Whereas the case study in the previous chapter looked at the power of the European Parliament to control the EU executive, this chapter looks at the power of the parliament to make legislation. We focus on the Takeover Directive, which is one of the most high-profile pieces of legislation ever to pass through the European Parliament. One reason for the public attention to this particular bill was the dramatic tied vote in the third reading in the parliament in July 2001, which meant that the first attempt to pass the legislation failed. But even without such an unusual event, the Takeover Directive represented a major piece of EU regulation because it aimed to establish common European-wide rules governing shareholders’ rights and defensive measures in the event of takeover bids. The bill consequently addressed one of the central differences between the so-called ‘Anglo-Saxon’ and ‘Rhenish’ models of capitalism.

To test our argument in this case the chapter is organised as follows. Section 11.1 presents a short history of the Takeover Directive, from its origins in the 1970s to its eventual adoption in April 2004. Section 11.2 then discusses some descriptive evidence of how MEPs voted in three key votes on the legislation, and the findings of the existing research on the passage of this directive in the European Parliament. In Section 11.3 we undertake a statistical analysis of MEP voting behaviour in these three votes. Section 11.4 contains a brief conclusion.

We have so far excluded two possible explanations of growing party cohesion in the European Parliament. First, we found in Chapter 5 that parties have not become more cohesive and more competitive as a result of growing internal ideological homogeneity. Second, we found in Chapter 6 that growing party cohesion cannot be explained only by strategic control of the legislative agenda inside the European Parliament. There is genuine enforcement of party discipline.

However, there are at least two other possible explanations as to why disciplined party politics has emerged in the European Parliament. One is that the European political groups are able to force their MEPs to vote together, irrespective of the MEPs’ personal preferences or the preferences of the MEPs’ national parties. Another is that the national political parties that make up the European parties strategically choose to vote together and impose discipline on their MEPs even when their preferences diverge. At face value, these explanations might seem similar, in that in both cases national delegations of MEPs appear to be voting against their expressed preferences under pressure from the European political groups. However, they are in fact different. The first explanation assumes that the national political parties are acting involuntarily, while the second assumes that national political parties are acting voluntarily upon some strategic objective, such as a long-term collective policy goal rather than the immediate outcome of a particular vote. The first explanation is top-down while the second one is bottom-up.

We have analysed in this book for the first time all roll-call votes by MEPs in the five elected European Parliaments since 1979. This research has delivered important insights both from the point of view of political science in general and from the point of view of the study of European Union institutions.

The European Parliament is a unique object of study. It has elected representatives from all the main party families in Europe (conservatives, socialists, liberals, greens, variants of the extreme left and extreme right as well as anti-Europeans) from a growing number of countries (9 in 1979, 10 since 1981, 12 since 1986, 15 since 1995, and 25 since 2004). It has the potential to be the most fragmented parliament in the world. Studying the European Parliament is a good test of two opposing views of democracy: the citizen-delegate view on the one hand, according to which fragmentation is desirable because it allows a close connection between representatives and their home constituency; and the party-based view on the other, according to which it is desirable for elected representatives to group into disciplined political parties. The European Parliament clearly follows the model of party-based democracy.

In its young life, the European Parliament has evolved quickly towards a robust party system, as has been the case in the history of most legislatures. The European Parliament is a particularly interesting case to study the formation of a party system.

In the late 1950s, moved by the hope for peace and economic prosperity in Europe, six governments constructed the foundations of an unprecedented form of supranational governance: the European Community. Heads of governments negotiated the rules and organizations that would govern what was largely an international economic agreement. Interest groups and civil society were not directly involved in these negotiations and public interest issues were not on the agenda.

Today, in the year 2006, this same supranational space – the European Union (EU) – possesses an ever-expanding net of public policies, including women's rights and environmental protection. These policy areas have consistently been guarded by national governments, who have been hesitant to let the EU legislate in the area of national social policy and environmental preservation. Today, public interests groups and civil society – from feminist activists to environmental groups – and increasingly powerful EU organizations, such as the European Court of Justice (ECJ) – are equally present in this supranational policy arena. Individuals possess enforceable rights under EU law and public interest groups are now permanent participants in EU policy processes. This book explains how this remarkable transformation took place – how an international treaty governing economic cooperation became a quasi-constitutional polity granting individual rights and public inclusion. I argue that the ECJ and civil society were integral to this transformation.

This book examines the emergence and evolution of supranational governance in Europe.

In this chapter, I explore how institutionalization has taken place through mobilization in the area of environmental protection. In particular, I examine how litigation and legislative action functioned as political opportunity structures for transnational environmental organizations. Similar to Chapter 5, we might expect as these European Union (EU) level opportunities increase in formality and magnitude a shift in transnational activism from individual to more collective mobilization. Although this general pattern may hold across policy domains, we might expect the strategies and tactics of these groups to vary. As we have seen, women's organizations had relative ease at utilizing litigation strategies but were less successful at forming a single lobbying organization, an outcome that is consistent with the patterns of women's mobilizing more generally.

Here, I explore the relative success of different strategies the environmental movement utilizes to shape EU rules and procedures. It is through this action that we might expect to find institutionalization taking place. Further, as these rules and procedures provide new opportunities for action and greater inclusion, we might expect that over time this public interest will increasingly become more permanent actors in EU politics. As the civil society gains greater direct access to EU politics we might expect a shift away from intergovernmental politics. As earlier discussed, this analysis will provide comparisons with Chapter 5, in order to highlight the variation and similarities we might expect to find across public interest sectors.

The origins of European Union (EU) environmental protection are not traceable to the Treaty of Rome. The original three treaties lacked any mention of the “environment,” an unsurprising fact as ecological sensibilities were not commonplace in 1957. Today, environmental protection possesses a formal constitutional basis under EU law. Beyond technical measures to ensure proper waste disposal systems, the Treaty calls for integrating environmental protection and sustainable development into all EU policies. Further, EU environmental measures were developed by national governments as a result of their concern over unfair competition created by varying national environmental regulations. Yet today environmental activists are able to use these same EU laws against the very governments who created them in order to pressure for higher environmental standards.

This institutional evolution is the focus of this chapter. In particular, similar to Chapter 3, I explore the European Court of Justice's (ECJ) environmental case law pursuant to Article 234 to examine how processes of institutionalization through litigation influenced this policy development. Through similar analyses as Chapter 3, I examine institutionalization through litigation as a set of interrelated processes and examine how national level activists, EU organizations and national governments play a part in this evolution. The analyses in this chapter serve to test our expectation of these processes in the area of environmental protection and in doing so, enable us to understand the considerable cross-sector variation that exists in litigation.

In 1958, women's rights were not on the agenda for the newly forming European Economic Community. However, some national governments were concerned with protecting business from unfair competition created by wage disparities, and thus provided that under the Treaty of Rome men and women would receive equal pay for equal work (Article 141). This provision was intended to bestow obligations on national governments and to prevent competition distortion. Today this same social provision bestows a positive right on individuals throughout the member states, a judicially enforceable right that remains the backbone of an expanding net of European gender equality rights: from equal treatment in employment to maternity leave. This dynamic transformation is the focus of this chapter. In particular, I explore the European Court of Justice's (ECJ) social provisions case law pursuant to Article 234 to examine how processes of institutionalization through litigation influenced this policy evolution.

As argued in Chapter 2, the institutionalization of supranational governance through litigation results as a product of multiple processes. I explore these in turn. The first part of the chapter involves quantitative analyses of these processes: factors influencing the legal claim, the litigation and subsequently the effects of the Court's judicial rulemaking. In the second part of the chapter, I supplement this quantitative data with an in-depth case law analysis of a single sub-field of the social provisions policy domain: pregnancy and maternity rights. This provides greater detail to the general patterns highlighted in the quantitative analyses.

Transnational activists have become an integral part of European policy making. Public interest advocates were not direct participants in the making of the European Union (EU) in the 1950s and public interest policies were not on the agenda. As we have seen from the previous chapters, today this same supranational space possesses jurisdiction over an ever-expanding array of public policies. The EU possesses a growing net of rules governing national social provisions and environmental protection. In Chapters 3 and 4, I illustrated how this process of institutionalization could occur through litigation and how the rules over time have become more binding, precise and expanded in scope. Yet equally important to this policy evolution is the fact that today national executives are no longer alone in this space. Instead, public interests – as represented by non-governmental organizations (NGOs), legal consultancy firms and individual activists, to name just a few – are equally present in EU policy processes. As this litigation and legislative action provided new political opportunities for action, individuals and groups answered the call, shifting their mobilization to this newly forming supranational space.

The causes and effects of this transnational mobilization are the focus of this chapter and Chapter 6. In particular, I focus on how institutionalization can take place through mobilization. As argued in Chapter 2, we might expect this activism to follow a generalizable pattern.

This chapter offers an overview of the constituent elements of institutionalization in the European Union (EU), focusing on the processes of litigation and mobilization. The chapter is organized around four elements of these processes of institutionalization: the legal claim, litigation, legislative action and transnational mobilization. The legal claim gives rise to the litigation. The litigation activates European Court of Justice (ECJ) decision-making: a process that can lead to institutionalization to the extent to which the Court's judicial rulemaking expands the meaning and scope of EU law. This litigation in turn can alter legislative action at both the EU and national level. Finally, these institutional changes create the political opportunities for transnational mobilization: a process that once initiated can lead to institutionalization to the extent to which these transnational activists become increasingly formalized and expand the public sphere in EU politics.

The legal claim

As argued in Chapter 1, litigation is one process through which rule change can occur. In the EU, an increasing number of legal claims leading to litigation and ECJ decisions have dramatically influenced the shape of the Union. The Court's activism in the 1970s is now widely accepted as having transformed the Treaty of Rome, an international treaty governing nation-state economic cooperation, into a ‘supranational constitution’ granting rights to individual citizens (Lenaerts 1990; Mancini 1989; Stone Sweet and Brunell 1998a; Weiler 1981, 1991).

The European Court of Justice (ECJ) today is one of the main motors of governance in Europe. It has turned a relatively young body of law into a dynamic and coherent legal system governing and protecting public interests and civil society. This reality was exemplified by a vision put forth by Advocate General Trabucchi thirty years ago and reaffirmed by Advocate General Tesauro in the Court's courageous P.v S. decision (ECJ 1996d: paragraph 24):

All have not welcomed this evolution from the legal to the political, from economic to social justice; some critics have suggested that the Court suffers from “morbid megalomania” or a tendency of “running wild” or engaging in “revolting judicial behavior.” More accurately, one might describe the ECJ as dutiful worker, carrying out the ever challenging and increasingly complex job to which it was mandated almost fifty years ago: “The Court of Justice shall ensure that in the interpretation and application of the Treaty the law is observed” (Article 164 Treaty of Rome).