Leverhulme Lecture: Toward A New History of European Law Dr. Bill Davies Leverhulme Visiting Professor, University of Exeter Asst. Prof, American University Bill Davies 2012
Scope of discussion The constitutional practice of European law Direct effect, primacy and beyond Existing explanations for development of system Political science and legal theories A New History of European Law? Historicisation of European legal evolution Conclusions Much work to be done
Establishing a Constitutional Practice Court-led Legal Revolution Uniquely effective transnational legal order accessible to half a billion Europeans Transformation from a standard international legal organisation to a quasi-constitutional order Doctrines of direct effect and primacy Issued by the ECJ as early as 1963/4 and built on subsequently into the 1970s and beyond
The Legal Revolution: 1960s The Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the Member States but also their nationals. (Case 26/62 Van Gend en Loos ) The law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question. (Case 6/64 Costa vs. ENEL)
The Legal Revolution: 1970s The law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure. (Case 11/70 Internationale Handelsgesellschaft)
Number of Art. ex. 177 (Art. 267) Rulings 1957-1985 Germany France Italy Netherlands Belgium UK 35 32.3 30 27.2 25 20 16.3 16.7 15 10 8 10.3 10.3 10.2 8.8 8.7 10.5 6.2 5 1.3 1.2 2.3 1.6 3.3 0 1958-1973 1974-1979 1980-85 Source: Stone-Sweet & Brunell, The European Court, National Judges and Legal Integration. A Researchers Guide to the Data Set on Preliminary References in EC Law, 1958-1998, European Law Journal, 6,2, 2000 pp 117-127
The Community is a creation of Law. That is what is decidedly different from previous attempts to unite Europe. Not violence, not suppression, but the intellectual and cultural power of Law is the means. Its majesty will achieve that which centuries of blood and iron could not. Walter Hallstein, 1969
The Paradox of Legal Integration Empty Chair Crisis, Eurosclerosis, UK accession ECJ has been logical in establishing key mechanism Judicial coherence argument Used principles to pursue integration even when political will/possibility did not exist (Art 4, ToR) - Integration-through-Law dynamic Foundational myth of the Court: Rescued integration from the Member States Constitutionalisation thesis (Weiler, Stein)
Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure Eric Stein, 1981
Political & Social Scientists Slaughter, Mattli, Stone Sweet Close to neo-functionalist theory ECJ and LNC have worked together to circumvent HNC (Art. 177) and MS governments Vauchez, Cohen, Risk Madsen Growth of a transnational lawyer-bureaucrat elite Bourdieu s theory of Social Capital Alter Negotiated compromise between NC and ECJ: ECJ cannot go too far as it is reliant on NC and wants to avoid a backlash
Explanatory model Central players: European Court of Justice Lower national courts Self-interested lawyers/elites Successfully circumvented MS and HNC to create a system of law quasi-federal and constitutional(ly plural) in nature Integration-through-Law re-confirmed Standard narrative of EU law
Exploring the New History New in two senses: Methodological approach and emerging conclusions on the emergence of the legal system Explanatory models relied heavily on theoretical (even normative) assumptions, oral interviews and secondary sources New History methodology more classically historical national and private archives, emphasis on objective (as possible) analytical narrative
Enter the (Legal) Historians Historical narratives of European integration have fundamentally neglected Law political and economic histories abound Only recently have a new generation of historians attempted to redress this imbalance Journal of European Integration History 14 (2), 2008 Resisting the European Court of Justice, CUP 2012 Contemporary European History 23 (1), 2012
A Revolution in Thirds Pre-Revolution Treaty negotiations National debates Pre-existing legal cultures Revolution Case-law Origins of cases Aims and actions of key agencies Post-Revolution National reactions Consolidation of doctrines Continuing interaction
Pre-Revolution Jean-Michel Guieu Failure of inter-war models of international legal cooperation led to recognition of need for a new and original European legal order League of Nations too unwieldy and disparate recognition of limited area (continental) integration as pre-cursor to world government Continuity and breakage between inter- and postwar legal theorists Stresa Conference 1957 new mode of supranationality (autonomy, delegated sovereignty) as chosen path fed into ToR negotiations
Pre-Revolution Anne Boerger-De Schmed Treaty negotiations resulted in a mixed regime mostly international and administrative in nature and certainly not constitutional explicitly rejected (EDC failure) Small committee of jurists (including Catalano, Gaudet, Pescatore), shielded by interested politicians (esp. Ophüls) subtly modified treaty to allow for constitutional reading, esp. Art. ex.177 (Catalano) & 189 (Pescatore)
Signing the Treaty of Rome Source: Wiki Commons
Pre-Revolution Karin van Leeuwen Dutch tradition of openness to international law crucial for explaining Van Gend en Loos decision Dutch interest in European integration led to 1953 and 1956 constitutional reforms 1956 primacy for IL of self-executing nature Wave of preliminary rulings from Dutch courts incited by 1956 reform, second of which was Van Gend en Loos
Revolution Morten Rasmussen Intellectual origins of direct effect and primacy lie not in the Court, but in the Commission s Legal Service, esp. DG Michel Gaudet Gaudet central in mobilising pro-european lawyers to send test cases, esp. in Holland (Hoge Raad, Van Gend en Loos) & FIDE Court remained reticent did not fully embrace Legal Service s ambitions ( new, not constitutional ) Direct effect limited case-by-case, treaty provisions
Walter Much, Legal Service of the Commission 1952-1975
Revolution Alexandre Bernier Tested role of European Law Associations in spreading ideas, esp. AJE & FIDE (Sociologists) AJE remained largely ineffective during Gaullist period; FIDE was academic talking shop important, but not crucial Role of transnational groups over-stated Reflected in French (and beyond) resistance to the ECJ (esp. Aurillac amendment (1980))
Post-Revolution German resistance to doctrines (esp. 11/70) founded on concerns for fundamental rights and democracy ( structural congruence ) Solange decision of Constitutional Court (1974) Reversed in Solange II (1986) German resistance constitutive effect on European system Gerhard Reischl ECHR accession Copenhagen Joint Declaration (1978) Case 44/79 Hauer (1979) ECHR Article 1
Post-Revolution Laurent Warlouzet and Tobias Witschke Examined the Integration-through-Law dynamic in regards to competition policy ECSC CP faltered due to Franco-German politics Regulation 17/62 gave Commission competency for cartels, but ECJ overturned (in part) a number of Commission decisions (Cartels: Cases 56 & 58/64, 56/65, Merger: 6/72) Competition policy only took off after SEA and Jacques Delors/Peter Sutherland dynamic Cases142 and 156/84 (Philip Morris) expanded Commission competency to mergers under Art 85 (precursor to Mergers regulations 1989 and 2004)
The Emerging Story Development of EU law ( The Revolution ) highly contested across time and MS Different legal areas evolve at differing rates MS react on certain issues national legal cultures and hierarchies key element to story Multiple agencies responsible for development Not a top-down story national courts equally constitutive ECJ acted as a brake as much as a motor Integration-through-Law neither inevitable nor across the board
Much Work Remains Connecting the dots how to tell the whole story? Limited case studies (Germany, Holland, etc) more comparative/european analysis needed Problem of volume multiple national and private archives in various languages Speaking different languages? Convincing historians that law is accessible and lawyers that history matters Secret deliberations Opening the Court?