Lawyering Europe: European Law as a Transnational Social Field 9781472566454, 9781849463782

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Introduction. Euro-lawyering, Transnational Social Fields and European Polity-Building ANTOINE VAUCHEZ

I. INTRODUCTION

T

HE EU POLITY has long been referred to as a ‘Community of Law’ including by its actual craftsmen themselves.1 Over the past decades, their idea has found strong support in the academic literature that has largely pointed to the critical role played by the European Court of Justice (ECJ) in market and political integration.2 Political scientists have extensively mapped its decisive influence in pushing the scope of European integration way beyond what Member States had been prepared to accept (Europeanisation), while legal scholars have shown in great detail how the ECJ contributed to gradually transforming the EU treaties into a de facto ‘constitutional charter’ of Europe (Constitutionalisation). Strangely enough, however, such vibrant streams of research that range from ‘law in context’ approaches to sophisticated neo-institutionalist accounts of Europe’s ‘integration-through-law’3 have left the lawyers’ specific agency and agenda essentially unexplored.4 While scholarly writing has extensively dealt with the role of 1   The contributions put together in this volume originate in a conference sponsored by the Robert Schuman Centre for Advanced Studies and the Academy of European Law. The conference was convened by Bruno De Witte and Antoine Vauchez and took place on 25 and 26 September 2008 at the European University Institute. The co-editors would like to thank in particular Dia Anagnostou, Stefano Bartolini, Marise Cremona, Sara Dezalay, Hans Micklitz, Glenn Morgan and Heike Schweitzer who took an active part in our discussions. 2   For a review of this literature, see: L Conant, ‘Review Article. The Politics of European Legal Integration’ (2007) 45 Journal of Common Market Studies 1, 45–66; and A Stone, The European Court of Justice and the Judicialization of EU Governance, http://europeangovernance.livingreviews.org/. 3   See in particular A Stone, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004) and R Cichowski, The European Court and Civil Society. Litigation and Governance (Cambridge, Cambridge University Press, 2007). 4  There are exceptions: H Schepel and R Wesserling, ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 2, 165–88; see S Kenney, ‘The Members of the Court of the European Communities’ (1998–99) 5 Columbia Journal of European Law 1, 101–33; and the volumes or symposia edited by members of the Polilexes research group: A Cohen and A Vauchez (eds), ‘Law, Lawyers, Transnational Politics and the Production of Europe’ (2007) 32 Law and Social Inquiry 1, 75–82; P Mbongo and A Vauchez (eds), Dans la fabrique du droit européen. Scènes, acteurs et publics de la Cour de justice des Communautés européennes (Brussels, Bruylant, 2009); J Christoffersen and M Madsen (eds), The European Court of Human Rights between

2  Antoine Vauchez law in European integration processes, it has most often remained oblivious to that of legal practitioners, the world they live in, their particular know-how, skills and set of core principles and beliefs. Lawyering Europe suggests another standpoint. It brings together a variety of contributions that draw from different disciplinary backgrounds (law, political science, sociology) and rest on the view that Euro-lawyers and Euro-lawyering should be taken seriously and inquired into more thoroughly in concrete and situated historical processes. Rather than leaving legal arenas and their repeat players and observing them from afar when it comes to studying European law, the authors who contribute to the present volume actually step into them and look from close-up at the variety of actors and groups –whether national or transnational – that contribute to its fabric, whether it be EU- or European Convention on Human Rights (ECHR)-related. Just as there is no art without the ‘networks of cooperation’ that make up the ‘art world’,5 we hypothesise that the production of European law can hardly be understood without references to the specific social ‘world’ of legal professionals that has historically emerged and solidified, from judges to private practitioners, law professors to the states’ advisers, etc. From the perspective of political science, this impliedly presents a more complete view of the European legal reality, one that reaches beyond the European courts that usually draw most of the scholarly attention. From the perspective of European legal studies, this requires broadening the traditional horizon by questioning not so much the actual/authentic content of European law but rather the processes through which it is formed and transformed, that is by describing the roles, techniques and mindsets of the great variety of actors who stand behind legal norms and decisions. Methodologically speaking, this academic endeavour requires ‘following the legal actors’ themselves as they engage in their legal and extra-legal undertakings and as they connect with other EU-implicated undertakings outside the legal realm. By inserting concrete and purposeful individuals into what has often remained rather disembodied narratives of institutions and groups pursuing abstract goals (prestige, predefined interests, etc), Lawyering Europe is able to suggest new narratives for European legal and political integration. Such understanding of ‘law’ as a deeper social and political phenomenon6 provides new insights and research hypotheses as to how law and polity-building have been connected throughout the history of European integration. Most chapters draw, albeit in a variety of ways, on two critical concepts: ‘transnational legal entrepreneurship’ and ‘European legal field’. This introductory chapter discusses their scope and added value. The first section questions the Law and Politics (Oxford, Oxford University Press, 2011); S Hennette-Vauchez and JM Sorel (eds), Les droits de l’homme ont-ils constitutionnalisé le monde? (Brussels, Bruylant, 2011). 5   H Becker, The Art Worlds (Berkeley, University of California Press, 1982). 6   See in the same vein, C Joerges, ‘Taking Law Seriously: On Political Science and the Role of Law in the Process of European Integration’ (1996) 2 European Law Journal 2, 105–35 ; G de Búrca, ‘Rethinking Law in Neofunctionalist Theory’ (2005) 12 Journal of European Public Policy 2, 310–36; and J Shaw, ‘The European Union: Discipline Building Meets Polity Building’ in P Cane and M Tushnet (eds), Oxford Handbook of Legal Studies (Oxford, Oxford University Press, 2003) 325–52.

Introduction  3 notion of ‘legal entrepreneurship’, hereafter defined as the innovative investment of one or more lawyers in the intellectual contests over the definition of the nature and future of European legal order.7 I argue that it provides a more refined understanding of the politics of legal change. The following section discusses the notion of the ‘European legal field’, defined as the relatively autonomous and institutionalised social universe structured around a competitive struggle over the nature and future of European law. Such a notion helps to broaden the scope of what is generally studied in the discipline of European law and helps connect it to the bigger picture of European (economic, political and bureaucratic) integration processes. All in all, this edited volume renews our perspectives on how law and polity-building are interconnected, shaping and informing one another. It calls for new interdisciplinary encounters between a more reflexive European law scholarship on the one hand, and social sciences more sensitive to the ‘world’ lawyers live in on the other hand.8

II.  THE VIEW FROM WITHIN. TRANSNATIONAL LEGAL ENTREPRENEURS AND THEIR EUROPEAN BIDS

This section, as indicated in section I, seeks to explore the specifics of legal and judicial entrepreneurship and questions its added value in producing a new understanding of legal change in Europe. Incorporating such living, acting and purposeful people into the study of European law is not just a matter of knowing more about its general ‘context’ or presenting a more colourful picture of the European courts. I argue hereafter that it provides a refined explanation as to how specific legal ideas and projects actually make it to the core of judicial, political, economic or bureaucratic agendas.

A.  Legal Practices as Social and Professional Skills There is a traditional reluctance to consider lawyers, in particular judges, as ‘entrepreneurs’. Since courts are supposed to be purely reactive institutions driven by legal principles, and legal interpretation is supposed to be essentially about unveiling the ‘authentic’ content of the law, the innovative part of lawyering activities as well as its ‘disequilibrating force’ (Schumpeter) are often underestimated, if not entirely omitted. This may not be entirely surprising in a professional milieu – that of law – best defined as a ‘static market’9 in which the most successful legal entrepreneurs are often the ones who manage to prove that their interpretative take is the least innovative and the most faithful to the ‘legal tradition’. It is well known that 7   W McIntosh and C Kates, Judicial Entrepreneurship. The Role of Judges in the Marketplace of Ideas (Westport, Greeewood Press, 1997). 8   On this last point, see Bruno De Witte’s chapter in this volume. 9   McIntosh and Kates, Judicial Entrepreneurship (n 7).

4  Antoine Vauchez judges value references to the past and tend to frame their decisions within the boundaries of precedents (whether one calls this stare decisis or jurisprudence constante, depending on one’s specific national legal culture).10 Yet, jurists can be entrepreneurs too, a very specific blend of entrepreneurs, admittedly – one profoundly different from the political or business ones, but still entrepreneurs. To be sure, legal entrepreneurs very rarely publicise their undertaking, nor would they march or rally to promote them! They are bound by many shared yet oft unspoken norms as to how one ought to promote new ideas and projects. As a matter of fact, legal entrepreneurship takes on idiosyncratic forms and paths that are deemed more appropriate for knowledge-based professionals. They ‘campaign’ and peddle new legal ideas through more discrete channels, most often exclusively within the realm of the legal community: opinion-writing,11 legal scholarship,12 speeches in academic or bar conferences,13 commemorations14 constitute essential bricks of a specifically legal repertoire of action. Research in legal entrepreneurship therefore impliedly shifts the focus from law to lawyers’ practices. The immediate gain is the overcoming of the traditional opposition between activism versus restranist problématique15 which ultimately always implies a normative standpoint from which it presumably becomes possible to draw a line separating ‘judge-like’ and ‘unjudge-like’, ‘legal’ and ‘illegal’ practices. Rather, such an approach that is taken here starts from the premise of law’s relative indeterminacy and considers in a somewhat agnostic manner what judges and lawyers actually do and how they do it. Thus the focus and goals are broadened, from explaining European case-law to accounting for the great variety of legal and extra-legal actors that contribute to its fabric way beyond the judicial realm. Legal consultants or agents for national governments and EU institutions, expert-­academics involved in political or legal undertakings, business lawyers working for corporate interests, cause lawyers, etc are all part of this story as they get involved in designing the institutional rationales and policy techniques in the realm of the single market, human rights, anti-trust regulation, constitutionmaking, etc. In those activities, lawyers often go beyond legal expertise and technicalities. For example, the role of governments’ legal agents who plead before the 10   See R Uitz, Constitutions, Courts and History. Historical Narratives in Constitutional Adjudication (Budapest, CEU Press, 2005). 11   cf N Burrows and R Greaves, The Advocate General and EC Law (Oxford, Oxford University Press, 2007); L Clement-Wilz, La fonction de l’avocat général près la Cour de justice des Communautés européennes (Brussels, Bruylant, 2011). 12   See, eg, J Bailleux, ‘How Europe Became Law. The First International Academic Congress on the ECSC (Milan-Stresa 1957)’ (2010) 60 Revue française de science politique 2, 67–90. 13   L Scheeck, ‘The Diplomacy of European Judicial Networks in Times of Constitutional Crisis’ in F Snyder and I Maher (eds), The Evolution of the European Courts : Change and Continuity (Brussels, Bruylant, 2009). 14   A Vauchez, ‘Keeping the Dream Alive. The Transnational Fabric of Integrationist Jurisprudence’ (2012) 5 European Political Science Review 1, 51–71. 15   See the classic debate between H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Judicial Policymaking (Boston, Martinus Nijhoff, 1986); J Weiler, ‘The Court on Trial’ (1987) 24 Common Market Law Review 555–89; and M Cappelletti, ‘Is the European Court of Justice Running Wild’ (1987) 12 European Law Review 1, 4–17.

Introduction  5 ECJ or the European Court of Human Rights (ECtHR) involves more than a mere legal formalisation of pre-existing state interests. As pointed out by Marie-Pierre Granger in this volume, their activity requires a continuous and oft-unseen mediating act between the various national political and administrative interests involved in European case law with a view to building their country’s legal position in Strasbourg or Luxembourg. Likewise, EU lawyers acting in the domain of commercial consultancy do not exclusively perform the technical task of checking or securing the legality of given deals. As Lahusen indicates in this volume: they also assist their clients in public or government relations by monitoring policy debates and legislative procedures, advising clients in the interpretation of this information, helping them to refine their interests, allies and opponents, supporting them in designing and implementing lobbying campaigns, drafting statements and documents, and assisting them in building coalitions

As a result, even though lawyers may in most instances appear as backstage actors working in the name of their principals (Member States, EU institutions, firms, interest groups, etc), it would be highly misleading to consider them as mere ‘transmission belts’. This would be a short-sighted conclusion, one that misses their deeper role as ‘brokers’ decisively acting between groups, institutions and sectors.16 Furthermore, there is no doubt that in performing these main legal and extralegal tasks, lawyers need to deploy a variety of social assets and professional skills. Chief among them are of course legal skills and, in particular, the practical mastery of law’s technicalities. After decades of legal integration, there is no doubt that engaging in European law is not cost-free. Not all lawyers are equals in front of European law, and even less so before the ECJ and the ECtHR where the most successful litigants not only master the voluminous amounts of previous case law but are also well acquainted with the court’s specific judicial style and customs. As Jean-Paul Jacqué puts it in his contribution to this volume, practising European law ‘is not just a matter of using a specific legal vocabulary learned at university, it takes its substance from its practice and those who have taken their distances from the law for too long cannot possibly claim to master its intricacies’. Legal virtuosity, that is to say the ability to produce innovative legal arrangements, certainly requires more than formal knowledge of the law. Such ability depends first of all on a profound mastering of a limited set of previously established legal sentences, tools and arguments that form the commonly accepted bricks of EU law reasoning.17 Walter van Gerven does not say otherwise when he looks back at how he ‘convinced the Court to overrule its earlier judgment’ (the Comitology decision): 16   For macro-sociological consideration of the role of law and lawyers as brokers, see Y Dezalay and B Garth, ‘Politics and Legal Markets’ (2010) Comparative Sociology 9, 953–81. 17   On the ECJ ‘judicial style’, see L Azoulai, ‘La Fabrication de la Jurisprudence Communautaire’ in P Mbongo and A Vauchez (eds), Dans la Fabrique du Droit Européen (Brussels, Bruylant, 2009); J Bengoetxea, The Legal Reasoning of the European Court of Justice (Oxford, Clarendon Press, 1993).

6  Antoine Vauchez the A. G. (as I then was) used another line of reasoning, namely that the distribution of competences between the institutions is not only a matter of institutional balance but that it has also a protection of legal rights dimension (. . .) The Court followed that reasoning. The distinction may seem to be a thin one but it is not18.

Yet, even though legal virtuosity matters, lawyers should not be taken as purely legal animals and their extra-legal skills are equally critical in successfully promoting specific legal agendas. When it comes to convincing his or her peers, many of a judge’s valued skills are not based on legal knowledge. In his contribution to this volume, Jean-Paul Jacqué details the savoir-faire that constitutes the necessary yet oft-unspoken assets of an influential institutional designer: ‘a good lawyer – he indicates – needs to know when to keep quiet as well as when to speak up when there is a genuine legal concern’. Thereby, he points at something very close to what Pierre Bourdieu used to coin as the ‘practical sense’ of the game, namely a sort of pre-reflexive – yet socially acquired – ability to do things the way they are expected to be done (including self-restraint, mediating abilities, swiftness in designing alternative proposals or wording, etc . . .), anticipating possible reactions from peers.19 When it comes to manufacturing consent, closing deals or weighing on the bargaining process, many of lawyers’ valued skills are precisely not based on technical legal knowledge. Rather, they involve an important element of craftsmanship and a number of extra-legal skills (organisational knowhow, ability to conduct personal relations, ‘inside’ knowledge of EU institutions, etc) that are equally necessary for them to push their legal agenda in the various institutional contexts in which they operate, whether it is in a bureaucracy, in a political setting, or in a business environment.20

B.  Legal Entrepreneurs, Transnational Networks and Social Capital While the mastering of specific crafts and know-how play a critical role in legal entrepreneurship, it would be foolish not to consider the role of social capital and networks.21 Legal actors are not isolated and self-referential players: like any other social actors, they are embedded in a dense web of relations and bonds both within and across the legal realm. As such, these professional connections and networks are certainly unable to ‘explain’ or ‘predict’ specific legal outcomes. Such determinism would overlook the structuring capacity of institutional roles. 18   W Van Gerven, ‘Politics, Ethics & the Law, Legal Practice & Scholarship’, LSE working papers, Department of Law (London, London School of Economics and Political Science, 2008) 8. 19   P Bourdieu, The Practical Reason. On the Theory of Action (Stanford, Stanford University Press, 1998). 20   In an interesting inquiry based on interviews with ECJ Advocate Generals, Iyola Solanke has recently documented the sort of such shared albeit unspoken norms of what constitute a worthy legal argumentation: I Solanke, ‘Diversity and Independence in the European Court of Justice’ (2008) 15 Columbia Journal of European Law 1, 89–121. 21   W Kaiser, B Leucht and M Gehler (eds), Transnational Networks in Regional Integration. Governing Europe (1945–1983) (London, Palgrave Macmillan, 2010).

Introduction  7 Suffice it to mention here the fact that active apologists of EU law supremacy in the early 1960s such as ECJ Advocate General Maurice Lagrange or the Commission’s legal service director Michel Gaudet were simultaneously deeply embedded in the network of the French Conseil d’Etat, a court famously sceptical about European legal integration. Rather, networks and social capital allow an understanding of how innovation is turned into lasting and socially accepted institutional change. While connections and social capital do not ‘create’ ideas – even though they may act as filters and channels for their circulation – they are integral to their institutionalisation. As a matter of fact, the ‘disequilibrating force’ of legal entrepreneurship also relates to the capacity to strategically mobilise one’s personal background, past experiences and social capital in the various professional and intellectual contests in which one is engaged. Such a perspective provides a renewed explanation for how specific interpretations of European treaties sometimes make their way to the ECJ or to the ECtHR and how they eventually manage (or not) to solidify into these courts’ jurisprudence. Many of the early landmark cases at the ECJ have been launched by pan-European lawyers often members of the Fédération international pour le droit européen (FIDE) or closely connected to the community of EC law scholars: LFD Ter Kuile in Van Gend en Loos (1963), Elaine Vogel-Polski in the various Defrenne cases (respectively 1971, 1976 and 1978), Gert Meier in Cassis de Dijon (1979): each one of them had been decisively proactive in their abundant academic writings, op-eds, memos and conferences, peddling their new conceptions of EC law in the various national and transnational ‘marketplaces of legal ideas’. The bold ‘legal revolutions’ they were conveying gradually gained social credit thanks to the range of support they found in (national and European) bureaucratic, academic, judicial and political fora.22 All in all, the successful transformation of their new ‘legal products’ from mere trial balloons and floating ideas into consolidated jurisprudence is the product of an uninterrupted flow of ECJ decisions, academic studies and pan-European mobilisations in which these legal entrepreneurs take a central part.23 Likewise, the ‘juridification’ of the ECHR is in large part due to the entrepreneurial role of a first generation of civil servants and legal advisers that populated the ECHR institutional site (members of the Court, of the Court’s registry, of the Council of Europe’s Human Rights Directorate, etc). The academic and political connectedness of this transnational group of ‘insiders’ was integral to their progressive monopolising of the transnational legal discourse on the European Convention. Through academic conferences, public lectures, doctrinal articles, Festschriften, legal instruments, they established the legal scope and value of a 22   A Cohen in this volume; and A Cohen and A Vauchez, ‘The Social Construction of Law: The European Court of Justice and Its Legal Revolution Revisited’ (2011) 7 Annual Review and Law and Social Sciences 417–32. 23   See also K Alter, ‘Jurist Advocacy Movements in Europe’ in The European Court’s Political Power. Selected Essays (Oxford, Oxford, University Press, 2009); M Rasmussen, ‘The Origins of a Legal Revolution. The Early History of the European Court of Justice’ (2008) 14 Journal of European Integration History 2, 77–99.

8  Antoine Vauchez Convention that was initially thought of as an essentially political instrument.24 On the other side of the temporal spectrum, Laurent Godmer and Guillaume Marrel consider Europe’s constitutional agenda and its continuing saliency for the whole mid-1990s/mid-2000s decade. They point to the role of ‘constitutional entre­preneurs’ at the European Parliament with strong legal, political and academic credentials and connections who specialised in promoting this constitutional project, relentlessly suggesting new solutions, loopholes and techniques to bring it back to the forefront of EU politics.25 The importance of these transnational social networks is such that European institutions have actually engaged in manufacturing and cultivating them through a variety of policy instruments. With (national) heterogeneity being perceived as a permanent threat to European law’s cohesiveness, the ECJ, the European Commission and the Council of Europe have developed a form of ‘strategic functionalism’,26 relentlessly promoting legal networking across national and professional bodies – such networks being understood as essential devices for triggering a (much-hoped for) process of legal spill-over. Take for example the widely acclaimed ‘judicial dialogue’ that has unfolded over the past decade in Europe across national courts through a variety of meetings and tools (from procedural frameworks for collaboration to translation of judicial material and case law databases) that help connect and monitor national judicial practices vis-à-vis EU law.27 In the same vein, one could mention the recent emergence of a rather informal dialogue between governments’ legal agents engaging in ‘experience-sharing, peer-learning and increased cooperation’.28 In both cases, the expected outcomes are mutual understanding ‘under the mellowing influence of wine and good cheer’,29 cross-fertilisation, mutual trust, loyalty, development of benchmarking or best practices, and last but not least, social capital. And the European courts are no exception to this proactive manufacturing of transnational networks. The many eulogies, jubilees and Festschriften that are organised or edited under their aegis exemplify how a group of centrally placed and transnationally recognised judges try to protect, defend, develop and revive the existence of a ‘community of believers’ structured around ECJ core legal principles and norms.30 On the whole then, Lawyering Europe depicts a Europe populated by legal actors with many connections within and across the European legal arenas who 24   See S Hennette-Vauchez’s contribution in this volume. And J Christoffersen and M Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press, 2011). 25   See L Godmer and G Marrel’s contribution in this volume. 26   N Jabko, Playing the Market. A Political Strategy for Uniting Europe (1985–2005) (Ithaca, Cornell University Press, 2006). 27   See Monica Claes and Maartje de Visser’s contribution to this volume. 28   In her contribution to this volume Marie-Pierre Granger indicates that, ever since 2002, governments’ legal agents have met once a year usually for two days in the capital of the countries holding the Presidency for intensive ‘closed’ workshops. 29   Brown and Kennedy, quoted in Monica Claes and Maartje de Visser. 30   A Vauchez, ‘Keeping the Dream Alive. The Transnational Fabric of Integrationist Jurisprudence’ (2012) 5 European Political Science Review 1, 51–71; in the case of the European Court of Human Rights, see Stephanie Hennette-Vauchez’s contribution in this volume.

Introduction  9 therefore become essential drivers of legal and political changes by bridging gaps in communication between persons, groups, institutions, sub-fields, sectors and even legal cultures. These transnational legal networks -such as for instance learned societies like the Fédération internationale pour le droit européen, journals like the Revue des droits de l’homme, research institutes such as the Academy of European Law in Treves, etc – can be essential sites of coordination across national and professional borders, for they have provided along the years incentives and ideas for test-cases and a sense of a common ‘mission’.31 By cutting across national, professional and institutional divides (national/international, law/politics, etc), they extend beyond the centres of judicial, political or bureaucratic command (‘the Court’, ‘the Parliament’, ‘the Commission’, etc) officially entitled to interpret or produce the law of the European treaties, and they allow fewer institutionalised microcosms to enter where common understanding of European law’s priorities and issues are produced. In turn, the understanding of Europe’s key legal institutions is transformed: the image of the European Court of Justice (or of the European Court of Human Rights) as a self-sufficient and strategic actor delivering judicial fiats is being substituted by that of an institution deeply embedded in a number of social and professional networks that help define what the European courts’ case law is and should be. On the whole, this allows for a reassessment of the well-established narrative of ‘the constitutionalisation of Europe’ as a self-reinforcing and ever-increasing process during which self-interested actors (firms, interest groups, EU institutions, etc) strategically seized the ECJ. Instead, the contributions of this book indicate a process shaped, both historically and in its contemporary design, by the result of the oft-competing dynamics of action of a whole series of entrepreneurs, networks, strategies, and mobilisations continuously playing on both sides of the border between law and politics.

III.  FROM CONTEXT TO CONTESTS.  THE EUROPEAN LEGAL FIELD AND EUROPEAN POLITY-BUILDING

The study of social capital and networks is not sufficient however to reveal how European law connects to the larger dynamics of the European integration processes. For this, one needs a complete picture of the overall ‘field’ of European law, its internal complexity and fragmentation as well as its many bonds with the neighbouring fields. Famously drawn from Pierre Bourdieu’s sociology, the notion of field is well-suited to capture a constellation of oft-distant-yet-interdependent legal actors and institutions competing for the authoritative manipulation and interpretation of European law. As a prelude, it should be said that the usage of field-theory in the realm of European studies is rather recent. It was not until the early 2000s that

31   See Alter (2009) and Vauchez,‘The Transnational Politics of Judicialization. Van Gend en Loos and the Formation of EU Polity’ (2010) 16 European Law Journal 1–28.

10  Antoine Vauchez some scholars introduced it.32 The notion has now become quite ubiquitous and . . . polysemic.33 As shown the contributions to this book, usages range from an essentially metaphorical and spatial notion – that of ‘legal landscape’ akin to the notion of ‘context’ in history – to a more orthodox Bourdieuan conception that carries along a whole set of related notions such as capital, habitus, etc. It is certainly not the purpose of this introductory chapter (nor of the volume as a whole) to try to discipline these usages and indicate whether European law does or does not constitute a fully-fledged/authentic ‘field’ in the precise meaning that was originally given by Pierre Bourdieu in the highly specific case of the French field of power. Fieldtheory’s heuristic value lies first and foremost in its capacity to generate new hypotheses and research paths. Let us consider three of them.

A.  Mapping Out the Field of Euro-lawyering The first empirical added value of field-theory lies in the topographical perspective that incites researchers to consider constellations of seemingly disparate yet interdependent sets of actors, groups and institutions. As a matter of fact, European law has developed over time into a multiple set of specialised branches, to the point that its current structure is more accurately described as a complex mosaic of fragmented areas of legal practice that are largely autonomous from one another. The community-like atmosphere of the early days of European legal integration, when European law insiders constituted a stable and steady group and shared the common purpose of promoting the uniqueness of EC law (from Van Gend en Loos onwards), has progressively been undermined by the global expansion of EU-related legal functions and the successive waves of enlargement. The interpersonal trust that was once in-built in the daily interactions and informal coordination mechanisms that took place in transnational legal arenas such as the FIDE of the 1960s has no equivalent today. Over the years, Euro-lawyers have polarised around sub-fields of European law with specific bodies of rules and practical knowledge, ranging from competition to sex discrimination and from intellectual property rights to internal market rules. Such dynamics of differentiation can easily be seen in the changes that took place in the Brussels’ transnational legal scene over the past decades. As early as in 1974, Eric Stein – one of the very American legal scholars interested in the developments of European law – described Brussels as unique 32  N Kaupii, Democracy, Social Resources and Political Power in the European Union (Manchester, Manchester University Press, 2005); N Fligstein and A Stone, ‘Constructing Polities and Markets: An Institutionalist Account of European Integration’ (2002) 107 American Journal of Sociology 5, 1206–43. 33   See, however, the papers by A Cohen, D Georgakakis and M Madsen in a symposium directed by Didier Bigo and Mikael Madsen (eds), ‘Bourdieu and the International’ (2011) 5 International Political Sociology 3; the edited volume by M Mangenot and J Rowell (eds), A Political Sociology of the European Union. Constructivism Reassessed (Manchester, Manchester University Press, 2011); and recently D Georgakakis (ed), Le champ de l’Eurocratie. Une sociologie politique du personnel de l’Union européen (Paris, Economica, 2012).

Introduction  11 in having developed an explosively productive ‘critical mass’ of legal talent. Neither New York nor Geneva, the principal seats of UN administration, have managed to provide a comparable atmosphere of sustained and organized interaction among the legal staff of the UN bodies, the local bar and law faculties. But in Brussels, the early leading figures of the European Communities – Hallstein, Rey, Von der Groeben, Gaudet, Verloren van Themaat – personally set a pattern of extensive scholarly writing, lecturing and teaching, and they frequently sought outside advice from legal scholars and practitioners.34

These first légistes of the European institutions found support for their institutional activities in the network of European lawyers that was particularly well-rooted at the time at the Institut d’études européennes of the Université libre de Bruxelles, thereby forming a rather small circle of EC-specialised lawyers. It was soon followed, in the wake of the Single European Act, by the development of an important pole of private legal practice essentially promoted by Anglo-American law firms. Today, there are no less than 197 offices of international law firms in Brussels, most of them branch offices of foreign-based companies, amounting to more than a thousand lawyers, most of them working in the area of competition and business law.35 More recently, another pole of legal practice has emerged that relates to advocacy in the area of human rights and non-discrimination policies.36 The establishment of wellfunded programmes such as the EU’s Initiative for the Promotion of Democracy and Human Rights (1994) has progressively transformed Brussels into the financial capital of European human rights activism.37 Similarly, the development of a body of EU gender equality law and case law has provided the basis for women activists’ non-governmental organisations (NGOs) to interfere in Brussels’ politics. In other words, the growth of EC and EU policies has generated a huge diversification of legal practices.38 As a result of these many political, economic and bureaucratic changes, Brussels has turned into one of Europe’s biggest legal fora where a large variety of legal actors converge and compete. This fragmented and competitive structure of European law should not lead us to neglect the common interests these various actors have in defining European law. Let us consider for example state legal agents from the Conseil d’Etat or the Avvocatura dello Stato pleading in Strasbourg or Luxembourg on behalf of their national governments, on the one hand, and competition lawyers trained in American LLMs and now working for Anglo-American law firms in Brussels, on the other hand. These two figures of European law practice certainly have little in common in terms of their training, career paths, amount of international   E Stein, ‘European Communities’ (1974) 22 American Journal of Comparative Law 3, 573–75, 573.   This multifaceted development of an EU-centered legal market is part of a larger market of EC-related expertise (consultancy firms, international media, region and city representation offices, universities’ specialised programs) for whom Brussels has become an essential venue. 36  Cichowski, The European Court and Civil Society (n 3). 37   See Mikael Madsen’s chapter in this volume. And also M Madsen, La genèse de l’Europe des droits de l’homme (Strasbourg, Presses de l’Université de Strasbourg, 2011). 38   See JM Decroly et al, ‘Local Geographies of Global Players: International Law Firms in Brussels’ (2005) 13 Journal of Contemporary European Studies 2, 173–86. And Daniel Kelemen’s chapter in this volume. 34 35

12  Antoine Vauchez experience and, last but not least, conceptions of European law (a tool for diplomacies versus a critical device for market operations). They embody radically antagonistic views of European lawyers, their functions in EU polity, the specific criteria of legal excellence, the most valued legal credentials, the most estimated skills, degrees and professions, etc. Yet, even though they may plead against each other before national and European courts, both the conseillers d’Etat and the business lawyers share a common assumption that an essential part of Europe’s future takes place in these judicial arenas and that all governments and market actors should act accordingly. While they contribute to building competing rationales and techniques for European integration, they are both engaged in elevating the general status of Euro-law in European affairs – be they private or public – turning it into one fundamental prerequisite for the access and ascent to private corporations or public bureaucracies. As such, they are best considered as ‘associated rivals’.

B.  The Emergence of the Euro-Lawyer Secondly, talking about a European legal field also suggests the existence of a specific transnational social structure in which European law is produced, interpreted, applied and modified: ‘Europe’ is not a land of legal opportunities equally open and accessible to all lawyers regardless of their training, professions and previous working experiences. As a consequence of decades of strong dynamics of specialisation, the production and interpretation of European law takes place in a complex set of established institutions and reputable groups, specialised breeding grounds and cursus honorum, shared understandings and conventional wisdoms, that define specific ‘European ways of law’.39 This institutionalisation of Euro-lawyering takes many forms, most of them documented in this volume. Among them, the emergence and solidification of specific criteria and templates against which Euro-lawyers’ worth and wealth are assessed. Some academic credentials, national professional affiliations or career paths are deemed more efficient in producing excellence in European law. The Collège de Bruges and the European University Institute, in particular, have become renowned breeding grounds for accessing the Commission’s legal service or legal clerkship positions at the European Court of Justice. Even in the case of government agents, usually considered to be ex officio more reluctant to Europeanisation, Marie-Pierre Granger identifies a progressive – although limited – streamlining of their profiles along EU-specific credentials (diplomas in Bruges, working experience at the Court or in the legal services of one of the EU institutions, participation in academic activities in the field of EU law, etc). Another form of institutionalisation of Euro-lawyering lies in the progressive codification of a specific EU law vernacular ranging from legal methodology, bibliothèques de phrases, judicial compendiums, 39   V Gessner and D Nelken (eds), European Ways of Law. Towards of European Sociology of Law (Oxford, Hart, 2007).

Introduction  13 acceptable arguments and shared beliefs, some of which are being gradually codified in guides for professional practice or doctrinal treatises. These formal instruments include routinised legal formulas, key words and bureaucratic forms that have consolidated over the decades and, as such, are certainly also decisive in channelling newcomers’ roles within a set of previously established legal alternatives and debates. Thereby, judicial deliberation in both European courts is not just about the open deliberation of independent judicial minds. It is embedded in a number of more or less codified (legal and non-legal) ‘standard operating procedures’ defined by internal services as diverse as the greffier office, translation services or the Cellule de lecteurs d’arrêts.40 This is not to say that judges have progressively lost their margins of manoeuvre but rather that these instruments that codify rules for typing, quoting, writing (through the definition of ‘best practices’, of the most valued legal formulas and judicial techniques, etc) contribute to framing and structuring the ways in which judges and lawyers argue and plead in the European courts. This research path that points to the limited set of cognitive and technical (legal and non-legal) tools with which European law is produced still remains to be explored.

C.  A Weak Field? A Framework to Analyse Law’s Broad Definitional Power Thirdly and finally, field-theory allows for a comparative assessment of the specific form of the European legal field vis-à-vis the more historically rooted and established national legal fields. In this regard, one should account for the fact that the transnational field of European law still remains deeply embedded in national fields of power.41 To be sure, no one would deny that European Union law has been successful in becoming a separate academic discipline and distinct object of professional practice. By many standards, EU law is arguably the most federal and integrated area of Europe.42 Most nationally-anchored professions, bureaucracies and courts have been subjected to the centralising pressure of the ECJ’s constitutional doctrine.43 Interestingly however, the progressive diffusion of this daring doctrine among Member States has not undermined national legal professions and their regulatory or gate-keeping capacities. The Euro-lawyers’ 40   The systematic codification of ECJ ‘judicial style’ undertaken by Pierre Pescatore during his stay at the Court (diffused internally in the early 1980s and only recently made public) gives an idea of the rich potential of such a research line: P Pescatore, Vademecum. Recueil de formules et de conseils pratiques à l’usage des rédacteurs d’arrêts, 3rd edn (Brussels, Bruylant, 2007). On the increasing role of the translation service, see K McAuliffe, ‘Languages and the Institutional Dynamics of the Court of Justice of the European Communities: A Changing Role for Lawyer-Linguists?’ in M Gueldry (ed), Languages Mean Business (Lampeter, The Edwin Mellen Press, 2010) 239–63. 41   A Cohen, ‘The European Court of Justice in the Emergent European Field of Power: Transnational Judicial Institutions and National Career Paths’ in Y Dezalay and B Garth (eds), Lawyers and the construction of transnational justice (New York, Routledge, 2012) 239–57 ; and A Vauchez, ‘The Force of a Weak Field. Law and Lawyers in the Government of Europe’ (2008) 5 International Political Sociology 2, 128–44. 42   On this, see JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999). 43   K Alter, Establishing the Supremacy of European Law (Oxford, Oxford University Press, 2009).

14  Antoine Vauchez ‘professional project’44 has remained in large part unachieved as there is no such thing as a common European legal education or European legal professions able to ‘control the production of (future) producers’ as sociologists of professions would say. In few other domains of market integration was there more resistance than in that of legal practice and legal professions, a domain historically bound to states’ and professions’ regulatory powers.45 It could even be argued that the European Union somehow reinforced national professional bodies as primary levels of regulation. The best example in this domain is the development of the ‘mutual recognition’ technique (as opposed to the more ambitious harmonisation approach) in the case of Higher Education Diplomas which had the effect of mutually interlocking the country-specific regulations of university certification and professional licensing procedures. It might be true that the Erasmus programme as well as the development of EU higher education institutions (such as the European University Institute or the College of Europe) have contributed to the harmonisation of educational and occupational requirements. Yet, as pointed out by Bruno de Witte in his contribution to this volume, this denationalising process has remained rather limited as the training of most lawyers continues to take place within the confines of national university systems, thus maintaining a ‘nationally-colored outlook on EU law’. Such an absence of supranationally integrated European legal education and professions where EU-implicated legal professionals – judges, litigants, MEPs, law clerks, etc – could be trained and selected is a defining specificity of the European legal field. As a consequence, educational and professional socialisation still occurs in large part outside the European legal field and the selection to key positions in European law, such as appointment to both European courts, still depends on the national political and bureaucratic balance of power. As such, they are still heavily dependent on resources, the value of which is defined outside of the European legal field: the diplomatic influence of the home country, the burden of the mother tongue; the prestige of one’s university, the reputation of the institutional group, and social capital of course, etc. Absent autonomous supranational professional/institutional poles, the European legal field can be coined as a weak field when compared to its national counterparts, in the sense that it has a weak centre, it is weakly differentiated internally and it has porous borders with neighbouring fields. This implies first of all that transnational legal arenas such as ‘academic congresses’, ‘learned societies’, ‘professions’ or ‘courts’ are certainly different from what they are in national settings. Lacking supranational forms of regulation, these arenas remain largely indeterminate as they allow for a variety of nationally anchored elites to converge under the aegis of building European law. As such,

44   M Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press, 1977). 45   V Olgiati, ‘The European Learned Professions and the EU Higher Education Project’ (2008) 10 European Societies 4, 545–65; N Fligstein, Euroclash. The EU, European Identity, and the Future of Europe (Oxford, Oxford University Press, 2008).

Introduction  15 these arenas function more as crossroads more than as endpoints.46 This volume and other papers published in the framework of the Polilexes Research Programme (www.polilexes.com) offer a large variety of examples, from the current Trier Academy of European Law as studied by Guillaume Sacriste47 to the old Fédération international pour le droit européen, from the Convention for the Charter on Fundamental Rights analysed here by Mikael Madsen to the Convention on the Future of Europe.48 Under the aegis of building a united market, promoting a European Constitution, establishing a Charter of Fundamental Rights or developing judicial cooperation, one can see the afflux of a variety of (former or current) legal professionals involved in market integration, parliamentarian politics, lobbying activities, academic undertakings, and invoking a different portfolio of educational, professional and political credentials (political legitimacy, state expertise, educational credentials, legal technique, business connections and relational capital, etc) to interpret and build European law. As such, these transnational arenas make space and opportunities for the pooling of this highly diverse portfolio of resources and building of common cognitive and normative frames. Porous and overlapping with bureaucratic, economic and political sectors, the field of European law therefore appears as an essential site for coordination and homogenisation of common frames of understanding and building EU polity. This perspective is therefore essential for grasping how a given portfolio of resources (from within and outside legal arenas) is pooled under the aegis of European law, thereby shedding new light on the differential trajectories of European policy frames. This, we hypothesise, is one critical research path when it comes to questioning the changing saliency and broad definitional power of legal paradigms in EU polity. Such constitutive capacity of the European legal field as a ‘weak field’ is not unconditional but depends on the changing capacity of European legal arenas to be a crossroads of European elites: its position at the crossroads is certainly not automatically conducive to harmonious pooling of resources. This is a matter of empirical research assessing the measure in which law, legal arenas and legal frames have kept their traditionally central position in EU polity.

D.  A General Decline? European Law in the Contest over Europe’s Integrative Master Frame The traditional role of legal training and savoir-faire as required skills and relevant ‘languages’ for Europe’s political, bureaucratic and economic elites is well46   M Madsen, ‘Transnational Fields. Elements of a Reflexive Sociology of the Internationalisation of Law’ (2006) 114 Retfaerd 3, 23–45. 47   G Sacriste, ‘L’Europe est-elle un Etat comme les autres? Retour sur la distinction public/privé au sein de la commission juridique du Parlement européen des années 1960’ (2012) 85–86 Cultures et conflits 63–88. 48   A Cohen, ‘Legal Professionals or Political Entrepreneurs? Constitution Making as a Process of Social Construction and Political Mobilization’ (2010) 4 International Political Sociology 2, 107–23.

16  Antoine Vauchez known.49 To put it in the words of Yves Dezalay, law has been ‘an arena for mediation between the different axes of power’. Even though Euro-lawyers are no ‘invisible college’ of European integration, they have come to form a central tenet of the EU polity. Often combining the public functions of politicians and statesmen with their activity as prominent members of the bar or as the partners of law firms, a select group of centrally placed lawyers has managed to deploy its activities across social boundaries in all kinds of EU-related institutions and groups. The foundational legal concepts and theories that they have built have proved critical in providing EU institutions and policies with autonomous rationales.50 However, this deep-seated centrality of EU law is currently being contested by other sciences of European government drawing from other functional logics such as economics, new public management, etc. Lawyers’ jurisdiction over European public affairs has become a highly contested terrain: law’s very ability to provide the EU with its overarching ‘integrative’ frame is now under fire. European decision-makers seem to prefer other integration mechanisms purported to be better adjusted to the new reality of European integration.51 Has the substitution really taken place? Or is it more accurate to consider this ‘EU-law-indecline’ thesis ‘as not indicative of a move away from law, but as part of a distinct and novel stage of legal integration itself’ as put forth by Mark Dawson in his analysis of the Open Method of Coordination? There are many empirical ways of assessing this ongoing contest over sciences of government in Europe. One of them is explored in great depth in this volume: it consists of measuring the evolving pay-off of legal expertise in the variety of institutional or professional arenas where its value and its usefulness are being discussed. Three chapters of this book engage in this type of research: conducted in different institutional settings (the European Commission, the European Parliament and the transnational business community), all three offer empirical evidence of a weakening of the political and social leverage of Euro-law expertise. Didier Georgakakis and Marine de Lassalle wonder where the ‘lawyers have gone’ in the Commission, recalling the fact that jurists have long held top positions in the European Commission – not only in the Directorates General (DGs) but also in the Collège des commissaires – and have been essential in building the foundations of this supranational administration along the lines of the Prussian model of administration in which legally-trained public officials form the natural elite. As pointed out through a careful statistical overview of EU top officials’ 49   S Mudge and A Vauchez, ‘Building Europe on a Weak Field. Law, Economics, Scholarly Avatars and the Construction of Transnational Politics’ (2012) 117 American Journal of Sociology 2, 449–492. 50   A Vauchez, Brokering Europe. Euro-lawyers and the Building of a Transnational Polity (Cambridge University Press, 2013, forthcoming). 51   Among the researchers who have investigated these emerging alternatives, see C Joerges, Integration through De-legalisation. An Irritated Hacker, European governance papers (Connex Network, no 07-03, 2007); I Bruno, ‘From Integration by Law to Europeanization by Numbers. The Making of a ‘Competitive Europe’ through Intergovernmental Benchmarking’ in M Mangenot and J Rowell (eds), A Political Sociology of the European Union. Reassessing constructivism (Manchester, Manchester University Press, 2010) 185–205; and D Georgakakis and M de Lassalle (eds), La nouvelle gouvernance européenne. Genèses et usages politiques d’un Livre blanc (Strasbourg, Presses de l’Université de Strasbourg, 2007).

Introduction  17 training, this long-lasting dominant position is increasingly contested by economists, even in DGs where jurists used to be prevalent (competition, external relations, regional policy). In a rather similar manner, Laurent Godmer and Guillaume Marrel show that the political pay-off of Euro-law capital has declined in the European Parliament. As the home of many legally trained political leaders, the COMINST (later transformed into the Committee for Constitutional Affairs – COMAFCO) has traditionally been the site where most of the European Parliament’s institutional engineering was produced. A careful analysis of leadership positions (quaestors, group chairpersons, committee chairpersons, etc) held in the European Parliament by COMINST members since 1984 shows a sharp decrease in the number of lawyers from 40 per cent at the beginning of the period to merely 7.5 per cent at the turn of the millennium. Last but not least, both Yves Dezalay and Daniel Kelemen speculate on the failure of Euro-lawyers to position themselves as a central group in the economic advancement of European integration when compared to the model of American business lawyers. It is true that the rapid growth of European legal services and the ‘merger mania’ of the 1990s did generate a European variant of the legal multinational much inspired by Wall Street law firms. Daniel Kelemen points to the fact that the (partial) transplantation of American-style ‘adversarial legalism’ to Europe is linked to the dramatic increase of US law firms’ presence in London, Brussels, Paris and elsewhere in Europe. Yet despite these many transplants and the general race to upsize, Dezalay argues that European law firms are not a functional equivalent to their US counterparts, for they never managed to secure a position in the ‘cosmopolitan entrepreneurial elite’ (eg the European Round Table) that emerged in the process of the economic re-launching of European integration in the early 1980s, nor did they succeed in setting a system of multiform exchanges (‘revolving doors’) with EU institutions as intense as the one that operates in Washington. As can be seen from this introductory chapter, the contributions to this volume span a wide spectrum of domains and periods of European integration. They allow zooming in on different groups and institutional contexts where the law of Europe is debated. They consider a variety of critical junctures, from the early days of European legal integration to the recent constitutional saga. While all the chapters are connected in a variety of ways, we thought it would be more accurate to divide the volume in four parts. The first one explores Europe’s legal repeat players with contributions on ECJ judges, the group of ECHR insiders and EU institutions’ legal services. The second part, entitled ‘Centres and peripheries’, considers the hybrid and complex structure of this European legal field embedded as it is in both national and transnational dynamics; the third part – ‘European elites and their legal credentials’ – explores institutions and professions outside the legal realm stricto sensu and traces the changing value of legal credentials among commercial consultants, MEPs and the Commission’s high-level civil servants. The last part, entitled ‘The disputed role of law in the government of Europe’, situates law and legal integrative frames in a wider competition for the definition of Europe’s tools of government.

1 ‘Ten Majestic Figures in Long Amaranth Robes’: The Formation of the Court of Justice of the European Communities ANTONIN COHEN*

At the back of the ultramodern Great Hall of this little, whitish ‘Gare de Lyon’, which, in Luxembourg City, houses the Cercle Municipal, a beige curtain rises. As if plucked out of a Rembrandt painting, here come ten majestic figures in long amaranth robes set off by velvet trim and a white collar. Adorning their heads are velvet caps, resembling Andorra’s national headdress and a baker’s hat at the same time. (Le Figaro, 1954) These robes, which I am proud to have worn, are the proof that Europe exists. (Jacques Rueff, 1964)

I. INTRODUCTION

T

HE CONSTITUTIONALISATION OF the European Communities by their Court of Justice1 is alternatively understood as the logical conclusion of a self-referenced legal reasoning or the inescapable consequence of a selffulfilling social process, in sum as the output of the spill-over feedback of an autopoietic system.2 Paradoxically, in this teleological narrative the ‘political regime’ of the European Union roughly occupies the place David Easton attributed

*  This chapter was originally published in the Revue française de science politique (vol 60, no 2, 2010: 227–46), translated from French by Jack Murphy and revised by the author for the English edition. I wish to thank the editor, Yves Déloye, as well as the Publisher, the Presses de Sciences Po, for their kind permission to reprint this chapter. 1   For convenience, I use ‘Court of Justice’ here to refer to the Court of Justice of the European Coal and Steel Community (1952), the Court of Justice of the European Communities (1958) and, henceforth, the Court of Justice of the European Union (2009). 2  On these two notions, see EB Hass, Beyond the Nation State/Functionalism and International Organization (Colchester, ECPR Press, 2008 (1964); G Teubner, Law as an Autopoeitic System (Oxford, Blackwell, 1993).

22  Antonin Cohen to it in his famous construction;3 a black box in which the Court of Justice is, more than any other institution, the last of the matryoshkas. This explicitly or implicitly functionalist interpretation of the constitutionalisation ‘process’ is paradoxically shared by legal scholars and political scientists, who in concert (even if playing from different scores) tend to take the Court of Justice for what it is at face value: a ‘court’, and the principal agents of this process for what their robes give them authority to be, ‘judges’. This evolutionary illusion is further reinforced by the case law of the Court itself, which does not appear to have undergone a single revirement of jurisprudence until the very beginning of the 1990s,4 thus perpetuating the belief in a continuous progression of Community law, in a ‘direction’ that has all the beauties of a sense of history in the making. Two series of reasons help fuel this history of law without history: on the one hand, the unrivalled work of the Court of Justice itself to obstruct outside scrutiny by protecting the secrecy of its deliberations and forbidding access to its own archives (the only one among all institutions of the European Union), and on the other, the historical narrative taking the 1957 turning point for granted, as well as the international division of labour among the different European organisations – that nonetheless simultaneously came into being in the post-war.5 In such a context, the process of institutionalisation of the Court of Justice itself, of which its jurisprudence is nonetheless the product, usually goes unexamined. Reconstructing the process by which the ‘court’ became the Court and the ‘judges’ judges (or, better yet, the Judge), through the analysis of both the career paths leading to the Court of Justice and its struggle with the formulation of ‘Community’ law, enables us to break away from those obvious facts, which are precisely responsible for bringing credit to Community law, and more generally to the entire political regime of the European Union. This in turn reminds us that jurisprudence is a social construction like any other. Understanding how a series of ‘coups de force’, to use Pierre Bourdieu’s term,6 conferred the ‘force of law’ to one legal discourse (among many others) – which is precisely one of the original issues in a process at the end of which no one claims to contest this discourse any more

3   See D Easton, A Systems Analysis of Political Life (New York, Wiley & Sons, 1965). On the debate surrounding the translation of the book into French, see B Lacroix, ‘Systémisme ou systé-­mystification?’ and P Favre, ‘Le systémisme: mythe et réalité’ (1975) 58 Cahiers internationaux de sociologie 98–122 and 123–44. 4   See A Arnull, The European Union and Its Court of Justice (Oxford, Oxford University Press, 2006) 629–30. See also R Mehdi, ‘Le revirement jurisprudentiel en droit communautaire’ in L’intégration européenne au 21e siècle. Mélanges en hommages à Jacques Bourrinet (Paris, La Documentation française, 2004) 113–36; N Molfessis (ed), Les revirements de jurisprudence. Rapport remis à Monsieur le Premier président Guy Canivet (Paris, Litec, 2005) esp 22–28 and 72–80; K Lucas-Alberni, Le revirement de jurisprudence de la Cour européenne des droits de l’homme (Brussels, Bruylant, 2008) esp 200–04. 5  See A Cohen, ‘Construction des espaces de pouvoir transnationaux en Europe’ in A Cohen, B Lacroix and P Riutort (eds), Nouveau manuel de science politique (Paris, La Découverte, 2009) 611–24. 6   P Bourdieu, ‘La force du droit. Éléments pour une sociologie du champ jurdique’ (1986) 64 Actes de la recherche en sciences sociales 3–19.

The Formation of the Court of Justice  23 (or at least nearly no one)7 – therefore implies going back to the genesis of an institution whose legitimacy does not so much result from the ‘legal’ and/or ‘rational’ character of its decisions, to use Max Weber’s categories, but from the belief in the ‘rational-legal’ nature of Community law shared by various groups. As a matter of fact, if the authority of law is not intrinsically rooted in the law itself but in the various investments in law made by different actors, juridical or not, this is particularly true when it comes to transnational spaces where law appears to lack the type of authority it traditionally enjoys within national spaces, deriving from the monopoly to enforce law secured by the state over the course of centuries.

II.  THE GENESIS AND STRUCTURE OF THE EUROPEAN TRANSNATIONAL LEGAL FIELD: A NEW RESEARCH AGENDA

Many scholars have scrutinised what is commonly termed the ‘constitutionalisation’ of the European political, legal and economic order.8 Rejecting the heroic vision of a small elite of judges revolutionising national legal orders from the secret of their chambers – a vision that the principal agents of this ‘process’ have had a heavy hand in propagating9 – most of this literature has on the contrary highlighted the role of the ‘interlocutors’ of the Court in the implementation of Community law10 – in what has become a battlefield between intergovernmentalists and neofunctionalists.11 Among these interlocutors, in particular, were

7   For a discussion and critique of the judicial activism of the Court of Justice, see H Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study in Juridical Policymaking (Dordrecht, Martinus Nijhoff Publishers, 1986). 8   See, in particular, A Stone Sweet, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004); KJ Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001); JHH Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999); M Poiares Maduro, We the Court: The European Court of Justice and European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998). For a definition of the process of constitutionalisation, see A Stone Sweet, ‘Integration and Constitutionalism in the European Union’ in A Cohen and A Vauchez (eds), La Constitution européenne. Élites, mobilisations, votes (Brussels, Presses de L’Université de Bruxelles, 2007) 7–14; A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) 152 and following. 9   See, eg, GF Mancini, Democracy and Constitutionalism in the European Union: Collected Essays (Oxford, Hart Publishing, 2000); R Lecourt, L’Europe des juges (Brussels, Bruylant, 1976); P Pescatore, Le droit de l’intégration. Émergence d’un phénomène nouveau dans les relations internationales selon l’éxpérience des Communautés européennes (Leiden, AW Sijthoff, 1972). 10   JHH Weiler, ‘A Quiet Revolution: the European Court of Justice and its Interlocutors’ (1994) 26 Comparative Political Studies 510–34; JHH Weiler, ‘Journey to an Unknown Destination: a Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration’ (1993) 31 Journal of Common Market Studies 417–46; AM Burley and W Mattli, ‘Europe before the Court: a Political Theory of Legal Integration’ (1993) 47 International Organization 41–76. 11   W Mattli and AM Slaughter, ‘Revisiting the European Court of Justice’ (1998) 52 International Organization 177–209.

24  Antonin Cohen national jurisdictions,12 private corporations13 and interest groups,14 but also citizens themselves,15 in the silent consent, distracted indifference, or manifest hostility from Member-States,16 or acting on the contrary in explicit collusion with the European Commission.17 All have simultaneously contributed to this process while attempting to satisfy their own specific interests;18 all were invisibly compelled by market logic and intra-Community trade,19 in a more general context of lack of interest from ordinary citizens, or permissive consensus.20 Of all the professional groups Eric Stein once identified as having contributed to the creation of a ‘transnational constitution’,21 however, among which (besides the Court personnel) were officials of the legal services of the Commission and Council, jurisconsults of the ministries of Foreign affairs, and many other experts of all sorts, including numerous academics – as well as the private practice lawyers and attorneys whom Stuart Scheingold characterised as the ‘middlemen’ of European integration22 – most remain to be studied as such.23 Indeed, while the 12  Weiler, ‘A Quiet Revolution’ (n 12) Alter, Establishing the Supremacy of European Law (n 8); Golub, ‘The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the European Court of Justice’ (1996) 19 West European Politics 360–85. 13   R Rawlings, ‘The Eurolaw Game: some Deductions from a Saga’ (1993) 20 Journal of Law and Society 309–40. 14   N Fligstein and A Stone Sweet, ‘Institutionalizing the Treaty of Rome’ in A Stone Sweet, W Sandholtz and N Fligstein (eds), The Institutionalization of Europe (Oxford, Oxford University Press, 2001) 29–55. 15  C Harding, ‘Who Goes to Court in Europe? An Analysis of Litigation against the European Community’ (1992) 17 European Law Review 105–25. 16   KJ Alter, ‘Who Are the “Masters of the Treaties”? European Governments and the European Court of Justice’ (1998) 52 International Organization 121–47; KJ Alter, ‘The European Court’s Political Power’ (1996) 19 West European Politics 458–87; G Garrett, ‘The Politics of Legal Integration in the European Union’ (1995) 49 International Organization 171–81. 17  KJ Alter and S Meunier-Aïtsahalia, ‘Judicial Politics in the European Community: European Integration and the Pathbreaking Cassis de Dijon Decision’ (1994) 26 Comparative Political Studies 535–61. 18   Burley and Mattli, ‘Europe before the Court’ (n 10). 19   A Stone Sweet and TL Brunell, ‘Constructing a Supranational Constitution: Dispute Resolution and Governance in the European Community’ (1998) 92 American Political Science Review 63–81; A Stone Sweet and JA Caporaso, ‘La Cour de justice et l’intégration européenne’ (1998) 48 Revue française de science politique 195–244. 20   JL Gibson and GA Caldeira, ‘The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice’ (1995) 39 American Journal of Political Science 459–89; J L Gibson, ‘Changes in the Legitimacy of the European Court of Justice: a post-Maastricht Analysis’ (1998) 28 British Journal of Political Science 63–91. And see D Dulong, ‘La science politique et l’analyse de la construction juridique de l’Europe: bilan et perspectives’ (2001) 49 Droit & Société 707–28; L Conant, ‘The Politics of Legal Integration’ (2007) 45 Journal of Common Market Studies 45–66; A Vauchez, ‘Democratic Empowerment through Euro-law?’ (2008) 7 European Political Science 444–52. 21   E Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1–27. 22   SA Scheingold, The Law in Political Integration: The Evolution and Integrative Implications of Regional Legal Processes in the European Community (Cambridge, Harvard University Center for International Affairs, 1971) 36. And see C Marchand and A Vauchez, ‘Lawyers as Europe’s Middlemen? A Sociology of Litigants Pleading to the European Court of Justice (1954-1978)’ in M Mangenot and J Rowell (eds), A Political Sociology of the European Union: Reassessing Constructivism (Manchester, Manchester University Press, 2010). 23   This is the focus of the collective research project undertaken by the POLILEXES research team (Politics of International Legal Expertise in European Societies) within the framework of the DEJUGE programme funded by the Agence nationale de la recherche. This chapter assembles the first findings

The Formation of the Court of Justice  25 necessity of carrying out research on all of these groups of legal professionals was pointed out very early on,24 little research has been done so far on their specific roles and characteristics, except for a few notable exceptions: the early work of Werner Feld,25 the pioneering book by Nicole Condorelli Braun,26 and, more recently, research by Sally Kenney27 and Michel Mangenot,28 on the members of the Court; and, more generally, publications by Karen Alter,29 Morten Rasmussen,30 Harm Schepel,31 Mikael Rask Madsen32 and Antoine Vauchez,33 on the role of this ‘transnational community’ of lawyers, as well as of the underlying social networks in the genesis and formation of European law. Most of the literature on the process of constitutionalisation remains silent, however, when it comes to the members of the Court themselves, and even more so with regard to the Court’s mid-level professionals: greffiers, référendaires and juristes-linguistes.34 Indeed, little attention has been paid to their professional careers before and after serving time at the Court, their training and specialisation, not to mention their social backgrounds, their political opinions or their ideological convictions – in sum, what political science terms ‘social recruitment’. Paradoxically, given that of ongoing research in this context. It has benefitted greatly from discussions and collaboration with Mikael Rask Madsen, Guillaume Sacriste and Antoine Vauchez. 24   M Shapiro and A Stone Sweet, ‘The New Constitutional Politics of Europe’ (1994) 26 Comparative Political Studies 397–420; Weiler, ‘Journey to an Unknown Destination’ (n 10). 25   W Feld, ‘The Judges of the Court of Justice of the European Communities’ (1963) 9 Villanova Law Review 37–58. 26   N Condorelli Braun, Commissaires et juges dans les Communautés européennes (Paris, LGDJ, 1972). 27   SJ Kenney, ‘The Judges of the Court of Justice of the European Communities’ in SJ Kenney; WM Reisinger and JC Reitz (eds), Constitutional Dialogues in Comparative Perspective (New York, St. Martin’s Press, 1999) 143–71; SJ Kenney, ‘The Members of the Court of Justice of the European Communities’ (1998-99) 5 The Columbia Journal of European Law 101–33. 28   M Mangenot, ‘Le Conseil d’État et l’institutionnalisation du système juridique communautaire’. Presented at the Conference Les juristes et la construction d’un ordre politique européen (CURAPP, Université de Picardie-Jules Verne, 1 April 2004). 29  See, in particular, KJ Alter, ‘Jurist Advocacy Movements in Europe: The Role of Euro-law Associations in European Integration (1953–1975)’ in The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009) 63–91. 30   M Rasmussen, ‘The Origins of a Legal Revolution: the Early History of the European Court of Justice’ (2008) 14 Journal of European Integration History 77–98. 31   See, in particular, H Schepel and R Wesseling, ‘The Legal Community: Judges, Lawyers, Officials, and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 165–88. 32   M Rask Madsen,‘“Make Law, not War”. Les “sociétés impériales” confrontées à l’institutionnalisation internationale des droits de l’homme’ (2004) 151–52 Actes de la recherche en sciences sociales 97–106; M Rask Madsen, ‘“La Cour qui venait du froid”. Les droits de l’homme dans la genèse de l’Europe d’aprèsguerre’ (2005) 26 Critique internationale 133–46. 33   A Vauchez, ‘Une élite d’intermédiaires. Naissance d’un capital juridique européen (1950-1970)’ (2007) 166-–67 Actes de la recherche en sciences sociales 54–65; A Vauchez, ‘Judge-made law: Aux origines du modèle politique communautaire (retour sur Van Gend & Loos et Costa c. Enel)’ in O Costa and P Magnette (eds), Une Europe des élites? Réflexions sur la fracture démocratique de l’Union européenne (Brussels, Éditions de l’Université de Bruxelles, 2007) 139–66. 34   Conversely, see SJ Kenney, ‘Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court’ (2000) 33 Comparative Political Studies 593–625; K McAuliffe, ‘Translation at the Court of Justice of the European Communities’ in F Olsen, RA Lorz and D Stein (eds), Translation Issues in Language and Law (London, Palgrave Macmillan, 2009) 99–115.

26  Antonin Cohen the Court of Justice is deemed to be at the centre of this process35 and that the nomination of supranational judges by national governments seems to be a key issue in the debate between intergovernmentalists and neofunctionalists,36 the potential impact of a long-term transformation of the Court’s social recruitment on its jurisprudence (and on its revirements) has paradoxically been completely neglected. Moreover, the constitutionalisation process is itself embedded in a more complex process – and ‘Community law’ is only part of a larger European rule of law, including principally human rights law – that could be described as the formation of a transnational legal field in Europe. In other words, the emergence of ‘European law’ cannot simply be reduced to the dynamic of the ‘European Community’ alone or to its judicial and jurisprudential dimension.37 On the contrary, the formation of a transnational legal field must be understood both as the result of the endogenous dynamic of each European legal space, around the Court of Justice of the European Communities and the European Court of Human Rights (ECtHR), and as the product of the interdependencies between the multiple spaces of power that institutionalised over the course of European integration, including the European Communities and the Council of Europe.38 In addition, these specifically ‘European’ legal spaces are themselves entangled in more ‘global’ transnational spaces of power.39 Indeed, these regional and global dynamics simultaneously contributed to the redefinition of the force of law at the international level.40 In other words, the interactions between the Court of Justice of the European Communities and the ECtHR41 matter as much as the interrelations between these jurisdictions and other international jurisdictions, including, for example, the International Court of Justice or the Permanent Court of Arbitration. The emergence of the European legal field is the product of this complex set of interdependencies among European and international legal networks evolving within the orbit of these courts. Finally, the force of law at the European level is deeply dependent on the concomitant formation of a European (or perhaps even transatlantic) field of power within which lawyers tend to occupy central positions and law is the dominant form of capital.42 Law and lawyers have in fact played a crucial role within the   Burley and Mattli (n 10).   Weiler (n 10).   A Cohen and A Vauchez, ‘Introduction: Law, Lawyers, and Transnational Politics in the Production of Europe’ (2007) 32 Law & Social Inquiry 75–82. 38   A Cohen and M Rask Madsen, ‘Cold War Law: Legal Entrepreneurs and the Emergence of the European Legal Field (1945–1965)’ in V Gessner and D Nelken (eds), European Ways of Law: Towards a European Sociology of Law (Oxford, Hart Publishing, 2007) 175–201. 39   Y Dezalay and B G Garth (eds), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (Ann Arbor, The University of Michigan Press, 2002). 40   S Sassen, A Sociology of Globalization (New York, Norton & Co, 2007). 41   On this topic, see L Scheeck, ‘Solving Europe’s Binary Human Rights Puzzle: the Interaction between Supranational Courts as a Parameter of European Governance’ (2005) Research in Question, www.ceri-sciences-po.org/publica/question/menu.htm. 42   A Cohen, Y Dezalay and D Marchetti, ‘Esprits d’État, entrepreneurs d’Europe’ (2007) 166–67 Actes de la recherche en sciences sociales 5–13. 35 36 37

The Formation of the Court of Justice  27 political, bureaucratic and economic spaces of power that formed alongside European integration – as the social recruitment of the European Commission43 and its administration,44 or, more recently, of the European Conventions illustrates.45 But they also played a pivotal role in the import and export of legal expertise from one space of power to another, from one organisation to another, or from one institution to another – from the Council of Europe to the European Union, from the judicial realm to the political realm, and so forth. The legitimacy of European law is thus derived from the great variety of roles that lawyers have successively and successfully managed to play in the interdependent (although relatively autonomous) social processes that have ‘made’ Europe. They have placed legal knowledge and know-how at the centre of international/European relations as decisive resources in state or economic battles and they have produced the dominant representations and expertise in the framework of which European politics and the European economy are today embedded: a market regulated by law, a European judicial space,46 a European civil code,47 a charter of fundamental rights48 and, lastly, a European Constitution.49 One of the first defining moments of this constitutionalisation process took place ab initio with the praetorian assertion of the ‘constitutional’ character of the treaties instituting the European Community and later Communities by the principal agents of this process (which was thus neither simply ‘logical’ nor ‘functional’) – that is, the judges and Advocates General of the Court of Justice. This assertion – rather revolutionary, indeed, since it amounted to making ‘Community’ law ‘internal’ to the Community, and not ‘international’, hereby reclassifying the norm that the ‘judge’ is vested to interpret (Section V) – did not arise by chance out of doctrinal options, but rather was rooted in the social recruitment of the Court of Justice, which, despite its extraordinary heterogeneity (Section III), presents the peculiarity of grouping together lawyers specialising in internal law (Section IV). 43   A MacMullen, ‘European Commissioners, 1952–1995: National Routes to a European Elite’ in N Nugent (ed), At the Heart of the Union: Studies of the European Commission (London, Macmillan, 1997). 44   M de Lassalle and D Georgakakis, ‘Genèse et structure d’un capital institutionnel européen: les très hauts fonctionnaires de la Commission européenne’ (2007) 166–67 Actes de la recherche en sciences sociales 38–53. 45   A Cohen, ‘Transnational Statecraft: Legal Entrepreneurs, the European Field of Power, and the Genesis of the European Constitution’ in H Petersen, AL Kjaer, H Krunke and M Rask Madsen (eds), Paradoxes of European Legal Integration (Aldershot, Ashgate, 2008) 111–27; M Rask Madsen, ‘‘ ‘For a Europe of Human Rights and the People”. The EU Charter of Fundamental Rights in the Post-Cold War Democratisation of Europe’ in A Cohen and A Vauchez (eds), La Constitution européenne. Élites, mobilisations, votes (Brussels, Éditions de l’Université de Bruxelles, 2007) 113–32. 46   A Mégie, ‘Généalogie du champ de la coopération judiciaire européenne’ (2006) 62 Cultures & Conflits 11–41. 47  H Schepel, ‘The European Brotherhood of Lawyers: the Reinvention of Legal Science in the Making of European Private Law’ (2007) 32 Law & Social Inquiry 138–99. 48   Madsen, ‘For a Europe of Human Rights and the People’ (n 45). 49   A Cohen and A Vauchez (eds), La Constitution européenne. Élites, mobilisations, votes (Brussels, Éditions de l’Université de Bruxelles, 2007).

28  Antonin Cohen

III.  THE SOCIAL RECRUITMENT OF A JURISDICTIONAL ELITE: CAREER PATHS TO THE COURT OF JUSTICE

It is worth recalling from the outset the formal logics of appointment to the Court of Justice. In accordance with the Treaties of Paris (Article 32) and Rome (Article 167), the Court of Justice was originally composed of seven judges appointed by ‘common agreement’ by the governments of the Member States for a renewable term of six years50 – with a budget amounting to 42.7 million francs during the first year.51 Contrary to all other supranational institutions created by the Treaties, no method of apportioning the nomination of judges among Member States was specified, and the creation of seven seats for six states could have been interpreted as evidence that the Court would depart from the system of national distribution then established for the High Authority. But, such was not the case. In practice, from the outset each state held one judge’s seat within the Court. The extra seat, initially created to ensure a majority in the case of a split vote but also to give representation to wage-earners in supranational institutions (at the Court of Justice as well as the High Authority), was used together with the two positions of the Advocates General to return to the logic of national distribution of the seats (nine in each institution).52 In 1952, there was one judge and Advocate General for France and Germany respectively, one judge for Luxembourg, Belgium, and Italy, and . . . two judges for the Netherlands. Whatever the reasons behind this surprising configuration, given the principle of equality among the three ‘big’ states, it was remedied by 1958, when the extra seat was allocated to Italy.53 The Treaties also stipulated that the Court would be partially replaced every three years (beginning in 1955) and that the president of the Court would be designated by his peers for a renewable term of three years. By derogation, the first presidents of the Court of Justice of the European Coal and Steel Community (1952) and European Communities (1958) were, however, named by the governments themselves (paragraph 5 of the Convention on transitional provisions appended to the Treaty of Paris and Article 244 of the Treaty of Rome). To be sure, as we shall see, nominations at this level of jurisdictional power always involve a relatively high degree of political support. As Nicole Condorelli Braun convincingly shows,   P Reuter and A Gros, Traité et documents diplomatiques (Paris, PUF, 1963) 201–04, 280–83.   The equivalent of €855,708 in 2008: DG Valentine, The Court of Justice of the European Coal and Steel Community (The Hague, Martinus Nijhoff, 1955) 248–49. 52   Although the text of the Treaty of Paris did not contain any provisions for the Advocates General, their function was defined by the Protocol on the Statute of the Court, annexed to the Treaty (Arts 11 to 13), later included in the Treaty of Rome. Their nomination thus meets the same conditions as those of the judges. 53   Over the course of enlargements, this principle of national distribution of the seats nonetheless became complicated to implement because the extra seat is only really needed when there is an even number of Member States, otherwise the extra judge becomes ‘removable’. See A Cohen, ‘Sous la robe du juge. Le recrutement social de la Cour’ in P Mbongo and A Vauchez (eds), La Fabrique du droit européen (Brussels, Bruylant, 2009) 11–30; S Kenney, ‘The Judges of the Court of Justice of the European Communities’ 151–53. 50 51

The Formation of the Court of Justice  29 however, nominations to the Court were themselves caught up, moreover, in a process of permanent negotiation concerning in particular the allocation of the four presidencies of the European Communities’ supranational institutions (the High Authority, the two Commissions, and the Court itself), and this at a particularly steady rhythm of one nomination per year from 1958 to 1967, the Member States’ governments having gradually synchronised what originally were different nominating rhythms in order to ‘facilitate the transactions’.54 This not only led to a (once again national55) distribution of presidential positions within the main institutions of the European Communities, but also to the governments’ indirect control over the Court: Judges Pilotti, Van Kleffens, and especially Serrarens (whose term had only just been renewed in 1955) were not reappointed in 1958 when the Court of Justice of the European Coal and Steel Community ‘expired’ to make room for the Court of Justice of the European Communities.56 Relatively vague about the nomination procedure, the Treaty of Paris did not even mention the necessity of any legal qualifications in order to be appointed to the Court. It simply stated that judges had to be chosen ‘from among persons of recognised independence and competence’ (Article 32). This provision was subsequently reformulated by Article 167 of the Treaty of Rome, which clearly indicated that the members of the Court (including this time the Advocates General) should be chosen ‘from among persons of indisputable independence who fulfil the conditions required for the holding of the highest judicial office in their respective countries or who are jurists of recognised competence’. The source of this wording is customarily found in Article 2 of the Statute of the International Court of Justice: The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

However, besides that we see here one of the fundamental differences between the ‘European’ Court of Justice and the ‘International’ Court of Justice – there is no mention of a ‘body of judges’ nor, most importantly, specific competence in ‘international law’ (we shall return to this) – it is worth recalling that Article 39 of the draft European Constitution or, to be more precise, the ‘Draft Treaty Embodying the Statute of the European Community’ adopted in 1953 by an ad hoc assembly57 – which was an ‘undeclared source of inspiration’ for the Treaty of Rome, according to one of its most eminent authors58 – had already introduced this provision.   N Condorelli Braun, Commissaires et juges dans les Communautés européennes (n 26) 73.   W Feld ‘The Judges of the Court of Justice of the European Communities’ (n 25) 44.   ibid at 46–47, 52. 57   On this topic, see A Cohen, ‘La Constitution européenne. Ordre politique, utopie juridique et Guerre froide’ (2005) 26 Critique internationale 119–31. 58   P Pescatore, ‘Les travaux du “groupe juridique” dans la négociation des traités de Rome’ (1981) 34 Studia Diplomatica 159–78, 165. 54 55 56

30  Antonin Cohen The candidates must be of the highest moral character, and must either possess the qualifications required, under their national legislation, for the exercise of the highest judicial functions, or be jurists of unquestionable ability.59

In short, there was a degree of wavering in the original definition of the Court of Justice.60 Indeed, if the first nominations sometimes appeared to be quite far from, if not the legal realm, then at least the judicial function, the professional qualifications of the Court’s members were heterogeneous, to say the least. ‘What sort of people are those judges?’, playfully mused the Court’s president in 1962.61 Among the first seven judges, three had exercised long careers as magistrates before being appointed to the Court.62 Italian Judge Massimo Pilotti (1952– 58), German Judge Otto Riese (1952–63) and Luxembourg Judge Charles Léon Hammes (1952–67), all three doctors of law, began their careers on the Bench (Pilotti in 1901, Riese in 1923 and Hammes in 1929, to be accurate, after several years of practice at the Bar in the latter case), and were all members of the highest jurisdictions of their respective countries at the time of their nomination: the Corte di Cassazione (1949), the Bundesgerichtshof (1951) and the Cour supérieure de justice (1944). Another career path leading to the Court was the financial and economic administration of the state, as in the case of French Judge Jacques Rueff (1952–62) and Dutch Judge Adrianus van Kleffens (1952–58). A member of the Inspection des Finances, Rueff had spent most of his career in administration, as a financial adviser at the French Embassy in London, as director of the Mouvement général des fonds at the Ministry of Finance, and as vice-governor of the national Bank of France; while Van Kleffens had joined the Ministry of Economic Affairs after heading the legal department of the Royal Dutch Navigation Company and, briefly, sitting on the Bench. At the other end of the spectrum, Belgian Judge Louis Delvaux (1952–67) and the Dutch ‘extra’ Judge Petrus Serrarens (1952–58) had both pursued political careers before being appointed to the Court. A doctor of law, member of the Bar, but also a journalist, Delvaux had been a Member of Parliament (1936–46) and Minister of Agriculture before returning to private practice, also taking up a number of responsibilities as administrator, for instance of the national Bank of Belgium. As for Serrarens, he was Secretary General of the International Confederation of Christian Trade   The text of this draft treaty and many other documents can be found online at www.ena.lu.   And even more so if one goes back to the negotiations of the Treaty of Paris: A Boerger de Smedt, ‘La Cour de justice dans les négociations du traité de Paris instituant la CECA’ (2008) 14 Journal of European Integration History 7–33. 61   AM Donner, ‘The European Court of Justice’ (1962) 59 The Law Society’s Gazette 444–48. 62   The following information was gathered from a number of sources, ranging from the various national editions of Who’s Who to internal documents of the Court – like the reports of the formal sittings and biographical notices posted on its website –, including documents gathered through the KG Saur biographical indexes and, of course, the scientific literature already cited here: Condorelli Braun (n 26); Feld (n 25); M Mangenot, ‘Le Conseil d’État et l’institutionnalisation du système juridique communautaire’ (n 28); to which should be added: F Autret, ‘La Cour de justice des Communautés européennes, 1952–1964: création d’un pouvoir juridictionnel’ (Master in political science, Université Paris I – Panthéon Sorbonne, 1996). The dates marking the beginning and the end of term at the Court of Justice are indicated in parentheses. 59 60

The Formation of the Court of Justice  31 Unions (1920–52), Member of Parliament (1929–52) and of the Consultative Assembly of the Council of Europe (1949–53), before joining the Court. Of these first seven judges, three only served until 1958 (including the first president of the Court, Massimo Pilotti), two others remained until 1962–63, and two others until 1967 – the two Advocates General, Maurice Lagrange and Karl Roemer, having left in 1964 and 1973, respectively. By 1967, consequently, with the exception of Karl Roemer – then setting the record of longevity (21 years) only to be subsequently equalled by Andreas Donner – the Court had undergone its first complete turnover. In fact, from 1963–64 at the time of its landmark decisions – Van Gend & Loos v Administratie der Belastingen (1963)63 and Costa v ENEL (1964)64 – respectively four and five of the seven early judges had been replaced. Among the newcomers, some had similar career paths to those of their predecessors. Italian Judge Rino Rossi (1958–64), a member of the Bench since 1920, was a member of the Corte di Cassazione before replacing Pilotti. French Judge Robert Lecourt (1962–76), a member of the Bar since 1928, had been elected to the Assemblée nationale in 1945 and had served several times as Minister of Justice before replacing Rueff. And German Judge Walter Strauss (1963–70), member of the Bench, was administrative State Secretary at the federal Ministry of Justice (1950–63) before replacing Riese. At the same time, however, a new elite, more academic, made its entry into the Court. Dutch Judge Andreas Donner (1958–79), who was only 40 when he became president of the new Court of Justice of the European Communities, had spent the totality of his career in academia – as a professor of administrative and constitutional law in Amsterdam (1945–58). Likewise, Italian Judge Alberto Trabucchi (1962–72) was a professor of private law in Padua before replacing Nicola Catalano (1958–61), himself a member of the Bar and of the Avvocatura dello Stato, as well as the former director of the legal service of the High Authority, who had just briefly replaced Serrarens. As for Rossi’s successor, Italian Judge Riccardo Monaco (1964–76), briefly member of the Bench (1931–33), he had taught international law since then, before joining the Ministry of Foreign Affairs, after which he returned to the Bench as a member of the Consiglio di Stato and the Permanent Court of Arbitration.

IV.  THE DIFFERENTIATION OF THE TRANSNATIONAL LEGAL FIELD: CAPITALS AND RESOURCES OF THE COURT OF JUSTICE

At this point, several elements of comparison must be introduced to situate the Court of Justice within the transnational legal field then emerging. The social recruitment of the Court appears all the more heterogeneous and its members’ legal qualifications all the more specific, indeed, when compared to the first judges 63   Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1. 64   Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.

32  Antonin Cohen of the ECtHR in Strasbourg.65 Since its creation in 1958, the ECtHR has been composed of prominent figures coming from academia, and specialising, what is more, in international law. Although it is rather arbitrary to reduce to this single dimension careers which actually cross over into multiple social spaces – as in the case of the most eminent among them, René Cassin, Henri Rolin, or Lord MacNair66 – a far greater proportion of the personnel of the Court was made up of professors of public or private international law from the most prestigious European universities: Kemal Fikret Arik at Ankara, Alf Ross at Copenhagen, Hermann Mosler at Heidelberg, Frederik Mari Van Asbeck at Leyden, Giorgio Balladore Pallieri at Milan, Alfred Verdross at Vienna and, of course, Ake Ernst Vilhelm Holmback, rector of the University of Uppsala, and Georges Maridakis, rector of the University of Athens. In comparison, career magistrates are in reverse proportion: Einar Arnalds (from the Civil Court of Reykjavik), Eugene Rodenbourg (from the Council of State of Luxembourg) and Terje Wold (from the Supreme Court of Norway).67 The case of McNair, who was president of the International Court of Justice from 1952 to 1955, points to another important element in the initial structuring of the transnational legal field: circulation among courts. Although infrequent, paths from one jurisdiction to another nevertheless existed: from the Permanent Court of Arbitration to the Court of Justice of the European Communities, as in the case of Pilotti and Monaco, but also from the International Court of Justice to the ECtHR, as in the case of McNair. Later, Lord Humphrey Waldock, himself a professor of international law at Oxford, followed suit, but in the opposite direction, moving from the ECtHR – in fact, first the Commission (1954–61), then the Court (1966–74), over which he successively presided from 1955 to 1961 and from 1971 to 1974 – to the International Court of Justice (1973–81), over which he also presided, from 1979 until his death in 1981. Waldock was followed there by Hermann Mosler (1973–81), who served with André Gros (1964–82), with whom he took part in the negotiations of the Schuman Plan.68 However, the existence of such circulation only highlights, on the contrary, the strict partition of recruitment paths between the Court of Justice of the European Communities and the ECtHR – and this up until the first decade of the 21st century for very specific reasons linked to the enlargement of the European Union to Eastern European countries.69 This differentiation is all the more surprising given   With regard to this, see A Cohen and M Rask Madsen, ‘Cold War Law’ (n 38).  In many cases, to be sure, supranational judges are characterised by a large multiplicity of positions. The first members of the ECtHR very much fit the mould of these ‘all-terrain’ jurists, part diplomat, part judge, part academic, part politician, who wrote the international law that shaped modern human rights. See G Sacriste and A Vauchez, ‘Les “bons offices” du droit international: la constitution d’une autorité non politique dans le concert diplomatique des années 1920’ (2005) 26 Critique internationale 101–17; M Rask Madsen, ‘‘Make Law, not War’ (n 32). 67   Conseil de l’Europe, Annuaire européen, vol 6 (The Hague, Martinus Nijhoff, 1959) 228–30. 68  S Rosenne (ed), Documents on the International Court of Justice (London, Martinus Nijhoff Publishers, 1991) 811–19. 69   L Scheeck, ‘Les cours européennes et l’intégration par les droits de l’homme’ (PhD in political science, Institut d’études politiques, 2006). 65 66

The Formation of the Court of Justice  33 that one of the crucial issues of the day concerned institutional relations between the Council of Europe and the European Community (in particular, the Common Assembly of the European Coal and Steel Community and the Consultative Assembly of the Council of Europe held joint sessions at that time). It nevertheless reflects the constant assertion made by members of the Court of Justice that ‘their’ court was, in fact, very much different. Thus, in September 1952, in the wake of the Eden Plan, the Consultative Assembly of the Council of Europe suggested that the two courts – the Court of Justice of the European Coal and Steel Community not yet being established (the judges were sworn in the following 10 December),70 and the ECtHR still virtual – be replaced in anticipation by a single court whose jurisdiction would simultaneously include human rights and free competition. The president of the juridical committee of the Consultative Assembly, Henri Rolin, defended this project with conviction: ‘It is necessary to substitute these courts as soon as possible with a single European Court’.71 Conversely, in Maurice Lagrange’s view, there was an ‘incompatibility “in nature”’ between the Council of Europe and the European Community that prevented such a project, the European Community being governed by ‘internal rules of law and not international law’.72 If the social recruitment of members of the Court of Justice differs significantly from that of members of the European Court, both in terms of socio-professional backgrounds and of career paths, they nonetheless share some characteristics with members of the High Authority. Whatever their previous career, many of them, in fact, had substantial practical experience of inter-state law and politics, as jurisconsults or arbitrators, in treaty negotiations or conflict resolution, in matters related to the military security or economic stability of European countries. In the case of Pilotti, his involvement in the international legal scene alone constituted a second career, crowned by his nomination to the Permanent Court of Arbitration in 1949. One of the most important points of intersection in this activity had been the League of Nations, of course, where the first two presidents of both the Court of Justice and the High Authority served as deputy Secretary General (from 1920 to 1923 for Monnet and from 1932 to 1937 for Pilotti). This proximity was only strengthened by the atmosphere in Luxembourg City, which Lagrange describes as a small world (‘an atmosphere of intimacy indispensable to the inception and development of a sense of community’), within which ‘nobody was permanently settled and everyone knew everybody else’.73

70  It seems that during the ceremony, four of the seven judges refused to swear before God: DG Valentine, The Court of Justice of the European Coal and Steel Community (n 51). 71   H Rolin, ‘La Cour du charbon et de l’acier’ (1951) 3899 Journal des tribunaux 14, cited in Autret (n 62). 72   The Library of the Court of Justice of the European Communities (Luxembourg), CI/510: Maurice Lagrange, ‘Examen critique de la recommandation 36 de l’Assemblée consultative du Conseil de l’Europe relative à l’institution d’une Cour européenne de justice’, 3 November 1952, 28–34, 32. 73   M Lagrange, ‘The Court of Justice as a Factor in European Integration’ (1966–67) 15 American Journal of Comparative Law 718.

34  Antonin Cohen By contrast, it is important to note that, although among the members of the Court of Justice only the two Advocates General, Lagrange and Roemer, and Judge Van Kleffens took part in negotiating and drafting the Treaty of Paris, many of the members of the High Authority were involved: Jean Monnet (of course), Dirk Spierenburg and Albert Weher, chairing the Dutch and Luxembourg delegations, and, to a lesser extent, Léon Daum, who, as president of Sollac, represented employers to the French delegation.74 This is even more striking if, in descending to the next rung, so to speak, of the institutional hierarchy of the High Authority, we include the directors of the different services then created: Max Kohnstamm, Secretary General of the High Authority and director of the Press and Information service, Pierre Uri, one of the architects of the Schuman Plan along with Monnet and Director of the ‘Economy’ division, Hamburger (‘Cartels and Mergers’ division), Rollmann and Vinck (‘Market’ Division), Wagenführ (‘Statistics’ division) and Balladore-Pallieri (‘Personnel and Administration’ division),75 all involved in one way or another in the negotiations. Likewise, after 1958, whereas Catalano was the only member of the Court of Justice to participate in the negotiations of the Treaties of Rome within the ‘groupe juridique’ – along with Pierre Pescatore, who would become judge in 196776 – the European Commission was presided over by one of its most eminent architects, Walter Hallstein, who chaired both German delegations in the negotiations of the treaties of Paris and Rome. Commissioners Hans Van der Groeben, Jean Rey and Lambert Schauss were also members of the German, Belgian and Luxembourg delegations in Messina, Venice or Val Duchesse. Further, Émile Noël, Executive Secretary of the Commission, was a member of the French delegation, along with the Director of the legal service of the High Authority Michel Gaudet, who was a member of the ‘groupe juridique’ before becoming Director of the newly formed legal service of the European Commission.77 Although the members of the Court of Justice could not lay claim to a privileged interpretation of the intent of the drafters of the Treaty, of which they were probably not the most legitimate exegetes,78 they could nevertheless take advantage of a specific kind of capital, on which they built early on. Most of the future judges and Advocates General of the Court indeed built their own legitimacy on the primitive accumulation of a legal capital partly resulting from their practice   National Archives (Paris), 81 AJ 131, List of delegations and distribution within the groups.   Communauté Européenne du Charbon et de l’Acier – Assemblée commune, Annuaire-manuel de l’Assemblée commune (Luxembourg, Division des études et de la documentation, 1956) 70–71. 76  P Pescatore, ‘Les travaux du “groupe juridique” dans la négociation des traités de Rome’; P Pescatore, ‘Europe: Mon Plan B’. Presented at the Conference Racines et développements de la gouvernance européenne: l’apport du traité de Rome instituant la Communauté économique européenne (March 1957) (Université de Luxembourg, Institut Pierre Werner, 23–24 April 2007). 77   National Archives of Luxembourg, AE 7701, Les delegations des Six à la Conférence de Messine; Historical Archives of the Council of the European Union, CM3, Conférence des ministres des Affaires étrangères. These two documents may be consulted online: www.ena.lu. 78   On the legitimacy to be gained from controlling the ‘intent of the constituent’ in a ‘nascent state of institutions’, see B François, Naissance d’une constitution. La Cinquième République, 1958–1962 (Paris, Presses de Sciences Po, 1996) 139–44. 74 75

The Formation of the Court of Justice  35 before the Court.79 The first case brought before the Court of Justice in December 1954 (France v High Authority)80 confronted Michel Gaudet, representing the High Authority, and two of the chief architects of the European Community’s legal system: Maurice Lagrange, Advocate General, and Paul Reuter, representing France.81 Neither Gaudet nor Reuter would ever become members of the Court. But subsequent cases would prove particularly fruitful in the formation of a genuine path of recruitment to the Court. In the second case (1954), Monaco represented the Italian government, with Catalano representing the High Authority, quickly followed by Pierre Pescatore, representing the Grand Duchy (1954), Josse Mertens de Wilmar, representing the Belgian coalmining companies (1955) or Alberto Trabucchi, representing the High Authority (1956). Another crucial element in the institutionalisation of the nascent Court of Justice derives from the social – and, more specifically, family – capital held individually and collectively by its members. As an emblematic example, the Villa Vauban, where the Court first sat, was in fact called Villa Pescatore, after the wealthy family of industrialists and patrons from Luxembourg to which the future judge Pierre Pescatore belonged.82 More generally, a good illustration of this social and family capital can be found in the particularly dense network of family ties linking members of the ‘revolutionary’ Court of 1963–64 – composed of Donner (president), Delvaux, Rossi, Trabucchi, Riese (Van Gend & Loos v Administratie der Belastingen, 5 February 1963), replaced by Strauss (Costa v ENEL, 15 July 1964), as well as Hammes and Roemer (respectively judge-rapporteur and Advocate General in the Van Gend & Loos case), and Lecourt and Lagrange (respectively judge-rapporteur and Advocate General in the Costa case) – to the most eminent legal and political figures of their time. President of the Court, Andreas Donner, was the son of former Minister of Justice (1926–33) Jan Donner, president of the Hoge Raad (the Dutch Court of Cassation) from 1946 to 1961 – Van Kleffens, to whom he had succeeded, being the younger brother of Eelco Van Kleffens, former Minister of Foreign Affairs (1939–46). Alberto Trabucchi, likewise, was the brother of Giuseppe Trabucchi, Minister of Finance in the Tramboni and Fanfani cabinets (1960–63) – and when Catalano was reappointed by Minister of Foreign Affairs Antonio Segni, in autumn 1961, it was agreed that he would 79  Vauchez, ‘Une élite d’intermédiaires’ (n 33); A Vauchez, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union. (For a Renewed Research Agenda)’ (2008) 2 International Political Sociology 128–44. 80   Case 1/54 French Republic v High Authority of the European Coal and Steel Community [1954] ECR 1. 81   Monnet’s former legal adviser (with whom he drafted the Declaration of 9 May 1950), Reuter (like his old friend Pierre-Henri Teitgen) had actually turned down Robert Schuman’s offer to appoint him as France’s judge at the Court. He considered himself at the time to be too young to ‘wish for such a prompt ending’. See A Cohen, ‘Le Plan Schuman de Paul Reuter. Entre communauté nationale et fédération européenne’ (1998) 48 Revue française de science politique 645–63; A Cohen, ‘Le “jour où l’Europe est née”. Socio-histoire d’une décision politique’ in F Buton and N Mariot (eds), Pratiques et méthodes de la socio-histoire (Paris, PUF, 2009) 125–67. 82   Cour de Justice des Communautés Européennes, XXXV ANNI 1952–1987 (Luxembourg, Service des publications des Communautés européennes, 1988) 70.

36  Antonin Cohen resign in favour of Trabucchi, which did actually happen in spring 1962.83 As for Karl Roemer, born in 1899, doctor of law and economics, briefly member of the Bench, then legal counsel of what subsequently became the Deutsche Industriebank in the 1930s, before becoming a barrister in Berlin between 1937 and 1946, and then a jurisconsult for the federal German government between 1947 and 1952, his lineage extends from Heinrich Von Brentano, Minister of Foreign Affairs (1955–61) to Konrad Adenauer himself, of whom he was the nephew (by marriage) – and according to Donner, he would probably have become president of the Court in 1958 if, after Walter Hallstein had been appointed as president of the Commission, the system governing the distribution of presidencies had not prevented two of them going to the same country.84 Far from being ‘tucked away in the fairyland Duchy of Luxembourg’,85 therefore, the nascent Court of Justice was, on the contrary, thoroughly imbricated in the transnational legal field then forming under the impact of multiple political, economic and social factors. The institution was actually internally structured by the system of tensions pitting against each other the main constitutive poles of this emerging legal field – national versus international, politics versus law, practice versus science, bureaucracy versus the market – which the ‘judges’ of the Court collectively and individually embodied in an exemplary way. Despite this, the judges nonetheless shared the relatively rare feature at the supranational level of specialising in domestic law, rather than in international law. Although it is difficult to establish a firm causal relationship between the ‘doctrinal’ opinion of the judges regarding the nature of Community law and their ‘jurisprudential’ opinion regarding the specific cases examined – and even more difficult to know their individual opinion at the time of deliberation, which following a decision of the Council, remains inaccessible to researchers (only the conclusions of the Advocates General being public) – there is no doubt that this ‘internist’ conception of the Community legal order won out over an internationalist one.

V.  ASSERTING ‘COMMUNITY’ LAW: FROM WHAT LAW SHOULD DERIVE THE AUTHORITY OF THE COURT OF JUSTICE?

‘Constitutionalisation’, which cannot be summarised as a blind process, is in fact the product of a collective action, inside and outside the Court of Justice, to construct the ‘constitutional’ character of treaties, directives and more generally ‘Community’ law. To be sure, it was only rather belatedly that the Court of Justice, on its own authority, and seemingly in passing, ‘re-classified’ the Treaty of Rome as the ‘basic constitutional Charter’ of the Community, under the terms of its Parti Écologiste ‘Les Verts’ v European Parliament decision:   N Condorelli Braun (n 26) 45.   Cour de Justice des Communautés Européennes, XXXV ANNI 1952–1987 16, 49; Condorelli Braun (n 26) 96. 85   E Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’ (n 21) 1. 83 84

The Formation of the Court of Justice  37 The European Economic Community is a community based on the rule of law, inasmuch as neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional Charter, the Treaty.86

Beginning in the 1960s, however, this question was put on the jurisprudential agenda by the first French Advocate General to the Court of Justice, Maurice Lagrange, one of the chief architects of this quiet revolution.87 In his preliminary conclusions to the founding decision Costa v Enel, Lagrange indeed asserts that the Treaty of Rome has in part ‘the nature of a real constitution’.88 Various commentators immediately concurred, including Eric Stein, professor of international law at the University of Michigan, who argued that the Court was acting ‘as if’ the treaty was a constitution rather than a treaty.89 In fact, as far back as the 1950s, in the context of intense mobilisation in favour of a ‘real’ European Constitution90 – the Rules of Procedure of the Court on 7 March 1953, its first official act, having only been published three days before the adoption of the European Constitution by the ad hoc Assembly on 10 March 1953 – Lagrange became increasingly vocal on the matter. Born in 1900, the son of a councillor of State, a graduate from the Faculté de droit de Paris and the École libre des sciences politiques, and a member of the Council of State since 1924, Lagrange had climbed to the top of the ladder by 1945, when he himself became councillor of State – maybe in recognition of his ardent participation in the National Revolution, reform of the civil service and the drafting of Jewish Law on behalf of the présidence du Conseil (Prime Minister’s office) between 1940 and 1942.91 Then he met Jean Monnet. I can still see the tall, well-postured man, with his pale angular face – a descendant of that race of magistrates of parlements, who, for centuries, anonymously preserved France   Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339 para 23.   ‘We are thus in the presence of a veritable revolution in the truest meaning of the term’, said Robert Lecourt in his speech at the awarding of the Robert Schuman Medal in 1976. ‘But, because it is happening without violence, few people are aware of it’. Library of the Court of Justice of the European Communities, CIX/357: Siftung F.V.S. zu Hamburg, Robert Schuman-Medaille in Gold (s.l. n.d. [1976]) 31. 88   Cour de Justice des Communautés Européennes, Recueil de la jurisprudence de la Cour 9(1), 1963, 1178: ‘Certainly, the Treaty of Rome has partly the nature of a real Constitution, that of the Community (and viewed from this angle, it is complemented by protocols and annexes having the same value as the treaty itself, not by regulations). But as for the rest, it has mainly the character of what is called a “loi-cadre” [framework law]: a perfectly legitimate method when it comes to confronting an evolving situation, such as the establishment of a common market’. 89   E Stein, ‘Toward Supremacy of Treaty-Constitution by Judicial Fiat: On the Margin of the Costa Case’ (1965) 63 Michigan Law Review 513. Born in Czechoslovakia in 1913, Eric Stein immigrated to the United States in 1940, where he was awarded the Bronze Medal for his record of duty in the US Army. He served in the Department of State as an adviser to the American delegation and representative to the General Assembly and to the Security Council of the United Nations (1947–55), before becoming a professor of international law at the University of Michigan in Ann Arbor. He was one of the first academics to review the case law of the Court of Justice: E Stein, ‘The European Coal and Steel Community: the Beginning of its Judicial Process’ (1955) 55 Columbia Law Review 985–99. 90   A Cohen, ‘La Constitution européenne’ (n 57). 91   With regard to this, see MO Baruch, Servir l’État français. L’administration en France de 1940 à 1944 (Paris, Fayard, 1997). 86 87

38  Antonin Cohen in its state. He enters my office, and I say to him: ‘Monsieur Lagrange, you are going to draft the Treaty’.92

Lagrange complied in 1950, on a rather informal but decisive basis, since he is said to have drafted the articles concerning the Court itself. Doubtless bolstered by this authority (which was relatively rare at the Court of Justice), he openly asserted: Is it not clear that, to the extent the European Coal and Steel Community is the embryo of a federal organisation, the Court of Justice itself appears as the embryo of a real federal Court? Can it not be argued that, to the extent the treaty has a veritable constitutional nature (and it undoubtedly does), the Court of Justice itself has a constitutional role?93

Thus, far from being a natural, functional, or even logical process, the constitutionalisation of the treaties must be analysed as a political and legal collective action, both outside94 and inside the Court of Justice – that could be called a framing process – that did not begin in the 2000s with the drafting of a treaty establishing a Constitution for Europe, nor in the 1980s with the revamping of the Treaty of Rome into a ‘Constitutional Charter’, nor yet in the 1960s with the landmark decisions establishing the direct effect and primacy of Community law, but can be traced back to the inauguration of the Court itself and, in fact, to the drafting of the Treaty of Paris. As a matter of fact, Articles 44 and 92 of the Treaty instituting the European Coal and Steel Community provided that ‘the judgments of the Court shall be executory on the territory of the member states’ and that they shall be enforced on the territory of member states through the legal procedures in effect in each of these States, after the writ of execution in the State on the territory in which the decision is to be carried out has been placed upon them; this shall be done with no other formality than the certification of the authenticity of such decisions.

As Lagrange then underlines, however: ‘The Community lacks some of the essential attributes of a State, having no territory, no citizens, no public form, and being deprived, on the territory of the member states of any means of enforcement’.95 Under these conditions, he continues, ‘it is obvious that the Community, not having any “imperium” and its institutions not controlling public force, the enforcement of its decisions can only be carried out at the internal level’.96 Thus, as early as the summer of 1953, several meetings were organised on this decisive issue – how to enforce the rulings of the Court of Justice and decisions of the High Authority –   J Monnet, Mémoires (Paris, Fayard, 1976) 412.   M Lagrange, ‘La Cour de justice de la Communauté européenne du charbon et de l’acier’ (1954) 80 Revue du droit public et de la science politique en France et à l’étranger 417–35, 434–35. This article is drawn from a legal note on the Court of Justice of the ECSC, written in 1952: F Autret (n 62) 10–11. 94   On this point, see: Vauchez (n 33). 95   Library of the Court of Justice of the European Communities, CI/55: M Lagrange, ‘Le caractère supranational des pouvoirs et leur articulation dans le cadre du Plan Schuman’, Lecture given before the tribune of the Young Bar association of Luxembourg, 23 March 1954, 24. 96   ibid at 25. 92 93

The Formation of the Court of Justice  39 bringing together representatives of the Member States (most of them coming from the Ministries of Foreign Affairs or the Ministries of Justice, but also from the Ministries of Finance), representatives of the High Authority (all belonging to the legal service: Gaudet, Catalano, Much), and representatives (in large numbers) of the Court of Justice, including three judges (Riese, Hammes, Van Kleffens), the two Advocates General (Roemer and Lagrange), the registrar (Van Houtte), as well as some ‘attachés’97 (Daig, Delahousse, Mathijsen, Matthies, Nuccitelli). Only the Italian Delegate, Caldarera, who, actually, was also a councillor of the Court of Appeals, expressed ‘reservations’ about the unanimous interpretation of Articles 44 and 92 then emerging. According to him, it was ‘necessary to call upon the intervention of a judiciary body’ (and not simply the ministries of Foreign Affairs, Justice, or the Interior) in a truly contradictory procedure, before affixing the executor formula on the rulings of the Court.98 The question raised, more generally, through the problem of the enforcement of the rulings of the Court of Justice, is the very ‘nature’ of the law of which the Court is the interpreter: ‘international’ or ‘internal’ law? Indeed, in the 1950s and 1960s, intense effort, both inside and outside the Court, was put into categorising the Treaty, the Community, the Court, etc. Thus, as early as 1955, young registrar Albert Van Houtte (then a 41-year-old), a doctor in law and former barrister, who had the peculiarity of having served as head of office for Judge Louis Delvaux at the Ministry of Agriculture, had already recorded a plethora of terms used in the scholarly literature to designate this ‘supranational’ order:99 ‘partial federation’, ‘condominium’, ‘functional federation’ (‘the ECSC could not be better characterised than as a “functional federation”, of which treaty is the constitution’, Van Kleffens argued straight off),100 ‘partieller Wirtschaftstaat’, or, as Monaco more cleverly suggested, ‘un ordinamento sui generis che é a metà strada tra la struttura internazionale et quella statale’. As for Lagrange, he made endless attempts in every language to categorise Community law – ‘federal constitutional law’, ‘internal Community law’101 – and the Court itself – ‘administrative jurisdiction’, ‘international court’102 – before settling for comparisons: ‘The Court is therefore, always in relation to the legal order of the Community, both a Council of State   Ancestors of the référendaires.  Library of the Court of Justice of the European Communities: minutes of the meeting of 20 October 1953 (‘Exécution forcée des décisions de la Haute Autorité et des arrêts de la Cour’) 6. 99  Library of the Court of Justice of the European Communities, CI/320: Albert Van Houtte, ‘La Communauté européenne du charbon et de l’acier. Communauté supranationale’, Lecture delivered at the University of Naples, 15 December 1955. The quotation from Monaco is from: R Monaco, ‘La Comunità sopranazionale nell’ordinamento internazionale’ (1953) 8 La Comunità Internazionale 441–59. 100   Library of the Court of Justice of the European Communities, CI/209: A Van Kleffens, ‘La fédération fonctionnelle et l’expansion de sa juridiction’ (1953) 157 Bulletin trimestriel de la Société belge d’étude et d’expansion 789–94, 789. 101   M Lagrange, ‘L’ordre juridique de la CECA vu à travers la jurisprudence de sa Cour de justice’ (1958) Revue du droit public et de la science politique en France et à l’étranger 841–65, 849–50. 102   Library of the Court of Justice of the European Communities, CI/55: Lagrange, ‘Le caractère supranational des pouvoirs’. 97 98

40  Antonin Cohen (Conseil d’État) and a genuine constitutional Court’.103 Or, as he suggests in an American journal: Analogies are always dangerous. However, it is difficult not to make certain comparisons, particularly for American readers, between the European Court of Justice and the United States Supreme Court. Despite basic differences between the two on which it is unnecessary to dwell, they share certain features in common. Both constitute the highest judicial power in a political structure that is federal in the United States and, as is frequently observed, clearly ‘pre-federal’ in Europe. In Europe as well as in the United States the court is part of the governmental structure and not international in character.104

Now, as Lagrange himself then points out, this debate mainly involved legal professionals whose perspective depended very much on their specific profile (internationalists or internists), not only within scholarly circles,105 but also before the Court itself. Thus, in 1954, in the Netherlands v ECSC High Authority 106, opposing JHM Verzijl, a professor of international law at the University of Utrecht, and, for the Court, Advocate General Karl Roemer (who recalls that the rulings of the Court ‘are immediately executory with no procedure of exequatur on the merits’)107, the method of interpretation of the treaties was at stake: a strict and literal interpretation in the tradition of international law or an exegetic and in-spirit interpretation (taking into account the drafters’ intentions, the preparatory work, and the general principles) in the tradition of internal law? The scene was repeated the following year in Fédération charbonnière de Belgique v High Authority108, once again opposing Rolin and Lagrange, who then offered a definitive statement on the matter: Our Court is not an international court, but the court of a Community created by six States on a model that resembles a federal organisation much more than an international organisation, and the Treaty, of which the Court has the mission to ensure enforcement, albeit concluded in the form of international treaties, and it is undeniably one, does nevertheless constitutes, from a material point of view, the charter of the Community, the rules of law deriving from it being the internal law of the various member states.109 103   See also Library of the Court of Justice of the European Communities, ZX/29: M Lagrange, ‘Organisation, fonctionnement et le rôle de la Cour de justice des Communautés européennes’ (1963) 13–14 Bulletin de l’Association des juristes européens 5–30, 17–18. 104   M Lagrange, ‘The Court of Justice as a Factor in European Integration’ (n 73) 711. 105   See J Bailleux, ‘Comment l’Europe vint au droit. Le premier congrès international d’études de la CECA (Milan-Stresa 1957)’ (2010) 60 Revue française de science politique 295–318. 106   Case 6/54 Kingdom of the Netherlands v High Authority of the European Coal and Steel Community [1954] ECR 103. 107   Cour de Justice de la Communauté Européenne du Charbon et de l’Acier, Recueil de la juris­ prudence de la Cour I, 1954–1955, Affaire n° 6-54, Conclusions of Advocate General M Karl Roemer (4 February 1955) 232. 108   Case 8/55 Fédération Charbonnière de Belgique v High Authority of the European Coal and Steel Community [1955] ECR 292, and Joint Cases 9/55 NV Kolenmijnen van Beeringen, NV Kolenmijnen van Houthalen, NV Kolenmijnen van Helchteren en Zolder v High Authority of the European Coal and Steel Community [1955] ECR 311. 109   Cour de Justice de la Communauté Européenne du Charbon et de l’Acier, Recueil de la jurisprudence de la Cour II, 1955–1956, Affaire n° 8-55, Conclusions of Advocate General M Maurice Lagrange (12 June 1956) 263.

The Formation of the Court of Justice  41 Henceforth, turning their backs on international law – but Pierre Mathijsen, the ‘attaché’ of Judge Serrarens, recalls, for example, that he used the structure of the rulings of the International Court of Justice as an inspiration when drafting the first decision of the Court of Justice of the European Coal and Steel Community110 – the judges and Advocates General of the Court, who were so many magistrates, pro­ fessors and barristers specialising in domestic law, would rapidly transform ‘Community’ law into a comparative law of the domestic laws of the Member States. Lagrange, for instance, was very pleased with the lapse of time between the inauguration of the Court, in December 1952, and its first ruling, in December 1954, which allowed the Court to devote itself, on a doctrinal but also a somewhat academic level, to in-depth studies of comparative law, which are now very useful; for even if the Court is sovereign and must assert for itself what is the ‘law of the Treaty’, it is easy to conceive that the source of this law can only be drawn in the legal ‘common roots’ of the six States – which first required the knowledge of each of the national laws.111

And he went on: ‘one easily digs out, when going to the bottom of the problems, these ‘general principles of the law’, that, in reality, albeit by different developments of thought, end up offering the same solution to identical problems’.112 This is precisely what was at stake in the Costa v Enel decision, which stated, in a now famous formulation, that the Treaty institutes ‘its own legal system, which, on the entry into force of the treaty, became an integral part of the legal systems of the member states’. Lagrange had explained the fine points of this idea in his various writings from the 1950s on: It is not at all irrelevant to know in what legal framework the Community evolves; if its own ‘legal order’ (the existence of which is recognised by all) is part of the ‘international legal order’, of which it would be only one of the manifestations, one of the branches; or, if, on the contrary, emphasis should be placed on the autonomous, balanced, and self-sufficient nature of an institutional apparatus governing aux lieu et place [on behalf] of the member states, and according to rules borrowed from their domestic public law, one of the essential pooled sectors of their economy. In the first case, there will be a tendency to resort first to the rules of international law to shed light on the obscurities or doubts arising in the enforcement of the Treaty; in the second case, it will be natural to turn to the internal law of the member states, in this case considered the principal source of the law of the Community.113

110   See P Mathijsen, ‘Le début: la Cour CECA’ in Amicale des référendaires et anciens référendaires de la Cours de justice et du Tribunal de première instance des Communautés européennes (ed), La Cour de justice des Communautés européennes, 1952–2002 (Brussels, Bruylant, 2004) 3–9, 6. 111   M Lagrange, ‘Une réalité européenne. La Cour de justice de la CECA’, Cahiers chrétiens de la fonction publique, 28 April 1955, 16–26 (21). 112   ibid at 21–22. 113   M Lagrange ‘L’ordre juridique de la CECA vu à travers la jurisprudence de sa Cour de justice’ (n 98) 843.

42  Antonin Cohen

VI. CONCLUSION

All these elements highlight the social construction of ‘Community’ law and of its authority within national legal orders by showing that the very different paths of judicialisation of the treaties taken by supranational courts are not the pure product of abstract albeit antithetical reasoning, but a side-effect of a relatively opposite social recruitment.114 If Maurice Lagrange and his peers often insisted in their early writings that the treaties were not meant to create just another international organisation but a genuine European community governed by an ‘internal’ and not ‘international’ rule of law, this is probably due, at least in part, to the fact that, for the most part, the judges and Advocates General of the Court of Justice were de facto specialising in private or public domestic law in their respective countries. Conversely, the Court constantly had to reassert the principle according to which this ‘Community’ law was not the simple equivalent of the domestic laws of the Member States. It therefore had to look for principles of interpretation within the different national laws that would be sufficiently ‘common’ to legitimately assert the ‘primacy’ of this new law, a sort of ‘third way’ between international law and internal law. It is hardly surprising under these conditions, as Donner suggested, that the Court’s deliberations rapidly became a ‘seminar in comparative law’.115 Pushed in this direction by a coalition of actors exterior to the institution, like Jean Monnet, in his speech before the Court in December 1952 (‘I greet you not only as the Court of the European Coal and Steel Community, but also as the prospective supreme federal European Court’),116 the Court also mobilised from within to prepare a revolution, which, in the end, was perhaps not all that quiet.

  On this point, see Cohen and Rask Madsen (n 38).   Cour de Justice des Communautés Européennes, XXXV ANNI 1952–1987 18. 116   Cited in C Pennera, ‘La genèse et l’installation de la Cour de justice des Communautés européennes’ in Amicale des référendaires et anciens référendaires de la Cours de justice et du Tribunal de première instance des Communautés européennes (ed), La Cour de justice des Communautés européennes, 1952–2002: bilan et perspectives (Brussels, Bruylant, 2004) 37–45, 45. 114 115

2 The Role of Legal Services in the Elaboration of European Legislation JEAN PAUL JACQUÉ

I. INTRODUCTION

F

ROM THE VERY beginning, lawyers have played an important role in the European project. This is due to several factors. First of all, the very nature of the Treaties provided a basis for the construction of a system that required a strong contribution from lawyers. Indeed, as the founding Treaties were designed to produce effects over the long term, they did not contain the same level of precision that is found in most other international legal instruments. They provided a framework for the development of an important amount of additional normative activity. To become operational, this framework had to be gradually implemented and specified, notably by the Community’s political institutions with the assistance of the European Court of Justice and subject to the Court’s review. This task not only consisted in establishing the bases of the Community legal order, but also required the Treaties to be applied to situations that had not been foreseen by the founding fathers. Moreover, the period that followed the Single European Act was marked by an unprecedented amount of legislative activity. This was, without doubt, the height of the dominance of lawyers within the institutions. Although the focus moved later on to the management of European policies rather than to new legislation, a whole generation of lawyers was kept busy by the constitutionmaking activity between Maastricht and Lisbon. But the importance of law in the European Union does not rest on these elements alone. Simply put, law is a natural instrument of the political debate, since states prefer to oppose a measure through legal arguments that give an objective appearance to their political preferences, rather than openly displaying a political position that is purely based on national interests. Finally, and with specific reference to the European Union, in a gathering of states whose languages, cultures and national constitutional traditions are so different, the law is a common language understood and shared by all. In light of the above, it is not surprising that lawyers have played a key part in the work of the European Union and that they have been able to maintain such a role through the different transformations of the EU.

44  Jean Paul Jacqué

II.  THE LEGAL ENVIRONMENT

The legal environment within which the lawyers of the European Union operate is relatively limited. The inner circle contains fewer than 200 persons who know each other inside out and are used to working together notwithstanding their institutional background. The bulk of this inner circle is made up of the members of the legal service of the Parliament, the Council and the Commission as well as the legal advisers of the permanent representations. The outer circle contains certain external actors such as the lawyers who work for lobby groups or lawyers working for the Member States. The latter could also be included in the inner circle, were it not that their contact with the legal services is sporadic and that they only intervene on specific points when a text raises particular issues.

A.  The Legal Services Among the legal services of the institutions, those of the Commission and the Council are the oldest. For a long time, the Commission’s legal service was the best known of the two. This was, no doubt, due to the openness of its successive directors general who engaged in a dialogue with legal doctrine, thus supporting the Commission’s proposals by defending them in the public sphere. The Council’s legal service has for a long time been more discreet. This attitude resulted from the tradition of confidentiality which has always characterised the work of the Council. In addition, it was always going to be a delicate matter to express public views in situations where the opinions of the Member States diverged from one another. Once again, the climate of transparency has made its mark and public appearances by members of the Council legal service have become commonplace. Members of both services give lectures in universities and contribute to journals and conferences. The relationship between both services is a close one and their members like to refer to one another as ‘cousins’. Personal relationships are formed between the lawyers of both services who deal with the same areas and are frequently in contact with one another. This is helped by the fact that the Commission takes part in all the meetings of the Council. At every level, ie that of the legal advisers, the directors and directors-general of both services, working in conjunction with one another has become a habit, so much so that one may say that there exists a genuine community of lawyers. Starting from the idea that it is preferable to resolve legal issues prior to political discussions, and in particular before the final negotiations in the Council, the lawyers of both services try to understand their divergences and to find compromise solutions. The lawyers of the Commission are well aware of how to ensure compliance with the legal rules and have thus been able to intervene for political reasons when proposals were adopted by the college of Commissioners. They know that such forms of accommodation will inevitably be detected when the matter is assessed by the Council, whether by its legal service or by the Member

The Role of Lawyers  45 States. In these conditions and in order to overcome the difficulties or at least to shed some light on the diverging points of view, simultaneous discussions take place while measures are being assessed by the Council. If the difficulty is not resolved, then a suitable formula will enable each one to maintain his position and avoid the creation of a precedent. When a question appears to have particular importance, it will be the subject of an assessment during one of the frequent meetings of the directors general. The legal service of the European Parliament has been created more recently. It was born in the aftermath of the Les Verts1 case when the European Parliament understood that it could strengthen its powers through the use of litigation. However, given the limited nature of the Parliament’s powers at that time, its legal service only had a limited role on the legislative front and its contacts with its opposite numbers in the other institutions were also limited. The situation changed after the entry into force of the Maastricht Treaty, which resulted in broadening the scope of action of the Parliament’s legal service and developing its contacts with the other services. The legal service faced a struggle for recognition within the European Parliament because of the existence of a Committee on legal affairs composed of MEPs. Indeed, nothing is worse for a legal service than to have to work with people who think that they know the law just because they obtained a law degree in the past. Law is not just a matter of using a specific legal vocabulary learnt at university; it develops through practice and persons who have not followed this practice for a long time cannot possibly claim to master its intricacies. This is even more so in the field of Union law. The text of the Treaties, written for the most part in 1957 does not give a full account of the current rules. Its meaning has been clarified and sometimes even altered either by the case law of the European Court of Justice or by the practice of the European institutions. Whoever has failed to follow this evolution runs the risk of seriously misconstruing the law’s true meaning. After a while, the lawyers of the Parliament were able to obtain recognition for their competence and their professionalism. Nevertheless, their contacts with colleagues from other services have remained more sporadic and are focused on legislative issues. B.  The Legal Advisers to the Permanent Representations Most of the Permanent Representations of the Member States in Brussels have their own legal adviser. They are foreign affairs lawyers or lawyers from national administrations in charge of European affairs. In some of the Member States, they belong to the important institutions of the state, eg the Conseil d’Etat in France or the state lawyers in Spain. Italy has often recruited university professors (eg Antonio Tizzano, Roberto Adam). These lawyers follow the activities of the Commission (notably as regards enforcement actions against Member States) as 1  Judgment of the Court of 23 April 1986, Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament.

46  Jean Paul Jacqué well as the Council’s legislative activities. The relationship with the European Parliament’s legal service is much looser except when the Member State concerned holds the Presidency of the European Union. These legal advisers are often members of ad hoc groups created by the Council to examine a specific question. One frequently finds them in the various groups of ‘friends of the Presidency’ that are formed during the intergovernmental conferences. They follow the various working groups of the Council and intervene when they think it is necessary to raise a legal issue. The Member States that have chosen not to appoint a legal adviser within their Permanent Representation are often in a less favourable position. They have to rely on the legal experts back in their capital cities. But those persons are often unaware of the context in which a question is raised, and of the positions of the various actors in the decision-making process. Under those conditions, it is more difficult for them to make pertinent comments to the Permanent Representative and his or her deputy. Moreover, when a legal issue is raised unexpectedly, as sometimes happens, it is impossible for those countries to react immediately. The three legal services and the legal advisers form, taken together, a relatively homogenous and sociable environment. Professional and personal relationships are very dense. There remains a genuine difference in legal cultures between those whose approach is nearly entirely exegetic and those who have a more pragmatic approach. However, osmosis happens rapidly. Indeed, the aim is not to lay obstacles on the path of the legislator but to find solutions that respect its wishes while sheltering any decisions that have been taken from the risk of litigation. In this case, creativity is a fundamental skill. To the extent allowed by the rules of professional conduct, the relationships are close. Before raising a legal issue, it is deemed courteous to warn the interested parties so as to test one’s position with them and allow them to prepare their arguments in the event that they disagree. Such bilateral contacts often provide an opportunity to search for a compromise.

C.  The Outer Circle The members of the outer circle are those who have only periodic relations with the inner circle. They may be lawyers from law firms who have been called to lobby on behalf of their clients, or company lawyers. They only get involved on specific issues: eg chemical companies with regards to REACH, national lotteries on the issue of gambling, energy providers on the subject of energy and climate change. Often the first contact is made by a former member of a legal service or by a retired diplomat in order to create a rapport. In application of the principle of transparency, there is no reason not to listen to what they have to say and their arguments may prove of substance in the context of subsequent litigation, though they know that this is the most they can expect. Part of the outer circle is also made up by some national lawyers who are sent by their government to deal with a specific problem. Their sporadic presence does not enable them to become fully

The Role of Lawyers  47 integrated. Moreover, they naturally have a very national perspective whereas the main concern of the members of the inner circle (even though each of them may defend a specific position) is to ensure that the system functions effectively, which requires a long-term approach. Generally, a national expert will not worry about creating a precedent whereas a member of the inner circle will think carefully before going down such a path. Divergences between the three legal services are rare and may easily be reduced, except of course when the matter concerns the respective powers of each institution. The legal advisers are obliged to defend their national position but they are aware that these are not always based on solid justifications and may stem more from political necessity than a reliance on a strong legal argument; in these conditions, dialogue is easy. Moreover, as observed by a Permanent Representative, it is difficult for a Member State to take a position that is at odds with the position of the Council’s legal service and even more so when the Commission’s legal service is singing from the same hymn sheet as its cousins.

III.  PROFESSIONAL CONDUCT

Although there are no written rules of professional conduct, all the members of the legal services share the same professional values, foremost among which are independence, collegiality and modesty.

A. Independence The first rule of a legal service is its independence. There is a close connection between its independence and the quality of its advice and therefore of the service it provides to the institution to which it belongs. There is no point in the institutions and the states receiving comforting legal opinions that momentarily provide some support to their position, only to expose themselves, later on, to a sanction by the Court. The requirement of independence means they must resist any pressures coming from those holding the political power (eg the presidents of the Council or of the Commission, the chair of a parliamentary committee or its rapporteur) who may wish to avoid their political preferences being paralysed by legal objections, the importance of which they are not always able to see given their own objectives. Independence means not taking notice of the pressures from national governments who might seek to use the legal service as a means to achieve their ends. Indeed, it is not unheard of for governments to hide behind legal argument as a means of voicing their opposition to certain texts instead of taking a political stance to criticise the substance of the measure at hand. They thereby display an image of virtue and are less fearful of retaliatory measures from other Member States. A good lawyer needs to know when to keep quiet as well as when to speak up when there is a genuine legal concern. The legal service of the Council

48  Jean Paul Jacqué is frequently confronted with such situations. Given that it attends all the meetings of the working groups, of the Committee of Permanent Representatives (COREPER) and of the Council, the legal service may express its opinion at its own initiative. Moreover, if ever it was not able to do so, there would always be the possibility for the legal service to produce a written opinion that would then be distributed to all the delegations. In light of the above, the legal service is able to express itself in complete and utter independence. The new requirement of transparency within the EU has made the work of the legal service more difficult, in particular following the judgment in the Turco case2, as this judgment lifted the legal privilege that previously enabled a degree of secrecy to apply to the written opinions of the legal services. One might have expected the Court to understand the specificity of its role, which is to provide independent legal advice. Indeed, what kind of independence is possible if a legal opinion that reveals the weaknesses of a legislative document is then made public, thus enabling everyone to build up a case by exploiting such legal arguments in any ensuing litigation? It is as if Saint Sebastian was required to shoot arrows at himself! There is thus a big temptation to limit the scope of a written opinion to avoid such consequences or only to give oral advice, possibly even outside the regular meetings. However, those who take part in the meetings, and who are often not lawyers themselves, insist on having written legal opinions that they can send back to their capital cities as they are afraid of not being able to report back accurately any legal advice provided orally. The solution that was adopted was therefore not to change current practice, and to use when necessary the exceptions permitted in the Turco judgment.

B. Collegiality The strength of the legal services also resides in their collegiality. A legal opinion is not attributed to its author but instead is provided on behalf of the whole legal service that is therefore responsible for the advice given. The author of a legal opinion, therefore, is certain that no contradictory opinion will emerge from within the legal service. However, this solidarity requires that apart from routine matters, any opinion must be discussed with the other members of the legal service in order to ensure the group’s cohesion in respect of the solution retained. Only a common point of view will enable the creation of a doctrine that will provide elements for reference in future debates. This requirement of coherence is particularly crucial given the cultural diversity of the different members of the legal services and the temptation for Member States to exploit any diverging opinions to ensure that their own point of view wins the day.

2   Judgment of the Court (Grand Chamber) of 1 July 2008, Joined cases C-39/05 P and C-52/05 P Kingdom of Sweden and Maurizio Turco v Council of the European Union.

The Role of Lawyers  49 C. Modesty Modest is the third quality required of members of the legal services. The law is often subject to a number of possible interpretations. It is therefore important to listen to countervailing arguments and to report these to one’s ‘clients’. The rest is a question of risk management. In difficult cases, it may not be possible to give an absolute guarantee that a measure will not be annulled. The answer in such cases lies in providing an assessment of the likely outcome, which enables the political decision-makers to make their choice. Indeed, the aim is not to replace the political decision-makers but to enable the political will to be cast in a safe legal mould. Certain measures envisaged by the political actors are completely impossible from a legal point of view, in particular when they are outside the EU’s competence. However, in most cases, there is just a need to intervene in respect of the means while respecting the goals, and sometimes it is necessary to limit the initial ambitions. Modesty is also required when the legislator decides not to follow a legal opinion, resulting in a legal dispute being taken before the Court. In such a case, it will be necessary to loyally defend the legislation that is being challenged and to keep quiet about one’s own disagreements. Indeed, the role of a lawyer in an institution is not of the same nature as that of a fireman in a theatre. It is not possible to follow the play from behind the stage and only intervene in the event of a fire. The lawyer is an actor within the legislative theatre. He or she is required to deal with matters from the outset and totally commit to them. Knowing the background, the technical data and the consequences of a legislative proposal are of key importance to enable effective intervention in a debate. Legislation does not take place in a vacuum. Any legislation will entail economic, social or environmental changes that need to be taken into account by lawyers to ensure that the advice provided by them is not disconnected from reality and thus useless. Indeed, it is not just necessary for a lawyer to advise on the legality of a proposal; he or she must provide the means of achieving a goal while complying with the law. A lawyer who simply sets out the obstacles to the political process without proposing alternative measures would not be paid much attention.

IV.  THE ACTIVITY

The basic mission of a lawyer is to check that legislation complies with EU law. However, the tasks of a lawyer may extend well beyond this, provided he or she has the trust of the political authorities or, in the case of the Council, that of the delegations of the Member States.

50  Jean Paul Jacqué

A.  Checking the Legality of Measures The body of law used for checking the legality of any measure is composed of the Treaties, which are to be interpreted in accordance with the case law of the European Court of Justice, general principles of law including fundamental rights and the international conventions to which the EU is a party, among which are the rules of the World Trade Organisation (WTO). As soon as a proposal is received from the Commission, the legal service of the Council will examine its content in light of these higher norms. The legal service of the Commission will normally have carried out this work already at the time the proposal was elaborated. However, disagreements may arise between the different legal services. It may also happen that the observations of the Commission’s legal service have not been followed by the college of the Commissioners. Finally, on a number of questions, the Commission has developed its own approach that favours its own institutional role. Numerous debates on the legal base of measures have occurred due to the fact that the Commission has sometimes forcefully interpreted the Treaty so as to achieve its aims; in this task of evaluation, the legal services of the European Parliament and the Council are assisted respectively by the parliamentarians and the national delegations who share their own concerns and often raise their own questions with the legal services on behalf of their governments. On this latter point, prudence is of the essence as these delegations have the knack of transforming their political misgivings about a matter into legal objections. In such cases, the lawyer’s job is to decompose the legal arguments to show that this is not a legal debate but a political issue that must be dealt with by the political authorities. To enter into the game played by the delegations would result in discrediting the lawyer in the eyes of the very delegation that posed the question, which is well aware of the trap that it has laid for the legal service. It would also lead to shifting political responsibility, supposedly in favour of a given legal expertise. This activity involves a multitude of oral or written legal opinions. It is also necessary to reply to the objections coming from Member States that are based on their national laws and in particular their constitutions. In principle, given the primacy of EU law, the answer should be that there is no need to review problems relating to compatibility with national law. It is for the Member States to take the requisite measures to adapt their national rules where necessary. However, as no one wants to provoke a conflict with the national constitutional courts over the sensitive issue of the primacy of EU law over national constitutional law, it is often necessary to find a formula to prevent a potential confrontation. The questions are often quite repetitive. The Nordic countries seek to preserve their system of collective bargaining and collective agreements with trade unions. In Denmark, the freedom of expression has a very broad meaning. Germany pays a lot of attention to property rights in all their forms. The United Kingdom and the Nordic countries are obsessed with the rule of not allocating

The Role of Lawyers  51 revenue to expenses in order to maintain parliamentary freedom in that area. The issue of sanctions, notably criminal ones, is a sensitive one for all the Member States. The lawyer is thus asked to find the formulae that will preserve the objective of the legislation while avoiding any potential conflicts with these national principles. Any legal difficulties must preferably be resolved as soon as possible in order to avoid them polluting the political debate. In principle, questions of this kind cannot be dealt with by a working group but should instead be addressed to the COREPER due to their horizontal nature. The fact of the matter is that good preparation within the working group will enable the issue to be dealt with by the COREPER in a straightforward manner. It is rare for a legal issue to be effectively dealt with at ministerial level. First of all, ministers have little appetite to handle this kind of question. Moreover, if a legal problem rises to this level, it surely hides political problems that no one wants to face head on. However, new legal questions often arise in the course of ministerial debates due to the amendments that certain Member States wish to make to the document. The issue will then be dealt with during the meeting while the iron is still hot. For this reason, the representative of the legal service of the Council has been given the right to speak at any time during the sessions of the Council.

B.  Respect for the Procedure During the legislative debate, the lawyer will need to ensure that the requisite procedures are complied with, given that a breach of those procedures would be a cause for annulment of the act. The registration on the agenda, the quorum, the calculation of the result of the votes and the application of the provisions that govern the relationship between the institutions are each a focus of the lawyer’s attention although they tend not to require an excessive amount of work as the questions are repetitive and the answers have been known for a long time.

C.  The Quality of Legislation Another task of the legal services is to ensure the quality of legislation so that its contents can be easily understood by those to whom the text is addressed, and so that the national authorities may apply the legislation in a uniform manner. Once again, this is a matter that needs to be dealt with as early as possible in the process. Indeed, once there are indications that an agreement based on compromises has been established, the Member States worry that any operation designed to simplify a proposal might also jeopardise the agreement. In any event, the Member States are reluctant to re-open discussions on a text that has received the seal of approval from their capital cities.

52  Jean Paul Jacqué

D.  A Potential Power of Amendment The participation of lawyers in the elaboration of legislation may go beyond simply checking the legality of the proposed measures and ensuring the quality of the legislation. The capacity to play a more active role depends on the confidence shown in the lawyer by the participants in the legislative process, and the lawyer’s personal qualities are in this respect as important as his or her professional competence. One of the consequences of becoming used to working together within the same group is the mutual trust that emerges as well as the feeling of belonging to the same ‘club’. If the lawyer manages to become accepted by this club, he or she will be asked to come up with solutions to deal with any divergences within the group and to suggest amendments to the document that reflect the compromises that have been reached. This is often the case in the relations between the Council’s legal service and the Presidency or the COREPER. At the own initiative of a member of the relevant legal service or following the demands that have been addressed to him or her, the lawyer may suggest alternative wording or a compromise solution. This activity requires a perfect knowledge of the positions in play and an ability to strike a political balance. It relies on constant contact with the lawyers of the delegations. This kind of activity may be appreciated by the Member States, as it spares them from having to take the initiative and leaves them with a degree of freedom to assess the compromise that is being proposed as they are not officially the authors of the compromise. Moreover, in the relationship between the institutions, the legal services are often called upon to resolve certain divergences, either because of their specific legal nature or because it is deemed preferable for a compromise solution to come from an independent third party rather than from a party to the discussion. In order to successfully fulfil these tasks, it is essential for the lawyers to respect the political will expressed by the legislator. One should not seek to modify the political orientation but rather seek the appropriate means of implementing it by proposing the right wording and by establishing a compromise between the different stakeholders. There are some classic ways in which the above can be achieved: by reducing the scope of a measure, by using the calendar so as to include a period of gradual implementation of a text, by separating the objectives in order to defer some of them to be dealt with in a later document that relates to a principle which has already been agreed, by replacing certain elements of a text with a political declaration coming from the institutions etc. Frequently however, it becomes necessary to find an original solution following bilateral discussions with the delegations. When one is faced with diverging positions adopted for important political reasons, a proactive approach by the legal service can contribute to finding an agreement. Such an attitude is not just limited to the legal service. In the first instance, it is required on behalf of the Presidency in the case of the Council or on behalf of the rapporteur in the case of the European Parliament. It can be displayed by other members of the secretariat of an institution. The legal

The Role of Lawyers  53 service only acts according to the powers that have been delegated to it, although it is also able to offer solutions of its own initiative. Nonetheless, it is often easy to delegate such power to the legal service given its presence at every meeting, which makes it a de facto member of the club, and given its independence which has earned it the trust of its political actors.

E.  The Specificity of the Intergovernmental Conferences and Conventions There are circumstances when lawyers may play a key role outside the truly legislative field. These are the conventions and intergovernmental conferences that prepare revisions of the founding Treaties. In both cases, the scope of the debate is not restricted to the terms of a proposal by the Commission and there is far more room for imagination. In the intergovernmental conferences, the debates begin on the basis of the questionnaires and the notes of the Presidency, which have been drafted with the aid of the legal service. The drafting of the texts that will appear in the treaty are attributed to the Presidency but here again, lawyers play a key role. Finally certain issues are allocated to specific groups in which lawyers play a decisive part. This was the case in the important simplification of the texts carried out by the Treaty of Amsterdam as well as in the case of the Constitution and of the Treaty of Lisbon under the chairmanship of the legal adviser to the Council. Moreover, prior to the intergovernmental conferences, lawyers will for many years have identified the deficiencies in the functioning of the EU. The revision of the Treaties provides an opportunity to correct these deficiencies and to present a certain number of amendments to the national delegations. Thus, the progressive extension of EU competences that has taken place since the Single European Act is also linked to an analysis of the use of Article 352 TFEU (ex-308 EC) that revealed the lacunae in the Treaties. In the same way, the successive modifications of Article 133 EC on the common commercial policy reflect the difficulties experienced by the legal services of the Council and the Commission. There is even more leeway during the conventions. Lawyers produce executive summaries on each issue, which are then used to guide the debate. Lawyers provide the participants with documents and draft the proposed texts. During the convention on the EU Charter of fundamental rights, the initial idea of drafting the Charter ‘as if it were binding’ stemmed from a note of the convention’s secretariat which was led by a member of the Council’s legal service. As the convention’s president Roman Herzog had to be frequently absent due to personal circumstances, and as the vice-president only had a limited knowledge of EU law, the secretariat played a key role in the drafting of the texts. Moreover the explanatory notes attached to the text of the EU Charter, which the Treaty of Lisbon considers as a special tool of interpretation, were drafted by the secretariat on its own. Such a role of initiative is subject to acceptance by the president and the members of the convention. The projects have been remastered several times following the debates within the convention. One owes the structure of the Charter

54  Jean Paul Jacqué to president Herzog and the technique of insertion owes much to vice-president Braibant who had made it one of his priorities. Equally, the absence of any reference in the preamble to the religious roots of the EU is entirely due to Braibant, as is the refusal to mention the rights of persons belonging to minorities. Similarly, large parts of the text of the Treaty establishing a constitution were drafted by lawyers from the secretariat. The convention only concerned itself with the text of the first part. The second part contained the Charter and the third part was entirely drafted by the members of the secretariat. It may be said that this is just an adaptation of the text of the EC Treaty but the devil is in the detail and it is possible to innovate when making adaptations.

V. CONCLUSION

Lawyers are certainly not legislators but their intervention leads to shaping the political will in order to put it in a legal framework that is acceptable both from a legal standpoint as well as from the perspective of its application in practice. The role of lawyers may vary from a simple technical piece of work to the drafting of texts at their own initiative. However, lawyers must be wise enough to distinguish between technical expertise and political power. Whereas it is possible to exercise a degree of influence and sometimes even have a power of initiative, there is no question of lawyers substituting the political decision-makers or transferring responsibilities between them. The legal expertise of lawyers is at the disposal of the decision-makers who grant them the role that they deem preferable.

3 From the Margins of the European Legal Field: The Governments’ Agents and their Influence on the Development of European Union Law MARIE-PIERRE GRANGER

I. INTRODUCTION

I

N THE WAKE of the controversial rulings delivered by the European Court of Justice (ECJ) in the (in)famous Laval and Viking cases,1 Scharpf criticised in strong terms the influence of a ‘large community of specialists of European law [whose] interpretation . . . favours progressively greater integration and a more unified law’ and ‘this trend in legal discourse [which] tends to level national differences’.2 Who are the members of this Euro-law community? What power do they have to shape the substance of EU law? Could the ‘trend’ change? In order to address these questions, I adopt a sociological perspective inspired by Bourdieu’s notion of ‘field’ (ie a structured social space, defined in professional and disciplinary terms, within which agents compete for power). The positions of particular actors in the field, and therefore their influence, results from interactions between the formal and informal norms organising the field, agents’ socio-professional dispositions and habits (‘habitus’) and their resources (‘social’, ‘economic’, ‘cultural’ and ‘symbolic’ capitals’).3 The analysis is centred on assessing the position 1   Cases C-341/05 Laval un Partneri Ptd v Svenska Byggnadsarbetareförbundet et al [2007] ECR I-5751 and C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779. 2  Interview with F Scharpf, ‘The only solution is to refuse to comply with ECJ rulings’, Magazin Mitbestimmung English online July-August 2008, Hans Böckler Stiftung available at, http://www.boeckler. de/36195_36456.htm. For a similar view, see also R Munch, ‘Constructing a European Society by Jurisdiction’ (2008) 14 European Law Journal 2, 519, 533–36. 3   P Bourdieu, Outline of a Theory of Practice (Cambridge, Cambridge University Press, 1977); ‘The Force of Law: Towards a Sociology of the Juridical Field’ (1987) 38 Hasting Law Journal 305. For applications to the Euro-law field, see A Vauchez, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union’ (2008) 2 International Political Sociology 2, 128, and contributions in this volume.

56  Marie-Pierre Granger and influence of specific members of this Euro-law community, the ‘governmental’ Euro-lawyers (the ‘agents before the European Court’, in EU legal jargon). Based on an empirical study of these governmental Euro-lawyers,4 I analyse their dispositions and resources (including social ones), to assess their position in the European legal field, as well as in national politico-legal fields and understand better why they have had a limited influence on integration-through-law in Europe and why pluralist legal doctrines, have not (yet) received greater echo in the Court’s case law. The chapter proceeds as follows. I start by briefly exploring the potentials which a sociological account can offer to understanding case law development in the EU. I then describe and analyse the roles and functions of governmental lawyers in the coordination of EU litigation. I carry on with an assessment of their socioprofessional dispositions, before moving to evaluating their resources, including social capital. I conclude that governmental Euro-lawyers have, by and large, remained ‘at a distance’ from the core Euro-law community, which despite its heterogeneity and fragmentation, has been generally united behind integrative goals, if not by ‘political idealism’, because it served their socio-professional interests.5 Governments lawyers, except for a few, did not have the expertise, experience or connections which would enable them to ‘speak with authority’ in both Euro-law and national politico-legal communities, and were particularly handicapped by confidence and split-identity problems (‘friends’ or ‘foes’ of the Court?). However, given ongoing EU institutional, political and social transformations and evolution within the Euro-law community (expansion, diversification, fragmentation), governmental agents, who are developing their own network, may be moving closer to the centre of the Euro-law field, thus enabling them to provide more authoritative guidance on the interpretation and application of EU law, and assist in redefining the fundamental paradigms of EU law, which some in political, judicial or academic circles, call for.

II.  THE EURO-LAWYER, THE INVISIBLE HAND OF EUROPEAN CONSTRUCTION

European law,6 fleshed up by the ECJ, has for long been acknowledged as a driving force in the process of European integration and remains an essential feature of governance in the EU. This recognition of the centrality of law and judicial pro4   The empirical research was conducted intermittently between 1999 and 2011, with regular updates. It included direct or phone semi-structured interviews with a number of Member States’ agents, complemented by informal conversations with agents during their annual meetings (see later); questionnaires sent to all 27 Member State agents, to which almost all responded (except agents from Italy, Slovenia, Malta, Romania and Bulgaria); and email exchanges with responding agents on various aspects of their role or the domestic coordination of EU litigation. It gathered information on governmental lawyers’ biographies and activities, as well as on intra- and intergovernmental coordination mechanisms. 5   Vauchez, ‘The Force of a Weak Field’ (n 3). 6   In this chapter, I use EU law and European law alternatively, as referring to the law of the European Union, and that of the previous European (Economic) Community.

From the Margins: The Governments’ Agents  57 cesses in European construction and policy-making emanates not only from legal analyses,7 but also from political sciences studies. In line with legal approaches, variants of institutionalist approaches stress the implications that the specific features of legal and judicial institutions have for integration and governance in Europe.8 Neofunctionalist and intergovernmentalist studies, for their part, generally endorse more instrumental visions of the law, serving the interests of a range of non-legal actors, be they corporations, interest groups, supranational institutions or national institutional actors (ie courts and governments).9 These systemic or instrumentalist blindfolds placed on the study of EU legal integration and governance led to sociological factors remaining largely unexplored. Until a decade ago, beyond the anecdotic level, we knew little about the identities, resources and roles of European lawyers, the nature and degree of interactions amongst European legal elites and their role in European construction.10 The recent sociological turn in EU studies opens interesting paths for investigating these forgotten dimensions,11 and a new generation of scholars is offering alternative accounts of European integration, which reveal lawyers’ constitutive role in the EU politico-legal system.12 Revisiting EU judicial processes 7   Starting with the seminal works by M Cappelletti, M Seccombe and JHH Weiler (eds), Integration through Law – Europe and the American Federal Experience (Berlin and New York, Walter de Gruyter, 1985); E Stein, ‘The Making of a Constitution for Europe’ (1981) 75 American Journal of International Law 1; JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403. 8  eg K Armstrong and S Bulmer, The Governance of the Single European Market (Manchester, Manchester University Press, 1998); K Armstrong, ‘Legal Integration: Theorizing the Legal Dimension of European Integration’ (1998) 36 Journal of Common Market Studies 155; K Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001); A Stone-Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) and The Judicial Construction of Europe (Oxford, Oxford University Press, 2004); J Tallberg, ‘The Anatomy of Autonomy: An Institution Account of Variation in Supranational Influence’ (2000) 38 Journal of Common Market Studies 843; S Schmidt, ‘Who Cares about Nationality? The Path-dependent Case Law of the ECJ from Goods to Citizens’ (2012) 19 Journal of European Public Policy 1, 8; FW Scharpf, ‘The Asymmetry of European Integration, or why the EU Cannot be a “Social Market Economy”’(2010) 8 Socio-Economic Review 211. 9   See, particularly, W Mattli and A-M Slaughter, ‘Law and Politics in the European Union: A Reply to Garrett’ (1995) 49 International Organization 183; G Garrett, ‘The Politics of Legal Integration in the European Union’ (1995) 49 International Organization 171. On this point, see H Schepel, ‘Law, Lawyers and Legal Integration (2004) 17 EUSA Review 1. 10   But see Stein, ‘The Making of a Constitution in Europe’ (n 7); JHH Weiler, ‘A Quiet Revolution – The European Court of Justice and Its Interlocutors’ (1994) 26 Comparative Political Studies 510, H Schepel and R Wesselink, ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 2, 165, H Schepel and E Blankenburg, ‘Mobilizing the European Court of Justice’ in G De Búrca and JHH Weiler (eds), The European Court of Justice (Oxford, Oxford University Press, 2001) 9; SJ Kenney, ‘Beyond Principals and Agents: Seeing Courts as Organizations by Comparing Référendaires at the European Court of Justice and Law Clerks at the U.S. Supreme Court’ (2000) 33 Comparative Political Studies 5, 593–625. 11   A Favell and V Guiraudon (eds), Sociology of the European Union (London, Palgrave Macmillan, 2011). 12   See Vauchez (n 3); ‘How to Become a Transnational Elite: Lawyers’ Politics at the Genesis of the European Communities (1950–1970)’ in H Petersen, AL Kjaer, H Krunke and MR Madsen (eds), Paradoxes of European Legal Integration (2008) 129; ‘Lawyers as Europe’s Middlemen. A Sociology of Litigants Before the European Court of Justice (1952–1978)’ in M Mangenot and J Rowell (eds), What Europe Constructs (Manchester, Manchester University Press, 2010) and ‘The Making of the European Union’s Constitutional Foundations: The Brokering Role of Legal Entrepreneurs and Networks’ in

58  Marie-Pierre Granger through sociological lenses allows us to identify different dynamics in the making of European law and European integration. I have argued elsewhere how EU case law results from a complex decision-making process, involving various actors who, acting both within and outside the courtroom, reproduce but also transform institutional and organisational structures, including the legal and judicial frameworks themselves.13 The starting point is thus that law, and even more so European law, is incomplete and indeterminate;14 it needs fleshing up and its meaning must be continually, and collectively, constructed, in part through judicial decisions. As stressed by Bourdieu himself, ‘the interpretation of the law is never the solitary act of a judge’ but ‘the product of a symbolic struggle between professionals possessing unequal technical skills and social influence’.15 A group of Euro-lawyers, consisting of a mix of practitioners, academics, politicians and senior civil servants, endowed with specific dispositions and resources, has exercised a determinant influence on the past and current evolution of EU law.16 These members have occupied a central position within the European legal community and national politico-legal fields, which has enabled them to speak convincingly to, and within, the Court, as well as to broader constituencies. In that way, they contributed not only to case law development, but also to its diffusion and acceptance.17 Within the EU litigation sub-community, lawyers in the Commission’s Legal Service have been credited with a particularly strong influence.18 The Commission is the European ‘Repeat-Player’19 par excellence; it can, and does, submit arguments in all cases brought to the Court, to (re)present the EU’s interest. It is worth W Kaiser and B Leucht (eds), Transnational Networks in Regional Integration. Governing Europe 1945– 83 (Basingstoke, Palgrave Macmillan, 2010); A Cohen and A Vauchez, ‘Introduction. Law, Lawyers, and Transnational Politics in the Production of Europe’ (2007) 32 Law and Social Inquiry 75, ‘Les juristes et l’ordre politique européen’ (2005) 26 Critique internationale 97 and ‘Sociologie politique de l’Europe du droit’ (2010) 2 Revue française de science politique 223; H Schepel ‘The European Brotherhood of Lawyers: The Reinvention of Legal Science in European Private Law’ (2007) 32 Law and Social Inquiry 1, 183; A Jettinghoff and H Schepel (eds), In Lawyers’ Circles. Lawyers and European Legal Integration (The Hague, Elsevier Reed, 2005) 15–34; K Alter, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–1975)’ in K Alter, The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009) 63; P Mbongo and A Vauchez (eds), Dans la Fabrique du Droit Européen: scène, acteurs et public de la Cour de Justice des Communautés Européennes (Brussels, Bruylant, 2009); N Burrows and R Greaves, The Advocate General and EC Law (Oxford, Oxford University Press, 2007); K McAuliffe, ‘Enlargement at the European Court of Justice: Law, Language, and Translation’ (2008) 14 European Law Journal 6, 806–18. 13  M-P Granger, The Influence of Member States’ Governments on Community Case Law – A Structurationist Perspective on the Influence of EU Governments in and on the Decision-Making Process of the European Court of Justice (2001) PhD thesis, University of Exeter. 14   The largely consensual modes of primary and secondary law-making in the EU result in relatively open-textured legal frameworks. 15   Bourdieu, ‘The Force of Law’ (n 3) 827. 16   See works cited in nn11 and 13. 17   Vauchez, ‘Lawyers as Europe’s Middlemen’ (n 12). 18   Stein (n 7). 19   ie actors which have the financial, policy and institutional capacity of engaging in long-term litigation, and therefore have the ability to impact on legal change; see the seminal article by M Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society 1, 95.

From the Margins: The Governments’ Agents  59 noting that, like the Commission, Member States have ‘privileged’ status in proceedings before the EU courts. They can bring direct actions before EU courts (annulment and infringement procedures) without standing restrictions;20 they can submit observations in all preliminary ruling proceedings;21 and they can intervene in all direct actions (infringement, annulment and damages) brought before the Court.22 Despite this a priori favourable position, governments’ influence on EU case law development has remained limited. According to all quantitative surveys, the Court ‘follows’ the Commission in a majority of cases, whilst the ‘success’ rates of governments are much less conclusive.23 Why is this so? Various explanations have been put forward, ranging from the concordance of the Court’s and the Commission’s visions of Europe,24 the integrationist bias of free movement, EU citizenship and competition rules,25 the stickiness of precedent,26 integrationist pressure imposed by self-interested actors,27 the lack of mobilisation of governments,28 their inability to ‘undo’ unwanted judicial interpretation through Treaty or legislative revision, and so on. Yet, none offers a fully convincing account of case law development;29 this is where a glance at the socio-professional characteristics of the EU legal community, and in particular that of the sub-group involved in EU litigation, brings alternative insights.

III.  THE LEGAL AGENTS: MYSTERIOUS ‘IN-BETWEENS’

In accordance with the terminology used in the Court’s Statute, the lawyers representing governments before the Court call themselves – and each other – ‘the   Arts 263(2) TFEU, 259 TFEU.   The procedure whereby national courts may, or must, refer questions regarding the interpretation or validity of EU law to the European Court of Justice. 22   Art 40 of the Statute of the Court of Justice of the European Union OJ, OJ L 83/210. 23   Large-scale quantitative statistical analyses aiming at establishing whether the Court deferred to governments’ preferences, for fear of non-compliance or overruling, led to mixed results. Eg R Cichowski, The European Court and Civil Society – Litigation, Mobilization and Governance (Cambridge, Cambridge University Press, 2007); CJ Carruba, M Gabel and C Hankla, ‘Judicial Behaviour under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 4, 435. For critical appraisals of such quantitative studies, see L Conant, ‘Review Article: The Politics of Legal Integration’ (2007) 45 Journal of Common Market Studies; A Stone Sweet and T Brunell, ‘The European Court of Justice, State Non-Compliance, and the Politics of Override’ (2012) 106 American Political Science Review 1. 24   But see R Dehousse and A Thompson, ‘Intergovernmentalists in the Commission: Foxes in the Henhouse’ (2012) 34 Journal of European Integration 2, 113; M-P Granger ‘The Future of Europe: Judicial Interference and Preferences (2005) 3 Comparative European Politics 155–79; M Malecki, ‘Do ECJ Judges all Speak with the Same Voice? Evidence of Divergent Preferences from Judgments of Chambers’ (2012) 19 Journal of European Public Policy, 59; I Solanke, ‘ « Stop the ECH » ?: An Empirical Analysis of Activism at the Court’ (2011) 17 European Law Journal 6, 764. 25   Scharpf, ‘The Asymmetry of European Integration’ (n 8). 26   S Greer, ‘Choosing Paths in European Union Health Service Policy: A Political Analysis of a Critical Juncture’ (2008) 18 Journal of European Public Policy 219. 27   Mattli and Slaughter, ‘Law and Politics in the European Union’ (n 9). 28   M-P Granger, ‘When Governments go to Luxembourg . . .: the Influence of Governments on the European Court of Justice’ (2004) 29 European Law Review 1. 29   Space precludes further exploration of the limits of these explanations. 20 21

60  Marie-Pierre Granger agents’. Their numbers vary significantly from one state to another.30 At national administrative level, these agents work for an EU law or litigation unit, which bears a different label in each Member State.31 More important than the name is the location of this service. It may fall under various ministerial umbrellas, from the classic Foreign Affairs Ministry (in most old Member States), to the Justice Ministry (in many new Member States), the Finance Ministry (in Germany), the Federal Chancellery (in Austria), the government’s in-house legal department (ie the Treasury Solicitors’ Office in the United-Kingdom, the Attorney General’s Office in Ireland, the State Attorney Office in Slovenia, the Law Office in Cyprus), etc.32 This ministerial location has no systematic impact on the agents’ profile or functions; however, as shown below, it may indirectly affect their identity, status, authority and autonomy. The agents have two main functions. The most evident is to assist in the preparation and delivery of governments’ written and oral submissions to the Court (the legal function). The lesser known – although no less significant – role consists in the coordination of the national position on government’s participation in proceedings before the ECJ (the political function).33 Let us start with exploring first this second aspect of their job. Agents are at the heart of the intra-governmental decision-making process leading to participation in EU litigation; yet, their influence depends largely on organisational structures (although personalities and individual skills and connections also matter). The decision-making procedure on the opportunity and general content of governmental submissions to the ECJ varies from one state to another. Most EU litigation units receive notification of cases brought before the Court. They dispatch this information, together with summaries, and sometimes brief impact assessments and suggestions, to the ministerial departments most concerned by the issues raised in the case, and ask them to state their positions.34 Agents in the EU litigation units then coordinate the views of the various implicated departments, to reach a consensus; in case of disagreement, they assist in

30   In some Member States, there is only one ‘official’ agent (eg the Czech Republic, Slovakia), but they are assisted by a number of ‘shadow collaborators’ (whose names nonetheless never appear in the Court’s reports). In most Member States however, a number of ‘agents’ regularly act and appear on behalf of their government before the Court. 31   From the very specific and focused ‘Office of the Head Council of the Slovak Republic before the Courts of the European Union’ in Slovakia, ‘Unit for the Court of Justice Affairs’ in Hungary, the ‘ECJ Department’ in Latvia, EC/EU Litigation Unit/Division/Section in Austria, Finland, Germany, United Kingdom and Estonia, to the more general ‘EU Law Directorate/Division/Department’ in Belgium, the Netherlands, Denmark, the Czech Republic, Poland, Cyprus and Lithuania, and even more general ‘Sub-Directorate for International Economic Law and Community Law’ in France, ‘Directorate for international economic relations’ in Luxembourg, ‘Special Legal Department’ in Greece, ‘Legal Service’ in Portugal, ‘State and European litigation section’ in Ireland, ‘General Secretariat of State Advocacy’ in Spain, or simply ‘Legal Secretariat’ in Sweden. 32   See M-P Granger, ‘When Governments go to Luxembourg’ (n 28). 33   Except in France, see below in this section, paragraph corresponding to fn 37. 34   This must take place within a short time frame (usually less than a month, since the deadline for submitting observations expires two months after notification).

From the Margins: The Governments’ Agents  61 reconciling opposing views.35 If they do not succeed, the matter may be taken up to the highest political level, ie the Cabinet, Prime Minister or President. The leverage of agents in pushing for and obtaining a consensus around a particular position varies very much from one state to another. In some, like in Austria, Cyprus, the Netherlands, or Finland, agents have a strong say on the opportunity and overall substance of submissions, and they seem successful in gathering support for their own preferred position. In other states, in particular those where the final decision-making is left to the line-ministries (eg Portugal or Belgium), multi-leveled (eg Germany) or largely influenced by political considerations (eg Greece), the agents’ input in the final decision appears far more limited, their role merely consisting in gathering and transforming the different views in legally sound arguments. Not all agents are tasked with such coordinating functions however. In France, for example, the coordination of EU litigation is assumed by a separate entity, the prestigious and well-resourced Secrétariat Général aux Affaires Européennes (SGAE), a 200-strong centralised interministerial body, placed under the authority of the Prime Minister, which coordinates the French position on EU affairs and produces instructions, which are then sent to those representing France in Brussels or Luxembourg.36 Although the SGAE is a political organ, lawyers have the upper hand in its Legal Section, which organises the coordination of EU litigation. It is headed by a high-ranking legal adviser (Conseiller Juridique), detached from the French Supreme Administrative Court (Conseil d’Etat). The current holder of the post gained extensive litigation experience within the French administrative law system, before acquiring insider EU expertise as a Commission lawyer (as detached national expert). He is supported by a group of assistants (A-grade legally trained civil servants, specialised in specific areas of EU law) and secretaries. The definition of the French position in EU litigation is achieved through regular interministerial SGAE meetings (a dozen per month), in which the head of the Legal Section and one of his assistants, after having notified the relevant ministries of forthcoming ECJ cases and highlighted the issues at stake, gather representatives from the ministries concerned in order to reach an agreement on the opportunity and substance of the French observations or interventions. The ministries are traditionally represented by their legal and technical experts on the subject matter(s) raised by the case. The agent(s) who are in charge of preparing and presenting the legal submissions to the Court, the civil servants of the ‘Sub-Directorate for EU law’, in the Legal Affairs Directorate of the Quai d’Orsay (Foreign Affairs Ministry), nonetheless play a strong part in that process.

35   eg, in the United Kingdom, often cited as a model in terms of effective governmental litigation, the European Division of the Treasury Solicitor’s Office works closely with the European and Global Issues Secretariat of the Cabinet Office, to reconcile the potentially diverging views of the ministerial departments involved. 36   For further information, see the SGAE website, www.sgae.gouv.fr/gcp/pages/site/sgae-internet-sgae/ lang/fr/SGAE.

62  Marie-Pierre Granger They participate actively in these SGAE meetings, providing important legal advice and strategic input.37 Not all agents have such leverage in the definition of the national EU litigation policy however. In some countries, the decision to make submissions, even in the most ‘trivial’ cases, must be systematically reviewed and endorsed at the highest political level (ie the relevant minister, or even Prime Minister). This was the case notably in some of the new Member States. In addition to a very politicised decision-making process, in which domestic sectoral considerations could weigh significantly, it created difficulties for complying with the strict two-month deadline for the submission of observations to the Court and may well have affected the quality of submissions. Once the decision to submit observations or intervene is made, agents normally cooperate closely with ministerial lawyers (as well as technical experts), for the drafting of written submissions and the preparation of oral pleadings. In most countries, agents are responsible for writing the legal briefs, whilst benefiting from the sectoral or technical input from ministries’ lawyers and experts. The more familiarity agents have with EU litigation practice, the more likely they are to be able to draft observations in a way which ‘speaks’ to the Court. In a few countries nonetheless, the line-ministries’ civil servants write the draft, whilst agents only provide assistance and advice (eg Portugal, Belgium). In such a system, the limited exposure of the ministries’ lawyers with the EU litigation would inevitably undermine their ability to argue effectively before the Court. In the United Kingdom and Ireland, the representation of the state in litigation before the EU courts is organised very differently. The government in-house legal department – the Treasury Solicitor’s Office (TSol) – coordinates the internal position on the desirability and content of participation of the British government in EU judicial proceedings. It then hands over detailed instructions to external counsels. These ‘mercenaries’, barristers specialised in EU law, often drawn from the ranks of Queen’s Counsels (QC), work together with solicitors. This organisational feature is important, as it enables the UK government to enlist the service, experience and authority of prominent members of the EU law community. The flip side of this arrangement is that these ‘hired guns’, being no government insiders, may miss the familiarity with the national policy or institutional contexts which they are supposed to protect. Moreover, they also know no (or little) loyalty, as their clientele alternate between various governmental services, corporations, interest groups and individuals. This flexibility is however a characteristic of the (European) legal field, and in that sense is unlikely to affect negatively the credibility or authority of agents, at least within the legal community.38 37   eg, French agents try (and often succeed) to convince ministerial representatives that some of the positions or arguments envisaged by the ministries are not ‘defendable’ before the Court, and would damage the country’s long-term reputation. 38   Vauchez (n 3).

From the Margins: The Governments’ Agents  63 In all Member States, the final submissions are reviewed and endorsed by the ministries or relevant political coordination bodies, although the thoroughness and extent of this political scrutiny vary depending on the Member States, the political sensitivity of the case, and the degree of seniority and trust which the agents enjoy within the domestic polity. To sum up, even though decisions on the opportunity and substance of observations are usually made jointly between the governmental EU litigation services and the relevant ministries, either within pre-established interministerial coordin­ ation structures, or on a more ad hoc basis by the EU litigation service, lawyers, whether the Euro-lawyers of the EU litigation unit, or the ‘sectoral’ lawyers of the ministerial departments, play a fundamental role in the definition of national positions in EU litigation. However, these lawyers’ interactions with other actors in various horizontal and vertical political decision-making processes affect their views of European law, their familiarity with the EU litigation scene, and their authority within domestic and EU politico-legal settings.

IV.  GOVERNMENTS’ AGENTS: ON THE EDGE OF THE EURO-LAW FIELD

Vauchez’s study of the early years of European litigation reveals that gov­ernments’ agents of the original six Member States constituted one of the few separ­ate legal groups of lawyers which, alongside the Commission’s staff and academics, populated an already fragmented European legal field.39 These national jurisconsults put forward ‘nationalistic’ argumentative standpoints, contrasting with the federalist views defended by the others.40 Like for any Euro-lawyers, agents’ ‘characteristics, socialization, and models of actions are structured and defined [largely] outside the [European legal] field’,41 in national contexts. However, for some agents, their European identities, roles and social connections are at least equally significant as their national ones. In that sense, they have socio-­ professional paths and visions which are similar to those of other Euro-law community members. Some of the governmental agents, or hired lawyers, are active members of the expanding and diversifying community of Euro-lawyers, which includes ECJ and national court judges and staffs,42 corporate and public interest EU lawyers, the staff of the legal services of the EU institutions, and some EU law academics directly or indirectly involved in EU litigation through legal advice or academic commentaries. Certainly, the relatively ‘occasional’ nature of EU litigation and the lack of intense direct regular contacts between the participants in proceedings before the EU courts does limit ‘socialisation’ opportunities around EU litigation, unlike what happens in some of the Council’s working groups,   Vauchez, ‘Lawyers as Europe’s Middlemen’ (n 12).   A Donner, The Role of the Lawyer in the European Community (Chicago, Northwestern University Press 1968) 6. 41   Vauchez (n 3) 137. 42   See M de Visser and M Claes ‘Courts’ United? On European Judicial Networks’ in this volume. 39 40

64  Marie-Pierre Granger for example.43 However, there are also factors which bring these Euro-lawyers, including governmental ones, together. First, many national agents, in particular the younger generation, are by and large drawn from a common pool of Euro-trained lawyers. Second, their careers are increasingly characterised by a combination of positions held in Brussels as well as in national capitals. Third, in addition to occasional or more regular encounters on the Plateau du Kirchberg (the location of the Court in Luxembourg), they also meet and interact in other fora, such as academic or practitioners’ conferences, meetings, working groups, lectures, visits, etc. Finally, agents engage in more frequent bilateral/multilateral communication and coordination. All these facilitate the emergence of a Euro-litigation community, of which governmental Euro-lawyers are an integral part. Like all members of the Euro-law community, national agents all have fundamental training in their national legal education systems. In this sense, they are ‘trained as lawyers’, although not necessarily qualified as legal practitioners, as they may have followed diplomatic or administrative paths alternative to the traditional Bar or Magistracy ones. This legal training began within the national educational structures, but in many cases, has been substantially supplemented by an international or European dimension at graduate level. A perusal through the CVs of the heads of the EU litigation services and interviews with agents reveal that most of them have postgraduate diplomas in law, often obtained in a Member State other than the ones in which their undergraduate education was obtained (mostly in the United Kingdom, the United States, France or Germany), in higher education institutions which offered a special focus on European (Legal) Studies. Moreover, many, in particular amongst the younger generation, have attended the same European formations provided by the College of Europe in Bruges, the European University Institute in Fiesole or the European Institute of Public Administration in Maastricht. Furthermore, many have acquired EU insider experience through a more or less substantial passage through an EU institution, typically the Commission, or even the Court itself (as trainees, legal clerks, detached national experts, etc). To cite but a few examples, the current head of the French EU litigation service and the previous head of the Finnish litigation unit had worked as référendaires at the ECJ before joining their respective governments’ litigation service. The French agent also worked for a few years for the Commission as detached national expert. Amongst the barristers that regularly represent the United Kingdom before the ECJ, we also find a number of former legal assistants to EU Court members (R Plender QC, E Sharpston QC, M Demetriou), Commissioner’s advisers (D Anderson QC) and members of EU institutions’ legal services (A Dashwood). Some of the agents or barristers that actively represented governments in EU litigation may also join the Court (E Sharpston). This Europeanised legal education and practice increases the 43   M Egeberg, ‘Transcending Intergovernmentalism? Identity and Role Perceptions of National Officials in EU Decision-making’ (1999) 6 Journal of European Public Policy 3, 456.

From the Margins: The Governments’ Agents  65 socialisation potentials between these agents, and between them and the other members of the Euro-law community, as they share the same training grounds and ways of thinking about the EU and its law. Many agents also share with their Euro-law fellows judicial experience. Some of the agents, in particular in the Scandinavian Member States, come from the ranks of the national judges. For example, the former head of the Finnish EU litigation service not only worked as a legal assistant in the Finnish Supreme Court and acted as a first instance judge prior to leading the EU litigation service, but went on to become a judge on the Finnish Supreme Administrative Court. The former head of the Swedish EU litigation service also served in the national judiciary, before acting on behalf of the government before the ECJ. Richard Plender QC, who often represented the UK government before the ECJ, also officiated as a judge of the Employment Appeal Tribunal. Some of the lawyers representing governments come from, and are well connected, to the world of corporate Eurolawyers. This is the case of barristers hired by the British governments, who alternate between the defence of public and private interests. Private lawyers are also called upon to help some national governments, such as the German or the Belgian governments, when they fall short of staff and expertise. A number of agents also connect with the rest of the Euro-law community through academic activities. Some of the heads of national EU litigation agencies, as well as some of their collaborators, are academically active, participating in academic conferences, lecturing academic audiences and publishing in academic journals. The junior members often pursue doctoral studies in EU law in parallel to, or after, their work in the service. In this respect, the lawyers working for the UK government come out strongly. For example, many British barristers teach in prestigious European and US universities and publish extensively in well-known peer-reviewed European law academic journals, for which they also act as editors. They have authored classic reference books on EU law or EU litigation, and thus enjoy an undeniable authority in the Euro-law community.44 The academic activities of other Member States’ agents, as well as their integration in the national and European academic circuits, are more difficult to identify and evaluate. Based on interviews and other sources, it seems that at least a minority of them is academically active, and enjoy some kind of a reputation within the EU law field. These, incidentally, also tend to work for governments who are the most active (and allegedly successful) in ECJ proceedings. Paradoxically, whilst language could have fragmenting effects, for the EU law community, on the contrary, it is a factor of cohesion. Most of the agents, and those who regularly litigate in Luxembourg, tend to be trilingual, and the lingua franca, within the agent community, is (still) French, the working language of the Court, since mastery of this language is generally considered a ‘must’ in the job’s description (even if English is also increasingly used in informal settings). 44   eg A Anderson, References to the European Court of Justice (1995; 2nd edn with M Demetriou, London, Sweet & Maxwell, 2002); R Plender, European Courts Practice and Precedent (London, Sweet & Maxwell, 1996); D Wyatt and A Dashwood, EU Law, 5th edn (London, Sweet & Maxwell, 2006).

66  Marie-Pierre Granger To conclude, governmental agents share with the rest of the EU law community common features; however, few have the dispositions necessary to occupy a central position within the Euro-law field.

V.  AGENTS’ RESOURCES

In order to influence the judicial interpretation and application of EU law, members of the Euro-law community, including agents, must be endowed with a number of organisational, cultural and symbolic resources (or ‘capital’, to use Bourdieu’s terminology).45 First, agents who enjoy higher status and recognition and are well integrated within their own governmental organisation (France, Netherlands, UK, Finland, etc) are in a stronger position to coordinate EU litigation policy effectively, argue the government’s case properly and assist in implementing judicial decisions. In contrast, agents who are isolated within their own administration (not uncommon in many of the new Member States, but also in older Member States such as Belgium, Luxembourg or Portugal) are less able to argue forcefully in the defence of their government’s interests. In this regard, the location of the EU litigation service and the quality and efficiency of the intra-governmental coordination mechanisms are of prime importance. Many envy the agents of the Austrian Legal Department for European Integration, placed directly under the Federal Chancellery, and endowed with strong political support. The Finnish EU Litigation Unit, like the Dutch EU Law Division in the Foreign Affairs Ministry, is also at the heart of strong coordination mechanisms, which grants them solid political mandates and authority. In the French system, the agent and his assistants, active participants in the interministerial coordination meetings organised by the SGAE, have full governmental backup at the highest level. In contrast, where agents are subordinated to a sectoral ministry, like the Justice Ministry, where interest for EU affairs is limited, agents tend to be marginalised within their own administration, and cut off from vital horizontal links with other ministerial units involved in EU litigation. Moreover, where the line-ministry makes the decision on submissions (eg Belgium, Spain, Portugal, Ireland, Latvia, Poland and to a lesser extent Germany and Sweden) and coordinates the national position, the agent’s political support is much more narrow. This sectoral, rather than governmental, mandate usually coupled with strict instructions, which are difficult to depart from, limit the autonomy and authority

45   On the importance of EU coordination in general to influence EU policy-making, see H Kassim, GB Peters, and V Wright, The National Coordination of EU policy – the Domestic Level (Oxford, Oxford University Press, 2000). As to the significance of the legal skills, see TR Johnson, PJ Wahlbeck and JF Spriggs, ‘The Influence of Oral Arguments on the U.S. Supreme Court’ (2006) 100 American Political Sciences Review 99; SL Haynie and KL Sill, ‘Experienced Advocates and Litigation Outcomes: Repeat-Players in the South African Supreme Court’ (2007) 60 Political Research Quarterly 443; KT McGuire,‘Repeat-Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success’ (1995) 57 The Journal of Politics 187.

From the Margins: The Governments’ Agents  67 of the agents within their own government. It also impacts on their credibility within the EU legal community. Lawyers consider that (only) good arguments can influence the Court.46 Political scientists tend to portray such beliefs as naïve, advancing that legal arguments are merely a façade for socio-economic or political pressures. Yet, in the absence of compelling evidence to the contrary, one can assume that EU legal knowledge, skills and experience do affect, at least to some extent, EU judicial outcomes, and are thus essential ‘cultural’ capital. At the very least, given the increasing caseload piling on the desks of the ECJ members and staff, a readymade and ready-to-use convincing argument in support of a particular inter­ pretation or application of EU law, made by a well-known EU law expert, can be more easily endorsed and adopted by the ECJ judges than a position whose legal justifications are shaky and require a total (re)working-out. The EU litigation agencies of Member States’ governments do struggle to mobilise adequate human resources, that is to recruit, train and retain good EU lawyers, let alone the stars of the EU legal community, who rarely hesitate to embark onto what are perceived as more prestigious and lucrative careers in the EU institutions (the Commission or the Court) or the corporate law firms world. In fact, recruitment is a topic which is regularly discussed by agents at their annual meeting.47 How can governments recruit the ‘best’ European lawyers in the country, endowed with strong legal, analytical, drafting and oral skills, extensive EU law knowledge, experience of EU institutions and litigation, language proficiency and a degree of political flair, whilst being able to offer them only a fraction of the wages which they would command in the private sector or EU institutions. The prestige attached to working for the public service, the government or the foreign affairs ministry may be attractive for talented young lawyers, in particular if combined with job security, or interesting career perspectives in various governmental or international bodies. Such considerations seemed sufficient to attract promising young lawyers to the job in many countries (eg France, Finland, Sweden, Netherlands, the Czech Republic, etc). However, the ‘turn-over’ in EU litigation units remains high, with staff rarely staying more than a few years. Units employ various staffing strategies to guarantee the required legal expertise, and if possible, connections. In France, about a third of the legal staff of the EU litigation service in the Quai d’Orsay is ‘borrowed’ from the Conseil d’Etat. These agents graduated from the highly prestigious and selective Sciences Po (interdisciplinary university institute) and Ecole Nationale d’Administration (ENA), which draws the best of the ‘publicservice oriented’ students; both institutions offer solid legal training in both domestic, European and international law, as well as an in-depth understanding of political and administrative contexts. Another third are legally trained career diplomats, who went through the tough entrance exam for the diplomatic service. 46  J Collins, ‘Representation of a Member State before the Court of Justice of the European Communities: practice in the United Kingdom’ (2002) 27 European Law Review 3, 359. 47   On this meeting, see below, section VI.

68  Marie-Pierre Granger Finally, the last third are hired on a contractual basis. In Finland or Sweden, countries in which legal communities are relatively small owing to the country size, the most promising young judges with EU training and language skills are approached or targeted by the heads of EU litigation services. They usually do a few years at the service, before moving on to a promising national judicial career. In the United Kingdom, legal skills are pragmatically secured through the expensive hiring, in particular for important cases, of some of the EU legal community ‘stars’. Many expected the new Member States of the 2004 and 2007 enlargements to struggle to recruit good EU lawyers, considering the European ‘brain-drain’ which diverted to Brussels and to Luxembourg the best young lawyers from these countries. However, according to many testimonies, most new Member States’ agents are solid EU lawyers (their main handicap being too often that they are not ‘recognised’ by their own governments as important assets). There are, however, a number of Member States, including a few old Member States, which have not managed – or perhaps even tried – to secure the necessary human resources. This was the case of Luxembourg (at least until the recent appointment of a new head),48 as well as to some extent Portugal, which notoriously suffers from a lack of qualified human resources. One may also wonder whether all the agents (more than 20) intervening rather frequently on behalf of the Greek government are all familiar enough with EU legal practice. Indeed, whilst a well-staffed EU litigation unit is important, it is also essential that the agents intervening before the Court are able to concentrate on the coordination and preparation of EU litigation, and should not be too distracted by other tasks. Exposure to and experience with EU litigation are likely to be important factors of persuasiveness before the Court, not only because they contribute to improving the special skills and knowledge required for this special type of litigation, but also because one gradually becomes at least a ‘regular’ in the European legal community, if not a full member of the ‘club’.

VI.  AGENTS’ NETWORKING: BUILDING UP SOCIAL CAPITAL

In addition to individual knowledge, skills and experience, the influence of governments’ agents also flows from their social capital, which determines their position and authority in the European legal field. This social capital may be developed individually, but also collectively. Interestingly, the last two decades have witnessed the gradual formation of a ‘network’ of national agents. The first factor contributing to the development of closer relationships between agents is their more frequent encounters in the corridors and pleading room of the European Courts in Luxembourg. Indeed, over the last decade, governmental presence in Luxembourg has dramatically increased, as a result of both the expansion of EU litigation, and increased governmental mobilisation.49 48   In fact, the Court has occasionally highlighted the poor quality of Luxembourg’s defence (eg C-319/06 Commission v Luxembourg [2008] ECR I-4323). 49   Granger (n 28).

From the Margins: The Governments’ Agents  69 The second factor is the growing need for coordinated litigation. In the past, each national EU litigation unit dealt with EU litigation in an autonomous manner, without caring much for the positions, strategies and arguments submitted by other intervening parties, including other governments. This was not considered problematic, as governments could write lengthy ‘mémoires’. However, with the increasing workload of the Court and its instructions to limit the lengths of submissions, governments’ agents have now less scope for detailed argumentation.50 This need is even more acute in the context of the oral hearing, where the speaking time allowed to each participant is 20–30 minutes, the Court encouraging as short pleadings as possible. This temporal restriction seriously limits the range of arguments which can be fully developed directly before the judges by each agent. These characteristics and the evolution of the EU judicial process renders cooperation between governments increasingly necessary. Coordination is achieved through increased pre-litigation contact between agents, which was largely facilitated by the advent of communication technologies. Once the decision to submit observations has been made, usually based on domestic considerations, because of time constraints and policy concerns, governments’ agents start to cooperate actively with their foreign counterparts for the preparation of the submissions and oral hearing. Moreover, in cases which are likely to affect the economic interests, policies or political and legal traditions of more than one Member State (ie the majority of cases, in particular preliminary references), the agents may contact their ‘colleagues’ in states which share similar features, asking them if they would join in support, and exchanging information or even legal briefs. This takes place via phone calls, fax or emails. Sometimes, in important cases, such as the ‘Open Skies’51 or the Laval litigation, the ‘lead’ states may even organise meetings to present their positions, and coordinate litigation strategies. Cooperation then intensifies before the oral hearing, and last minute coordination takes place in Luxembourg, when the Court gathers the parties’ representatives in the ‘backroom’, to inform them of the sequence of presentations, and instructs them to coordinate their pleadings to avoid repetitions. Agents of the most active Member States readily admit that nowadays not a day passes without an email from a foreign colleague asking for cooperation or information on a case of common interest. This increased intergovernmental cooperation is more intensive in some policy areas, such as direct taxation, criminal matters, public services (eg health, immigration, etc), as Member States share a common interest in preventing the Court from encroaching upon autonomous competences which 50   Moreover, it is unclear how much these submissions are looked at by the Court’s members and staff. Most probably, at best, the Reporting Judge and the Advocate General (or their legal assistants) assigned to the case would engage in a detailed reading of written submissions (and some acknowledge the assistance they found in such briefs). 51  C-466/98 Commission v the United Kingdom [2002] ECR I-9427; C-467/98 Commission v Denmark [2002] ECR I-9519; C-468/9 Commission v Sweden [2002] ECR I-9575; C-469/98 Commission v Finland [2002] ECR I-9627; C-471/98 Commission v Belgium [2002] ECR I-9681; C-472/98 Commission v Luxembourg [2002] ECRI-9741; C-475/98 Commission v Austria [2002] ECR I-9797 and C-476/98 Commission v Germany [2002] ECR I-9855.

70  Marie-Pierre Granger they have sought to protect during Treaty negotiations, and are eager to intervene in these cases to present a united front to the Court. The pre-hearing interactions between agents facilitate the development of collective argumentative strategies between governments, guaranteeing that every important argument is exposed in full, and that each agent builds effectively on the arguments presented by the other proponents and contribute to socialising these agents. The growing awareness of the role of the ECJ in European integration and EU governance, of difficulties in overturning adverse judgments,52 and of the possibility to influence judicial outcomes by effective use of strategic litigation,53 has also incited governments to share their experience, and learn from each other. Many of the new Member States, prior to accession, commissioned studies, and contacted and invited national agents of old Member States, to obtain information on how states prepared for EU litigation strategies (often under EU-funded schemes). This also occurred in older Member States, usually in the wake of a ‘catastrophic’ ruling.54 These cooperation, experience-sharing, and peer-learning have eventually been ‘institutionalised’ in the form of a semi-formal network. In the mid-1990s, when in the wake of a disastrous ruling the Dutch government decided to shake up its deficient internal coordination procedure, it commissioned a comparative study of national arrangements for the preparation of observations before the ECJ, for which agents of all EU litigation services in the Member States were contacted, and to which they contributed. From this initiative emerged the idea, championed by the new dynamic head of the Dutch European Law Division,55 that national agents should meet regularly to share their experiences, and discuss common challenges, not only organisational ones, but also regarding certain case law developments (eg state liability, Vienna, 2006). For 10 years now, national agents have been meeting once a year, usually for two days, in the capital of the country holding the EU Council Presidency, for intensive ‘closed’ workshops, where they discuss in confidential settings common problems and concerns, sometimes combined with more open sessions on EU case law developments to which political actors and academics are also convened. The agents’ increasingly frequent meetings on the Plateau du Kirchberg in Luxembourg, their more intensive communications, and their annual gathering contributes to forging a real network of agents.56 They now all know each other, do not hesitate to contact and consult each other, and have some kind of ‘group identity’. Yet, they still by and large operate on the edges of the European legal field.

  Scharpf (n 8).   Granger (n 28). 54   eg the Netherlands in the mid-1990s, Sweden following the Laval/Viking rulings, the French ‘undersize fish net’ case, etc. 55   Recruited from the private sector, she combined solid EU litigation practice with academic work. 56   Only the Italian government does not participate in the meetings, and rarely cooperates with others. 52 53

From the Margins: The Governments’ Agents  71

VII.  THE AGENTS: TROJAN HORSES OR ‘TRUE’ EURO-LAWYERS

Apart from a few exceptions, governmental lawyers remain on the periphery of the EU legal field, and this is for a number of reasons. First, many of them have not (yet) acquired EU law expertise, experience, seniority and connections with the core members of the Euro-law community which would make them authoritative figures in the field (‘symbolic’ capital). And those who have built this capital normally move on to positions which are seen as more prestigious in the field (members of the EU courts, national high courts, etc). Second, agents suffer from a ‘split-personality’ problem, which sets them apart from both the domestic political and the EU legal crowds. Agents indeed oscillate between their conflicting domestic and EU allegiances, a confusion which generates various frustrations and undermines their ability to position themselves prominently in either field. The agents’ European identity may be the dominant one. In such case, they may feel embarrassed to defend in front of their European colleagues nationalistic views which they do not agree with; or they seek to domestically promote more integrationist interpretation, and they find themselves antagonised by their colleagues in national administrations, who see them as too Europeanised, and not caring enough about domestic interests.57 Alternatively, their main allegiance still lies in the domestic level, and they resent the lack of acknowledgement by the ECJ of what they view as legitimate and lawful arguments which seek to reserve a greater degree of autonomy to states. Third, too often, they feel they are not taken seriously, by their own administration (at least for some of them), and by the Court and its members. Many deplore the lack of consideration given by the Court to governments’ observations, as testified by the very rare references made to specific observations in the Court’s rulings.58

VIII.  CONCLUSIONS: CAPITALISING ON AGENTS’ CAPITAL?

Through this analysis of governmental agents, I have tried to develop an alternative account of the lack of governmental influence on the making of EU law by judicial fiat. It is based on the premise that EU law is (still) very much open-ended, and that the legal interpretations which are put forward by lawyers occupying central positions in the European legal field significantly contribute to shaping it. In previous works, I had already exposed how most governments, until the 1990s, had not taken EU litigation very seriously. Here, I have explored the connected argument that, although governments are now investing more organisational and human 57   Agents are important ‘domestic promoters’ of European Law, as they are often the ones who ensure the follow-up and implementation of ECJ rulings. 58   But see the satisfied comments by the current Czech agent, M Smolek, ‘The Court of Justice of the European Union, from timely prerequisite to better quality legislation’, 22 June 2011, Prague Leaders Magazin.

72  Marie-Pierre Granger resources in European litigation and are more mobilised in EU litigation, most are still not able to shape EU legal developments significantly through litigation, because their agents, although increasingly knowledgeable, experienced and skilful, are still too marginalised, within their own domestic administrative community, as well as within the EU litigation community. There are nonetheless exceptions (mostly agents from the UK, and to a lesser extent France, the Netherlands, or Finland, and in the new Member States, the Czech Republic and Poland). I also submit that contextual developments, both political and legal, are likely to affect the structures of the European legal field in a way which could provide new leverage to governmental lawyers. Political developments, such as the steady rise of Euroscepticism, in part fuelled by the still unresolved Euro-crisis or the ‘return’ of intergovernmentalism, give greater weight to considerations of national interests.59 The legal framework itself has been slowly adjusted to offer greater protection to Member States’ identities, and policy autonomy, as illustrated by the rise of proportionality balancing, the softening of the aim of closer union by subsidiarity requirements, the need to preserve national constitutional identity, the cataloguing of competences conferred to the EU, the rebalancing of economic and civic, political and social rights following the binding reference to the EU Charter of Fundamental Rights, etc.60 These push the normative centre of gravity away from ‘integrationist fundamentalism’ towards more pluralistic visions of European integration,61 which are more in tune with the views generally put forward by agents. Moreover, as the importance of EU litigation is increasingly acknowledged by governments, they put ‘in charge’ more prominent lawyers, who are more able to compete with their Euro-law peers and impose their views of EU law. Agents may thus slowly reposition themselves closer to the core of the European legal field, and thus be in a better position to shape legal trajectories in the EU, in line with the visions of those in the political or economic sphere with whom they are closely connected.

59   Exemplified by the growing importance of the European Council, although such development takes place within an increasingly deliberative context and is paralleled by an extension of the supranational Community method (eg the transfer of the whole of Justice and Home Affairs to the Community method operated by the Lisbon Treaty). 60   The ultimate aim of European integration, the ‘ever closer Union among the peoples of Europe’, instrumental in the ECJ’s constitutional cases, is now counterbalanced in the preamble by its subjection to the subsidiarity principle. Art 4 TEU states that ‘[t]he Union shall respect the equality of Member States before the Treaties as well as their national identities’ (see also preamble of the EU Charter of Fundamental Rights), whilst Art 5 TEU reminds of the prominent position of the proportionality and subsidiarity principles. Moreover, the upgrading of the EU Charter of Fundamental Rights into a legally binding instrument by the Lisbon Treaty now provides a more solid basis for (re)balancing free market objectives against non-economic interests and values. 61   See, eg, on the academic side, J Shaw, ‘Process and Constitutional Discourse in the European Union’ (2000) 27 Journal of Law and Society 4; M Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism and the Authority of Constitutionalism’ (2003) 5 International Journal of Constitutional Law 332; N Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317.

4 Courts United? On European Judicial Networks MAARTJE DE VISSER AND MONICA CLAES*

I. INTRODUCTION

N

ETWORKING IS EN vogue in European governance. Thus, to ensure the consistent and effective administration of the Union’s competition rules, a European Competition Network has been created, grouping the European Commission and the 27 national competition authorities.1 Networks are also a prominent feature of many European agencies. For instance agencies whose main task is the provision of information are often charged to establish networks that allow them to interact with other key players in their field – public as well as private in nature and active at the national, European and international level.2 Moving from law application to the realm of law-making, the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC) is a cooperative venture between national parliamentary committees.3 It seeks to enhance the effectiveness with which these committees *  This contribution was made possible thanks to the financial support by the European Research Council (ERC). 1   Council Regulation No 1/2003/EC on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L1/1 and Commission Notice on cooperation within the Network of Competition Authorities [2004] OJ C101/43. See M de Visser, Network-based Governance in EC law: The Example of EC Competition and EC Communications Law, Modern Studies in European Law (Oxford, Hart Publishing, 2009). 2   eg the European Environmental Agency (Council Regulation (EC) No 1210/90 on the establishment of the European Environmental Agency and the European Environment Information and Observation Network [1990] OJ L120/1 as amended by Regulation (EC) No 1641/2003 [2003] L245/1 Arts 1, 2(i), 4) or the European Agency for Safety and Health at Work (Council Regulation (EC) No 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work [1994] OJ L216/1 Art 4) or the European Monitoring Centre for Drugs and Drug Addiction (Council Regulation (EEC) No 302/93 of 8 February 1993 on the establishment of a European Monitoring Centre for Drugs and Drug Addiction [1993] OJ L36/1 Art 5). 3   www.cosac.eu; European Parliament Guidelines for relations between governments and Parliaments on Community issues (instructive minimum standards) (‘Copenhagen Parliamentary Guidelines’) [2003] OJ C154/1; European Parliament Rules of Procedure of the Conference of Community and European Affairs Committees of Parliaments of the European Union [2008] OJ C27/6.

76  Maartje de Visser and Monica Claes scrutinise and comment upon their government’s conduct in relation to EU activities and assist national parliament with the exercise of their role in monitoring the correct application of the subsidiarity principle.4 But not only administrative and parliamentary actors are attracted to the anticipated virtues that networking should bring them. Courts, too, are increasingly pursuing partnerships with their foreign counterparts in the form of participation in judicial networks – at their own initiative or at the instigation of the Union legislature. This chapter focuses on such ‘horizontal’ judicial networks, that is to say, networks which bring together national judges which are more or less at the same level and have similar functions in their respective legal systems or regimes.5 The ensuing discussion will be confined to European networks, given that membership of the European Union and the development of a European mandate for national courts in EU Member States, increases the similarities in functions and the need for cooperation – and even the further promotion of mutual trust. The remainder of this chapter is structured as follows. In section II, the reader is introduced to the wide variety of judicial networks currently in existence, describing their aims and working methods. Section III explores the existing relationship and so-called ‘judicial dialogues’ between the European Court of Justice and the national courts. Section IV critically examines the merits of judicial networks in two respects: first, it considers how these networks affect existing dialogues between the Court of Justice and national courts; and second, it inquires into the possible consequences of network membership for the position of a national court in its domestic setting. Section V concludes. II.  SURVEYING THE LANDSCAPE

It is axiomatic that judges in different jurisdictions ‘look different and behave differently’:6 training, staffing, jurisdiction, powers, impact and stature differ a great deal. Nevertheless, judges relate better, or more naturally, to their brethren in other countries than to domestic political institutions, which they do not want to intrude in judicial business, and this holds in particular for those judges sharing a common role or position within their respective legal systems.7 This is captured by the idea of transnational judicial communities: judges are said to share common beliefs, values and a self-perception and understanding of their role in the legal system and in society.8 Judges may share a common interest in the 4   Art 3 of Protocol (No 1) on the role of national parliaments in the European Union and Protocol (No 2) on the application of the principles of subsidiarity and proportionality. 5   Other types of more or less formal networks and relations exist between international courts among themselves and between courts belonging to the same (national) legal order, 6   J Bell, Judiciaries within Europe: A Comparative Review (Cambridge, Cambridge University Press, 2006) 1. 7   A Rosas, ‘Methods of Interpretation – Judicial Dialogue’ in C Baudenbacher and E Busek (eds), The Role of International Courts (Germany, German Law Publishers, 2008) 187. 8   To be clear, we are talking here about judicial communities across legal systems, while not denying that judicial communities also exist within legal systems and even within a single court.

Courts United? On European Judicial Networks  77 intrinsic value of legal concepts, in the quality of the legal argument, and hence, also transnational dialogues may flow naturally.9 Now, this chapter does not focus on ‘judicial or epistemic communities’ or on informal and occasional contacts between judiciaries and their members, but discusses more or less institutionalised judicial networks. That said, it should be acknowledged that such formal networks, especially those set up by judges themselves, build on pre-existing judicial communities; and that the latter are reinforced by the well-functioning of these judicial networks. Europe is home to an ever-increasing number of judicial networks and this section aims to bring some order to the chaos by introducing the reader to the most important of these networks. It makes a broad distinction between networks created by the European legislature and those that have been set up at the initiative of its component members.10 Typically, the networks set up by the European legislature aim to improve the functioning of the European judicial system, and to increase mutual trust, which is necessary for systems of mutual recognition to work. Networks which are created by the judges themselves tend to start from pre-existing mutual trust and a mutual (self-) perception as belonging to the same transnational judicial community. These networks generally aim to share and discuss common problems, to learn from foreign experiences, and to tackle common challenges.

A.  Networks Created by the European Legislature i.  The European Judicial Network11 The European Judicial Network (EJN) has its origins in Joint Action 98/428/ JHA.12 Its aim is to facilitate judicial cooperation in the fight against serious crimes such as corruption, drug trafficking or terrorism. To that effect, Member States are called upon to appoint contact points to the EJN from among the central authorities responsible for international cooperation as well as the judicial and prosecuting authorities active in this field.13 These contact points act as intermediaries between the competent local authorities by enabling direct transnational contacts where appropriate; providing information concerning the judicial and procedural system of other Member States; and offering practical assistance in preparing and implementing requests for cross-border judicial assistance (such as 9   So C Timmermans, ‘The European Union’s Judicial System’ (2004) 41 Common Market Law Review 393, 399. 10   Networks created under the aegis of the Council of Europe, such as the Consultative Council of European Judges, will not be considered in this chapter. See generally, A Potocki, ‘Les réseaux juridictionnels en europe’ in C Baudenbacher et al (eds), Liber Amicorum en l’honneur de/ in honour of Bo Vesterdorf (Brussels, Bruylant, 2007). 11  www.ejn-crimjust.europa.eu. 12   Joint Action of 29 June 1008 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on the creation of a European Judicial Network [1998] OJ L19/14 and Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network [2008] OJ L348/130. 13   Art 1.

78  Maartje de Visser and Monica Claes the execution of a European Arrest Warrant).14 In addition, the contact points participate in periodic meetings during which they are further acquainted with the particularities of each contact point’s legal system and debate how to overcome remaining obstacles to judicial cooperation.15 ii. Eurojust16 Established in 2002, Eurojust seeks to enhance cooperation between the competent authorities responsible for investigation and prosecution of cross-border and organised crime.17 It comprises one national member per state which may, but need not, be a judge: a Member State can also send a prosecutor or a policy officer as its representative.18 More precisely, the objectives of Eurojust are to stimulate and improve the coordination between the competent authorities of the Member States; to improve cooperation between these authorities by facilitating the execution of international mutual legal assistance and the implementation of extra­ dition requests; and to offer other support that will render the investigations and prosecutions by the competent authorities more effective.19 The most important tools of which Eurojust can avail itself in implementing these objectives are the provision of information (related to individual cases as well of a more general nature) and practical assistance to ensure the best possible coordination between competent authorities (for instance by offering logistic support or by setting up joint investigation teams20).21 Finally, Eurojust is enjoined to maintain privileged relations with the European Judicial Network.22 iii.  European Judicial Network in Civil and Commercial Matters23 As can be inferred from its nomenclature, the European Judicial Network in Civil and Commercial Matters (EJN-civil) is charged to facilitate judicial cooperation between the Member States in civil and commercial matters.24 It must do so, in   Art 4.   Art 5.  www.eurojust.europa.eu. 17   Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime [2002] OJ L63/1. Art 4 specifies that Eurojust has competence in respect of all types of crimes that fall within Europol’s remit of jurisdiction and in relation to computer crimes, fraud and corruption, money laundering, environmental crimes and participation in a criminal organisation. 18   Art 2. 19   Art 3. 20   Art 10 of Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network [2008] OJ L348/130. 21   Arts 6 and 7. 22   Art 26(2). 23  ec.europa.eu/civiljustice/index_en.htm. 24   Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters [2001] OJ L174/35 and Decision 568/2009/EC of the European Parliament and of the Council of 18 June 2009 amending Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters [2009] OJ L168/35. 14 15 16

Courts United? On European Judicial Networks  79 particular, through the development of two elaborate information systems: one intended for internal use by its members and the other available to the public at large as a useful point of reference when individuals become embroiled in litigation with a cross-border impact.25 The EJN-civil’s members fall into five categories: contact points designated by the Member States; central bodies active in this field pursuant to EU or international legal instruments; liaison magistrates; other judicial authorities involved in transnational cooperation in civil and commercial matters; and professional organisations representing legal practitioners in the field.26 The contact points will assist the other members in ensuring sound crossborder cooperation inter alia by supplying them with the information needed to prepare operable requests for cooperation; seeking solutions to difficulties arising on the occasion of a request for judicial cooperation; and facilitating coordination of the processing of such requests.27 Provision is further made for periodic meetings of the contact points where they can exchange experiences; discuss practical and legal problems and identify best practices.28

B.  Networks Created by the Judiciaries Themselves Following the examination of judicial networks created at the behest of the European legislature, this sub-section introduces, in chronological order, the most important networks set up by the judiciaries themselves. i.  The Conference of European Constitutional Courts29 The Conference of European Constitutional Courts (CECC) brings together judicial bodies that exercise constitutional jurisdiction,30 in particular reviewing the conformity of legislation against the national Constitution.31 Its principal task is the organisation of a triennial congress, where members share experiences as 25   Arts 3, 14 and 15. The public website offers information on the state of the law in the Member States and at EU level in relation to inter alia legal aid, access to the courts, procedural time limits, interim measures, simplified and accelerated procedures, and compensation to crime victims. 26   Art 2. 27   Art 5. 28   Art 10. 29   www.confcoconsteu.org. Note the name ‘conference’ instead of ‘association’ or ‘network’ commonly used by other networks. This is probably due to the specific role of these courts, and aims to stress their continuing independence and neutrality. 30   The French Conseil constitutionnel, the Belgian Cour constitutionnelle as well as the Bulgarian and Czech constitutional courts are also members of the French-speaking Association des Cours Constitutionnelles ayant en Partage l’Usage du Français, see www.accpuf.org. 31   Art 6 of the Statute of the Conference of European Constitutional Courts. Membership is not limited to courts of the EU Member States. The same article also stipulates the various documents that must accompany an application for membership. Required are the legal instruments governing the establishment and composition of the applicant institution as well as the appointment and status of its judges; texts stating the nature and scope of the jurisdiction as well as documents that demonstrate jurisdiction actually exercised.

80  Maartje de Visser and Monica Claes regards constitutional practice and case law in relation to a selected theme.32 The Court of Justice typically attends these congresses as an observer and also presents a report on the specific theme of the congress.33 In addition, the CECC takes steps to promote the independence of constitutional courts, as an essential element in securing observance of the rule of law. Further, constitutional courts have gathered also at the invitation of one constitutional court, outside the framework of the triennial congresses. By way of example, in 1995 the president of the Italian Corte costituzionale invited the other presidents to Rome for a discussion of the relationship between European and national law.34 Two years later, in 1997, the French Conseil constitutionnel hosted a meeting on the issue of the constitutionality of secondary EU law.35 ii.  Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union36 Formally established in 1998,37 the purpose of the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACAEurope) is to promote the exchange of ideas and practical experience in relation to how its members exercise their national mandate, with special attention for matters concerning EU law.38 To this end, the ACA-Europe can commission studies; foster interpersonal relations between the various Councils of State and other supreme administrative jurisdictions; organise biannual colloquia and encourage the sharing of information. In order to attain this last goal, ACA-Europe’s website hosts two databases: Dec.Nat and Jurifast. Dec.Nat comprises national case law, annotations and comments regarding EU law from 1959 to the present day. JuriFast contains preliminary references, the reply of the Court of Justice and the 32   Art 3 of the Statute of the Conference of European Constitutional Courts. For instance, the 2002 congress considered ‘The Relations between the Constitutional Courts and Other National Courts, Including the Interference in this Area of the Action of the European Courts’, the 2008 conference focused on ‘Constitutional Problems of Legislative Omission in Constitutional Jurisprudence’ and the conference in 2011 addressed the theme ‘Constitutional Justice: Functions and Relationship with the Other Public Authorities’. Interestingly, the four official languages for debate during the congress are French, English, German and Russian, Art 12(1) of the Conference Regulations of the Conference of European Constitutional Courts and Art 9(2) of the Statute of the Conference of European Constitutional Courts. 33   Art 5 Conference Regulations of the Conference of European Constitutional Courts and Arts 5 and 9(2) Statute of the Conference of European Constitutional Courts. 34   Corte Costituzionale, Diritto Comunitario Europeo e Diritto Nazionale: Atti del seminario internazionale, Rome 14–15 July 1995 (Milan, Dott A Giuffrè Editore, 1997). 35  The meeting is well documented in the cahiers of the Conseil constitutionnel, no 4, see www.conseil-constitutionnel.fr. 36  www.juradmin.eu/. 37   It should be noted, however, that there has been a much longer tradition of regular meetings. The first meeting, between the Belgian and the Italian Councils of State, was held in 1964, and the first colloquium involving the then six members of the EC, took place in 1968. Since then, colloquiums were held bi-annually, on various themes of common interest, sometimes, but not always, relating to European issues. The Court of Justice joined later. 38   Art 3 Statutes of the Association.

Courts United? On European Judicial Networks  81 final decision by the national court.39 Interestingly, in early 2005, ACA-Europe created an intranet, which allows its members – both judges and their staff – to enter in direct contact with one another and ask concrete questions.40 iii.  European Judicial Training Network41 Created as a non-profit organisation under Belgian law, the European Judicial Training Network (EJTN) promotes training programmes for members of the European judiciary and comprises national bodies with responsibility in this field.42 Thus, it compiles an annual catalogue listing available training opportunities open to all judges in the European Union, which is accessible through its website.43 The EJTN itself is also actively involved in designing a variety of programmes and methods for judicial training that foster cross-border cooperation and mutual learning.44 The European institutions fully endorse the work of the EJTN and have given it exclusive responsibility to implement the Exchange Programme for judicial authorities, which aims to breed understanding of the legal systems of other Member States. iv.  The Association of European Administrative Judges45 The Association of European Administrative Judges (AEAJ) is a European apex organisation, grouping national associations of administrative courts.46 It seeks to encourage improvements in the availability of legal redress for individuals vis-àvis public authorities and promote the legality of administrative acts, while respecting the legal cultures in the various national legal systems. As such, the AEAJ contributes to the dissemination of knowledge on legal redress in administrative matters by means of an intensive exchange of information regarding pertinent case law and legislation. Other objectives of the AEAJ are to strengthen the position of administrative judges in Europe and to advance their interests at the national and European level. To achieve its various objectives, the Association defends the interests of European administrative judges vis-à-vis the institutions 39  The information contained in this database is entered into it directly by the members of ACA-Europe. ACA-Europe then coordinates this input and offers translations of descriptions and summaries. For a general explanation and instruction on the use of both databases, Newsletter no 17 of ACA-Europe [2007]. 40   This forum enjoys considerable popularity. According to ACA-Europe’s website, at 15 January 2012, 252 members had registered and had posted 492 messages on 169 topics. 41  www.ejtn.net. 42   Arts 6 and 7 Consolidated Articles of Association. 43   Art 4 Consolidated Articles of Association. 44   See, eg, EJTN Strategic Plan 2007–2013 available at the network’s website. Mention should in particular be made here of e-learning tools, the drawing up of judicial training curriculum guidelines and a focus on improving language skills to ensure meaningful cross-border participation in judicial training programmes. 45  www.aeaj.org. 46   Art 2 of the Statutes of the association of European administrative judges from 24 March 2000 in the version of 19 May 2006 and 23 May 2008.

82  Maartje de Visser and Monica Claes of the European Union and the Council of Europe; organises meetings and publishes a regular newsletter. v.  The Association of European Competition Law Judges (AECLJ)47 Established in 2001, the Association of European Competition Law Judges (AECLJ) groups national judges working in the area of European competition law.48 It provides them with a vehicle to exchange views and experiences, to ultimately establish ‘best practices’ for the swift and correct application of the European competition rules. The AECLJ pursues these goals through annual conferences, regular seminars and training projects.49 It is interesting to note that the Association also actively participates in public consultations organised by the European Commission in the field of European competition law.50 Other specialist networks, with a focus on a particular area of national and/or European law include the EU Forum of Judges for the Environment,51 the European Association of Labour Court Judges,52 the European Association of Judges, Magistrats européens pour la Démocratie et les Libertés (MEDEL),53 the Forum des juges commerciaux européens and the Groupement Européen des Magistrats pour la Médiation (GEMME).54 vi.  Network of the Presidents of the Supreme Judicial Courts of the EU55 As its nomenclature indicates, the Network of the Presidents of the Supreme Judicial Courts of the EU (NPSJC) is made up of the presidents of the supreme judicial courts of the Union’s Member States. This network aims to foster debate and promote knowledge of other legal systems amongst its members.56 According  www.aeclj.com.   The English Competition Appeal Tribunal (CAT) played a leading role in establishing the AECLJ (and has also provided its secretariat) and it is thus no surprise that the president of the CAT, Sir Christopher Bellamy, was elected as the Association’s first president. He was succeeded by Joachim Bornkamm of the German Bundesgerichtshof in 2005. 49   Often co-financed by the European Commission, Report from the Commission to the European Parliament and the Council on the Final Evaluation of the Community’s action programme to promote bodies active at European level and support specific activities in the field of Education and Training (COM(2008) 337 final, 11. 50   For instance, see its comments on Commission (EC) ‘Damages actions for breach of the EC antitrust rules’ (White Paper) COM(2008) 165 final, available at ec.europa.eu/comm/competition/ antitrust/actionsdamages/white_paper_comments/judges_en.pdf. 51  www.eufje.org. 52  www.ealcj.org. 53  www.medelnet.org. 54  www.gemme.eu. 55   www.network-presidents.eu. The inaugural conference was held on 10 March 2004 in Paris, at the Cour de cassation with the financial support of the European Commission (under the AGIS programme, which ran from 2003 until 2006 and sought to help police, the judiciary and professionals from the EU Member States and candidate countries cooperate in criminal matters and the fight against crime). 56   The presidents of the ECJ and the ECtHR participate in the general assemblies and colloquiums organised by the network. 47 48

Courts United? On European Judicial Networks  83 to its website, ‘The Network of the Presidents provides a forum through which European Institutions are given an opportunity to request the opinions of Supreme Courts and to bring them closer by encouraging discussion and the exchange of ideas’. The Network’s principal objective is to ‘promote and develop a common legal culture’.57 Regular conferences and colloquiums are organised and stages are foreseen – implemented under the auspices of the European Judicial Training Network. Perhaps most importantly from a perspective of knowledge dissemination and cross-fertilisation of ideas, the NPSJC has developed a common portal of case law that allows its members (including the European Commission and the Court of Justice) to search all the national case law databases. An online translation tool greatly enhances the usability of the portal. The general public is able to access the free national case law databases, although the possibility of translations is not provided for. vii.  European Judges and Prosecutors Association58 The European Judges and Prosecutors Association (EJPA) was established in March 2004 by trainee judges and prosecutors from the French National Judiciary School. Made up of magistrates, judges and prosecutors, the EJPA aims to improve the knowledge of its members of the legal systems of the Member States so as to enable meaningful legal cooperation on a daily basis.59 In common with many of the networks discussed thus far, it organises symposia and conferences; exchanges and meetings between its members;60 and works as a partner with the European Judicial Training Network to arrange training courses with the European institutions. The EJPA currently has members from 15 European states. viii.  European Network of Councils for the Judiciary61 The European Network of Councils for the Judiciary (ENCJ) is not strictly speaking a judicial network, as it is not composed of judges, but of national institutions which are independent of the legislative and the executive and which must support the judiciary in the independent delivery of justice.62 As not all EU Member States have these institutions, there are fewer ENCJ members than there are Member States. That said, for those countries that do not have a council for the judiciary, their Ministry of Justice may participate in the work of the ENCJ as observer.63 The ENCJ has accorded itself the task of acting as a mediator between the European institutions and the national judiciaries to improve cooperation and mutual understanding. In addition, it fosters cooperation between its   See Newsletter No 6, July 2008, available at the Network’s website.  www.amue-ejpa.org. 59   Arts 1 and 2.1 of the Statute. 60   Of particular relevance in this respect are the EJPA’s chatting list and judicial phone book. 61  www.encj.net. 62   Art 6 of the Statutes of the international not-for-profit association European Network of Councils for the Judiciary. 63   A similar status is granted to candidate states and to the European institutions. 57 58

84  Maartje de Visser and Monica Claes members on the organisation, jurisdiction, functioning and independence of the judiciary. More specifically, there are working groups on such issues as mutual confidence; liability of judges; e-justice; quality management; public confidence and criminal justice in the European Union. It is clear, then, that courts and judges are literally talking to one another all over Europe,64 and that it is fair to speak of a growing trend. It is equally clear, that the world of transnational judicial networks is characterised by a high degree of fragmentation. By way of example, the Conference of Constitutional Courts will only accept as members: [C]onstitutional Courts and similar European institutions which exercise constitutional jurisdiction, in particular reviewing the conformity of legislation and which conduct their judicial activities in accordance with the principle of judicial independence, being bound by the fundamental principles of democracy and the rule of law and the duty to respect human rights.65

As such, various supreme courts and highest administrative courts which lack the power to examine the constitutionality of primary law are not eligible to join this network. They can, and do, in turn establish or join other networks. The existence of a multitude of judicial networks also demonstrates that it is artificial to speak of ‘the national courts’ and consider this to be a monolithic homogeneous group, as is common in the discussion of the European judicial order, comprising the European Courts in Luxembourg and the national courts in the Member States. Some possible ramifications of the proliferation of judicial networks grouping national courts for the functioning of the European judicial order are explored in the next sections. III.  TRADITIONAL PATTERNS OF EUROPEAN ‘JUDICIAL DIALOGUES’66

A.  The Preliminary Reference Procedure It has become customary to speak of the relations between the Court of Justice (ECJ) and the national courts in terms of ‘judicial dialogues’.67 These dialogues   After A-M Slaughter, A New World Order (Princeton, Princeton University Press, 2004).   Art 6(1) (a) of the Statute of the Conference of European Constitutional Courts.   We will limit the discussion to European dialogues, focusing on the EU and leaving aside other forums of judicial dialogue, such as the dialogue between international courts among themselves, see eg Y Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford, Oxford University Press, 2003); C Baudenbacher and E Busek (eds), The Role of International Courts (Germany, German Law Publishers, 2008) or the dialogue between the ECJ and the ECtHR, on which see interestingly L Scheeck, ‘Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’, GARNET Working Paper 23/07. We will also not address global judicial dialogues, and dialogues organised by academia, such as the ‘Transnational Judicial Dialogue: Strengthening Networks and Mechanisms for Judicial Consultation and Cooperation’ (Harvard Law School 2006) or the ‘Global Constitutionalism Seminar’ (Yale Law School). 67  For an illuminating discussion of two different conceptions of the term ‘dialogue’, consider L Tremblay, ‘The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures’ (2005) 3 International Journal of Constitutional Law 617, in particular 630–33. 64 65 66

Courts United? On European Judicial Networks  85 (or multi-logues) are conducted in various ways. The formal, direct channel for dialogue in the European Union is the preliminary reference procedure.68 National courts feed in questions and issues which they encounter69 when acting as European courts,70 and the Court of Justice answers, whereupon the national courts, on the basis of the judgment from Luxembourg, apply this answer to the facts of the case before them. Several points should be made in the context of this chapter with respect to the preliminary reference procedure. First, it has been pointed out that the way the procedure has functioned has transformed the relationship between the Court of Justice and the national courts from a horizontal and bilateral to a vertical and multilateral relationship. Thus, we have witnessed the coming into being of a judicial hierarchy with the Court of Justice at its apex, as the ultimate constitutional court for the Union, assisted in the exercise of its judicial functions by the national courts.71 Various factors have contributed to this evolution: the development of precedent, the acte clair doctrine, the Court’s control over the cases it will hear, the blurring of the line between ‘interpretation’ and ‘application’ and the development of the supremacy of EU law. Yet, while the relationship may have become ‘multilateral’ in its effects, in that the judgments of the ECJ on a reference affect all courts in the Union, only the referring court ‘converses’ with the Court of Justice in any given case. The procedure is designed such that other courts do not participate in it, as only governments of other Member States may intervene in the case. As such, the procedure remains bilateral. Also, verticality is not complete, in the sense that the Court of Justice is not competent to annul or quash national laws for violating EU requirements and remains dependent on the cooperation of the national courts to refer questions and pass their final judgments in accordance with the ECJ decision. Second, not all courts participate in this direct dialogue. Most constitutional courts have never made a reference, while there have been cases where a reference would have been appropriate.72 In fact, only the Austrian, Belgian, Lithuanian, Italian and most recently the Spanish constitutional courts have sent questions to the Kirchberg. Also, several (highest) courts are notorious for using the procedure only in exceptional cases,73 by extensive use of the doctrine of acte clair, by ducking the European issues or by deciding the case before them on other grounds. 68   Generally on the preliminary reference procedure: P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011) ch 13 and P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011) ch 13. 69   These questions are often raised at the instigation of the parties and hence, the role of the bar in the judicial architecture should not be underestimated. 70   On this characterisation of the role of national courts, M Claes, The National Courts’ Mandate in the European Constitution, (Oxford, Hart Publishing, 2006). 71   Craig and De Búrca, The Evolution of EU Law (n 68) 482. 72   See Claes, The National Courts’ Mandate (n 70) 432–51. 73   For a critique of this behaviour, see J Baquero Cruz, ‘Le procédure préjudicielle suffit-elle à garantir l’efficacité et l’uniformité du droit de l’Union européenne?’ in L Azouali and L Burgorgue-Larsen (eds), L’autorité de l’Union européenne (Brussels, Bruylant, 2005) 241–66.

86  Maartje de Visser and Monica Claes Third, the preliminary reference is generally perceived as ‘victim of its own success’,74 with the average time for answers to come back from Luxembourg remaining at just under one-and-a-half years.75 In addition, the ECJ’s judgments on preliminary reference are not always helpful for national courts: some questions are rephrased to the point of sidestepping the issue, while other questions are not answered and simply ignored. The element of delay which the sending of preliminary references entails, combined with the at times limited usefulness of the Court’s judgments for the referring court may have a negative effect on the willingness of national courts to engage in a direct dialogue with the Court of Justice. Such tendencies can be exacerbated by litigant desistment and pressure to close the case.76 Fourth, and related to the previous point, the preliminary reference system remains vulnerable, because of its dependence on the national courts’ willingness to make a reference, and is almost impossible to enforce. Infringement actions against Member States (represented by their governments) under Article 258 TFEU are hardly apt to enforce an obligation imposed on independent courts, and are, moreover, only at the disposal of the Commission.77 Since Köbler, there is a (theoretical) possibility of liability claims against the state for infringement of EU law attributable to courts, which may include refusals to refer,78 but the very existence of Köbler liability itself threatens to spoil the goodwill of national courts to participate in the dialogue.79 Fifth, a preliminary reference made by one court, is relevant for all courts in the Union: judgments interpreting a norm of EU law are considered to form part of the European norm, and hence, bind all courts across the Union, and absolve them from the obligation to refer where relevant. Finally, it should be stressed that the preliminary reference procedure, as explained by the Court of Justice in its guidelines, does indeed also incorporate 74   It should be pointed out however, that the situation does not compare with that of the ECtHR in Strasbourg, which appears to collapsing under its caseload and lack of financial means. 75   In 2000, the target identified in the Report by the Working Party on the Future of the European Communities’ Court System (Dué Report) was set at one year. 76   See S Nyikos, ‘The Preliminary Reference Process: National Court Implementation, Changing Opportunity Structures and Litigant Desistment’ (2003) 4 European Union Politics 397. 77   Case C-129/00 Commission v Italian Republic [2003] ECR I-4637. Note that, strictly speaking, Italy was not held in breach for the activities of its courts and administrative authorities, but for failing to amend relevant provisions of national legislation. The Commission has opened proceedings against Sweden in 2004 alleging that the number of references made by Swedish highest courts was insufficient, and in particular expressed its dissatisfaction with the fact that these courts did not consider the referral of a case to the ECJ when deciding whether to hold an appeal admissible and that decisions on admissibility were given without reasons, so that the fulfilment of the obligations under now Article 267 TFEU could not be checked objectively, see Commission docket No 2003/2161, C(2004) 3899 of 13 October 2004. 78   Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239. The refusal to refer per se will not amount to a sufficiently serious breach of EU law, but it may contribute to an incorrect application of EU law and in turn, to a manifest infringement by the national court of applicable EU law. It will be difficult, however, in such cases to establish the requisite causal link. 79   See the furious reaction to the Köbler judgment, written by an Advocate General of the Dutch Supreme Court, P Wattel, ‘Köbler, Cilfit and Welthgrove: We Can’t Go On Meeting Like This’ (2004) 41 Common Market Law Review 177.

Courts United? On European Judicial Networks  87 elements that allow one to speak of a veritable judicial dialogue.80 Rather than a system whereby the national courts asks a question, and the ECJ answers, the Court of Justice explicitly invites courts making references to state their views on the answer to be given to the questions referred. Also, while judgments of the Court are final and cannot be appealed, national courts are allowed to refer the same question again, in the same case or another, and may explicitly ask the Court to distinguish or reconsider previous cases. Nevertheless, once the reference has been made, the national court mostly ‘disappears’ from the proceedings, until the judgment is handed by the ECJ: so much for ‘dialogue’ then.81 B.  Citation of Judgments of Courts from Other Jurisdictions Another type of ‘judicial dialogue’ is the referencing to, or citing of, case law of courts in other jurisdictions, which may or may not belong to different legal families. In the context of the case law of the Court of Justice and the national courts, an asymmetrical pattern can be discerned. Some national courts will cite judgments of the Court of Justice approvingly or even as a source of authority. There is a wide variety in the referencing practice of national courts, which is heavily dependent on the national traditions of citation. Thus, the Belgian and Spanish constitutional courts regularly cite the case law of the Court of Justice, as does the House of Lords, whereas the French Conseil constitutionnel has never quoted the European Court.82 In contrast, the Court of Justice will never explicitly make reference to the case law of national courts, though its Advocates General at times do cite national court decisions. National courts at times also cite case law of their brethren in other Member States, which address the same or similar issues of European law.83 This has certainly been the case when the grand doctrines of EU law – such as direct effect, primacy, fundamental rights protection – were being developed. For instance, in its ruling in Solange I,84 the German Bundesverfassungsgericht referred to 80   Court of Justice of the European Union, ‘Information Note on references from national courts for a preliminary ruling’ [2011] OJ C160/1. 81   The Court of Justice can ask the referring court for further clarifications (Art104 (5) Rules of Procedure), but it is not a party in the proceedings before the Court. The Court of Justice ‘Information Note’ (2011) simply provides: ‘The order for reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the national court directly to the Court of Justice, by registered post. (. . .) [30]. The Court Registry will stay in contact with the national court until a ruling is given, and will send it copies of the procedural documents [31]. The Court of Justice will send its ruling to the national court. It would welcome information from the national court on the action taken upon its ruling in the national proceedings and, where appropriate, a copy of the national court’s final decision. [32]’. 82   It has only on one occasion referred to a decision of the ECtHR, namely to Leyla Sahin v Turkey Reports 2005-XI. 83   To be clear, the practice of citing foreign courts is not confined to questions of EU law, see for instance generally B Markesinis and J Fedtke, ‘The Judge as Comparatist’ (2005) 80 Tulane Law Review 11 and the other articles included in that journal issue. 84   BVerfGE 37, 271 [1974] 2 Common Market Law Review 540, Internationale Handelsgesellschaft (Solange I).

88  Maartje de Visser and Monica Claes the Frontini judgment of the Italian Corte costituzionale.85 Similarly, in Nicolo,86 the commissaire de gouvernement urged the French Conseil d’État to accept the primacy of European law over conflicting legislation, now that all other courts – ‘even the House of Lords’ had done so. Still, these transnational references to cases decided by a court in another Member State remain relatively scarce. It can however be argued that in a mature system, the coherence and uniform interpretation and application of European law by national courts should not depend solely on the vertical relations between national courts and the Court of Justice. In an intertwined and interlocked system such as that of the European Union, courts should also be informed how their counterparts in other Member States interpret and apply European law. There is an increased need for more horizontal dialogues,87 which could, in turn, relieve some of the pressure on the system of preliminary references. One could even venture that such a development would complete the judicial system of the European Union as it currently exists. The alleged underdeveloped state of the transnational horizontal debate is due to the fact that judgments by out-of-state courts may be difficult to find and interpret by courts in other countries – with the exception of some of the large Member States with languages which are more easily understood outside the domestic legal system. In addition, it is believed that the acceptance of the foundational doctrines, as well as the application and enforcement of European law requires a level of adaptation to local circumstances and national (constitutional) law. Yet, as already mentioned, it is clear that for some topics – such as the relationship between the national and the European legal order or the European Arrest Warrant – it is possible to detect cross-system influences. In addition, it is undeniable that in highly specialised areas, where courts and judges dealing with a very specific set of issues know each other, referencing is much more prominent.88

C.  Dialogue through Case Law The third phenomenon sometimes referred to as ‘dialogue’ is more indirect and concerns the real or perceived ‘messages’ and ‘signals’ sent by both national courts and the Court of Justice in their case law: ‘dialogue-through-case-law’.89 By way of example, it is generally accepted that the fundamental rights jurisprudence of the Court of Justice was developed in answer to the case law of several national courts,   Decision no 183/73 of 27 December 1973, 18 Giur Cost I 2401.  Conseil d’État, decision of 20 October 1989, Revue trimestrielle de Droit européen 1989, 771. 87   See on this also M Poiares Maduro, ‘The European Court of Justice’ in C Baudenbacher and E Busek (eds), The Role of International Courts (Germany, German Law Publishers 2008) 207, esp 218–19. 88   See, eg, the work of Emmanueal Lazega, who examines social mechanisms of cooperation in a variety of settings, eg ‘Cooperation among Competitors: Its Social Mechanisms through Network Analyses’ [2009] Sociologica 1. 89   See, eg, Timmermans, ‘The European Union’s Judicial System’ (n 9) 396–99. 85 86

Courts United? On European Judicial Networks  89 most prominently the German Bundesverfassungsgericht refusing to accept the primacy of EU law, as long as fundamental rights were not sufficiently protected.90 In a similar vein, the ECJ’s decision in Ratti,91 drawing on a nemo auditur type of reasoning, is generally understood as an answer to the German Bundesfinanzhof in Kloppenburg92 and the French Conseil d’État in Cohn-Bendit,93 denying any direct effect of directives.94 And it is hard to miss the message of the majority of the Bundesverfassungsgericht on the validity of the German law implementing the European Arrest Warrant Framework Decision,95 which, in the words of the dissenting judge Lübbe-Wolff is to be read as a ‘dark signal’ to the Court of Justice.96

D.  Participation in the Scholarly Discourse and Personal Contacts Judges also converse through other means and channels. Judges and Advocates General from the Court of Justice as well as senior national judges in many Member States actively participate in the academic debate. Indeed, it could even be said that many European judges and Advocates-General play ‘on both sides of the fence’.97 The tale of how the Court of Justice ‘constitutionalised’ the Treaties, and developed an autonomous legal order for the Union, was skilfully spread and propagated in the judges’ extra-judicial scholarly writings.98 Remarkable in many 90   See, eg, the testimony of Pierre Pescatore on the Court’s fundamental rights case law as being inspired by a concern for the autonomy of European law, rather than fundamental rights protection. Interview can be accessed via www.ena.lu. 91   Case 148/78 Criminal proceedings against Tullio Ratti [1979] ECR 1629. 92   Decision of 16 July 1981, BFHE 133, 470; [1982] 1 Common Market Law Review 527 and Decision of 25 April 1985, BFHE 143, 383; [1989] 1 Common Market Law Review 873. 93   Decision of 22 December 1978, Rec. 524; Revue Trimestrielle Droit européen, 1979, 168. 94   It is interesting to note that it was the Bundesverfassungsgericht which ultimately convinced the Bundesfinanzhof that the Court of Justice had not overstepped the boundaries of its judicial function when granting direct effect to directives, Decision of 8 April 1987, BverfGE 75, 223; [1988] 3 Common Market Law Review 1. 95   Decision of 18 July 2005, 2 BvR 2236/04. 96   See in particular [159]–[60]. The Court of Justice did not seem to respond to this ‘dark signal’ in Case C-303/05 Advocaten van de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633, in which it held that the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States [2002] OJ L190/1 was valid. 97  A Vauchez, ‘Integration-through-Law: Contribution to a Socio-history of EU Political Commonsense’ EUI Working Papers RSCAS 2008/10 (n 6). 98   O Due, ‘A Constitutional Court for the European Communities’ and F Jacobs, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon. Mr Justice TF O’Higgins (Dublin, Butterworths Law, 1992); R Lecourt, ‘Quel eut été le droit des communautés sans les arrêts de 1963 et 1964?’ in Mélanges Jean Boulouis: l’Europe et le Droit (Paris, Dalloz, 1991); A Donner, ‘The Constitutional Powers of the Court of Justice of the European Communities’ (1974) 11 Common Market Law Review 127; G Rodriguez Iglesias, ‘Zur “Verfassung” der Europäischen Gemeinschaft’ (1996) 23 Europäische Grundrechte-Zeitschrift 125; G Slynn, ‘The Court of Justice of the European Communities’ (1984) 33 International and Comparative Law Quarterly 409; G Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 Common Market Law Review 595; F Schockweiler, ‘Die richterliche Kontrollfunktion: Umfang und Grenzen in Bezug auf den Europäischen Gerichtshof ’ (1995) 30 Europarecht 191. Further: E Stein, ‘Lawyers, judges and the making of a transnational Constitution’ (1981) 73 American Journal of International Law 1; H Schepel and R Wesseling, ‘The Legal

90  Maartje de Visser and Monica Claes of these contributions is what commentators have referred to as ‘degree of selfcelebration (. . .) about the Court’s achievements’.99 National judges too, writing as law professors, have at times explained and developed their own court’s position vis-à-vis EU law, addressing academic as well as judicial audiences. This has happened more in some countries than others, depending on the legal culture and perceived appropriateness of such extra-judicial writing. In some cases, (former) judges also use the press to explain their position or channel their views. A well-known example is the comment by former president of the Bundesverfassungsgericht, Roman Herzog, who explicitly repeated the Federal Court’s position in the Maastricht Urteil, and warned the Court of Justice that if it continued to ‘act as a legislator’ and that if it ‘abuses this confidence [of the Member States assigning it comprehensive rights of decision-making, that it could be trusted to take this responsibility in an unbiased way and in compliance with the rules of the judiciary], it need not be surprised when it [the trust put in it] breaks down’.100

Further, members of the Court of Justice and (senior) national judges have, from the outset, invested in interpersonal contacts and dialogues. The European Court welcomes delegations from senior national courts to Luxembourg at regular intervals. These visits allow the national courts to become better informed about the Court of Justice and to improve mutual understanding ‘under the mellowing influence of wine and good cheer’.101 They may help create trust and a sense of belonging to a particular judicial community: that of ‘European courts’. This was confirmed by Lord Denning’s account of his visit to Luxembourg: ‘I would pay tribute to the work of the European Court at Luxembourg. I have been there. I have met the judges. They are of the highest quality’.102 In contrast to the networks under review in this chapter, the visits remain fairly ‘bilateral’ however: only the senior national justices of a single highest court are invited at any one time, and the Court thus invests in good relations with each national court separ­ ately. National judges generally do not meet each other in Luxembourg.

E.  Concluding Remarks To conclude this part, the discourse of ‘judicial dialogues’ in Europe mostly contains, in some way or another, a vertical element, or perhaps, many vertical lines, drawn between the Court of Justice and each national court or judiciary separ­ Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 165; Vauchez, ‘Integration-through-Law’ (n 97). 99   Schepel and Wesseling, ‘The Legal Community’ (n 98) 178. 100   R Herzog and L Gerken, ‘Stop the European Court of Justice’ EU-Observer, 10 September 2008, available at euobserver.com/9/26714. 101   LN Brown and T Kennedy, The Court of Justice of the European Communities, 5th edn (London, Sweet & Maxwell, 2000) 401. 102   Lord Denning, What Next In The Law (Oxford, Oxford University Press, 1982).

Courts United? On European Judicial Networks  91 ately. To a certain extent, they evidence a certain relationship of cooperation based on a give-and-take and a clear division of labour between the Court of Justice and the national courts. More importantly however, these vertical dialogues demonstrate processes of hierarchisation and containment. The European Court behaves as the primus inter pares, claiming a role of ‘supreme’ or ‘constitutional’ court, superimposing itself over and above the national courts and transforming what might have been a horizontal relationship into a vertical one. The case law of the ECJ has sought to transform the national judges into European judges,103 drawing ‘the’ national courts (taken as a whole) in a tight epistemic community that surrounds the Court of Justice:104 a ‘Community of European judges’ with, apparently, a view to establishing the rule of European law in Europe.105 At the same time, however, we also observe a process of containment, whereby the Court of Justice is put under pressure especially by certain highest (constitutional) courts. The horizontal relationships among national courts are less well developed and mainly consist of courts referring to each other’s case law (generally under the heading of ‘cross-fertilisation’).106 National courts are, on the whole, not systematically informed of the functioning of the courts in other Member States in their capacity as European judges. Indeed, the decisions handed down after the judgment of the Court of Justice on a preliminary reference are not systematically made public, even though the European Court keeps record of these final decisions.107 There are exceptions: the ‘battle over supremacy’ is well documented and analysed in scholarly writings, and it is clear that courts have made references to decisions of their peers in other Member States on the issue. Yet, this is the exception, and there was, until recently, no systematic reporting on European cases decided by national courts. The Court of Justice may well have good reasons not to make these decisions public, as it may believe that it is not in a position to publish or spread rulings by national courts. In addition, some national decisions do not apply the Court’s rulings correctly or (intentionally) misinterpret the judgments issued by the European Court. As such, the Court of Justice may not be willing to publicise these national rulings without comments or corrections, while the addition of explanations or criticism can damage the relationship with the referring courts and jeopardise future references.108 Also, national judgments applying or interpreting EU law are, obviously, 103   Including M Claes (2006); A-M Slaughter, A Stone Sweet and J Weiler (eds), The European Court of Justice and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context (Oxford, Hart Publishing, 1998). 104   On the concept of epistemic communities see P Haas, ‘Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1. 105   K Alter, Establishing the Supremacy of European law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001). 106   Markesinis and Fedtke, ‘The Judge as Comparatist’ (n 83). 107   The ECJ asks judges to send the final decision to Luxembourg, see Court of Justice ‘Information Note’ (2011) para 32. 108   The Commission, in its annual reports on the application of EU law, does report judgments ‘that were noteworthy as setting good or bad examples’.

92  Maartje de Visser and Monica Claes handed down in the official language of the deciding court, and their publication may not seem useful for other courts which do not read that language, while translation comes with a hefty price tag.

IV.  SOME REFLECTIONS ON THE MERITS OF JUDICIAL NETWORKS

A.  Networks and Judicial Dialogues between National Courts and the Court of Justice The preceding discussion has made it clear that there is a host of inter-judicial relationships that can be classified as involving ‘judicial dialogues’. The section considers how these existing ‘dialogues’ could be affected by the emergence of judicial networks. Let us begin by considering the consequences of the rise of judicial networks for the preliminary reference procedure. From the perspective of the Court of Justice, judicial networks could be seen to perform a valuable role as educational interlocutor. In particular, networks created by the judiciaries themselves provide their members with information concerning the various ways in which national courts apply and enforce European rules – possibly with a view to developing a benchmark or best practice. Information may be exchanged as to the existence, meaning and implications of EU rules for judicial practice, with a focus on the contribution of the Court’s case law. Consider, for instance, the guide to the preliminary reference procedure drawn up by the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union, which offers practical suggestions to the Association’s members on when and how to make a reference to the Court;109 the colloquium it organised on the ‘consequences of incompatibility with EC law for final administrative decisions and final judgments of administrative courts in the Member States’;110 or the training it provided to courts in the 10 new Member States around the time of their accession to the Union. In this perspective, judicial networks would supplement the work of the Court of Justice. It can be argued that such a conception of the role of judicial network is not just useful, but in fact necessary. We have already alluded to the mounting workload of the Court of Justice, implying that the demand for assist­ ance and information on the part of national courts exceeds the supply of those resources on the part of the European Courts. As an additional information out-

109   This guide was drawn up under the auspices of the Dutch Eurogroup, which is an informal working group of the Netherlands Association for the Judiciary. 110   The topic was inspired by the judgments in Case C-224/97 Erich Ciola v Land Vorarlberg [1999] ECR I-2517; Case C-201/02 R, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723; Case C-453/00 Kühne & Heitz NV v Productschap voor Pluimvee en Eieren [2004] ECR I-837; Case C-234/04 Rosmarie Kapferer v Schlank & Schick GmbH [2006] ECR I-2585; Joined Cases C-392/04 and C-422/04 i-21 Germany GmbH and Arcor AG & Co KG v Bundesrepublik Deutschland [2006] ECR I-8559.

Courts United? On European Judicial Networks  93 let, networks can help redress this imbalance and thereby reduce the pressure on the scarce resources of the Luxembourg Court. Secondly, any student of European law will have been taught that national courts act as juges communs de droit communautaire when they apply European law, yet whether judiciaries indeed conceive themselves as such, and behave accordingly, has yet to be firmly established. Membership of a transnational judicial network may properly Europeanise the outlook of national courts, and raise (further) awareness of the role they are expected to play in the European judicial system. Next, judicial networks could incentivise the European Courts to improve their functioning. By way of example, we have seen that the Court of Justice did not use to publish national decisions handed down following its judgment on a prelim­ inary reference. Considering that this information would be useful for its members, the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union decided to take matters into its own hands and set up the Jurifast database mentioned earlier, which offers access to preliminary references sent to Luxemburg, the Court’s reply as well as the final judgment by the national court.111 Interestingly, if one now pays a visit to the website of the Court of Justice, one will see that under the heading ‘European Union Law in Europe’ there is a link to this database. ACA-Europe has also not been shy to call upon the European Court to change its judicial practice in relation to a number of other topics.112 In 2002, it proposed that the Court of Justice publish the references made by the national courts on its website. The Court welcomed this suggestion and asked the Member States whether there were any obstacles that would prevent the implementation of this proposal. The Spanish government, for unknown reasons, objected to the publication of the full text of the references. As a result, only the text of the question sent by national courts is currently available on the Court’s website. This situation does not meet with the approval of ACA-Europe: As long as the Court of Justice has not introduced an adequate system for rapid publication, the national courts of final instance should make their own arrangements. The working group [on the preliminary rulings procedure] advises the following good practices to the courts: a) national supreme courts should publish immediately the full text of all references for preliminary ruling on the national level; and b) national supreme courts should cooperate to publish, as soon as possible, all references for preliminary rulings on the international level.113 111   Jurifast has been operational since 1 February 2004 and as at 15 July 2008, counted 466 judgments. 112   See in particular the Report of the Working Group on the Preliminary Rulings Procedure (2008). Note that representatives of the Network of Presidents of the Supreme Courts of the EU joined the working group and that the ECJ sent an observer to the Working Group in the person of Christiaan Timmermans. 113   ibid at 11.

94  Maartje de Visser and Monica Claes Here as well, ACA-Europe’s online database plays a key role: The working group recommends all members of the Association to publish on JURIFAST the whole text of every reference for a preliminary ruling (not the text of the questions only!) immediately after the reference is made, together with a brief indication of its contents in English or French in case the questions are in a less widely known language.114

Another fascinating example of bottom-up guidance to the Court is the invitation to ‘seize a suiting opportunity to clarify its position [on a relaxation of the CILFIT test, especially in the light of Köbler] in a judgment, taking into account that since CILFIT the number of member states and languages has increased’.115 It will be interesting to see how, if at all, the Court responds to such ‘encouragement’. More in general, the proliferation of judicial networks could be welcomed as a means to improve the effective application and enforcement of EU rules. This holds in particular for networks created by the European legislature. For European rules to achieve their objectives, it is increasingly necessary to practice mutual recognition or to work together with foreign judiciaries – think, for instance, of the execution of a European Arrest Warrant. Mutual recognition and cross-­ border cooperation are heavily dependent on the existence of mutual trust and loyalty between the various national judiciaries, as experiences with mutual recognition in the realm of free movement of goods clearly illustrate. There, the Court’s judgment in Cassis de Dijon instructed national administrations to recognise out-of-state standards as equivalent to their own, unless they could show a good reason why their own rules should apply instead.116 Commission reports on the application of mutual recognition however revealed that the application of the principle of mutual recognition was often hindered by ‘the practical decisions made by the authorities that are in direct contact with citizens or economic operators’.117 Reasons cited for this behaviour included a wish to favour national producers, mistrust of acts adopted by out-of-state authorities and ignorance.118 By allowing for regular and meaningful interaction between courts, judicial networks disseminate much-needed information on the workings of other national legal systems and thereby allow each network member to grow more confident in its peers. In turn, this may foster the willingness of national courts to apply European rules better and more frequently. In short, judicial networks could provide the missing link in the current European judicial architecture. It could be objected however that this narrative paints too rosy a picture. To label judicial networks as the European Courts’ allies could be seen as misleading   ibid at 12.   ibid at 15. 116   Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) [1979] ECR 649. 117   First Report On the Application of the Principle of Mutual Recognition In Product and Services Markets SEC (1999) 1106, 13 July 1999 6. Note that this report followed 20 years after the judgment was delivered. 118  ibid. 114 115

Courts United? On European Judicial Networks  95 and as ignoring the threat that these networks may pose for the Court’s authority in ‘having the last word’ on questions of EU law. Judicial networks could become a tool for sharing ‘erroneous’ information regarding the interpretation and application of European rules – erroneous, that is, from the perspective of the European Courts. Such misinformation may be inadvertent. The weaknesses of the preliminary reference procedure could very well account for such an occurrence: national courts may be disappointed with the quality or usefulness of the Court’s answers, or unwilling to incur a one-and-a-half year delay, and decide to trust their own appraisal (or that of their brethren) instead, in resolving the case before them. This turn of events would appear particularly salient for specialist networks, such as the Association of Competition Law Judges. Members of these networks may very well believe that their specialisation has allowed them to acquire the know­ ledge necessary to deal with complicated cases – without the help of the ‘generalist’ Court of Justice being required.119 More seriously however, we cannot exclude instances where national courts use judicial networks to ‘orchestrate’ EU-wide disobedience when it comes to the application of EU law. Such use – or abuse – of networks can occur because national courts reject the propositions that underlie the European case law. It is a well-known fact that there have been occasions where national courts have ignored or even expressly contradicted rulings of the Court of Justice in their own judgments. We have also seen that such national disobedience has proven contagious: think of the Solange-domino for instance,120 or the judicial opposition to the European Arrest Warrant.121 While judicial networks presumably did not play a role in this respect – probably due to their non-existence or embryonic character at the time when these issues were confronted by the national courts – it is clear that they constitute an ideal channel to allow a more rapid spread of future cases of judicial recalcitrance. One may also be wary of the rise of judicial networks for reasons related to the uniformity of EU law. The mushrooming of networks means that there may be overlaps in mandates, with the concomitant risk of inconsistencies between the 119   This view is based (at least partly) on the division of jurisdiction between the Court of Justice and the General Court in relation to competition cases: since judicial challenges to Commission decisions under Arts 101 or 102 TFEU must be brought before the General Court, it is considered that this has denied the Court of Justice the opportunity to familiarise itself with the technicalities and complexities that competition law cases bring with them, with in turn believed to compromise its ability to give ‘correct’ or satisfactory answers to competition questions that come before it via Art 267 TFEU. More generally, consider the debate on whether the European Courts possess the requisite knowledge and expertise to decide scientific or technical issues and the related question of the establishment of (more) specialised tribunals. 120   See, eg, W Sadurski, ‘Solange, chapter 3: Constitutional Courts in Central Europe – Democracy – European Union’ EUI Working Papers, LAW No 2006/40. 121  Consider, eg, J Komarek, ‘European Constitutionalism and the European Arrest Warrant: In Search of the Limits of “Contrapunctual Principles’’’ (2007) 44 Common Market Law Review 9 and Z Kühn, ‘The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/ Acceptance – The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic’ (2007) 3 Croatian Yearbook of European Law and Policy 99.

96  Maartje de Visser and Monica Claes activities of the networks inter se.122 This danger of legal fragmentation is particularly acute when national courts indeed decide – for whatever reasons – not to engage in a dialogue with the Court of Justice through the preliminary reference procedure, but instead turn to their counterparts in other Member States.123 Let us now turn to the dialogue-through-case-law. Over the past years, the preconditions to enable an increasing dialogue-through-case-law have improved dramatically. Ever more courts, especially highest courts, publish their landmark decisions in foreign languages on their websites. It is striking that these courts seem to specifically address a foreign audience, comprising inter alia courts in other Member States. This can create new ways to ensure judicial accountability and legitimacy. Judicial networks can encourage the dialogue-through-case-law by breeding more familiarity with the rulings delivered by other members of the network: recall in particular the databases that various networks operate, and the translation tools that a number also provide in order to maximise the usefulness of such online collections of case law. The Court of Justice, for its part, also participates in such processes of information exchange by publishing, on its website, the bulletin Reflets, which provides brief summaries of salient cases decided by national courts. Here again, judicial networks play a role: while these Reflets are published in French – the working language of the Court – since 2010 ACAEurope has taken the initiative to have these translated into English and make these translations available on its own website. Additionally, or alternatively, the networks could have an effect on the nature and timing of the dialogue-through-case-law. As mentioned earlier, this dialogue at present is ‘open’ and conducted through the publication of successive judgments that are publicly accessible and available for (academic) comment and reflection. One could compare this process to a game of ping-pong, with every action provoking a reaction. Judicial networks can remove this dialogue from the open and (partially) replace it with ex ante discussion and debate on issues, whereby judgments would no longer communicate the initial view of national courts on a given issue, to be adjusted or confirmed following the judicial responses of their counterparts, but rather reflect a prior consensus. One example could be the conference hosted by the Conseil constitutionnel in 1997, which concerned the topic of judicial review of the constitutionality of secondary EU law. One year earlier, the Conseil constitutionnel and the Court of Justice had a bilateral meeting on the same issue, and this induced the Conseil constitutionnel to organise a broader conference, bringing together delegations of all courts having constitutional jurisdiction of the then 15 Member

122   We leave aside the question of whether we would observe competition among the various networks in response, and what the possible consequences of such competition, were it indeed to develop, would be. 123   But see the praiseworthy initiative of the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union, who invited representatives of the Network of the Presidents of the Supreme Judicial Courts of the European Union to participate in its working group on the preliminary rulings procedure.

Courts United? On European Judicial Networks  97 States.124 The starting point was that it would be impossible for the constitutional courts to comply fully with the primacy requirements imposed by the Court of Justice. According to a member of the Conseil constitutionnel: Pour ma part, il me semble que rien ne saurait être pire, pour de Conseil constitutionnel, que d’encourir – d’ailleurs injustement – le reproche d’avoir tant soit peu accepter de prêter, même indirectement, la main à une opération de retardement de la construction européenne.125

The solution to this conundrum, in his eyes, was to work together as ‘une grande réunion familiale européenne’.126 This meeting prepared the Conseil’s decision on the review of the constitutionality of secondary EU law.127 To be sure, an import­ ant factor in determining whether the scenario outlined above will actually materialise is the presence of, and role played by, the Court of Justice in judicial networks. In the case of the conference hosted by the Conseil constitutionnel, members of the Court reassured the constitutional courts that they understood the difficult position in which the latter found themselves, and that they would take this into consideration: Une grande responsabilité incombe à la Cour de justice, celle d’interpréter l’ensemble du droit communautaire en conformité avec ces principes, qu’elle doit identifier et formuler de façon suffisamment ouverte et en tenant compte, en particulier, de la jurisprudence des cours constitutionnelles.128

To be sure also, if and when we would observe that this judicial dialogue is increasingly being internalised as a result of the proliferation of judicial networks, there will be important questions of transparency and perhaps even accountability to consider. Finally, we may expect judicial networks to boost existing interpersonal contacts and dialogues. They provide a more structured context for such interactions and the routine organisation of conferences, colloquiums and the like ensures a degree of regularity to personal contacts. This may enhance the impact of such contacts, which can in turn strengthen the epistemic community of ‘European courts’ and generate further mutual trust and familiarity between courts. Importantly, judicial networks will foster the development of personalised 124   Thus including the United Kingdom and the Netherlands, whose courts were later refused membership of the Conference of European Constitutional Courts! 125   J Robert, ‘Le Conseil Constitutionnel en Europe’ (1996) Cahiers du Conseil constitutionnel 1. Author translation : ‘For my part, it seems to be that nothing could be worse, for the Conseil constitutionnel, than to be blamed – unfairly, by the way – for having to the slightest extent contributed, even in an incidental way, to an effort to delay the process of European integration’. 126  ibid. 127   Décision no 98-399 DC concerning the Loi relative à l’entrée et au séjour des étrangers en France et au droit d’asile, recueil 245, Journal officiel du 12 mai 1998, 7092. 128   Rapport de la Cour de Justice de Communautés Européennes. Author translation : ‘A great responsibility rests upon the Court of Justice, that of interpreting the whole of Community law in conformity with those principles, that it ought to identify and express in a sufficiently flexible way, and taking into account, in particular, the case law of constitutional courts’.

98  Maartje de Visser and Monica Claes relationships of a horizontal nature – so of national courts among themselves – which complements the current set of predominantly vertical relations. As such, it is no longer the Court of Justice that exclusively decides whether, when and how judicial interaction should take place: national courts too have a significant part to play in this respect. In the end, the rise of judicial networks will undoubtedly influence the existing relations between the Court of Justice and the national courts. It should be acknowledged that the impact that judicial networks may exert on existing dialogues between the European and national judiciaries – for instance their potential role as educational interlocutor or as leader of a judicial revolt – are not necessarily alternatives, but may instead be situated along a continuum. Also, in the same way that national courts should not be treated as a monolithic and homogenous group, so too it is important to evaluate each judicial network and the consequences it brings to bear on judicial dialogues separately and on its own merits. Whether one’s assessment of the impact of judicial networks on the relations between the Court of Justice and national courts should be positive or negative remains to be seen and will depend on the type of judicial system one believes should exist in the European Union.

B.  Uprooting National Courts? Thus far we have considered the influence of judicial networks on the relationship between the Court of Justice and national courts. This section adopts a more local perspective and asks what possible consequences networks could have for the functioning of national courts within their own domestic legal system. Until quite recently, judicial dialogues in Europe were very much incidental in nature. Judges did not actually meet and converse with their foreign counterparts, but were encapsulated in their own legal order and legal culture. With the exception of the fields of private international law and international law, contacts with judges in other legal systems were considered neither useful nor appropriate, for a variety of reasons: from a constitutional perspective, there was a concern not to compromise judicial independence and from a more practical perspective, differences in language and legal culture were seen as obstacles to meaningful cross-border interaction. Processes of globalisation and convergence, combined with membership of international organisations (especially the EU and the Council of Europe) have served as catalysts to change the world of the judge. Nowadays, judicial dialogues in Europe have become actual dialogues with participants meeting in person – not in the least as a result of the emergence of judicial networks. European judicial dialogues now also encompass real dialogues among international courts and among national courts, organised through judicial networks, the European Union, the Council of Europe or academia.

Courts United? On European Judicial Networks  99 Transnational dialogues of all sorts, vertical and horizontal, have become, in the words of Allan Rosas, ‘part of the judicial function’.129 But have they really? It would appear that transnational networking remains the terrain of an elite within the national judiciaries: not all courts participate in cross-border judicial networks and dialogues. Even for courts that are involved, only certain judges will actively participate – typically the more senior ones. Several processes are at work to draw these national judges into the network. Their shared position or role in their legal system could make judges that participate in judicial networks dependent on each other for resources such as information, legitimacy and authority. Resource-dependency may be reinforced by reputational enforcement. Low levels of performance on the part of any network member may result in a loss of respect in the eyes of the others and could result in that member being excluded from the realms of influence – think of being denied chairmanship or membership of a working group. On the one hand, judges that participate in judicial networks could perform somewhat of a ‘missionary function’ in their own state: they inform other members of the judiciary about the positions of their peers in other Member States; help to breed trust for inter-state contacts and/or generate a more pro-Europe sentiment within the national judicial system. This is clearly important for the effectiveness of EU rules based on mutual trust, such as those in the field of European criminal law. On the other hand, it could also happen that network membership and such ‘missionary’ behaviour serves to alienate these judges from their domestic counterparts, because they are perceived (rightly or wrongly) as overstating the import­ ance of European law and cross-border cooperation and undervaluing the specificities of the national legal order. This alienation could be even worse in Member States where the application of European law is left to specialised judges and chambers, with ‘Eurogroups’ exchanging views and experiences nationally.130 This is a practice frowned upon by the working group of ACA-Europe: In some national courts provision is made for a EU law – coordinating judge who may be consulted as an expert by his colleagues. Apart from problems which may rise as to the independence of the court, the working group regards this as a second best solution only, as it is of the opinion that the knowledge of European law in a chamber dealing with cases involving European law should not lean too much on outside judges or ‘coordinating judges’ as it is – and has to be – the chamber in question that knows the case well enough and is responsible for the decision.

129   A Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2007) 1 European Journal of Legal Studies 1, 16. 130   For the Netherlands, see briefly S Prechal, R van Ooik, J Jans and K Mortelmans, ‘Europeanisation’ of the Law: Consequences for the Dutch Judiciary, Research Memoranda no 2-2005, Raad voor de Rechtspraak; S Prechal, ‘National Courts in EU Judicial Structures’ (2006) Yearbook of European Law 429.

100  Maartje de Visser and Monica Claes V. CONCLUSION

Initially, judicial networks used to debate questions whose relevance was primarily assessed with reference to the national context. This has changed considerably. The topics for discussion are increasingly Europeanised and networks do not seem afraid to address fundamental issues of EU law. This development will only serve to enhance their influence, which, as we have seen, these networks in turn use to make suggestions to the Court of Justice for instance on the direction of its case law – recall the call for a relaxation of CILFIT and clarification of Köbler. It is clear that networks are here to stay, and that they will change the judicial field, both at the European and at the domestic level, by contributing to the development of a ‘transnational community or communities of European judges’. This trend evokes fundamental questions, some of which have been addressed in this chapter. For instance, will the Court of Justice be able to remain the primus inter pares in the European judicial system? The answer, we suggest, will in part depend on factors endogenous to the various networks such as their membership (is a role foreseen for the European Courts?) as well as their objectives and activities. In addition exogenous developments will have a part to play here, such as the future amount of litigation with an EU dimension. In any event, judicial networks can – and do – provide a missing link in the European judicial system, by fostering ties between national courts in various Member States. In addition, they can contribute to improving the vertical inter­ action between the Court of Justice and national courts, an aim that is also recognised by the working group on preliminary references: ‘contact between the national courts and the Court of Justice should be encouraged, even by non-­ classical methods like the telephone’.

5 European Union Law: A Unified Academic Discipline? BRUNO DE WITTE

I. INTRODUCTION

T

HIS CHAPTER1 DEALS with one sub-field of European Union law, constituted by what in French one would call la doctrine, in German die Rechtslehre and in English legal writing. Most of this legal writing is produced by professional academics (hence the reference in the title to European Union law as an academic discipline) who are mostly based at universities,2 but some of it is produced by judges, civil servants or practitioners – in fact, EU law has been marked, especially in its early years, by the large proportion of legal writing produced by ‘insiders’, that is legally trained members of the EU institutions. The main purpose of this chapter is to explore the extent to which this group of European law academics can be said to constitute a true community. Is it a unified group or is it deeply fragmented along national or other lines? This chapter does not aim at dealing with other, related, questions, such as that of the substantive characteristics of legal scholarship (what are its main themes? which are the ideological currents?) or that of the influence of legal academics on the actual development of EU law.3 The first thing one can note is that legal scholars display a surprising lack of interest in legal scholarship, or at least they tend not to make it an object of their writing. There is no apparent interest in ‘mapping the field’ of the kind which one 1   A first version of this chapter was presented at a conference on The European Legal Field, which was organised in September 2008 by Antoine Vauchez and Bruno De Witte at the Robert Schuman Centre of the European University Institute in Florence. 2   Legal science is characterised by the fact that, compared to other social sciences, there is only a very limited number of research centres situated outside the universities. 3   For a comparative law essay about the influence of legal academics on the development of the law (but without specific reference to European law), see W Twining, W Farnsworth, S Vogenauer and F Tesón, ‘The Role of Academics in the Legal System’ in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, Oxford University Press, 2003) 920. Specifically on the UK, see N Duxbury, Jurists and Judges: An Essay on Influence (Oxford, Hart, 2001). And on Germany, see S Vogenauer, ‘An Empire of Light? II: Learning and Lawmaking in Germany Today’ (2006) 26 Oxford Journal of Legal Studies 627.

102  Bruno de Witte finds in political or sociological scholarship.4 This general characteristic of legal academia is also true for European Union law. The scholars specialising in the field rarely, if ever, indulge in self-reflective inquiries. They write frequently about the nature of their object (what is European Union law?) but not about the nature and state of their own trade (what is European Union legal scholarship?). The few writings by EU law scholars that deal with the state of the academic discipline mainly deal with the content of scholarship,5 and only very few deal also with the structure and organisation of EU law scholarship,6 which is my concern in this chapter. It remains to be seen whether the growing interest taken in EU legal scholarship by scholars from other disciplines, as exemplified by this volume, will encourage greater self-reflection (or rather, the written expression of such selfreflection) by EU law academics. Treating the individuals who freely indulge in legal writing (in the case of judges or practitioners), or who are contractually obliged to produce legal writing (in the case of university-based academics), as potentially forming a community is itself an idea which makes more sense in some countries than in others. In a recent study of German legal academia, the author stated that ‘German lawyers take it for granted that there is a body of persons, writings and opinions that, in its entirety, constitutes “the doctrine” (die Lehre), “the legal doctrine” (die Rechtslehre), “legal science” (die Rechtswissenschaft) or “the literature” (das Schrifttum).’7 Similarly, in France and in Italy, la doctrine and la dottrina have traditionally been conceived as an abstract entity beyond the collection of individuals that compose it.8 This is not the case in other countries, such as the United Kingdom. So, already at the meta-level of whether it makes sense to conceive of legal academics as a body with collective views and opinions, there is a cultural fragmentation along national lines. 4  But see the intriguing essay by W Twining, ‘Mapping Law’ (1999) 50 Northern Ireland Legal Quarterly 12, reproduced in W Twining, Globalisation and Legal Theory (London, Butterworths, 2000) ch 6. 5   See, eg, J Shaw, ‘European Union Legal Studies in Crisis? Towards a New Dynamic’ (1996) 16 Oxford Journal of Legal Studies (1996) 231; A von Bogdandy, ‘A Bird’s Eye View on the Science of European Law: Structures, Debates and Development Prospects of Basic Research on the Law of the European Union in a German Perspective’ (2000) 6 European Law Journal 208; N Walker, ‘Legal Theory and the European Union: A 25th Anniversary Essay’ (2005) 25 Oxford Journal of Legal Studies 581; D Curtin, ‘European Legal Integration: Paradise Lost?’ in D Curtin, A Klip, J Smits and J Mccahery (eds), European Integration and Law (Antwerp, Intersentia, 2006). See also a number of interesting contributions in a French-language volume: F Picod (ed), Doctrine et droit de l’Union européenne (Brussels, Bruylant, 2009). 6   H Schepel and R Wesseling, ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ (1997) 3 European Law Journal 165; J Shaw, ‘The European Union: Discipline Building Meets Polity Building’ in P Cane and M Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, Oxford University Press, 2003) 325; A Arnull, The Americanization of EU Law Scholarship in A Arnull, P Eeckhout and T Tridimas (eds), Continuity and Change in EU Law – Essays in Honour of Sir Francis Jacobs (Oxford, Oxford University Press, 2008) 415. 7   Vogenauer, ‘An Empire of Light?’ (n 3) 631. 8   See, esp, P Jestaz and C Jamin, La doctrine (Paris, Dalloz, 2004); and P Jestaz and C Jamin, ‘The Entity of French Doctrine: Some Thoughts on the Community of French Legal Writers’ (1998) 18 Legal Studies 415. For Italy, see A Braun, ‘Professors and Judges in Italy: It Takes Two to Tango’ (2006) 26 Oxford Journal of Legal Studies 665, 680.

European Union Law: A Unified Academic Discipline?  103 In the following pages, I will first (in section II) present the ‘unity hypothesis’, that is, the factors that might lead us to conceive of EU legal scholarship as a relatively unified academic discipline, and then move to consider (in sections III and IV) the main elements that have caused, and continue to cause, fragmentation, with an emphasis on the existence of geographical and disciplinary boundaries.

II.  THE UNITY HYPOTHESIS

There are several reasons why one would expect EU legal scholarship to form a relatively close-knit and homogenous community. First of all, the academic ‘branch’ of European Community law was created quite some time ago and quickly assembled all the paraphernalia of a true legal sub-discipline. More precisely, one can date the emergence of the academic discipline of Community law to the early and mid-60s, and localise it, obviously, in the original six Member States of the European Communities.9 A number of Institutes of European Law were created in those years, in places such as Brussels, Leiden, Utrecht, Cologne, Paris, Liège and Padua, offering an infrastructure for teaching and research in the brand-new discipline. In some countries, particularly the Netherlands, special chairs for European Community law were established, whereas in other countries new courses in EC law were offered by academics belonging to an established discipline (an issue which I will address later in this chapter). A number of specialised journals were started one after the other, including Common Market Law Review,10 Cahiers de droit européen, Revue trimestrielle de droit européen, Europarecht, Rivista di Diritto Europeo, all still alive and thriving except for the last named. In each Member State, associations of European Community lawyers were set up and together they formed a Fédération Internationale de Droit Européen, which still exists today and manifests its existence essentially by the organisation of large two-yearly conferences. This early group of Community law scholars had a clear common purpose. Apart from commenting on the concrete legal developments in EC legislation and case law (which were very modest compared to what they are today), they devoted much of their intellectual energy to highlighting the novel characteristics of the Community legal order. Based on an analysis of the judgments of the European

9   On this period of emergence of EC law, see A Vauchez, ‘Integration-through-Law – Contribution to a Socio-History of EU Political Common Sense’ EUI Working Papers RSCAS 2008/10, 21–22, and also, by the same author: ‘Une élite d’intermédiaires – Genèse d’un capital juridique européen (19501970)’ Actes de la recherche en sciences sociales 166–67, 54. 10  The Common Market Law Review was founded in 1963 at the University of Leiden in the Netherlands. The mission of the Review was defined, in its first editorial, as that of building a bridge between the continent and the UK, and providing interested readers in the UK with a view of legal developments in the Community of the Six. Its initial board of editors had four British and four Dutch members, and one each from Belgium, France, Germany and Italy. The vast majority of the contributors, in the years prior to UK accession, were based on the continent.

104  Bruno de Witte Court of Justice in Van Gend en Loos (1963) and Costa v ENEL (1964),11 they propagated the need for the uniform application of EC law and its integration in the legal orders of the Member States.12 Thus, from the start, EC law aspired to become truly uniform law, in contrast with traditional public international law whose domestic application was (and still is) very uneven depending on the different constitutional rules and practices of each country. In fact, the uniform application of EC law has become a leitmotiv in the case law of the ECJ. Whereas most norms of Community law, whether contained in directives or in regulations, are implemented and applied by national authorities and courts, the European Court has insisted that this domestic transposition and application of European norms should not distort the content of the norm. It has often held that the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community13

and that this requires, among other things, a consideration of all the language versions of a given Community law measure.14 It is clearly utopian to think that national courts or authorities will be able to consult and compare all the (more than 20) language versions of an EU law norm,15 but stating this as a rule of interpretation certainly expresses a strong invitation to look ‘across the border’ when interpreting and applying EU law. This aspiration to uniformity, a true hallmark of the EC legal order as it was developed from the 1960s, is thus a reason to expect the emergence of an academic community which is fairly homogeneous across national lines. Since EU law applied in Germany must be the same as EU law applied in Poland, one would expect EU legal writing to adopt a cross-national outlook in its comments and analysis. Another factor of unity, which was duly noted by Schepel and Wesseling in their pioneering empirical study of 1997,16 is the active participation of lawyers working for the European institutions, and members of the Court of Justice and their legal secretaries, in scholarly writing, including the writing of textbooks17 11   Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1; Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 12   See, on this propagation of the direct effect and supremacy doctrines in the 1960s through a network of practitioners and academics, the study by Vauchez, ‘Integration-through-Law’ (n 9). 13   ECJ, Case C-188/03 Irmtraud Junk v Wolfgang Kühnel, judgment of 27 January 2005, [29]. Similar language can be found in many judgments of the Court. 14   ibid at [33]. 15   Indeed, it is difficult enough for the European Court of Justice to deal with discrepancies between the language versions of a given text in its own interpretation of EU law; see, eg, G Van Calster, ‘The EU’s Tower of Babel – The Interpretation by the European Court of Justice of Equally Authentic Texts Drafted in More than One Official Language’ (1997) 17 Yearbook of European Law 374. 16   Schepel and Wesseling, ‘The Legal Community’ (n 6). 17  eg, one leading English-language textbook of EU law is co-authored by a current judge at the European Court of Justice and by one of his former référendaires: K Lenaerts and P Van Nuffel, European Union Law, 3rd edn (London, Sweet & Maxwell, 2011). Similarly, ECJ judge Allan Rosas co-authored a textbook: A Rosas and L Armati, EU Constitutional Law – An Introduction (Oxford, Hart, 2010).

European Union Law: A Unified Academic Discipline?  105 and the editing of legal journals. They showed, in their study, that from the early years of the Communities a close connection was established between academics and practitioners, including frequent circulation of individual scholars from one sub-field to the other, with university professors becoming judges or members of the Commission or Council legal service and vice versa, and many persons exercising both functions simultaneously. One typical figure of EU law is, in fact, that of the member of the Court of Justice who writes abundantly in scholarly journals, is an editor of a few of them, and teaches EU law in places such as the College of Europe. This close-knit interaction caused la doctrine to be, at least in the early decades, very supportive of the work of the EU institutions, and in particular of the Court.18 In a more recent publication dealing with another subject, one of the authors summed up and confirmed the views outlined in the 1997 article in the following terms: Les communautaristes forment un groupe très uni, qui circule tout naturellement entre l’université, les institutions politiques et le monde économique. Leur ethos est profondément pragmatique, ouvertement hostile aux idées grandioses, et sous-tendu par une conception clairement instrumentale du droit. Leur engagement collectif en faveur de l’intégration estompe leurs divergences politiques et leurs controverses techniques.19

We find, in this passage, a nutshell definition of an academic discipline which is institutionally well-integrated and which possesses a common sense of purpose. However, each of the three sentences contains highly disputable statements which may have been true at some earlier epoch, but may no longer be true today. The last sentence assumes that EU law scholars, taken as a whole, support the deepening of European integration. Yet, one increasingly finds legal writing that criticises the general direction taken by the integration process (for example, through the drafting and adoption of the Constitutional Treaty), and of particular pieces of legislation and judgments of the European Court of Justice. Today, legal writing is as critical of EU law-making and judicial interpretation as comparable national legal scholarship, and la doctrine, taken as a whole, is no longer throwing its weight behind plans for ‘more Europe’.20 The second sentence, referring to an ingrained pragmatism and instrumental view of the law, is probably less true than 18   On this phenomenon, see Schepel and Wesseling (n 6) and also Shaw, ‘The European Union’ (n 6) 336. 19   H Schepel, ‘Professorenrecht? Le champ du droit privé européen’ (2005) 26 Critique internationale 147, 152. Author translation: ‘Community lawyers are a very united group, and they move seamlessly between the university, political institutions and the business world. Their ethos is profoundly pragmatic, openly hostile to grandiose ideas, and based on a clearly instrumental conception of law. Their collective commitment in favour of European integration prevails over their political disagreements and technical controversies.’ 20   For a typical mix of critical and supportive assessments of the Court’s case law, see the contributions in HW Micklitz and B De Witte (eds), The European Court of Justice and the Autonomy of the Member States (Antwerp, Intersentia, 2012). The situation may be different from one country to another. It has been argued, eg, that French-language doctrine of European law remains on the whole very consensual in its attitude to the Court’s case law: C Blumann, ‘Querelles internes’ in Picod, Doctrine et droit de l’Union européenne (n 5) 93.

106  Bruno de Witte it used to be. As the number of academics specialising in EU law increases, there is more room for theoretically inclined and normative assessments of the evolution of EU law and its different branches. But the remainder of this chapter will deal, in particular, with the plausibility of the statement in the first sentence: do EU legal writers really constitute un groupe très uni?

III.  FRAGMENTATION THROUGH LEGAL EDUCATION

A theoretical basis for scepticism about the existence of a single Europe-wide scholarly community is provided by the ‘law-as-culture’ school in comparative law.21 Writers of this persuasion have expressed deep scepticism about the feasibility of comparative legal analysis and about transplants of norms and institutions between legal orders. They posit the ‘incapacity on the part of those immersed in one legal system to appreciate the deep context and meaning of other systems’.22 Their emphasis on the incommensurability of legal cultures and legal systems has become influential (though controversial) in the field of comparative law, but the views of these writers are clearly relevant also for the field of European Union law. In part, this is because EU law is only partly uniform and for the other part absorbed into 27 different national legal systems. But also where EU norms are formally speaking uniformly applicable throughout the territory of the Union (as in the case of the rare EU regulations that do not require national implementing measures), they will be understood and handled in a different way by lawyers depending on the legal culture to which they belong. The domestic interpretation and application of EU law does not involve the interpretation and application of a norm belonging to a foreign legal system (as is the case in comparative law scholarship and in the practice of legal transplants), but it still concerns a norm from another legal system than one’s own – and this otherness is faced by academics as well as by judges and practitioners, since EU law is another legal system than the one in which they were trained and whose culture they have absorbed during that training process. The EU law that is studied in each country is therefore a ‘legal hybrid’, a European law which is contextualised and transformed by the national legal order in which it is articulated.23 Professor Jolowicz put it in the following metaphorical terms, some 30 years ago: 21  Characteristic writings from this school include: P Legrand, Fragments on Law-as-Culture (Deventer, Tjeenk Willink, 1999); P Legrand, ‘The Same and the Different’ in P Legrand and R Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge, Cambridge University Press, 2003) 240. For discussion of this approach to comparative law, see R Cotterell, ‘Comparative Law and Legal Culture’ in M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press, 2006) 709. 22   N Walker, ‘Culture, Democracy and the Convergence of Public Law: Some Skepticism about Skepticism’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart, 2002) 257, 258 (the author of this description is not himself part of the school). 23   Walker, ‘Legal Theory and the European Union’ (n 5) 583.

European Union Law: A Unified Academic Discipline?  107 It is not to be expected that the insertion into different legal systems of a single text will produce identical or even similar results in all those systems any more than it is to be expected that the addition of a litre of green paint to four litres of yellow will give us the same colour as the addition of the same quantity of the same paint to four litres of red.24

In fact, the validity of the ‘law-as-culture’ thesis appears to be crucially linked to the conditions of legal education. A child born in Birmingham is not a natural common lawyer, nor does the young Tuscan acquire a ‘civiliste’ frame of mind in secondary school. It is, rather, university and professional legal training that instil the deep understanding of law as expression of a particular legal culture. Now, to what extent can it be said that the understanding which legal academics have of EU law is determined by the particular legal system in which they received their early training? The training of many EU law academics took indeed place within the confines of a national university system, in which the emphasis is clearly on learning about the national legal system first, and learning about European Union law (if at all) in the light of the categories and ways of argument of the national system. Thus, their perspective on European law was formed on the basis of a university curriculum which situated the national legal system at the centre of the legal universe. The fragmentation effect which this causes is visible both in terms of academic style and academic content. As to academic content, the themes of EU law which academics explore are often determined by the importance given to them in the university canon of their own country. This question has never been properly studied, at least not for EU law,25 but, to give just one example, it is surely no coincidence that much of the legal writing on the system of sources of EU law has been produced by French scholars, and that UK scholars fail even to register this as a distinct topic of EU law scholarship. The same is true for academic style. For example, the French rigid writing structure (with the plan en deux parties) applies to EU law as much as to any other legal discipline. Similarly, scholars of EU law who have been educated in a German law school will typically display a style of EU law scholarship which corresponds to the dominant style used by domestic law scholars. It is characterised, according to a description proposed by a German academic working in the UK, by a ‘struggle for rationality, systematic coherence, logical consistency, building on first principles, obsession with taxonomy, abstractness, precision and clarity of concepts’. It is, to put it in a nutshell, ‘still very much under the spell of 19th-century “legal science’’’. 26 24   JA Jolowicz, ‘New Perspectives of a Common Law of Europe: Some Practical Aspects and the Case for Applied Comparative Law’ in M Cappelletti (ed), New Perspectives for a Common Law of Europe (Leiden/London, Sijthoff, 1978) 237, 244. 25   But see the attempt to map the distinctiveness of German legal scholarship in the neighbouring field of public international law, in ‘Typisch Deutsch . . .: Is there a German Approach to International Law?’, special issue (50th volume) of the German Yearbook of International Law (2007) 15–456. 26   Vogenauer (n 3) 657.

108  Bruno de Witte This form of fragmentation is of course self-perpetuating: to the extent that university teachers are themselves steeped in their national legal traditions, and use the EU law literature written in their own language, the legal education system will tend to perpetuate this nationally coloured outlook on EU law for the next generation of students. On this point, one would need to have a closer look at textbooks, which are the privileged means through which EU law scholarship is passed on to students, but it is probably safe to assume that these textbooks, because of their synthetic approach, will be even more clearly focused on scholarship produced within the country or within the language community than other more specialised legal writings. If one takes, for example, a very widely used English language textbook of EU law, Craig and de Búrca’s EU Law – Text Cases and Materials,27 each of the 29 chapters is followed by a list of further references comprising from a minimum of 5 to a maximum of about 30 items of legal writings; only 3 of those approximately 600 items are written in another language than English. The same is true, by and large, for the other English-language textbooks. This instils in young EU law scholars the feeling that it is possible and normal to write intelligently about EU law as if it were exclusively produced and commented upon in English. Textbooks in other main European languages similarly refer predominantly to writing in their own language, although this may be changing gradually. Examples of a new, more plurilingual approach, are a recently published French textbook of European law, written by two scholars of the younger generation, who refer extensively also to writing on EU law in English,28 and Ulrich Haltern’s Europarecht, which uses as much, if not more, English as German literature.29 It would seem, therefore, that national systems of legal education have a massive fragmenting effect on EU law scholarship. However, a number of factors weaken the ‘nationalising’ impact of legal education on the formation of future EU law academics. The first of these factors is that a large number of students (especially among the bright students who might become academics) actually study EU law in other countries than the one in which they receive their basic legal training. From the start, training in European law was not an exclusively national affair. In the early decades of European integration, when EC law was integrated in the national law curriculum to a very limited extent, knowledge of EC law was typically acquired in a specialised postgraduate programme, such as those of Nancy, Strasbourg and Saarbrücken. The most important of those programmes was the College of Europe in Bruges, a true breeding ground of EU law specialists who, in many cases, went on to work for the EU institutions.30 At the more specific level of training future 27   P Craig and G de Búrca, EU Law: Text, Cases and Materials 5th edn (Oxford, Oxford University Press, 2011). 28   JS Bergé and S Robin-Olivier, Droit européen: Union européenne, Conseil de l’Europe, 2nd edn (Paris, Presses Universitaires de France, 2011). 29   U Haltern, Europarecht – Dogmatik im Kontext, 2nd edn (Tübingen, Mohr Siebeck, 2007). 30   For a sociological study of the role played by the College of Europe in general (that is, also in other fields than the law), see V Schnabel, ‘Elites européennes en formation. Les étudiants du Collège d’Europe et leurs études’ (1998) Politix (1998) 33.

European Union Law: A Unified Academic Discipline?  109 legal academics, the European University Institute in Florence has played a similar role of denationalisation of legal scholarship, although the emphasis of its law doctoral programme (unlike in Bruges) was never exclusively on EU law, and its unifying role is probably more implicit than deliberate.31 More recently, this denationalisation of the study of European law started to occur at undergraduate level as well. We can observe, today, that many Erasmus exchange students study EU law also, or even mainly, during their exchange period abroad rather than in their home university. This happens for a number of reasons, which include the perception that EU law is a more easily accessible subject in a foreign university context than courses in the law of the host university’s country! As a result of these developments, a sizeable number of EU academics32 have obtained their first or advanced training in EU law in another country than their own, so that their understanding of EU law becomes ‘transnationalised’ and partly divorced from their understanding of the domestic law of their country of origin. A second factor is also linked to the operation of the Erasmus programme. The programme has, contrary to its stated ambition of strengthening cultural diversity in Europe, promoted the diffusion of English as EU law’s lingua franca. Indeed, many universities in the smaller countries of Northern Europe have decided to offer law courses in English, in order to be sufficiently attractive to foreign students; in the case of law studies, the parts of the curriculum that were most easily Anglicised were EU law and international law, rather than the courses dealing with the various branches of national law. The Erasmus-induced student mobility has thus led to the large-scale use of English and English-language literature for teaching EU law outside the UK and Ireland. Examine, for example, the webpage of the University of Edinburgh’s School of Law dedicated to its Erasmus exchanges.33 It lists the participating institutions and mentions the languages they use: the French, German and Spanish universities offer courses taught in their respective national languages, but for the other European destinations, namely Belgium, Denmark, the Netherlands, Norway and Sweden, the webpage reassuringly indicates that the courses will be taught in English (which presupposes that the Edinburgh students will not venture to take courses in Belgian, Dutch etc law, but will stay with the selected English-language offering of their host institutions, which invariably includes one or more courses of EU law). Obviously, the switch to English and to English-language literature also applies to the ‘home’ students of those law schools, since the schools often cannot afford the luxury of offering parallel courses of EU law in the national language and in English. Thus, a Dutch student who studied European law at the University of Maastricht based on the 31   See F Snyder, ‘The EUI Law Department and the Europeanisation of Law: An Introduction’ in F Snyder (ed), The Europeanisation of Law – The Legal Effects of European Integration (Oxford, Hart, 2000) 1; see also the Autumn 2005 issue of the EUI Review (available online). 32   Although it is true that less than 4% of university students take part in an Erasmus exchange during their studies, the percentage is probably much higher among EU law academics – that is, of course, among those who obtained their law degree during the lifetime of the Erasmus programme. 33  www.law.ed.ac.uk/erasmus/participatinginstitutions.aspx.

110  Bruno de Witte EU Law textbook by Craig and de Búrca has imbibed a vision of EU law that does not reflect Dutch legal culture. This ‘blurring’ of legal cultures also happens at later stages of the academic career. Indeed, the third factor that counteracts national fragmentation in university education is the fact that, in a number of countries, university positions in the field of EU law are wide open to foreign nationals. In theory, all university positions are now open to all EU citizens, on the basis of the rules on the free movement of persons of the EU Treaty. In practice, though, the mobility of university professors and lecturers is rather limited, particularly in the field of legal studies. The rules on academic recognition and the recruitment practices of universities, particularly in the large continental countries of France, German, Italy and Spain, are organised in such a way that it is very difficult for foreign-trained scholars to be appointed.34 In contrast with them, countries such as the United Kingdom and the Netherlands are easily accessible to foreign-trained scholars and both these countries might, today, have a majority of EU law academics who obtained their initial legal training in countries other than the UK or the Netherlands. For academics who are based, and teach, in another European state than the one in which they received their basic legal education, the national legal system of reference may become, with time, that of the country in which they live or else (and perhaps more frequently) they may form islands of truly trans­national research on EU law. The fourth factor is the recent phenomenon whereby a small, but increasing, number of students opt for complete undergraduate legal studies at a foreign institution, which may involve either student mobility or the cross-border provision of legal education. Both these modalities of transnational education are permitted by the application of EU Treaty rules on freedom of establishment, freedom to provide services and Union citizenship. It is not uncommon, now, for a Greek student to obtain her legal education in France (or from an English university through distance learning), or for a German student to obtain a Dutch law degree. Luxembourgers necessarily had to study law abroad in the absence, until very recently, of a university at home, and this allowed for the emergence of some typically ‘cosmopolitan’ jurists such as former ECJ judge Pierre Pescatore, who had both studied and worked in several European countries other than his own.35 The fifth factor relates to the non-academic segment of EU law scholarship. Many of the legal specialists working for the EU institutions have spent most or all of their career inside these institutions, and have become thoroughly socialised into the frame of mind of the ‘supranational’ EU lawyer. This is reflected in their writings which, after some years, feel more like ‘Brussels’ than like Dublin, Heidelberg or Salamanca. 34   On the legal academic recruitment patterns in a selected group of countries, see the symposium papers edited by U Mattei and PG Monateri, ‘Selecting Minds’ (1993) 41 American Journal of Comparative Law 351. Little has changed since 1993. 35   Vauchez (n 9) 61.

European Union Law: A Unified Academic Discipline?  111 To conclude on this point, we find that the legal culture of many European law academics is a disaggregated and recomposed legal culture. The field is composed of two rather different groups of scholars: those who have been trained inside the traditions of a national legal system, and have encountered EU law within that context; and those (a growing number) who have a transnational perspective of the discipline, either because they lack a specifically national vantage point altogether or because they have become thoroughly socialised in a transnational professional context.

IV.  FRAGMENTATION IN THE PRODUCTION OF LEGAL SCHOLARSHIP

After our summary examination, in the previous section, of the degree to which legal education structures promote fragmentation in EU law scholarship, we will now turn to another (not unrelated) dimension of the unity vs fragmentation debate, namely the way in which the diffusion of EU law scholarship is organised. Here as well, the first impression is not that of a closely knit community of scholars continuously speaking to each other (as the Schepel/Wesseling study of 1997 suggested), but rather that of a deeply segmented field with groups of scholars organised along national/linguistic and disciplinary lines.

A.  National/Linguistic Fragmentation We will start with the most obvious source of fragmentation in the diffusion of EU law scholarship: the fact that it takes place in different languages and through separate publication channels without much interaction between them. As one indicator of this degree of territorial fragmentation, I propose some data36 relating to the geographical origin of the contributors to some of the leading European law journals. By geographical origin, we mean here the country of the author’s principal professional affiliation rather than her nationality. We made separate categories for each of the 15 ‘old’ Member States, and lumped the 12 Member States that joined after 2004 together in one category ‘New Member States’. In addition, we added a category ‘EU’ for the authors who work for one of the European Union institutions (or for the European University Institute in Florence), and therefore cannot be assigned, professionally speaking, to one particular country. The data relate to the years 2005 and 2006, and also to the years 1995 and 1996 in order to signal any major changes that may have occurred over the previous decade. They indicate a very clear divide between on the one hand 36   The data were collected by Gracia Marín Durán, research assistant of the Academy of European Law of the EUI. They were published more extensively in the annex of EUI Working Paper RSCAS 2008/34. See also the data presented in a detailed study of the content and authorship of Frenchlanguage journals of European law: F Snyder, ‘Creusets de la communauté doctrinale de l’Union européenne: regards sur les revues françaises de droit européen’ in Picod (n 5) 35.

112  Bruno de Witte the German, Italian and Spanish journals which are overwhelmingly written by authors from the country in which the journal is based and on the other hand the English-language journals which present a very diverse picture in this respect. The French-language journals are situated in between. This pattern has not changed much during the last decade. More specifically, we found for the Italian journal Il Diritto dell’Unione Europea that 33 of the 38 authors for the year 2005, and 31 out of 36 authors for 2006 were based in Italy, and the remainder (with one exception) was affiliated with the EU institutions. In Europarecht, 38 out of 39 authors in the year 2005 were based in Germany, and 40 out of 41 in 2006. Among the French-language journals of our sample, there is a clear difference between the Revue trimestrielle de droit européen, based in France, whose contributors are predominantly located in France (though with a large number of EU-based contributors in the year 2005) and the Belgiumbased Cahiers de droit européen which has a more varied pattern, but with Belgian authors forming the largest group in most years. One finds a similar distinction between the two English-language journals included in the sample. Whereas the European Law Review, based in the UK, recruits about half of its contributors from the UK, the Common Market Law Review, based in the Netherlands, has a much wider spread. In fact, this journal has traditionally had a very diverse range of authors including, along those based in Britain, also an important number of Dutch, Belgian, German and EU-based authors.37 The Revue du Droit de l’Union Européenne is different from all others. This journal was founded by jurists working for the European Commission, and its contributors are still overwhelmingly affiliated with one of the EU institutions; although their articles are all published in French, the nationalities of the authors are quite diverse. This compartmentalisation of the non-English journals is largely due to language barriers. For example, very few non-Italian scholars are able to write in Italian and Italian journals do not have the means to make more than the occasional translation of a foreign text. This language-induced fragmentation may be compared with the neighbouring field of public international law. There, one can observe that in Germany, Spain and Italy, alongside journals in the national languages, there are also periodical publications that have adopted English: the German Yearbook of International Law, the Italian Yearbook of International Law and the Spanish Yearbook of International Law. The former of these switched to English long ago (in 1976) and publishes the work of numerous authors who are not based in Germany, as well as contributing to the diffusion of German scholarship abroad. This cosmopolitan character contrasts quite sharply with the Germany-centred composition of the journal Europarecht, whose valuable articles are rarely perceived abroad, owing to the language factor. 37   Three other English-language journals based in the Netherlands that deal, to a large extent, with EU law, namely the Legal Issues of Economic Integration, the European Constitutional Law Review and the Maastricht Journal of European and Comparative Law, show the same pattern of multinational authorship.

European Union Law: A Unified Academic Discipline?  113 This summary view, based on the examination of a limited number of mainstream EU law journals over a limited number of years, provides only a rough indication of the degree of ‘output’ fragmentation of EU law scholarship. It would need to be complemented and qualified by consideration of other, less mainstream journals, which offer a very different perspective. For example, the Revista de Derecho Constitucional Europeo, an online journal edited by the University of Granada,38 contains very many (often translated) contributions by authors from outside Spain. One should also mention here the European Law Journal which has moved its editorial seat from Italy to France and then to the UK and has a cosmopolitan authorship to an even greater extent than the other two English-language journals mentioned above. It also has a special feature, namely the annual publication of a set of papers written by young European law authors based in institutions spread all over Europe and beyond, selected from among those presented at an annual International Workshop of Young Scholars. A more refined indicator of geographical closure (or, conversely, cross-national fertilisation of ideas) would be the practice of referring to publications in other languages than the one in which one writes. There, the picture is quite different from the one sketched above. Although I cannot offer concrete data here, there are some noticeable differences between countries on this point as well. Generally speaking, scholars writing in Italian and Spanish, despite the existence of a rich literature in their own language, tend to make frequent reference to the foreignlanguage literature, and not only in English. The same is true, of course, for those writing in the smaller European languages. In contrast, most authors writing in German and French hardly use any literature in other languages than their own, although there is a growing minority of mainly young authors who examine also the scholarly production in other languages (in fact, mostly English, in both cases).39 Among those writing in English, there is also a majority/minority cleavage, but of a different nature: here the smaller group of those who make frequent use of foreign-language literature is mainly composed of those authors who are not based in Britain or Ireland. For example, a Dutch academic writing for an English-language law journal will quite naturally include Dutch, German and perhaps French writers among her references to the literature. Interestingly, though, the many EU law scholars of foreign origin who are employed by British universities tend to adopt the habit of their British-born colleagues of using exclusively English-language sources. It is a sure sign of the growing hegemony of English that these authors, who have easy mother-tongue access to other European languages, do not bother using the legal literature produced in those other languages.  www.ugr.es/~redce.   A good example of the new trend is the sample of EU law scholarship from Germany and Italy published in English in the series of Jean Monnet Working Papers of New York University: A von Bogdandy and JHH Weiler (eds), ‘Symposium: European Integration – The New German Scholarship’ Jean Monnet Working Papers 9/2003; R Toniatti and JHH Weiler (eds), ‘Symposium: European Legal Integration – The New Italian Scholarship’ Jean Monnet Working Papers 06-07 to 12-07. 38 39

114  Bruno de Witte So, it may be tempting to divide EU law scholarship in two groups: Englishlanguage scholarship and the rest. The former group is multinational in its composition, and is rather widely read and cited by their colleagues operating through other languages; the latter group operate en vase clos, in the sense that they may form a thriving and lively scholarly community within their language area, but are largely ignored by the rest of the world unless they make the effort to occasionally publish in English. There is, thus, a tendency for the English-language cluster, composed of many British and Irish scholars, a smaller group of Americans, and a growing group of scholars from Northern and Central Europe, to dominate the field, but this dominance is not absolute and uncontested. More particularly, it is difficult to argue that English-language scholarship is more influential than the rest when it comes to the actual evolution of EU law. It is, of course, difficult to measure influence, but one small indicator is the extent to which legal writing is transmitted to the European Court of Justice through the opinions of the Advocates General. Indeed, it is rather common for such opinions to refer to the scholarly literature dealing with the legal issue that is at stake in the case at hand.40 Advocate General Poiares Maduro, for example, cited 10 pieces of legal literature in his opinion of 21 May 2008 in the case Arcelor (dealing with the interpretation of the principle of equality and the relationship between the European Court and national courts),41 Advocate General Bot cited 13 pieces of legal writing in an opinion of 8 July 2008 in a dispute between the Commission and Italy dealing with the regulation of motorcycle trailers;42 and Advocate General Trstenjak, in her opinion of 3 July 2008 in SELEX Sistemi Integrati (a competition case) cited 15 different academic writings.43 It would seem that the national origin of the Advocate General is an important factor in the choice of the literature: whereas all Advocates General tend to use French and English literature, the use of writings in other languages is more sporadic and depends on the language skills of the Advocate General and his/her collaborators. Some Advocates General tend not to mention the doctrine at all; for example, in an opinion of Advocate General Mazak of 10 July 2008 in the Förster case, which deals with a controversial problem of Union citizenship on which there is abundant legal writing, one finds references to literally dozens of earlier ECJ judgments but not a single reference to the literature. It seems that the influence of legal scholarship on law-making and judicial decisions is limited by its fragmentation. The existence of national sub-communities means that it is much more difficult for something like a ‘European prevailing opinion’ to emerge, which could play a similar role as the herrschende Lehre in the German legal culture. In Germany, the prevailing doctrine is a well-known 40  See M Lasser, Judicial Deliberations – A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford, Oxford University Press, 2004) 122 ff. For a detailed analysis of the reference to legal writing in Opinions of the Advocates-General, see F Picod, ‘Doctrine et pouvoir juridictionnel’ in Picod (n 5) 145. 41   Of which five in French, four in English and one in Italian. 42   Of which nine in English and four in French. 43   Of which nine in German, five in French and two in English.

European Union Law: A Unified Academic Discipline?  115 concept which plays a practical role, in the sense that even judges and law-makers feel under an obligation to give good arguments when they wish to depart from the prevailing doctrine.44 There is no such thing in EU law.

B.  Disciplinary Fragmentation In 1989, the European Commission started its Jean Monnet Action Programme, a funding scheme which sought to promote university teaching on questions of European integration. Much of the funding since then has gone on the creation of new chairs or course modules of EU law. The Commission considered, indeed, that such a financial incentive was needed in order to convince the conservatively minded national education authorities and universities to give EU law its rightful place within the curriculum. It is true that prior to the Jean Monnet Programme only a few countries, such as Belgium and the Netherlands, had created specialised chairs in EU law. In most countries, EU law was incorporated into existing legal disciplines. In the early decades, this was often public international law, a logical choice since the European Communities had been created as advanced international organisations. In France, the main cleavage in legal studies between private law and public law ran right through EC law, so that EC law scholarship was fragmented, from the early days, between the publicistes and the privatistes, with separate courses and textbooks that deal either with the droit institutionnel de l’Union européenne or with the droit européen des affaires. When Spain joined the EC, it was decided not to create separate chairs or departments, but rather to allow the new field to be ‘carved up’ between the existing departments of international law, administrative law or constitutional law, according to the dynamics and rapport de force in each university. Each Member State thus offers its own micro-story of the way in which the new legal reality of EU law was absorbed into generally very conservative university structures and academic circles. More generally, with the expansion of EU law into ever-new areas such as envir­onmental law, contract law, administrative law, health law or criminal law, the legal doctrinal analysis of EU law has also to a growing extent been ‘redomiciled’45 in the various substantive disciplines of national law. EU legal scholarship is now incomparably more voluminous, richer and interesting than 20 years ago, but it is, unavoidably, also more fragmented. If a French EU law scholar wants to follow the periodical literature in his field, he can no longer limit himself to reading the specialised European law journals (the three journals mentioned above and the monthly Jurisclasseur Europe); he now also needs to browse through the Revue trimestrielle de droit civil, the Revue française de droit administratif, Droit social, the Revue critique de droit international privé, the Revue du droit public, and several others, because all of them may contain important pieces of scholarship 44   Vogenauer (n 3) 631 and 652. And, more generally, on the role of ‘prevailing opinion’, T Drosdeck, Die herrschende Meinung: Autorität als Rechtsquelle (Berlin, Duncker & Humblot, 1989). 45   Walker (n 5) 582.

116  Bruno de Witte dealing with one corner of EU law. Faced with this abundance of domestic legal scholarship, he may well decide that there is no time left to read also the Englishlanguage or Italian journals of EU law. In this way, disciplinary fragmentation strengthens national/linguistic fragmentation. Apart from this fragmentation which follows the lines of the traditional legal disciplines, one can see the appearance of another cleavage line in EU law scholarship which is based on different general understandings of ‘how to study law’. In particular English-language EU law scholarship has been subject, in the last two decades, to a radical transformation which is much less visible in the scholarship in other languages. This transformation thesis was recently expounded by Tony Arnull.46 According to this author, the Community law literature was marked until the end of the 1980s by ‘two essential characteristics: first, it was essentially sympathetic to the integration project; second, it was traditional in character, “based on the exposition of legal doctrine and the analysis of judicial decisions”’.47 After that, there occurred a ‘theoretical turn’ whereby a number of younger EU law scholars started to follow the model of American legal academia, where traditional doctrinal studies are neglected in favour of theoretically inspired and interdisciplinary research. However, as Arnull continues to argue, the American influence has had only a limited impact on English-language EU law scholarship: ‘to the established tradition of sophisticated doctrinal analysis have been added the insights afforded by theoretical, contextual and interdisciplinary work’,48 but this is an addition rather than a displacement. In fact, English-language EU scholarship seems to be marked by the coexistence of several approaches, ranging from the very doctrinal to the very theoretical, but without any animosity between different schools.49 This ‘rude health’50 is probably due, in part, to the variety in national origin and academic background of the scholars. One could say that the capacity of English-language scholarship to overcome traditional national fragmentation, and its relative insensitivity to the well-established pattern of legal disciplines, allows it to be more open to new ways of studying European law.

  Arnull, ‘The Americanization of EU Law Scholarship’ (n 6).   ibid at 416. The internal quotation is from F Snyder, New Directions of European Community Law (London, Weidenfeld & Nicholson, 1990). 48   ibid at 431. 49   For a similar view by a German scholar, see U Haltern, Europarecht und das Politische (Tübingen, Mohr Siebeck, 2005) 33. 50   Arnull (n 6) 431. 46 47

6 The ECHR and the Birth of (European) Human Rights Law as an Academic Discipline STÉPHANIE HENNETTE-VAUCHEZ

I. INTRODUCTION

I

N MANY WAYS, the European Convention of Human Rights (ECHR) ‘success story’1 is all the more spectacular in that it initially faced many difficulties. First, because its aim was to proclaim ‘human rights’, an ill-identified object in 1950 (even more so than today). Indeed, because they are heavily value-driven, human rights had long been confined to the spheres of morals or politics. Their legalisation is only recent and dates back to after the Second World War2 – both in national constitutions and international law. Furthermore, it is hardly immune from significant theoretical uncertainties, for it remains tricky to simultaneously mask its heavy axiological component and inspiration and tame it within legal/ formal frames. This holds true to the extent that even when successfully moulded into legal forms, the notion of human rights depends on particular visions of the world. This explains, for instance, the harshness of the debates that took place over the drafting of such human rights instruments as the Universal Declaration of Human Rights (UDHR).3 Despite the limitation of its reach solely to the European world, similar difficulties were encountered by the drafters of the ECHR and many sources indicate that a final agreement was eventually reached more because of the political imperative the Convention had begun to stand for than 1   C Tomuschat, ‘Quo Vadis, Argentoratum ? The Success Story of the European Convention on Human Rights – and a Few Dark Stains’ (1992) 13 Human Rights Law Journal 401. 2   J Donnelly, ‘The Social Construction of International Human Rights’ in T Dunne and NJ Wheeler (eds), Rights and Global Politics (Cambridge, Cambridge University Press, 1999) 71: ‘with minor exceptions, human rights simply were not a subject of international relations before WWII’. On the construction of an international movement for human rights in the second half of the twentieth century, see M Madsen, La genèse de l’Europe des droits de l’Homme (Strasbourg, Presses universitaires de Strasbourg, 2010). 3   J Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia, University of Pennsylvania Press, 1999).

118  Stéphanie Hennette-Vauchez because of a genuine consensus about the values that were to underpin ‘human rights’ on a European scale. Indeed, to many actors of the time, the ECHR was to serve as a Cold War weapon (‘make law, not war’)4 and support the fight against communism as well as the protection of (Western) democracies. Only this disenchanted version of the story of the Convention’s travaux préparatoires allows an understanding of the quite lukewarm and unenthusiastic reactions to the Convention – even on the very day of its signature.5 Second, the ECHR was an international treaty, ie an agreement between sovereign states. International law is classically defined as a body of law that governs the relationships between sovereign entities and thus one that is oblivious to the individual. Obviously, such a frame of thought was likely to annul the very possibility of any such thing as a body of international human rights law. The instrumental coincidence between the drafting of the ECHR and the blossoming of ‘new ideas’ in the field of international law at the time ought thus to be heavily underlined. Indeed, during the first half of the twentieth century, the idea according to which international law might pay interest (and even afford rights) to the individual was being increasingly put forth in (international) legal scholarship. Met by a new doctrine of international law that allowed the affirmation of its prevalence over national law,6 this renewal of international law jurisprudence heavily contributed, after World War Two, to the emergence of concepts conveying the idea that objective and peremptory norms of international law did exist, as well as to the cor­relative shifting away from the traditional contractualist/statist approach of international law.7 Within this context, international (and especially European) human rights law was to become a framework highly propitious to the blossoming of such ideas and potentialities. At any rate, it is not coincidental that many ECHR insiderswere actually involved, in their different capacities, in this theoretical aggiornamento of international law. Several judges of the European Court of Human Rights or members of the European Commission were professors of inter  M Madsen, ‘Make Law, Not War’ (2004) 151–52 Actes de la recherche en sciences sociales 96.   There are many indications of this lack of enthusiasm: S MacBride had a hard time convincing Irish authorities that it was even useful to sign a text they considered to be very disappointing (see W Shabas, ‘Ireland, the European Convention on Human Rights, and the Personal Contribution of S. MacBride’ in J Morison, K McEvoy and G Anthony (eds), Transitions and Human Rights (Oxford, Oxford University Press, 2007) 251; only junior members of the British Foreign Office took part in the signature ceremony (because the ‘Foreign Office had bigger fish to fry’: B Simpson, Human Rights and the End of Empire, Britain and the Genesis of the European Convention (Oxford, Oxford University Press, 2001) 6; and P-H Spaak, the representative of Belgium, declared upon his arrival at the Palazzo Barberini, in Rome, where the Convention was signed: ‘it might not be a very good Convention, but it’s a beautiful palace!’ (cited by E Bates, The Birth of the European Convention on Human Rights, in M Madsen and J Christoffersen, The European Court of Human Rights Between Law and Politics (Oxford, Oxford University Press, 2010) 17). In fact, the French and German members of the Parliamentary Assembly did not even attend the signature ceremony on 4 November 1950 (D Nicol, ‘Original Intent and the European Convention on Human Rights’ (2005) Public Law 152). 6   Monist theories of international law such as those put forth by authors such as H Lauterpacht or H Kelsen. 7   For recent and stimulating accounts of the great paradigmatic shifts in international law jurisprudence over the twentieth century, see E Jouannet, Le droit interntional liberal-providence. Une histoire du droit international (Brussels, Bruylant, 2011). 4 5

Human Rights Law as an Academic Discipline  119 national law who had indeed argued, in their academic publications, in favour of the thesis according to which the individual was an entity relevant to international law.8 And even more numerous were those who had supported the notion that something like an international ordre public did exist.9 In other words, the conceptual evolutions that were affecting international law jurisprudence towards the mid-twentieth century were favourable a priori to the assertion of something like a body of international human rights law. All these elements contributed to transforming the ECHR’s handicap caused by its ‘international’ nature into an asset. However, these theoretical and conceptual (r)evolutions were not going to abruptly unfurl their effects within the political reality of the times – if only because the states who had initially agreed to be signatories to the ECHR had done so for motives that were very alien to the philanthropic goal of increasing the standard of protection of human rights within their jurisdictions. In fact, most of them thought they already had mastered and championed the particular issue.10 Before producing all its virtualities then, the system of the ECHR was going to have to prove its innocuousness towards the very states that had conceived it. Thus the political project that underpinned the ECHR both as a product and a process on the one hand and the ‘new trends’ in international law scholarship on the other hand progressively came together. The initially optional status of the European Court of Human Rights11 reminds us that it did not all happen in one day – and the same goes for the fact that Strasbourg organs of protection chose to walk on the restraint side of judicial activity for quite some time, in order to not to hurt any state’s sovereignty – and eventually, by way of such moderation,12 start 8   See, among other references, C Norgaard, The Position of the Individual in International Law (Copenhagen, Munskgard, 1962); C Eustathiades, ‘Les sujets de droit international et la responsabilité internationale – nouvelles tendances’ Recueil des cours de l’académie de droit international de La Haye (Dordrecht, Martinus Nijhoff, 1953) 405; R Cassin, ‘L’Homme sujet de droit international’ in La technique et les principes du droit public. Etudes en l’honneur de G. Scelle (Paris, Pichon, 1950) vol 1, 67; H Mosler, ‘The International Society As A Legal Community’ Recueil des cours de l’académie de droit international de La Haye (Dordrecht, Martinus Nijhoff, 1974) vol IV, 70. 9   References are too numerous to be listed here; a lengthy bibliography can be found in S HennetteVauchez (ed), La CEDH vue d’ailleurs. Acteurs du dedans et du dehors dans la promotion d’une norme de reference (Paris, Mission de recherche Droit & Justice, 2010). 10  Simpson, Human Rights and the End of Empire (n 5) 5: ‘It was then believed that human rights were already adequately respected in member states; the Commission’s function was in part symbolic and in part an exercise in conservation’. Emblematic in this respect is the foreword to the act of legislation by which France ratified the ECHR: ‘The Government does not think this commitment to be indispensable in order to guarantee liberty to our citizens, but it does think that it is necessary for France to signify, together with the other European States, its attachment to human rights that characterizes our history’ (my translation): Official Journal, Senate, Documents, 1973–74, no 1, 8. 11   See Arts 25 and 46 of the initial 1950 Convention. By 1960, then years into the Convention system, only 9 of the 15 High Contracting Parties had accepted the authority of the Court and the Commission. In particular, countries such as the United Kingdom, Italy or France had not – the latter only did in 1974. 12   This is the rationale put forth by M Sorensen, ‘L’expérience d’un membre de la Commission’ (1975) 3 Revue des droits de l’homme 329–30: ‘Fundamentally, the nature of things did not invite the Commission to show too much audacity . . . The cautiousness that imposed itself on the Commission could be traced back into the decisions about admissibility’; and at 333: ‘retrospectively, the Commission’s cautiousness seems to me to have been justified. It was necessary in order to overcome the hesitations and reluctances of governments’.

120  Stéphanie Hennette-Vauchez to build a legitimacy of their own. This is the way actors of the system testify about the first years of the ECHR system. In 1965, Henri Rolin, then president of the European Court of Human Rights, was wondering whether it actually had a future13 given the extremely low rate of cases that were being deferred. To him, if the Court had only ruled in two cases six years after its entry into function, this was to be understood as a consequence of the fact that governments thought it preferable to engage into friendly settlements – a procedure politically less costly than a judicial one (be it an international one) in which the state would appear as the ‘accused’. For all these reasons (and more), it can well be argued that nothing, in 1950, allowed the thought that the ECHR’s future would be anything close to the one it has since proved to be. Applicable to an odd-800 million persons throughout no less than 47 states, equipped with a permanent court who delivered its 13,000th decision not long ago and has authored throughout the years a teeming body of case law and crafted specific modes of reasoning (such as ‘autonomous concepts’, ‘national margin of appreciation’, ‘evolutive interpretation’) that even the national press no longer ignores in many countries, the ECHR has become the emblem (the model?) of international human rights law. It is more binding than the UDHR which was unable to overcome the tension between its proclaimed universality and empirical reality, more legitimate than the Inter-American Convention which remains weakened by the enduring refusal of the USA to ratify it, and more generous than many sectoral protection mechanisms such as that of workers within the International Labour Organisation. Human rights law does indeed appear to be a European success and achievement. While trying to reflect upon the factors that have enabled such transformation of the ECHR from an uneasy political compromise into the ‘constitutional charter of Europe’, the present chapter hypothesises the instrumental character of the project that accompanied the story of the Convention from the outset. In 1970, René Cassin, the ‘father’ of the UDHR and later first French judge at the European Court of Human Rights, wrote: ‘We wish to establish that human rights are scientific’.14 This will to affirm human rights as a branch of law, as a legal doctrine like others (technical, objective, rational, a-political), entertains in our view very tight links with the development and success of European human rights law. This, it will be argued, is exemplified by the instrumental role played by the insiders to the ECHR protection system with respect to the crafting and disseminating of a learned discourse on the Convention. Indeed, very early on in the Convention system’s history, the larger part of the group of those who then worked at the Court or the Commission put themselves at the service of the Convention, generating publications and interventions in a multiplicity of academic arenas, presumably hoping for their audiences to convey the discourse they were putting forth. This contribution aims at analysing this investment into a learned formali  H Rolin, ‘Has the European Court of Human Rights a Future ?’ (1965) 11 Howard Law Journal 442.   R Cassin, ‘Foreword’ (1970) 3 Revue des droits de l’homme 555.

13

14

Human Rights Law as an Academic Discipline  121 sation of nascent European human rights law as an effort towards a goal of endowing the ECHR with a technical form of legitimacy – one that would distance it from its political origins.15 In other words, it will be argued that generating an actual doctrine of human rights law appeared to these insiders as an effective way of detaching the Convention from the eminently political dimension of its birth conditions. Obviously, the very socio-professional profile of these insiders accounts for a large part in this choice of ‘legitimising through scientifising’. In fact, despite the originally highly political nature of the ECHR that had led states to nominate diplomats to sit in Strasbourg institutions, more often than not those diplomats also had many other qualities and competencies – political as well as legal:16 many of them were international law professors who had also accumulated political and diplomatic experiences. Alfred Verdross had started his career at the Austrian ministry of foreign affairs and became a member of the Cour permanente d’arbitrage at the Hague in 1958. Hermann Mosler had been the legal expert of the German delegation at the 1950 Conference on the Schuman Plan, the head of the legal division of the Ministry of Foreign Affairs of the Federal Republic of Germany from 1951 to 1953, and a member of the Cour permanente d’arbitrage. Giorgio Balladore Pallieri was a member of the Council of diplomatic litigation at the Italian Foreign Affairs ministry as well as a member of the Euratom’s consultative committee. Henri Rolin was a member and former pres­ ident of the Belgian Senate, a former member of the government and a former member of the consultative assembly of the Council of Europe. And René Cassin, a former member of the alternative French government in London as well as from the consultative assembly of Algiers, had been the president of the consultative constitutional commission in 1958. The analysis is easily paralleled with respect to the European Commission of Human Rights of which the most influential members had comparable profiles. Sir Henry Waldock, the Commission’s first president, had commenced his career as a barrister and was nominated in 1946 as the United Kingdom’s commissioner at the commission frontalière italo-yougoslave and other similar diplomatic posts; he also became a professor of international law at the University of Oxford in 1947. Sture Petren and Max Sorensen (who would also serve as presidents of the Commission) had both been legal experts for the Swedish and Danish Foreign affairs ministries. Such multipositionnality17 of the first generation of insiders to the Strasbourg organs is very important to keep in mind when one wishes to understand not only their nomination in Strasbourg but also their implication in the crafting of a learned body of European human 15   On the links between technicisation and depoliticisation, see G Sacriste, La République des constitutionnalistes (Paris, Presses de Sciences Po, 2011); and B François, ‘Du juridictionnel au juridique. Travail juridique, construction jurisprudentielle du droit et montée en généralité’ in CURAPP, Droit et politique (Paris, Presses universitaires de France, 1993) 201. 16   See also M Madsen, ‘From Cold War Instrument to Supreme European Court’ (2007) 23 Law and Social Inquiry 1, 137. 17   G Sacriste and A Vauchez, ‘Les bons offices du droit international: la constitution d’une autorité non politique dans le concert diplomatique des années 1920’ (2005) 26 Critique internationale 101 also insist on this important feature (multipositionality) of the first generations of international lawyers.

122  Stéphanie Hennette-Vauchez rights law that thus appears to be the product of both its fathers’ intellectual inclinations and their facilitated access to academic circles and arenas. The present contribution will thus aim at describing three of the steps along which this academic project unfolded and accompanied the entry into force of the ECHR: the very constitution of a ‘Convention world’, the production of a learned discourse on the Convention and the association of national academic circles to the project in order to ensure its long-term viability. II.  CREATE A WORLD OF ONE’S OWN: INSIDERS’ MOBILISATION IN FAVOUR OF THE ECHR’S PROMOTION

The members of the two main organs instituted by the ECHR (the Court and the Commission) started to take part very early on in diverse operations to promote the system. To be sure, there is nothing extraordinary in the fact that members of a given institution would have the tendency (be it spontaneously or on demand) to tell the outer world about it. In this particular case however, the width and intensity of the investment deserve to be underlined, as well as its multidirectional character as it was directed towards nascent transnational spaces of international human rights law and the national spaces to which the ECHR applied alike. Moreover, not only Court judges and Commission members participated in the task; more generally, many other actors of the system put in place by the Convention took part in this promotion work: members of the Commission’s Secretariat, of the Court’s Registry as well as members of the Human Rights Division of the Council of Europe. This permitted the promotion process to be coined as one by which all these actors created a world of their own; the group constituted itself into a ‘Convention world’. The Commission’s Secretariat (as well as, by many means, the Court’s Registry today) had a crucial role. It was the real interface between claimants and the Convention conventional system. The Secretariat is the unit that claims reached in the first place and it fell upon it to prepare them for examination by the Commission and/or the Court – from the initial gathering of all relevant pieces to the drafting of a project decision. In addition, the Secretariat long remained the key access channel to all ECHR information and thus for a long time acted as the prime contact unit between the Convention system and the outside world, as well as the prime mechanism of dissemination for European case law. As the only (or best) connoisseurs of all the Strasbourg activity, one can say that the eventual judicial output of Strasbourg organs long remained highly dependent on the Secretariat. In fact, the people who have throughout the years been appointed to the key posts within both the Secretariat (as well as at the Registry) have turned out to play instrumental roles in the development of the ECHR system, to the extent that their very names are now tightly associated to the system’s history.18 18   For a recent account, see M de Salvia, ‘L’administration d’une juridiction internationale: l’exemple du greffe de la Cour européenne des droits de l’homme’ (2008) 126 Revue Française d’Administration Publique 333.

Human Rights Law as an Academic Discipline  123 Many factors support the hypothesis according to which these early actors of the Convention system formed a rather homogeneous ‘Convention world’. First, they formed a very cohesive group and shared many ties. A common institutional belonging is the first obvious tie that united them, for they all served the same institutions (the Court and the Commission); but in this particular case, it was only strengthened by the fact that it also often rested on the shared notion of a ‘mission’ to fulfil. In the words of Karel Vasak, an influential member of the Human Rights Directorate at the Council of Europe and a prolific author on the ECHR: Because of the Convention’s scope [objet] . . . a great majority of its craftsmen and actors have conceived of their work (at least in the early years) as a genuine mission in the service of Man to the extent of turning them into human rights activists.19

Further, the notion of a shared belief also rested on a particular conception of the law, of international law and of the international law of human rights. Finally, the restricted size of the group in the beginning also contributed to its strong cohesiveness. In 1950, the ECHR was not the ‘European constitutional instrument’ it would later turn into, extending from France and Portugal to the Eastern Russian border. Some states – France, notably – only ratified the Convention quite late and the initial signatories were only 15 – a figure that included Sarre who was to become an integral part of the Federal Republic of Germany as of 1957. Therefore, the Commission and the Court were composed of a number of members equal to that of the High Contracting Parties – and were thus of limited size. The former’s Secretariat and the latter’s Registry employed no more than 10 persons. Above all, the Court was not a permanent institution: judges only come to Strasbourg for a week or 10 days at a time; they did not earn a salary in that capacity (their expenses alone were taken care of). Such narrowness certainly favoured the group’s cohesiveness and strongly consolidated it. It homogenously participated and appeared in a vast number of arenas and initiatives all through the 1960s: conferences on the ECHR, honorary committees and editorial boards of newly launched journals, conveners and contributors to volumes edited ‘in the honour of’. This is how a real ‘Convention world’ rapidly consolidated around the Strasbourg institutions. The group’s capacity to open up, as early as the 1960s, to people who would later actually have official responsibilities within the Convention serves as the ultimate sign of its cohesion, under the guise of some sort of ruse de la raison historique. For instance, WJ Ganshof van der Meersch (who was to serve as a judge at the Court as of 1973), R Bernhardt (judge from 1981 and later vice-president of the Court), Heribert Petzold (at the Registry from 1968 and Registrar from 1994 to 1999) or Vincent Evans (judge from 1986) all attended the 1965 second international conference on the ECHR in Vienna. 19   K Vasak, ‘Les artisans et les acteurs de la Convention européenne des droits de l’homme, d’hier à demain’ in C Zanghi (ed), La Convenzione europea dei diritti dell’uomo, 50 anni d’esperienza : gli attori e i protagonisti della Convenzione (Turin, Giapichelli, 2002) 11, 13.

124  Stéphanie Hennette-Vauchez

III.  SPEAK A LEARNED LANGUAGE: THE ‘CONVENTION WORLD’S MOBILISATION IN TURNING ECHR LAW INTO LEGAL SCIENCE

As early as the 1950s, this ‘Convention World’ engaged in strong publishing activism on the ECHR. This part of the contribution presents and analyses this task performed by the Convention; it underlies two of its particular features. First, it stresses the particular strategy that was followed – and consisted of importing specifically academic techniques and know-how. Second, it insists on the tentative result of the enterprise, that is one of technicisation, scientisation and, roughly, depoliticisation of ECHR law. As a preliminary note, let us stress that all along, the process was multilingual: the Convention world immediately met the challenge of designing a transnational forum of human rights protection. The list of Marc-André Eissen’s publications, for instance, is very relevant in this respect. The young law graduate who started working at the Council of Europe in 1954 after years of strong involvement in the Student Federalist Movement, and was later to have a long and important career at the Council of Europe (after leaving the Human Rights Directorate in 1964 for the Court’s Registry, he became the Registrar in 1968 and remained in the post for 26 years), published early on, and extensively, on the ECHR in a variety of journals such as the Zeitschrift für ausländisches offentliches Recht und Volkerrecht, the Buffalo Law Review, the British Yearbook of International Law, the Nordisk Tidsskrift for Internatinal Ret, the Revue héllenique de droit européen and the Rivista di diritto internazionale or the Bulletin de l’Institut luxembourgeois des droits de l’homme. Such activism in terms of publications quickly led to a situation in which the Convention world generally held something close to a monopoly over studies and commentaries on the ECHR, at a time where the interest of law journals and other academic venues in the Convention was still lukewarm at best. But beyond general papers on the Convention system itself, the Convention world soon understood that what needed to be communicated was the case law of the Strasbourg organs. Here again, the Convention world was active. In France, it was Karel Vasak who first convinced a journal to launch a periodical chronicle of European human rights law.20 Besides this regular form of case law commentary, it is striking how often members of the Convention world would analyse and comment upon Strasbourg case law in various journals. In Italy, the fact that Giuseppe Sperduti, a member and vice-president of the European Commission of Human Rights, was a member of the editorial board of the Rivista di diritto internazionale certainly accounts for the frequency of case law commentaries published in that journal; this also holds true for Britain: H Waldock’s being the editor in chief of the British Yearbook of International Law may reasonably be linked to the interest paid by the Yearbook to this emerging field of law.   See the Journal du droit international, and the chronicles of 1962, 1964 and 1967.

20

Human Rights Law as an Academic Discipline  125 Further, institutional initiatives were taken. As of 1960, the Human Rights Directorate started publishing the Yearbook of the European Court of Human Rights in which decisions of the Commission, the Court and the Committee of Ministers were published. Shortly after though, as the dissemination of European case law was thought to require a quicker pace than that required for the putting together of such a thick annual volume, the Secretariat took the initiative of publishing the most important decisions. Thus 46 issues of the ‘Recueil des decisions’ were published between 1960 and 1974. . . . At the end of 1974, the Commission decided to launch a new and more elaborated series of publications, the ‘Décisions et Rapports’ which now constitutes the official casebook of the Commission. The credit for this initiative is all our colleague Jean Raymond’s [Com., Sec.].21

Nowadays, accessibility of European human rights cases is obviously less of an issue, with a modern website and database. However, the Convention world’s activism has not decreased. Emblematic in that respect is the editorial fate of the first volume to gather and comment upon European case law:22 authored by Vincent Berger, who joined the Court’s Registry in 1978, the commentary was initially published in French in 1984 with a foreword by the then judge L-E Pettiti. Not only was the volume the first of its kind (and this is all the more important in that systematic commentary of case law plays an instrumental role in its objectivation and thus depoliticisation), it also benefited from an active translation policy and now is available in many languages including English, Romanian, Czech, German and Latvian. Other signs of the Convention world’s effort to articulate a discourse about ECHR law as ‘pure’ law, eg to establish European human rights law as technical and politically neutral, can be found – such as, for instance, in its further efforts to tailor its discourse about the ECHR to the traditional mould of academic discourse. In that perspective, a long-lasting cycle of international conferences on the ECHR that were to take place every five years began as early as 1960 – that is, 10 years after the Convention was signed, only one year after the Court was installed, and at a time when it had yet to deliver a single decision! In other words, it was launched at a time where there was not yet much European human rights law to comment upon. Sometimes organised conjointly with a university, these conferences were occasions for legal academics to reflect upon the ECHR; but more often than not speakers and rapporteurs predominantly belonged to the Convention world. As events, these conferences were important in that they ensured visibility and publicity to the ECHR; the conference proceedings were generally published, sometimes in several languages. In addition, they enabled the Convention world to pave the way for certain interpretations of the ECHR, its nature, its identity and its reach. In fact, many of the ideas that were put forth 21   T Gruber, ‘La diffusion de la jurisprudence de la Commission’ in M de Salvia and M Villiger (eds), The Birth of European Human Rights Law (Baden Baden, Nomos, 1988) 245. 22   V Berger, Jurisprudence de la Cour Européenne des Droits de l’Homme (Paris, Sirey, 1984).

126  Stéphanie Hennette-Vauchez during those conferences have a posteriori proved to be mere incantations; this, in retrospect, shows that these conferences were often seized by different actors and speakers as opportunities to convince of a new idea, of a new reading of the ECHR. For instance, Max Sorensen, who has been a member and a president of the Commission, and a judge of the Court, strongly advocated the view that states had an obligation to incorporate the Convention into national law during the second conference in 1965.23 This view, as we now know, was expressly rejected later on by the Convention organs themselves. There is a similarly activist tone to Alfred Verdross’s plea for the acknowledgement of the Convention’s primacy over all provisions of national law, including constitutional ones24 – for such primacy is still not established to this day. Again, Jochen Frowein’s exhortation that the Strasbourg Court should enunciate principles of primacy and direct application of ECHR law quite the way her Luxembourg counterpart had done à propos EC law25 shows how engaged his agenda was. Also of interest is the habit that the Convention world imported early on from the academic world, that consists of honouring those who leave by means of the publication of Festschriften. Among the first generations of Convention people, at least the following were honored in that fashion: G Balladore Pallieri (judge at the Court), R Cassin (judge at the Court), F Castberg (member of the Commission), R-J Dupuy (Commission), M-A Eissen (Commission’s Secretariat, Human Rights Directorate and Registry), F Ermacora (Commission), WJ Ganshof van der Meersch (Court), H Rolin (Court), P-H Teitgen (Court), S Trechsel (Commission), G Sperduti (Commission), W Strasser (Commission’s Secretariat), K Vasak (Human Rights Directorate), A Verdross (Court), G Wiarda (Court), F Matscher (Court), J Velu (Human Rights Directorate). Such volumes have been important in the history of European human rights law, if only because of their contribution to consolidating the Convention world. Although they are generally open to authors from outside the Convention world (although not always: some are exclusive to that relatively small circle),26 these volumes form a dense network of crossed publications: he who honours will be honoured in the future. They also contribute to enhancing the ECHR’s visibility throughout the progressive construction of an important body of jurisprudence on the topic.27 23   M Sorensen, ‘Obligations d’un Etat partie à un traité sur le plan de son droit interne’, in Les droits de l’homme en droit interne et en droit international. Actes du 2eme colloque international sur la Convention européenne des droits de l’Homme (Brussels, Presses universitaires de Bruxelles, 1968) 44. 24   A Verdross, ‘La place de la CEDH dans la hiérarchie des normes juridiques’ in Les droits de l’homme en droit interne et en droit international. Actes du 2eme colloque international sur la Convention européenne des droits de l’Homme (n 23) 92. 25   J Frowein, ‘Intervention’ in 4th International Colloquium about the ECHR (Strasbourg, Conseil de l’Europe, 1976) 75. 26   The Festschriften for G Wiarda published in 1988 gathered 61 contributions 51 of them authored, by Convention people. Those in honour of Carl Age Norgaard in 1998 were exclusively authored by Convention people; and L Wildhaber, the former president of the Court, has two separate volumes – one of which is exclusive to the Convention world, whereas the other is authored by people from both inside and outside. 27   See LM Roberts, ‘The Importance of Legal Festschriften for Work in International and Comparative Law’ (1962) 11 American Journal of Comparative Law 4, 403.

Human Rights Law as an Academic Discipline  127 Finally, the Convention world not only triggered the creation of new venues specifically devoted to the learned commentary of ECHR law; it also participated in the existing ones. They ensured steady and significant presence on the editorial boards of journals such as the British Yearbook of International Law28 or the Europaïsche Grundrechte Zeitschrift.29 Convention people were also present in the scientific committees of permanent collections of some publishing houses, such as that of the Istituto Internazionale Dei Diritti dell’Uomo in Trieste. This Convention world’s activism thus existed from the very inception of the Convention system – and it has endured to this day. A significant percentage of contemporary textbooks and treatises on ECHR law still are authored by Convention people, mostly judges and members of the Registry;30 and they still belong in large numbers to human rights law journals.31 In other words, yesterday’s techniques continue to be relied upon and a significant part of the discourse on the ECHR still is spoken by Strasbourg insiders. It is, however, less monopolistic than it once was, given the fact that many scholars from the Member States do now pay an autonomous interest to ECHR law. In its final section, this chapter turns to the modes in which national legal scholarship(s) have become interested in ECHR law.

IV.  THE ENROLMENT OF NATIONAL LEGAL SCHOLARSHIPS IN THE PROMOTION OF THE ECHR

Every discourse is aimed at an audience. In the particular case of the one spoken by the Convention world, it is strikingly focused on academic arenas: one of its goals is to enrol scholars in different countries in the task of presenting and discussing ECHR law. This is an important element in the contribution of the ECHR to the affirmation of human rights law as an autonomous body of law. It is very interesting in this respect to stress the importance the Convention world has always paid to the issue of training and teaching in the field of human rights law. Then again, this is probably best explained by the Convention people’s multipositionality and 28  The Yearbook in 1960 included Sir Humphrey Waldock (Commission and Court) as an editor in chief, and Lord McNair (Court), JES Fawcett (Commission) and Sir Gerald Fitzmaurice (Court) were members of the editorial board. 29   In 1977, members of the editorial board included: Marc-André Eissen (Human Rights Directorate, Registry), Heribert Golsong (Human Rights Directorate, Registry), Hans Danelius (Commission’s Secretariat), Jacques Velu (Human Rights Directorate), Thor Vilhjamsson (Court), John Cremona (Court). 30   Although it is not possible to mathematically ascertain their proportion amongst the total volume of existing monographs and treaties on the ECHR, many books are written by insiders to the Convention world – and in many languages (English, Catalan, Finnish, German, Swedish, Italian, Portuguese, Romanian, Slovak, Spanish, Norwegian, etc). 31   See, eg, at the Europaïsche Grundrechte Zeitschrift: the editorial board that is composed of a dozen individuals includes Marc André Eissen (Human Rights Directorate, Registry), Heribert Golsong (Registry), H Danelius (Commission’s Secretariat), Thor Vilhjamsson (Court), John Cremona (Court), Brian Walsh (Court) in 1980; and in 2008: H Danelius (Commission’s Secretariat), Jochen Frowein (Court), Renate Jaeger (Registry), J de Meyer (Court), Jacques Velu (Human Rights Directorate).

128  Stéphanie Hennette-Vauchez their frequent possession of academic credentials. The creation of an Institute specialised in human rights started being discussed as early as 1960 within the Council of Europe. Although the idea was not immediately pursued, the awarding of the Nobel Peace Prize to René Cassin in 1968 accelerated the process as he gave personal instructions that the corresponding funds be used in order to create the International Institute of Human Rights (the IIHR) (nowadays the Fondation René Cassin). Although independent, the IIHR entertains close relationships with the Council of Europe with which it shares the same general objectives. Besides René Cassin himself, who had been a judge on the Court, the founders of the IIHR were K Vasak, an influential figure of the Human Rights Directorate, and WJ Ganshof van der Meersch – then a member of Belgium’s Supreme Court of Justice but also a professor at the University of Brussels where he had created the first chair specifically devoted to ECHR law. The Institute’s activities were systematically detailed in the Revue des droits de l’homme, which served as its public window and was also founded by the Cassin–Vasak–Ganshof van der Meersch trio. As to the Institute’s main goal, it is hardly distinct from the one the Convention world had been devoting its efforts to for 10 years at the time: develop the teaching of human rights law in universities and law schools throughout the creation of dedicated courses, specialised chairs, the lending of human rights specialists, assistance to universities who wish to organise conferences and seminars, the organisation of conferences with human rights specialists.32

The Institute immediately launched an annual training session devoted to human rights, with the goal of training professors who were supposed to return to their academic settings and teach the new material. In 1971, the Institute organised a conference in Nice on the methodology of teaching human rights law, during which it is reported that ‘participants asked the IIHR to conceive a complete training program in human rights law for international and comparative law teachers’.33 In sum, the point is (in the words of René Cassin) to ‘train trainers’. As such, the IIHR becomes an important interface between the Convention world and national academic arenas. Its objective clearly stands as one of ‘scientisation’ of human rights law. Echoing the words of R Cassin, K Vasak writes in 1973 that ‘the contemporary phenomenon of human rights urgently requires the elaboration of an authentic jurisprudence of human rights, whose rigor and objectivity will guarantee the independence of human rights vis-à-vis all schools of thought and interpretation of reality’.34 If this appears to be a plausible objective, it is because it rests on a strong premise: ‘international human rights law is objective law’;35 it can, therefore, be served by an objective science capable of disconnecting them from their political nature.   See the founding documents of the IIDH in (1969) 2 Revue des droits de l’homme 1, 8.   K Vasak, ‘Report’ in (1973) 6 Revue des droits de l’homme 1, 7. 34   ibid at 43. 35   K Vasak, ‘Vers un droit international spécifique des droits de l’homme’ in K Vasak (ed), Les dimensions internationales des droits de l’homme. Manuel destiné à l’enseignement des droits de l’homme dans les universités (Paris, UNESCO, 1978) 711. 32 33

Human Rights Law as an Academic Discipline  129 After having thus created its own interfaces with national academic arenas, the Convention world was in a position to actually enrol some of its members into the promotion of the ECHR. In fact, the role of legal academics in the crafting and consolidating of a learned discourse on human rights is acknowledged by key insiders to the Convention world themselves. For instance, when he left his position as the Court’s Registrar in 2005, Paul Mahoney did not forget to thank ‘a small group of academics’ who, in his view, had helped ‘transforming the ECHR from an esoteric specialty of international law into a major subject of national law’.36 Academics did play an important role as they conveyed and disseminated the learned dimensions of the political project that lies at the heart of European human rights institutions. In fact, their role soon became all the more important as they managed to trigger interest towards the ECHR beyond the circumscribed circles of international law specialists. This was crucial, for if international law specialists logically had been the first ones to pay interest to the ECHR, it soon became clear that it would require larger academic audiences’ attention for it to become the ‘constitutional instrument for Europe’. In visionary words, P Modinos had said in 1965: It is all the more wishable to dis-internationalize the Convention that its ultimate goal is to generate a genuinely European law . . . We will not be able to successfully achieve this task . . . unless the Convention ceases to be a matter reserved to internationalists and becomes a subject for research and teaching for the civil and criminal law specialists as well . . . The problem consists of internationalizing national judicial worlds and, at the same time, dis-internationalizing the Convention.37

The enrolment of national legal academics did, however, take some time. Whereas the Convention world had been active in terms of publications, conferences etc since the 1950s, it was generally speaking much later that law professors in the contracting states started paying attention to the Convention. The scarceness of available spaces and venues for events and publications devoted to ECHR law can probably serve as an explanation here. Several examples illustrate the fact that the editorial policy of most law journals at the time did not view the ECHR as a priority and this necessarily accounts, at least in part, for the lengthy ignition of national legal scholarships on the subject matter. In addition, this was only aggravated by the quasi-monopoly of the Convention world over these rare publishing outlets – that left no or only little space for academic conversations. These elements also probably account for the very entrepreneurial course of action of those academics who were among the first to choose to focus on ECHR law; they often had to create journals, chronicles and series in publishing houses for their academic studies, and to be overly active, authoring monographs and articles, case law commentaries and casebooks, research reports, teaching new courses and 36   P Mahoney, ‘Réflexions d’un greffier à l’heure du depart’ (2005) 17 Revue universelle des droits de l’homme, 1. 37   P Modinos, ‘Conclusions’ in Les droits de l’homme en droit interne et en droit international (n 23).

130  Stéphanie Hennette-Vauchez enrolling students, taking part in editorial boards and promoting studies on the ECHR, writing chronicles on ECHR law, etc.38 But this relatively slow enrolment of national academic circles can also be contrasted with contextual features of the debate which may well have made the whole ECHR project more or less compatible with different national settings. Two examples exemplify the variability of national logics of domestication of the ECHR. In Italy, a strong internationalist tradition and its a priori defiance of the notion of human rights law as an autonomous body of law have probably contributed to enhancing the instrumental role of Catholic relays the ECHR has benefited from. By contrast in France, the very legalistic state of the debate seems to have been immediately more propitious to the very notion of an autonomous logic and existence of human rights law. There is a very strong tradition of international law in Italy. Unsurprisingly, for quite some time, international law professors were predominant among the scholars who paid interest to the ECHR: most articles, monographs or communications at conferences devoted to the ECHR had have long been authored by international law specialists. There is a case to be made for this essentially internationalist profile of those Italian professors who did study the ECHR to have influenced the substance of what they were saying about the Convention. As recalled in the introduction to this chapter, the ideas according to which international law did potentially create rights for the individual and could be integrated into domestic legal systems over which it enjoys primacy were revolutionary after World War Two. Yet revolutionary ideas generally are not unanimously supported; and one finds among Italian internationalists, champions of dualist doctrines of international law,39 explicit reluctance towards such ideas– and especially towards the idea that the individual would also be a subject of international law.40 Concepts such as ordre public and jus cogens are controversial in international law worldwide; but Italian internationalists have long been contesting them. The position of G Sperduti, an international law professor and first Italian member of the European Commission of Human Rights, disapproving of the wording of ordre public for qualifying the Convention in the Commission’s Austria v Italy decision in 1961,41 illustrates this trend.42 And so do the words of B Conforti: when asked to comment upon his mandates in Strasbourg, he expresses disapproval of the spread of a ‘non-internationalist’ understanding of the Convention within the Court.43 38   See references in S Hennette Vauchez, ‘Divided in Diversity. National Legal Scholarships and ECHR Law’ EUI Working Paper RSCAS 2008/39. 39   Both in the past (D Anzilotti, Scritti di Diritto Internazionale pubblico (Padua, Cedam, 1957)) and today (F Capotorti, Corso di diritto internazionale (Milan, Giuffré, 1995) 55 and 179). 40   See, eg, G Sperduti, ‘La personne humaine et le droit international’ (1961) Annuaire français de droit international 141. 41   Case 788/60 Austria v Italy (1961) 4 Eur Ybk HR 116 (ECtHR). 42   Sperduti dissents in this early Commission decision, and criticises the recourse to the notion of ordre public as ‘extremely approximative’. 43   B Conforti, ‘Il ruolo della Corte di Strasburgo’ in Convegno in occasione del 50° anniversario della CEDU in onore di P. Barile (Rome, Academia dei Lincei, 2001) 233.

Human Rights Law as an Academic Discipline  131 However, human rights law does not only walk along the paths of the law. In fact, in many ways, human rights law is not just another body of law; rather, it is highly specific and conveys a highly political or axiological weight. In this respect, the manner in which the values conveyed by ECHR law are perceived and translated in the different national settings to which it applies does play a crucial role in the modes of its consecration. The other thing that the study of the reception of the ECHR in Italy reveals is the importance of the role played by Catholic arenas in the legitimation and promotion of European human rights law, besides the more ‘natural’ one played by legal scholars. The University of the Sacred Heart in Milan is an important such Catholic arena. The first Italian judge on the European Court of Human Rights, G Balladore Pallieri, was a professor there at the time of his appointment in 1959. It also created the Vita e Pensiero publishing house, who published the Rivista Internazionale dei Diritti Umani from 1988 to 2003 – pretty much the only Italian journal to take a close look at ECHR law. As a matter of fact, the review managed to work closely with Convention people.44 At the time it ceased being published, no less than four judges of the Court were members of its scientific committee (JP Costa, F Matscher, B Conforti and C Russo). Such proximity had not only been acquired through the years; rather it existed from the outset, as exemplified by the publication, in the journal’s very first issue, of a letter by R Ryssdal, then president of the Court, enthusiastically saluting the birth of the first Italian venue authentically devoted to human rights – and thus to ECHR law. This collaboration between the journal and some Convention people lasted throughout the entire lifespan of the publication; many articles were authored by authorities such as: L Wildhaber, B Conforti, J-P Costa, A Kovler, L Loucaides, S Trechsel, L-E Pettiti, J Frowein, M-A Eissen, G Sperduti, V Berger and A Bultrini. To be sure, the steadiness of this connection between the Convention world and the Rivista owed much to the instrumental role of Michele de Salvia. A kingpin of the Convention world, de Salvia had joined the Commission’s Secretariat in 1965 and became its Secrétaire in 1997. Two years later, he was appointed as the Court’s Registrar. Within the Rivista, after being a member of the scientific committee for many years, he eventually joined the editorial board in 1999. In parallel, throughout all those years, he became part of the small group of insiders who truly knew well the Convention world; and he authored many pieces on the European human rights regime. After his years in Strasbourg, de Salvia was appointed as a professor 44   In fact, the Christian engagement of many Convention people is easily established. For instance, H Golsing (a former Registrar of the Court and member of the Human Rights Directorate at the Council of Europe) writes a paper in which he opposes legal positivism and commends: ‘More than positive rules is required. These rules ought to be grounded on “real law”, that is perceived at the sole light of Reason, based upon the nature of things and of Man’ in ‘Etude critique: le Droit et les droits de l’Homme’ in Justice dans le monde (Louvain, Publications de l’Université Catholique, t 2), 352–53. Similarly, P-H Imbert, former head of the Human Rights Directorate, frequently cites Father Wresinski in his contribution entitled ‘Another vision of human rights’ 4 Revue Quart Monde (1989) 56. G Ress, who successively sat on the Commission and the Court benches, authored a chapter in a volume in honour of Pope John Paul II: A Loiodice and M Vari (eds), Giovanni Paolo II, Le vie della Giustizia (Bari, 2003) 779. A Susterhenn, of the European Commission on Human Rights, was a member of the Pontifical Council Justice and Peace.

132  Stéphanie Hennette-Vauchez at Milan’s Sacred Heart University. In fact, such close ties between Catholic elites and human rights regimes should not come as a surprise nor as a European specificity.45 The fact that they are notably conspicuous in Italy only confirms the lastingly central and structuring role of religion in the country’s socio-political organisation. Their importance however allows an insistence that the ECHR does not have a predefined meaning and scope per se. Rather, its importance is heavily dependent on the national conditions of appropriation of this transnational artifact. In France like in most High Contracting Parties, the ECHR was first considered as an international treaty – hence its being discussed, commented and analysed mostly by internationalists.46 However, there is an element specific to the French legal academic field that probably contributed to changing this ‘internationalist’ understanding of the Convention sooner than elsewhere; an element that led domestic law specialists to pay close and early interest to the Convention. Indeed, as of 1962, it became mandatory for all law schools to offer a course of Libertés Publiques. This course was conceived of in domestic law terms and hence, more often than not, was taught by domestic law specialists. Its aim and scope was, grosso modo, human rights law; and it was thus only natural that the ECHR would come into the picture. It is thus hypothesised that this course has favoured the emergence of a legal discourse on ECHR law spoken by domestic lawyers, besides the dominant internationalist one (see for instance the role of academics such as international law professor Roger Pinto who devoted significant parts of his course on European organisations to the ECHR). Academics who come from Libertés Publiques, such as Patrice Rolland or Roger Pelloux, have played a very important role in the acculturation of French law to the ECHR, notably throughout their high profile commentaries from the early 1970s onwards at the Journal de droit international and Annuaire français de droit international. This inclusion of domestic lawyers into the groups of scholars analysing ECHR law in France probably accounts for certain specificities of the substance of their discourse. It is certainly striking that French scholars are generally receptive to notions such as a ‘European public order’,47 to theses such as that of the bindingness, beyond the Convention itself, of the Court’s case law (ie the erga omnes value of ECHR law48) and even to the notion that something like a constitutional order exists at the level of the Council of Europe.49 In that respect, French scholarship differs significantly 45   See, eg, A Woodcock, ‘Jacques Maritain, Natural Law and the Universal Declaration of Human Rights’ (2006) 8 Journal of the History of International Law 2, 245. 46   See full references in S Hennette Vauchez, ‘Divided in Diversity. National Legal Scholarships and ECHR Law’ EUI Working Paper RSCAS 2008/39. 47   On this concept applied to ECHR law, see F Sudre, ‘L’ordre public europée’ in MJ Redor (ed), L’ordre public: ordre public ou ordres publics? (Brussels, Bruylant, 2001) 109; F Sudre, ‘Existe-t-il un ordre public européen?’ in P Tavernier (ed) Quelle Europe pour les droits de l’Homme? (Brussels, Bruylant, 1996) 39; C Picheral, L’ordre public européen (Paris, La Documentation Française, 2001). 48   G Cohen-Jonathan, ‘Quelques considérations sur l’autorité des arrêts de la Cour européenne des droits de l’Homme’ in Liber Amicorum Marc André Eissen (Brussels, Bruylant, 1995) 39. 49   JF Flauss, ‘Les droits de l’Homme comme élément d’une constitution et de l’ordre européen’ (1993) 52 Les Petites Affiches 8.

Human Rights Law as an Academic Discipline  133 from, say, Italian scholarship where – as it has been argued – such ideas remain marginal. The case can be made for French scholarship to have been a much more propitious arena for the blossoming of such ideas than the Italian one, if only because of the relevance and importance of domestic law concepts and frameworks of analysis that French scholars were using while producing a learned discourse on ECHR law. Domestic lawyers (especially, as was mostly the case, administrative law specialists) were indeed already familiar with concepts such as that of ordre public, objective norms, etc; they were thus less likely to be unsettled by their application to the ECHR than their Italian counterparts, who were still working under a predominantly internationalist paradigm that essentially invalidated them. As this chapter has tentatively argued, the links that connect the political project of ascertaining human rights in Europe and its formalisation as a learned and scientific one are very tenuous. However, the main conclusion that can be drawn from the comparative study of the temporalities and modalities of the crafting and consolidation of such a body of law as European human rights law is that its success and purchase have remained very dependent on national logics of appropriation. In other words, this leads to a consideration that there is no such thing as a European/transnational body of human rights law but rather, a variety of national modes of reception of a transnational discourse on human rights. Ironically then, this very success story of European integration (the affirmation of European human rights law) also intrinsically contains its failure as an authentically trans­ national endeavour: it exists only in so far as it allows for local adaptations.50

50   Further on this last note: S Hennette-Vauchez, ‘Constitutional or International? When Unitary Reformatory Rationales Mismatch the Plural Paths of ECHR Law Legitimacy’ in J Christoffersen and M Madsen (eds), The European Court of Human Rights Between Law and Politics (Oxford, Oxford University Press, 2011) 145.

7 Where Have all the Lawyers Gone? Structure and Transformations of Top European Commission Officials’ Legal Training DIDIER GEORGAKAKIS AND MARINE DE LASSALLE

I. INTRODUCTION

A

S THE ‘GUARDIAN of the treaties’ and holder of a ‘monopoly of initiative’ (at least theoretically), the European Commission (EC) plays a key role in the production of European Union law. Beyond this contribution to legislative production, the Commission’s presidents, successive College members, directors, members of the legal service and administrators have all been engaged in the construction of Union law. They have done so in a variety of ways: through the relationships of cooperation and competition they have built with the European Court of Justice but also with all the actors involved in the production of European policies and standards; through their mobilisation of academic and legal circles; through their active participation in Treaty reform processes and their leadership during ‘routine’ periods in between these Treaty reforms, etc. Such multidimensional activity has affected the volume, the form and the interpretation of Union law. Arguably, the Commission has largely contributed to the construction of the European legal field, as a space of social relationships that structures EU construction.1 This chapter focuses on an aspect of such contribution that is both more general and more specific: namely, the role of the European Commission’s agents in legitimating legal capital as a dominant one in the EU institutional field. Indeed, this formal and practical legal competence has for a long time been embodied by EC agents, and not only by jurists; the first EC president Walter Hallstein, a law professor and in many regards a founding figure, embodied this combination of 1   On these different aspects, see the special issue coordinated by A Cohen and A Vauchez (eds), ‘Sociologie politique de l’Europe du droit’ (2010) 60 Revue française de science politique 2.

138  Didier Georgakakis and Marine de Lassalle institutional and legal legitimacy. Subsequently, top EU officials were required to have very high qualifications, which contributed to reinforcing this legitimacy of law, jurists and legal training in founding a community of law.2 Even British commentators, traditionally less prone than others to consider the prevalence of law in public organisations as ‘self-evident’, emphasise the central role of law as a typical feature of the EC’s ‘common’ culture and of its administrative practices.3 Yet, recent evolutions have led to questioning of this figure of the European bureaucrat-as-jurist. The definition of the competence required and, to a large extent, the way in which this definition of the embodied competence is produced by the EC’s administrative elites has quite significantly changed. While there have always been forms of tension and hybridity between lawyers’ and economists’ definitions of institutional legitimacy, it seems that the latter now tend to prevail over the former. A number of indicators attest to this, such as the rise of soft law in the Lisbon strategy,4 the development of non-legislative forms of governance and their challenge to the Community method, and, in human resources policy, the increasing predominance of ‘skills’ and management over knowledge, and specifically over knowledge of Union law.5 This decreasing role of law can also be observed in the morphological trans­ formations of EC top officials. Their biographies are indicators of the legitimacy of resources and forms of capital and of their variations. Our biographical analysis, while allowing us to better weigh this change and its sociological consistency, suggests the following hypothesis: in the case of the Commission and its ‘top management’, legal capital, more than being merely linked to the function of jurist, represents a specific form or subcomponent of bureaucratic capital. Accordingly, regardless of the more or less relevant external causes that might be mentioned to explain this ‘turn’ – the concretisation of law leading the demand for jurists to decrease, the economic crises, the replication of a tendency observed in Member States – this raises the problem of the strategies of production and reproduction of this bureaucratic capital in the EC’s specific context. Based on a more general prosopographical analysis,6 this chapter sheds a new light on these transformations. It shows for instance that while jurists (ie agents mainly trained in law) integrated the European Commission very early on, and, at least for some time, acquired dominant positions within that institution, they 2   On theses aspects, see A Vauchez, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’ (2007) 2 International Political Sociology 2, 128–44; and A Vauchez, L’institution de l’Europe. Champ juridique européen et formation d’un ordre polititique (Paris, Presses de Sciences Po, forthcoming). 3   A Stevens, Brussels Bureaucrats, The Administration of European Union (London, Palgrave, 2001). 4   R Dehousse, L’Europe sans Bruxelles ? Une analyse de la méthode ouverte de coordination (Paris, L’Harmattan, 2004). 5   D Georgakakis, ‘Do the skill kill? Les enjeux sociopolitiques de la définition des competences des eurofonctionnaires’ (2010) Revue française d’administration publique 133, 61–80. 6   For a more general presentation of the research protocol, see D Georgakakis and M de Lassalle, ‘Making Top Civil Servants: Europeaness as an Identity and a Resource’ in J Rowell and M Mangenot (eds), A Political Sociology of the European Union (Manchester, Manchester University Press, 2010) 25–45.

Where Have all the Lawyers Gone?  139 were strong only insofar as their legal training was the basis of a broader undertaking of building a bureaucratic credit within which the properties of jurists were either marginal in their original form or watered down. Moreover, this ability to hold dominant positions within the machine tended to occur in competition with the rise of other agents, often economists, whose properties tend to become indispensable for a high level career within the Commission7.

II.  LEGAL TRAINING AS A COMPONENT OF BUREAUCRATIC CAPITAL

Among the roles that have contributed to the legitimisation of the Commission as one of the key institutions of European integration, the strictly legal functions (‘guardian of the treaties’, ‘initiator of legislation’, ‘regulatory organisation’, etc) are central. Hence, many observers have posited a link between these functions, the weight of jurists within the Commission, and the importance of the legal culture that supposedly prevails there.8 However, a functionalist interpretation linking the staff’s social properties to the Commission’s functional needs would neglect one central feature of the specific value of such legal culture. While we may agree with these authors in acknowledging the fact that many jurists integrated the administration of the European Commission and for a long time constituted the majority of its staff, they have done so not so much to create a ‘place of law’, or a stronghold of the nascent Community law, but rather to implement a strategy of foundation of both social and administrative executive.9 In this respect, mentions of a specialisation in a field of EU law are conspicuously absent in the biographical notices and CVs we have consulted, as is the claim to produce or at least to disseminate a body of law (eg competition law). Publications more frequently focus on the European administration itself rather than on more strictly legal issues. In other words, while legal training has doubtless represented one of the foundations of this undertaking, it has not played that role per se. It took place within the broader undertaking of building a bureaucratic capital liable to foster a European administration, and in the process, assert themselves as the best servants of this administration. Jurists were unarguably the first to hold top positions in the EC. Except for the position of Secretary General, which was for a long time held by a former 7   This study on the Directors-General and Deputy Directors-General of the European Commission is part of a research programme developed since 2001 by the Centre for European Political Sociology (GSPE-PRISME, MISHA, CNRS-University of Strasbourg) on ‘European elites’. Further details on methodological aspects are developed in annex 1 at the end of this chapter. 8  Stevens, Brussels Bureaucrats (n 3). 9   For different views on this aspect, M Cini, The European Commission: Leadership, Organisation and Culture in the EU Administration, (Manchester, Manchester University Press, 1996); C Shore, Building Europe, The Cultural Politics of European Integration (London, Routledge, 2000); N Kauppi Democracy, Social Resources and Political Power in the European Union (Manchester, Manchester University Press, 2005); D Georgakakis, ‘European Civil Service as Group: Sociological Notes about the ‘Eurocrats’ Common Culture’ in J Beck and F Thedieck (eds), The European Dimension of Administrative Culture (Baden Baden, Nomos-Verlag, 2008).

140  Didier Georgakakis and Marine de Lassalle ENS (Ecole Normale Supérieure) student Emile Noel, jurists have held most key positions in the administration. This is the case for Directorates-General (DGs) with a strong legal dimension such as DG Internal Market and DG Competition (Pieter VerLoren Van Themaat, Willy Schlieder), and obviously of the legal service, but also of transversal DGs such as Administration and Budget. More surprisingly perhaps, DGs such as Economic Affairs have, at least in the early stages, relied on legal skills. Indeed, Helmut Allardt, the first director of Economic Affairs, was a jurist, as were the two Italians who succeeded him in that position, Franco Bobba and Ugo Mosca. Other DGs such as the current DG External Relations – possibly at the request of Walter Hallstein, himself a diplomat and jurist specialising in international law – have been managed by jurists for a long time. Their placement in those positions appears, however, less as the fruit of a strategy of group placement in and for itself – jurists coopting jurists – than as the product of a more long-term process of development of an administration comparable to those existing in the Member States. The conflicts that have opposed the Hallstein Commission to certain Member States, particularly France, are wellknown and have had noticeable consequences. In the early stages where state pressure on the positions was still rather weak, the strategies of appointment of top officials entailed a process of cooptation involving Hallstein and Noel quite directly. The latter tried to surround themselves with a staff that presented guarantees not only of European know-how, as has been often pointed out, but especially of an incontestable bureaucratic competence. Indeed, the Prussian model of the jurist serving the ‘superior interest’10 seemed to offer resources in terms of loyalty both inside and outside the institution. Member States then gained more influence in the appointments, but only within the framework of compromises with the president and the Secretary General of the Commission, which have contributed to reproducing the general trend of these first appointments. This first analysis of the foundations of this administration thus contains a broader lesson on jurists’ presence in the Commission. The legal dimension of these top officials’ profiles is linked to the reproduction, and probably to the partial European conversion, of ultimately rather ordinary forms of a national bureaucratic capital which relies in most founding states on legal competence.11 Generally speaking, there are common features between top European officials and their national counterparts in terms of training. On a more specific national case-by-case approach, the relationship of homology that they share should be pointed out. The German case constitutes a good example. Often endowed with more legal capital than others, German top officials are characterised by their high proportion of PhDs in Law – ie a title that was, for a long time, necessary in order to reach the most prestigious positions in the German civil service. Therefore, DGs directed by Germans were for a long time held by jurists (among others, DG External Relations 10   M-B Daviet-Vincent, ‘Des études de droit au service de l’Etat’ in H Joly (ed), Formation des élites en France et en Allemagne (Paris-Cergy, CIRAC, 2005). 11   On the genesis of bureaucratic fields, see more broadly, P Bourdieu, ‘Rethinking the State: Genesis and Structure of the Bureaucratic Field’ (1994) 12 Sociological Theory 1, 1–18.

Where Have all the Lawyers Gone?  141 and Competition). The same goes for Italians and Luxembourgers in the DG Internal Market. Conversely, the British officials who arrived at the European Commission a little later were not jurists, similarly to top officials of the UK civil service.12 The table below, spanning the entire period and therefore integrating the issue of competition between legal and economist training discussed later in this chapter, shows the importance of this relationship of homology between the national administrative spaces and the European one. Table 1:  Degrees (main and secondary) held by nationality (in per cent) Degree/ Nationality

Law

Law + Eco–

Law + other

Total Law

Eco

Eco +Law

Eco+ other

Total Eco

Other

German

31

10.3

3.4

44.37

10.3

0

27.5

37.8

17.1

Belgian

25

0

12.5

37.5

25

0

0

25

37.7

British

6.7

0

6.7

13.4

26.7

0

13.4

40.1

46.7

Spanish

20

10

10

40

0

10

20

30

30

French

11.1

11.1

14.8

37

18.5

11.1

11.1

40.7

22.2

Italian

23.1

0

7.7

30.8

23.1

0

7.7

30.8

38.5

Dutch

36.4

9.1

9.1

54.6

36.4

0

0

36.4

9.1

Source: ‘EliteNavigator’ database, Centre for European Political Sociology (GSPE-PRISME) ‘Law’ and ‘Eco’ categories include agents who only have degrees either in law or in economy. ‘Law +’ and ‘Eco+’ include agents whose highest degree is in law or economy, but who have a secondary degree in law, economy, or another dis­cipline. The column ‘Total’ thus applies to main degrees in law and economy. The category ‘Other’ includes those who have degrees neither in law, nor in economy. Lastly, only nationalities with a relatively significant number of officials (15>n>40) are mentioned here.

While this relationship of homology shows that jurist profiles go hand in hand with the construction and accumulation of a bureaucratic capital by the institution and its members, this is not the only aspect at play here. Indeed, the blending of legal capital into bureaucratic capital is also a result of strategic behaviours, not in the sense of a tactical move, but as a long-term social strategy of construction of a social space and of one’s position within that space.13 This dimension can be first of all perceived in the way jurists have presented themselves for a long time. The limitations of our sources, mentioned earlier, are indeed largely due to the officials’ strategies of self-presentation. When they mention their legal training, the top EC officials do not lay particular emphasis on the titles liable to make them stand out for their legal competence. Unexpectedly, the place where 12   E Biland and R Vanneuville (2010), ‘Should High Civil Servants be Lawyers? An Overview on Legal Education at the French National School for Government (1945–2010)’ Annual Meeting of the Law and Society Association, Chicago. 13  For a broader model, see P Bourdieu, The State Nobility: Elite Schools in the Field of Power (Stanford, Stanford University Press, 1996).

142  Didier Georgakakis and Marine de Lassalle the degree was obtained (a potential indicator of its value for sociologists as well as for other readers of the biographies) is not systematically mentioned. The majority of those who mention it are those who value a foreign cursus honorum (nationals of small countries who have studied in a university from a big country, or nationals of a big country aiming to play down their national connections, etc). Similarly, readers are often left in the dark about the nature of the officials’ legal training. When it is mentioned, it works as a token of bureaucratic competence, but the point is often to avoid defining one’s competence as having a national connotation (public law, private law, etc); instead, international law and comparative law are more often mentioned as fields of expertise. This dimension should be placed in the context of a broader process of stylisation, and beyond that of manufacturing European bureaucratic capital and making it increasingly autonomous. As has been observed elsewhere, in the course of European integration there have been forms of differentiation of the paths of top officials, as careers involve stages that are increasingly specific to this space, for instance experience as a member of cabinet of a Commissioner, substantial ‘inhouse’ experience and multiple sector-specific experiences – those who possess such experience hold a particularly valuable ‘generalist’ credit.14 This has consequences in terms of the training of top officials. Among the Directorates held by jurists (External Relations, Competition, Internal Market, Administration and of course legal service), none has been predominantly composed of ‘pure’ jurists.15 Most other DGs are increasingly marked by ‘double competences’. The double competence Law/Social Science prevails in the DG Social Affairs and Employment, and Political Science/Law does so in the DG Information. Apart from those atypical cases, the double competence Law/Economy prevails everywhere else. This double competence often becomes an individualised norm (double degree), complemented by a second degree abroad. The careers of jurists who hold positions of Director-General or Deputy Director-General in the current Commission exemplify this. For instance, the German Matthias Ruete obtained law degrees in Germany (PhD) and in London (LLM). After these national and foreign experiences, he went on to be a lecturer in Germany and at the University of Warwick, Coventry, and then started a ‘typical’ career in the Commission. Originally an administrator in the Social Affairs and Internal Market DGs, he became head of unit in the DG Industry. Following this transversal experience, he became a member of the Research Commissioner’s cabinet. He then embarked on another multisectoral ‘tour’ as Director (DG Energy, then Enlargement and Enterprise) and eventually became DirectorGeneral for Transport and Energy. Françoise Le Bail had a similar career: she was 14   D Georgakakis and M de Lassalle, ‘Les très hauts fonctionnaires de la Commission européenne: genèse et structure d’un capital institutionnel européen’ (2007) Actes de la Recherche en Sciences Sociales 166–67, 39–53. 15   Y Dezalay, ‘Juristes purs et marchands de droit. Division du travail de domination symbolique et aggiornamento dans le champ du droit’ (1990) 3 Politix. Revue des sciences sociales du politique 10–11, 70–91.

Where Have all the Lawyers Gone?  143 doctor of law and a lawyer, but soon abandoned her career as a jurist to integrate DG Relex and became a spokesperson for the Belgian Commissioner for Foreign Affairs, and then worked in Christiane Scrivener’s cabinet. She was then adviser and Director in DG Commerce, and became spokesperson for the president of the Commission and Deputy Director-General of DG Enterprise. This construction of a specific bureaucratic capital, quite different from that of law producers and comparable to that of staff from the Courts, for instance, can finally be seen in the remarkable career evolutions of legal service members, which demonstrate the increasing integration of legal capital into ‘in-house’ institutional capital. The capital held by the first Directors-General of the legal service was clearly typical of French top officials. Michel Gaudet, who completed his studies in the late 1930s/early 1940s, graduated from the Ecole libre des sciences politiques, had degrees in private and public law, was an auditor in the French Council of State, legal adviser of the French protectorate in Morocco in 1945, Maître des Requêtes in 1945, head of Cabinet for Lionel de Tinguy (State Secretary for economic affairs from 1945 to 1950), Legal Adviser of the ECSC High Authority in 1952, DG of the legal service of the European executives in 1958, and director of the legal service of the Commission up to 1969. Jean-Louis Dewost (BA in law, degree in economics, graduate from the Institute of Political Science in Paris and the ENA) was successively senior civil servant in France (Manager of the documentation centre of the Council of State, Auditor in the Council of State, President of the social section of the Council of State) and in the legal services of European institutions (DG in the Council’s legal service, DG of the Commission’s legal service). Things change with Michel Petite. Born in 1947, he had a degree in private and public law, and indicated he was a Law professor in the universities of Paris and Orléans, and a lawyer at the Paris bar. After he entered the Commission in 1979, his career there was that of a ‘typical’ European official, alternating positions in the Commission’s DGs (administrator in the DG Industry and Internal Market between 1974 and 1984, then head of unit in Competition in 1990–91, and finally director at the Amsterdam IGC and Director for State Aid in DG Competition between 1995 and 1999), and positions in cabinets (member of Lord Cockfield’s cabinet from 1985 to 1988, deputy head of Cabinet for Christiane Scrivener in 1989–90, member and then head of cabinet of two presidents of the Commission, Jacques Delors and Romano Prodi from 1991 to 1995 and from 1999 to 2001). Only after having held all these positions did he come to direct the legal service in 2001. Claire-Françoise Durand’s career also unfolded entirely within the Commission, even though she has less of a generalist profile than her predecessors. With a Law PhD obtained at the University Paris II University and a LLM from Yale, she entered the Commission through DG Competition, and then moved to the legal service, where she was successively Administrator (six years), Assistant to the DirectorGeneral (eight years), Director (nine years), Deputy Director and acting DirectorGeneral.

144  Didier Georgakakis and Marine de Lassalle

III.  LEGAL TRAINING AS CONTESTED CAPITAL

While the process of construction of a bureaucracy in which jurists are involved dilutes their strictly legal properties, such dilution also depends on a broader process whereby their long-lasting dominant position is increasingly contested by others, especially economists. This should not be seen only as an external effect of the large European market, as we will see below. This dimension can first of all be seen in the general statistics on DirectorsGeneral and Deputy Directors-General16. In the first two phases of European integration (1958–85), jurists prevailed over economists. This is undeniable during the period 1958–73, but was already less obvious after 1973 (and valid only in terms of domination of ‘pure’ jurists over ‘pure’ economists). This balance was reversed after 1985. Under Delors’ presidency, there was a surge in the number of economists (almost 38 per cent) and fewer jurists, and this became a stable pattern around 1996. Most strikingly, in this new period, the sense of balance that seemed to characterise holders of this new bureaucratic capital tends to disappear. A significant proportion of jurists still combine their law degree with an economics degree, but the opposite is no longer true. While many economists studied law between 1973 and 1996, this double competence was found less and less after 1996. Table 2:  Degrees (main and secondary) held by period (in per cent) Degrees/ Period

Law

Law + Eco

Law+ other

Total Law

Eco

Eco + Law

Eco Total +other Eco

Other

1958–73

31.4

2.9

11.4

45.7

20

0

8.6

38.6

25.8

1973–85

21.4

7.1

3.6

32.1

14.3

7.1

10.7

32.1

35.7

1986–95

14.3

11.4

5.7

31.4

20

8.6

14.3

42.9

25.7

1995– 2008

12.3

3.5

15.8

31.6

28.1

0

15.8

43.9

24.6

Source: ‘EliteNavigator’ database, Centre for European Political Sociology (GSPE-PRISME) Using the same categories as Table 1, this table shows the degrees held by the agents on the date of their appointment. All of the agents for whom this information is available (n=187) are included.

This evolution is confirmed by the analysis of the degrees held by the DirectorsGeneral of the current Commission. Economics training appears to prevail durably over legal training. Two-thirds of the current Directors-General are indeed 16   Some elements fn the entire population of officials can be found in annex 2 at the end of this chapter.

Where Have all the Lawyers Gone?  145 graduates in economics (fourteen out of twenty-one), whereas only four out of twenty-one are jurists. Law degrees are also generally combined with another competence (European studies for Faull, international administration for Manservisi and philosophy and history for Quintin), which is less often the case for economists. Economists have also increasingly occupied important positions in the major DGs where jurists were formerly prevalent, such as Competition, External Relations and Regional Policy. Table 3: Degrees held by the Directors-General of the European Commission at the end of 2000’s (2009) DG Communication (Claus Haugaard Sørensen, Denmark)

Master of Economic Science (University of Aarhus)

DG Economic and Financial Affairs (Marco Buti, Italy)

M PHIL in Economics, University of Oxford, Laurea Economia e Commercio, University of Florence.

DG Enterprise and Industry (Heinz Zourek, Austria)

Economy (University of Vienna)

DG Admin (Claude Chêne, France)

DES Economical Sciences & DES European Economics (University of Nancy II)

DG Justice, Freedom and Security (Jonathan Faull, UK)

BA Law/French U Sussex and Geneva + MA European Studies College of Europe (Bruges)

DG Environment (Mogens Peter Carl, Denmark)

MA in Economics (University of Cambridge), MBA, INSEAD (Fontainebleau)

DG Regional Policy (Dirk Ahner, Germany)

PhD in Economics (University of Bochum)

DG Internal Market (Jörgen Holmquist, Sweden)

Degree in Economics (University of Stockholm)

DG Budget (Hervé Jouanjean, France)

Degree in Economics and Finance (Institute of Political Studies, Paris) DES in Econometrics DES in International Relations (Paris)

DG Employment (Nikolaus Van der Pas, Germany)

Master, Trade and Consular Studies

DG Health and Consumer Protection (Robert Madelin, France)

Magdalene Oxford College+ ENA

DG Enlargement (Michael Leigh, UK)

PhD in Political Science

DG Energy (Matthias Ruete, Germany)

Master of Law (University of London), PhD in Law (University of Giessen)

DG Competition (Philip Lowe, UK)

M Sc (London Business School)

146  Didier Georgakakis and Marine de Lassalle Table 3 (cont.) DG Agriculture (Jean Luc Demarty, France)

Engineer (Ingénieur du génie rural, Polytechnique)

DG External Relations (Eneko Landaburu, Spain)

BA in Law + DEA in Political economics (University of Nanterre)

DG Fisheries (Fokion Fotiadis, Greece)

PhD in Economics (Freiburg University)

DG Education (Odile Quintin, France)

Postgraduate degree in Public law and Political science, Comparative public law

DG Commerce (David O’Sullivan, Ireland)

BA in Economics and Sociology (Trinity College Dublin) + Diplome des Hautes Etudes Européennes (College of Europe, Bruges)

DG Information Society and Media (Fabio Colasanti, Italy)

Degree in Economics (University of Rome) + College of Europe (Bruges)

DG Development (Stefano Manservisi, Italy)

Law degree (University of Bologna), DESS International Administration (University of Paris I), Study Certificate on European Organisations (University of Strasbourg)

While economists are more often only trained in economics, they follow similar strategies of accumulation of specific institutional capital. These strategies involve the same types of resources: double competence, but not always in law; inter­ national training, sometimes in a university of another Member State, or in the US; experience in various cabinets and directorates. David O’Sullivan, DirectorGeneral for Commerce, is an economist and sociologist who graduated from the College of Europe. He also worked in the DGs Relex, EAC, Social Affairs, and within cabinets (Peter Sutherland, Padraig Flynn and Romano Prodi). Similar tendencies can be observed for more sectoral profiles. Marco Buti, graduate in economics and commerce from the University of Florence, holds a Masters degree in research on economics (M Phil) from the University of Oxford. He has published numerous books and articles on the EMU, progressively climbed the hierarchic ladder in the DG Economy and Finance (economist, head of unit, director, then Deputy Director-General), and also held positions in cabinets (Pandolfi, then Vanni d’Archirafi) which enabled him to become Deputy Director-General and Director-General. Other, very diverse actors with different profiles should also be mentioned. Two main groups can be distinguished: those who have degrees in political and social science (with variations between Member States), and the technicians or engineers (physicists, agronomists, etc). Apart from during the 1973–85 period, when the British accession likely increased their relative weight, their number has remained more or less stable. Here, the addition of competences other than strictly economic or legal should be emphasised insofar as it prevents us from

Where Have all the Lawyers Gone?  147 interpreting the reversal observed as the product of a victory of the economists over the jurists. The decreasing number of the agents trained in law in the EC remains however unexplained. Two hypotheses seem to prevail. The first, a functionalist one, asserts the exist­ ence of a necessity related to the construction of the single market. The second one, influenced by Marxism, consists in saying that because it is a ‘superstructure’, the administration of the Commission only reflects a sociological evolution that can be observed everywhere, in every European country. Broadly speaking, there is an element of truth to both hypotheses, but they neglect more internal explanations, linked to the specific dynamics of the construction of the group and the social and political strategies used to invest this group. In this perspective, the case of the very high civil servants helps to put forward three elements for explanation. First, as we have suggested above, the decrease of law is due to the jurists themselves, who have invested this bureaucratic space. In the same way that they have contributed to its foundation, they have converted themselves to their institution, which influences them in return, as the evolution of their individual paths shows. Or else, in order to maintain their positions – not so much as a result of a deliberate strategy, but rather in order to successfully accomplish their sectoral missions – they have attempted to make alliances with others, for example by recruiting economists (and others). In the case of Competition, the interview with Roger Simonet, former Deputy Director-General for Fisheries and then for Competition, provides insights in this phenomenon: Well, Competition, actually, I discovered it . . . DG Competition, at first when I arrived I sort of . . . wasn’t very well considered because I didn’t come from Competition. (. . .) Competition was a DG with a bit of a narrow vision, that is, a purely legal vision and that shocked me, and when I was put in charge of very important cases, with Ehlermann, we understood we had to change a little, I’m not saying the orientation, because it was always very specific; with him I tried to open Competition to a reflection on the economy. So as people left, we made arrangements to recruit economists with priority. But Competition still retained a strong legal specialization, very strictly legal. And with Ehlermann (. . .) we tried to breathe new life into the DG, by having people think beyond purely legal aspects – what is the future of Europe regarding industrialization? And since then (. . .) DG Competition has been open-minded enough to deal with Americans better, especially in terms of very important global issues.

As we have mentioned above, these economists have themselves accumulated bureaucratic capital specific to the institution – as a result, they have to some extent taken the place formerly held by jurists. A second type of explanation refers to the successive enlargements, which have led to the recruitment of top officials whose bureaucratic model is not structured by law, unlike in the case of Germany for instance. This is first of all the case of British, Danish and Irish officials. The first British DGs were, indeed, all nonjurists. Raymond Appleyard, the first British Director-General of DG Information, after having taught and done research in physics and biology in Canada and the US, became the secretary of a UN committee specialised in the effects of atomic

148  Didier Georgakakis and Marine de Lassalle radiations, then head of department at Euratom, and finally entered the Commission in 1973 as DG. Sir Ronald Grierson, a German and British national, studied in the Lycée Pasteur in Paris, at the Highgate School, London and at Balliol College, Oxford, and directed several private companies before his appointment as DG of Industrial Affairs. Michael Shanks, also a student of Balliol College and a long-time correspondent of the Financial Times, was manager of a private company before he entered the Commission as DG for Social Affairs and Employment in 1973. While the other British DGs definitely do not have such atypical profiles, few are those who have been trained in law. The same is true of their Danish and Irish counterparts, many of whom are economists. The enlargement to Sweden, Austria and Finland reinforced this tendency by ensuring the promotion of people with similar profiles to positions of Director-General, with a prevalence of economists, a few political science or technical profiles, and almost no jurists. This is also the case with the new Member States. The top officials from new countries, with two exceptions (Maria Bohata, Czech, DG Eurostat, has a PhD in economy, Jan Truszczynski, Polish, has degrees in international law and international economics, DDG Enlargement), have very different profiles. They do not possess bureaucratic capital a priori and often distinguish themselves by technical capital (corresponding to the positions that were opened to them) and an international dimension. These three phases of enlargement were not compensated by the integration of Spain, Portugal and Greece in the 1980s, whose citizens have more ‘mixed’ profiles, with very international and ‘Euro-compatible’ profiles. Thirdly and finally, while jurists used to lead the European Commission, the political support structure has now shifted. This is especially the case of the structure of the college of Commissioners and its presidents. A comparison of the appointments by the Hallstein and Delors presidencies clearly shows how the presidents were able to surround themselves with agents whose properties were similar to their own. It is thus likely that the socio-morphological evolution of the college, which – since 1996 and especially with the latest Commission – counts many economists from new member countries, does not enable a ‘return’ of the jurists. As a conclusion, the case of the Commission highlights a specific dimension of legal capital and its transformations. It does not show that this capital has no more value, but it shows that it is no longer the dominant instrument of certification of bureaucratic competences, even within international bureaucracies where the figure of the diplomat-jurist,17 on the model of the jurist-servant-of-the-state forged in Prussia, prevailed for a long period of time. This does not preclude law from having an influence within the Commission, and the latter’s role as guardian of the Treaties still represents an important part of its top officials’ symbolic capital. The practices of the officials also still very much revolve around law-based interpretations of policies. The Commission has also contributed not only to the construction of Community law, but to its dissemination and social legitimisa17   G Sacriste and A Vauchez, ‘The Force of International Law. Lawyers Diplomacy on the International Scene in the 1920s’ (2007) 32 Law and Social Inquiry 1, 83–107.

Where Have all the Lawyers Gone?  149 Table 4: Main degree held by nationality (in per cent) Discipline Nationality

Law

Economy

Languages

Literature

Humanities/ Social science

Political science

Science/ Medicine

43.2%

27.0%

–

–

2.7%

16.2%

10.89%

Austrian (n=3)

–

66.7%

–

–

–

–

33.3%

Belgian (n=17)

29.4%

41.2%

–

–

17.6%

0%

11.8%

British (n=24)

12.5%

29.2%

16.7%

16.7%

8.3%

8.3%

8.3%

Cypriot (n=1)

–

–

–

–

–

100%

–

Danish (n=6)

16.7%

66.7%

–

–

–

16.7%

–

Spanish (n=15)

53.3%

26.7%

–

–

–

13.3%

6.7%

German (n=37)

Finnish (n=5)

20%

0%

–

–

–

20%

60%

French (n=40)

35%

42.5%

–

–

–

17.5%

5%

57.1%

42.9%

–

–

–

–

–

Greek (n=7)

–

50%

–

–

–

–

50%

Irish (n=7)

14.3%

57.1%

–

–

–

14.3%

14.3%

Italian (n=41)

36.6%

24.4%

–

–

7.3%

17.1%

14.6%

Luxembourger (n=5)

60%

20%

–

–

–

20%

–

56.3%

31.3%

–

–

–

6.3%

6.3%

–

50%

–

–

–

–

50%

Portuguese (n=6)

16.7%

33.3%

–

–

–

33.3%

16.7%

Slovakian (n=1)

100%

–

–

–

–

–

–

Slovenian (n=1)

–

–

–

–

–

–

100%

Swedish (n=2)

–

100%

–

–

–

–

–

Czech (n=2)

–

50%

–

–

–

–

50%

34.2% (n=82)

33.8% (n=81)

1.7% (n=4)

1.7% (n=4)

3.8% (n=9)

13.8% (n=33)

11.2% (n=27)

Hungarian (n=2)

Dutch (n=16) Polish (n=2)

TOTAL

Source: ‘EliteNavigator’ database, Centre for European Political Sociology (GSPE-PRISME)

tion through the support of EU law specialists. Lastly, the Commission has also been a locus or hub of networks allowing specifically European forms of cap­ italisation or re-capitalisation for national jurists. Rather than an undertaking of construction of law by jurists, this strategy was however driven by a more general undertaking of construction of positions of power by this bourgeoisie de robe. Jurists have weight, but especially the small group of ‘law-makers’ or those working for outside non-jurisdictional institutions, such as law firms. This makes a general topography of the entire legal field all the more valuable.

150  Didier Georgakakis and Marine de Lassalle Annex 1. Methodological Aspects This study of the Directors-General and Deputy Directors-General of the European Commission is part of a research programme developed since 2001 by the Centre for European Political Sociology (GSPE-PRISME, MISHA, CNRS-University of Strasbourg) on ‘European elites’. This programme has consisted in developing a database on Commissioners, Directors-General, Deputy Directors-General in Directorates-General and in the General Secretariat of the European Commission, as well as the main positions in the European Parliament (presidents, vice-­ presidents, quaestors, presidents of committees and groups). This database now includes more than 600 entries including ‘bio-social’ data (age, gender, place of birth, nationality, marital status, etc), information on careers (positions successively held), diplomas and places of training, engagements (voluntary, political, European), publications and decorations. We currently have 220 biographies on Directors-General and Deputy Directors-General. Before we proceed to analyse this data, a few limitations specific to the analysis of training should be mentioned. An interesting aspect of biographical directories is the fact that they contain self-definitions, thereby revealing the symbolic value that the agents attribute to their successive titles or positions, which makes for a good indicator of the construction process of a credential. However, in the available directories, family properties are very seldom mentioned, and while rewards obtained outside the institution are occasionally highlighted, top officials tend to valorise, whenever possible, their path within the institution. This is one of the specificities of bureaucratic capital compared to other positions that are more individualised, such as judges or lawyers. It is indeed quite arduous, unless one carries out further biographical investigation through other means, to work on legal capital, as Charle defines it.18 We will then focus instead on training, which entails other difficulties. Unlike French top officials (for whom degrees are essential), European top officials tend not to particularly highlight their educational achievements and competences, especially in the European dictionaries we consulted. This paradox has sociological reasons: degrees are national markers and access to top European civil service positions is tied to the claim to defend a European general interest. The reason why they are increasingly mentioned now is precisely that the processes of denationalisation of paths have been underway long enough that these national markers do not hinder the agents’ strategic identities.19 Moreover, the shaping of strategic identities takes on extremely diverse national forms. For instance, while in France degrees and places of training are important for educational and social certification and are always mentioned in biographical notices, in the UK colleges prevail as social certification. As a result,

18   C Charle, ‘La bourgeoisie de robe en France au XIXe siècle’ (1997) Le Mouvement Social 181, 53–72. 19   A Collovald, ‘Identité(s) stratégique(s)’ (1988) Actes de la Recherche en sciences sociales 73, 29–40.

Where Have all the Lawyers Gone?  151 we know a lot about the places of training of British top officials, but we have few elements of their fields of education. These various limitations have of course been taken into account in this study.

Annex 2. Below the top levels If the EC’s top management is a good entry point for studying legal capital and its legitimation, other levels should however also be considered: while legal capital has increasingly less value on the upper levels, there is no reason why the same process should automatically occur at the lower levels. Studying this question thoroughly would require conducting another study altogether; failing that, we can outline a few elements of this topic. They suggest that the same tendency also exists for lower positions, albeit less strongly. First, if legal capital seems less prestigious, the jurists of the Commission (not to be confused with the officials trained in law) remain a small but stable group. As of 31 December 2008, 712 Commission officials had legal functions, which amounts to two per cent of the entire staff,20 including however 642 administrators, ie 4 per cent of the total number of administrators. These jurists include members of the legal service (250 jurists, approximately 100 administrators) and agents in charge of legal functions in most Directorates-General. The number of members of the legal service has increased, but the increase is similar to the one observed for the number of agents in central services over the 2000–08 period. There are great disparities between Directorates-General in terms of legal functions. Apart from those purely legal functions, things are quite different. Arguably, the relatively good health of specialised legal organs coincides with the shrinking of the areas in which legal capital is thought to be important. In the general structure of the Commission, according to a European Parliament report on the subject, many management positions have been opened in the past few years. Other indicators are also relevant: the heads of units, formerly considered as the key figures of the Commission’s legislative initiative role, are increasingly led to focus on team management tasks and are less able to anticipate opportunities in terms of initiative.21 Lastly, regarding internal policies, legal policies quite noticeably tend towards simplifying and clarifying law, and generally reducing the number of texts on the acquis communautaire rather than extending it: it has become a problem just as much as a resource.   European Commission, Human Resources Report, 2009, 66.  cf M Bauer, ‘Diffuse Anxieties, Deprived Entrepreneurs. Commission Reform and Middle Management’ in M Bauer (ed), ‘Reforming the European Commission’ (2008) 15 Journal of European Public Policy 5, 691–707; and A Ellinas and E Suleiman, ‘Reforming the Commission: between Modernization and Bureaucratization’ in M Bauer (ed), ‘Reforming the European Commission’ (2008) 15 Journal of European Public Policy 5, 707–25. 20 21

8 The Creation of Institutional Expertise at the European Parliament: Legal and Political Resources of the Members of the Constitutional Affairs Committee LAURENT GODMER AND GUILLAUME MARREL

I. INTRODUCTION

E

VER SINCE ITS members were elected by direct universal suffrage, the European Parliament (EP) has become a key driving force of the constitutionalisation of the European Treaties.1 The elected assembly of the European Union (EU) has established itself as the guardian of the so-called ‘constitutional principle’ vis-à-vis the Council.2 The adoption of the Spinelli project in 1984 marked the beginning of an intensification of the institutional debate,3 which continued until the present day, when the EP’s Constitutional Affairs Committee (COMAFCO) debates the follow-up to the entry into force of the Lisbon Treaty. On account of its parliamentary contribution to the constitutional project, this committee can be regarded as an engine of the construction of the EU through law. The COMAFCO’s work of constitutional invention does not come under the legislative competences of the EP. Nor is it closely supervised by the EP’s legal service whose job is to control whether EP drafting is in accordance with the Treaties and the EU Charter of Fundamental Rights. In fact, the COMAFCO’s task is to prepare the institutional future of the EU. One can observe a concern for formalisation in making sure that the relevant reports are being adopted by the EP plenary and, above all, in pushing for their recognition by the intergovernmental conferences (IGC) and the Conventions. The responsibility 1   This chapter reproduces the results of a study conducted between 2006 and 2008 and presented at the conference ‘The European Legal Field’ organised at the European University Institute (EUI) in Florence. 2   P Magnette, ‘La Convention européenne: argumenter et négocier dans une assemblée constituante’ (2004) 54 Revue française de science politique 1, 5. 3   cf J-V Louis, ‘Les projets de constitution dans l’histoire de la construction européenne’ in P Magnette (ed), La constitution de l’Europe (Brussels, Éditions de l’université de Bruxelles, 2000).

154  Laurent Godmer and Guillaume Marrel for this formalisation has been assigned to the secretariat of the COMAFCO. The committee is thus the scene of a peculiar tension between political propositions and legal translation, between institutional vision and constitutional proposition, between (mostly federalist) political projects by the elected representatives and their implementation by the administrators. Within the Institutional Affairs Committee (COMINST), and within its successor the COMAFCO, a few MEPs have dedicated themselves to the clarification and constitutionalisation of the Treaties. These tasks can be seen as a process of politicising and publicising the construction of the EU through EU law and through the jurisprudence of the ECJ. But in addition, this ‘constitutional codification’ is supposed to broaden the role of the EP, to modify the nature of its mandate and the progression of political careers. Using a historical analysis and a prosopographical study focused on the recruitment of its members, this chapter aims at examining this committee as a particular parliamentary space, which has overseen the political process of codification of European institutional projects. Indeed, the history and the work of the COMAFCO highlight the creation of a specialised area dedicated to institutional issues within the EP. The leaders of this committee have tried to turn utopian projects of European integration into legally acceptable realities. The parliamentary work of this committee takes place within a specific context. Indeed, the evolution of the EU has led to a rebalancing of the ‘institutional triangle’ in favour of the EP. The increased use of co-decision in the various fields covered by the Treaties has turned the EP into an important space for political discussion and action.4 Here, the transformations of EU parliamentary law appear to be the product of, first, the application of a doctrine which favours the construction of the EU5 and, second, the efforts of MEPs who operate in a semiautonomous way vis-à-vis their national governments.6 At the same time, the legislative assembly in Strasbourg continues to be marginalised, especially because of the ‘resistance of governments’,7 the European political regime remaining ‘semi-parliamentarian’ or ‘hybrid’,8 notably on account of resistance within the ‘national political fields’.9 Yet, in this still fragile parliamentary space, some MEPs 4   See G Tsebelis, ‘The Power of the European Parliament as a Conditional Agenda Setter’ (1994) 88 American Political Science Review 128; P Delwit, J-M De Waele and P Magnette (eds), A quoi sert le Parlement européen? Stratégies et pouvoirs d’une assemblée transnationale (Brussels, Complexe, 1999); O Costa, Le Parlement européen, assemblée délibérante (Brussels, Université Libre de Bruxelles, 2001). 5  O Costa and P Magnette, ‘Idéologies et changement institutionnel dans l’Union européenne. Pourquoi les gouvernements ont-ils constamment renforcé le Parlement européen ?’ (2003) 9 Politique européenne 71; See N Clinchamps, Parlement européen et droit parlementaire. Essai sur la naissance du droit parlementaire de l’Union européenne (Paris, Librairie Générale de Droit et de Jurisprudence, 2006). 6   O Rozenberg and Y Surel, ‘Parlements et Union européenne’ (2003) 9 Politique européenne 11; Y Clarisse and J Quatremer, Les maîtres de l’Europe (Paris, Grasset, 2005) 44. 7   P Magnette, Le régime politique de l’Union européenne (Paris, Presses de Sciences Po, 2006) 150, 296. 8   ibid at 21, 295. 9   N Kauppi, Democracy, Social Resources and Political Power in the European Union (Manchester, Manchester University Press, 2005) 1.

The Creation of Institutional Expertise   155 manage to monopolise the parliamentary work on institutional questions. They work within a committee specially set up since 1982 and contribute to ‘kindle the constitutional flame’, most of the time with the help of the majority.10 They consist of an influential elected minority whose members have followed a very Europeanised career-path, who are sensitive to European parliamentary socialisation and who are committed to the promotion of the institution and the constitutionalisation of the Treaties. The establishment of a specialised career path and the choice of a European career by some politicians11 enable these MEPs to have some impact on the European legal and constitutional scene, by capitalising on the uniqueness of their combined parliamentary legitimacy and expertise in European law. In an unstable political system, the European Parliament thus asserts its ability to lay down the rules of the institutional game on grounds of its democratic legitimacy, but also on the basis of the technical and legal com­ petences of some of its members. The analysis presented in this chapter lies within the framework of the sociology of the actors of the EU,12 a ‘sociology of the professionals of Europe’13 which focuses on the study of limited groups.14 This study of the COMAFCO analyses the rationale for the commitment of MEPs to the constitutional project, from the perspective of their resources and their social, academic, political and European career paths. The important accumulation of legal capital and a strong experience of Europeanisation are characteristics of both the secretariat and the elected members, who work closely together in the writing of reports. The COMAFCO is thus a distinctive space within the EP, where a very Europeanised internal elite, endowed with social, political and legal capital, seeks to use its authority to develop their careers in European politics while, at the same time, promoting the parliamentary institution. Given the important stakes of Treaty reform for the EP, this committee has become a space for the promotion of legal and European capital. This promotion occurs through participation in the framework of the reform process of the Treaties as it was the case for the Treaty establishing a Constitution for Europe (TCE). The COMAFCO can therefore be analysed, first of all, as an institutional space which has become autonomous, as one of the main places for reflection on the institutional questions and as an inner circle dedicated to the promotion of the EP within the EU’s institutional power politics (section II). We then examine how the COMAFCO’s history and its characteristics have enabled its leaders to convert their legal capital and to put their careers at the service of the parliamentarisation   P Magnette, ‘La Convention européenne’ (n 2) 13.   G Marrel and R Payre, ‘Des carrières au Parlement: longévité des eurodéputés et institutionnalisation de l’arène parlementaire’ (2006) 18 Politique européenne 72. 12   D Georgakakis, ‘Introduction’ in D Georgakakis (ed), Les métiers de l’Europe politique. Acteurs et professionnels de l’Union européenne, (Strasbourg, Presses Universitaires de Strasbourg, 2002) 10. 13   D Georgakakis and M de Lasalle, ‘Les directeurs généraux de la Commission européenne : premiers éléments d’une enquête prosopographique’ (2004) 27–28 Regards sociologiques 6. 14   V Guiraudon, ‘L’espace sociopolitique européen, un champ encore en friche ?’ (2000) 38–39 Cultures & Conflits 8. 10 11

156  Laurent Godmer and Guillaume Marrel and of the constitutionalisation of the EU. Thus, within the COMAFCO, itself a laboratory of the European constitutional ‘dream’, the recruitment of members and the nature of its leadership throw light on the emergence of a legal European capital which is put to use in the European political field (section III).

II.  THE COMAFCO: A COMMITTEE WHOSE LEGAL AND POLITICAL TASK IS TO CHART THE INSTITUTIONAL FUTURE OF THE EU

In order to explain the emergence of an elite of specialists on constitutional questions between the negotiations on the Treaty of Amsterdam and those on the Treaty of Lisbon, we must recall the history of the space dedicated, within the EP, to those questions. The COMAFCO is endowed with a complex historical and institutional legacy. Its origins explain in part its elitist and specific character within the parliamentary arena. It produces work which is of a more intellectual and forward-looking nature rather than of a legislative kind (A). This specificity is representative of an epic mythological role on the part of the EP (B). Nevertheless, it has not allowed its members to continue monopolising the stage during the constitutional debate of the fifth legislature on questions of institutional orientations (C). This failure has led the committee to become a specialised (but ordinary) place for giving legal form to political propositions from the EP (D).

A.  The Freedom to Pursue a Non-Legislative Activity Since 1958, the European assembly has had a committee in charge of political affairs and institutional questions. It originally comprised important political figures such as Michel Debré, Pierre-Henri Teitgen, Antoine Pinay and Fernand Dehousse.15 It became the principal advocacy space for the election of MEPs by direct universal suffrage. After electoral legitimacy had been achieved in 1976, this space became, in the course of the EP’s first legislature, a laboratory for reflection on the future role of the EP but also on the future of the European Community as a whole, through the creation in 1982 of a committee for Institutional Affairs (COMINST). It was renamed Committee for Constitutional Affairs (COMAFCO) in 1999, during a review aimed at the reduction of the number of committees, with the new name referring to the constitutional project of 1984.16 Thus, this committee has been acting as a laboratory for reflection and proposition on the big institutional projects. It is characterised by work traditionally based on futurology and not on contingent decisions.

  Official Journal of the European Communities (OJEC), Luxembourg, 20 April 1958.   Interview with Charles Reich, former head of the secretariat of the COMINST and of the COMAFCO (1992–2004), Brussels, 15 May 2007. 15 16

The Creation of Institutional Expertise   157 In fact, the COMAFCO does not participate in the EP’s legislative activity under the co-decision procedure.17 Unlike other thematic committees, it is not a space for the legal formalisation of objectives relating to a particular policy sector. The COMAFCO wields little decision-making or budgetary influence, but the value of its opinion papers on the major challenges ahead and on the revision of the European Treaties has been acknowledged. The committee’s reputation is linked to the quality of its reports, to the prestige of its hearings and to its participation in the high-profile rendezvous of the IGCs. In practice, the work of the COMAFCO includes the preparation of reports, the drafting of opinions and of resolutions, the preparation of oral questions, the interpretation of the Rules of Procedure as well as considerable time spent on hearings of external experts, Commissioners and delegations from national parliaments. In the course of the EP’s fifth term (1999–2004), the reports of the COMAFCO became particularly important, turning this committee into a driving force and a source of ideas and initiatives. The majority of these reports were ‘own initiative reports’, free from the constraints of legal realism. This ‘editorial freedom’, combined with the importance of the stakes involved in the revision of the Treaties, accounts for the special nature of this committee. Since 1982, there has been a notable contrast in the committee’s work. On the one hand, the committee’s contributions made during the periods dedicated to the planning of the IGCs or Conventions are more formalised and are moderate enough in their terms to bear some influence on the intergovernmental negotiations. On the other hand, its contributions outside these periods are strongly characterised by their utopian dimension and their focus on theoretical federalist projects.

B.  From the Crocodile Club to the COMINST The committee was set up on the initiative of the famous federalist militant Altiero Spinelli (1907–86), elected in 1979 on the list of the Italian Communist Party (PCI). He envisaged, from the start of his mandate, a proposal for a new treaty providing for the creation of a special parliamentary committee. In his Diary, he relates his first attempt, namely a letter dated 25 June 1980 to MEPs on the ‘constituent’ purpose of this committee.18 The inaugural meeting, which led to the creation of the COMINST in 1981, took place at the Crocodile, a restaurant in Strasbourg, on 9 July 1980. There, Spinelli gathered the eight Members who had responded positively to his call made in the ‘true tradition’ of federalism of 17   The COMAFCO has eight key fields of competence: the institutional aspects of the integration process (preparation and proceedings of IGCs); the implementation of the EU Treaty and the assessment of its operation; the institutional consequences of enlargement negotiations of the EU; interinstitutional relations; uniform electoral procedure; the development of political parties at European level; the determination of a serious and persistent breach of the common principles by a state; the interpretation, modification and application of the EP’s Rules of Procedure. 18   A Spinelli, Diario europeo, vol 3 (Bologna, Il Mulino, 1992) 485.

158  Laurent Godmer and Guillaume Marrel which he was one of the oldest champions.19 This meeting led to the creation of a federalist group involving Members from different political parties which within a year included 180 Members. On 9 July 1981, the EP adopted a resolution providing for the creation of the COMINST, which was set up in January 1982. Its first chairman was the Italian Social-Democrat Mauro Ferri. From the very beginning, the recruitment of the 37 members of the COMINST was marked by the predominance of the leaders of the EP, and by an ‘elitist’ profile. Thus, the first committee included three group chairpersons and four chairpersons of other committees, as well as several members of the Committee on Legal Affairs (COMJURI). The guiding resolution of the COMINST was adopted by the EP on 6 July 1982 and the committee was then assisted by four administrators, all ‘eminent jurists’. It was a question of building up the legal capital of this new committee for the EU’s constituent mission. They championed the project and schooled the Members in the subtleties of its construction. Spinelli was named co-ordinating rapporteur with a mandate to prepare an EU project with the assistance of six co-rapporteurs, most of them with legal backgrounds.20 The main initiative of this first committee was the ‘Spinelli project’, namely the drafting of a Treaty establishing the European Union, whose text was adopted by the European Parliament on 14 February 1984.21 On 27 July 1984, after his re-election, and crowned by the success of his project, Spinelli was designated chairman of the COMINST. From then on, the committee made itself known through its influential reports including, for example, the 1985 report of vice-chairman Lambert Croux on the follow-up to the negotiations of the Single European Act. In the 1990s, the members of the COMINST, favoured by their internal specialisation within the Parliament, took part in a number of initiatives aimed at reinforcing the role of the EP, including the Herman Report proposing a European Constitution in 1994.22 At that time, this committee appeared to be detached from the then current debates. In that post-Maastricht phase of institutional status quo, ‘federalist imagination often prevailed over legal realism’.23 The ‘constitutional’ mission acknowledged in 1999 enabled the COMAFCO to take an active part in the planning of the IGCs as well as in the two Conventions on the Charter and on the Constitutional Treaty during the fifth legislature (1999–2004).24 19   cf A Spinelli, La rivoluzione federalista: scritti 1944-1947 (Bologna, Il Mulino, 1996) and Manifeste des fédéralistes européens (Paris, SEII, 1957). 20  R Corbett, The European Parliament’s Role in Closer European Union Integration (New York, MacMillan-Saint-Martin’s Press, 1998) 147–53. 21  M Van Aerssen, ‘Nous sommes une assemblée constituante pour l’Europe’ OJEC, Debates, Appendix no 1-273, session of 9 July 1981, 221. 22   cf S Bowler and D Farrell, ‘The Organizing of the European Parliament: Committees, Specialization and Co-ordination’ (1995) 2 British Journal of Political Science 219. 23   Translated from the original in French, ‘l’imagination fédéraliste l’emporte le plus souvent sur le réalisme juridique’, interview with Jean-Paul Jacqué, EUI, Florence, 26 September 2008. 24   Bilan des travaux de la commission des affaires constitutionnelles (juillet 1999–avril 2004) (2004), DV\536826FR.doc, 11 and following.

The Creation of Institutional Expertise   159 C.  A Debt of Gratitude to the Constitutional Work of the COMAFCO During the fifth legislature, the planning of the Convention, the preparation of reports on the Convention and on the future constitutional treaty provided the bulk of the work of the committee. In 1999, the renaming of the committee was intended to mark a new period: that of an effective constitutionalisation of the EU. There was a clear will to ‘move forward into a new phase’ coming from both MEPs and administrators who found the treaties in force inadequate and who campaigned for a more ‘federal’ EU.25 The workload of the COMAFCO was intense: it met 85 times between 1999 and 2004, carried out 52 interviews, issued 17 constitutional opinions and 5 interpretations of the Rules of Procedure, and published 55 reports. The committee elected on 27 July 1999 included 30 members chaired by Giorgio Napolitano, a former member of the PCI. The personality of the chairman had a significant impact, given Napolitano’s career as a ‘Euro communist’ close to Spinelli.26 Through its secretariat then headed by the former chief of the secretariat of the COMINST, Charles Reich (a lawyer convinced of the need to constitutionalise the Treaties), the COMAFCO undertook from July 1999 the task of preparing for the IGC. The report of Olivier Duhamel adopted on 25 October 2000, inspired by the 1998 report of Giuliano Amato, marks the beginning of the committee’s important contribution to the constitutional debate.27 In his report, the professor of constitutional law of the Institute of Political Studies in Paris requested the setting up of a constituent convention, in line with the Spinelli and Herman projects. The ‘disappointment’ provoked by the Nice Treaty was the driver for setting up the first Convention to the Charter. Its success in October 2000 provided momentum for the constitutional project, with the groundwork set out in the reports of the COMAFCO. The expertise of the members of this committee was made evid­ ent in the adoption of the Lamassoure Report on the competences of the EU and the Member States dated 16 May 2002 as well as through the adoption of the Napolitano Report dated 14 January 2003 on regional and local powers in the TCE, both of which were part of a ‘constituent strategy’.28 The period of the Convention appeared to provide an opportunity for exploiting the potential of the expertise-based resources acquired. According to Olivier Costa, members of the COMAFCO ‘greatly benefited from the fact that they had “mapped out” the debate on the institutional future and the constitutionalisation of the EU for

25   A Cohen and J Weisbein, ‘Laboratoire du constitutionnalisme européen. Expertises académiques et mobilisations politiques dans la promotion d’une Constitution européenne’ (2005) 60 Droit et Société 356. 26   G Napolitano, Dal PCI al socialismo europeo. Un autobiografia politica (Rome, Laterza, 2006) 315. 27   O Duhamel, Pour l’Europe. La constitution expliquée et commentée (Paris, Le Seuil, 2005) 18. 28  O Costa, Le Parlement européen, assemblée délibérante (Brussels, Editions de l’Université de Bruxelles, 2001) 29.

160  Laurent Godmer and Guillaume Marrel almost twenty years’.29 Moreover, it was during a hearing by this committee that Valéry Giscard d’Estaing announced the opening of the European Convention. The members of the committee formed the majority of the EP delegates to the Convention (14 out of 16). A significant number of proposals from the COMAFCO were even accepted in the final text submitted for ratification. The parliamentary delegation clearly played a significant role in the debates of the Convention. However, it would be an exaggeration to give all the credit solely to the members of the COMAFCO sitting on the Convention. A number of proposals for a greater ‘parliamentarisation’ of the Union were heavily amended in the effort to reach a compromise.30 The relative parliamentarisation of the constitutional project can be partly explained by the paradoxical isolation of the COMAFCO within the delegation to the Convention. Whereas the COMAFCO played a central role in the 2001 IGC in Nice, it was not able to control the delegation to the Convention: the latter had the support of an ‘additional taskforce’ linked to central management, presided over by the administrator Gérard Laprat and composed of secretariat representatives from the committees on legal affairs (JURI), on civil liberties and justice (LIBE), on women’s rights (FEMM), on petitions (PETI) and of the COMAFCO.31 Apparently, the federalist fervour of the group had to be tempered and Napolitano had to be marginalised.32 The positions adopted by high-profile personalities like Duff, Hänsch, Mendez De Vigo, Duhamel and Lamassoure were seen as rigid, even conflicting with an intergovernmental solution to the institutional consensus. This structure then followed and, to some extent, had the effect of controlling the EP representatives at the IGCs, irrespective of the fact that those representatives were at the same time important members of the COMAFCO. While the reports prepared by the COMAFCO guided the evolution of the debates of the Convention, the COMAFCO was never the main driving force behind the constitutional project.

D.  A Consensual Space for Giving Legal Substance to Political Projects The intense activity described above slowed down during the sixth legislature (2004–09) when the committee’s effort focused on the difficult task of getting the TCE ratified.33 The basic task was to follow up the TCE project by explaining it, more particularly, to national parliaments. The COMAFCO then participated 29   Translated from the original in French: ‘ont tiré profit d’avoir ‘balisé’ depuis près de vingt ans les débats sur l’avenir institutionnel et la ‘constitutionnalisation’ de l’Union européenne’, O Costa, ‘La contribution de la composante ‘Parlement européen’ aux négociations de la Convention’ (2004) 13 Politique européenne 24. 30   M Scelo, ‘Le Parlement européen face à l’avenir de l’Europe. De la Convention européenne à l’adoption d’une constitution pour l’Europe’ (2002) 46 Revue du marché commun et de l’Union européenne 579. 31   See the feedback reports of the former Secretary General (until 2006) Julian Priestley. 32   Interview with José Luis Pacheco, administrator, COMAFCO, Brussels, 15 November 2006. 33   Nevertheless, between July 2004 and July 2007, 23 reports were prepared by this committee, reduced to 29 members.

The Creation of Institutional Expertise   161 directly in the re-launch of the process of constitutionalisation34 and in the prepar­ ation of the Lisbon Treaty.35 Its members tried to maintain their grip on defining the constitutional agenda during the different negotiations that took place between 2005 and 2008. In 2007, the acceleration of the negotiations enabled the committee to redefine its role on the European stage thanks to the declarations of its chairman Jo Leinen and of the three parliamentary delegates to the IGC, Elmar Brok, Enrique Barón Crespo and Andrew Duff, three long-serving rapporteurs of the COMAFCO. Despite its relative isolation from the Convention in respect of the institutional future of the EU, the COMAFCO has retained considerable prestige and remains an intellectual reference. It wields little direct influence but is an important contributor on account of its opinion papers on the main European questions. It now tries to promote a consensual line of approach on the Treaties and the IGCs and stands by the quality of its reports, which are its heritage. Indeed, this special parliamentary space essentially allows for political ambitions, both institutional and personal, to be given a legal content. In particular, its exemption from strategic legislative duties in respect of the co-decision procedure enables it to work on the basis of a ‘common intellectual and pro-­constitutional culture’ which is shared by four-fifths of the members and transcends traditional political divides.36 Moreover, this construction of expertise in EU constitutional law within the COMAFCO is based on the legal knowledge and career paths of the elected members and the administrators. The COMAFCO draws together polit­ ical and administrative careers, academic and institutional resources as well as legal capital around a common mission of constitutionalisation and reflection on the future of the EU. The institutional and legal expertise of its secretariat37 builds on a competence that is largely shared by the elected members. The history of this committee shows that it has constructed itself as a legitimate space for development of institutional reform ideas. The necessary condition for this institutional enterprise is a recruitment process that is elitist and targets a certain profile combined with a collective and hierarchical system. This committee is uniquely made up by political entrepreneurs, each of whom takes on the constituent ‘mantle’ by investing considerable academic, partisan, electoral and European resources. The large presence of important personalities has established it as one of the fighting grounds for parliamentary leadership. 34   J Leinen, The costs of No-Constitution, COMAFCO Report, 19 September 2006 and E Barón Crespo and E Brok, Rapport sur la feuille de route pour la poursuite du processus constitutionnel de l’Union, COMAFCO, 22 May 2007. 35   Leinen Proposal of 10 May 2007. Interview with Peter Schiffauer, head of COMAFCO secretariat, Brussels, 14 May 2007. 36   Translated from the original in French ‘culture commune intellectuelle et pro-constitutionnelle’, interview with Charles Reich, former head of the secretariat of the COMINST and of the COMAFCO (1992–2004), Brussels, 15 May 2007. 37   It is an area that brings together a bureaucratic capital characterised by the rhetoric of engagement. As ‘shadow adviser’ or ‘champion of federalism’, the administrator of the COMAFCO shares the proconstitutional position of most of the members and contributes to the promotion of a community of constitutionalists, sharing an interest in the development of the institution’. cf J Priestley, ‘L’administration du Parlement européen au service des députés (2000) 95 Revue française d’administration publique 439.

162  Laurent Godmer and Guillaume Marrel

III.  FOUNDATIONS AND REWARDS OF THE CONSTITUTIONAL VISION: THE POLITICAL PAY-OFFS OF LEGAL CAPITAL

The COMAFCO has become a space for political investment where highly skilled political entrepreneurs strengthen their parliamentary leadership, prepare their re-election or seek a promotion in other arenas. This is suggested by the sociographical survey of the 43 full-time members and ‘active substitutes’ of the first half of the sixth legislature (2004–07). Their special characteristics have been compared, on the one hand, with those of 71 preceding full-time members of the COMINST during the second legislature (1984–89) and, on the other hand, with those of 39 full-time members and ‘active substitutes’ of another committee under the sixth legislature focusing on legal questions: the Committee on Legal Affairs (COMJURI).38 An initial comparative analysis of the sociographical information highlights firstly the trend towards the normalisation of a formerly elitist recruitment of constituent MEPs (A). But a closer examination of the legal capital and the political careers of the members of the COMAFCO points more towards the profile of the expert-entrepreneur (B). In particular, nine leaders of this committee are representative of this transformation. They are the ones who have invested the most in the constitutional work of the legislature and they thus form what can be called an ‘authority group’ (C).

A.  Towards a Normalisation of the Recruitment of COMAFCO Members? Until 2004, the COMAFCO included many ‘intellectuals and philosophers’.39 Political figures like Gil-Robles or Napolitano enjoyed a certain aura. The authority of personalities heard by the committee, such as Vitorino, Barnier and Giscard d’Estaing, also added to the prestige of the committee. This prestige helped to shape the profile of a distinctive committee. In 2004, its profile underwent change, under the influence of chairman Leinen, who was less well-known than his predecessors, and above all because of the tensions linked to the difficult ratification process of the TCE. In fact, whereas the COMINST had been able to maintain its image of a sanctuary for ‘old federalist wise-men’, and whereas in 1999 the COMAFCO benefited from a strong commitment and important media-coverage of its leaders, 2004 seemed to mark the end of an era where the elected members 38   This survey is based on the collection and analysis of data from personal information and autobiographic résumés published by the EP. The selection of the 43 members of the COMAFCO under the sixth legislature was obtained by considering, in addition to the full-time members in office in July 2004 and in January 2007, substitutes who were authors of at least one written document (working document, draft opinion, draft report, amendment, proposal for an opinion, opinion, proposal for a report, report). The selection of the 39 active members of the COMJURI corresponds to 33 full-time members and 6 substitutes, authors of at least one report. 39   M Abélès, La vie quotidienne au Parlement européen (Paris, Hachette, 1992) 214.

The Creation of Institutional Expertise   163 were characterised by a less ‘intellectual’ and more entrepreneurial profile. The full-time members of the 2004 COMAFCO resembled more closely the average profile of the MEPs elected in 2004.40 The recruitment of MEPs within the parliamentary committees is the outcome of an adjustment process between the wishes of the elected members and the strategies of political groups for the control of key areas within the institution41 based on the understanding that seats are allocated among the groups such that the political composition of each committee best reflects that of the Parliament.42 Taking into account the low level of re-election of MEPs, this arrangement does not favour the establishment of committee members that are deprived of any decision-making power. However, from 1987 to 2007, there were several careers within the COMINST, such as that of the Belgians Karel De Gucht (1982–94) and Fernand Herman (1985–99), and also that of the British Conservative Derek Prag, who was a full-time member in 1982, vice-chairman in 1989 and acting chairman in 1993. Many MEPs have a long experience of this committee: the German Social-Democrat Klaus Hänsch has been on the committee continuously as a fulltime member then as a substitute from 1982 to 2009. He was followed by the Danish Jens-Peter Bonde who has sat continually from 1989. With a few breaks, the Germans Elmar Brok (18 years) and Willi Rothley (17.5 years) as well as the Frenchman Jean-Louis Bourlanges (16.5 years) also achieved records of longevity. In spite of the significant renewal of the assembly, we can observe some career specialisation around the question of European constitutional law. However, the analysis shows that the ‘elitist’ character of the initial period has decreased over time. As shown by several indicators, the socio-political characteristics of the constituents are now closer to those of other MEPs. First, the COMAFCO is no longer dominated by the three main political groups (European People’s Party (EPP), European Socialist Party (ESP) and Liberals) even if the limited political attractiveness of this committee, whose task is one of thinking and anticipating the EU’s institutional future, continues to encourage the recruitment of those who are either very pro- or anti-federalist. In 2007, the COMAFCO included four Eurosceptics (IDN/DEM), three members of the European Green Party and two members of ITS, an extreme-right parliamentary grouping. Second, 40   Despite the weight of national specificities in poorly Europeanised elections, the recruitment of the MEPs is characterised by three trends: a specialisation of the mandate (a decrease in multiple officeholding, establishment of careers); a homogenisation of socio-demographic characteristics illustrated by an increase in the number of MEPs belonging to the 40–60 age group, a greater participation of women (more than 30 per cent) and a higher social and professional background, with most members coming from the teaching and legal professions; and finally, a particular professionalisation of members who are ‘disadvantaged’ by their profiles at the national level but who demonstrate a strong pro-European socialisation. See W Beauvallet and S Michon, ‘Composition du Parlement européen’ in Y Déloye (ed), Dictionnaire des élections européennes (Paris, Economica, 2005) 126. 41   G McElroy, ‘Committee Representation in the European Parliament’ (2006) 7/1 European Union Politics 5. 42   Translated from the original in French: ‘les sièges font l’objet d’une répartition entre les groupes de façon à ce que la composition partisane de chaque commission reflète au mieux celle de l’Assemblée’, Costa, Le Parlement européen (n 28) 340.

164  Laurent Godmer and Guillaume Marrel the COMAFCO is no longer solely made up of representatives from the EU-15 countries. In 2004, the weight of the new actors meant that the historically dominant groups (the Italians and French) as well as the Danes and Dutch were adversely hit by the effect of the renewal of the delegations. This was also linked to the enlargement process, even if the new Member States (NMS) were under-­ represented with one-quarter of the members (four Poles, two Bulgarians, two Hungarians, one Cypriot, one Lithuanian and one Slovene). Nevertheless, the more assiduous and active ‘constituents’ continue to come from the old Member States. Thirdly, the level of participation of women within the COMAFCO has slightly increased, but it has not caught up with that of the EP as this committee remains half as feminised as the EP taken as a whole (16 per cent of the COMAFCO members are women against 30 per cent within the EP as a whole) and less feminised than the COMJURI (23 per cent of whose members are women). More significantly, the COMAFCO members are younger and the number of members holding parliamentary leadership positions is on the decrease. By contrast with the COMJURI, it is no longer home to the ‘old wise men’ of the Parliament as it was back in 1984. The COMAFCO has become younger (54.6 years on average). It remains older than the average age of MEPs taken as a whole (54 years), but younger than the COMJURI (56.7 years), on account notably of the renewal brought about by the NMS. The parliamentary seniority of the fulltime members of the COMAFCO is also generally less than that of the COMJURI. Whereas five out of seven of the historical figures of the EP were present in the COMAFCO against only one in the COMJURI, more than half of the members of the COMAFCO were elected for the first time in 2004, against 41 per cent at the COMJURI. This relative seniority is again due to the members of the NMS choosing the constituent activity. Finally, the weight of members holding parliamentary leadership positions diminished between 1984 and 2004 across both committees. Under the second legislature, the COMINST included nearly 40 per cent of the 147 leadership positions within the assembly and 80 per cent of the full-time members of this committee were either vice-chairman or chairman of a group, a committee or a delegation. It also included nine of the 24 vice-presidents of the Bureau of the EP between 1984 and 1989. As many as 14 members occupied two leadership functions and three of them held three, even four functions, concurrently: the Italian Christian-Democrat Maria Cassanmagnago Cerretti, vice-president of the Bureau and vice-chairwoman of the committees on the verification of credentials, and on development and co-operation; the Italian Socialist Mario Dido, vice-president of the Bureau, of the ESP group, as well as of the delegation for relations with the USSR and of the delegation to the European Parliament/Spanish Parliament joint committee; the Dane Claus Toksvig, chairman of the delegation for relations with Norway, vice-president of the Bureau and vice-chairman of the liberal group. In 2007, the 43 active constituents occupied only 22 of the 292 parliamentary leadership positions, ie 7.5 per cent. More than half of the members (51.2 per cent) were re-elected to a position of responsibility within the institution. It

The Creation of Institutional Expertise   165 included no less than two vice-presidents of the EP, one quaestor, three group chairpersons, two committee chairpersons and two delegation chairpersons. This again equates to more than two and half times the numbers within the COMJURI, where there were only eight vice-chairpersons or chairpersons of a group, committee or delegation. But the COMAFCO no longer gathers as many MEPs elected to a position of responsibility as before. In addition, the accumulation of leadership functions within the bureaus has almost disappeared, whereas it was frequent in 1984: five out of nine successive chairpersons and vice-chairpersons within COMINST between 1984 and 1989 held one or even two additional vice-­ presidencies or presidencies, although only one of the leaders of the COMAFCO did so between 1999 and 2009. Thus, the recruitment of the constituents has partially normalised within the EP, both from the perspective of partisan, national and socio-demographic characteristics as well as from the perspective of institutional capital. A survey of the national and European experience and career paths confirms a similar balancing out of the profiles, while showing that the unique social, academic, professional and political resources of the most active constituents have been maintained.

B.  The Unique Nature of Legal and European Resources During the fifth legislature, the EP appears to have owed its relative success at the Convention to a high degree of expertise demonstrated by MEPs, namely those who have acquired within the COMAFCO a certain command of the institutional and constitutional issues. These legal experts have become key players in European politics, whether their legal capital is long-established and stems from their university and professional careers or is the result of their parliamentary experience.43 The attractiveness of the COMINST and the COMAFCO for the members can also be linked to an initial legal capital subsequently developed in the practice of the legal professions. The constituents are first of all characterised by a high and increasing level of university education over the relevant period. The percentage of MEPs without a bachelor degree (licence) fell from 12 per cent in 1984 to 5 per cent in 2004. By contrast, the number of MEPs with a doctorate increased from 20.5 per cent to 27 per cent. Under the sixth legislature, over a third of the members had pursued more than four years of higher education. This is not only due to a general rise in the level of education and in the social class of the MEPs.44 Indeed, the COMAFCO is more selective on the level of university education than the COMJURI.

43   A Cohen, ‘L’Europe en Constitution. Professionnels du droit et des institutions entre champ académique international et « champ du pouvoir européen’’’ in A Cohen, B Lacroix and P Riutort (eds), Les formes de l’activité politique. Éléments d’analyse sociologique, du XVIIIe siècle à nos jours (Paris, Presses Universitaires de France, 2006) 298. 44   Beauvallet and Michon, ‘Composition du Parlement européen’ (n 40) 126.

166  Laurent Godmer and Guillaume Marrel Table 1.  Level of university degrees earned by the Constituents (1987–2007) Level of University degree (%)

INST 2

AFCO 6

JURI 6

(n= 68)

(n= 41)

(n= 39)

< Bachelor

11.8

4.9

7.7

Bachelor degree (3 years)

25

19.5

10.3

Bachelor + 1 year (4 years)

25

31.7

48.7

Master’s degree

17.6

17.1

10.3

Ph.D.

20.6

26.8

23.1

This high level of university achievement (Table 1) is characterised by a marked and increasing specialisation in law, political sciences, management and economics for 73.5 per cent of members in 1984 and 78 per cent in 2004. The share of legal qualifications increased from 45.5 per cent to 68.3 per cent. The number of those qualifying in social and literary sciences stagnated at around 16 per cent and the number of those qualifying in the natural/physical sciences and other quali­ fications (medicine, technical, etc) decreased significantly. In 2004, more than two-thirds of the 41 identified constituents were qualified in law, of which nine graduated with a doctoral degree and four with a Masters degree. This arguably reflects a specific academic competence, which can be readily invested in the constitutionalist project. A high level of qualification in law and in political sciences appears therefore to be the primary component of the special legal capital possessed by European parliamentarians involved in the constitutional project.45 Table 2. Academic Legal Capital of the Constituents (1987–2007) Field (%)

INST 2 (n = 68)

Science and others

10.3

Social Sciences and Literature

16.2

Administrative Sciences and Management

14.7

Political Science/International Relations

13.2

Law

45.6

JURI 6

AFCO 6 (n=41)

26.5

4.9 17.1

(n = 39)

22

4.9 73.5

4.9 68.3

12.8 15.4

28.2

7.7 78

5.1

71.8

59

In addition to the university qualifications, the level of professional achievement (Table 2) also needs to be taken into account. Indeed, the natural progression from a high degree of university specialisation appears to be the exploitation of the relevant academic resources at a professional level. As regards the first or principal 45   Significantly, the COMJURI is characterised by a lower level of qualification and legal specialisation (by almost 10 points).

The Creation of Institutional Expertise   167 declared profession, beyond the typical over-representation of the higher categories (86 per cent), the legal professions feature prominently. The legal professionals represented 58 per cent of the full-time members of the COMINST in 1984 and 63.5 per cent of the COMAFCO in 2004, whereas they represented only 61.5 per cent of the full-time members of the COMJURI. Table 3. Professional Legal Capital of the Constituents (1987–2007)

Professional legal experience (%)

INST 2

AFCO 6

JURI 6

(n= 71)

(n= 43)

(n= 39)

None

42.3

32.6

38.5

Academic (Law/Political Science)

12.7

32.6

12.8

Lawyer

15.5

7

15.4

Jurist/Legal adviser

14.1

9.3

23.1

Judge

2.8

4.7

7.7

Top civil servant/EU civil servant/Work for Commission or EP

5.6

9.3

2.6

7

4.7

2.6

Member of a Society of an Academy of Law/ Publishing Articles

Our definition of the category of ‘legal professionals’ is certainly a broad one, as it includes university academics specialising in law and political sciences, barristers, legal experts and consultants, magistrates, former top bureaucrats and assistants at the European Commission or the EP as well as the members of law societies or academies and legal scholars. This broad definition allows us to present a more complete picture of the professional experience of the MEPs involved in the different categories of legal and law-related professions (Table 3). More particularly, the share of constituents who are university academics and professors of law grew from 12.7 per cent to 32.6 per cent between 1984 and 2004, whereas they represented only 12.8 per cent of the members of the COMJURI. The group of barristers, lawyers, legal experts or consultants decreased from 29 per cent to 16 per cent while the share of constituents having had practical experience of European law in their capacity of former European civil servants or assistants within the institutions of the EU increased. For a large number of these legal professionals, the legal capital acquired at the university is thus nurtured and increased by professional practice, often taking place in parallel with their political activities. In fact, it is in the course of their political engagement and public action that these academic and professional resources are translated into a political ‘project’. Finally, there are some constituents who possess neither academic resources nor legal experience; these members appear to have been driven to constitutional affairs on the basis of their federalist political commitment. Many of the members have prior experience of investing their legal capital at the national political level and, in addition, acquire resources of Europeanisation.

168  Laurent Godmer and Guillaume Marrel For the political entrepreneurs within the EP, their legal capital does not exist in isolation from the mechanisms that convert social resources into political legit­ imacy. This point leads us to the specificities of European elections. As in the rest of the EP, the share of constituents with no prior electoral or national governmental experience tended to increase between 1984 and 2004. For about 40 per cent in 2004, the European election of that year was their very first. Prior political experience is limited to responsibilities within their political party at the regional or national level (18.6 per cent) or as a political adviser (14 per cent). The weight of electoral inexperience is more significant at the COMAFCO than at the COMJURI, where the political entrepreneurs originating from the ‘EU-15’ are more numerous, in particular the Italians. By contrast, for the majority of the COMAFCO members, we note an increase in the number of those having pursued a ‘central’ career: careers originating from the national assemblies and ministerial cabinets rather than at the local level. Above all, the share of careers combining local and national mandates, and, eventually, a ministerial post, increased from 25 per cent to 28 per cent. The COMJURI included a greater number of political entrepreneurs with more conventional electoral experience (local and national mandates), whereas many members of the COMAFCO were former ministers or former Secretaries of State who are members of local and/or national assemblies. Table 4. Political Experience of the Constituents in the Member States (1987–2007) INST 2 AFCO 6 Political experience (%)

JURI 6

(n= 71)

(n= 43)

(n= 39)

No known electoral and/or government experience

33.8

41.9

33.3

No experience

18.3

4.7

5.1

Union/Association/Party

2.8

4.7

7.7

Party leadership positions

11.3

18.6

12.8

1.4

14

7.7

With electoral and/or government experience

66.2

58.1

66.7

Local mandates only

15.5

9.3

15.4

National mandates only

18.3

20.9

15.4

Political adviser

Ministerial functions only Local and national mandates

7 15.5

Local mandates and government functions National mandates and government functions Local and national mandates and government functions

4.2

5.1 7

15.4

2.3

2.6

14

5.1

5.6

4.7

7.7

Local mandates – total

36.6

23.3

41

National mandates – total

43.7

46.5

43.6

Ministerial function – total

16.9

20.9

20.5

The Creation of Institutional Expertise   169 In 1984, legal capital could compensate for political inexperience and, in the COMINST, the numbers of professionals of law (24 per cent) and professionals of law and politics (33.8 per cent) were comparable (Table 4). The ‘amateurs’ in both law and politics only represented 8.5 per cent of the ‘constituents’. Twenty years later, the COMAFCO has become a space for the accumulation of legal and political capital: the increase in the number of ‘amateurs’ hides a systematic trend towards the concurrent exploitation of legal and political resources, with 51.2 per cent of the political entrepreneurs also practising as legal professionals. Enlargement could very well be behind this decrease in MEPs whose profiles reflect a capital that is specific to the institution.46 Alongside the senior MEPs who are equipped with a high level of academic resources and many of whom chose to have a European career, we can distinguish a group of traditional political entrepreneurs, whose constitutional authority is derived as much from their theoretical knowledge as from their practical experience of political power at national level. In parallel with this trend towards the nationalisation of the careers of the constituents, the factors determining the Europeanisation of political careers has become more important. Indeed, the political exploitation of legal capital is realised through experience gained from activities or jobs at European, international or Community level. In 1984, half of the constituents entered the EP and the COMINST with the experience of at least one European activity, meaning at least one position at international, European or Community level. That was the case for nine-tenths of the COMAFCO in 2004. Two-thirds of the constituents displayed one or more activities in associations, humanitarian organisations, NGOs, trade unions or political parties at the European or international level. Nearly a quarter of the members claimed to have had some experience within pan-­ European institutions (Council of Europe, Western European Union) and more than 30 per cent had held responsibilities within Community institutions (as observer in the EP, member of a Convention, assistant at the Commission or at the EP, member of the Economic and Social Committee or of the Committee of the Regions). One-third of the active constituents had concurrently pursued at least two different European experiences. At the same time, the level of Europeanisation of the members of the COMJURI was below 57 per cent, with a very weak level of experience at Community level. The growth of the European institutions and the emergence of a Community-based political life explain the growth in the resources of Europeanisation within the COMAFCO, whose constituent personnel appears to be very involved in the promotion of the European project. The institutionalisation of the European parliamentary arena has reinforced the key characteristics of the committee members: in 1984, at the 46   W Beauvallet, ‘Une institutionnalisation du Parlement européen. La distribution des positions de pouvoir, l’émergence d’un capital spécifique et l’autonomisation de l’espace politique européen’ in M Gravier and T Vassiliki (eds), Organisational Culture in the Institutions of the European Union (San Domenico, Badia Fiesolana, 2005) 124.

170  Laurent Godmer and Guillaume Marrel COMINST, the absence of European experience was counterbalanced by political experience at national level. In 2004, more than two-thirds of the members of the COMAFCO combined their European resources with a national political career. By contrast with the COMJURI, the COMAFCO appears to be a space for a very significant accumulation of European capital and legal resources. The sociological analysis confirms its historical uniqueness. Above all, this uniqueness was preserved throughout the six legislatures (1979–2009) whereas one would have expected some kind of homogenisation of the career paths through the internal mobility of the professionalised parliamentary elite. Despite the trend for the recruitment of the members of the COMAFCO to become normalised, we find ourselves in the presence of a very Europeanised elite, whose political career at national level tends to be overshadowed by a multiplicity of international activities and positions. The resources held by these MEPs are considerable but also of a hybrid nature. This situation is illustrated by the number of members holding foreign and European distinctions and decorations as well as the importance of contributions to specialised publications in European law. Thus, these members combine in a specific manner their academic capital, national political careers and European experiences. The prevalence of specialists on European issues, of great political leaders and of public law professionals, maintains the image of the European ‘lawyer-politician’.47 At many levels, the main representatives of the COMAFCO are therefore expert parliamentarians combining significant investment in parliamentary activities with a great deal of political experience48 (Table 5).

C.  The ‘Authority Group’: The Use of Constitutional Resources for Political Purposes Evaluating the ‘profitability’ of investing in the constitutional project is a delicate matter. Given the significant numbers of senior figures and political leaders within these committees, the COMINST and the COMAFCO continue to be an import­ ant means of access and promotion to leadership positions. The EP presidents Barón Crespo (1989–12), Hänsch (1994–97), Gil-Robles (1997–99) and Pöttering (2007–09) were former members of one or the other committee, or even both, before being elected to the leadership of the EP. Undoubtedly, the work as a constituent raises the political authority of those individuals who are particularly involved in it. The context of the sixth legislature also gave to a minority of its members several opportunities to use a combination of legal, political and European resources in furtherance of the constitutional project.

47  A Vauchez, ‘Une élite d’intermédiaires. Genèse d’un capital juridique européen (1950–1970)’ (2007) 166–67 Actes de la recherche en sciences sociales 55. 48   One can contrast the ‘old guard’, experienced but less involved, with the ‘novice’ MEPs, who are inexperienced but involved, and with the ‘tourist’ MEPs who are both inexperienced and uninvolved. (Kauppi, Democracy (n 9) 158).

The Creation of Institutional Expertise   171 Table 5. Determinants of the Europeanisation of political careers (1987–2007) Engagements (%) a. European Engagements In European unions and/or associations In European political parties Other (humanitarians, corporatist, etc) b. Pan-European and international functions Delegate, European Council and/or WEU

INST 2

AFCO 6

JURI 6

(n= 71)

(n= 43)

(n= 39)

35.2

67.4

43.6

23.9

18.6

12.8

7

18.6

12.8

4.2

30.2

17.9

14.1

23.3

12.8

7

20.9

10.3

7

2.3

18.3

30.2

5.1

12.7

4.7

5.1

Delegate EFTA Other c. Functions at EEC/EU level Former MEP ( before 1979) or Observers Former European civil servant

2.6

1.4

Former adviser (Commission or EP)

4.7

Former ESC Member

2.8

Former judge, ECJ

1.4

2.3

Former Member, Committee of the Regions

9.3

Former member of one of the two Conventions

9.3

Simple engagement

16.9

55.8

51.3

a only

7

41.9

41

b only

7

2.3

7.7

c only

2.8

11.6

2.6

12.7

32.6

5.1

a+b

2.8

14

2.6

a+c

5.6

9.3

Multiple engagements

b+c a+b+c

4.7

2.6

4.2

4.7

Total Europeanised trajectories

49.3

88.4

56.4

None

50.7

11.6

43.6

An analysis of the parliamentary work produced by the COMAFCO during the first half of the sixth legislature enables us to identify several types of individual and collective investments, pointing to the formation and the establishment of an ‘authority group’. Seniority is not its principal characteristic. This group is better defined as a small subset of MEPs over-accumulating rare

172  Laurent Godmer and Guillaume Marrel resources in a multilingual and specialised environment.49 Indeed, this particular type of socialisation allows for the autonomy of a group of producers or leaders, who are at the same time opinion-makers (spokesperson of the doxa, ie the dominant ideologies and positions regarding institutional questions) and legislators (monopolising the drafting of important reports). What really holds this group together is a very strong ‘community of habitus’, but six specific indicators defining this authority group can be listed: 1) 2) 3) 4) 5) 6)

social and cultural background of the member50 general institutional capital51 seniority of the MEP concerning institutional questions positions held on the committee active participation in the legislative work52 public speech through the media.

A synoptic survey of these indicators of authority shows that the 43 ‘constituents’ of the sixth legislature can be divided into four groups: 1. A minority of eight ‘Euro-sceptics’ (those not involved in setting the political agenda such as the UEN member Brian Crowley or the ITS members Andreas Mölzer and Ashley Mote, but not the actively engaged Jens-Peter Bonde). 2. A central and majority group of 20 more federalist members, including six vice-chairpersons, who only make moderate contributions to the constitutional project as only eight of them have signed at least one working paper, an amendment or an opinion since 2004, such as the Italian Riccardo Ventre. Except in the case of individuals such as Pöttering, Cohn-Bendit and Berès who are less involved with the constitutional project, their parliamentary and constitutional experience is limited. Their involvement with the parliamentary leadership is, by contrast, very important. 3. The six ‘small-group’ rapporteurs of the Left and the European Green Party who have produced minor reports, but who are nevertheless active (for example, Marie-Line Reynaud from France), or who have a long parliamentary and 49   P Norris, ‘Recruitment into the European Parliament’ in R Katz and B Wessels (eds), The European Parliament, the National Parliaments, and European Integration (Oxford, Oxford University Press, 1999) 90. 50   Namely, the accumulation of resources acquired from an early socialisation in European affairs, such as studying at the College of Europe in Bruges, a Jean-Monnet chair, a federalist engagement (Union of European Federalists, European Movement, etc), working within the pan-European institutions (Council of Europe, WEU) or Community institutions (Permanent Representations, Commission, Economic and Social Committee, Committee of the Regions), European distinctions or language skills gained and other assets originating from a specific ‘European capital’. 51   In other words, an ‘intra-parliamentarian’ career (seniority, positions of leadership at the bureau, within groups, committees and delegations); membership of the two dominant political groupings (EPP and ESP) or, to a lesser extent, membership of the two ‘federalist’ groupings (Liberals and the Greens); membership of the Federalist inter-group; parliamentary capital as interpersonal capital and as political capital with national and local connections. 52   This indicator ranges from minimal participation (simply attending the group meetings) to the signature of major reports, and includes the production of working papers, drafts, opinion papers, reports and amendments.

The Creation of Institutional Expertise   173 constitutional experience (like Carlos Carnero González from Spain). The German MEP from the European Left, Sylvia Kaufmann, has a special role, in spite of her rather ‘confederalist’ position, given her important constitutional involvement since 1999 and her contributions since 2004 (two amendments, one opinion and one report). 4. Finally, the nine active and industrious constituents of the sixth legislature (the authority group). Endowed with considerable European capital, nearly all of them have been re-elected since 1999 and sometimes since 1979 like Ingo Friedrich. We are referring here to senior full-time members or members of the bureau of the COMINST (six), of the COMAFCO since 1999 (seven) and/ or Conventions (six). But above all, they are the authors of one or more importa­nt reports. These MEPs embody the established authority group which dominates the work of the COMAFCO by combining resources with overinvestment in the committee’s political work. Important personalities include of course Jo Leinen, its active chairman since the departure of Napolitano in 2004, but also Mendez de Vigo, former chairman of the delegations of the EP to the two Conventions and finally the three delegates of the EP to the preparatory works of the 2007 IGC: Duff, Brok and Barón Crespo. It is the very uncommon accumulation of certain types of capital, which gives them a special place in the constitutional work of the EP. In sum, the number of individuals who produce and benefit from the institutional resources of this unique space is very small, all the more so as four individuals occupy a secondary place within this authority group. These are: the German conservative Ingo Friedrich, the most senior MEP of the authority group, deprived of any legal academic resources but former vice-president of the EP and former member of the 2002 European Convention; the British MEP Richard Corbett, full-time member of the COMINST, then of the COMAFCO since 1996; the Austrian MEP Johannes Voggenhuber from the European Green Party, vicechairman of the COMAFCO since 1999 but whose resources remain based on environmental activism; and finally the young Finnish MEP Alexander Stubb from the EPP, who was elected only in 2004 but whose career profile is marked by a Europeanised university and professional background and who was given responsibility for the preparation of a strategic report. More significant is the authority of the five last members of the following group. Mendez de Vigo, Duff, Barón Crespo, Brok and Leinen are the great spokespersons for the parliamentary discourse on constitutional affairs in Europe. The over-accumulation of academic, European and political capital enables them to guide and to embody the EP’s vision on the institutional organisation of the EU. The three representatives of the EP at the 2007 IGC hold between them a maximum of the indicators of authority: a legal academic baggage more or less reinforced by their practice as experts in European affairs; engagements with associations or with European/federalist political parties; a long parliamentary experience, which in Duff’s case is complemented by positions in parliamentary

174  Laurent Godmer and Guillaume Marrel leadership; membership of the three federalist political parties; a constitutional experience at the EP (COMINST, COMAFCO and Conventions before 2004); the drafting of important reports such as the Duff Report dated 7 June 2005, on the guidelines for the approval of the European Commission and the Brok-Baròn Crespo Report dated 22 May 2007, on the roadmap for the EU constitutional process. As regards President Leinen, he stands out among the hardcore constituents of the EP, because of the number of reports he has drafted and above all because of the guidance, influence and rewards he receives from this elitist and authority- and legitimacy-conferring machinery that is the COMAFCO. The table below summarises the ‘multi-positional’ character of these actors and illustrates the accumulation of different resources, some less common than others, by these holders of authority who also happen to be the leaders within this committee of the European Parliament. The parliamentary arena has conquered, within almost six decades since the beginning of its existence, a central place in the European debates. Most notably, it has succeeded in becoming one of the institutional focal points for reflection on the Union itself. It owes this conquest partly to the continued activity of its Committee for Constitutional Affairs (COMAFCO) and, particularly, to the fact that the COMAFCO has developed within itself an elite of specialists and lawyers. They are involved in the debates and have acquired real authority on these questions. The leaders of the COMAFCO have established themselves through a combination of their positions and the structural transformations within the European institutional set-up. As a space where part of the European elite is formed, this committee reveals some of the special characteristics underlying the production of European constitutional law by certain actors who possess both ‘democratic capital’ and specialised ‘legal capital’. In this chapter, we have described the characteristics underpinning the creation of this special sub-elite within the European Parliament by emphasising the way in which the MEPs have used the institutional debates in order to legitimise their institution and specialisation. The special feature of the evolution described lies in the extreme monopolisation of this specialisation within the hand of a few MEPs, here identified as the ‘authority group’. Thus, while the European Parliament is an area for the political development of law, it is paradoxically a particularly restricted and hierarchical area where the multi-positional character of the actors confers upon them a special power. The work of these constituents illustrates the power politics at play between the different groups in order to strengthen a legal order where the ultimate aim is the establishment and recognition of an autonomous political sphere.

5

Years in EP (2004)

24

EPP 18

ESP 5

ADLE

COMINST (