Unraveling European Constitutional Law: A Historical Analysis

1. Constructing and Deconstructing ‘Constitutional’ European Law Lecture Plan: • Constructing ‘Constitutional’ European Law, 1950-1965 • Deconstructing legal and political science analysis of European law • How to write the history of European law?

2. Constructing and Deconstructing ‘Constitutional’ European Law • Cases 1-4/54 - Judgments pronounced on 21 December 1954 and 11 February 1955 • Case 8/55 - Judgment pronounced on 16 July 1956

3. Constructing and Deconstructing ‘Constitutional‘ European Law Treaty of Paris, 1951 • Not a European Supreme Court • Instead an administrative Court modelled on the Conseil d’Etat • National Courts exclusive competence to apply European law • Few constitutional elements in the Treaty

4. Constructing and Deconstructing ‘Constitutional’ European Law Constitutional elements in the Treaty of Paris • Principle of legality in article 31 • Judicial review in article 41, although restricted to questions of validity. • Access by the mean of article 33 for private parties to instigate proceedings to cancel decisions by the High Authority

5. Constructing and Deconstructing ‘Constitutional’ European Law Treaty of the European Economic Community, 1957 • Not a European Supreme Court • National Courts again were given exclusive competence to apply European law • Article 173 now limited the access of private parties to cancel Community decisions. • Again few constitutional elements in the Treaty

6. Constructing and Deconstructing ‘Constitutional’ European Law Constitutional elements in the Treaty of the EEC • The sweeping nature of the Common Market project • Framework Treaty to be filled by quasi-legislative acts - Article 189 • Judicial review in article 177

7. Constructing and Deconstructing ‘Constitutional’ European Law The strategy of the legal service: • Turn article 177 into a common practise • Socialize national judiciaries and jurists into supporting the building of European law. • This was done by organisation national legal associations of European law and the Fédération Internationale pour le Droit Européen.

8. Constructing and Deconstructing ‘Constitutional’ European Law How did the legal revolution happen? • The Constitutional reforms of the Netherlands in the 1950s that gave real life to article 177 • The changed balance inside the Court of Justice in 1962

9. Constructing and Deconstructing ‘Constitutional’ European Law Ligitimizing the legal revolution • The role of the new academic field of European law • The role of the European Parliament and the Commission

10. Constructing and Deconstructing ‘Constitutional’ European Law What were the driving forces behind the creation of’Constitutional’ European law? • Constitutional European law was constructed • Ideology • Addressing the challenge of the Common Market • Accidental nature • The ‘Constitutional’ solution was contested • Legal Academia played a crucial role in legitimizing the ‘Constitutional’ solution

11. Constructing and Deconstructing ‘Constitutional’ European Law The authority and legitimacy of law created by a double censorship • The myth that ‘constitutional’ European law flowed directly from the Treaties • Destruction of evidence

12. Constructing and Deconstructing ‘Constitutional’ European Law New paradigm - Integration through law • Constitutionalization of the Treaties • It worked - integration through law • Continuing legitimising of ‘constitutional’ European law

13. Constructing and Deconstructing ‘Constitutional‘ European Law What are the problems with the ’integration through law’ paradigm? • The use of the vocabulary of the ‘constitutional’ side in the battle over European law • Empirical evidence fragile

14. Constructing and Deconstructing ‘Constitutional’ European Law What can be learned in order to write a serious history of European law? • Key insights are methodological • Historical Reconstruction on basis of primary sources • Historization of the academic field of European law to uncover the processes of legitmation