A Constitutional Dream? The History of the European Court of Justice, 1950 to 1993

Morten Rasmussen (Kopenhagen)

Berliner Seminar Recht im Kontext
Wissenschaftskolleg zu Berlin, Villa Jaffé
Wallotstraße 10, 14193 Berlin


Audioaufnahme der Veranstaltung

The Court of Justice of the European Union (CJEU) is an exceptional example of an authoritative, productive and significant international court. In actuality, it has been so successful that it is often contended that it has transformed the international treaties on which it was based into a kind of supranational ‘constitutional’ order (Eric Stein, Joseph Weiler). Starting in the early 1960s, the CJEU established legal doctrines that attempted to attribute European law with direct effect within and supremacy over national law, as well as establishing key principles on human rights protections, recourse to the Court and in the mutual recognition of European products. Scholarly analysis has largely seen this process as court driven, even if important interlocutors have been identified among lower national courts (Karen Alter), litigants, primarily transnational business, pushing for trade liberalization and Europeanization (Alec Sweet Stone) or legal elites (Antoine Vauchez). According to this heroic narrative, promoted in equal measure by the CJEU itself as well as associated academics, the end result by the early 1990s was the establishment of a European rule of law. The far-reaching claim was that the CJEU was the key driver behind the process of European integration.

Only recently, with the emergence of genuine historical research into the history of European law, grounded in a detailed reading of a comprehensive measure of national, European and private archives, has this narrative come under scrutiny. This lecture will sum up these findings and reveal that the development of European law was much more complex and contingent than hitherto understood. European law was never the key driver of European integration; national governments and administrations had much more urgent questions to deal with and could easily sidestep or contain the consequences of the enhanced European legal order. The relative lack of interest of national governments and administrations in European law allowed for an alliance between the European supranational institutions and a pro-European segment of national jurists that exploited the weak but rising social demand for legal integration in order to strengthen the European legal order. However, ultimately the ‘constitutional’ ambitions of this alliance were tempered and eventually refuted by national courts and legal traditions that in turn deeply influenced and co-shaped the European legal order.

Morten Rasmussen is Associate Professor at the University of Copenhagen’s Saxo Institute. From 2014–2016 he also functions as chair for the Centre for Modern European Studies. He obtained a PhD in history and civilisation from the European University Institute in Florence with a dissertation on Denmark’s road to membership of the European Community in 1973. He has since then published extensively on the history of European integration, including the editing of several anthologies and journal special issues. The focus of his publications has been Denmark’s European policy, the role of history in the broader field of European studies, historiographical analysis and finally the new history of European law. Lately, he launched a collective research project on the battles over the constitutional practice that has been established in the field of European law.