balance, policies, decision-making rules, etc.), economic processes (e.g. the degree of economic integration, economic globalization, market pressure, etc.) and social aspects (e.g. the existence of a European demos or demoi, concerns over the EU legitimacy and the democratic deficit, popular perceptions of European integration, the discourse on Europe, European identity construction, etc). Besides, one should not discard the impact of the national contexts. For example, relationship between lower and higher national courts or the traditional role of judges in national legal systems, or the activism of national interest groups or lawyers, or national legal or procedural rules, may affect the ECJ decision-making process by influencing the nature and level of preliminary references sent to the ECJ under Article 234 EC procedures.26 These internal and external structural elements enable and constrain a wide variety of actors, which can directly or indirectly impact on judicial decision-making at the ECJ. These are not only the ECJ judges, allegedly the 'ultimate' decision-makers, but also the Advocate Generals27 and the ECJ staff (e.g. référendaires),28 the Commission staff (in particular the staff of its Legal Service),29 the EC Council (ministerial agents and Legal Service in particular), the European Parliament (i.e. its MEPs and the Legal Service), national courts' judges,30 individuals, companies, interests groups and their lawyers,31 national governments and administrations and their staff,32 national parliaments and their members, national politicians, academics and scholars,33 journalists, members of the civil society, and even the general public at large.34 These actors have possibilities and opportunities to make a difference on judicial outcomes, by acting within the structural elements which shape the ECJ decision-making process, or alternatively, if these are not favorable, by putting pressure for their change with the view to secure future favorable outcomes. This structurationist framework thus provides a more comprehensive understanding of how judicial decisions are make at EU level and opens avenues for investigating and bringing together influential factors and actors which until now may have been undermined by existing research or examined single-handedly. It is useful in particular in order to identify the several ways by which various types of actors can influence the making of the Community case law and offers conceptual tools for identifying and assessing the means of influence that governments may have on it. 3. Governments and the ECJ Decision-making: 'Out-of-Court' and 'In-Court' Actions The starting hypothesis which follows from the adoption of a structurationist framework of the ECJ decision-making is that governments can make a difference on EU judicial outcomes by interacting with other actors within or upon the structural elements which shape that process. It is possible to distinguish between different types of actions, which are available to national governments seeking to do so. Governments may behave in a rather 'traditional' manner, that is as 'politicians', using means which are rather 'political' in nature and acting merely from outside the Courtroom. They may also opt for action in the courtroom, arraying themselves with a lawyer's robe and using legal proceedings and arguments to influence judicial outcomes. Various research tools have been used in order to identify the governments' means of influence, their use of such means and the assessment of their effects on the direction of the Community case law. A literature survey of the works of political and legal scholars and judges dealing with European integration, EU institutions (including the Court), Community substantive political or legal developments and judicial decision-making (in the ECJ and in the US Supreme Court) and case studies provides valuable and rather comprehensive information pertaining to governments' attempts and ability to influence judicial decisions by acting outside the Court. However, when it comes to governments' participation in judicial proceedings, one is confronted to a lack of publicly available comprehensive and up-to-date information.35 An empirical research, which included both quantitative (e.g. statistical analysis) and qualitative (e.g. open- questionnaire and semi-structured interviews) aspects, was carried out so that to find out more about governments' participation strategies. Before moving on to the governments' means of influence over the making of the Community case law, it is suggested to first consider the possibility of treating governments as 'unitary actors' and to identify and explain governments' interests in trying to do so. 3.1 Disaggregating governments? A need has been felt in recent European integration studies36 to move away from the concept of state as covering whole countries as political actor and to desaggregate the state into several components, such as parliament, governments, courts, and even further into categories such national MPs, national judges, national politicians, public administrators, armed forces, sub-national executives, agencies, civil society, and so on in order to take account of the diversity of interests hiding behind the state cover, to lift the 'state veil'. There have also been attempts at desaggregating EU institutions such as the Council.37 When one considers the diversity and conflicts of interests that may exist within governments themselves, between the ministers, elected politicians, and the civil servants, permanent employees,38 or between different ministries for example, one is very tempted to also desaggregate governments down to the individuals which compose them (behavioralist trend). It is nevertheless suggested to consider national governments as unitary actors for the purpose of assessing their influence over or in the ECJ decision-making process, as there is a conscious effort on the part of national governments to present a single consistent position in EU decision-making processes. To achieve this, procedures exist within national administrations to resolve conflicts of interests and determine the government's position. Therefore, in most cases, where governments act at EU level, they act as a unitary actor. However, one should not loose sight of the potential diversity of governments' interests and of their impact on the ability of governments to influence the ECJ judicial decision-making. Besides, the detailed analysis of governmental participation policy will also reveal that individuals matter. 3.2 Governments' Interests: From 'The National Interest' to 'The Community' Interest A brief study of interests appears fundamental if one endorses the view that social outcomes are the results of the activity of knowledgeable,39 rational, reflexive and motivated actors,40 interacting within an enabling and constraining structural context which they perceive, reproduce and transform. Within that perspective, actors' interests are not predetermined and fixed, but they are socially constructed and evolve through actors interactions with their structural environment and through their relationship with other actors. At first, governments appeared to show 'little interest' towards what was happening in Luxembourg. This attitude could be linked to a lack of awareness of the importance of the Court's rulings for the integration process, or a misunderstanding of the nature of that decision-making process, perhaps seen as being predetermined by legal rules (decisions as 'inevitable consequences of Community law and legal rules').41 An alternative explanation would be that governments did understand the nature of what was going on in Luxembourg, but did not feel an urge to interfere as they felt in control of the legislative and treaty-making processes, thanks to the prevailing unanimity rule in most decision-making at Community level (due the 1966 Luxembourg compromise and the Treaty amendment procedure). Besides, the integrative case law of the Court on supremacy42 and direct effect43 may have been perceived by (some) governments as ultimately furthering their own interests to the extent that it ensured compliance with norms to which they had all agreed, and it could be that governments considered that the Court was doing a good job (intergovernmentalist view).44 Governments therefore appeared to have little incentives to be too preoccupied by the Court's activities. However, as this structural environment evolved as well as governments' understanding of it, they started to 'develop an interest' for decision-making at the ECJ. Indeed, as individual governments' influence over Treaty reform and legislative processes is irremediably reducing, as a result of the increased participation of many other actors (e.g. more member States, European Parliament, consultative bodies, social partners, civil society, etc.),45 the necessity to look for other fora of influence is automatically stronger. Judicial decision-making becomes a privileged target, when one realizes the significance of the ECJ case law for the integration process. In addition, it is also discernible from testimonies of governments' officials that governments began to properly acknowledge that judicial decisions were more than the result of the mechanical application of the legal texts. The potential for influence thus becoming more visible to them, the motivation for trying to use all sorts of means of influence increased. It is possible to argue moreover that as governments find it harder to selectively exit their obligations under ECJ case law, since national courts gradually rally behind the ECJ and enforce its decisions against them, it becomes more important for these national administrations to make sure that the Court does not deliver adverse decisions in the first place. Yet, trying to influence the ECJ decision-making is not all about power. It is also about legitimacy. Governments may takes measures aimed at influencing the ECJ decision-making when it is likely that the ruling is going to be unpopular domestically, just to be seen to be doing something, although they may agree in fact with the direction taken by the case law. Besides, attempting to direct the case law in a particular direction can be motivated by the wish to have governmental policies or regulatory activities legitimated by having them recognized as 'legal' under Community law. Moreover, an analysis of governments' strategies and policies reveals that governments' actions are not necessarily motivated by the safeguard of domestic interests, be they political, economic or social,46 but also by the will to promote the Community interest.47 This apparent shift in the motivations of national governments may betray an evolution in states' identities, and therefore interests, moving away from that of the 'Nation' State and coming to terms with that of the 'Member' State, and that of governments as being less and less arms of the nation-state, more and more that of the EU institutions.48 Governments' prevalent position within the EU political order ('executive dominance') can give them a material incentive to even promote Community interests over domestic ones, unless it is likely to undermine their popular legitimacy. However, this change may also be explained by socialization and discursive processes between national and EU politicians and civil servants within the EU institutional settings.49 Governments have various reasons for wanting to influence judicial decisions. However, they also have an interest in preserving the existence and independence of the EU judicial system, so as to guarantee the credibility of and compliance with their agreements, to ensure fair decision-making in interstate or state-EU disputes, to fill the gaps of their incomplete contracting, or even to use the Court as a scapegoat for unpopular measures. Governments must therefore find the right balance between too much governmental passivity and too much governmental activism towards the EU judicial process. Their actions aimed at influencing judicial decision-making, in particular those taking place outside the Court, reflect this need to find the right equilibrium. 3.3 Out-of-Court's Actions Acting externally is not a priori synonymous of 'less influence' over judicial outcomes. The structural properties that shape the ECJ decision-making process create several opportunities for governments, acting either collectively, or individually, to influence the ECJ decision-making from the outside. For example, Member States' governments, since they 'hold the purse strings' (i.e. control over the Court's budget via the EU Council), can impose constraints on judicial decision-making,50 in a way which can affect the amount of cases dealt with by the Court, the quality of the judgments or their diffusion.51 In addition, as the judicial procedures and the ECJ powers and jurisdictions are defined in the EC Treaties52 and the attached Protocol on the Statute of the Court,53 governments could use their formal control over Treaty revision and Statute's amendments54 to threaten, sanction or reduce the Court's delivery of adverse decisions. Moreover, governments can, and have, resorted to such means not for 'clipping the Court's wings' as such but for 'ring-fencing territories'. Indeed, Member States' governments, when negotiating the Maastricht Treaty, were careful to exclude from and subsequently limit the Court's jurisdiction over matters falling under the Second and Third Pillars (respectively Common Foreign and Security Policy and Justice and Home Affairs). Such exclusion could explain the noticeably restrained judicial attitude in the years following the event (although the extent and cause of these restraints are debated).55 Governments' control over judicial procedures, powers and jurisdictions can also be used to 'reward' the judges, showing support for their functions and activities. For example, through the reform of the system achieved by the Treaty of Nice, the governments have enhanced the efficiency of the EU judicial system, reinforced the position and legitimacy of the Court as the EU Supreme Court and increased the autonomy of the EU decision-making process by changing the procedures for amending the Statute and the Rules of Procedure of the Court.56 Governments may also use their treaty reform or legislative powers in a more diffuse manner, to limit the scope of competence of the EU and henceforth the scope of supervision of EU institutions, such as the Court. However, until recently, governments' policy has been one of expansion rather than reduction (e.g. extensive use of Article 308 EC, gradual incorporation into the Treaties of more policy areas).57 Governments may also influence judicial decisions by acting upon EC substantive law. For example, governments can take preventive measures to limit the scope of judicial creativity (e.g. more precise drafting of legal provisions).58 Because of the unanimity rule prevailing in Treaty design and reform and in legislative practices (until the SEA), precision was not the strong point of Community Treaties or legislation, which left a wide margin for judicial interpretation. The increased used of qualified majority voting, which reduces the need for consensual drafting, should improve precision, thereby reducing the judges' room for law-making. Governments may also use their powers as Treaty-makers or legislators to take preventive measures against extensive judicial interpretation by the ECJ (e.g. Irish Protocol on Abortion,59 the Danish Second Home Protocol,60 amendment by the Amsterdam Treaty of Article 13 EC, etc.). They can also act a posteriori by 'correcting' a Court's 'mis-interpretation' of a EU legal provision, via Treaty revision, additional protocols (e.g. Barber protocol)61 or amendment of EU secondary legislation.62 Governments can equally use these powers to confirm substantive developments which occur in the case law and thereby support further developments in that direction, by incorporating them into the Treaties.63 Yet, the capacity of governments to influence judicial decisions by acting collectively to change some of the basic structural properties which shape the ECJ decision-making process is limited by reason of the EU political decision-making process (e.g. unanimity for Treaty reform, unanimity or qualified majority rules in the Council, the degree of involvement of the Parliament, the need for a Commission's proposal initiative, etc.) and context (e.g. the need for Member States' strong coalitions, support of smaller states to the ECJ), which favor the status quo and limit the capacity of governments to react to unexpected developments, such as the use by individuals of the preliminary reference procedure (Article 234 EC) as an efficient means for challenging Member-States' laws which are allegedly in breach of Community law and force them into compliance. Because of these heavy constraints, governments may find it more profitable to adopt 'go-it-alone' strategies. They can thus try to influence future judgments by criticizing adverse judicial decisions. Although neglected in the political literature, public criticism can affect judicial decision-making because judges are concerned not only about expending their powers or increasing the reach of EU law, but also about their legitimacy. Unlike the Commission, the Court has been relatively sparred, with the exception of a few hostile reactions in the 1990s.64 The effectiveness of criticism in changing the course of the case law depends on various factors, including the personality of the author, whether popular support goes for the court or for the government, reporting of the incident by the media, etc.). There is no reported case of case law being overturned by a later decision as a follow-up to critics by politicians. Yet, this does not mean that criticism cannot lead the judges toward showing more deference to governments' views. Government could also try to influence judicial decisions by using the technique of political appointments and re-appointments. Such possibility could well be envisaged, for the judges (one per Member States) and Advocate Generals (eight of them) are appointed by governments for a short mandate of six years.65 However, as opposed to what is commonplace in the US Supreme Court (to which the ECJ is often compared), such technique has not really been used by Member States' governments to influence ECJ judicial decisions.66 The fact that there are no dissenting opinions and that judgments are presented as being collective unanimous decisions has probably something to do with it, in that as it makes it delicate to pinpoint the input of particular judges and therefore to identify and sanction their possible 'deviance.' Besides, even if governments would appoint a particular member for 'political' reasons, the strong socialization process among the Court's member creates an 'esprit de corps' which makes them more immune to the pressure from national or governmental interests once in function. However, the growing awareness of the Court's political role among governmental actors, the increased used of smaller formations of judgments, and the increasing number of judges may be factors that could lead to an increase in the use and efficiency of political appointment as a governmental tool for influence.67 Finally, government may resort to non-compliance with ECJ decisions to influence future judicial decision-making or reduce the practical consequences of judicial decisions. It is assumed that the Court's is concerned with making sure that its decisions are respected, and may be willing to adjust its case law so as to guarantee that its decisions are respected.68 Case studies suggest that although governments may be successful in evading the obligations imposed on them by the Court in the short term, non-compliance does not seem to significantly affect future decision-making. Besides, in the long run, governments are usually forced to comply, as individuals bring cases against them for non-compliance and national judges, giving precedence and direct effect to Community law, enforce it against their deviant government. This brief survey reveals limits to governments' ability or willingness to influence judicial outcomes by acting outside the court's arena. Governments have developed alternative stratagems to make their print on the development of the Community case law. 3.4 Governments' In-Court Actions The focus will now be placed on governments' participation in preliminary reference proceedings under Article 234 EC. According to this provision, national courts can or must, when necessary, refer to the ECJ questions concerning the interpretation of Community law and the validity of Community secondary legislation. The choice of that procedure is guided by various factors. First, because of its dual nature as an interpretative tool and as a de facto means of indirect judicial review of both national acts and Community acts incompatible with Community law, this procedure has become the procedural pillar of the Community legal order. In fact, most of the landmark cases, such as the so-called 'constitutional cases',69 as well as important substantive case law developments,70 have been and still are preliminary rulings. Secondly, preliminary references constitute the bulk of the ECJ case law.71 Thirdly, in that it creates a direct link between national courts and the ECJ, and enables for interactions between national law and Community law, the procedure can be a fantastic integration as well as disintegration tool.72 It therefore appears as a good reflection of the European integration process as a whole.73 Envisaging judicial decisions from a structurationist perspective leads to view them as the result of an intersubjective, discursive and persuasive process between interested actors. With that vision in mind, direct contribution to the discourse, by means of participation in judicial proceedings, appears as an obvious means of influence. Strangely enough, it seems that it took a lot of time for governments to come to this realization and to 'take participation seriously', despite they having a privileged access to that process. Most governments nevertheless seem to have caught up or to be catching up to become real Repeat Players in the EU litigation. 3.4.1 A Favorable Participatory Framework Governments are placed, or rather placed themselves,74 in a privileged position in the communicative framework of the ECJ judicial proceedings. Article 40 of the ECJ Statute75 grants all Member States and EU institutions a right to intervene in any direct action brought before the ECJ, while private parties have to establish an interest and cannot intervene in inter-institutional cases or disputes between the EU and Member States. Article 23 of that Statute grants Member States and EU institutions a right to submit observations in all the preliminary reference cases submitted to the ECJ under Article 234 EC, while the only 'individuals'76 entitled to submit observations are the ones which are parties in the main (national) proceeding which gives rise to the reference. In addition to voluntary participation, the Court may also request governments to provide specific information which appears necessary for making a decision (Article 24 ECJ Statute). Member States and EU institutions are represented by an agent appointed for each case, which can be assisted by an adviser or a lawyer, while private parties can only be represented by a qualified lawyer authorized to practice in a Member State.77 This rule favors the former by providing them with the ability to rely on multiple expertise (technical, scientific, administrative, political and legal). Each time the ECJ receives a preliminary reference from a national court, it notifies all the Member States, EU institutions and the parties.78 Participation in preliminary reference takes two forms: the submission of written observations (or statement of cases) and participation in the hearing.79 The purpose of the written procedure is to provide 'an exhaustive account of the facts, pleas and arguments of the parties and the form of order sought.'80 These will be summarized in the report of the reporting judge for the case, which will be circulated to the interested parties and to the judges and Advocate General for the cases before the hearing.81 The function of the oral hearing is really for the interested parties to supplement the files, by answering questions put by the judges, replying to other parties' written observations, summarily recalling the parties' positions, emphasizing the main points, submitting new arguments prompted by recent events or further developing complex and difficult issues. Due to the influence of the French legal tradition and the need for simultaneous translation, the oral hearing does not have the importance that it is arrayed with in common law countries. Pleadings are brief (thirty minutes) and must be to the point. The costs of submitting observations are not recoverable by Member States. After the oral hearing, the Advocate General, 'acting with complete impartiality and independence,' makes a 'reasoned submissions... in order to assist the Court in the performance of [its] task.'82 His Opinion, which reviews and assesses the parties arguments, analyses relevant EU/EC positive law (including case law), and examines doctrinal views and compares with national or international laws, so as to suggest a solution to the Court, is very influential on the judges. Then, the judges deliberate and make a collegial decision on a consensual basis (no dissenting opinion). The deliberations of the judges are and must remain secret.83 This participation framework is overall very favorable to governments from a procedural perspective, although the timeframe can be problematic. Indeed, governments have only two months from notification to submit written observations, which can be tough to meet for collective bodies such as governments, in particular where intra-governmental conflicts arise as to the opportunity or substance of observations. Substantive constraints appear nonetheless as more significant with regard to governments' capacity to influence judicial outcomes by taking part in proceedings. In particular, governments must dress the non-legal concerns which often motivate their submissions with legal clothes, or at least in present them in argumentative forms which are acceptable in judicial proceedings. Social, historical, political, economical or cultural arguments, similar to that submitted in US Brandeis briefs,84 are accepted by the ECJ, but only in support of a particular application or interpretation of legal norms. Yet, the opportunity is there for governments to put their print on the Community case law in a way which furthers their interests, and this at a relatively small cost in terms of resources and legitimacy, to the extent that governments' interests become wrapped in the clothes of Community legality. Governments have come to realize this, as testified by governments' more active participation policies and by the steady relative increase in the number of observations submitted to the Court. However, do they make full use of this opportunity? 3.4.2 Governments as Repeat-Players (RP) or One-Shotters (OS)? The famous 'Repeat Player analysis' developed by Galanter appears useful in assessing how actors in the society make use of the opportunities offered to them.85 According to Galanter, litigants can be divided in two categories: those who occasionally resort to courts (One-Shooters) and those who are repeatedly engaged in litigation (Repeat Players). Repeat Players, arguably motivated by the urge to increase their powers or legitimacy, are more interested in long-term rule change than in occasional judicial success. Winning the war is the objective, even if that entails loosing some battles! They thus develop active litigation policies, mobilize resources and develop links with institutions and a familiarity with judicial processes, which are likely to enable them to achieve this aim. One Shotters' ambition, on the contrary, is merely to win the single case in which they have found themselves involved accidentally and they mobilize their resources accordingly, on an ad hoc basis. Galanter's hypothesis is that Repeat Players, because of their policies, resources, connections and understanding of judicial processes, are more likely to impact on legal change over time. This hypothesis can be transposed to governments' participation in ECJ preliminary reference proceedings. If governments have the strategies of Repeat-Players, it follows that they should be more likely to have an impact of the direction of the Community case law, than if they tend to behave as One Shotters. In order to draw conclusions on governments' ability to influence that case law, it therefore appears necessary to investigate their participation strategies. This was done on the basis of a statistical analysis of observations submitted by the fifteen Member States governments,86 supplemented by an empirical qualitative research carried out on ten out Member States governments (Belgium, Denmark, Finland, France, Germany, Luxembourg, the Netherlands, Portugal, Sweden and the United-Kingdom).87 The analysis of governmental practices focuses on selected aspects, which can give indications as to the Repeat Players capacities of Member States governments. 3.4.2.1 Governments' Policies as Repeat Players Policies? Governments' real policies are not always clearly defined or publicly acknowledged by governmental actors. The identification of governments' policies therefore implies not only asking politicians or public servants about their governments' policies, but also cross-checking or supplementing this information with an analysis of other aspects, such as governmental interests, governments' understanding of their role in the judicial process and in European integration, the frequency and subject-matter of governments' observations, and so on. Such multi-focused analysis leads to the following observations. As mentioned earlier, governments' interest for 'Luxembourg' was at first limited. Their participation to proceedings was by and large limited to their defending themselves in enforcement actions brought against them by the Commission under Articles 226-228 EC (ex 169-171 EC). Their interests were closer to those of One Shooters, than to those of Repeat Players. However, in the late 1970s and early 1980s, governments became more active, in particular in preliminary reference proceedings. A series of justification are put forward by governments' agents to justify this burst of activity seems, which range from the growing awareness among governments of the importance of the procedure as a means of challenging national laws, policies and practices, and as a tool for further legal integration, of the significance of the ECJ case law in the process of European legal and political integration, of the law-making powers of the ECJ and of the possibility of influencing judicial decisions through participation and submissions of good arguments to the judges.88 An additional reason, which is not mentioned by governmental agents, but is likely to have played a part in governments' decision to adopt more energetic litigation policies, is the fact that the application and enforcement by national courts of the ECJ case law, as it resulted from the ECJ doctrine of direct effect, supremacy and State liability, and the gradual acceptance, respect and enforcement of these doctrines by national judges, make it more difficult and risky for governments not to comply. Where the selective exit door is gradually closing, making sure that the Court does not deliver adverse decisions in the first place becomes more of a priority than when the only risk run by deviant State was to be brought before the Court by the Commission for failure to comply with its Treaty obligations.89 The expressed motivations for governmental participation, as exposed by governments' agents acting before the Court, are of two types: the defense of domestic or national (legal, political, social, or economic) interests and the promotion of the Community interest. The defense of national interests remains the main motivation for participation. This is confirmed by the fact that most governments' agents confirmed that their government follows a practice of submitting observations in preliminary reference proceedings initiated by their national courts (usually involving national law being incompatible with Community law),90 or where current or future national policies are challenged directly or indirectly (through challenge of a similar policy of another state), or where the economic interests of domestic actors, either public (e.g. State finances) or private (e.g. private companies), are at stake.91 These policy statements are corroborated by the statistical analysis.92 However, governments' representatives increasingly claim that their government also submits observations to influence Community law and practices (France and Sweden) or to promote a particular vision of Community law (United Kingdom, France, Denmark, Portugal). These motivations reflect active rather than defensive policies of participation, which suggest that governments adopting such influence policies behave like Repeat Players. This assumption appears confirmed by the fact that, in case of conflicts between the occasional defense of domestic interests and long term influence on the ECJ case law, these governments tend to favor the longer term prospects.93 Some governments also look as if they have Repeat Players influence strategies in some specific areas, while being defensive in others.94 However, policies of defense and influence represent the two sides of the same coin. Indeed, they both ultimately tend towards safeguarding and promoting national interests, either by defending them when they appear threatened by Community law, or by having these interests 'communitarized' so as to guarantee their protection in the long run. Interestingly, some governmental agents assert that their government submits observations not only to defend national interests or influence Community law, but also in order to help the Court clarify important questions of Community law (Germany, Denmark, United Kingdom), thereby behaving like true amicus curiae (Friends of the Court). The fact that many governments' agents also feel like advisers of the Court more than lawyers defending their client ministerial departments(s), or that they feel that they fulfil both roles, seems to back up such assertion. Although this situation could be explained by putting forward altruistic governmental motivations,95 it is more likely that it is the result of an evolution in governments' roles and identities as a result of European integration. Indeed, as from an executive perspective, governments are as much the arm of the EU as they are that of their state, and as civil servants and legal advisers get to socialize more within the EU context (contacts with the EU institutions staff and repeated presence in the Community courts), their understanding of their role is likely to evolve. Governments' participation policies are not fixed and determined once for all. One observes changes over time, following greater awareness by governments of the opportunities offered by their structural environment to fulfill their own evolving interests. For example, in the early 1990s, the French administration operated a move towards a more active contentious policy in order to 'defend the French interests and visions of Europe': 'The Court is a political organ, which and within which we have to fight'.96 A similar awakening seems to have taken place in the late 1990s in the Netherlands, which led to the publication of clearer guidelines for the submissions of observations.97 Such moves by national governments can also be detected, in addition to agents' policy statements, from the observation of the numbers of observations submitted by these governments over the years. The French government multiplied by five the number of observations submitted between 1990 and 1995, and the observations by the Dutch government more than doubled between the early and late 1990s.98 Governments' capacity to influence judicial outcomes by acting as Repeat Players will be determined mainly by the frequency and opportunity of their participation and the quality of their observations. Indeed, it appears all the most logical that the more someone participate in a discussion, the more likely it is that his views will be taken into account. However, his influence is also likely to be greater if his contributions are opportune and persuasive within the particular substantive and normative contexts of the decision-making process, even if not so frequent. A statistical analysis enables to draw preliminary conclusions as to the first aspect.99 It reveals a steady growth in the number of observations presented by Member States' governments in Article 234 EC proceedings, which is relatively faster than the growth in the number of preliminary preferences.100 This seems to confirm the growing awareness of governments of the necessity to participate more in order to further their interests. The analysis also shows a period of stronger governmental activism in the first half of the 1990s. Not surprisingly, this period also corresponds to governmental activism on other fronts (e.g. Barber protocol, 1996 UK proposal to limit the Court's powers and jurisdiction, etc.), which suggests a certain consistency in governments' use of various strategies to influence ECJ decision-making. The new Member States look as if they have taken seriously participation in preliminary references and have good participation rates. The Finnish and Swedish governments have been particularly active, which can be partially explained by their experience of proceedings before the ECJ as EFTA states. Impressive is the performance of the Austrian government (15 observations in 1995 to 48 in 1999). However, this high number of observations must be connected to the high number of preliminary reference sent by Austrian courts (2 in 1995 to 56 in 1999).101 Now, let us find out who are the 'big spenders'? Until the 1990s, Germany, Italy and the United-Kingdom were the governments submitting the highest number of observations.102 Since the mid-1990s, it is the French government which is the most active. Between 1995-2000, the French government submitted 16.8% of all the Member States' observations, the British 14.2%, the German 12.9%, the Italian 9.4%, the Netherlands 8.5%, Spain 7.1%, Austria 6.9% and Greece 6.9%). The other states are much less active. In order to draw hypothesis pertaining to governments' policies, the number of observation from a Member State's government needs to be compared to the quantity of reference sent by its courts. For example, the high number of observations by the Italian, German and Austrian governments must be assessed in the light of their reference-prone courts, which incite governments to submit observations without necessarily being engaged in active Repeat Players strategies. Governments generally tend to submit observations in case originating in their own courts. However, more and more governments also submit observations in cases originating in other Member States' courts.103 This could reflect more interventionist Repeat Players behaviors. There are nevertheless important variations depending on the Member States. Between 1995 and 2000, Ireland submitted only 6.9% of its observations in cases originating from its own courts, Finland 15%, Denmark 24.4%, Sweden 23.75%, France 27% and Greece 28.5%. The other governments submit between one third and a half of their observations in cases coming from their own courts, except Luxembourg, Germany and Italy, which submit respectively 53.8%, 53.9% and 65.1% of their observations in cases from their national courts.104 Interestingly, those governments who appears to present most of their observations in 'foreign' cases are also those who claim to have an active influence strategies for participation in ECJ proceedings. It is nevertheless worth noting that these are also governments from countries which courts send few references to the ECJ. If these countries were to 'wait' for their courts to send references in order to participate in proceedings, they would have few opportunities to contribute to directly judicial decision-making at EU level. And vice versa, governments of states where courts send many references have probably little time and resources to expand their interventions beyond those directly provoked by their own courts. An interesting situation is that of Austria, whose governments still submits 64.5 % of its observations in cases coming foreign courts, even though Austrian courts are very keen on using Article 234 EC procedure. However, one should point out that most of these observations on foreign references are actually made in cases dealing with references from German courts, which could suggest that, due to the similarity between German and Austrian law, Austria submits most of its observations in cases where its interests are indirectly challenged through challenges to similar German laws or policies. If one looks at the subject matter of the references in which observations have been submitted, interesting patterns arise. It appears indeed that the judicial discourse in some areas is 'dominated' by some governments. For example, out of 161 observations submitted between 1995 and 2000 dealing with social policy, 50 of them were from the British government and 30 from the German one.105 German and British activism must nonetheless be linked to the activism of their courts, which under the pressure of interests groups (e.g. Equal Opportunity Commission in the UK), are trying to promote women rights through references. These governments are therefore forced to submit observations to defend national legislation or policies under attack. The statistical analysis therefore indicates that some governments are more active than others, and that some governments have more interventionist policies than others. Examining governments participation activity in the light of to their population and gross domestic income, which partially determines the financial resources of these governments,106 helps refining the picture of which governments come out as being Repeat-Players (Austria, Denmark, Finland, France, Greece, Ireland, the United-Kingdom, the Netherlands, Portugal, and Sweden). For observations to be influential, they do not only need to be frequent, but also to be opportune, consistent and persuasive within the paradigms of the judges. It must be noted here that if a government tends to systematically submit observations where the reference comes from a court from its own Member State, he may underestimate the long term potentially negative consequences of their participation. In fact, most Member States do not have such systematic policies. All governments have a selective participation policy (unlike the Commission, which tends to submit observations in all Article 234 EC proceedings).107 Governments rely on flexible criteria in order to decide in which case they will make their voice heard. The decision as to the opportunity of making observations is made after due consideration has been given to the variety of interests involved, the possible need to explain and justify national laws, policies or practices, the existence or absence of the established case law, the importance or sensitive nature of the issue at stake, the political or legal opportunity, the 'creative' potential of the reference, the likely positions of other parties, and so on.108 Some official guidelines or checklists may be available to facilitate the task of governments' officials, like in the Netherlands. Interventionist governments have a difficult selection task and face problems similar to those encounters by interests groups or lawyers selecting 'test-cases.' All requests for preliminary references must be carefully examined by the national administrations so as to identify cases in which governments have chances of successes or scope for long term substantive influence. Strategic mistakes may thus happen, for example when governments did not identify in advance a case that will become a landmark case, and where their participation could have changed the final decision, or when they devote time and resources to a case which ultimately turned out to be of lesser significance than expected or the issue of which was obviously pre-determined. In order to avoid this, governments tend not to submit observations when there is an established and settled body of case law and little likelihood of a reversal. In addition, in order to save their own resources, some governments follow the policy of relying on the written submissions likely to be presented by the governments of other Member States more directly concerned than they are, while keeping open the option of participating in the oral hearing if they feel that their contribution could still make a difference (United Kingdom, Denmark, Portugal, Finland and the Netherlands where technical matters are involved). Others however prefer to submit their own observations, allegedly to preserve the diversity of arguments, but probably more likely to put some additional pressure on the Court (France, Luxembourg, Belgium and the Netherlands where more political matters are at stake). Governments are also more likely to make an impression on the judges if they use the written and oral procedures adequately. The aversion of ECJ judges for boring oral pleadings, which only repeat the content of written observations, is well known. Most governments are aware of this, and follow a policy of participating in the oral hearing only when they wish to further elaborate on their written observation, to answer other parties comments, or in cases where something new may come up (United Kingdom, the Netherlands, Denmark, Finland). Others follow of more systematic policy of attending the oral hearing where they have submitted written observations (France, Sweden). However, some governments (Germany, Belgium and Portugal) appear to undermine the importance of the hearing, as they tend to rely predominantly on written submissions. It is suggested that this may limit the influence of their interventions, as it removes from them the possibility of putting their case directly to the judges and to the Advocate General. Governments' views are more likely to be taken into account by the judges if their pleadings fall within the legal paradigms of the Community judges ('normal' legal reasoning).109 For that, they must make references to the sources of law recognized by the Community courts (Treaty provisions, secondary legislation, international agreements, general principles of Community law, and to some extent comparative law), they must use the methods of interpretation favored by the Court (purposive or contextual, rather than literal or historical methods),110 and they must make reference to the ECJ and CFI case law.111 This is not to say however that arguments of political, economic or social nature are of no significance. These are taken into account and can be determinant of judicial outcomes, for example by helping choosing between various all equally lawful alternatives, by constituting a fundamental element of a judicial test,112 or by providing a reason for limiting the effects in time of a judgment, although the Court will usually disguise these concerns by legal arguments.113 Most governments114 appear well aware that the discursive framework of judicial decision-making is heavily structured by legal arguments, as their representatives insist on the fact that they make mainly legal briefs, resorting to political, social or economic briefs only to support the choice of one particular legal solution. These agents also explain that their observations contain both factual and theoretical elements, in that way fulfilling their dual informative and consultative function, by providing the ECJ judges and Advocate General with information on national legal, political, economic and social contexts of a case and the possible damaging consequences of particular outcomes, and by giving them advice as to which outcomes would be more desirable from their point of view. Governments may nonetheless decide to reason outside the paradigms of the Community judges, thereby engaging in what can be called revolutionary reasoning.115 By doing so, governments take the risk of their voice not being 'understood' or taken into account. However, if convincing enough to be adopted by the judges, such reasoning then has a valuable long-term impact on the substantive legal structures of the decision-making, which are transformed so as to become more favorable to governmental interests. For example, the French agents claim to make use of the historical method of interpretation, which consists in looking at the intentions of the authors of legal provisions in order to interpret them, even though this approach did not use to receive much credit from the Community courts. This method nevertheless favors governments, as treaty-makers and the main legislator (through the Council), by giving precedence to their interpretations of legal provisions, to the extent that they can be deduced from preparatory works, over others. Coincidentally (?), it has been noted that the Court has been more willing to resort to this method over the recent years.116 Reluctant to do so in early years, governments now show a growing willingness to join forces with other governments and cooperate more with other governments. This cooperation can strengthen the impact of consensual governmental views and lead to a more efficient use of governmental resources, in particular in relation to the oral hearing, when speaking time is limited. Governments' representatives can consult each other beforehand, with the view to provide the Court with a wider range of focused arguments and avoid repetitions. It is before the hearing that most intergovernmental cooperation takes place. Indeed, due to short deadlines, there is little time to engage in intensive cooperation beforehand. However, agents in a government may have informal discussions by phone or e-mail with their counterparts in other governments, exchange information on facts, legislation and national positions, exchange their observations or even meet in person to discuss a case of general importance. 117 In any case, cooperation does not extent to letting other governments defend one governments' interests, rather the opposite. Most governments appear to be even more willing to submit observations when other governments will also submit observations supporting the same position, so as to provide a more diversified range of arguments in support and put more pressure on the Court. Governments therefore appear to understand well the 'rules of the game' and most of them have adopted policies which enable them to make the most out of them. But have they mobilized resources up to the level of their ambitions? 3.4.2.2 Governments' Resources: Repeat Players Resources? Information pertaining to the number and qualifications of governmental staff, the inter-ministerial cooperation structures and the governmental internal procedures for the submission of observations in Article 234 EC proceedings have been used in order to assess governments human, material, and organizational resources. The material and human resources devoted by governments to participation in judicial proceedings before the EC are difficult to estimate, due to the lack of information provided on the matter and to the involvement of various members of staff of several governmental departments. However, it is possible to make a few comments on that point. First, while in the 1980s, a number of governmental agents deplored the lack of human resources available for participation to judicial proceedings,118 such complaints have now melted down in almost all countries.119 Yet disparities exists between governments. While some governments (Portugal or Luxembourg) appear to have only one person in charge of organizing the state's participation to judicial proceedings before the ECJ, most governments have assigned this task to whole teams. Quite obviously, governments which rely on a central team with strong links with departmental experts are more likely to make frequent, opportune, consistent, accurate, useful and therefore persuasive contributions to legal proceedings, than those relying on one coordinating person, even if assisted by departmental technical or legal experts. Concerning the qualifications of those drafting written observations and representing the Member States before the Court, most governments make sure that they have some experience of litigation, and even sometimes of Community litigation, as well as a thorough knowledge of Community law and a decent knowledge of their national law. They therefore use people adequately qualified for their function that they are called to perform. Overall, governments appear to choose carefully those who are going to represent them before the Court. Most governments use highly qualified civil servants with extensive legal and political experience, who are assisted by technical and legal advisers specialized in the subject matter of the case at hand. However, the United Kingdom and Irish governments have adopted a different approach. They allocate the task of representing them to a practicing lawyer, usually a barrister, specialized in EC law and if necessary in the specific are of law concerned by the case in question. These human resources must be compared to that of private litigants, who, at the exception of interest groups or corporate firms, can not match them. They must also be compared to that of EU institutions, in particular the Commission, which has its own in-house legal department, the Legal Service, organized around a strong coordination structure and ten specialized legal teams, endowed with highly qualified lawyers and legal advisers. Due to the short deadlines for the submissions of governmental observations (two months or less),120 governments must have efficient internal coordination structures and decision-making procedures and practices. There are common points between the organizational and procedural arrangements of the various governments, which pertains to the existence of a co-ordination organ, the division of tasks, and the involvement of the various departments potentially concerned. However, there are also significant differences, linked to the national administrative traditions and cultures and participation policies. An analysis of these arrangements can help explaining patterns of governmental participation and provide clues as to the ability of governments to influence judicial outcomes at EU level. Each national administration has one coordinating organ, the duties, powers and departmental membership of which vary from one state to the other. In most Member States, the coordination role rests with the legal department of the Foreign Affairs Ministry. However, some governments have developed different structures. For example, in the United Kingdom, the coordination of the EU litigation policy falls to the Litigation Section of the European Division of the Treasury Solicitors' Department, which is the in-house legal service of the United Kingdom's entire government and an independent, influential and well established branch of that government. A rather similar organization has been adopted in Denmark, where the organ in charge of coordinating the Danish governments' litigation policy is the 'Special Committee for Legal Questions', an interministerial legal body which acts under the supervision of the EC Committee and the Common Market Committee. The Dutch government has also adopted the concept of an interministerial (legal?) body with its 'Interdepartmental Commission for European Law', of which Subcommission V deals with the monitoring of Community case law developments and the coordination of the Dutch governments participation as parties or amicus curiae in proceedings before the Community courts. Things are different in France, where coordination lies not with a legal body, but with a political one, the Secrétariat Général du Comité Interministériel pour les questions de coopération économique européenne (SGCI). The SGCI is interministerial policy-making organ which is under the supervision of the Prime Minister, but placed at the disposal of the acting minister in charge with European Affairs, which was created in 1948 in order to administer the Marshall plan. Employing 160 persons, it now deals with the coordination of the positions taken by France within all the EU institutions, so as to guarantee the coherence and unity of theses positions. With regard to participation in EU litigation, this secretariat cooperates closely with the Direction des Affaires Juridiques of the Foreign Affairs Ministry, which is a transversal directorate, acting as a legal adviser for the government and representing France before international courts. Germany has also adopted an organization which is unusual, and which seem to result from the original economic focus of the Treaties, the importance of the functional delegation of tasks in Germany and the federal and decentralized structure of the state. The German government has indeed entrusted the task of coordinating its participation policy jointly to the Federal Ministry of Finances (BMF) and the Federal Ministry of Economics (BMWA). The BMF receives the notification, translates it and send it to BMWA which examines it and send it to other departments concerned or competent Länder authorities, which report back to the BMWA which then gives instruction for the writing of observations to the Department EC 2 of the European Community Law Division within the Department of European Integration within the BMF. The functional specialization of the coordination organ varies from being very focused on EU litigation (UK, Finland, Denmark, Portugal, Germany, Sweden, Netherlands) or on international litigation (Belgium and Luxembourg) to more general European policy definition (France, Germany [BMWA]). In some Member States (Portugal and Belgium), the role of this organ is limited to analyzing and circulating information on cases notified to them by the ECJ, thereby acting mostly as an informative link between the various departments potentially concerned. However, in other Member States, the role played by this organ in coordinating and determining governmental action is primordial. In France, the Netherlands and Denmark, it is granted real decision-making powers as to the opportunity of observations (with the possibility to appeal to the Prime Minister or the Cabinet in case of unresolved disagreements among its members). Moreover, this organ is also often closely involved in defining the substance of observations, either because it 'holds the pen' (Germany [BMF], Luxembourg, Finland, or Sweden), or because it contributes to the drafting of observations (Portugal), or because it closely checks the content of observations before they are sent to the ECJ (United Kingdom, France and Belgium). It could be argued that the granting of important decision-making and supervisory powers to a permanent and purposely created interdepartmental structure can improve the ability of governments to have a long lasting impact on the Community case law in that it guarantees the consistency of governmental submissions to the Court, creates a forum for consensual decision-making while ensuring the representation of the various interests and fast and opportune decision-making, as it prevents transmission delays, non-addressed interdepartmental conflicts of interests and guarantees policy and technical in-puts in the decision-making on the opportunity and substance of observations. Interestingly, this feature tends to coincide with governments which have strong concerns about the representation of their interests in EU decision-making processes. Governmental procedures with regard to the opportunity and substance of observations must be assessed not only in terms of efficiency and consistency, but also with regard to the taking into account by the decision-making process of the diversity of interests. In all the Member States, every department concerned has a say. The coordination of the various departments views may be organized more of less formally. The usual way is for the departments that feel concerned to express their views in writing. In governments which do not have an interdepartmental coordination organ, interministerial meetings may be called to discuss observations in cases presenting a general interest or on request from one ministry (e.g in the United Kingdom, Germany, Netherlands and Finland). The decision to submit or not submit observations can either be made on a consensual basis by the coordination structure (France and Denmark) or between the departments concerned (Germany and Portugal), or by the department most concerned (United Kingdom, Belgium and Portugal), or made jointly between the coordination organ and the competent ministry (Finland and Sweden). Sometimes, Cabinet's approval may be necessary for the submissions of observations to go ahead, either on a systematic basis (Luxembourg and Denmark), or only in case of disagreement (Sweden or France). Decision-making by the competent department offers the advantage of preventing situations where no observations are made due to a lack of consensus. However, this may lead to the unfair representation of governmental interests. Consensual decision-making appears as a more reliable way of guaranteeing a fairer representation of these interests, and decision-making should be reached relatively easily within interministerial organs which are used to function according to that principle. Besides, if unlocking mechanism exists, such as appeal to the Cabinet or Prime Minister, the risk of a non-decision is limited. However, such structure may not be well suited to governments of decentralized state, such as Germany, Belgium or Spain. The procedure for drafting observations must also be assessed with regard to the need for them to fit into the participatory framework of the Community judicial process and to further governments' interests in that process. The legal, technical and policy-expertise input and the representation of governments' interests can be examined through an analysis of the drafting of observations. This task can be assigned either on a functional or on a technical basis. It may be left to the legal experts of the department most concerned (Belgium), sometimes in collaboration with those of other interested departments or with lawyers in the coordination organ (Portugal). However, in most national administrations, this task falls to the lawyers of the legal department of the Ministry of Foreign Affairs (France, Luxembourg, Finland, Sweden) or in Germany the Finance Ministry, often in collaboration with experts in the department(s) concerned or on the basis of instructions provided by such department(s) or by the coordination organ. The case of Denmark is original. The Danish government has attributed the drafting of observations to a special lawsuit delegation composed on technical and legal experts acting on the basis of general instructions given by a Special Committee. Finally, in the United Kingdom (and Ireland), a Barrister will be specially appointed to draft the observations on the basis of a memorandum provided by the leading department. One could be tempted to conclude that drafting of observations by lawyers of a central team, accustomed to EC litigation are more likely to fit into the paradigms of the Court than those drafted by lawyers in specific departments, which although experts in their field, may not be familiar with the ECJ practices and methods of reasoning, except in departments which are often involved in such litigation (e.g. agriculture, economics). However, it could also be argued that where the central team holds the pen, the technical input, which may turn out to be more useful to the ECJ judges than information on their own case law or methods, may be undermined, and departments' positions or specific areas of law may not be accurately presented. In order to overcome these two drawbacks, most governments have set up procedures of collaboration and mutual checks between the central team and the relevant departments for the drafting of observations. A control over the accuracy of observations tend to be exercised by the department(s) concerned where a central legal team was the author of the draft (United Kingdom, the Netherlands and France), or by the coordination organ where the observations are the work of lawyers of the competent department (Belgium), by checking observations and suggesting or even making the necessary amendments. Alternatively, observations are written within a framework of continuous collaboration between the legal team and the department(s) concerned and are then subject to an a posteriori control of the substance through the presentation of these observations to various governmental authorities (Sweden). In some governments, some kind of official validation is required, such as the final approval by the coordination organ (France or Belgium). However, in some Member States, lawyers appear to have a much greater autonomy once briefed on the substance of observations. Indeed, in Germany, the observations, drafted by the lawyers of the Department EC2 do not appear to be subject to any a posteriori check. It is suggested that some form of mutual check may be better able to guarantee that the views of the governments and the technicalities of national law are accurately presented, while ensuring that they are dressed with the legal clothes in favor at the Community court. However, it may be this is more difficult to organize in federal states, where the decision-making process on the opportunity and general substance of observations takes more time, therefore leaving little time left for control procedures, unless the German lawyers' autonomy reflects a national culture where lawyers are traditionally highly trusted by politicians and therefore relatively independent once briefed on the matter. In cases where the government did not submit written observations but reserved the possibility to participate in the hearing, a follow-up procedure is used to monitor the developments on the case and a similar although simpler procedure than the one followed in order to decide on the opportunity of written submissions is usually followed in order to make a decision on whether or not to go to the hearing. The drafting of the pleadings follows the same route than that of written observations, but tends to me more interactive and to involve more intensive contacts between the legal team and the technical or policy experts in departments concerned, in order to ensure that agents acting before the Court are properly briefed so as to be able to emphasize the significant points and to be ready to answer judges' questions. Interested departments are kept informed of jurisprudential developments. All relevant documents, Advocate General's Opinion and ECJ rulings are circulated by the co-ordination organ. Internal assessment procedures are also used to discuss and analyze the impact of observations and that of the ECJ rulings themselves, so as to decide on further actions that may appear necessary as a consequence of the ruling and possibly redefine the participation strategy. This reflective stage is achieved at ministerial level (Belgium) or at interministerial level (France). There are therefore significant differences between the governmental organization of the Member States for the submissions of observations in preliminary reference proceedings before the ECJ. Differences as such are certainly not sources of inequality of chances to influence the ECJ decision-making. It is nonetheless suggested that some governmental arrangements, linked to national cultures or traditions, state organizations or the size and wealth of the state, led some governments to start with a handicap (Germany, Belgium, Luxembourg, Portugal). Other difficulties encountered by governments are linked to the Article 234 EC framework for participation itself. Indeed, one of the main obstacles that governments face, in particular those of states where the decision-making is decentralized, like in Germany where the Länder have to be consulted where the matter of the reference falls under competencies devolved to them, is the time limit of two months. Suggestions were made in the 1980s by some governmental agents121 to allow extensions on an exceptional basis of these strict deadlines, which have not been followed-up. Another problem confronted by governments is the identification of significant cases, which is partly due to the lack of clarity of some preliminary references. The Court is addressing this issue with its case law on the admissibility of preliminary references, 122 through guidance documents addressed to national judges,123 through its practice of asking questions to interested parties which may help them identifying the important issues at stake, and through the greater inquisitorial role to be played by the Advocate General and the Reporting Judge under the newly amended Rules of Procedures,124 who can now ask national courts for relevant information. As emphasized by many governmental agents, assessing the influence of governmental observations on ECJ rulings is an impossible task. This is due to the complexity of that decision-making process which can not be reduced to the interventions of a few factors and actors. This evaluation is also made more difficult by the fact that the ECJ very rarely refers to governments' submissions in its rulings.125 However, it is suggested here that, for lack of conclusive evidence, one can nevertheless reach some conclusions on the basis of how the agents involved assess the influence of their governments in the decision-making process, as surely, they cannot get it completely wrong! Obviously, their assessment of the successful or unsuccessful nature of their governments' observations depends on their ambitions (whether they want to win the battle or win the war) and on their expectations with regard to each single case (whether they have a strong or weak case).126 Governments' agents are quick to emphasize that the Court is independent and impartial and that it is the quality of governmental observations which make a difference, not the political pressure which could be attached to their participation. However, they also acknowledge that observations by many governments in a particular case may place an 'indirect pressure' on the Court, by alerting it to the significance of the case for national interests and the possibility of damaging consequences. Interestingly, governments which have an active policy of influence are the same ones which claim a high success rate for their observations, the highest degree of influence of their observations on judicial decisions and the greatest contribution to European integration (United Kingdom, France, the Netherlands and Finland). 4. Conclusions on Descriptive and Normative Aspects: Are and Should the Governments' Voices be Listen To? These conclusions will address two aspects, a descriptive one and a normative one. More specifically, they will attempt to answer the following questions. What do these findings tell us about the ECJ decision-making process and the governments' ability to influence its course? And if governments are able to influence judicial decisions, is that desirable? In other words, should the ECJ judges do what Odysseus' men did when sailing in sirens' territories, putting earwax in their ears to avoid succumbing to their languorous complains or should they do like Odysseus and hear their voices? Or should they find the narrow passage between the Charybbe of ignoring some of the social, economic or political concerns expressed through governments various actions and the Scylla of undermining the Court's independence and its credibility as a judicial body by showing to much deference to these interlocutors, so as to lead the EU safely to its unknown destination? 127 On the first question, this paper tried to show that governments can make a difference on judicial outcomes, not only because they have external sufficiently effective or at least threatening means of formal or informal control over the structures that shape judicial proceedings, but also because they have means of influence over outcomes by using or modifying its structural properties from the inside. The term 'influence' itself encompasses the difficulty of an assessment task, in that it refers to 'the exertion of action of which the operation is unseen or insensible by one person or thing upon another.'128 Yet, the conceptual reconstruction of the judicial decision-making process, which alleges the possibility for a variety of actors to influence judicial outcomes from outside as well as from inside the Court, and the empirical analysis, which examines governments' ability to act as Repeat-Players, make it possible to conclude that governments' observations matters. It is even possible to go further by saying that governmental observations probably matter more than those of other players in the field (e.g. individuals, interests groups), because governments have the means to make full use of their privileged access to the Community courts. It is also safe to say that observations by some governments matter more than those coming from others, depending on whether they act more as Repeat-Players or as One-Shooters. It is however difficult to draw further conclusions. Causal connections between observations and outcomes are difficult to establish. Even a sophisticated statistical analysis which would examine the nature and quantity of governments observations in relation to the directions taken in the ruling would not make it possible to determine whether one particular government has been influential or not, as the case may simply have been quasi-predetermined. Only a detailed case study of legal developments in particular areas could provide with more clues as to the real influence of governments' observations. This paper aimed at partially filling a gap both in the political literature, which pays little attention this particular means of influence of governments, and in the legal literature which is merely descriptive or relies of assumptions made on the basis of ad hoc case law analysis. It does so by providing a more comprehensive and systematic understanding of governments' influence on the ECJ decision-making and by offering a greater insight in governmental participation strategies.129 It is hoped that it achieves this modest aim, and that it will trigger further research on this subject-matter which remains an important one, in particular now that the Treaty reform operated by the Treaty of Nice placed the Court in the position of a Supreme Constitutional Court position, at the apex of the Community constitutional order, and that the members of the Convention are working on a European constitution, the respect of which will be checked by the Court. And as constitutional adjudication involves much more balancing of fundamental values and principles than the mechanical applications of legal rules, who can influence the decision-making process becomes a matter of primary importance. On the last questions, it must be said that one cannot undermine the importance of the governments' informative role when they act as amicus curiae to the Court in Article 234 EC proceedings. Indeed, by providing legal and factual information which otherwise would be difficult for the judges to get hold of, they improve the informed nature of the judicial decision-making process at EU level. Also, by alerting the judges to the possible consequences and policy implications of various alternative solutions, they assist them in contextualizing their decision-making, which can improve the social legitimacy of the Court, if such views are shared by an important part of the Court's interlocutors. The legal formatting of policy concerns by governments can also be useful for the Court when it seeks to justify in legal terms a position motivated by policy concerns, which can help preserving the Court's credibility among legal circles. Besides, Weiler argues that the reason for privileged status with regard to interventions and the submissions of observations before the ECJ is due to the fact that these privileged applicants 'represent different constituencies, different interests, different shades of the general interests.'130 Governments participate in the judicial process at Community level to promote their views of how Community law should develop, which are not necessarily less worthy than those put forward by the 'official' guardian of the Community interest, the Commission. The fact that governments act as a counter-power in the Court to the influential Commission can be a positive development, in particular where the EU in on a journey towards an unknown destination. It appears fair that governments take a seat in the vehicle of integration that the ECJ judicial process is. After all, the definition of what is the Community interest cannot be left to the Commission's Legal Service, the ECJ members and the few wealthy and well-organized corporations and interests groups (BEUC, EOC) which constitute the bulk of the Repeat Players before the Community courts.131 Judicial decision-making, like any kind of decision-making process, must tend towards pluralism, while preserving its efficiency in reaching appropriate outcomes in reasonable delays. It has been argued that, while liberalizing standing rules132 can have damaging effects for both the judiciary and participants (delays and expenses),133 interventions or the presentation of observations appear as a good alternative to guarantee pluralist decision-making. Ideally, the voices of citizens, as opposed to those of elites or corporate interests, should be heard more in the Community judicial process. However, as active citizens do not have the means to set up litigation or participation strategies, even if they were allowed to, this role can only be fulfilled by interests groups, to the extent that these are given more participatory rights than what they have at present, and....governments! The ability of governments to represent the public interest is often, and validly so, challenged.134 It is true that governments do, probably more often than not, participate in ECJ proceedings to defend sectoral, corporate or parochial interests. However, internal governmental procedures show that decisions on observations are made only after the voices of the various interested departments have been heard. In addition, it is also possible to envisage that governments can also fulfil a role of surrogate representation of individuals who would not submit observations in the Court, like the Commission did in the Becker case.135 Besides, interest groups active at national level can have access to these governments' departments and put pressure for the governments to promote their views in the Court. Many governmental agents mention that some decisions to submit observations or even the substance of observations are influenced by groups such as environmental protection groups, farmers, consumer protection associations, hunters, trade unions and also by decentralized authorities (United Kingdom, France, the Netherlands, Sweden and Germany). These may even be consulted by the government (Finland). In such cases, governments act as representatives of these interests groups. Obviously, this poses the question of access to the governments' themselves. Is it pluralistic enough, or do some groups have privileged access to their national administrations? If these groups turn out to be the same that those which are also Repeat Players in the ECJ decision-making process, it can be problematic with regard to pluralist concerns. Ideally, for governments to act as proper transmission belt between the European citizens and the Court, they should consult members of the civil society likely to be concerned by each case raised before the ECJ. This appears impossible within the current time frame of the participation procedure, and poses the classic problem of the representativity of the consulted bodies. An alternative would be for associations and other interests groups to check the preliminary reference sent to the Court and then lobby their governments (or possibly other governments, or EC institutions) for them to defend their positions in the Court. However, as the list and substance of preliminary references sent to the ECJ are not publicly available, such systematic policy cannot be pursued. Nevertheless, to the extent that interests groups scrutinize the national case law developments in specific areas of the law, they may well be aware of a reference being made by a national court and therefore endeavor to get a government to submit observations supporting their positions, if they have not already managed to get the national court to join them as parties in proceedings, which entitles them to make written submissions to the Court in the preliminary reference proceedings. The pluralist in-put in governmental observations therefore depends not only on the openness of governmental structures towards external parties, but also on the nature and degree of interests' mobilization. It is nevertheless suggested that for governments to be more valuable channels of interests representation, greater consideration could be given to the taking into account of views of the civil society and decentralized authorities in the decision process leading to the submissions of observations. In addition to governments' observations contributing to the informed and pluralistic nature of the Community judicial process, they also bring a 'democratic accountability' element into the decision-making, as governments are the only privileged participants which are democratically accountable. Obviously, because their activities in Luxembourg, like the Court's rulings themselves, receive little media attention (except in the press or in very exceptional cases),136 their popularity is unlikely to be affected by the position they sustain in the Court. However, within informed circles (national MPs, academics, practitioners, civil society), their contributions may be noted and reflect positively or negatively on overall governmental action. It can therefore be argued that governments' contribution to ECJ proceedings is vital for the proper development of the Community legal and political order. As explained by former judge Everling: 'when the Court is engaged in the process of making a decision it engages in a work of construction which, in a certain sense, reflects the whole process of integration. It therefore cannot work in isolation; the members of the Court need the support by the public in their respective countries, by legal writers, by references from national courts and by participation of national authorities in proceedings. Only if all legal systems represented in the Community contribute fully to the making of the Court's decisions is it able to fulfil its task of developing a genuine Community legal order.'137 Besides, as suggested by (Dominic) Rousseau, a court's 'legitimacy as an interpreter [which is what Article 234 EC is merely about] depends, beyond its constitutional foundations, on the recognition of its jurisprudence by the community of interested professionals', which requires the creation of a relationship between the Court and 'its partners', 'in which the later, despite the position of the former, can have a real feeling of participating in the process of interpretation by finding - sometimes - in the reasoning of [the court's] decision, all or part of their argumentation.'138 The Court should therefore, and increasingly does,139 examine in its rulings the points raised by the various parties, and explicitly acknowledge their relevance in the decision-making process. 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Appendices Appendix 1 Diagram 1: The ECJ Decision-Making Process Diagram 2: The ECJ Decision-Making: Interacting Internal and External Structures Appendix 2 Member States Submitting Observations Frequency Percentage AUSTRIA 208 6.9 BELGIUM 143 4.7 DENMARK 59 2.0 FINLAND 89 3.0 FRANCE 508 16.8 GERMANY 390 12.9 GREECE 207 6.9 IRELAND 37 1.2 ITALY 285 9.4 LUXEMBOURG 14 0.5 THE NETHERLANDS 256 8.5 PORTUGAL 85 2.8 SPAIN 215 7.1 SWEDEN 92 3.1 THE UNITED KINGDOM 428 14.2 TOTAL 3016 100 Table 1: Observations by Member States' governments in Article 234 EC Proceedings before the ECJ between 01/01/1993 and 30/09/2000. Member State of the Court Sending the Preliminary Reference Frequency Percent AUSTRIA 198 6.6 BELGIUM 225 7.5 DENMARK 84 2.8 FINLAND 38 1.3 FRANCE 280 9.3 GERMANY 687 22.8 GREECE 43 1.4 IRELAND 19 0.6 ITALY 401 13.3 LUXEMBOURG 30 1.0 THE NETHERLANDS 365 12.1 PORTUGAL 47 1.6 SPAIN 183 6.1 SWEDEN 52 1.7 THE UNITED KINGDOM 364 12.1 TOTAL 3016 100 Table 2: Member State of the Court Sending the References when Observations were Submitted by Member States' Governments in Article 234 EC Proceedings between 01/01/1993 and 30/09/2000. Field of Law in which Observations are Submitted by Member States' Governments Frequency Percentage Social policy 227 7.5 Taxation 425 14.1 Free Movements of Goods 339 11.2 Freedom to Provide Services 244 8.1 Free Movement of Persons 419 13.9 Free Movement of Capital 46 1.5 Environment and Consumer Protection 142 4.7 Principles of Community Law 161 5.3 Competition 156 5.2 Agriculture 176 5.8 Institutional Law 30 1.0 Approximation of Laws 211 7.0 External Relations 131 4.3 Judiciary Conventions 86 2.9 State Aids 22 0.7 Company Law 84 2.8 Industrial Policy 5 0.2 Commercial Policy 26 0.9 Transport 34 1.1 Membership of new States 29 1.0 Public Servants Status 1 0 Communities Own Resources 5 0.2 European citizenship 10 0.3 Association of Overseas Countries and Territories 0 0 ECSC Procedures 1 0 TOTAL 3016 100 Table 3: Fields of Law in which Observations are Submitted by Member States' Governments in Article 234 EC Proceedings between 01/01/1993 and 30/09/2000. Member States Submitting Observations 1995 1996 1997 1998 1999 1995-1999 AUSTRIA 15 20 30 48 36 149 BELGIUM 24 14 31 30 17 116 DENMARK 10 3 12 6 14 45 FINLAND 8 8 25 14 22 77 FRANCE 95 80 80 65 53 373 GERMANY 50 65 52 56 44 267 GREECE 45 16 20 57 13 151 IRELAND 3 4 6 7 9 29 ITALY 59 43 52 32 35 221 LUXEMBOURG 5 2 2 1 3 13 THE NETHERLANDS 29 16 32 52 50 179 PORTUGAL 8 9 4 9 23 53 SPAIN 48 20 15 63 17 163 SWEDEN 13 16 26 8 17 80 THE UNITED KINGDOM 51 66 69 42 92 290 TOTAL 463 382 456 490 415 2206 Table 4: Observations Submitted by the Member States' Governments in Article 234 EC Proceedings, per year, from 01/01/1995 to 31/12/1999 (date of observations). a b A Bel DK Fin Fr G Gr Ir It L ND P Sp Sw UK A 53 3 3 4 14 14 4 0 5 0 6 5 4 4 11 Bel 9 56 1 6 25 21 8 1 10 3 10 3 2 7 17 DK 3 1 11 4 10 3 1 2 2 0 7 1 1 2 13 Fin 1 2 0 10 4 1 1 0 1 0 2 1 1 1 3 Fr 4 3 2 3 101 11 12 1 13 0 5 2 35 1 12 G 35 23 6 18 66 144 21 2 17 3 36 5 25 25 51 Gr 1 0 1 1 4 2 22 0 1 0 1 0 0 0 3 Ir 1 0 1 0 1 2 0 2 2 0 1 0 0 1 5 It 24 5 4 4 48 14 16 0 144 0 13 7 5 3 35 L 2 1 1 1 3 2 1 0 1 7 1 1 3 0 5 ND 8 7 8 7 38 24 8 8 10 0 77 5 7 8 30 P 2 1 0 2 4 3 0 0 1 0 1 20 2 0 0 Sp 0 2 0 2 10 3 43 1 0 0 2 0 73 0 7 Sw 1 5 2 9 7 1 0 1 1 0 2 0 0 19 0 UK 5 8 5 6 38 22 14 11 13 0 15 3 5 9 98 Tot 149 116 45 77 373 267 151 29 221 13 179 53 163 80 290 a= Member State of the Court's sending the Reference in which Observations have been made. b= Member State of the Government Submitting the Observations. Table 5: Origin of the Court sending the Reference when Observations are made by each Member State's Governments (Period 01/01/1995 to 31/12/1999) Member States' Governments Governments' Obser-vations Submitted in References from Courts of their Member State Total Number of Government's Observations Percentage of Government's Observations submitted in References From their Own courts AUSTRIA 53 149 35.5 BELGIUM 56 116 48.3 DENMARK 11 45 24.4 FINLAND 10 77 13.0 FRANCE 101 373 27.0 GERMANY 144 267 53.9 GREECE 22 151 28.5 IRELAND 2 29 6.9 ITALY 144 221 65.1 LUXEMBOURG 7 13 53.8 THE NETHERLANDS 77 179 43.0 PORTUGAL 20 53 37 SPAIN 73 163 44.8 SWEDEN 19 80 23.7 THE UNITED KINGDOM 98 290 33.8 Table 6: Percentage of Observations by Member States' Governments Submitted where the Court sending the Reference is a court from their Own Member State (Period 01/01/1995 to 31/12/1999). Policy Fields Number of Observations Agriculture and Fisheries 359 State Aids 12 ECSC 6 Brussels Convention 69 Competition 71 Environment 28 Taxation 171 Freedom of establishment & Freedom to provide Services 126 Free movement of Capital 9 Free movement of goods 196 Free movement of workers 87 Commercial policy 34 Principles, objectives and function of the Treaties 10 Priviledges and immunities of Communities/Civil servants 14 Approximation of Laws 76 External relations 6 Own resources 18 Social security of migrant workers/social provisions 340 Common custom tariff and Custom union 162 Transports 37 Others 7 TOTAL 1,838 Table 7: Observations submitted by Member States' governments in Article 234 EC, by policy fields, from 1983 until September 1999 Member State of the Government Submitting Observations Fields of Obser-vations Free Movement of Goods Free Movement of Persons Freedom to Provide Services Taxa-tion Agricul-ture Approxi-mation of Laws AUSTRIA 18 18 27 12 4 12 BELGIUM 9 19 24 16 2 11 DENMARK 8 3 2 5 3 7 FINLAND 12 10 10 6 7 6 FRANCE 44 27 24 35 25 35 GERMANY 18 41 30 40 18 12 GREECE 13 10 16 67 16 3 IRELAND 2 3 3 3 2 5 ITALY 27 27 13 26 19 11 LUXEMBOURG 2 6 4 1 0 0 THE NETHERLANDS 12 25 22 20 7 21 PORTUGAL 11 7 10 10 1 2 SPAIN 3 40 4 50 9 2 SWEDEN 10 15 10 10 7 7 THE UNITED KINGDOM 17 34 11 34 17 34 TOTAL 206 285 210 335 137 168 Member State of the Government Submitting Observations Fields of Obser-vations Social Policy Environ-ment & Consumer Protection Compe-tition Principles of EC Law Company Law External Relations AUSTRIA 10 9 4 1 17 5 BELGIUM 14 3 1 1 3 6 DENMARK 0 7 4 0 2 1 FINLAND 8 7 4 0 2 0 FRANCE 16 28 29 52 4 30 GERMANY 30 10 8 0 6 23 GREECE 1 1 9 1 3 6 IRELAND 6 0 0 0 1 2 ITALY 5 9 14 27 11 5 LUXEMBOURG 0 0 0 0 0 0 THE NETHERLANDS 10 20 17 1 7 12 PORTUGAL 3 0 1 27 0 3 SPAIN 5 7 0 0 3 6 SWEDEN 3 1 7 3 2 1 THE UNITED KINGDOM 50 12 7 25 4 17 TOTAL 161 112 105 140 65 117 Table 8: Repartition of Observations by each Member State's Governments per Major Field of Law or Policy (Period 01/01/1995 to 31/12/1999). Member States' Governments Submitting Observations Number of Observations Population (in Millions)* Ratio Number of Observations/ Population AUSTRIA 149 8.1 18.4 BELGIUM 116 10.2 12.2 DENMARK 45 5.2 8.6 FINLAND 77 5.1 15.1 FRANCE 373 58.3 6.4 GERMANY 267 81.9 3.3 GREECE 151 10.5 14.1 IRELAND 29 3.6 8 ITALY 221 57.2 3.8 LUXEMBOURG 13 0.4 32.5 THE NETHERLANDS 179 15.6 11.1 PORTUGAL 53 9.8 5.4 SPAIN 163 39.7 4.1 SWEDEN 80 8.8 9 THE UNITED KINGDOM 290 58.1 4.9 Table 9: Number of Observations Submitted by Member States' Governments and Population of Member States.(Period 01/01/1995 to 31/12/1999). Member States' Governments Submitting Observations Number of Observations Gross Domestic Product GDP (in Billions) AUSTRIA 149 227 BELGIUM 116 269 DENMARK 45 169 FINLAND 77 119 FRANCE 373 1,500 GERMANY 267 2,365 GREECE 151 120 IRELAND 29 62 ITALY 221 1,142 LUXEMBOURG 13 - THE NETHERLANDS 179 403 PORTUGAL 53 101 SPAIN 163 563 SWEDEN 80 227 THE UNITED KINGDOM 290 1,152 Table 10: Comparison between the Number of Observations submitted by the Governments of each Member State and the Resources of these States (GDP). * Sources: The Economist (2000) 1 Cappelleti 1983. 2 See case C-26/92 Van Gend & Loos [1963] ECR 1 3 The terms European Union (EU), European Communities (EC) and Community will be used as synonymous, for the distinction between the Community Pillar and the Second and Third Pillar on respectively the Common Foreign and Security Policy and Justice and Home Affairs is not of much relevance for the matter dealt with in this paper. Technically, most of the issues addressed in this paper would fall under the EC rather than the whole EU, as the Community courts jurisdiction is limited in the Third Pillar and excluded in the Second Pillar. 4 Burley and Mattli 1994, Mattli and Slaughter 1995, 1996, 1998a and b, Stone Sweet and Caporaso 1998, Alter 1998 and 2000. 5 Shirking occurs where agents use the powers and resources granted to them by their principals to achieve ends which are different from that of their principals. 6 Moravcsik 1991, 1993, 1995, 1997, and 1999; Garret 1992 and 1995, Garrett, Kelemen and Schultz 1998. Kilroy ?. 7 Tallberg 2000a and b and 2002. Pollack 1997 and 1998. 8 Armstrong 1995 and 1998, Armstrong and Bulmer 1998, Pierson 1996. 9 Bzdera 1992, Volcansek 1986, 1992 a and b, Shapiro 1991 and 1999, Shapiro and Stone 1994. 10 Stone Sweet and Brunell.1998. Kilroy ? 11 Exceptions: Ibid. 12 Exceptions: Derrida 1992, Ward 1995 and 1996. 13 Edward 1995, Everling 1984a, Koopmans 1996, Mancini 1989 and 1995 14 Stein 1981, Rasmussen, Weiler 1981, 1991, 1993, 1994 and 1999, Dehousse 1998, Harlow 1992, Harding 1992, Reed 1995, Bengoetxea 1993, Canor 1998, Maduro 1998, De la Mare 1999. 15 Everling 1984a. 16 Adler 1997. See also Wendt 1987. 17 Christiansen, Jørgensen and Wiener 1999: 530. 18 Giddens 1984. 19 De Búrca 1995. Joerges 1996 and 1997. Shaw 1999. Chalmers 1999. Habermaas 2000. 20 Christiansen and Jørgensen. 1999. Checkel 1999. Diez 1999. Wiener 1999. Beach. 21 See Appendix 2, Diagram 1. 22 Giddens 1984. 23 See appendix 1 Diagram 2. 24 E.g. the absence of provisions guaranteeing the protection of fundamental rights in the original treaties, which conflicted with modern concept of a Communauté de Droit. 25 This was due to the legislative inertia of the EEC political institutions until the Single European Act (1987), which resulted from the "Luxembourg Protocol' which made decisions at unanimity the rule within the Council, which rendered the passing of legislation problematic. 26 Alter 1996, 1998 and 2000, Golub 1994, De la Mare 1999. 27 Tridimas. 1997. 28 Kenney 2000. 29 Berlin 1992, Stein 1981, Harlow 1992. 30 Alter 1996 and 1998. Mattli and Slaughter 1996 and 1998 a and 1998b. 31 ibid. See also Harding 1992, Harlow 1992, De la Mare 1999. 32 Garrett 1992 and 1995, Garrett, Kelemen and Schultz 1998, Harlow 1992, De la Mare 1999, Everling 1984b, Mortelmans 1979, Schermers , Timmermans, Kellerman and Watson 1987. 33 Weiler 1994, Rasmussen 1986, Schepel and Wesseling 1997. 34 Everling 1984a. Caldeira and Gibson 1995. 35 The two major publications on this aspect date back to the 1980s (Schermers, Timmermans, Kellerman and Watson 1987 and La Cour de Justice des Communautés Europénnes et les Etats membres 1981). There are also a few but rather old general articles on Member States and EU litigation (Everling 1984b, Mortelmans 1979). Exception, a book chapter (Pratt 1994) and a couple of independent articles (Manzella 1996, Collins 2002). 36 Marks Hooghe and Blank 1996, Mattli and Slaughter 1996 and 1998. 37 Beyers 1998. 38 Jordan 1999. 39 Although this knowledge is considered as bounded. 40 Giddens 1984. 41 Rasmussen 1998: 291. 42 C-6/64 Costa v ENEL [1964] 585 43 C-26/62 Van Gend en Loos [1963] ECR 1. 44 Moravcsik 1993 and 1997, Garrett 1992 and 1995. See also Weiler 1981 and Dehousse 1998. This version seems however refuted by the fact that some governments submitted observation in these cases to oppose these developments. 45 On the lack of control of governments on Treaty reform, see Christiansen and Jørgensen 1999. 46 Liberal intergovernmentalists argue that governments interests reflect domestic interests. Moravcsik 1993. 47 Carnellutti in Schermers et al. 1987: 227, interviews 48 60 to 80% of national legislation and regulations originate directly or indirectly in the EU. 49 Beyers 1998. 50 About the use of such technique by the Congress to influence the US Supreme Court decision, see Wahlbeck 1997. 51 On the reluctance of the Council to increase the Court's budget, despite their showing good intentions towards the Court, see Edwards 1995. 52 Articles 220-245 EC. 53 Protocol annexed to the Treaty of the European Union, to the Treaty establishing the European Community and to the Treaty establishing the European Atomic Energy Community on the Statute of the Court of Justice, which replaces, since 1 February 2003, the EAEC, ECSC, and EC Statutes 54 Article 48 EU and 245 EC. 55 Dehousse 1998. 56 Granger 2002. 57 Weiler and Haltern 1996: 444 58 See Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation [1999] OJ C 73/01 59 Protocol No 17 annexed to the TEU and EC Treaties. 60 Protocol No 1 annexed to the EC Treaty. 61 Protocol No 2 concerning [ex] Article 119 of the Treaty establishing the EC, annexed to the EC Treaty. 62 Reed 1995, Kilroy. 63 E.g. the incorporation into the Treaty of the need for protection of fundamental rights in the EU legal order, on the basis of the ECHR and the common constitutional traditions of the Member States (Article 6(2) EU), which gives Treaty recognition to the ECJ case law on fundamental rights (C-29/69 Stauder [1970] ECR 149, C-11/70 Internationale Handelsgesellschaft [1970] ECR 1125, C-4/73 Nold [1974] ECR 491). 64 Debré accusing the Court of mégalomanie maladive in the 1980s (see Mancini 1989), Kohl's attacks (Weiler 1993) and criticism by Thatcher (HL Deb 7 June 1993 col 560) or John Major (A Partner Ship of Nations' 1996 HMGO, Cm 3181 para 37). 65 Article 223 EC. 66 Everling 1984, Garrett 1995, Weiler 1994, Bzdera 1992. 67 Bzdera 1992: 130 68 Garrett 1995 and 1998, Kilroy. 69 C-26/62 Vand Gend en Loos [1963] ECR 1, C-6/64 Costa v ENEL [1964] ECR 585, C-35/76 Simmenthal [1976] ECR 1871, C-213/89 Factortame I [1990] ECR I-2433, C-221/89 Factortame II [1991] ECR I-3905, C-6 & 9/90 Francovich [191] ECR I-5357, On the constitutionalisation of EC law, see Mancini 1989 and Weiler 1994. 70 C-120/78 Rewe Zentrale 'Cassis de Dijon' [1979] ECR 649. 71 Preliminary references represents on average between one third and one half of the cases decided by the Court. See statistics for 2001 at http://www.curia.eu.int/en/instit/presentationfr/rapport/stat/st01cr.pdf. The Treaty of Nice provides for the CFI to decide on some preliminary references (methods of allocation of references between the CFI and the ECJ to be determined at a latter stage), which could be subject to review by the ECJ on an exceptional basis. See new Article 225(3) EC. 72 Alter 2000. 73 Everling 1984. 74 Through their design and control of the Court's Statute, governments guaranteed themselves a 'voice' in judicial proceedings before the Court. 75 There has been a renumbering of articles between the old EC, ECSC and EAEC Statute and the new ECJ Statute. This paper always refers to the new numbering, in force since 1 February 2003. 76 Individuals is used here in its legal sense, that is referring to real individuals (natural persons), but also to companies, interests groups, associations (legal persons). 77 Article 29 ECJ Statute. 78 Article 23 ECJ Statute. The Commission is notified systematically, while the Council, the European Parliament and the European Central Bank are notified only where the reference concerns the validity or interpretation of one of their acts. 79 Article 20 ECJ Statute. 80 1998 Note for the Guidance of Counsel in Written and Oral Proceedings before the Court of Justice of the European Communities, available at www.curia.eu.int. 81 Unfortunately, since 1993, this report is no longer published with the text of the judgment. 82 Article 222 EC. According to the new Article 222 EC and Article 20 ECJ Statute, as resulting from the Treaty of Nice, the Court may decide that the case shall be determined without hearing the Advocate General, where the case raises no new points of law. 83 Article 35 ECJ Statute. 84 Briefs including extensive economic and sociological data, named after the U.S. Supreme Court justice Louis Brandeis, who in his days as a lawyer made effective use of them. These briefs are used principally in constitutional cases. 85 Galanter 1974. On the application of this analysis to EU litigation, see Harlow 1992 and Harding 1992. 86 This statistical analysis was realized on the basis of a list of the observations submitted by Member States governments between 1 January 1993 and 30 September 2000, which mentioned the number and name of the case, the date of submission of observations, the state where the referring court was from and the policy field. These data were entered manually into a statistical program (SPSS) to produce statistical tables for the period 1995-1999, as it is only from 1995 that the three new members (Finland, Sweden and Austria) could submit observations. 87 Questionnaires were sent to governments' representatives before the Court and interviews were carried out with them in order to gather information on governments current policies, strategies, resources, organization and procedures with regard to their participation in ECJ proceedings (in particular in preliminary reference proceedings) and on their self-assessment of their role and influence. Internal guidance documents or public policy documents, where made available by the relevant administrations, were also used for these purposes E.g. ICER 1999. The selection was made on the basis of materials made available and a concern for representativity. 88 Seidel in Schermers et al. 1987: 239, Carnelutti in Schermers et al. 1987: 227, Collins 2002. 89 This fits well with Weiler's theory of reduced exit - enhanced voice. Weiler 1999. 90 Germany, Portugal, Denmark, Finland, The Netherlands, Sweden and to a lesser extent France and Belgium. 91 Luxembourg, United Kingdom, Portugal, Finland, Sweden, Germany, France and Belgium. 92 See observations submitted in references from national courts, and from foreign courts of states with similar legal systems or policies or with which trade exchanges are likely to be high due to common borders. Tables 5 and 6 in Appendix 2. 93 United Kingdom, France, Denmark, Finland, Netherlands (exception: Luxembourg, and to a lesser extent Portugal and Belgium) 94 The governments of Denmark, the Netherlands, Sweden and Finland, where transparency is recognized fundamental values, have tried (unsuccessfully until now) to put pressure on the ECJ judges so that they recognize the right of access to documents as a Community general principles. See cases T-194/94 Carvel and the Guardian v Council [1995] ECR II-2765 (Carvel, seeking access to Council documents, was supported not by the UK but by the governments of Denmark and the Netherlands); C-58/94 The Netherlands v Council [1996] ECR I-02169 (the Council's position against access to its document was supported by the French government), T-105/95 World Wide Fund for Nature v Commission [1997] ECR II-313 (WWF UK which had sought access to Commission's document, was supported by Sweden, while the Commission was supported by the UK and France); T-188/87 Rothmans International v Commission [1999] ECR II-2463 (Rothmans, a Dutch company, seeking access to Commission's document was supported by the Swedish government) C- 353/99 Council v Hautala [2001] ECR I-9565 (Mrs Hautala seeking access to Council documents was supported by the governments of Denmark, United Kingdom, Finland, Sweden and France!) 95 Carnellutti in Schermers et al. 1987. 96 Table Ronde 1992. 97 ICER 1999. 98 Compare Tables 1 and 4 in Appendix 2 with statistical tables in Everling 1984, Mortelmans 1979 and in Schermers et al.1987: 283, Manzella 1996 and De la Mare 1999. 99 For presentations of the statistical results, see Appendix 2. For other statistical analyses of Member States' observations, see ibid. 100 See Tables 1 and 4 of Appendix 2 and compare to tables in ibid., and compare to the amount of preliminary references sent to the ECJ (ECJ statistics, at http://curia.eu.int/en/instit/txtdocfr/index.htm) 101 ibid. 102 Manzella 1996, Tables 4, 9 and 10. 103 See Table 5 and 6 Appendix 2 and compare with tables in Everling 1984, Mortelmans 1979 and in Schermers et al.1987: 283, Manzella 1996 and De la Mare 1999. 104 Table 6 Appendix 5. 105 See also De la Mare 1999. 106 See Tables 1, 9 and 10 in Appendix 2. 107 Harlow 1992. 108 This information has been gathered from answers to questionnaires and interviews. 109 On normal and revolutionary legal reasoning, see Suber 1997. 110 The Court's favorite methods nevertheless appear to be changing again, moving away from purposive towards contextual and even historical and literal methods. 111 The case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269 provides a good example of governments arguing within the accepted paradigm of the judges. Indeed, observations were relying on the established case law of the ECJ, albeit trying to limit its scope of application by a challengeable assessment of the circumstances. Also, governments have been quick in picking up human rights arguments to disguise concerns of national interests. See Shapiro 1991. 112 See case C-267/ and 268/91 Keck and Mithouart [1993] ECR I-6097, where the acceptability of indistinctly applicable national measures is determined on the basis of the extent of the impact on trade. 113 Eg, the economic concerns motivating the limitations in time of the effect of a court ruling are disguised by the principle of legal certainty. C-43/75 Defrenne v Sabena No 2 [1976] ECR 455, C-24/86 Blaizot v University of Liege [1988] ECR 379, C-262/88 Barber v Guardian Royal Exchange insurance group [1990] ECR I-1889). Exception: Keck and Mithouart: the Court acknowledged that its case law on Article 30 should be modified on the basis of policy reasons (the tendency of traders to rely on art 30 to challenge any kind of rules whose effects is to limit their commercial freedom even when such rules are not aimed at products from other MS). 114 Except apparently Luxembourg 115 Suber 1997 116 See cases C-320/94 Reti Televisione Italiane [1996] ECR I-6471, C-355/95 P Textilwerke Deggendorf GmbH v Commission [1997] ECR I-2549, C-133/00 J.R.Bowden and Others v Tufnells Parcels Express Ltd [2001] ECR I-7031. However, such evolution can also be explained by the greater availability of preparatory works or common law influences on the ECJ. 117 This information came out of the testimonies of agents from Denmark, Finland, Belgium, Sweden, and the United Kingdom and Sweden. 118 Carnellutti in Schermers et al. 1987: 227 and Louis in Schermers et al. 1987: 119 Exception: Luxembourg. 120 Article 23 ECJ Statute. 121 Schermers et al. 1987 122 See O'Keeffe 1998. 123 Information note on references by national courts for preliminary rulings, at http://www.curia.eu.int/en/instit/txtdocfr/autrestxts/txt8.pdf 124 New Article 54a ECJ Rules of Procedure. OJ [2000] C 34/1. 125 The Court follows a policy of declaring in the beginning of its rulings that the observations submitted by the interested parties should be mentioned or discussed only in so far as is necessary for the reasoning of the Court (C-213/89 The Queen Secretary of State for Transport, ex parte Factortame Ltd and Others [1990] ECR I-2433. 126 Governments' agents were asked by questionnaire to rate the successful nature of their governments' observations, their influence on judicial decisions and their impact on European integration by judicial means, on a scale from 0 to 10. 127 Weiler 1993. 128 English Oxford Dictionary (1989) 129 On the need for such empirical research see Harlow 1992. 130 Weiler 'Pride and Prejudice - Parliament v Council, a note on 'Comitology' 14 ELRev 334 (1989), pa. 345. 131 Harlow 1992: 237. See also Harding 1992. 132 The Court recently reiterated its reluctance to do so. See case C-50/00 Union de Pequenos Agricultores [UPA] of 25 July 2002. 133 Harlow 1992: 215 and 244 134 ibid.: 247. 135 C-8/81 Becker v Finanzamt Munster Innenstadt [1982] ECR 53, reported ibid.: 223. 136 E.g. the Irish abortion case. C-159/90 SPUC v Grogan [1991] ECR 4685. 137 Everling 1984, 1308. 138 Rousseau p 17-18 139 See case C-412/97 ED Srl v Italo Fenocchio[1999] ECR I-3845. The Court explicitly endorsed the interpretation provided by some member States concerning the scope of application of the prohibition of discriminatory measures capable of hindering trade between Member States. 1