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).

The aim of this book has been to restate and develop the original neofunctionalist theory as an approach for explaining outcomes of EU decision-making and to assess the usefulness of the revised neofunctionalist framework in explaining (1) the emergence and development of the PHARE programme, (2) the reform of the Common Commercial Policy and (3) the communitarisation of visa, asylum and immigration policy.

The analysis has indicated the general utility of neofunctionalist insights as a theoretical basis for such an assessment. However, for an adequate understanding of EU decision-making in the above cases, a number of original neofunctionalist assumptions had to be clarified, dropped and reformulated. Taking early neofunctionalism as a starting point, the revised framework departs from it in several ways: a more explicitly ‘soft’ constructivist ontology has been formulated (and combined with the ‘soft’ rational-choice ontology of Haas's neofunctionalism) along with a more equal ontological status between structure and agents. Integration is no longer viewed as an automatic and exclusively dynamic process, but rather occurs under certain conditions and is better characterised as a dialectic process, i.e. the product of both dynamics and countervailing forces. In addition, instead of a grand theory, the revised approach is understood as a wide-ranging, but partial, theory. Moreover, the ‘end of ideology’ and ‘unabated economic growth’ assumptions, which were particularly time sensitive, have been buried.

Neofunctionalism as a Starting Point

Neofunctionalism is the most refined, ambitious and criticised theory of regional integration. It was developed mainly by Ernst Haas and Leon Lindberg in the 1950s and 1960s in response to the establishment of the European Coal and Steel Community (ECSC) and the European Community (EC). Its intellectual roots can be found in functionalist, federalist and communications theories as well as in the early ‘group theorists’ of American political science. Haas and Lindberg, the two most influential and prolific neofunctionalist writers, mainly combined functionalist and federalist thinking by tying functionalist methods to federalist goals. Neofunctionalism shares with functionalism a focus on technocratic decision-making, incremental change and learning processes. However, although the theory has been dubbed neofunctionalism, this is in some ways a case of ‘mistaken identity’, since it departed significantly from Mitrany's functionalism. Whereas functionalists held that the form, scope and purpose of an organisation would be determined by the task that it was designed to fulfil, neofunctionalists attached considerable importance to the autonomous influence of supranational institutions. While functionalists did not limit integration to any territorial area, neofunctionalists gave integration a regional focus. Moreover, unlike Mitrany, the neofunctionalists did not attach much importance to the change in popular attitudes, but focused instead on the change of elite attitudes.

Another important precursor to neofunctionalist theory was Jean Monnet. Apart from his federal aspirations, he influenced neofunctionalism in other ways.

This book seeks to explain outcomes of EU decision-making. It aims at identifying the factors most relevant for such explanation. For this purpose, the study analyses the interplay of the various supranational, governmental and non-governmental actors involved in decision-making along with supranational, domestic and international structures influencing the process. In the last decade many researchers have shifted their attention to questions such as the nature of the EU political system, the social and political consequences of the integration process and the normative dimension of European integration. However, the issue of explaining outcomes of EU decision-making, which has occupied scholars since the 1950s, is still a very important one. The ongoing salience of this question partly stems from the continuing disagreement among analysts as regards the most relevant factors accounting for the dynamics and standstills of the European integration process and certain segments of it. In addition, this question is of particular interest since the integration process is moving into areas which are commonly referred to as ‘high politics’, spheres that some researchers had factored out of their theories.

Political processes cannot be viewed in a theoretical vacuum since our analysis is always based on certain assumptions and concerns. Hence, empirical findings are always inspired by some theoretical perspective, perhaps without the researcher being aware of it. Theoretical frameworks structure our observations and are useful in terms of choosing variables and collecting data for conducting empirical research.

Visa, Asylum and Immigration Policy

Visa, asylum and immigration which form part of the wider policy field of justice and home affairs (JHA) are relatively new areas of European policy-making. The original text of the Treaty of Rome did not contain any provisions on the co-ordination or harmonisation of visa, asylum and immigration matters. The necessity to deal with these issues in a European context was first mentioned in the Tindemans Report of 1975. However, it received more significant attention during discussions concerning the elimination of internal border controls, following the European Council in Fontainebleau in June 1984. As a result, the Single European Act of 1986, which mandated the creation of an area without internal frontiers, was accompanied by a political declaration stipulating co-operation in matters of entry and stay of third-country nationals. To continue discussions on compensatory measures necessary for the abolition of frontier controls, the Ad Hoc Group on Immigration was set up in 1986 which, as its greatest success, conducted negotiations leading to the signing of the Dublin Convention of 1990. With the Maastricht Treaty, asylum and immigration as well as most of visa policy came into the Union framework, which attributed this policy to the sphere of intergovernmental co-operation within the third pillar of the Treaty on European Union (TEU). Only two aspects of visa policy in Article 100c came into the EC Treaty.

The Common Commercial Policy and Article 113/133

The Common Commercial Policy (CCP) is one of the oldest and most integrated policy areas of the European integration project. It was named in Article 3 of the Treaty of Rome as one of the main policies of the European Economic Community. As Member States were linked in a customs union, it was essential for them to draw up common policies regarding their commercial relations with the rest of the world. The Treaty of Rome was revolutionary in the sense that it granted the new supranational entity an external personality with the authority to set out, negotiate and enforce all aspects of trade relations with the rest of the world. This was to be achieved through a common trade policy based on the principles of a common external tariff, common trade agreements with the rest of the world and the uniform application of trade instruments across the Member States. The core elements of the CCP and the mechanisms through which it is to be conducted were set out in Articles 110 to 115 of the Rome Treaty. Although the Treaties of Maastricht, Amsterdam and Nice as well as the Constitutional Treaty made some amendments, the main principles of the CCP have largely remained the same.

Article 113, the centrepiece of the external trade policy, provides that the Council will give a mandate to the Commission to open negotiations with third countries, in which the Commission acts as the sole negotiator.