Weekend Edition Nº49 by eulawlive

Nº49

FEBRUARY 27

2021

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SPECIAL ISSUE

EU LEGAL HISTORY BILL DAVIES

MORTEN RASMUSSEN

WHY EUROPEAN LAW NEEDS A LEGAL HISTORY

AMEDEO ARENA

DISCOVERING THE HISTORY OF EU LANDMARK RULINGS: SKETCHES FOR A PAN (PROCESS-ACTORSNARRATIVES) APPROACH

BIOGRAPHY AS A WINDOW INTO THE EUROPEAN UNION’S LEGAL HISTORY

ANNA-KATHARINA GROSCHINSKI AND FERNANDA G. NICOLA

ESSENTIAL EU LEGAL HISTORY RESEARCH FOR EU LAWYERS

BOOK REVIEW BY MARC STEIERT

GREAT JUDGMENTS OF THE EUROPEAN COURT OF JUSTICE by William Phelan

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Why European Law needs a Legal History Morten Rasmussen

feared, was what would happen if legal historians exe eld of European law differs from most other posed the complex historical roots of European law. elds of law by not having a well-established legal e constitutional understanding of European law, history. e history of European Union law is not now so dominant in the European Institutions and taught by any legal faculties across Europe, in fact among legal academics, was clearly a much more fraonly the Max Planck Institute for European legal hisgile and contested construct history in Frankfurt has made the torically. Historians could expose, topic a permanent research e twin doctrines of as they have done by now, that the eld. As this piece will argue, the early foundational judgments of lack of an established legal hisdirect effect and primacy Van Gend en Loos (1963) and Costory poses a serious problem to of European law, did not ta v E.N.E.L. (1964), introducing those scholars and practitioners who want to think critically the twin doctrines of direct effect ow naturally from the about how European law has and primacy of European law, did evolved and identify the major Treaties of Rome but were not ow naturally from the Treachallenges to the eld today. ties of Rome but were a result of a a result of a contested contested political and legal ba ere are arguably two key reapolitical and legal ba le le. Historical analyses of the forsons why no well established lemative period of European law gal history in European law would also discover the extent to exists yet. Firstly, European law remains a relatively which the discipline of European law was co-shaped young eld compared to most other elds of laws by the supranational institutions of the European that have much deeper historical roots. With legal Community (EC) and how the constitutional interhistorians, until recent decades, traditionally intepretation of European law was closely connected to rested in pre-20th century legal history, they had the federalist ambitions of those same institutions. simply not begun to work on the history of EuroIt is thus not a coincidence that European law today pean law. Secondly, the missing legal history of Eurostill includes a relatively strong ideological preferenpean law has also been a result of a reluctance on the ce for European integration and even European fedepart of the Court of Justice of the European Union ralism. is is not unique for legal elds, however. (CJEU) to open its historical archives. is only International law, for example, also harboured a happened more than 30 years a er the other EU insstrong ideological project, as it developed from the titutions (the judicial archive opened in 2016 and 1870s onwards, namely the ambition that an interthe administrative archive in 2020). What the national rule of law could remove the destructive poCJEU, as well as some academics and practitioners, wer politics of the day. 1. Associate Professor in Twentieth Century European History, SAXO Institute, University of Copenhagen and Chair of Center of Modern European Studies, University of Copenhagen

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To use the great classics of legal scholarship as a substitute for legal history is deeply problematic for methodological reasons

king back upon his involvement in the seminal ‘Integration through Law project’ of the European University Institute in the rst half of the 1980s, the extent to which the project was shaped by a prointegration outlook.

e lack of a well-established legal history comes at a signi cant price to the contemporary scholarship of European law. Without a proper legal history, legal scholars and practitioners still have to rely on the old mainstream narrative of how European law developed that the CJEU and legal scholarship have promoted. ey typically go back to the great classics of legal scholarship wri en by famous authors such as for example Pierre Pescatore, Eric Stein or Joseph H. H. Weiler. While these scholars were among the most brilliant and sophisticated of the eld, it is o en overlooked that they were also actors in their own right in the construction of European law; from si ing on the bench of the CJEU (Pescatore), or advising the European institutions as Stein and Weiler did on several occasions. ey took active part in constructing a constitutional practise in European law and consolidating its pro-European ideology. Stein for example would readily admit, when he rst presented his conference paper at the American Society of International Law in 1978 that would evolve into his famous 1981 article (Lawyers, Judges and the Making of a Transnational Constitution), that the notion of ‘the Emerging European Constitution’ that was launched was ‘unrealistic and Pollyannaish, if not outright propagandistic’. Likewise, Weiler has recently acknowledged, when loo-

To use the great classics of legal scholarship as a substitute for legal history is thus deeply problematic for methodological reasons. e danger is, whether consciously or unconsciously, that legal scholars end up reproducing the bias created by these historical gures. is is detrimental to critical thinking about the role played by European law in the EU today and how to address the future challenges. Just as original legal thinking borrows from other disciplines such as philosophy, linguistics, sociology and political science, it also requires an accurate and unbiased understanding of the complex historical past. Fortunately, the remedy for this aw is being developed. Over the last decade a small trickle of studies in the history of European law has become an increasingly strong current. A small group of historians, coming from the eld of European integration history, have over the last decade systematically explored European, state and private archives in order to write a proper history of European law. A history

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nal legal order, developed by the ECJ, and moved the EC in a federal direction. is move was however, rejected by a majority of national governments that had not been particularly sympathetic to the evolution of a constitutional legal order and preferred to leave the governments collectively in charge of the new European Union. As a result the Maastricht Treaty ended up with a three pillar-structure, far removed from a constitutional design, and with two pillars based only on intergovernmental cooperation.

that through never before used archival documentation takes us to the meetings behind the closed doors, into the networks between key actors and inside the courts. is movement by historians has been aided also by the parallel interest taken by Bourdieu sociologists in the historical construction of European law. is mass of studies have by now fundamentally changed what we know about the history of European law from 1950 to 1993. So what are the key results of this new historiography?

Historians have rst and foremost explored how a is leads us to the second part of the history of the constitutional practise developed in European law constitutional practise, namely the reactions by the from the early 1950s to the early 1990s. e constiMember States to the constitututional practise arguably had tional ambitions of the ECJ and three key elements. Firstly, the ECJ developed a constitutional e ECJ was at liberty to the supranational institutions. Generally, the history of Eurointerpretation of European law pean integration saw a continued in its case law starting with the se- develop its constitutional strengthening of national gominal judgments of Van Gend en legal order without vernments from the mid-1960s Loos (1963) and Costa v. E.N.E.L interference from the onwards rst with the introduc(1964), but continuing through tion of the informal veto right the remaining period to the early Council of Ministers a er the Empty Chair Crisis of 1990s. e case law of the ECJ 1965-1966, and from 1974 also was fuelled by the mechanism of with the establishment of the Eupreliminary references that in ropean Council. National governments increaturn was driven rst primarily by pro-European lawsingly took charge of the integration process and in yers and increasingly also from the mid-1970s onthis sense the Maastricht Treaty can be seen as a ultiwards by key social actors and businesses. Secondly, mate result of this dominance. But if national gothe European Commission and the European Parvernments increasingly dominated the EC, and liament provided crucial help in facilitating the consdethroned the European Commission, why did titutional interpretation and promoted it as a means they not also reign in the ECJ? e answer, histofor self-empowerment and with the ultimate aim to rians have now discovered, comes from the fact that transform the EC through federalist treaty reform. the Council of Ministers, as well as treaty reform, reFinally, the emerging academic eld of European quired unanimity between the Member States. is law developed from the early 1980s, a constitutional protected the ECJ because several national governdiscourse that explained the case law of the ECJ and ments, in particular from the small States, believed legitimised it. During the negotiations on the Maasthat the development of a strong European legal ortricht Treaty in 1990-1991, the Commission propoder was in their national interest. For that greater sed treaty reform that would codify the constitutio-

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good it was possible to live with what most Member States believed to be a fairly activist ECJ. e demand for unanimity also stood in the way for those governments that would have liked to see the codi cation of the constitutional doctrines during treaty reform. Here governments from France and Britain systematically rejected such a empts. As a result, the ECJ was at liberty to develop its constitutional legal order without interference from the Council of Ministers, in parallel to the general strengthening of the national governments in the EC.

Much work still needs to be done to fully develop this new eld of legal history the eﬀects of ECJ judgments and doctrines. However, national administrations also had to adapt to the new European legal order in the late 1980s. As the Single European Market thus helped consolidate the legal order the ECJ had built, the resistance and opposition in most Member States to the constitutional claim remained. It was thus not surprising that European constitutionalism was ultimately rejected in the Maastricht Treaty.

At the Member State level, however, the constitutional legal order developed by the ECJ was generally not well received. Although courts, in particular in the Benelux countries, quickly warmed to the ECJ, resistance to the constitutional claim of the ECJ continued in the larger Member States, resulting in outspoken repudiations in the late 1980s and early 1990s by the Italian Corte Costituzionale, the French Conseil d’État and the German Bundesvervassungsgericht (Corte Costituzionale, decision No. 232 of 21 April 1989, S.p.a. Fragd v. Amministrazione delle Finanze; Conseil d'État, Judgment Nicolo, 20 October 1989; Bundesvervassungsgericht, Judgment of 12 October 1993 – 2 BvR 2134/92, 2BvR 2159/92). At the same time, the gradual deepening of European integration, in particular with the launch of the Single Market project in 1987, forced national courts to respect and participate in the European legal system, despite their doctrinal misgivings. State administrations in all the Member States were deliberately slow to adapt to the new European legal order and generally resisted and delayed

What is clear from this very short version of the key results, is how much it diﬀers from the original prointegration narrative of how the constitutional practise in European law was more or less accepted around the early 1990s. ere is no doubt that much work still needs to be done to fully develop this new eld of legal history. Perhaps the most important development would be to move from the history of European constitutionalism to the histories of material law. However, even if legal scholarship as a whole has not yet fully embraced the new historiography, we are already in a situation where a proper eld of legal history can be established institutionally across Europe, a racting not only historians of European integration and historical sociologists, but also traditional legal historians as well as legal scholars. is special issue of EU Law live can hopefully increase awareness.

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Suggested readings from the new research on the legal history of European law: On the historical roots of Van Gend and Costa:

On the historical roots of the discipline of European law:

- Anne Boerger, ‘Negotiating the Foundations of European Law, 1950-1957: e Legal History of the Treaties of Paris and Rome’, 21 Contemporary European History 3, 2012, pp. 339-356.

- Anne Boerger and Morten Rasmussen, ‘Transforming European Law: e Establishment of the Constitutional Discourse from 1950 to 1993’, 10 European Constitutional Law Review 2, 2014, pp. 199-225.

Morten Rasmussen, ‘Revolutionizing European Law: A History of the Van Gend en Loos Judgment’, 12 ICON 1, 2014, pp. 136-163.

- Rebekka Byberg, ‘A Miscellaneous Network: e History of FIDE 1961-94’, American Journal of Legal History, 2017, 57, pp. 142–165

-Karin van Leeuwen, ‘Paving the road to “legal revolution”: e Dutch origins of the rst preliminary references in European law (1957–1963)’, European Law Journal, 2018, pp. 408-421.

- Rebekka Byberg, ‘ e History of Common Market Law Review 1963–1993. Carving out an Academic Space for Europe’, 23 European Law Journal (1-2), pp. 45-65.

- Amedeo Arena, ‘From an Unpaid Electricity Bill to the Primacy of EU Law: Gian Galeazzo Stendardi and the Making of Costa v. ENEL’,30 European Journal of International Law 3, 2019,pp. 1017–1037.

On the Member States and European law: - Bill Davies, Resisting the ECJ. West Germany’s Con ontation with European Law 1949-1979, Cambridge: Cambridge University Press, 2012.

On Eric Stein, Joseph H.H. Weiler, Pierre Pescatore and the ‘Integration through law’ project:

-Karin van Leeuwen, ‘On Democratic Concerns and Legal. Traditions: e Dutch 1953 and 1956 Constitutional Reforms towards Europe’, Contemporary European History, 2012 (21-23), pp. 357-374.

- Anne Boerger, ‘At the Cradle of Legal Scholarship on the European Union: e Life and Early Work of Eric Stein’, 62 American Journal of Comparative Law 4, 2014, pp. 859-892.

-Alexandre Bernier, La France et le droit communautaire 1958-1981: Histoire d’une réception et d’une co-production, PhD dissertation, University of Copenhagen 2018.

- Rebekka Byberg, ‘ e History of the Integration through Law Project: Creating the Academic Expression of a Constitutional Legal Vision for Europe’, 18 German Law Journal 6, 2017, pp. 1531-1556.

On the broader interpretation of the history of European law from 1950 to today:

- Vera Fritz, Juges et avocats généraux de la Cour de Justice de l’Union européenne (1952-1972): Une approche biographique de l’histoire d’une révolution juridique, Frankfurt am Main: Klostermann, 2018.

- Morten Rasmussen and Dorte Martinsen, ‘EU constitutionalisation revisited: Redressing a central assumption in European studies’, European Law Journal, 2019, 1-22.

On ECJ case law:

For an alternative interpretation from historical sociology:

- Bill Davies and Fernanda Nicola, EU Law Stories. Contextual and Critical Histories of European Jurisprudence, Cambridge: Cambridge University Press, 2017.

- Antoine Vauchez, Brokering Europe. Euro-Lawyers and the Making of a Transnational Policy, Cambridge: Cambridge University Press, 2015.

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Biography as a Window into the European Union’s Legal History Bill Davies

other federal polities, particularly the US. e works of Joseph HH. Weiler and Eric Stein became (and remain) the launching pad for anyone looking e study of the European Union’s legal history is to understand the European judiciary in context. comparatively new. It promises to supply a deeper Un inchingly, these works taught a generation of understanding about how EU law evolved since its students that the CJEU had ‘constitutionalised’ the birth in the 1950s, both for legal academics and for European legal order and the the wider European public. is Court must be regarded as akin to is important because knowledge of the development of the Euro- Un inchingly, these works a Supreme Court of Europe. Whilst the 1986 work by Hjalte pean legal system was until retaught a generation of Rasmussen opened a erce concently murky at best and the troversy about whether this view early studies of European law, to students that the CJEU was correct or not, a series of inquote an author of one such had ‘constitutionalised’ creasingly sophisticated examistudy, ‘propagandistic’. Spilling the European legal order nations of just how the CJEU had the contents of the archives managed to constitutionalise EU allows historians of EU law to inand the Court must be law appeared and ubiquitously terpret as objectively as possible adorned student reading lists and regarded as akin to a what actually happened, how these historical dynamics shaped Supreme Court of Europe bibliographies in both the US and Europe during the 1990s and the contemporary legal world, early 2000s. and how future challenges might

EU Legal History as a Field

be best overcome.

Around this time, a small group of historians had begun investigating European and national archives to ‘check’ the claims of the prior studies. e rst historical conference took place in Copenhagen in 2007, with the Danish capital becoming the epicentre for the emergence of this self-named ‘New History of European Law’ group. In my own case, I began my doctoral studies in London in 2003 fascinated with the concepts of Selective Exit and Voice in

Before historians entered the fray, political scientists and legal scholars supplied the earliest analyses of the Court of Justice of the European Union (CJEU) back in the 1970s and 1980s. eir methods drew from comparative law and focused on the doctrines established by the court and how this might be understood in light of the development of

1. Associate Professor at the School of Public Aﬀairs, American University Washington, DC.

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Weiler’s ‘Transformation of Europe’. I had focused on Germany during my degree in European Studies and so I naturally turned to ask whether the German Government’s acceptance of the ‘constitutionalisation’ of EU law had worked according to the dynamics described by Weiler. e results of this inquiry became the rst monograph in the eld of EU legal history, and detailed how and why, contrary to expectations, the political forces in Germany had supported the CJEU whilst the judiciary had resisted it. To do this, I spent a number of years digging through the German federal, political party, and Sti ung archives. Most signi cantly, I also discovered the treasures of private archives of key participants in the events I was describing. e biographies of a range of diﬀerent legal actors from across the Member States have provided such particular and meaningful insights into the history of EU law.

Legal Biography A legal biography, at its best, details the course of an individual’s life deeply within the context of their work in the legal eld to which they belonged. is enables the reader to comprehend the nuances of litigative strategy, judicial decision making or the drawing of legal opinion. It also has the added bene t of placing those individual choices in a larger chronicle, which helps us get to the bo om of questions of agency, causality, and interconnection. Of course, in comparison to legal historian ‘cousins’ in the US, EU legal biography is still only scratching the surface. Stories told about Supreme Court Justices, A orney Generals and the like abound and are part of the general historiography of the US. Naturally, there are substantial diﬀerences in the legal elds of the US and EU (not least, the importance of indivi-

Of course, in comparison to legal historian ‘cousins’ in the US, EU legal biography is still only scratching the surface

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Within the eld of EU legal history, biography plays out on a number of levels. ere are, of course, the judges of the CJEU itself. Here much focus has already fallen and the outstanding work of Vera Fritz deserves much praise. Fritz’s work has detailed the lives of several judges, not least the omnipresent Pierre Pescatore as well as former Presidents Robert Lecourt and Leon Hammes, and has demonstrated that despite the façade of collegiality built by the court, individuals, with diﬀering experiences, goals and force of personality have and do ma er. is seems commonsensical, but to go and document this empirically in the archives is a diﬀerent story. Talking of Lecourt, a monograph length biography of the former President has been recently published by Will Phelan, which re-draws our thinking on the constitutionalisation paradigm and instead demonstrates that Lecourt’s vote in the Van Gend en Loos and Costa v ENEL decisions (and beyond) was shaped by his views on interstate retaliation. Phelan does this not as a historian might typically – through the triangulation of archival materials – but by retracing the intellectual steps taken by Lecourt in his publications prior to joining the court in the 1960s.

Of particular importance at the European level has been the Legal Service of the European Commission, given its long-standing role as the legal voice of the supranational institutions before the court. Unsurprisingly, Michel Gaudet, the rst Director General of the Legal Service, has occupied much historical eﬀort (I am currently working on a biography of Gaudet’s early partner, Robert Krawielicki). e biographies provided by both Morten Rasmussen and Julie Bailleux have emphasised the centrality of Gaudet to the drive to constitutionalise a European practice of law. Alongside Gaudet, Eric Stein, long time adviser to the Legal Service, has come under the a entive scrutiny of both Anne Boerger and Alexandra Kemmerer, demonstrating how important Stein’s US connections were both before and during his time working with the Legal Service. My own work on Gaudet’s successor as Director General, Walter Much, reveals as much about Europe’s 20th century as it does about the EU. Much and Stein were born a month and a 100 miles apart from each other, but on diﬀerent sides of the GermanCzech border. As a result, Stein had to ee Europe to survive and returned as part of the US Army, whereas Much – a fervent anti-Nazi – was caught up in the military machinery of the ird Reich and barely survived in a French P.O.W. camp until a er the war had nished. Understanding such details provokes us to think what the spirit and conversations of such people must have been once the serious work of creating a uni ed, peaceful Europe began in earnest.

Another level of biographical interest are the lawyers and advocates. In this area, focus has been given to both European and Member State characters. e works of Tommaso Pavone and Amedeo Arena in detailing the activities of a multitude of legal actors in the Italian system shine particularly brightly.

A further eld of biographical interest is in legal academia. is is a particularly interesting area since many of the leading actors in EU legal history were also professors or legal scholars. As just one such example, Walter Hallstein was both a law professor at the University of Frankfurt and taught constitu-

dual judges in the US vis-à-vis the collegial nature of decision making in the CJEU), but it is hard to doubt that knowing more about the personalities that have shaped EU law at historical moments would not be of great bene t in the academy and beyond.

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Some judges continue to engage in academia whilst at the court, which enables historians to demonstrate their impact on particular decisions

tive planes and small individual level changes. By having a clearer, more accurate understanding of who someone was and how they were formed intellectually, we get a be er grip on why they chose to do the things they did. is is intrinsically important when the ‘things they did’ happen to be the shaping of a legal system that impacts nearly a half-billion European citizens. Not only this, but biographical history is inherently rich and engaging, both for author and reader. Seeing the world through someone else’s eyes is intellectually stimulating and promotes self-awareness. Would we have done things diﬀerently? More importantly, will we do things diﬀerently now? Legal biography adds colour, texture and stimulus to the eld of EU law.

tional law at Georgetown before he became Commission President. He was not an exception in this cross-cu ing career path. Indeed, it is because of this that the ‘black box’ of the court can be partially overcome and allow for scholars such as Phelan to chart the intellectual development of judges like Lecourt before and a er they serve on the bench. Equally, some judges continue to engage in academia whilst at the court, which enables historians to demonstrate their impact on particular decisions. Once such example was when I was able to nd near identical wording in an article on fundamental rights protections published by Pierre Pescatore in the American Journal of Comparative Law and the Stauder and Internationale Handelsgesellscha rulings, for which Pescatore was the juge rapporteur. e networks of scholars involved in the creation of EU law have been the focus of prosopographical historical analysis by Rebekka Byberg, Alexandre Bernier, and Morten Rasmussen. Sociological contextual analyses of such groups have also been completed by Antoine Vauchez and Antonin Cohen.

Despite the promise that legal biography holds, much remains to be done. e n is still rather small, particularly at the Member State-level and thus far has told the story only through the eyes of similarly aged, similarly educated men. Despite the works of Fritz and Phelan, the number of deep-dive biographies of European judges remains small, not helped perhaps by the understandable propensity of the judges to have their time on the Court remain as closed oﬀ to the outside as possible. Judge David Edward is one of the exceptions to this rule and has opened up much of his personal papers and publications to the public through the Sturm College of Law website at the University of Denver. Worse still is the dearth of national judge biographies framed within a European context. Many intriguing ques-

e Promise of Legal Biography

Legal biography adds colour, texture and stimulus to the eld of EU law

e end product of well-researched, detailed historical scholarship is to provoke revisions of contemporary understanding through accurate retelling of past events. With legal historical biographies, the shi s in our understanding can be both large narra-

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in oﬃcial archives, it will come down to luck (or perhaps skill as some historians might say. is historian does not claim to possess such skill!) as to whether they are found. In my own case, I managed to contact the family of Walter Much through the close reading of a birth certi cate in his government personnel le and the friendly aid of a Berlin archivist. Even then, it still required the grace, openness and warm hospitality of Walter Much’s surviving family for the project to go anywhere. Not everyone is always so lucky. However, if such materials can be found, the rewards can be great and will certainly continue to enhance our increasing historical awareness of the European legal system.

tions could be answered by looking at the national judicial context: why did President Ambrosini assign Judge Papaldo as reporting judge in the Italian Constitutional Court’s decision in the Costa saga? Why did President Ernst Benda feel it necessary to discuss the German Constitutional Court’s Solange decision with the German media? Answering such individual-level questions would surely help us be er understand the dynamics of European legal integration. One of the reasons why so few biographies have been wri en is the diﬃculty in sourcing them. Deep-dive biography requires a lot of source material and unless such materials have been deposited

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Discovering the History of EU Landmark Rulings: Sketches for a PAN (Process-Actors-Narratives) Approach Amedeo Arena

’Jurists who know nothing but the e text of the Court meaning(s) in light not only of its legal context, but also of its histolaw, don’t know the law either’ of Justice’s landmark rical, political, economic and sowrote Francesco Carnelu i, one of Italy’s most celebrated lawyers rulings tells us only a cial se ing. Drawing inspiration from ‘πᾶν’, the Greek word for ‘all’, and legal scholars of the 20th cenpart of that fascinating this methodology can be referred tury (2). By the same token, the to as the ‘PAN (Process, Actors, text of the Court of Justice’s landstory that is European Narratives) Approach’. mark rulings tells us only a part of that fascinating story that is Eurointegration pean integration. For this reason, As to the Process, many legal coma growing number of legal scholars have recognised mentators focus only on one step of legal proceethe importance of going ‘beyond the text’ to gather dings: the judicial opinion. However, as the Ameria deeper understanding of EU case law. can Legal Realist Jerome Frank put it, ‘an opinion is not a decision. A decision is a speci c judgment Arguably, the Court of Justice’s landmark rulings […] entered a er a trial of a speci c lawsuit betcall for a ‘holistic’ assessment (3), one that encomween speci c litigants’ (5). Likewise, the decisions passes, in addition to the legal principles those ruof the Court of Justice are the outcome of ‘various lings are usually identi ed with (4), three o factors and stages’, hence ‘understanding […] the neglected aspects: (i) the process or procedural hisproduction of those decisions can […] aid our understanding of EU law’ (6). tory of the case, (ii) the actors involved in it, and (iii) the narratives in which the ruling ts in, that is its

1. Associate Professor of European Union Law, University of Naples Federico II, Department of Law; Visiting Fellow, European University Institute, Robert Schuman Centre for Advanced Studies (a.arena@unina.it). 2. F. Carnelu i, Tempo Perso (Florence, Sansoni, 1959), 6. 3. is must be distinguished from the ‘holistic’ approach to the evaluation of evidence criticised by M. Taruﬀo, Sui con ni (Bologna, Il Mulino, 2002), pp. 320323. 4. A. Vauchez, ‘EU Law Classics in the Making’, in F. Nicola and B. Davies (Eds), EU Law Stories (Cambridge, Cambridge University Press, 2017) p. 21. 5. J. Frank, Why not a clinical lawyer-school?, 81 University of Pennsylvania Law Review (1933) p. 907, p. 910. 6. K. McAuliﬀe, Behind the Scenes at the Court of Justice, in F. Nicola and B. Davies (eds), (Cambridge, Cambridge University Press, 2017) p. 35, p. 54.

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ged to express itself with one voice, it is of course e Process element is, arguably, essential to acstaffed by individuals from Member States with dicount for the Court of Justice’s ruling in Costa v verse social and educational backgrounds, languaENEL. e preliminary question in that case conges, and cultures’ (9). In legal systems such as the cerned the consistency of Italy’s electricity nationaUnited States, the role of individual judges is more lisation statute with the EEC Treaty, not the rank of conspicuous, as judicial opinions account for the voCommunity law in Member States’ legal orders. e tes cast and may include concurrent and dissenting opportunity to shed some light on that topical issue opinions. In the EU, instead, individual contribuwas, in fact, offered to the Community judges by a tions can only be inferred from the judges’ biograpseemingly inconsequential procedural detail: the hies, publications, correspondenMilan small-claims court’s decice, public statements, etc.. sion to refer the Costa v ENEL case only to the Italian Constitutioe Judge-Rapporteur and the nal Court, which in its Judgment Individual contributions can Advocate General o en have a deNo. 14/1964 of 24 February only be inferred from the cisive in uence on the outcome 1964 ruled that, within the Italian legal order, subsequent do- judges’ biographies, publica- of the cases decided by the Court of Justice. Sometimes, however, mestic statutes took precedence tions, correspondence, public the game-changer may be another over the EEC Treaty. It was only member of the panel. For examin the context of the second lawstatements, etc. ple, in Van Gend en Loos it was Judsuit brought by Flaminio Costa, ge Alberto Trabucchi who swung Costa v ENEL II, that the smallthe vote in favor of direct effect, contrary to Advocaclaims court of Milan made a preliminary reference te General Roemers’s Opinion, thus paving the way to the Court of Justice, whose landmark ruling of 15 to the development of a ‘new legal order’ (10). July 1964, as explained by Judge Alberto Trabucchi’s référendaire Paolo Gori, was adopted in the waMoreover, legal commentators usually pay limited ke of the above ruling of the Italian Constitutional a ention to the ‘broader community of actors’ (11) Court (7). in judicial proceedings, such as the parties and their lawyers. However, considering that the Court of JusTurning to the Actors, the Court of Justice’s rulings tice’s rulings constitute ‘the product of a whole ranare o en presented as the product of a ‘single ratioge of people’, (12) it is useful to also examine their ronality’ (8). However, ‘while the Court may be obli-

7. P. Gori, La ''Storia'' Della Causa, In B. Nascimbene (ed) Costa c. ENEL: Corte Costituzionale E Corte Di Giustizia a Con onto (Milan: Giuﬀrè, 2015), p. 85. 8. M. Maduro and L. Azoulai, ‘Introduction: e Past and Future of EU Law’, in M. Maduro and L. Azoulai (eds.) Past and Future of EU Law : e Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (London: Bloomsbury Publishing, 2010), xiii. 9. K. McAuliﬀe, Behind the Scenes at the Court of Justice, in F. Nicola and B. Davies (eds), EU Law Stories (Cambridge, Cambridge University Press, 2017) pp. 35-36. 10. G. Perini, ‘Alberto Trabucchi giurista europeo. Alle radici del diri o in Europa: una testimonianza inedita.’ In La formazione del diri o ruropeo: giornata di studio per Alberto Trabucchi nel centenario della nascita (Padua: CEDAM, 2009) 171-177. 11. M. Maduro and L. Azoulai, ‘Introduction: e Past and Future of EU Law’, in M. Maduro and L. Azoulai (eds.) Past and Future of EU Law : e Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (London: Bloomsbury Publishing, 2010), xiii.

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ruling, their situation may be signi cantly misrepresented in the course of judicial proceedings. e Court of Justice’s judgment in McCarthy, for instance, portrays the eponymous British and Irish national, in Kochenov and Plender’s words, as an ‘idle layabout’ who ‘never worked and always collected social assistance’. is is because neither the referring court nor any of the lawyers saw it t to mention that her family was also composed of three children, one severely disabled, and that the United Kingdom was in the process of deporting the only potential breadwinner.

le, their motives, their background, and so on. For instance, there simply would have been no Costa v ENEL without a lawyer like Gian Galeazzo Stendardi (13). He theorised the primacy of Community law in a 1958 publication, he ‘constructed’ the lawsuit between Flaminio Costa and the electricity company ENEL, he persuaded two Italian magistrates to refer the ma er to the Constitutional Court and to the Court of Justice, he faced oﬀ in court against some of Italy’s most prominent lawyers and academics of the time, and he ultimately obtained an epoch-making ruling from the Court of Justice that not only re ects his views on primacy, but that also contains a passage matching – almost verbatim! – a sentence from his 1958 monograph.

Narrative is a cultural tool whose purpose is to make sense of experience to construct meanings (15). e meaning of a Court of Justice ruling, likewise, ‘only becomes clear once the text and its ambiguities are contrasted, compared, reconciled with its context’. (16) Indeed, as Vauchez put it, ‘the delivering of a

Turning to the parties, although they are usually the ones most directly aﬀected by the Court of Justice’s

12. A. Vauchez, ‘EU Law Classics in the Making’, in F. Nicola and B. Davies (eds), EU Law Stories (Cambridge, Cambridge University Press, 2017) p. 21, p. 34 13. A. Arena, ‘From an Unpaid Electricity Bill to the Primacy of EU Law: Gian Galeazzo Stendardi and the Making of Costa v. ENEL’, 30 European Journal of International Law (2019) p. 1017, p. 1036. 14. D. Kochenov, R. Plender, ‘EU Citizenship: From an Incipient Form to an Incipient Substance? e Discovery of the Treaty Text’, 37 European Law Review (2012) p. 369, p. 390. 15. J. Bruner, Acts of Meaning (Cambridge, MA: Harvard University Press, 1990). On narrative analysis of legal proceedings, see F. Di Donato, ‘Narrative Analysis as a Bridge between Humanistic and Legal Clinics Methodology. American and Italian Connections, Law & Literature’, DOI: 10.1080 / 1535685X.2021.1847789.

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lies in the diﬀerent legal, political, and historical contexts in which the Costa v ENEL and Francovich rulings were conceived and received. (19).

“verdict” does not close down legal and political ba les that existed before their issuing; rather, it partly redirects them towards interpretative ba les over the nature, meaning, and scope of the said decision’.

Legal scholars wishing to contribute to developing the PAN Approach must be prepared to venture outFor example, Schütze argued that the meaning of side the ‘Langdellian’ law library. Drawing upon the Dassonville, in its original context, was to prohiFrank’s methodological proposals, Di Donato argued that ‘Making use of methods typical of the sobit ‘quantitative as well as qualitative restrictions to cial sciences […] such as interviews […] and docutrade between the Member States’, in line with the mentary analysis of legal records international market logic un[…] enable[s one] to go beyond derlying the GA (17). HoweRivers of ink could be an analysis of doctrine and jurisver, a er a complex reception history, the Dassonville formula ‘caspilled on how reading prudence’ (20). me to mean’ that also indisthose dossiers can proe starting point for archival retinctly applicable measures are caught by Europe’s ‘dormant vide valuable information search on the Court of Justice’s landmark rulings should be the commerce clause’, thus abandoon the procedural history Historical Archives of the Euroning the GA model and papean Union (HAEU) in Florenv ing the way to a ‘ hy perof an EU case, its actors, ce. Indeed, ‘the study of cases liberalist’ interpretation inspi[…] should be based […] on reared by a national market logic and its context ding and analysis of complete re(18). cords of cases – beginning with the By the same token, in its 1960 judgment in Humblet, ling of the rst papers’. (21) With just an email rethe Court of Justice referred, for the rst time, to the quest to the HAEU, one can obtain access to the dosdoctrines of primacy and Member State liability. siers de procédure of cases decided by the Court of How come that ruling still lies in obscurity, whereas Justice more than 30 years ago (22). Rivers of ink those doctrines have come to be associated with Coscould be spilled on how reading those dossiers can ta v ENEL and Francovich? Undoubtedly, the two provide valuable information on the procedural history of an EU case, its actors, and its context. ere doctrines were articulated in greater detail in those are, instead, no words to describe the emotion of rulings than in Humblet, but the answer, arguably,

16. M. Maduro and L. Azoulai, ‘Introduction: e Past and Future of Eu Law’, in M. Maduro and L. Azoulai (eds.) Past and Future of EU Law : e Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (London: Bloomsbury Publishing, 2010), xiv-xv. 17. R. Schütze, ‘“Re‐reading” Dassonville: Meaning and Understanding in the History of European Law’, in European Law Journal (2018) [p. 376, p. 397. 18. Ibid., 405. 19. A. Vauchez, ‘EU Law Classics in the Making’, in F. Nicola and B. Davies (eds), EU Law Stories (Cambridge, Cambridge University Press, 2017) p. 21, p. 25. 20. F. Di Donato, e Analysis of Legal Cases: A Narrative Approach (Abingdon, Routledge, 2020) p. 2. 21. J. Frank, Why not a clinical lawyer-school?, 81 University of Pennsylvania Law Review (1933) p. 907, p. 916. 22. Interestingly, access requests to the dossiers de procédure have increased from 149 in 2016 to 310 in 2020, with Costa v ENEL leading with 15 access requests and Van Gend en Loos and Van Duyn sharing the second place with 14 access requests.

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det’s reply of 31 December 1957 provides an enlightening perspective on how the Legal Service would help the Court of Justice ‘grasp the elements’ of such a ‘statesmanlike job’:

seeing Flaminio Costa’s 1,925-lira electricity bill for the rst time. Moreover, ‘the analysis of documents […] that are not […] in the oﬃcial proceedings’ may throw a ‘revealing light on aspects and events that would otherwise [pass] in silence’ (23). Documents from the HAEU should thus be ‘triangulated’ with documents from other archives (24), such as the Historical Archives of the European Commission. For instance, how did the Commission Legal Service (25) pave the way to the Costa v ENEL ‘legal revolution’? In March 1964, Roger-Michel Chevallier, Judge Robert Lecourt’s référendaire, forwarded to the Legal Service a copy of the French translation of the Italian Constitutional Court’s judgment No. 14/1964, which, in the words of the Legal Service’s DirectorGeneral Michel Gaudet, highlighted ‘la question inquiétante’ of the relationship between Community law and subsequent domestic statutes. Gaudet thus instructed legal counsel Giuseppe Marchesini to refer to that judgment in the Commission’s submissions in Costa v ENEL, so as to provide the Court of Justice – to which Gaudet referred as ‘nos collègues au Luxembourg’ – with the ‘opportunity to express its views on the issue of the relationship between the EEC Treaty and domestic laws’.

‘we must not a empt to win a particular case, but […] present […] our case with a view to se ing a jurisprudence laying down gradually the rules of law of our Community, […] stress, as o en as necessary, the aims and spirit of the Treaty, and prepare as thoroughly as possible decisions of the Court that will make sense for the Community both in the present and in the long run’. Less than two weeks later, Gaudet forwarded his correspondence with Swatland to Jean Monnet, noting that it set out ‘the necessary conditions so that the [Court of Justice] may provide to the federal construction of Europe all the contribution one can expect’. e importance of interviews cannot be overstated, as they can provide insights on the perspective of the actors of judicial proceedings as well as on the ‘atmosphere’ of a case, that is ‘everything that is undisclosed in judicial opinions’(26). For instance, Bruna Gabardi Vanoli, who worked as a lawyer at Gian Galeazzo Stendardi’s rm in the early 1960s, disclosed important details as to how the Costa v ENEL lawsuit was conceived and on its political context, namely the opposition to Italy’s electricity nationalisation at the height of the Cold War (27). By the same token, Richard Buxbaum, who a ended the public hearing in Costa v ENEL on 11 June 1964, provided a vivid account of the ‘atmosphere’ of the oral argument of ‘Europe’s Marbury v Madison’

Even private archives can provide essential details, such as the one of the Fondation Jean Monnet Fondation pour l’Europe in Lausanne. For instance, in a le er to Michel Gaudet dated 29 November 1957, the American lawyer Donald Swatland argued that the Court of Justice should carry out ‘a statesmanlike job’ on the model of the US Supreme Court, namely ‘the creation of United Europe’. Michel Gau-

23. F. Di Donato, e Analysis of Legal Cases: A Narrative Approach (Abingdon, Routledge, 2020) p. 86. 24. L. Gaillet, ‘(Per)Forming Archival Research Methodologies’, 64 Research Methodologies (2012) p. 35. 25. At the time, it was known as the ‘Legal Service of the European Executives’. 26. J. Frank, ‘Why not a clinical lawyer-school?’, 81 University of Pennsylvania Law Review (1933), p. 908. 27. Cf. B. Gabardi Vanoli, La ‘Storia’ della causa, in B. Nascimbene (ed) Costa c ENEL: Corte Costituzionale e Corte di Giustizia a confronto, cinquant’anni dopo (Milan: Giuﬀrè, 2015) 81.

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Finally, one word of warning to our readers: once you embrace the PAN Approach, there is no going back to a purely doctrinal analysis of EU case law. You will feel that reading the text of a ruling of the Court of Justice may not be enough to understand its meaning. For, to paraphrase two American legal realists, ‘the life of [EU case] law has not been logic’ but ‘experience’ (28), and the ‘factors not expressed’ in the text of the rulings of the Court of Justice, in fact, may be ‘the most important in the real causal explanation of the decisions’ (29).

Once you embrace the PAN Approach, there is no going back to a purely doctrinal analysis of EU case law

28. O.W. Holmes, e Common Law (1881), 1. 29. J. Frank, ‘Why not a clinical lawyer-school?’, 81 University of Pennsylvania Law Review (1933), 910.

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Essential EU Legal History research for EU lawyers 1

By Anna-Katharina Groschinski and Fernanda G. Nicola

a diﬀerent point of view on EU law. Since the early 2000, sociologists began exploring European law from a socio-legal tradition (4), historians looked into European public law as a ‘constitutional practice’ (5), whereas lawyers focused on the multiplicity of legal players (6) and examined EU law through biographical and doctrinal analysis of the Advocate General as the main player at the Court of Justice of the European Union (CJEU) (7).

Today the EU is faced with and has to assess new legal challenges due to societal, economic, or climate changes in order for the European Union to function properly and equitably and to uphold relations with other countries. But how did the EU become the entity it is now and how did its current law evolve throughout history? Historic research has served not only to be er understand how EU law came about, or how its legal tradition was construed in a post WWII and post-colonial se ing (2), but also to avoid false necessities in EU law that could preclude legal reform avenues in European integration (3).

e emergence of these new interdisciplinary avenues has provided deeper insight into the development of European law through the historical insights of the legal and political resistances against European integration (8). is early literature also led

History with sociology, linguistics, and empirical analyses are amongst the disciplines that have led to

1. Fernanda G. Nicola, PhD, SJD, is a Professor at American University, Washington College of Law, and Permanent Visiting Professor at iCourts. AnnaKatharina Groschinski (BA, American University) is an LL.M. candidate at Leiden University. 2. See Kaius Tuori, Empire of Law: Nazi Germany, Exile Scholars and the Ba le for the Future of Europe, Cambridge University Press (2020); and Peo Hansen & Stefan Jonsson, Eura ica: e Untold History of European Integration and Colonialism, Bloomsbury (2014). 3. See Fernanda Nicola & Bill Davies, ‘Introduction to EU Law Stories’, in EU Law Stories: Contextual and Critical Histories of European Jurisprudence by Fernanda Nicola & Bill Davies (Eds.), Cambridge University Press (2017). 4. See Mikael Rask Madsen & Antoine Vauchez, ‘European Constitutionalism at the Cradle. Law and Lawyers in the Construction of a European Political Order (1920-1960)’, 25 Recht der Werkelijkheid 15 (2004); Antonin Cohen, ‘Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s-1960s)’, 32 Law and Society Inquiry 109 (2007); Antoine Vauchez, ‘ e Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’, 2 International Political Sociology 128 (2008). Antoine Vauchez, ‘ e Transnational Politics of Judicialization: Van Gend en Loos and the Making of EU Polity’, 16 European Law Journal 1 (2010). 5. Morten Rasmussen, Establishing a Constitutional Practice of European Law: e History of the Legal Service of the European Executive, 1952–65 21 Contemporary European History (Special Issue No. 3) 375, 381 (2012); Rasmussen, Morten, ‘Rewriting the History of European Public Law: e New Contribution of Historians’ 28 American University International Law Review 5 (2013), pp. 1187-1221. 6. Harm Schepel & Rein Wesseling, ‘ e Legal Community: Judges, Lawyers, Oﬃcials and Clerks in the Writing of Europe’, 3 European Law Journal 165,171–76 (1997); Iyiola Solanke, ‘Stop the ECJ? An Empirical Assessment of Activism at the ECJ’, 17 European Law Journal 6 (2011). 7. Noreen Burrows & Rosa Greaves, e Advocate General and EC Law, Oxford University Press (2007); Iyiola Solanke, ‘Independence and Diversity in the European Court of Justice’ 15 Columbia Journal of European Law 1, pp. 89 -121 (2009); Laure Clément-Wilz, La Fonction de l’Avocat Général près la Cour de Justice de l’Union Européenne Bruylant (2010); Iyola Solanke, ‘ e Advocate General: Securing Trust in the CJEU of Art 13 TFEU’, 14 Cambridge Yearbook of European Legal Studies, (2012) pp. 698 -721. 8. See Bill Davies, Resisting the European Court of Justice: West Germany’s Con ontation with European Law, 1949-1979, Cambridge University Press (2012); A. Boerger & M. Rasmussen, ‘Transforming European Law: e Establishment of the Constitutional Discourse from 1950 to 1993’, 10 European Constitutional Law Review (2014) pp. 199–225 ; Morten Rasmussen, ‘Rewriting the History of European Public Law’, 28 American University International Law Review 1187 (2013); Morten Rasmussen, ‘Revolutionizing European Law: A History of the Van Gend en Loos Judgment’, 12 International Journal of Constitutional Law 136 (2014); Francesca Bignami, ‘Rethinking the Legal Foundation of the European Constitutional Order: e Lessons of the New Historical Research’, 28 American University International Law Review 1311 (2013).

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to an increased interest in EU law as a practice by focusing on the work of the legal services of the Commission, the network of Euro-lawyers inside and beyond the CJEU (9). In addition to the opening of the new EU archives, researchers focused on national archives in the Member States or the personal archives of Euro-lawyers as new ways to analyse and understand the CJEU’s jurisprudence (10).

pean law as constitutional in nature and closer to federal law especially a er the revolutionary cases of the 1960s, the Court of Justice toned down such approach. Worried about resistance to its judgment, it nally embraced the constitutional narrative in the 1980s due to a con uence of historical, political and professional events.

To spark future discussions on the current status of such research, we have listed several articles and books that we consider to be essential reading on EU legal history. We have divided the materials into three diﬀerent yet overlapping areas of research that look at (1) a more accurate history of European integration through the notion of constitutional practice and the resistances to European integration; (2) a more in-depth look at the Court of Justice and its players, especially the Judges and Advocate General; and (3) the stories of the lawyers in the legal services, Euro-lawyers on the ground, and the lawyers in the Member States articulating diﬀerent visions of European legal integration.

Morten Rasmussen & Dorte Sindbjerg Martinsen, ‘EU Constitutionalisation Revisited. Redressing a Central Assumption in European Studies’, 25 European Law Journal (2019). is article combines historical research and the empirical research by political scientists to analyse the history of European law and the concept of ‘constitutionalisation’. In doing so the authors examine the activities of the Court of Justice, the Commission, the European Parliament, and the European legal academia. e authors reach the conclusion that constitutional practice and European Federalism are closely linked and that the understudies political and legal resistances show its aws and its real nature.

1. EU law as Constitutional Practice and Resistances in European Integration

Bill Davies, Revisiting the European Court of Justice: West Germany’s Con ontation with European Law, 1949-1979, Cambridge University Press (2012).

Anne Boerger & Morten Rasmussen, ‘Transforming European Law: e Establishment of the Constitutional Discourse from 1950 to 1993’, 10 European Constitutional Law Review 199 (2014).

is book examines the transformation and development of the European legal system and EC law from the lens of post-war Germany and describes how the country responded to this transformation

is article highlights the disconnect on the nature of European law. While the Commission Legal Service and some Advocates General promoted Euro-

9. Antoine Vauchez, Brokering Europe: Euro-lawyers and the making of a Transnational Polity, Cambridge University Press (2016). 10. See Fernanda G. Nicola, ‘Waiting for the Barbarians: Inside the Archive of the European Court of Justice’ forthcoming in New Legal Approaches to Studying the Court of Justice, by Claire Kilpatrick and Joane Sco (Eds), Oxford University Press (2020).

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through rst hand archival research. It traces the evolution of the German resistance to EU law that was widespread among German diplomats, politicians, and the administrative tribunal and reached its highest expression in the Bundesverfassungsgerichts confrontation with the Court of Justice.

Tichadou explains the relevance of Océano Grupo in EU consumer protection law. e chapters by John Temple Lang and Gisella Gori explain the work behind the scenes by the Commission in EU sheries policies and equal access to education; while the chapter by John Morijn traces the strategic litigation of a Member of the European Parliament in Wijsenbeek.

EU Law Stories: Contextual and Critical Histories of European Jurisprudence by Fernanda Nicola & Bill Davies (Eds), Cambridge University Press (2017).

Vera Fritz, Juges et Avocats Généraux de la Cour de Justice de l’Union Européenne, (1952-1972), Vi orio Klostermann (2018).

e book oﬀers a detailed description of some of the grands arrêts of the Court of Justice by showing how inside and outside the Court there were dissenting opinions and resistance to a federalist vision of European integration. e chapters by Morten Rasmussen on Van Gen den Loos, Anne McNaughton on ERTA and Bill Davies on Internationale Handelsgesellscha , and Bill Davies and Anne Boerger on Les Verts, engage with this perspective:

is book deconstructs the unitary approach to the study of the Court of Justice and examines the professional and personal backgrounds of the rst European judges and Advocates General in Luxembourg through considerable and meticulous archival research. Fritz explains the dynamics between these key players, their personal histories and the resulting relationship between the Court of Justice and its Member States in the Court’s early days.

2. Beyond a Faceless Court of Justice: Stories of the Judges, Commission lawyers, Advocates General, Référendaires and MEPs

William Phelan, ‘ e Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt’, 28 European Journal of International Law 935 (2017).

EU Law Stories: Contextual and Critical Histories of European Jurisprudence by Fernanda Nicola & Bill Davies (Eds), (2017).

rough the use of scholarly writings of one of the most prominent Presidents of the Court of Justice, Robert Lecourt, the author traces the intellectual origins of the fundamental doctrines in EC law that links the infringement procedure doctrines of the Commission to the constitutional architecture of the new European legal order.

e book oﬀers detailed descriptions of the actors behind the scenes actively shaping the case law of the Court of Justice. Starting with the Italian former Advocate General Antonio Saggio and his référendaires, the chapter by Fernanda Nicola and Eveline

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the University of Michigan in cra ing the intellectual theory behind the constitutionalisation of European Law and the role of the Court of Justice as a constitutional supranational court.

Antonin Cohen, ‘Ten majestic gures in long amaranth robes: e formation of the Court of Justice of the European communities’, 60 Revue Française de Science Politique 227 (2010). e author examines the concept of constitutionalisation of the European Union through the roles played by Judges and Advocates General of the Court of Justice. Cohen focuses on the career choices and the professional trajectories of these players and how these shaped their views on European law. is insider view explains the tension between the Judges’ vision of EU law as domestic or international law.

Tommaso Pavone, ‘From Marx to Market: Lawyers, European Law, and the Contentious Transformation of the Port of Genoa’, 53 Law and Society Review 851 (2018). In this article the author conducts a case study of the Port of Genoa (1991) case to trace the outcomes that arise in a local context when the Court of Justice is asked by Euro-lawyers to decide on laws shaping the local political economy.

EU Law Stories: Contextual and Critical Histories of European Jurisprudence. By Fernanda Nicola & Bill Davies (Eds.), Cambridge University Press (2017).

Bill Davies, ‘Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context’, 21 European Law Journal 434 (2015).

Stories of the lawyers in the legal services, EuroLawyers on the ground, and the lawyers in the Member States articulating diﬀerent visions of European legal integration. e book oﬀers crucial insights of the litigation strategies of the lawyers behind the scenes who were interviewed by the authors of the chapters to nd new revelations about the cases of Melki, Zambrano, Francovich, Centro Europa 7 and Chen.

is article examines the German Federal Constitutional Court’s Solange decision from a diﬀerent lens, namely within the internal German context of the legal academy skeptical about the acceptance of the primacy of EU law. e structural congruence theory of Herbert Kraus, provides the necessary compromise between federalist constitutionalists and skeptical traditionalists, and it allows the German reception of EU law.

Anne Boerger, ‘At the Cradle of Legal Scholarship on the European Union: e Life and Early Work of Eric Stein’, 62 American Journal of Comparative Law 859 (2014). e author studies the life and academic work of Eric Stein, ‘the father of English legal scholarship on the European Union’ who played a central role from

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Bibliography Books:

Articles:

- Vera Fritz, Juges et Avocats Généraux de la Cour de Justice de l’Union Européenne, (1952-1972), Vi orio Klostermann (2018).

- William Phelan, ‘ e Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt’, 28 European Journal of International Law 935 (2017).

- Antoine Vauchez, Brokering Europe: Euro-lawyers and the making of a Transnational Polity, Cambridge University Press (2016).

- Antonin Cohen, ‘Ten majestic gures in long amaranth robes: e formation of the Court of jJustice of the European communities’, 60 Revue Française de Science Politique 227 (2010).

- EU Law Stories: Contextual and Critical Histories of European Jurisprudence by Fernanda Nicola & Bill Davies (Eds), Cambridge University Press (2017).

- Anne Boerger, ‘At the Cradle of Legal Scholarship on the European Union: e Life and Early Work of Eric Stein’, 62 American Journal of Comparative Law 859 (2014).

- Bill Davies, Resisting the European Court of Justice: West Germany’s Con ontation with European Law, 1949-1979, Cambridge University Press (2012).

- Tommaso Pavone, ‘From Marx to Market: Lawyers, European Law, and the Contentious Transformation of the Port of Genoa’, 53 Law and Society Review 851 (2018).

- Noreen Burrows & Rosa Greaves, e Advocate General and EC Law, Oxford University Press (2007).

- Bill Davies, ‘Resistance to European Law and Constitutional Identity in Germany: Herbert Kraus and Solange in its Intellectual Context’, 21 European Law Journal 434 (2015). - A. Boerger & M. Rasmussen, ‘Transforming European Law: e Establishment of the Constitutional Discourse from 1950 to 1993’, 10 European Constitutional Law Review 199 (2014). - Morten Rasmussen & Dorte Sindbjerg Martinsen, ‘EU Constitutionalisation Revisited. Redressing a Central Assumption in European Studies’, 25 European Law Journal (2019). - Julie Bailleux, ‘Michel Gaudet a law entrepreneur: the role of the legal service of the European executives in the invention of EC Law and of the Common Market Law Review’, 50 Common Market Law Review 359 (2013).

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WILLIAM PHELAN

Great Judgments of the European Court of Justice – Rethinking the Landmark Decisions of the Foundational Period Book Review by Marc Steiert

hardback) shows that this traditional account might be only a part of the story.

We, EU lawyers, obviously know how the EU’s legal order was created, don’t we?

Comparing the EU with tradetreaty regimes, Phelan underlines that the EU’s true distinctive feature is the absence of inter-state retaliation. He too enquires into the EU’s initial fallacy: how to enforce its law? However, his approach is fundamentally diﬀerent in searching for an alternative (or complementary) explanation of how this distinctive approach to enforcement came about; how the fundamental doctrines of EU law have aﬀected the relationship between the Member States. is could not be more timely as Brexit and the call for border controls in the vaccination saga show guratively the implications of retaliation (now) outside our legal order.

e combined eﬀect of direct eﬀect, supremacy and preliminary references by national courts allowed individuals to challenge norms in con ict with Community law. In sharp contrast, international law’s enforcement relies exclusively on reciprocity and inter-state retaliation. A State can enact unilateral countermeasures against another State infringing its international obligations. Yet, the new legal order, established by the Court of Justice, was based on the joint role of the individual and national courts. e institutionalised individual became the ‘agent’, or ‘guardian’ of Community law. Well, William Phelan’s outstanding volume Great Judgments of the European Court of Justice – Rethinking the Landmark Decisions of the Foundational Period (Cambridge University Press 2019, £ 85.00

e Court of Justice’s early case law is indeed permeated by the prohibition of unilateral retaliation. Who would remember that this was one of only two

1. PhD Researcher in European Union and EU Social Law.

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nearly gives a sense of Lecourt’s role in the Court’s deliberations, one of the well-kept secrets of EU law.

justi cations for supremacy in Costa v ENEL? It appears that the Court of Justice was convinced to rule out any possibility for retaliation and unilateral action in the common market. Its prohibition was, according to Phelan, the ‘master principle’, from which direct eﬀect and supremacy derived and towards whose upholding they operated as they ensured the enforcement of Community law. is is a rst sense in which, linking the three doctrines, this book might change our views on the EU’s legal order.

Conversely, it is the same Robert Lecourt who considered Community law not only to drive integration but also to protect the rights of the person. e individual was the agent of integration and the one who derived protection from it. Evidence for this is emphasised by Lecourt himself, available in the early case law on social security. Pu ing the person in the centre, not in its institutional role but as a protected right-holder, would be yet another story of European integration. How to t this apparent opposition in Lecourt’s writings into Phelan’s account?

Still, how to prove such a claim that challenges the foundations of EU law? It is herein, in Phelan’s method, that lies an important part of his thoughtful analysis. Not only are the classics of EU case law revisited, but he also looks beyond them to cases that are usually neglected, such as Dairy Products (C-90 & 91/63), in which the Court linked the prohibition of retaliation and its foundational doctrines. ese are welcome additions to how we should think about the foundations of the EU’s legal order.

It is in this methodological limitation that lies the biggest strength of the volume as Phelan is crystalclear that Lecourt’s writings cover a broad range of legal subjects. ey prove indeed that retaliation and the foundational doctrines are connected but they also imply that there is more than one possible account of EU integration, whether for states or individuals. Far from limited to an account of retaliation and EU law, this volume should enter the reading lists of us, EU lawyers, EU law students and beyond, as, rst, it shows that there is more than one rationale behind EU law and, second, that European integration was not only integration through law but also integration through people. Maybe, we, EU lawyers, do not know how the EU’s legal order was created.

Most interestingly, Phelan backs his account by references to the persons that wrote these judgments. In fact, a recent turn to the history of EU law has shown that some judges were essential for the foundational doctrines, including Robert Lecourt who was also the Court’s President. Phelan shows that Lecourt’s extra-judicial writings expressly link the foundational doctrines to the prohibition of retaliation. is

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News Highlights Week 22 to 26 February 2021

Fundamental Rights Agency publishes report on violence and harassment across the EU

Compensation for EU liability with regard to police and justice in Kosovo: General Court action published

Monday 22 February

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e Fundamental Rights Agency published a report on the impact of violence and harassment throughout the general population of the EU, based on the rst-ever such EU-wide survey.

e action in General Court case KS and KD v Council and Others (T-771/20) was oﬃcially published, on the EU’s liability arising from human rights obligations under its rule of law mission in Kosovo.

Council adopts conclusions on human rights-based COVID-19 recovery

ECB publishes supervisory Memoranda of Understanding

Monday 22 February

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e Council of the EU adopted conclusions in which it reaﬃrms the EU’s commitment to human rights in the context of recovery from the COVID-19 pandemic.

In line with its new publication policy, the European Central Bank published its existing Memoranda of Understanding on supervisory cooperation. ese include its Memorandum on post-Brexit supervisory cooperation with the Bank of England and the Financial Conduct Authority, which is eﬀective from 1 January 2021.

General Court to hear case challenging authorisation to comply with eﬀects of extra-territorial application of thirdcountry legislation

Speci c Member States told by Commission to align more closely with EU COVID-19 Travel Recommendation

Monday 22 February

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e action in General Court case IFIC Holding v Commission (T-8/21) was published, challenging the authorisation given by the Commission to Clearstream Banking AG to comply with a Regulation on the eﬀects of the extra-territorial application of legislation of a third country.

Tuesday 23 February

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A Commission spokesman stated that six Member States received le ers concerning their application of stricter measures than commonly agreed in the EU’s Recommendation on COVID-19 travel restrictions, through bans imposed on entering or leaving their territories.

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Commission approves German State aid scheme to compensate farmers for costs of implementing Water Framework Directive Tuesday 23 February

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e European Commission approved a German State aid scheme amounting to 30 million euros set to compensate Bavarian farmers for lost income and additional costs that were incurred in order to a ain the objectives of the Water Framework Directive.

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Nineteen leading Venezuelan oﬃcials were added to the EU’s list of sanctions concerning Venezuela based on their role in acts and decisions undermining human rights, democracy and the rule of law.

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e Council of the EU adopted conclusions on the ‘New Consumer Agenda’ for the period 2020-2025, that the Commission presented in a Communication in November last year and which focus on the EU’s green and digital transitions.

Tuesday 23 February

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Advocate General Rantos’s Opinion in MCP (C-603/20 PPU) advises that under the Brussels IIa Regulation (2201/2003), Member States’ courts retain jurisdiction in parental disputes where a child has been wrongfully removed to and has acquired habitual residence in a non-EU country.

Frontex adopts new Fundamental Rights Strategy Tuesday 23 February

Tuesday 23 February

AG Rantos: EU courts retain jurisdiction in parental dispute where child is wrongfully removed to non-EU country and acquires habitual residence

EU adds 19 oﬃcials to list of sanctions: Venezuela Tuesday 23 February

Council conclusions on EU Consumer Agenda

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Frontex adopted a new Fundamental Rights Strategy seeking to implement new standards and practices in how the agency deals with fundamental rights in all of its operations, further to reports of Frontex oﬃcers allegedly pushing back potential asylum seekers oﬀ the Greek coast.

Czechia to le action against Poland over alleged violations of environmental assessment rules at Turów lignite mine Tuesday 23 February

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e Foreign Aﬀairs Ministry of the Czech Republic stated that it intends to le an action against Poland over the impact of its mining activities in the Turów lignite coal mine, located at the border between both countries, due to detrimental environmental eﬀects.

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Ukraine brings Russia before ECtHR for alleged administrative practice of targeted assassination of political opponents

AG Bobek: Motor Vehicles Insurance Directive not meant to govern whether a particular accident is covered by general civil liability insurance

Tuesday 23 February

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e European Court of Human Rights received an inter-State application (No. 10691/21) from Ukraine against Russia, alleging an ongoing administrative practice of assassinations of perceived opponents of Russia, including in other States, outside a situation of armed con ict.

Advocate General Bobek advises in Van Ameyde España (C923/19) that Article 3 of the Motor Vehicles Insurance Directive (2009/103) is not meant to decide whether a particular accident is to be covered by the mandatory general civil liability insurance for motor vehicles, that being an issue for national law to regulate and for national courts to decide.

ECtHR: delayed medical a ention giving rise to severe disability does not breach human rights unless there are exceptional circumstances

European Data Protection Supervisor: data protection provisions should be non-negotiable in international trade agreements

Tuesday 23 February

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e European Court of Human Rights gave its judgment in Vilela and Others v. Portugal (application no. 63687/14), a case concerning allegations of medical negligence for a child born with disabilities and the alleged breach of several provisions of the ECHR.

In the European Data Protection Supervisor’s Opinion, it was observed that the EU-UK Trade and Cooperation Agreement ‘fails to faithfully take over’ the EU’s provisions on cross-border data ows and data protection, and that data protection rules should not be up for negotiation in international trade agreements.

International jurisdiction in civil claim concerning oﬀensive publication: AG Bobek advises that no need for individual to be named for jurisdiction based on centre of interests to be determined

Commission launches call for proposals and activities under the ERC Work Programme of Horizon Europe

Wednesday 24 February

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Advocate General Bobek advises in Mi elbayerischer Verlag (C-800/19) that there is no need for allegedly harmful online content to name a particular person when deciding on the centre of interests in order for jurisdiction to be established under Article 7(2) of Brussels Regulation 1215/2012, in a civil claim concerning publication of the words ‘Polish extermination camp’.

Wednesday 24 February

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e European Commission published a call for proposals under the European Research Council Work Programme established under the Horizon Europe funding framework for 2021-2027.

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Court of Justice: Procedures Directive does not preclude detention of illegally staying third country nationals for transfer to a Member State where they enjoy Wednesday 24 February

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e Court of Justice ruled in M and Others (C-673/19) that under the Procedures Directive, Member States may place third country nationals in detention to transfer them to the Member State which granted them international protection status.

EU and Honduras sign agreement to reduce illegal timber logging Wednesday 24 February

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e EU and Honduras signed a voluntary partnership agreement on forest law enforcement, governance and trade in timber products to the EU, in order to ensure that all Honduran timber and timber products imported in the EU are legally sourced and licensed.

Member States may refuse requests to recover excise duties from another Member State where a suspension arrangement has not been complied with according to Court of Justice

FRESH bond holders with interdependent contractual relationships connected to Bank can challenge Commission State aid compatibility Decision concerning that Bank before EU Courts

Wednesday 24 February

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e Court of Justice delivered its judgment in Silcompa (C-95/19), concerning the coordination of the provisions of Directive 92/12 on excise duty rules and Directive 76/308 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and more.

e General Court ruled on the admissibility of an annulment action against a Commission State aid Decision, nding the applicants are interested parties, have an interest in bringing proceedings, and thus have standing (Breasch v Commission, T-161/18).

General Court dismisses action seeking annulment of grant recovery pursuant to arbitration clause

Joint EU-UK Statement: Withdrawal Agreement Joint Commi ee meeting

Wednesday 24 February

A joint EU-UK statement was made welcoming progress on implementation of citizens’ rights under the Withdrawal Agreement, and commi ed to solutions regarding the Northern Ireland/Ireland Protocol.

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e General Court delivered its judgment in Universität Koblenz-Landau v EACEA (T-108/18), seeking the annulment of several le ers of the Education, Audiovisual and Culture Executive Agency (EACEA) in which the agency sought to recover various amounts of grants that the University had received.

ursday 25 February

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Commission presents new EU Strategy on Adaptation to Climate Change ursday 25 February

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e European Commission adopted a new EU Strategy on Adaptation to Climate Change, se ing out the necessary actions to speed up and deepen preparations to mitigate the unavoidable impacts of climate change.

Appeal of former European Commissioner concerning General Court’s ruling on the termination of his position and OLAF investigation rejected by Court of Justice ursday 25 February

ursday 25 February

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e European Court of Human Rights ruled in Mtchedlishvili v. Georgia (application no. 894/12) that Georgian authorities breached the right to a fair trial in Article 6(1) ECHR when they denied an oral hearing in her appeal against her conviction for customs violation.

New legislative proposal for recast Roaming Regulation presented by Commission ursday 25 February

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e European Commission presented a legislative proposal for a recast Roaming Regulation yesterday which would prolong current rules under Regulation 531/2012 allowing calls, SMSs and data to be made in other Member States at domestic prices.

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e Court of Justice rejected the appeal brought by a former European Commissioner in John Dalli v European Commission (C-615/19 P), concerning an action for compensation of alleged harm as a result of illegal conduct of OLAF, connected with the termination of his role.

Double taxation of foreign source dividends: Court of Justice rules no free movement of capital restriction in comparison with domestic-source dividends due to limited tax credit provided ursday 25 February

ECtHR: lack of an oral hearing at the appellate stage of criminal proceedings requiring direct assessment of evidence breaches right to a fair trial

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e Court of Justice ruled in Société Générale SA v Ministre de l’Action et des Comptes publics (C-403/19) that Article 63 TFEU is not precluded by national withholding tax rules on foreign-source dividends where a speci c and limited oﬀse ing tax credit has been granted.

EFTA Court: Solvency II Directive doesn’t give rise to State liability claim against supervising authorities ursday 25 February

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e EFTA Court delivered a judgment in SMA SA and Société Mutuelle d’Assurance du Bâtiment et des Travaux Publics v Finanzmarktaufsicht Liechtenstein (E-5/20), nding that the Solvency II Directive (2009/138) and its predecessors do not give rise to any State liability claim against a supervisory authority.

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AG Rantos: employers can prohibit wearing headscarves as part of a ‘policy of neutrality’ in the workplace Friday 26 February

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Advocate General Rantos delivered his Opinion in IX v WABE e.V (C-804/18) and MH Müller Handels GmbH v MJ (C341/19), advising the Court of Justice to rule that in the context of a ‘policy of neutrality’, an employer can prohibit female employees from wearing islamic headscarves in the workplace.

Insights, Analyses & Op-Eds Partial access to healthcare professions covered by the mechanism for automatic recognition of professional quali cations

A step in the direction of broadening access to environmental justice: ClientEarth v EIB by Rui Tavares Lanceiro

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Analysis of the impact on jurisprudence on standing and access to justice for NGOs in environmental law cases of the General Court´s ruling ClientEarth v EIB (T-9/19) this week, a demonstration of the willingness of the General Court to engage with the EU’s obligations under the Aarhus Convention.

by Sandra Mantu

Of Polonium and Novichok: Ukraine v Russia No. 9

EU presents new Trade Policy Strategy aiming at open strategic autonomy

by Isabella Risini

by Trajan Shipley

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Analysis of the importance for free movement rights of the Court of Justice’s recent ruling o in Les chirurgiens-dentistes de France and Others (C-940/19), by which the Court stated Member States may authorise partial access to one of the professions (including healthcare) covered by the Professional Quali cations Directive.

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Analysis of the Government of Ukraine’s recent inter-State application against Russia before the European Court of Human Rights, alleging an ongoing administrative practice of assassinations of perceived opponents of Russia, including on foreign territory, where there is no armed con ict - it looks at what sets this case apart, what is key for proceedings, and possible developments.

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Insight into the European Commission’s new Trade Policy Strategy, its rst major review of its trade policy in six years, seeking to address new internal and external challenges. e Strategy combines the actions taken by the EU in the last ve years and portrays them under the guiding principle of achieving an open strategic autonomy, in the context of the pandemic recovery, and hopes of renewed multilateralism.

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Library - Book Review Anastasia Iliopoulou-Penot (Ed.)

By Catherine Warin READ ON EU LAW LIVE

Directive 2004/38 relative au droit de séjour des citoyens de l’Union européenne et des membres de leur famille. Commentaire article par article Review of a book that provides ‘a detailed commentary of the [Citizens] Directive’ which eshes ‘out the logics underpinning the provisions of the Directive and guiding the case law built on this instrument’, but which by its structure also ‘sheds light on important provisions which might otherwise be overlooked’.