Europeanizing Civil Justice in Amsterdam (1997) and Tampere (1999): Legal Elites and the Politics of Private International Law, Civil Procedure and the Administration of Justice in the European Union By Helen Elizabeth Hartnell A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Martin M. Shapiro, Chair Professor Richard M. Buxbaum Professor Robert A. Kagan Professor J. Nicholas Ziegler Summer 2018 © Helen Elizabeth Hartnell All rights reserved 2018 Abstract Europeanizing Civil Justice in Amsterdam (1997) and Tampere (1999): Legal Elites and the Politics of Private International Law, Civil Procedure and the Administration of Justice in the European Union by Helen Elizabeth Hartnell Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Martin M. Shapiro, Chair 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 1 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. 2 This work is dedicated to the memory of my parents, Nancy McCunniff Hartnell and George William Hartnell, Jr. i Table of Contents (Summary) I. INTRODUCTION Chapter 1 Introduction II. EUROPEANIZED CIVIL JUSTICE: NATURE, CONTENT, SIGNIFICANCE Chapter 2 A Century of Effort, or ‘EUstitia’ in Broad Historical Context Chapter 3 Civil Justice and the EU’s Legal Order from its Founding through the 2007 Lisbon Treaty Chapter 4 A Macro-Level View of the EU’s Civil Justice Policy Field since Communitarization by the 1997 Amsterdam Treaty Chapter 5 The EU’s Civil Justice Policy Field since 1999: Content and Context III. CASE STUDIES: FROM “JUDICIAL COOPERATION IN CIVIL MATTERS” TO INSTITUTIONALIZED CIVIL JUSTICE IN THE EUROPEAN UNION Chapter 6 Communitarizing “Judicial Cooperation in Civil Matters”: Historical Predecessors, Political Context, and Institutional Framework for the 1996 Intergovernmental Conference Chapter 7 Communitarizing “Judicial Cooperation in Civil Matters”: Civil Justice in the 1997 Treaty of Amsterdam Chapter 8 The 1999 Tampere Council: Blueprinting the EU’s Civil Justice Field IV. ARGUMENT AND IMPLICATIONS FOR FUTURE RESEARCH Chapter 9 Literature Review, Theoretical Framework, Arguments, and Implications for Future Research BIBLIOGRAPHY APPENDICES ii Table of Contents (Detailed) I. INTRODUCTION Chapter 1 Introduction. 1 1.1 Civil Justice – Specification of the Dependent Variable . 2 1.2 Explaining the Institutionalization of Civil Justice – Puzzles and Tales . 7 1.3 Theoretical Framework. 10 1.4 Summary of Argument . 13 1.5 Methodological Overview. 15 Endnotes to Chapter 1. 17 II. EUROPEANIZED CIVIL JUSTICE: NATURE, CONTENT, AND SIGNIFICANCE II.1 Overview. 21 II.2 Scope and Definitions. 22 Chapter 2 A Century of Effort, or ‘EUstitia’ in Broad Historical Context . 27 2.1 Civil Justice in the International Legal Realm . 27 2.1.1 The Hague Conference on Private International Law. 28 2.1.2 United Nations International Covenant on Civil and Political Rights . 31 2.1.3 Soft Law on Transnational Civil Procedure . 31 2.1.4 Summary Observations. 32 2.2 Pan-European and Subregional Initiatives . 32 2.2.1 The Council of Europe and the European Convention on Human Rights . 33 2.2.2 The Benelux Union. 35 2.2.3 Nordic Cooperation. 37 2.2.4 The Storme Commission . 40 2.2.5 The Lando Commission . 41 2.2.6 Some Concluding Remarks on Regional Dynamics . 41 2.3 National Reforms . 42 2.4 Conclusions. 43 iii Endnotes to II.1, II.2, and Chapter 2 . 44 Chapter 3 Civil Justice and the EU’s Legal Order from its Founding through the 2007 Lisbon Treaty . 51 3.1 The EU’s Legal Order Prior to the 1997 Amsterdam Treaty: The Treaty Infrastructure . 51 3.2 The Place of Civil Justice in the EU Legal Order Prior to the 1997 Amsterdam Treaty . 52 3.2.1 Article 220 of the Rome/EEC Treaty, the Brussels Convention, and the Rome Convention: First Approaches to Civil Justice in the EEC . 52 3.2.2 Enforcement of Community Law and the Role of National Civil Procedure . 55 3.2.3 Macro-Level Treaty Changes Prior to the 1997 Amsterdam Treaty: Remodeling the EU’s Institutional Architecture. 56 3.3 The 1997 Amsterdam Treaty and Communitarization of Civil Justice Issues . 59 3.4 Macro-level Changes in the EU Legal Order from Amsterdam (1999) to Lisbon (2009) . 61 3.5 Summary and Conclusions . 63 Endnotes to Chapter 3. 64 Chapter 4 A Macro-Level View of the EU’s Civil Justice Policy Field since Communitarization by the 1997 Amsterdam Treaty. 72 4.1 Preliminary Matters. 72 4.1.1 Labels . 72 4.1.2 Scope. 73 4.2 The Discursive Dimension: The EU’s Policy Statements and Programs on Civil Justice since the 1997 Amsterdam Treaty. 75 4.2.1 The Treaty Language . 75 4.2.2 What’s in a Name? Labels, Revisited. 75 4.2.3 Policy Statements and Funding Programs. 77 4.2.3.1 First Phase (June 1997 - October 1999): Preparing . 77 4.2.3.2 Second Phase (since October 1999): Implementing . 81 4.2.3.2.1 The EU’s Multiannual Funding Framework (2002-2006) 4.2.3.2.2 The Hague Program (2005-2009) 4.2.3.2.3 The EU’s Multiannual Funding Framework (2007-2013) 4.2.3.2.4 The Stockholm Program (2010-2014) 4.2.3.2.5 The EU’s Multiannual Funding Framework (2014-2020) iv 4.2.3.2.6 Post-Stockholm ‘Strategic Guidelines’ (2015-2020) 4.3 Conclusions. 99 Endnotes to Chapter 4. 100 Chapter 5 The EU’s Civil Justice Policy Field since 1999: Content and Context .