10.1 Introduction
We [colonial officials] must pretend to follow the laws. If we really would follow them, we would do nothing at all.Footnote 1
Its existence [the existence of the contrôleur-délégué of the European Development Fund] had only been possible through a double irregularity, financial and legal. Its creation had been decided without being accepted by the Council of Ministers. Its financing, based on EDF credits, had not been submitted to the EDF Committee [representing the Member States].Footnote 2
These statements come from two different contexts and two different times in history. The first one, from Robert Delavignette, a former colonial official in French Sudan and the director of the French colonial school from 1936 to 1946, echoes the sentiment prevalent among French colonial bureaucrats. The second one, which originates from an unnamed civil servant at the French Ministry of the Economy and Finance, highlights irregularities surrounding the establishment of the supervisory structure of the European Development Fund (EDF) by the Directorate General 8 (DG8), the European Commission service responsible for European development aid. These reflections find a common thread through Jacques Ferrandi, a former colonial official trained at the colonial school in the 1940s, who became the director of the EDF from 1962 to 1975 and was responsible for setting up the contrôleur-délégué of the fund.
The EDF was conceived in 1957 under the association regime with overseas countries and territories, which was regulated in Part IV of the Treaty of Rome and which primarily targeted French and Belgian colonies in sub-Saharan Africa. The EDF was continuously deployed as countries transitioned from colonial to independent governance in the early 1960s in the framework of the Yaoundé Convention with the Associated African and Malagasy States (AAMS). With a mandate to foster the economic, social, and cultural development of the associated countries and territories (Article 131 of the Treaty of Rome), the EDF received funding from European Economic Community (EEC) Member States, predominantly France and Germany. The fund amounted to 581.25 million ECU (EEC units of account) over a period of five years (1958–1962) and was run by the European Commission, the supranational body of the EEC.
The Implementing Convention attached to the Treaty of Rome established that it was the responsibility of the associated countries’ and territories’ authorities (later on to be metamorphosed from colonial into African governments) to put forward economic and social projects for EEC financing. It was also their task to implement them, that is to launch the calls for tender and prepare the technical specifications of the projects, the so-called cahier des charges. The role of the European Commission was to assess development projects proposed by the associated countries and territories (with the power to accept or reject projects), then to make financing proposals to be forwarded to the Council of Ministers for approval. A subsequent EDF Committee (representing the Member States) had the role of deciding by qualified majority which projects to finance. As far as the implementation of the projects was concerned, the Commission’s task was to monitor the projects implemented by the local authorities and supervise the calls for tender. As guardian of the treaties, it also became guardian of an equal share of tenders and contracts among companies from both the Member States and the associated countries, as specified by Article 132 of the Treaty of Rome.Footnote 3
Ferrandi’s creation of the contrôleur-délégué of the EDF aimed to aid newly independent AAMS in project development and oversight, circumventing Member States’ objections, notably France’s opposition to Commission control mechanisms. To address this resistance, Ferrandi leveraged a legal precedent,Footnote 4 by instituting in 1965 the contrôleur-délégué role via a Commission regulation, sidestepping Council approval.Footnote 5
Leveraging legal precedent mirrored the colonial bureaucracy’s practice of bending rules, emblematic of the institutional ethos of the colonial school, a public institution set up in 1887 to train colonial officials for sub-Saharan African and Asian territories.Footnote 6 This chapter contends that colonial-era rules permeated EEC development cooperation. But more importantly, it shows that with personnel transitions from colonial to European administrations, a colonial attitude towards legal compliance was transferred within the European Commission.
10.2 Navigating through Legal Ambiguity: Governing Techniques in a Colonial Context
As representatives of French state authority at the grassroots level, colonial officials held a diverse array of responsibilities during the 1940s, encompassing tax collection, judicial proceedings, and the initiation of development endeavours. However, in adherence to the principles espoused by the colonial school, they were mandated to transcend mere bureaucratic enforcement and ‘adapt’ general colonial regulations to the nuances of African realities. Such principles may appear unconventional for a state institution, particularly the first of its kind in France before the establishment of the École Nationale d’Administration (National School of Administration) in 1945. Typically, bureaucratic officials are expected to enforce laws and penalize transgressors, a cornerstone of their legitimacy and authority. In the colonial context, these laws were essentially regulations enacted by the colonial ministry in Paris or the governor-general in African capitals.Footnote 7 Consequently, they diverged from the French legal system applicable in the metropolis and strayed from the overarching principles outlined in Article 6 of the 1789 Declaration of Human and Civic Rights: ‘The law should be the same for all whether it protects or punishes.’Footnote 8
As Olivier Le Cour Grandmaison observed, ‘the colonial legal system was inherently discriminatory and derogatory’.Footnote 9 Derogatory because laws passed by the French parliament did not apply in colonial territories, except in extraordinary circumstances as dictated by competent authorities. Discriminatory because a dichotomy was established between French citizens, who retained the privileges of French laws even in colonial territories, and French ‘subjects’ (the native population), who were denied the same privileges. Consequently, within the same territories, two legal systems coexisted, tailored for two distinct populations and delineated along racial lines. ‘Unity was supplanted by radical legal diversity, equality was supplanted by hierarchy, and liberty was supplanted by the strict subjugation of natives and the perceived superiority of French citizens from the metropolis.’Footnote 10 The rationale behind this distinctive legal framework, where ‘exception became the norm’, rested on the premise that native peoples remained ‘backward’ or, as posited by social anthropologists of the 1930s, culturally distinct.Footnote 11
During the 1930s, Henri Labouret, a former colonial official in West Africa and anthropologist, asserted that ‘nothing is more detrimental in colonial matters than preconceived formulas and imported principles, which, being often extracted from our European ideas, cannot be applied to other regions or eras’.Footnote 12 Such rhetoric served to justify the native policy and colonial development discourse of the 1930s–1940s, emphasizing evolution while respecting tradition, pragmatism, and adaptation to African cultures and realities.Footnote 13 It also validated the significant variability and flexibility of colonial regulations and the role of colonial officials, whether governors or their subordinates, the district officers (the commandants de cercle), as intermediaries between the local elite, their demands, their customary laws, and regulations emanating from the metropolis. To address unforeseen circumstances unaccounted for by legislators in Paris or local capitals, and to establish legitimacy and authority, colonial officials were encouraged to negotiate the application of laws, seek compromises, and engage in negotiations with native legitimate chiefs. Negotiations and compromises were central to the system of indirect rule advocated by the colonial school.
The implementation of the system of indirect rule within the French empire remains a topic of debate.Footnote 14 Hubert Lyautey notably institutionalized this system during his tenure as Résident Général (governor) in Morocco, from 1912 to 1925. Often cited as an exemplar by instructors at the colonial school, Lyautey extolled the ‘illegal but efficient practices’ of his superior Joseph GallieniFootnote 15 during his time as an army officer in Indochina. Gallieni was known to operate ‘contrary to the rules’,Footnote 16 even going so far as to ‘use official papers as handkerchiefs after formally acknowledging their receipt’.Footnote 17 As noted by Maurice Delafosse, a former colonial official in West Africa and anthropologist at the colonial school (1909–1926), the vast distances between the metropolis and local administrations meant that such practices often went unnoticed, for better or for worse.
The orders canceling previous orders, the circulaires modifying the application of the orders, as well as countless decrees coming from Paris, unexpectedly, and contravening both the orders and the circulaires. All these texts contradict each other, visibly originating from different offices, though separated by partitions, which are too tight. The texts are long enough to make a Benedictine turn pale and often more confusing than a Chinese puzzle, and they follow one another in an avalanche so impetuous that I have not even finished running my blotter over a correction before I have to cross it out and replace it with a new modification […]. And now in despair I wonder if I will ever know which one is the fortunate paragraph which, among the hundreds of articles of the old decrees, might resist the debacle of being erased by one of the five décrets annulateurs. I fall asleep blissfully on the growing pile of official journals and explanatory circulaires, leaving it to chance to guide me in a maze darker than the darkness, dear to Stanley of the equatorial forest. I administer all of this haphazardly. Sometimes it turns out that by a happy coincidence, I have made the decision that needed to be made. Very often I have taken a decision, which no text, recent or old, could have justified. In these cases my error generally goes unnoticed or, which happens much more rarely, I receive a letter from the higher authority a few months later stating, without cordiality or surprise, that I have contravened Article 77 of the Decree of October 5, 1913, modified in its sixth and ninth paragraphs by Article 122, paragraph D, of the Decree of October 6 of the same year. I acknowledge receipt of the letter by stating the disapproval of my own error, and I do as my noirs administrés do, I continue.Footnote 18
This quotation serves as a caricature depicting the functioning of colonial bureaucracy, while also shedding light on a primary characteristic of the ideal colonial administrator championed by the colonial school: muddling through and occasionally circumventing rules constituted a method of governance. Following decolonization, this approach persisted among many African leaders, some of whom had previously collaborated closely with the colonial administration. Indeed, numerous postcolonial African states inherited features of colonial governance, particularly the ‘decentralized despotism’ characteristic of indirect rule.Footnote 19 These states evolved into neo-patrimonial systems, wherein the authority and legitimacy of leaders were grounded in patron–client relationships, the discretionary powers of select individuals, continual exceptions to established norms, and a lack of transparency, especially in financial management.Footnote 20 This system primarily relied on the ability of political leaders to cultivate client networks through the distribution of positions and funds obtained from external aid and other sources. As demonstrated elsewhere, these traits continued to influence colonial officials such as Ferrandi who pursued careers in Brussels.Footnote 21
10.3 Transitioning from the FIDES to the EDF: The Methodology of Jacques Ferrandi
Having served as an assistant to the district officer in Casamance (Senegal) from 1941 to 1943 during his tenure as a colonial official, Ferrandi’s post-war career trajectory was marked by significant roles within the Ministry of Overseas France in Paris. He began as the head of the ministry’s International Affairs Division in 1947, then assumed the position of French delegate to the Overseas Territories Committee at the Organisation Européenne de Coopération Économique (Organisation for European Economic Cooperation) in 1949, becoming a technical adviser to the Minister of Overseas France in 1951. His career took him to Dakar in 1953, where he was appointed Director General of the Economic Services of the French West African Federation. In this capacity, he oversaw the Fonds d’Investissement Economique et Social (The Investment Fund for Economic and Social Development (FIDES)), established in 1946 by the French metropolis to allocate funds for the initial colonial development plans.
During this period, France embarked on reforming its empire in sub-Saharan Africa, rebranding it as the Union Française (French Union) in 1946 and subsequently as the Communauté Française (French Community) in 1958. Supported by the African currency CFA franc and the commercial system of colonial preferences, the Union Française formed a substantial trade and monetary zone shielded from external competition. Trade barriers erected around France and its empire in 1928 facilitated French enterprises’ access to overseas markets and privileged the entry of products from these territories into the French market.Footnote 22 To sustain this protected zone and colonial reliance, social and economic development plans were implemented, accompanied by a revised discourse on development emphasizing the welfare of overseas inhabitants. Departing from the principle of colonial financial autonomy, FIDES was established to ensure this welfare through development plans. Local colonial authorities proposed funding projects with the assistance of public or private consultancy firms. These projects underwent assessment in Paris, were approved by a committee chaired by the minister of overseas France, and executed by local colonial authorities, awarding contracts to French firms.Footnote 23
As noted by Denis Cogneau, French imperial businesses still derived significant benefits from colonial ventures in the 1950s.Footnote 24 However, the economic strain caused by the Second World War, coupled with the increasing demands of African elites for parity in social benefits, alongside conflicts in Indochina and Algeria, rendered France financially incapable of sustaining this developmental model single-handedly. Consequently, the idea emerged to share this responsibility with future European partners. During the negotiations for the Treaty of Rome in 1956–1957, France proposed and obtained the association of its overseas territories in sub-Saharan Africa with the future EEC, thereby opening its African market to other Member States’ goods and enterprises in exchange for their participation in an EDF.Footnote 25 The association in Part IV of the Treaty of Rome encompassed trade agreements, including the extension of French colonial preferences to the EEC. As mentioned above, it introduced a financial aid mechanism known as the EDF for overseas territories, with its legal framework outlined in a specific Implementing Convention attached to the treaty.
As highlighted by Hanna Eklund, a clear distinction was drawn from the outset between the future European legal framework for citizens of European Member States and that for native inhabitants of associated overseas territories.Footnote 26 In my own work, I stress the ambiguity of France’s position during the negotiations on the Treaty of Rome.Footnote 27 The French government argued that excluding overseas territories from the EEC would be unconstitutional due to the recognition of the Union Française in the 1946 French Constitution: overseas territories were part of the Republic. However, their full integration into the EEC was not envisioned either, as these ‘underdeveloped’ territories were deemed too different economically, institutionally, and politically from European Member States. To some extent, underdevelopment, as a new means of categorizing peoples in the world through their level of economic growth,Footnote 28 was used to justify the perpetuation of exceptions as norms within the new European legal order and the absence of any provision for overseas territories’ representation in future EEC institutions. This was a source of significant disappointment for African deputies like Léopold Senghor, the representative of Senegal in the French National Assembly.Footnote 29 The 1946 French Constitution had granted all subjects of the empire citizenship in the Union Française: certain categories of former colonial subjects had voting rights and representation in the French National Assembly in Paris, albeit with a different electoral system to French citizens. In 1956, French overseas territories in sub-Saharan Africa were granted increased political autonomy through the Defferre laws.Footnote 30 The fact that these territories were considered different from the French metropolis by the EEC, the very fact that the association was decided unilaterally without consulting the emerging political elite of the territories concerned,Footnote 31 was viewed as ‘the most questionable form of colonialism’ by contemporary observers.Footnote 32
Another source of criticism for Senghor was the functioning of the EDF: its mechanisms were adapted from the French FIDES, with procedures designed to be under the control of French colonial authorities. The Implementing Convention attached to the Treaty of Rome stipulated that these authorities would propose economic and social projects for EEC financing in collaboration with local authorities or popular representatives. However, negotiations for the future EEC suggest that France aimed to maintain significant control over the decision-making process of the fund and restrict not only the intervention and oversight of local representatives but also that of other EEC Member States in territories still under its sovereignty.Footnote 33
Hence, from its inception, the EDF grappled with dual constraints: France’s design for it to serve its own colonial interests, both political and economic, and other Member States’ desire to exert control over it and ensure equitable treatment for their companies in the allocation of contracts. Under the first constraint, France ensured that the first commissioner responsible for the association was French: Robert Lemaignen, a prominent figure in the French patronat in Africa. Under the second constraint, Germany ensured that the director-general of the service overseeing the association within the European Commission (DG8) was German, represented by Helmuth Allardt.
As previously discussed, in 1958 Lemaignen appointed Ferrandi as his head of cabinet to assist in constructing the new multinational administration of DG8.Footnote 34 Given Ferrandi’s extensive personal network among the African elite and his expertise in FIDES procedures, he was well suited to aid the new commissioner in interpreting and executing the EDF. Ferrandi brought with him a small team of colonial officials who transposed to DG8 their methods rooted in indirect rule, as well as their connections with the local African elite. Subsequently, upon his promotion to Director of the EDF in 1962, Ferrandi established a system founded on personal relationships, mutual trust, and loyalty with African heads of state, characterized by opacity in fund allocation, a general disdain for transparency in project evaluation, and a disregard for rules.
Drawing from the philosophy of the colonial school, Ferrandi justified this system by emphasizing the necessity of adapting to African realities and cultures: ‘fighting against underdevelopment is not a technique. It does not consist of applying a solution pre-fabricated in a laboratory to a pre-determined situation.’Footnote 35 Addressing the European Committee of Engineers in Brussels, he argued:
What we expect from you, technicians, is to refuse any perfectionism, that is to say, to refuse to apply solutions that may have worked in Europe, but cannot be used in Africa […]. I will add that, in the same way there is no sickness but only sick patients, there is no underdevelopment but only underdeveloped countries, with their own characteristics, their particular needs, their possibilities and their specific solutions [underlined in the text].Footnote 36
Mirroring the colonial schools’ ethos, Ferrandi believed that Africa had to develop in its own way, which necessitated a commitment to compromise with African collaborators:
competence, modesty, courage, realism [underlined in the text] […]. All these qualities can flourish only in a context of loyal cooperation with the legitimate government and administrations of those countries. As was already said, and it is now a kind of cliché: the way we give is much more important than what we give. This essentially means that everything must be based on the style or in other words, human relations.Footnote 37
Ferrandi’s approach also involved interpreting EEC law in a manner conducive to his objectives, as evident in the creation of the contrôleur-délégué of the EDF and in addressing the ‘discrimination issue’ concerning EDF contracts awarded to EEC companies.
10.4 Skirting Regulations and Establishing Legal Precedents
Upon achieving independence, many African states lacked the capacity to develop the expected projects outlined by DG8 or to execute them. Consequently, they required technical assistance, for example to devise development projects or prepare the calls for tender and associated technical specifications, referred to as cahiers des charges. Aligned with the practices of the FIDES and the intentions of the French government, this technical support was primarily provided by French consultancy firms, sometimes in collaboration with firms from other Member States. Despite the appearance of independence, these firms remained closely tied to French companies established in former colonies and influenced by local legal frameworks based on former French colonial regulations. This influence extended to the technical specifications of projects attached to calls for tender, which, written in French and reflecting French technical terminology and legal requirements, tended to favour French companies over those from other Member States. German companies, in particular, frequently voiced complaints regarding this imbalance as they struggled to secure contracts from the EDF.Footnote 38
Another point of contention arose from the right of establishment and availability of information: while France, under pressure from other Member States, compelled its former African colonies to adopt a legal framework allowing the establishment of all EEC companies on their territories, it did not facilitate access to information regarding EDF tenders or establish a common legal framework for technical specifications easily understandable to non-French companies. Consequently, during the first years of the EDF, the latter secured 40 per cent of EDF contracts compared to only 3.28 per cent for German companies. When factoring in that 35.74 per cent of contracts were awarded to firms from associated states, which were essentially French entities in disguise, French companies monopolized the majority of EDF contracts, revealing a covert form of discrimination.Footnote 39
To challenge this discrimination and bolster his authority within DG8, Ferrandi devised a strategy to enlist German support and secure greater autonomy for the EDF from the French government. In 1960, immediately after several associated countries and territories had gained independence, he proposed the appointment of independent EDF contrôleurs recruited by the European Commission to oversee technical assistance and project control in associated states. These agents would assist in project development, ensure technical specifications allowed for fair competition, supervise local administration-led tenders, and monitor expenditure – tasks originally assigned to French consultancy firms per the French government’s plans. When France rejected these proposals, Ferrandi, employing his characteristic approach, established the contrôleur-délégué of the EDF without the consent of Member States. Recruitment occurred through the Association Européenne de Coopération (Association for European Cooperation), a Belgian-based non-profit organization, with contrôleurs contracted privately and funded through the EDF budget.
Furthermore, Ferrandi endeavoured to enhance transparency in adjudication procedures and increase access to information. Calls for tender were publicized in various specialist journals across Member States and in multiple languages, in addition to the Official Journal of the EEC and associated countries. The Commission disseminated project records, including technical and financial details, to Permanent Representations in Brussels and EEC information offices in Member States. In response to recurrent German criticisms and as negotiations for Yaoundé II approached in 1968, DG8 developed a common legal framework for technical specifications for all EDF-funded contracts (cahier des charges général), translated into the four languages of the Community.Footnote 40 This document represented an initial effort to modernize and standardize local technical specifications documents and depart from inherited colonial rules.
However, the reforms implemented were insufficient in addressing the discriminatory practices among Member States concerning EDF contracts. It became evident that the issue transcended legal boundaries. French companies, due to their close ties with local elites, were adept at employing practices such as bribery, thereby securing contracts. Consequently, Ferrandi’s team of contrôleurs found themselves compelled to adapt to this reality, compromising the very principles of competition they were mandated to uphold. To allow German companies (like Strabag) to have access to EDF tenders, they resorted to the same tactics as French and local companies, intervening on the ground and attempting to sway local administrations’ handling of tender processes. In 1962, following Strabag’s unsuccessful bid for an EDF road project in Somalia, the European Commission engaged the Somalian government to initiate a fresh tender process, excluding the Italian firm that had secured the contract.Footnote 41
These adaptations did not go unnoticed by firms, particularly French ones, which began losing contracts to German and other EEC Member State companies.Footnote 42 Certain Member States, notably the German government, endorsed Ferrandi’s actions where these were in their own interests. Conversely, the German government sometimes criticized Ferrandi for setting precedents by flouting regulations, as exemplified by the Trans-Gabon railway project.
The railway project, proposed by President Omar Bongo of Gabon in 1968 and revisited in 1973, aimed to facilitate forest exploitation and potentially exploit iron ore mines.Footnote 43 Despite objections from various agencies, such as the World Bank, and reservations from most EDF Committee members regarding its profitability, the project proceeded. Notably, concerns were raised within the EDF Committee about Ferrandi’s preselection of firms before official approval of the project by the EDF Committee and before the publication of a formal call for tender in the EEC Official Journal. Such action prompted questions about legality and potential lawsuits against the Commission. In particular, the Dutch and German representatives persistently asked that the procedures be respected. Despite objections, the project secured majority approval within the Committee. The fact that Ferrandi made sure, through his consortium of firms, to give a fair share of the project to companies of several Member States, probably helped towards this outcome.Footnote 44
10.5 Conclusion
This chapter highlights the perpetuation of a colonial mindset towards legal governance, which accompanied the arrival of Ferrandi and other colonial officials in DG8. Moreover, it underscores how this mindset was largely fuelled by the enduring competition among Member States to maximize benefits from the EDF for their respective enterprises. Consequently, the EEC legal framework underwent continual adjustments not only to accommodate African elites, but also to serve the interests of Member States.
More recently, in 2006, Louis Michel, the commissioner for development, urged the head of the Commission’s delegation in Eritrea to exercise ‘flexibility and constructiveness’ regarding President Isaias Afwerki’s decision to market the food aid given by the EU, an act which was not envisaged by the financial convention signed between the EU and the Eritrean administration under a programme named ‘Food for Free’.Footnote 45 Given the country’s strategic significance, few Member States opposed this decision or envisaged imposing sanctions despite facing one of the most authoritarian regimes on earth.
Flexibility and adaptation of law remained the guiding principles for successive generations of contrôleurs, renamed ‘delegates’ after 1975, then heads of delegation of the Commission.Footnote 46 In a European Commission publication dedicated to the delegations’ role and historical trajectory from 2004, the experience of René Calais, one of the first colonial officials to be recruited by Ferrandi to assume the role of contrôleur-délégué in Chad, was highlighted, precisely for his capacity to adapt, the same capacity which prompted those who were critical of Ferrandi’s style to label DG8’s civil servants and contrôleurs-délégués ‘colonial artists’.Footnote 47
11.1 Introduction
The supranational character of both EU and European Convention on Human Rights (ECHR) law (collectively designated as ‘European law’) is closely associated with the rise of the Court of Justice of the European Union (CJEU) in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg, both of which have acted as constitutional judges in allowing individuals to invoke treaty provisions against national legislation, whether directly or through preliminary referrals by national courts.Footnote 1 Since the 2000s, a growing number of publications have analysed the often controversial powers of these courts from a historical and sociological perspective.Footnote 2 With regard to the creation of EEC (now EU) law and its promotion as supranational law, a certain number of publications have notably highlighted the decisive role played by a small number of highly qualified jurists, for whom Antoine Vauchez has coined the term ‘Euro-lawyers’.Footnote 3 I shall apply this term here as well to lawyers participating in the creation and promotion of either EEC/EU or ECtHR law as supranational law.
When identifying the precedents on which early Euro-lawyers could build, many publications have noted the influence of individual domestic legal cultures.Footnote 4 In addition, several authors have identified continuities between interwar-period international lawyers and post-Second World War Euro-lawyers.Footnote 5 However, two aspects of this crucial period remain understudied.
First, with the notable exception of A. W. Brian Simpson, most authors seem to assume that interwar international adjudication remained confined to interstate disputes.Footnote 6 However, well before the 1950s, internationally composed courts examined treaty-based claims by individuals against sovereign states, notably in the wake of the post-First World War peace treaties. As I have shown elsewhere, the creators of both the Luxembourg and the Strasbourg courts acknowledged these institutions as important precedents.Footnote 7
Second, while certain of the above-mentioned publications recognize the importance of decolonization on the development of post-Second World War European law, they do not look at possible legal and personal continuities between international institutions established within a colonial context and the CJEU and the ECtHR. It might perhaps seem counter-intuitive to look at continuities between institutions whose main objective was to maintain inherently unequal forms of domination and institutions aiming to create forms of mutual dependency and solidarity among equals. A glance at international organizations law might dispel this assumption, as recent publications have shown that post-Second World War international organizations in general,Footnote 8 and the UN in particular,Footnote 9 relied heavily on legal principles and legal expertise developed within the often partly internationalized legal pluralism of certain colonial settings.Footnote 10
As this chapter will show, the CJEU and the ECtHR were no exceptions to this, as the sources of inspiration their creators could draw on were not limited to individual Western legal cultures or post-First World War European international courts but extended to precedents from colonial contexts. One of these precedents was the use of internationally composed ‘mixed courts’ to guarantee the individual rights of Westerners, which I will refer to here as ‘colonial-era mixed courts’. This chapter will therefore first introduce readers to the origins and characteristics of these courts, which operated between the middle of the nineteenth and the middle of the twentieth centuries, highlighting the cases of the Mixed Courts of Egypt and the Mixed Court of Tangier. It will then show some of the personal continuities that existed between these courts and post-Second World War European law, both within the European Communities and the Council of Europe (CoE). Finally, to further illustrate this point, the chapter will zoom in on one particular case before the Mixed Court of Tangier that not only raised the question of treaty law as constitutional law, but also elicited a cautious, but ultimately positive, assessment by Nicola Catalano, who would shortly afterwards become one of the most influential early ‘Euro-lawyers’.
11.2 Colonial-Era Mixed Courts: Upholding Treaty Law as Constitutional Law
Mixed courts of the colonial era were a form of domestic court with international participation established between the first half of the nineteenth century and the first half of the twentieth century in non-Western polities (including fully sovereign states, but also protectorates, mandates, and condominiums). Serving as an alternative to consular jurisdiction in countries where Western states were unwilling to accept the jurisdiction of ordinary local courts over their nationals or their nationals’ interests (a system also known as capitulations, especially in the context of the Ottoman Empire), they blended domestic and international features.Footnote 11 These features were not limited to their composition and included other variables such as the legal norms that created them, the substantial and procedural laws they applied, their jurisdiction, and the languages they used. This blend of domestic and international features led contemporary authors to describe them as ‘mixed’ in a way that largely corresponds to today’s characterization of certain courts as ‘hybrid’. The first of these institutions were the Ottoman Mixed Commercial Courts (ca.1848–1914/23), which provided the blueprint for all others. Over time, the jurisdiction of mixed courts outgrew the initial focus on civil and commercial cases, with some later courts handling suits against the host government not unlike present-day investor–state dispute arbitration. However, due to the growing rejection of the discriminatory foundations of this system and to the progress of decolonization, most mixed courts created during the nineteenth and early twentieth century were eventually replaced by national courts before the 1960s.Footnote 12 That said, based on their broad powers as guarantors of treaty-based economic freedoms of foreign individuals and companies and their own understanding of themselves as ‘constitutional courts’, two mixed courts seem especially relevant as precedents for both the CJEU and the ECtHR, namely the Mixed Courts of Egypt and the Mixed Court of Tangier.
Created pursuant to a 1875 convention between Egypt and more than a dozen Western powers, the Mixed Courts of Egypt were only dissolved in 1949, pursuant to the 1937 Montreux Convention. During their existence, the Mixed Courts of Egypt included between thirty-two and seventy judges (two-thirds of whom were foreigners, one-third Egyptians), many of whom had served as high-ranking magistrates in their home countries. Handing down their decisions, which were usually written in French, in the name of the Egyptian sovereign and in the interest of free international trade, they applied treaty-based laws that they could complement by invoking ‘the principles of natural law and equity’, or, at least until 1937, even modify them by convening as a ‘Legislative Assembly’. Even more importantly from the perspective of individual rights, the Mixed Courts of Egypt had the power to award damages to private persons for the violation of their treaty-based rights by Egyptian authorities. In this regard, the Mixed Courts had a broad understanding of their mandate. As early as 1876, in a decision that would eventually contribute to the destitution of ruler of Egypt Khedive Isma‘1̄l, they accorded to themselves the right to ignore any law that they deemed in violation of rights granted to foreigners by way of treaty.Footnote 13 According to one of the last presidents of the Alexandria-based Mixed Court of Appeals, these rights were understood by the members of the Mixed Courts of Egypt as similar to constitutional rights.Footnote 14
The Mixed Courts of Egypt later served as a model for the creation of a similar institution within the International Zone of Tangier (1924–1956), which was distinct from the French and Spanish Protectorates over Morocco. Adopted in 1923 as a multilateral treaty, the Tangier Zone Statute formally placed the Moroccan port city and its surroundings under the sovereignty of the Moroccan Shar1̄f, while delegating vast components of that sovereignty to several Western powers. These powers jointly administered most of the Zone using a series of international institutions, which included an administrator, a (non-elected) Legislative Assembly, a Committee of Control (composed of the professional consuls of the Western powers parties to the 1906 Act of Algeciras and endowed with the power to veto legislation), and a Mixed Court. The French international lawyer Paul Reuter (1911–1990), one of the drafters of the Treaty establishing the European Coal and Steel Community (ECSC), once described this scheme as a type of unequal federal integration between Morocco and the Western parties to the Statute.Footnote 15 In at least one respect, the quasi-federal character of the Tangier regime was even more conspicuous than that of the ECSC Treaty: as opposed to the latter, it included a supremacy clause. Under Article 11 of a Moroccan ‘Dahir’ (decree) annexed to the Tangier Zone Statute, ‘[t]he Administration of the Zone shall respect the Treaties at present in force between Us [the Sultan of Morocco] and the Powers. … In case of any divergence between the provisions of these Treaties and the laws and regulations passed by the International Legislative Assembly, the provisions of the Treaties shall prevail’.Footnote 16
The relative sophistication of the Tangier Zone Statute did not, however, lead to the creation of a judiciary as renowned as the Mixed Courts of Egypt. Generally speaking, the Mixed Court of Tangier was much smaller than its Egyptian model. Until 1953, it included only five titular judges, none of whom was a Moroccan. Deemed much less prestigious than the Mixed Courts of Egypt, it did not attract the same kind of high-profile magistrates. This changed somewhat between 1953 and 1956 when, following a major overhaul, the bench of the Mixed Court of Tangier was expanded to thirteen foreign judges and one Moroccan judge.Footnote 17 Nevertheless, despite these shortcomings, the Mixed Court of Tangier had similarly broad powers and proved just as activist as those in Egypt.
Just like their Egyptian counterparts, the Tangier judges used their jurisdiction over suits by foreigners against the government to set aside laws that they deemed contrary to the economic freedoms of foreigners, asserting that these freedoms were guaranteed by the ‘constitutional treaties’ of the Zone. This could be considered a form of judicial activism. Granted, the prevalence of these treaties over local legislation was firmly enshrined within the above-mentioned supremacy clause. Nevertheless, the ‘duty … to ensure the observance of the regime of economic equality and the provisions of the statute of Tangier’ had been entrusted by Article 30 of the Tangier Zone Statute to the above-mentioned Committee of Control. By asserting their own power to enforce the supremacy of treaties over Zone legislation, the members of the Tangier Mixed Court showed that they were not afraid of encroaching on what Western consuls in Tangier would have considered their domaine réservé.Footnote 18 They did so for the first time in the 1938–1939 Radio-Tanger case. After the Tangier Legislative Assembly had adopted a law prohibiting all private radio broadcasting in the Zone on grounds of Moroccan ‘imperial’ security, local authorities had started criminal proceedings against the director and the manager of the privately owned Radio-Tanger station. However, the station’s owners, the Belgian industrialist Louis de Wolf and his Romanian associate Charles Michelson, were clearly aware of the potential offered by the unique legal framework of the Tangier Zone and its judicial guarantees.Footnote 19 Their strategy of commissioning and disseminating opinions from some of Europe’s most prominent international lawyers, all of whom asserted the legality of their undertaking, proved successful with the local judges.Footnote 20 Echoing the arguments used by the defendants, both the Mixed Court’s Section of First Instance,Footnote 21 and its Appeals Section,Footnote 22 deemed the law contrary to the principle of ‘economic freedom without inequality’, which was granted to all foreigners in Morocco by the 1906 Act of Algeciras, and acquitted the accused. In its lengthy decision, written by its Spanish president Manuel Díaz Merry, the Mixed Tribunal even explicitly compared itself to the US Supreme Court.Footnote 23
Considering their international composition and legal basis, their broad powers as guarantors of treaty-based individual rights, their activism, and their full integration within their respective host polities, the Mixed Courts of Egypt and Tangier presented several features that would have been useful to the creators and promoters of the two post-Second World War European supranational courts. As a matter of fact, several leading early Euro-lawyers had some form of experience of the Mixed Courts of Egypt and Tangier.
11.3 Personal Continuities: The Colonial Experiences of Early Euro-Lawyers
Several lawyers who played an important role in creating and/or promoting the Luxembourg and Strasbourg courts as supranational courts had previous experience of colonial-era mixed courts.
The fact that the Council of Europe was established in 1949, which was the same year that the Mixed Courts of Egypt were dissolved, likely contributed to some striking personal continuities between these institutions. While the Swede Torsten Salén (1889–1964), who had been a judge at the Mixed Courts of Egypt between 1926 and 1949 before serving as a member of the Committee of Experts that elaborated the draft ECHR between February and March in 1950, did not display any leanings in favour of supranational adjudication in that context (a move his country would have opposed in any case), two of his former colleagues were actually instrumental in setting up the ECtHR as a supranational court.Footnote 24
The first of these colleagues was the Dutch Arnold Struycken (1900–1955). After defending a doctoral dissertation in international law and serving as a legal secretary to several Mixed Arbitral Tribunals based in the Netherlands (some of which dealt with politically highly sensitive expropriation cases), between 1936 and 1949 Struycken had served as a judge of the Mixed Courts of Egypt – a period that coincided with increased Egyptian opposition to the wide-ranging powers of these courts, and after 1937 that saw a transitional period in which their absorption by the local court system was prepared and lively discussions took place about the future protection of foreigners’ rights within that system. In 1949, following the dissolution of the Mixed Courts, Struycken was appointed Political Director within the Secretariat of the Council of Europe, and entrusted with coordinating the relations between the organization and its member states. This included coordinating the meetings of, and serving as rapporteur for, the Committee of Experts that drafted most of the ECHR.Footnote 25 During that process, Struycken’s administration presented the Committee of Senior Officials with a precedent involving the Mixed Courts of Egypt while describing them as complying with international standards regarding access to justice.Footnote 26 Although he undoubtedly participated in paving the way for it, Struycken himself did not witness the rise of the ECtHR as a supranational court. After having been appointed Clerk of the Assembly and Adjunct-Secretary-General of the organization in 1954, he suddenly died from a heart attack at his office desk in 1955.Footnote 27
By contrast, Struycken’s colleague Polys Modinos (1899–1988) had the opportunity to actively shape the functioning of the ECtHR until the end of the 1960s. Born into a Greek family in Alexandria, Modinos studied in Paris before joining the bar of the Mixed Courts of Egypt in 1922. After fifteen years of practice as a lawyer, he joined the bench of the Mixed Courts in 1937 and remained there until its dissolution. As opposed to Struycken, Modinos was a relatively prolific author, publishing some forty articles between 1923 and 1968, many of which related to individual rights.Footnote 28 During the final years of the Mixed Courts, he did not hesitate to provide foreign embassies with memoranda critical of Egyptian laws that he considered discriminatory towards foreigners and the end of the international guarantee of their rights by the Mixed Courts.Footnote 29 After the dissolution of the Mixed Courts, Modinos joined Struycken’s department in 1951. In 1954, he was appointed to the strategic position of Head of the Council of Europe’s Human Rights Department. In that capacity, he served as the first secretary of the European Commission of Human Rights. In 1959, he became the ECtHR’s first Registrar, before being appointed Deputy-Secretary-General of the organization in 1962.Footnote 30 Modinos was not only a staunch advocate of supranationalism, hailing the CJEU’s seminal 1963–1964 decisions as models for the ECtHR, which he considered a constitutional court,Footnote 31 but actively modelled procedures before the Strasbourg organs on those before the Mixed Courts of Egypt, as the then president of the ECtHR, the French law professor René Cassin (1887–1976), would acknowledge in 1968.Footnote 32
As for the CJEU, three of its early members and promoters had been in contact with the Mixed Court of Tangier.Footnote 33 Its first president, Massimo Pilotti (1879–1962), had participated in the 1928 revision of the Statute of the Mixed Court of Tangier, although it is hard to tell whether this experience influenced him in any way.Footnote 34 Perhaps more importantly, Michel Gaudet (1915–2003), who had established the Legal Service of the ECSC’s High Authority in the early 1950s and laid the groundwork for the Van Gend & Loos and Costa v. ENEL decisions as Head of the European Commission’s Legal Service in the early 1960s, did not hesitate to establish parallels between the legal techniques used in the context of European integration and those he had himself used as a legal counsel to the French Protectorate in Morocco in 1945–1948.Footnote 35 Although not based in Tangier, he had nevertheless acquired first-hand knowledge of the Mixed Court’s Radio-Tanger case.Footnote 36 By contrast, one of Gaudet’s subordinates at the High Authority’s Legal Service in 1953–1956 Nicola Catalano (1910–1984) had actually lived in the International Zone. Another major Euro-lawyer, Catalano is often credited as the inventor of the CJEU’s preliminary reference procedure.Footnote 37 He also wrote the first textbook on EEC law, published in 1962, in which he expressly presented the CJEU, on whose bench he had sat between 1958 and 1961, as a constitutional court.Footnote 38 Before beginning his career as a Euro-lawyer by joining Gaudet in Luxembourg, Catalano had been the legal counsel to the International Zone of Tangier in 1951–1953. During this time, he did not only witness the modernization of the local Mixed Court into the ‘International Jurisdiction of Tangier’.Footnote 39 As we shall see in the next section, he also wrote an opinion on the powers of the Mixed Court of Tangier that anticipated some of the later debates at the Luxembourg court.
11.4 Nicola Catalano and the Nordlund Case: In Defence of Primacy
The peculiar circumstances of the Mixed Court of Tangier’s Radio-Tanger decision, which had been adopted by a majority of Fascist and Francoist judges within the context of the Spanish Civil War and had led to an outcry by French officials and commentators, could have turned it into an isolated precedent.Footnote 40 However, the court actually reaffirmed it after the Second World War. In 1948, a Danish dentist named Aksel Nordlund, who had previously practised for more than fifteen years within the French Protectorate, was denied by the administrative authorities of Tangier the right to set up his practice within the Tangier Zone. To deny Nordlund’s request, they invoked a 1939 law reserving this right to nationals of the signatories of the 1906 Algeciras Act, to which Denmark was not a party. When Nordlund ignored this decision, the authorities initiated criminal proceedings against him. Before the Mixed Court, Nordlund argued that the 1939 law was unconstitutional. The judges agreed, based on three considerations. First, they held that neither the Act of Algeciras nor earlier economic treaties concluded between Morocco and Western states discriminated between different Western nationalities, and that Denmark benefitted from the advantages granted to other Western states pursuant to the most-favoured-nation clause under Article 17 of the Madrid Convention of 3 July 1880.Footnote 41 Second, they recalled that pursuant to both Article 7 of the Tangier Zone Statute and the supremacy clause included in the above-mentioned Moroccan decree annexed to it, the Zone’s authorities had the obligation to comply with the treaties applicable to the Zone. Third, invoking Article 1 of the Zone’s Code of the Civil Status of Foreigners which, like all other Codes of Tangier was treaty based and could not be altered by ordinary legislation, they stressed that the principle of economic equality between foreigners, as a ‘fundamental law of Morocco’, not only applied within the realm of commercial activities, but extended to all private rights of foreigners. As a result, they declared the 1939 law ‘formally irregular and contrary to [the Zone’s constitutional texts, applicable treaties and Codes]’, and acquitted Nordlund.Footnote 42
The Mixed Court’s decision in the Nordlund case did not cause a controversy similar to that sparked by the Radio-Tanger precedent – it was never appealed. Nevertheless, the head of the local executive, the administrator, seemed clearly ill at ease with it, requesting two opinions on the matter from the Zone’s legal counsel.
The first of these opinions, issued only a few months after the decision, was written by the Spanish lawyer Pedro Cortina. From a purely substantive point of view, Cortina showed himself to be in total agreement with the Mixed Court. As he had made clear in another opinion issued only a few months earlier, he was himself convinced that the treaty-based principle of economic freedom without inequality enjoyed a ‘fundamental’ character within the Tangier Zone and therefore limited the powers of the Legislative Assembly.Footnote 43 In his opinion on the Nordlund decision, he emphatically described the Tangier Zone Statute as ‘une véritable “constitution conventionnelle”’ (‘a truly “conventional constitution”’). From this premise, he concluded that the Mixed Tribunal did not only have the power, but the obligation, to set aside all laws it deemed contrary to the Zone’s ‘treaty-based constitution’. Nevertheless, he still concluded that the Mixed Tribunal had overstepped its mandate, which did not include making generally binding pronunciations on the validity of laws, but only applying them in individual cases or, as Cortina noted, just like the US Supreme Court, refusing to apply them in such cases. Decisions exceeding this remit could possibly be annulled by the Zone’s Committee of Control.Footnote 44
The second opinion on the Nordlund case was issued in 1951 by Nicola Catalano, who by then had succeeded Cortina as the Zone’s legal counsel. His style was clearly different. Avoiding potentially divisive references to the US Supreme Court, Catalano seemed intent on appearing nuanced, discussing possible arguments and counterarguments before modestly submitting his own conclusion. His determinations were, however, not fundamentally different from those of his predecessor. If anything, they were more likely to cement the Tangier Mixed Court’s power to set aside laws than Cortina’s position. Just like his predecessor, Catalano denied the court’s claim to act as a constitutional court while acknowledging its power to set aside unconstitutional laws, which he considered as supplementing the Committee of Control’s power to veto unconstitutional legislation before it was enacted. However, in contrast to Cortina, Catalano stressed that the court should only do so ‘in very rare cases and only if the contradiction between the treaty and the law appears self-evident’ (‘dans des cas très rares et seulement quand la contradiction entre le traité et la loi apparaît evident[e], ictu oculi’). This call for judicial restraint, mainly aimed at dissuading the Tangier judges from using all too vague treaty provisions, hardly left the court’s powers diminished. If anything, it accentuated them – all the more so as Catalano, as opposed to Cortina, asserted that Mixed Court decisions, whether right or wrong, were final and could not be challenged before any other institution. Moreover, just like Cortina, Catalano left no doubt about the fact that, once the court had identified a contradiction between a law and a treaty provision, it had the obligation to apply the latter rather than the former, based on what Catalano described as a ‘criterion of primacy’ (‘critérium de primauté’).Footnote 45 Although the existence of a formal supremacy clause was a major difference between the Tangier Zone Statute and the ECSC and EEC Treaties, Catalano’s cautious approval of the Tangier Mixed Court’s activism might perhaps help explain his later attitude vis-à-vis EEC law primacy, which was fundamentally positive but ultimately dependent on judicial initiative. Despite being an ardent European federalist, coming up with the preliminary referral procedure, and brainstorming the creation of the Fédération Internationale pour le Droit Européen (International Federation for European Law) with Michel Gaudet, the head of the Commission’s Legal Service, Catalano asserted until 1963 the precedence of subsequent national laws over treaties.Footnote 46 It was only after the 1964 Costa v. ENEL decision that he fully embraced EEC law primacy, becoming one of its most vocal proponents.Footnote 47
11.5 Conclusion
Today, it is still hard to establish the exact degree of influence semi-colonial legal institutions wielded on the creation of European law as constitutional law. Nevertheless, accounts such as the one by Michel Gaudet on his time in Morocco and René Cassin’s observation on Polys Modinos using the experience he had acquired in Egypt to shape human rights procedures in Strasbourg should not be regarded as mere anecdotes. Put together, they show that European law did not draw its origins from individual Western legal traditions and institutions alone, but that international – or, indeed, quasi-federal – legal institutions and practices developed on Europe’s colonial ‘peripheries’ did indeed contribute in some way to post-Second World War European ‘integration-through-law’.Footnote 48
The fact that these contributions were rarely acknowledged as such should not come as a surprise. Granted, the establishment of a new post-Second World War international order did not result in an immediate disqualification of colonialism, but was rather informed by it – so much so that one of its designers, the South African prime minister Jan Smuts, could still hope in 1945 that the UN might help to preserve colonialism and white supremacy.Footnote 49 While American States (including the US) and the Soviet Union displayed some hostility towards colonialism from the outset of the UN’s existence, the decisive impetus that tilted the UN in favour of anti-colonialism came from the recently decolonized states,Footnote 50 whose practice challenged and partly succeeded in changing established rules.Footnote 51 It would take until the 1960s, the decade during which most of the formal decolonization processes were achieved, for this trend to crystallize into a set of firmly established rules that put Western states and lawyers on the defensive.Footnote 52 That said, even in France, where during the 1950s the overwhelming majority of political parties were advocating colonial reform rather than decolonization, colonialism was not always positively connoted. On the one hand, France’s colonial domination over parts of Africa could be mobilized as a geopolitical argument in favour of European integration.Footnote 53 On the other hand, invoking colonial institutions as models for European supranational institutions, which had already been made fragile by the rejection of the European Defense Community in 1955, would hardly have increased their legitimacy in the eyes of the general public.
As opposed to their Western domestic sources of inspiration, such as the Supreme Court of the United States and the French Conseil d’État (Council of State), the colonial origins of post-Second World War European integration-through-law are much less conspicuous and only visible to the trained eye. In that regard, they remind one of spolia, or individual stones extracted from dismantled structures and reused in more recent buildings, sometimes serving a slightly different purpose. Identifying these spolia, and thereby the continuities and discontinuities between past and present legal practices, might prove a useful contribution to present-day debates about European supranational institutions, their potentialities, and their limitations.
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