The formation of a community judiciary

6To convince ourselves of this, a brief detour is in order via the founding period – that of the Van Gend en Loos verdict (February 1963) and then the Costa v. Enel verdict (July 1964) – during which the institutional identity of the Court was redefined: in the wake of the academic, political, and administrative actions accompanying these decisions, the European Court abandoned its status as a court whose sole purpose was economic to appear as ultimate guarantor of a community project that interstate policy had proved incapable of sustaining. The origin of such a doctrine cannot be separated from the formation of a relatively stable and unified judiciary or that of a set of “support groups” (academic, political, or administrative) serving this new definition of the European powers.

7What the “Court” meant in the middle of the 1960s was a very small world of specialists gravitating around seven Judges and two Attorneys General: a number of référendaires (nine, one for each member of the Court), about 30 legal advisors attached to the “institutions”, and lawyers and jurisconsults from the member states, who frequently came to Luxembourg City to litigate. [24] In addition to this compact milieu of “permanent” members, [25] there were also exceptionally stable internal actors. The case of Belgian Court Clerk, van Houtte, who remained at his post for nearly 30 years (1953-1982), constitutes one example among many others. Many of the judges nominated during this period were reappointed several times, setting records for years served that have rarely since been equaled (Donner, 21 years; Roemer, 20 years; Mertens de Wilmars and Pescatore, 18 years; Trabucchi, 14 years; Lagrange, 13 years; Lecourt, 13 years; Monaco, 12 years, etc.). This small group of judges was closely tied to that of their legal advisors, the référendaires, who sometimes successively served several judges, like Karl Wolf, who was chosen in 1958 to assist Advocate-General Roemer and who remained at his post for 33 years. [26] Built around a stable and intimate working environment, in the mid-1960s the Court of Justice was also part of a semi-public sphere. Thus, the few accounts of jurisprudence published in legal journals, which constituted the principal means for the outside world to know the institution, were very frequently written by those who were principally responsible for the running of the Court on a daily basis (especially the référendaires). In many respects, court doctrine remained a “company product”, and the Court a ventriloquial institution capable of speaking in one voice both through the decisions it handed down and the commentary it generated. The main transnational forum for debate on European law, the International Federation for European Law (FIDE), bringing together legal professionals from all walks of life involved in different capacities in European construction, acted as a sounding board for the work of the Court. Moreover, the fact that over half of its “active members” (28/52) during the 1960s had direct experience as practitioners (lawyers, judges, référendaires, advisors to community institutions, state agents) [27] constitutes another sign of this symbiosis. So too is the (ever-perennial) tradition according to which the association’s conferences are held exclusively during the Court’s official holidays to enable judges and référendaires to participate fully in the construction of community doctrine.

8The cohesion of this first community judiciary is apparent in its role in the “judicial revolution” of the Van Gend en Loos and Costa v. Enel rulings, when two founding pillars of a pan-European jurisprudence were established: the primacy and the direct effect of community law. [28] In a context where the interpretation of the legal reach of the Treaties of Rome remained unsure and loudly contested, FIDE was suddenly a space where the judicial strategies employed by the lawyers at the center of these cases were sharpened, where the decisions of the Court’s judges regarding these cases were developed, and where the doctrinal commentary interpreting these cases was constructed. [29] One of its Dutch members, the lawyer L. F. D. TerKuile thus undertook a veritable test case before the Court in a trial involving import-export duties brought against the transportation company Van Gend en Loos with regard to its commercial dealings with Germany. Michel Gaudet, director of the Commission’s legal department and also a member of FIDE, pleaded in favor of direct effect. They were successful thanks to the activism of some of the judges (notably Robert Lecourt, Antonio Trabucchi, and Nicola Catalano) and their référendaires, who were more specifically involved in the pan-European movement. Better yet, the ruling had barely been handed down before it became the object of interpretive activism that transformed a relatively nuanced decision into the veritable birth of a “new body of law” [30] directly applicable in each of the States and for which the Court was responsible for providing uniform interpretation and application. Rallying three of the nine judges of the Court and five of the nine référendaires, the FIDE conference, held several months later in The Hague (October 1963), represented the opportunity to establish a “Van Gend en Loos doctrine”. Adopted as a common declaration by the 200 conference delegates, [31] it helped to structure the shared beliefs of this first community judiciary.

9Even beyond the actions of the community judiciary, a relatively stable configuration of academic, political, and administrative actors crystallized around this “Court of Van Gend en Loos”. It is not my intention here to trace the entire process by which these rulings initiated such a convergence of interests and projects around the Court. Suffice it for now to say that this convergence was driven by various entrepreneurs of the European project (European Commissioners, Directors-General, members of the Common Assembly), situated due to their personal and professional characteristics at the intersection of legal practice, the university, and political and/or administrative sectors. Whereas the succession of political crises in Brussels permanently endangered hopes of resuscitating the political European project, [32] various key “politico-jurists of law”, like President of the Commission of the EEC Walter Hallstein or President of the Legal Commission of the European Parliament Fernand Dehousse, discovered in the “Court of Van Gend en Loos” the opportunity to reorient their pan-European political actions by henceforth anchoring them in an endorsement of a “Community of law”. In other words, the institutional identity of the Court of Justice constituted the common base of a set of political, administrative, and academic undertakings that were defined in its extension.

The Court’s authority in question

10What marked the end of what is today called the “golden age” of the Court was above all the departure of the small group of judges and référendaires (“a judicial phalanx”, its president Robert Lecourt said, doubtless hastily) who were associated with the adoption and consolidation of this “Van Gend en Loos doctrine”. Within the space of three years, the term in office of four of the judges of this revolutionary period expired. Following the two Italian judges Roberto Monaco and Antonio Trabucchi, the two presidents of the period (1958-1976), Andreas Donner and Robert Lecourt, in turn left the Kirchberg area, in 1976 and 1979 respectively. The unity and relative homogeneity of the community judiciary in the 1960s progressively gave way to a more heterogeneous and shifting group. In fact, with each enlargement and the increase in litigation, the CJEC experienced a continual process of internal differentiation, making it today an especially complex assortment of institutions (the Court of Justice, the General Court created in 1991, and the Civil Service Tribunal), organizations (the Amicale des référendaires et anciens référendaires created in 1991, the Permanent Delegation of the Consultative Council of European Bars to the Court of Justice, etc.), and specialized professional groups. These developments helped create an internal interplay among the three jurisdictions built on interpersonal connections and cross-referencing, but also power relations and conflicts regarding spheres of competence. [33] But doubtless the greatest transformation was morphological. The creation of the two new courts, along with successive expansions enlarged the community judiciary from 13 members in 1976 to 69 members from 27 member states today. This transformation affected référendaires in particular, whose numbers rapidly rose, reaching approximately 200 today. [34] This group of legal professionals, who until then had seemed permanent fixtures at the institution, thus lost the stability and unity that had characterized it up until the end of the 1970s. [35] The drastic reduction in their years served, falling to five years on average in 2000, [36] was accompanied by growing diversity in terms of their professional profile. In contrast to the first generation, which, for the most part, arrived at the Court directly after university, today’s référendaires come from a wide range of professional backgrounds. Data indicate in fact that of the 77 référendaires recruited outside of the Court between 1 January 1997 and 19 September 2001, 21 came from university, 17 from the Bar, 13 from the magistracy, 16 from national civil services, and 10 from community institutions. [37] In addition to this diversity within the community judiciary, which jeopardized the Court’s capacity to operate in a unitary fashion, we should note the importance the Court gained well beyond the semi-public sphere, where it had been anchored up until then, and which saw the Court at the center of various controversial areas of European politics. Long the object of interest only of specialized legal journals (in international law or community law), the Court’s activities became the intense focus of a wide range of specialists. Subjected to the scrutiny of other branches of legal science (constitutional law, human rights law, comparative law, etc.) and even to that of other disciplines, such as economics [38] or political science, [39] the Court came up against its first opponents in the academic world. Meant to celebrate its 35-year anniversary, the “Judicial and Academic Conference”, organized by the Court in 1976 ended up being a forum where biting critiques of the Court’s “Van Gend en Loos doctrine” were expressed, according to which the Court had “separated itself from the real world”. [40] Along these lines, the exponential growth in the number of referrals by national jurisdictions for preliminary hearings before the Court indicated that a “dialogue” had been initiated with the judicial elites of the different member states, the terms of which revealed a set of disagreements interpreted as resistance to the “Van Gend en Loos doctrine”. [41] The national administrations, which had only vaguely been paying attention to the Court in Luxembourg City, to the point of letting some of its most spectacular decisions slip by, [42] all set up in one form or another internal specialized agencies responsible for monitoring community litigation. [43] Finally, the increasing specialization of law firms dealing in community law (see figures below) resulted in a public that very closely monitored the legal developments in Luxembourg City.

11Lastly, beyond the ever-dense circle of the Communities’ legal professionals, the Court of Justice became the target of various political controversies. Because of a general lack of research on this matter, it is only possible to discuss the political and especially governmental actions aimed at the Court. The long power struggle with the French government at the end of the 1970s certainly constitutes in this regard a turning point. [44] The Court’s president at the time stated, not without irony: “The Court has discovered with the greatest incredulity that it can attain a level of publicity never before reached, in a different manner, that is to say on the basis of more or less justified attacks publicly directed at its jurisprudence.” [45] Since then, each of the governments has taken the Court to task for its judicial activism, to the point of threatening several times in the context of the different intergovernmental conferences of the 1990s to redefine its powers. [46] More generally, as a result of its multiple uses, the Court’s jurisprudence has progressively come to be seen as a necessary step to understanding and weighing in on the definition of European public issues. [47] Because all kinds of sectoral conflicts are directly dependent on its verdicts, the Court has since been closely monitored in European politics.

Making a whole: the Court’s elite and its commemorative strategies

12These various threats weighing on the continuation of the “Court of the Van Gend en Loos doctrine” are most obvious in the necessity its members perceived of codifying the canons of community judicial service. It is impossible, in fact, not to be impressed by the increase in the number of forms (honorific speeches, jubilees, Miscellanies) the institution exploited at the end of the 1980s to “tell its story”. To be sure, the increasingly shorter average time spent at the Court by judges, as well as the arrival of new judges following the various enlargements of the Communities, have automatically triggered a greater number of occasions for such ceremonies. But the Court also began celebrating itself, marking milestone anniversaries of its creation – the 25th in 1976, the 35th in 1987, and the 50th in 2002 – each resulting in a commemorative volume. [48] Even more striking, a new genre progressively appeared – judicial Miscellanies (Mélanges) presented to judges leaving Luxembourg City by their former colleagues or collaborators. A number of professors nominated to the Court had of course already been on the receiving end of this tradition (Otto Riese, Riccardo Monaco), but this was more about recognizing the long academic career of professors who had become judges later in life. In 1982, a tradition began that would become the Court’s own, [49] that of judicial Miscellanies. Two collective volumes were thus presented to members of the Court who had not spent the majority of their careers in academia. [50] These compilations were followed by many others: Liber Amicorum, Studi in onore, Mélanges, Festschriften, Essays in honor, etc. In total, no less than fourteen judges were honored in this way between 1982 and 2007. Two elements make it possible to see here the development of a new genre, distinct from classic academic Miscellanies. All of these volumes appeared in the year directly preceding or in the several years following the recipients’ end of term at the Court, thereby honoring above all their judicial work. [51] Moreover, former and present members of the Court, whether judges or référendaires, played a predominant role, accounting for more than two-thirds of the 406 contributors represented in the fourteen works. The forms these contributions took are especially surprising. They do not in fact correspond to any of the formats traditionally valued in legal or judicial work: they were neither procedural documents (conclusions of the Advocates-General or memorandums from the reporting judges) nor case commentary, nor even academic articles; these speeches and writings do not contribute to the formation of jurisprudence in any discernible way. Relatively disorderly collections of contributions touching on a wide range of (legal) themes and often published by second-rate publishers, their circulation has remained almost as restricted as the arrival and departure speeches (published up until 1997 in the Court’s obscure annual report, and more recently not at all). [52]

13What makes it possible to analyze the development of such commemorative discourse in terms of an enterprise is the fact that it represents above all the work of those judges most closely integrated into the community judiciary. Indeed, only a small number of the Court’s members and former members (judges and référendaires) have taken part in these commemorative acts, playing in turn the role of apologist (as coordinator of Miscellanies) and that of dedicatee (as the recipient). In many respects, this group has constituted a Court elite. Among the fourteen judges or advocate-generals who received Miscellanies (representing a quarter of the 52 judges who left the court between 1982 and 2007) are the four presidents of the period 1980 to 2003 and a group of judges whose average service at the Court (twelve years) far surpassed that of their colleagues. This extended time in office, which former president Stuart Mackenzie recalled enabled him “to serve with no less than 42 judges and advocates-general, without mentioning the three court clerks”, [53] along with the positions of power they occupied at the Court, made it possible for them to be more aware of the threats (real or perceived) weighing on the continued existence of the “Court of the Van Gend en Loos doctrine”. Therefore, notwithstanding more direct but certainly more risky types of intervention in European policy [54] or even other means of codifying practices, [55] these collected volumes and celebrations constitute an attempt to pin down a definition of the institution – its political functions as well as its support networks, its members’ profiles as well as the content of its jurisprudence. The development and diversification of commemorative strategies thus proceed from the effort undertaken by the “Court’s elite” to codify the community judicial institution, there where the present, it seems, defies any unified understanding of its mission. At the same time, it enables this elite to firmly establish themselves within the Court’s doctrinal authority.

Justice/politics: a formative opposition

15The Court’s commemorative acts have placed a great deal of importance on situating the Court outside of the political and social maneuverings built around it. In this way, they have promoted a certain representation of the political realm. This has appeared first and foremost in terms of a potential threat (of interference), thus justifying constant mobilization. The perception that the Court operates on a narrow path has been recurrent, as when President Hans Kutscher underlined in 1980 that “in the coming years, the Court is going to have to confront the essential task of saving the acquis communautaire and defending itself against attacks and centrifugal trends”. [57] The political transformations of the Communities have thus been perceived as “risks” forcing the Court to play the role of last-ditch guardian of the community project: the successive enlargements, through “the increase in the number of judges, poses a problem of internal cohesion for the Court, as well as its different chambers”; [58] the increase in litigation, linked to the development of community legislation, raises the fear that “the Court will privilege quantity over quality, thus neglecting its raison d’être, namely the consistency of its jurisprudence”; [59] and finally, the creation in 1988 of a new community jurisdiction, the General Court, assumes that “the heritage of values [of the Court of Justice] is transferred intact to this tribunal”. [60] During the 1990s, the intergovernmental conferences that periodically reopened the issue of reforming the Court similarly appeared as a threat issued by the member states, whose profound lack of knowledge regarding community law is regrettable. These various political uncertainties weighing on the future of the Court (enlargement, revisions of the treaties, mobilizations critical of the CJEC) suffice to justify the imperative of “making a whole” (faire corps): “During a rather turbulent period of community history”, one advocate-general explained upon his departure from the Court, “the Court has been able to hold like an anchor; […] today, whatever the options chosen by the Community, the role of the Court will not change”. [61] At issue in the mobilization effort, evoking EU policy also played the rhetorical role of “counter-model”. In the particular cosmogony developed in narratives about the Court, policy – its opposition to change and its narrowness of focus – plays a decisive role, enabling the character of European judicial power to stand as a counterpoint, alone capable of guaranteeing the integrity of the Union. Thus, in opposition to the inertia or selfishness of the states, the Court appears as an efficient engine of European integration, mindful of the general community interest. At the community level honorific speeches and Miscellanies therefore find common ground with the legal critique of policy (here associated with the states and interstate politics) judged incapable of producing anything but conflicts or artificial and temporary arrangements.

An original prophecy

16This ontological opposition between policy and justice is in a way maintained by the repeated ritual evocation of the founding moment of the Van Gend en Loos and Costa v. Enel rulings, which appear as an original prophecy, retold in accolades and celebrations. [62] Left untold is that this “judicial revolution” took place at the same time that the interstate policy of the old “European concert” was showing its limitations through the “empty chair” crisis. The work of memory is thus inseparable from the ordering of a past that presents itself in a scattered and contradictory form. In other words, it relies on the concomitant construction of an institutional narrative and, most of all, of an original prophecy for which the Court’s elite thus occupies the position of incontestable interpreters. Strikingly, evoking the Court’s jurisprudence requires, in fact, a ritual return to the period of the “grand rulings”: “If there is a judgment that must be cited during this historic occasion”, President Iglesias recalled during the 50th anniversary celebrations of the Court, “it is without the shadow of a doubt the one handed down by the Court on 5 February 1963 in Van Gend en Loos, [which marks] the corner stone of the successive developments of the Community’s legal order.” [63] However, this return to its roots does not portray the institution’s past, but rather a constantly reactivated casuistry in which “the Court” and its judges tap into Union law’s eternal truth. Reminders of the break introduced by the two “constitutional rulings” are thus invariably associated with the exaltation of the timelessness of the general legal principles to which this law is linked (direct effect, primacy, state responsibility in the implementation of directives, etc.). Well beyond the individual cases they treated, these court rulings are elevated to the role of “actual Constitution” of Europe, appearing far more efficient than the treaties themselves, which remain at the whim of policy revision. Solidly linked one to the other, the Van Gend en Loos and Costa v. Enel rulings thus represent a definitive revelatory moment in the relationship between Europe and Law, one in which the institution must constantly seek renewal in order to remain faithful to itself: “After the declarations of principle of the 1960s”, Judge Pierre Pescatore thus stated, “which definitively put community law on the right track, came the period of profound immersion in the practical problems that we, the Judges of the second or third generation, will have to manage.” [64] Therefore, through case references and dismissals, such honorific speeches and Miscellanies portray the subsequent dynamics of the Court as work essentially aimed at clarifying the reach of these first rulings (what are the domains of validity? what are the types of action? what responsibility do states bear in the case of the violation of these principles?). Such has been the re-reading of subsequent case law: Van Duyn (1974), Simmenthal (1978), Francovitch (1990), etc. Upon his departure from the Court, Robert Lecourt, who was very active in supporting the “Van Gend en Loos doctrine”, thus established the terms of this retrospective genealogy: “What would the Community and the common market be today without the principle of direct effect nevertheless discussed in Van Gend en Loos; without the primacy of community law nevertheless discussed in the Costa v. Enel case…”. [65] Moreover, the individual merit of the Court’s presidents is measured by their capacity to “have maintained calmly yet firmly, the path on which the Court was built”. [66] Thus, when inaugurating the new General Court of the Communities, its president, who was himself a former judge of the Court of Justice, recalled the necessity for this new jurisdiction to be “loyal” to “this jurisprudence which is the collective memory of the Court and [to the] fundamental values that inspired it”. [67] Clearly, here the construction of a common judicial credo does not weaken but rather works to consecrate and revive the belief in the founding character of these rulings. [68] By constantly working to link present judicial decisions to the constitutional rulings of the past, by revisiting the stages of a jurisprudence whose ultimate developments remain faithful to those first steps, the Court’s elite continually work to update and adapt the original prophecy to the new contexts and cases in which it intervenes. [69] Above all, in constantly resituating the production of current judicial strategies in direct relation to these two decisions, commemorative acts endow the institution with a specifically judicial genealogy capable of releasing it from its political origins (that of the Treaties and the founding act of the “founding fathers”) [70] invoked, in a process that is in many respects symmetric, by the “political institutions” of the Community. [71] By signaling in this way the continuity and unity of a jurisprudence over the course of consolidations and enlargements, they erase, with the same gesture, the policy breaks introduced by the Treaties, which never ceased to upset the physiognomy and purview of the Court. By displacing judicial memory away from the highly controversial and contested memory of the origins and political figures of the community project, [72] the Court leaves behind the shifting terrain of political controversies surrounding the purpose of Europe, to find firm footing on far more stable ground – that of the “society of courts”.

The Community judge as pontiff in EU politics

17Within the construction of this original prophecy the profile of its legitimate interpreter also takes shape. Having no role in the election of their successors, which is the sole responsibility of the member states, the Court’s elite find here, through references to “figures” from the past, a means to weigh in on the definition of what constitutes a future “good judge”. In fact, rather than focusing on individuals, this commemorative corpus presents first and foremost stylized judge “figures”, exalting their unique ability to access the manes of the judicial spirit. What this discourse evokes then, through a type of mirror effect, is the idea these judges hold of the qualities necessary to successfully fulfill this community office. Individuality only appears in terms of “individual accomplishments in the construction of the collective enterprise”. [73] Celebrating the memory of an advocate-general who had died several days earlier, the president of the Court evoked the departed’s conclusions published in the Court’s collections of case law, describing them as “his monument, which surrounds us in this building and [which] is found on each of our shelves”. [74] This metonymy, whereby the honored individual comes to represent the incarnation par excellence of the legal entity of the institution as a whole, is reproduced in each commemorative act. As such, the construction of such stylized biographies bears similarities to the construction of the judicial service itself.

18In this regard, it is striking to note the proximity of well-argued, even formal, structures within the biographical narratives. Of course, the order may change, but it is always the seasoned practitioner and the renowned academic, the perfect representative of his national legal culture and the staunch European, the “internal dimension of his responsibilities” and the “international breadth of his work” [75] that are commemorated. Community judicial excellence is thus presented as a matter of combining – over the course of a career – a solid foundation in the national legal culture, which forms the “representativeness” of a judge within the Community, and openness to the European project, which is viewed as an essential component to reaching “constructive compromise” among judges otherwise separated by nationality and professional training. Thus, it is the “knowledge that the jurist [acquired] from both the national and European spheres” [76] that is highlighted. Similarly, far from establishing legitimacy based on an exteriority to the groups (especially the states) he is supposed to judge, the Community judge strives and should be, in equal parts, a renowned legal expert and an experienced practitioner of community policy. In a kind of back-and-forth motion, the following combination is found over and over again in the narratives: “Even during the period of his rich academic work, Judge Koopmans did not remain on the sidelines of the professional world.” [77] What is stressed then is “the precious melding of official experience and legal learning, of knowledge and belief in this great adventure that has united our states and our people for a generation”. [78] It is thus less about being autonomous from those who fall under the Court’s jurisdiction (states, community institutions, businesses, etc.) than the “richness of experience that prepares one fully to exercise this office”. [79] It is as though the fact of having successively worked for each party involved in the community project confers upon an individual full authority to settle the disagreements separating them. In this regard, what appears as the actual common thread is the fact of having always worked – as German Judge Everling said about himself – on the crest between the Community and the member states: “In Brussels, I represented German interests and in Bonn, I represented community interests.” [80]

19The “good community judge” is therefore less the one who makes a pan-European profession of faith – already rare in the 1960s, European militancy disappears almost completely from commemorative narratives during the 1990s – or the one who proves his independence vis-à-vis the political or social world. Instead, it means having known how to serve, evenhandedly, all the interests present in the European polity, all the while never serving the law alone. Direct experience in domains outside of the legal realm (national diplomacy, civil service, business ties, etc.) thus appears as essential for success as a Community judge. This model of excellence was vigorously underscored by Advocate-General Van Gerven when he retired from the Court.

20

“For a jurist who has devoted his life to the study and practice of law, and in particular community law, leaving an institution is in no way exceptional, even when that institution happens to be the Court of Justice. In leaving behind one type of legal practice, one does not abandon the law. For someone whose ideal is to practice law in different contexts and in different positions, it is only natural to close one chapter and open the next. […] This is what I have been doing for 33 years.” [81]

21Thus, the model of excellence that emerges over the course of these commemorations is one that exalts the Community judge as pontiff in EU politics in the true sense of the word, in as much as he is capable of bridging the different interests involved. [82] By subtly melding proximity to and distance from the competing groups in European construction, the judge of the Miscellanies and other commemorative writings claims to elevate “the Court” to a perspective which transcends them.

A legacy and its inheritors

23Miscellanies and accolades bring together retired elders (grands anciens) whose authority is recognized by all, but also current judges, who frequently make up the honorary committee of the Miscellanies, as well as former référendaires, who are most often responsible for coordinating the volume in honor of their past “master”. By “[securing] from this day forward a bond uniting us in homage to the memory of our great colleague and unforgettable friend”, [83] Miscellanies and eulogies help to delineate the transnational judicial community. Recurrent metaphors relating to family or community doubtless take on their greatest meaning here, working to reactivate a kind of transversal solidarity across the multiplicity of differences, or even conflicts, that the Court faces. Through reminders of the “collegial atmosphere, I would even say fraternal – since, unfortunately, we have only had one sister – and the convivial manner in which [the judges] pursue their common task”, [84] they evoke “our Court of Justice”. [85] Along these lines, references to the friendly atmosphere within each cabinet of judges (“one big family”) [86] are notable, as too is discussion of their ritualistic procession to the Court’s cafeteria: “We were the first cabinet to come and have lunch together, but we were closely followed by the members of the Sevon cabinet and those of the Ragnemalm cabinet.” [87] “Disagreements” and questions provoking “profound discussion” [88] are, of course, referred to, but always under the guise of legal disinterest, “founded on reciprocal esteem and friendship forged through the common aim of accomplishing the same task: the organization of a community judiciary in compliance with the rule of law”. [89] As such, each member stresses that “the college of judges is not composed of nationalities but of individuals”, [90] who, as one judge adds, “have put aside their national allegiances by accepting their post in this institution”. [91]

24By thus denying internal conflict and political activism, “the Court” of Miscellanies and accolades offers fertile ground for the formation of a judicial community. United across the diversity of judicial and non-judicial functions that each member exercises in a Europe of law, they know each other and recognize each other as the insiders of a Court, the institution where they have worked, currently work, or will work again in the future. Under these conditions, the apparent multiplicity of perspectives helps naturalize what is at the basis of their common presence in these spaces of commemoration, notably the direct experience of the Court, and no less important, their support of the institutional identity it bears. Because they thereby help to delineate groups of insiders – those involved in this circular legitimization – and groups of outsiders – those who are excluded from it – the initiated and the non-initiated, Miscellanies and accolades help define a “judicial circle”, a space where symbolic exchanges become possible.

25In this regard, the participation of former members in ceremonies marking departures or arrivals or their contributions to judicial Miscellanies (one out of eight contributors was a former judge at the date of publication of the Miscellanies) cannot be seen as a simple tribute to their past work. Through their massive involvement, [92] they in fact forge symbolic ties uniting, across arrivals and departures, all those, dead or alive, retired or active, who belong to this “big family” that is the European judiciary. These elders (grands anciens) are the survivors of the “generation of the first years, the 1960s, who resolutely gave shape to our jurisprudence”; [93] they are celebrated as the “founding fathers” of the institution. More than anyone else, Pierre Pescatore has been invited to take part in these collective volumes (four out of fourteen). Thanks to his role in the negotiation of the Treaties of Rome as a diplomat from Luxembourg, his countless doctrinal publications, his 20 years of service at the Court, and his longevity, he has dominated as one of the institution’s tutelary figures, a veritable custodian-in-chief of the judicial community spirit, which he made a point of underscoring:

26

“Although for a long time I was the youngest of the group (of judges), I was aware of being (from the Community’s perspective) one of the oldest. Thus, as of today I have been associated with the Community for exactly 29 years, 20 of which as a judge.” [94]

27By taking hold of a judge or his successor – that is, through a reincarnation in other judges, who, at the Court, take up the torch of the “Van Gend en Loos doctrine” – this legacy left by the “elders” (grands anciens) names putative inheritors, endowing them with the particular capacity to become interpreters of the tradition – a tradition invoked by President Gil Iglesias when he commemorated “our predecessors whose contributions to the Court’s decisions remain alive in our daily work”. [95] Indeed, the particular value of this continual historical thread owes especially to the fact that it helps reinsert those who engage with it in a longer history where they appear as heirs and guardians. In other words, the various narrative situations referred to here are not merely a site for illuminating the specific institutional identity of the Court but also, inseparably, the opportunity to name those who can invoke to their advantage this common judicial heritage. In effect, by embracing “an academic tradition that reserves this rare distinction for its professorial elite”, [96] these judges have to a certain extent mimicked the rite of passage whereby students and peers extol the master, all the while appropriating his legacy. This enterprise of remembrance can thus be understood as a means by which a certain number of judges seek to establish the legitimacy of their temporal power at the Court by becoming the interpreters of atemporal ideals of EU justice.

28The effectiveness of these ties is never stronger than in the case of national groups where the paths of different generations of the practitioners of community law cross. Alongside the “elders” (grands anciens) and other leading figures of community justice, the Miscellanies serve to bring together the dedicatee’s national network of interrelations. Among the 22 contributors, all Dutch-speaking (including Flemish), to the Miscellanies presented to “Baron Jossé Mertens de Wilmar”, appears one former judge, one current judge and three current référendaires, and seventeen other participants, including two future judges. Carefully co-opted, the contributors to the Miscellanies presented to their fellow-countryman represent a national pool assembling those who possess the inseparably social and professional qualities required to lay claim one day to the inheritance of this tradition by becoming a member of the Court. As such, the intergenerational strands thus woven together in these collections represent veritable national lineages. Former référendaires appear as the natural heirs. Responsible for coordinating the Miscellanies of their former judicial master, they establish themselves as future candidates for the office of European judge. It is thus hardly surprising to witness the ascension of référendaires to judicial functions starting in the mid-1980s. [97] Real national lineages thus form where community judicial capital accumulates. The multiple ties uniting Danish judges, past and present, are thus presented as a guarantee of excellence.

29

“The magnificent article on the constitutional consequences of the accession of the Kingdom of Denmark to the European Communities – as a sign of fate – bears, next to your signature, that of our colleague Claus Gulmann, who succeeds you today as judge, 22 years later. May I add that Mr. Gulmann was the référendaire of Judge Max Sorensen, the first Danish judge? Here you have an example of practically unparalleled continuity in the Court’s 42 years of existence.” [98]

The European Court of Justice as a “bank of symbolic capital”

30All kinds of symbolic exchange are thus constructed “under the guise” of celebrating the Court, which appears as a common object of value that each member supports by seeking both to help its means “prosper” and to “enrich” its jurisprudence (according to the set legal phrases) through Miscellanies and other accolades. As such, for contributors it constitutes a kind of common fund that their various commemorative efforts endeavor to maintain. These occasions thus foster the convergence of a multitude of normally dispersed investments around “the Court”. Admittedly, from the list of contributors (and, in the case of the French Miscellanies, from the list of underwriters), these volumes objectify above all else the social capital of an individual. [99] Indeed, each volume of the Miscellanies surround the recipient with a more or less diverse set of individuals holding office at the national or community level, in the private or public sphere, working in academia or as practitioners of community law. Here, judicial leaders at the national level, partners of specialized law firms, high-ranking officials of the Council or Commission, seasoned diplomats, national politicians, and renowned academics mix, forming a sociological profile in the process. Excluding members of the Court, the O’Higgins Miscellanies, for example, brought together eleven Irish and British nationals: the president of the Irish Republic, [100] two Judges of the Irish Supreme Court (including its President), the President of the Irish Bar, three Senior Counsels, a professor of law at the University of Dublin, but also a former Director of the Directorate General for Competition, a member of the Commission’s Legal Department, and a former European Commissioner. Thus, because they represent all the relationships established by the judge over the course of his professional trajectory (before and during his term at the Court), the Miscellanies present a specific distribution of the social and particularly legal capital of the dedicatee, which varies according to his original profession and nationality. This is immediately evident when comparing British and Irish judges, whose networks in judicial circles (magistracy, Bar) are particularly developed, and German, Belgian, or Luxembourgian judges, where academic networks are predominant.

31However, in the interface between these fourteen collections and the national networks they mobilize, it is the total social surface of the Court that is delineated and displayed in its different national, European, and international ramifications.

Table 1

The world of “the Court”: professions of contributors to the judicial Miscellanies [101] [102]

Community institutions 20 Including Council (3), Commission (14), and Parliamentary administration (3) Of these, Commissioners (2) and Director-Generals (13) National administrations 17 Including 7 Directors of the Central Administration, 2 Members of the German Central Bank, and 1 President of the Authority for Competition National politics 5 Including 1 President of the Republic, 1 Minister, and 3 Members of Parliament National magistracies 38 Including 9 Supreme Court Presidents International magistracies 14 Including 6 Judges of the European Court of Human Rights (2 of whom were Presidents), Court of the European Association of Free Exchange (2 Presidents), 1 United States Supreme Court Lawyers 41 Professors of law2 141

The world of “the Court”: professions of contributors to the judicial Miscellanies [101] [102]

32Just as the judges’ individual merit only exists within commemorative acts against the measure of their contribution to the collective work of the Court (jurisprudence), similarly their personal networks disappear as such, combining to form a single collective tribute to the Court. As a meeting point for the multiple contributions honoring its judicial heritage, “the Court of Miscellanies” simultaneously activates and renews the heritage of resources associated with its name. As such, “judicial community” and “Court of Justice” are mutually constituted and maintained in terms similar to those outlined by Martin Shapiro.

33

“Law is a community not only in its shared body of knowledge and its particular mode of thinking perceived by its members as both unique and superior. It is also an economic community in which the material self-interest of every member is dependent on the proper functioning if not of every other at least of many others. And it is a social community in which the prestige of each one and each part is dependent on the prestige of the other individuals and parts. If courts are in low repute, practitioners obviously suffer both financially and socially, but even government lawyers view their importance vis-à-vis other government offices’ erosion. Academic lawyers must be added to this picture.” [103]