Scholars, politicians and others are fascinated by the real and potential power that the European Union has over member states. Some believe such power should be expanded while many others argue that the EU should be dismantled altogether. One crucial facet of this debate is centered upon the European Court of Justice (ECJ) and the commonly held assumption that the ECJ has ‘constitutionalised’ the European Treaties without EU member states choosing to create a formal European constitution. The special issue of Contemporary European History discussed here explores this assumption, exposing its flaws and offering a new source-driven perspective on the evolution of the EU’s legal system.

The contributions of the special issue provide important new elements to our understanding of the history of European law as well as tentatively offer a new interpretative perspective. For the first time anywhere, they offer a comprehensive and fully sourced historical account of the origins of the constitutional practice heralded by the ECJ in its Van Gend en Loos (1963) and Costa v. E.N.E.L. (1964) judgments. The ingredients in this narrative are multiple, ranging from the ambiguous wording and intentions of the treaties of Paris (1951) and Rome (1957), the crucial national constitutional revisions in the Netherlands (1953 and 1956), the determined agency of the Legal Service of the European Commission, to the change in the balance inside the ECJ due to bench changes in 1962. The special issue also exposes just how contentious the reception of European law in the member states actually was in both the judiciary and broader society. Not only did the member states often ignore European law, their resistance was a crucial dynamic in the shaping of the European legal system ‘from below’.

This new history of European law contributes in two ways to broader European studies. Firstly, the battle over European law struck at the heart of the European integration project. As early as the 1960s, the Commission and ECJ had begun articulating their vision for an effective and strong European polity, united through a legal system akin to a federal constitutional order. This vision was and has been contested by many actors across time and national borders and so the legal system that has actually emerged remains a fragile and disputed one. The contextualisation provided by the special issue reveals the deep and persistent conflicts over the status and primacy of European law. This highlights that the widely assumed ‘constitutionalisation’ of the European Treaties is merely one side of the story promulgated in a partisan conflict about the nature of the European legal system and integration overall.

Secondly, the special issue also crucially contributes to the historiography of European integration. The battle of European law concerned the very nature of how the European project integration would develop. By launching the constitutional practise already in the early 1960s, the ECJ and the European Commission took the first step towards strengthening the enforcement of European law and consequently the impact of European public policy. While still contested, there is little doubt that European law as a result of this became a central, facilitating element in the continuing fight for a more united Europe. This special issue is a call for law to become an integral part of future explorations of the history of European integration.

While the special issue is only a first step towards exploring the history of European law based on a historical method, we hope to have provided some revealing first results and raise a number of questions, which may inspire an interdisciplinary debate about the nature of European law and the history of European integration.

You can access the full special issue free of charge at journals.cambridge.org/ceheupost

Bill Davies is an Assistant Professor at American University, Washington D.C., U.S.A and co-edited ‘Towards a new history of EU Law, a Contemporary European History special issue (volume 21 issue 3) with Morten Rasmussen, Associate Professor, University of Copenhagen, Denmark

 

Comments

  1. The financial markets held their breath on September 12, 2012. Once the Bundesverfassungsgericht, the German constitutional court, declared the European Stabilisation Mechanism compatible with the German Basic Law under certain conditions specified in its judgement, share prices went up. Finally, or so it seemed, the European Central Bank had the means to contain the crisis and the Euro would not break up.

    But the decision by the German constitutional court is only the latest example of the heavy political contestation of European law. As the impressive array of articles in this issue shows, a variety of supranational, transnational and national actors in the legal field have continuously fought over the scope and interpretation of European law – from the European Commission’s Legal Service to transnational law networks and national epistemic communities and courts. To a great extent these conflicts have shaped the way in which the present-day European Union has operated over time. Surprisingly, most historians and lawyers have for a long time overlooked the political contestation of European law in historical perspective. Providing a lot of fresh evidence from fascinating new sources, the articles in this issue make a great contribution to addressing this lacuna in research on contemporary Europe.

    Wolfram Kaiser
    Professor of European Studies, University of Portsmouth, and Visiting Professor, College of Europe, Bruges

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