UC Berkeley

In the 1997 Amsterdam Treaty, the European Union (EU) communitarized civil justice by transferring competence over “judicial cooperation in civil matters” from the EU’s Third Pillar to its First Pillar. Soon afterwards, the European Council prepared a detailed five-year plan (‘Tampere Milestones’) at its 1999 summit in Finland. These two steps unleashed a deluge of law- and policy-making aimed at reforming the European legal system. While consisting largely of technocratic issues dealing with procedural law, the conflict of laws (private international law), and the administration of justice (e.g., judicial networks and judicial training), the changes introduced since communitarization took effect in 1999 have transformed the European legal system, and have ongoing potential to transform it further. Part II maps the changes, places them in historical context, and provides an analytical framework for grasping their significance.

Part III of this dissertation explains my two case studies: the communitarization of civil justice in Amsterdam and the long-term policy planning process in Tampere. My data is drawn from 70 qualitative interviews with (mostly) legal elites and the available documentary sources. My explanation draws on theories of European (dis)integration as well as on neoinstitutional (new institutional) theories and others that provide insight into the agency of legal elites in transnational governance settings, such as the EU.

The ‘Grand Debate’ between neofunctionalism and intergovernmentalism provides the theoretical starting point for my analysis. My findings provide considerable support for neofunctionalism (Haas 1958, Niemann 2006) and little support for intergovernmentalism (Moravcsik 1993 & 1998a). As to the former, I trace the complex interactions among national and supranational actors and find strong evidence of functional, social, and cultivated spillover, but no evidence of exogenous spillover. As to the latter, I find virtually no evidence that the preferences articulated by national legal elites were oriented towards preserving national legal culture or institutions. Rather, legal elites treated the exercise of preference formation as a collaborative effort to imagine and construct an ideal European legal order, which might, in some cases, benefit from particular national legal institutions or from the experience of subregional legal cooperation, such as in the Nordic countries. The one exception that provides some support for an intergovernmentalist explanation is that the decision to communitarize civil justice was indirectly driven by the preferences of some Member States not to communitarize criminal justice issues. In this sense, civil justice was the easier and less intrusive path.

The traditional theories – neofunctionalism and, to a lesser extent, intergovernmentalism – go a long way towards explaining my two case studies (i.e., Amsterdam and Tampere), but are not adequate standing alone. For this reason, I draw upon postfunctionalism (Hooghe & Marks 2009a) to explain the role of communal identity as a driver. My findings show that subregional identity oriented towards Nordic legal culture and cooperation were an important factor in Finnish preference formation.

Finland plays a key role in explaining both case studies, not least because the Tampere summit took place in Finland during the first Finnish Presidency. Chapter 7 shows, however, that Finland also played a key role in regard to the communitarization of civil justice in Amsterdam. Mine is not, however, a single-actor explanation, since the efforts of Finland were partly shaped by the work of other (national but especially supranational) actors who were active in the field, notably the Commission, the Council Secretariat, and the European Parliament. Although the treaty-revision and summitry processes in the EU are highly path dependent, they leave considerable room for contemporaneous actors – including strong-willed civil servants – to leave their mark on the course of European integration.

My explanation draws on neoinstitutional theories oriented towards the “logic of consequences” and the “logic of appropriateness.” Both contribute towards an understanding of the role of the Dutch Presidency (Amsterdam, 1997) and the Finnish Presidency (Tampere, 1999). In addition, neoinstitutionalism contributes to my explanation of the specific agency of legal elites. Sociological institutionalism, in particular, affords deep insights into the role of “knowledge-bearing occupational groups” (Ziegler 1997) – such as legal elites – as does the literature on epistemic communities (Haas 1992, Cross 2013). Using my data, I link particular outcomes to the professional worldviews and ideational predisposition of key legal elite actors.