Luxemburgische Zeitgeschichte

Bypassing (a lack of) archives: a prosopography approach of the history of the European Court of Justice, 1950s-1970s

Ever since its landmark decisions Van Gend en Loos and Costa v. ENEL, the European Court of Justice (ECJ) has played a key role in the so-called ‘constitutionalization’ of the European legal order. The fact that its jurisprudence has given EU law a proto-federal framework has been demonstrated, analyzed and commented in countless publications by legal scholars and social scientists, who have tried to grasp how the ECJ could consistently pursue its active prointegration path without provoking a rebellion by the Member States. In the historiography of the EU, however, the ECJ was for many decades largely absent. The main reason for this absence is the Court’s long-standing lack of willingness to give researchers access to its archives. It was only in 2016, that the first archival documents from the ECJ were made available to the public at the Historical Archives of the European Union in Florence. Long awaited, they reveal little about the functioning of the Court. This paper presents how I have in my research used a prosopographical approach to raise the following challenge: if the ECJ does not (really) let us inside via its archives, can we get inside by studying those who worked at the Court, and above all, the main protagonists behind its case law, the judges? Could an investigation of their social and professional backgrounds, a study of their networks and convictions towards European integration, the analysis of their academic writings and personal papers, give us an unprecedented peak behind the curtains of European judicial decision-making?
This presentation shows that (and how) knowing more about the judges reveals a lot about
the functioning of the ECJ in the period in which it laid the foundations of the constitutionalization (1950s to 1970s). By providing key insights on the visions that the first generations of judges had on Europe and their role in the European constructions process, it reveals the dynamics that prevailed inside the Court and explains why the bench of judges became outright provocative in the 1970s. The prosopographical approach also brings to the surface new knowledge on the Court’s relationship with the Member States of the European communities. By laying bare why the first and highly decisive European judicial decision-makers were chosen by the governments, the collective biographies give new insights into the Member States’ expectations with regard to the institution and their reaction towards its provocative case law. Finally, the prosopographical approach reveals that the ECJ had a very active political network, which it used to pursue its strategic legal and political interests, and make sure that it would in its jurisprudence not go to a point where it risked being overthrown by the governments.

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