1The constitutionalization of the European Communities by their Court of Justice [1] is alternatively understood as the logical conclusion of a self-referenced legal reasoning or the inescapable consequence of a self-fulfilling social process, in sum as the output of the spillover 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 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 constitutionalization “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 continual 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 unrivaled 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 labor among the different European organizations – that nonetheless simultaneously came into being in the postwar. [5] In such a context, the process of institutionalization of the Court of Justice itself, of which its jurisprudence is nonetheless the product, usually goes unexamined.

2Reconstructing 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” on 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 anymore (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.

The genesis and structure of the European transnational legal field: a new research agenda

3Many scholars have scrutinized what is commonly termed the “constitutionalization” of the European political, legal, and economic order. [8] Rejecting the heroic vision of a small elite of judges revolutionizing national legal orders from the secrecy of their chambers – a vision that the principal agents of this “process” have had a heavy hand in propagating [9] – most of this literature has on the contrary highlighted the role of the “interlocutors” of the Court in the implementation of Community law [10] – in what has become a battlefield between intergovernmentalists and neofunctionalists. [11] Among these interlocutors, in particular, were national jurisdictions, [12] private corporations [13] 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 intracommunity trade, [19] in a more general context of disinterest from ordinary citizens, or permissive consensus. [20]

4Of 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 characterized as the “middlemen” of European integration [22] – most remain to be studied as such. [23] Indeed, while the 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 Kenney [27] 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 Madsen [32] 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 constitutionalization 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 specialization, not to mention their social backgrounds, their political opinions, or their ideological convictions – in sum, what political science terms “social recruitment”. Paradoxically, given that the Court of Justice is deemed to be at the center of this process [35] 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.

5Moreover, the constitutionalization 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, and as the product of the interdependencies between the multiple spaces of power that institutionalized 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 European Court of Human Rights [41] 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.

6Finally, 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 political, bureaucratic, and economic spaces of power that formed alongside European integration – as the social recruitment of the European Commission [43] 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 organization 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 center 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 rights, [48] and, lastly, a European Constitution. [49]

7One of the first defining moments of this constitutionalization 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 – which may well be termed revolutionary 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 (third part of this article) – 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 (first part), presents the peculiarity of grouping together lawyers specializing in internal law (second part).

The social recruitment of a jurisdictional elite: career paths to the Court of Justice

8It 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 years [50] – 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]

9The 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, 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 synchronized what originally were different nominating rhythms in order to “facilitate the transactions”. [54] This not only led to a (once again national [55]) 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]

10Relatively 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 recognized 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 fulfill the conditions required for the holding of the highest judicial office in their respective countries or who are jurists of recognized competence”. The source of this wording is customarily found in article 2 of the Statute of the International Court of Justice:

11

« 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. »

12However, besides the fact 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 assembly [57] – which was an “undeclared source of inspiration” for the Treaty of Rome, according to one of its most eminent authors [58] – had already introduced this provision.

13

“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]

14In 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.

15“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 (1952-1958), German Judge Otto Riese (1952-1963), and Luxembourg Judge Charles Léon Hammes (1952-1967), 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: la Corte di Cassazione (1949), le 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 (1952-1962) and Dutch Judge Adrianus van Kleffens (1952-1958). 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 (1952-1967) and the Dutch “extra” Judge Petrus Serrarens (1952-1958) 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 (1936-1946) 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 Unions (1920-1952), Member of Parliament (1929-1952) and of the Consultative Assembly of the Council of Europe (1949-1953), before joining the Court.

16Of these first seven judges, three only served until 1958 (including the first president of the Court, Massimo Pilotti), two others remained until 1962-1963, 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 equaled by Andreas Donner – the Court had undergone its first complete turnover. In fact, from 1963-1964 at the time of its landmark decisions – Van Gend & Loos v. Administratie der Belastingen (1963) and Costa v. Enel (1964) – 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 (1958-1964), a member of the Bench since 1920, was a member of the Corte di Cassazione before replacing Pilotti. French Judge Robert Lecourt (1962-1976), 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 (1963-1970), member of the Bench, was administrative State Secretary at the federal Ministry of Justice (1950-1963) before replacing Riese. At the same time, however, a new, more academic elite, made its entry into the Court. Dutch Judge Andreas Donner (1958-1979), 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 (1945-1958). Likewise, Italian Judge Alberto Trabucchi (1962-1972) was a professor of private law in Padua before replacing Nicola Catalano (1958-1961), 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 (1964-1976), briefly member of the Bench (1931-1933), 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.

The differentiation of the transnational legal field: capitals and resources of the Court of Justice

17At 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 of the European Court of Human Rights in Strasbourg. [63]

18Since its creation in 1958, the European Court of Human Rights has been composed of prominent figures coming from academia, and specializing, 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 MacNair [64] – 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). [65] 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 European Court of Human Rights, 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 European Court of Human Rights – in fact, first the Commission (1954-1961), then the Court (1966-1974), over which he successively presided from 1955 to 1961 and from 1971 to 1974 – to the International Court of Justice (1973-1981), over which he also presided, from 1979 until his death in 1981. Waldock was followed there by Hermann Mosler (1973-1981), who served with André Gros (1964-1982), with whom he took part in the negotiations of the Schuman Plan. [66]

19However, 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 European Court of Human Rights – and this up until the first decade of the twenty-first century for very specific reasons linked to the enlargement of the European Union to eastern European countries. [67] This differentiation is all the more surprising given 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), [68] and the European Court of Human Rights 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.” [69] 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”. [70]

20If 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 interstate 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”. [71]

21By 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. [72] 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), [73] all were 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 1967 [74] – 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. [75]

22Although the members of the Court of Justice could not lay claim to a privileged interpretation of the intent of those who drafted the Treaty, of which they were probably not the most legitimate exegetes, [76] 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 before the Court. [77] The first case brought before the Court of Justice in December 1954 (France v. High Authority) 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. [78] 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).

23Another crucial element in the institutionalization 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. [79] 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 1963-1964 – 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 (1926-1933) 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 (1939-1946). Alberto Trabucchi, likewise, was the brother of Giuseppe Trabucchi, Minister of Finance in the Tramboni and Fanfani cabinets (1960-1963) – and when Catalano was reappointed by Minister of Foreign Affairs Antonio Segni, in autumn 1961, it was agreed that he would resign in favor of Trabucchi, which did actually happen in spring 1962. [80] 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 (1955-1961) 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. [81]

24Far from being “tucked away in the fairyland Duchy of Luxembourg”, [82] 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 scholarship, 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 specializing 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.

Asserting “Community” law: from what law should the authority of the Court of Justice derive?

25“Constitutionalization”, which cannot be summarized 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.

26To 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: “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.” [83] 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. [84] 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”. [85] 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. [86] In fact, as far back as the 1950s, in the context of intense mobilization in favor of a “real” European constitution [87] – 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 councilor 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 councilor 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. [88] Then he met Jean Monnet.

27

“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 in its state. He enters my office, and I say to him: ‘Monsieur Lagrange, you are going to draft the Treaty.’” [89]

28Lagrange 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:

29

“Is it not clear that, to the extent the European Coal and Steel Community is the embryo of a federal organization, 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?” [90]

30Thus, far from being a natural, functional, or even logical process, the constitutionalization of the treaties must be analyzed as a political and legal collective action, both outside [91] 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.

31As 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 enforceable in law 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.” [92] 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.” [93] Thus, as early as the summer of 1953, several meetings were organized on this decisive issue – how to enforce the rulings of the Court of Justice and decisions of the High Authority – 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” [94] (Daig, Delahousse, Mathijsen, Matthies, Nuccitelli). Only the Italian delegate, Caldarera, who, it was true, was also a councilor 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. [95]

32The 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 categorizing 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: [96] “partial federation”, “condominium”, “functional federation” (“the ECSC could not be better characterized than as a ‘functional federation’, of which treaty is the constitution”, Van Kleffens argued straight off), [97] “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 categorize Community law – “federal constitutional law”, “internal Community law” [98] – and the Court itself – “administrative jurisdiction”, “international court” [99] – before settling for comparisons: “The Court is therefore, always in relation to the legal order of the Community, both a Council of State (Conseil d’État) and a genuine constitutional Court.” [100] Or, as he suggests in an American journal:

33

“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.” [101]

34As Lagrange himself then pointed out, this debate mainly involved legal professionals whose perspective depended very much on their specific profile (internationalists or internists), not only within scholarly circles, [102] but also before the Court itself. Thus, in 1954, in the Netherlands v. ECSC High Authority (6/54), opposing J. H. M. 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”), 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 Authority (8-9/55), once again opposing Rolin and Lagrange, who then offered a definitive statement on the matter:

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“Our Court is not an international court, but the court of a Community created by six States on a model that resembles a federal organization much more than an international organization, 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.”

36Henceforth, 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 Community [103] – the judges and advocates-general of the Court, who were so many magistrates, professors, and barristers specializing 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”. [104] 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”. [105]

37This 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 finer points of this idea in his various writings from the 1950s on:

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“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 recognized 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.” [106]

Conclusion

39All 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 judicialization of the treaties taken by supranational courts are not the pure product of abstract – albeit antithetical – reasoning, but a side-effect of a relatively opposed social recruitment. [107] If Maurice Lagrange and his peers often insisted in their early writings that the treaties were not meant to create just another international organization 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 specializing 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”. [108]

40Pushed 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”), [109] the Court also mobilized from within to prepare a revolution, which, in the end, was perhaps not all that quiet.