November 12, 2012

Towards a New History of EU Law? Some Contemporary Implications for the Court of Justice

In the aftermath of the US Elections, on November 7, 2012, Bill Davies and Fernanda Nicola organized a workshop at the Washington College of Law at American University (AU) entitled “Toward a New History of EU Law.”  The workshop focused on a lecture by the EU legal integration historian Morten Rasmussen, Associate Professor at University of Copenhagen. Dr. Bill Davies, Assistant Professor in AU’s School of Public Affairs, introduced the workshop by highlighting its strong interdisciplinary approach. Bill and Morten offer a revisionist interpretation of EU legal history, Bill in his recent monograph, Resisting the European Court of Justice: Germany's Confrontation with European Law 1949-1979 and Morten in his current project on a general history of European law from 1950 to 1970. The two have recently co-edited a special issue of the Contemporary European History, which showcased the work of eight young historians working in the evolving field of EU legal history.  The contemporary implication of this work asks for a better scrutiny and understanding of the role of the CJEU in a time of crisis in which law has been relatively untouched by the current financial meltdown.
This workshop was conceived in the best interdisciplinary tradition by offering both legal commentary from Francesca Bignami (GW Law), and the perspective of a political scientist, Mark Pollack (Temple U).  While Francesca’s research focuses on comparative constitutional and administrative law of the European Union, Mark looks at the promise and limits of international cooperation, with special attention to the delegation of powers to supranational organizations like the EU.

Morten Rasmussen’s lecture began by explaining that the context of European legal integration was driven by low societal demand for legal adjudication at a time when legal access to Luxembourg was not easy for individual citizens of the Member States of the then Communities.  (Then only the preliminary reference was left to bring private case law the Court (177 TEC)). This foundational moment, rather than a constitutional moment based on the spirit of the Treaties, is a moment of intense battle of conflicting ideas and interpretations among legal and political elites that shaped the early nature of EU law. At that early time an inter-governamentalist approach competed with a constitutional, federalist vision. The High Authority or the executives of the Member State were tasked with the implementation of the International Treaties and according to this inter-governmentalist view, the ECJ was not at the core of implementation of EU law vis a vis national orders.  In contrast, the constitutional vision placed the ECJ at the center of the new architecture, based on the German idea promoted by Walter Hallstein, first president of the EEC Commission, that this new type of international community must be subject to the rule of law, namely a Rechtsgemeinshaft.
Rasmussen further explains how different groups of legal experts, originally inclined toward federalism, ended up bolstering the constitutional approach by introducing and refining the mechanism of preliminary reference under Article 177 of the Rome Treaty. This procedure eventually allowed citizens broader legal recourse to the ECJ simultaneously strengthening the constitutional and legal foundation of the system and creating the possibility for more integration.  

Once Rasmussen explained how the breakthrough in Van Gend and Costa, two of the fundamental ECJ cases, is in reality the byproduct of a number of factors –1) the creation of the common market; 2) constitutional changes in the Netherlands in the latter half of the 1950s which allowed a large number of cases to be referred to the ECJ; 3) the creation in 1962 of an international federation for European law;  4) and the crucial appointment of two new judges (Alberto Trabucchi and Robert Lecourt) who favored federalism—, he turned to the challenges inherent in the expansion of the Union and subsequent limitations in the 1970s.  Up until this point, European public law was shaped by limited European elites.  The Post-1967 court – now presided over by Lecourt and including federalist voices such as Luxembourg justice, Pierre Pescatore, moved beyond the conservatism of the earlier court and began to deepen its constitutional practices which led to greater and more vocal opposition from the Member States. 
The 1970s marked the start of the struggles between ideas and among political and legal elites as based on fundamental rights driven mostly by the German Federal Constitutional Court in well known cases such as International Handelsgesellschaft and Solange.  Relying on Bill Davies’ account of pervasive resistance to the ECJ in German administrative bodies, domestic courts and civil society, which resulted in changes in the European legal system determined predominately by ‘national’ concerns and pressure, demonstrating the real co-constitutive impact of national receptions of EU law, Rasmussen showed that this conflict between national sovereignty and Union law came to only a partial end.  The end result of these processes – at least as far as historians can tell into the mid-1980s, is a European public law structure that was shaped by a broad range of actors, was heavily contested and saw the national systems and traditions play a co-constitutive role in the formation of essential aspects. 

This historical account does not rest on a normative explanation of the contitutionalization of Europe, rather it depicts the constitutional practice of the court as a struggle driven by some specific actors, it provides for a revisionist historical account that departs from the classic narratives. Among these the constitutionalization narrative by Eric Stein and Joseph H.H. Weiler, or the constitutional dialogue with the ECJ and the national constitutional courts, Walter Mattili and Anne-Marie Slaughter, or including transnational and private groups to  further constitutionalization of the EU, Alec Stone Sweet or Karen Alter. Finally, he explained that the academic paradigm launched by Weiler and Cappelletti in the 1970s as a strategic project of Integration through Law, this has become common wisdom of EU law that cannot really be justified historically. Instead, Rasmussen revisionist history shows that national resistance to the ECJ’s constitutional practice did not disappear, rather it continued at different times and that the preliminary reference mechanisms if not back up by the Dutch constitutional reform, still remains a fragile tool since countries like Denmark – using political control of the judicial system - for the longest time have made sure that courts would never send cases to the ECJ.  Therefore we come to understand that the ECJ’s constitutional practice is shaped by contention, resistance and co-constitution instead of mere top-down, gradual, inevitable acceptance.
As Mark Pollack responded in his sharp comment “It is the Golden Age of ….. EU legal history.”  From the perspective of political science Mark wondered about the lessons from such revisionist history and the revisionist mission for future research.  What difference does it make to have 27 rather than 7 judges that can no longer be treated as a unitary actor.  Before Rasmussen’s work we did not know that Van Gend was decided 4-3, since the ECJ’s deliberation is secret. What difference would it make to us as US citizens to discover that Marbury v. Madison had been decided 4-3 rather than 6-0?   More work on the selection process of judges and procedures affecting the functioning of the ECJ must be done before these questions can be answered.

Francesca Bignami instead questioned whether the revisionist history meant that we should end the constitutionalization narrative altogether and whether we should stop considering EU law as constitutional.  Legal discourse on constitutionalization means that the law of the Union resembles more a federal than an international legal order, constitutional as opposed to international law.  She found it problematic that we do not find Rasmussen offering an alternative ideal type to the constitutional model that could be perhaps a quasi-federal model to be contrasted with the international model.  While the revisionist historical approach shows in a more nuanced account where EU law emerged, according to Francesca it does not explain how federalization occurs in this way.
In response to the many challenging questions coming from such law Professors as James Dinnage (Villanova Law) and Philomila Tsoukala (Georgetown Law), Rasmussen replied that the historical methodology clarified that “If you study an institution such as the ECJ, you cannot start from its normative dimension.  The constitutional approach is much more contested, resisted and pluralistic than lawyers have explained to date.”

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