TEPSA NEwsletter Editorial “Some original visions on Europe” August 2012

The summer holidays are an excellent time to read those publications that our daily routines normally distract us from. I would like to share with you three of my summer readings which you might not have the occasion to read yet.

The first two pieces deal with the constitutionalization of the European Union through the law, more particular the jurisprudence of the Court of Justice. The subject is scarcely original and lawyers have dedicated many studies to it. In the two publications here mentioned, the aim is not to continue on this way, but rather to consider the issue from the perspectives of history and political science.

The Cambridge Contemporary European History journal (volume 21-Special issue 03, Towards a new history of European Law, August 2012) has devoted a special issue to the history of the European construction analyzed through the work of lawyers. Among fascinating studies, two of them seem to me particularly noteworthy.

The first study is written by Bill Davies (Pushing Back: What Happens When Member States Resist the European Court of Justice? A Multi-Modal Approach to the History of European Law) and tackles national resistances to European integration by the example of the German Constitutional Court and the well-known Solange jurisprudence. It describes the political process that led the ‘Bundesverfassungsgericht’ to reconsider its earlier jurisprudence mainly thanks to the contact between the German Chancellery office and the Advocate General Reischl, which had led to the adoption of the Interinstitutional Declaration of 1977 on Fundamental Rights. Contrary to popular belief, the Declaration is not an initiative of the European Parliament as such, but the result of a meeting between a lawyer and the Chancellery. The paper shows how, even in areas that appear to belong exclusively the judiciary process, the role of governmental agencies is essential to ensure the primacy of the EU law.

The second article written by Morten Rasmussen (Establishing a Constitutional Practice of European Law: The History of the Legal Service of the European Executive, 1952-1965) is devoted to the Legal Service of the Commission and its role in ensuring the primacy of the EU law and its direct effect. Again, the stake remains political, the legal service of the Commission has conducted an intense lobby to achieve the Court would retain its principles. The Court partially gave in to the Commission, but the use of the doctrine has been widely sought to strengthen the jurisprudential solution. This article illustrates well the creation of networks that influence judges and doctrines in order to achieve a purpose which is ultimately political.

From the perspective of political science, a book in French (Dans la fabrique du droit européen, edited by Pascal Mbongo and Antoine Vauchez, Bruylant, 2009) seeps into the ‘Holy of Holies’, the Court of Justice, to engage in an analysis of the Courts functioning and its working methods from a more sociological angle instead of a legal one. The conclusion of Antoine Vauchez on the Court magisterium was particularly appreciated, demonstrating to what extent its authority owes as much as from the networks it has built upon, as from the professional identities of its members, as from its relationship with the national courts and the intrinsic quality of her jurisprudence.

Finally, the reading of a book originally written in Dutch, translated into French (it will be published in English), has proven to be particularly rich. The book of the speechwriter of Herman van Rompuy, Luuk van Middelaar (Le passage à l’Europe, histoire d’un commencement, Gallimard 2012) can be read as a novel. It consists of a sharp analysis of the so-called Community method between technocracy, democracy and intergovernmentalism. It particularly shows an interesting vision of what the author calls the “intermediate sphere” between the world of states and that of the institutions whereof the European Council is an illustration. Nolens volens, national leaders reveal themselves jointly responsible for a common destiny. Refreshing reflections on the Commission as well as on the everlasting question of European citizenship illuminate the approach. A must read.