The history of the constitutional practice in European law could not be told without analysing the role played by the European Court of Justice (ECJ).Footnote ¹ The ECJ’s contribution to the development of a constitutional European legal order has been examined in countless publications by legal scholars and social scientists, who have tried to grasp how it consistently pursued its pro-integration path without provoking a rebellion by the member states.Footnote ² In the historiography of European integration, however, the ECJ was absent for many decades. The main reason for this was the Court’s long-standing unwillingness to give researchers access to its archives. Despite the Commission’s decision of 1983Footnote ³ to give the public access to documents produced by the European Coal and Steel Community’s (ECSC) institutions beyond the expiry period of thirty years, it was only in 2017 that the Court finally opened the judicial archive (which remains seriously censored with no access to the deliberations of the Court), followed in 2021 by the opening of the administrative archive. Both are placed at the Historical Archives of the European Union in Florence.

When the research for this chapter was conducted, the archive of the Court had not yet opened. To this author the challenge was consequently how to study the ECJ without access to its archive. Interestingly the solution adopted would provide a new rich way of analysing the Court which now constitutes the groundwork for future work on the ECJ using the information offered by the archive.Footnote ⁴ As the citation that began this chapter suggested, a first solution is to focus on the judges that constituted the Court. Quite surprisingly, given their importance in the European integration project, the judges had received little attention from scholars. The vast literature produced on the European jurisdiction has essentially approached the ECJ for what it is: a court – an institution that delivers judgments. Only rarely have authors focused on the judges, even in the cases where the Court pronounced its most ground-breaking judgments.Footnote ⁵ This lack of research can, to a certain extent, be explained. Unlike the judges of the International Court of Justice and those of the European Court of Human Rights, the members of the ECJ cannot publicly express ‘dissenting opinions’. They speak with only one voice and take the oath to preserve the secrecy of their deliberations, even after they leave the Court. Studying the judges can hence be perceived as being of little help in trying to find out more about how the ECJ’s case law was crafted.

This chapter demonstrates that despite the secrecy of the ECJ’s decision-making process, grasping who its judges were actually tells us much more than we could have anticipated about the Court’s role in the establishment of the constitutional practice of European law.Footnote ⁶ For example, knowing with what professional experience and ideological background the judges came to the ECJ allows for assessment of its internal dynamics and helps in gaining a better understanding of why they opted for constitutional interpretations of the European treaties. It also sheds light on their relationship with national decision makers, which in turn provides explanations on why they were selected for their positions by their respective governments, and what the latter expected from them.

Relying on the results of in-depth biographical research on the first three generations of judges (from the early 1950s until mid-1970s), this chapter argues that the composition of the Court played a key role in the establishment and development of a constitutional interpretation of European law in the 1960s and 1970s.Footnote ⁷ After offering a brief overview of the professional and legal profiles which were represented at the Court during this foundational period, it explains why they were selected by the member states, and demonstrates how the appointment process created a pro-federalist bench of judges. It then analyses the dynamics inside the ECJ, and lays bare how initial divisions among the judges regarding the constitutional practice gave way at the end of the 1960s to a large consensus on the need for teleological interpretations of the European treaties, which explains why the Court’s case law started to become more aggressive in the early 1970s. Finally, it shows that the nature of the selection processes of judges in the member states provided the ECJ with a political network which was often crucial in its judicial activity and the pursuit of its institutional interests. In this manner, the chapter demonstrates that the composition of the Court had a direct impact on its case law and that the identity, backgrounds and networks of the judges played a key role in the battle over the constitutional practice.

Professional and Legal Profiles of the First Members of the European Court of Justice

The ECJ came into being in December 1952, with the formal name of the Court of Justice of the ECSC.Footnote ⁸ In 1958, after the entry into force of the Treaties of Rome, the institution changed name to the Court of Justice of the European Communities (ECJ). Until the first European enlargement in 1973, it was composed of seven judges.Footnote ⁹ Three different ‘generations’ of judges can be identified: the generation of the ECSC pioneers that composed the Court from 1952 to 1958; the one which pronounced the ‘revolutionary’ judgments of 1963 and 1964 as the first members of the ECJ, under the leadership of a new and substantially younger president (1958–1964) and, finally, the one which pushed the constitutional interpretation of European law further (1964/1967–mid-1970s).Footnote ¹⁰ Since at no point in its history has the ECJ faced a complete renewal of its members, such a periodisation can obviously be debated. However, as will be demonstrated hereafter, the division into three periods constitutes a useful tool for analysing the dynamics inside the Court.

Virtually no magistrate in the classical sense (i.e., having evolved professionally only in the judiciary) was appointed in 1952. While three of the first judges had reached the highest jurisdictions of their country – Massimo Pilotti was attorney general of the Italian Corte di Cassazione from 1944 to 1948, Otto Riese became President of Chamber at the German Bundesgerichtshof in 1951 and Charles-Léon Hammes was a member of Luxembourg’s Cour supérieure de justice from 1945 to 1952 – they also had considerable experience as international legal experts. Pilotti had represented Italy at numerous international conferences after the First World War and had worked as Deputy Secretary-General at the General Secretariat of the League of Nations from 1932 to 1937. Riese, who was a professor of international law before he joined the Bundesgerichtshof, could count on thirty years’ experience as a legal expert in air, maritime and international sales law for the German Ministry of Justice. Hammes worked for many years as a legal counsel for the Ministry of Justice of Luxembourg.

The Dutch Adrianus Van Kleffens spent most of his career as a legal expert in the Dutch Ministry of Economics, even though he was qualified to work in the judiciary. Like many of his colleagues, he had diplomatic experience as a legal expert in international negotiations, including those of the Benelux Treaty (1949–1950). The three other pioneer judges had never worked in the judiciary. Belgian Louis Delvaux was a lawyer who spent most of his career in politics (including as the Minister of Agriculture in 1945). Jacques Rueff was an economist of international reputation who had worked as a high official for the French state. In 1945, he led French negotiations on reparations to be paid by Germany. He had subsequently taken on the role of President of the Interallied Agency of Reparations (1950–1952). Petrus Serrarens was a Dutch member of parliament and leader of the International Confederation of Christian Trade Unions (CISC) for more than thirty years (1920–1952). He had represented his country at numerous international conferences, including conferences organised by the International Labour Organization. He had also participated in the negotiations leading to the establishment of the Council of Europe. Neither Serrarens nor Rueff were trained in law. The presence of two non-jurists at the Court of Justice of the ECSC prompted the drafting committee of the Treaties of Rome to sharpen up the conditions of access to European judicial posts.Footnote ¹¹ While the Treaty of Paris only required the judges to offer all guarantees of independence and competence, candidates now had to fulfil the conditions required for the holding of the highest judicial office in their respective countries or be jurists of recognised competence (Article 167 of the EEC Treaty, Article 139 of the Euratom Treaty).Footnote ¹² Interestingly, the governments of the member states showed during the 1960s a clear preference for the latter condition, and mostly appointed legal experts who had worked in the ministries rather than professional judges.Footnote ¹³

After Pilotti’s departure from Luxembourg in 1958, and Riese’s resignation in early 1963, the second generation of members of the ECJ included even fewer professional judges than the ECSC group. Most of the selected candidates of the 1960s were either senior civil servants from Ministries of Foreign Affairs and Justice in particular or academics who worked as legal experts for their respective governments. The new, young, Dutch judge André Donner (who replaced Van Kleffens and became the first President of the Court of the European Communities in 1958) was a professor of public law who had worked as a member of different Dutch legal committees charged with proposing reforms of the constitution in the first part of the 1950s. Nicola Catalano, the Italian judge who entered the ECJ in 1958, was a lawyer and law professor who was first recruited by the Italian Ministry of Foreign Affairs in 1948. After he spent four years at the Legal Service of the High Authority of the ECSC, the Italian government sent him to the negotiations of the Treaties of Rome. Stricto sensu, Catalano was, despite his nomination in 1958, not a member of the ‘revolutionary’ Court since he was replaced in 1962 by Alberto Trabucchi, who spent his entire career in academia as a highly regarded professor of private law. The second Italian judge who was appointed in 1958, Rino Rossi, had known a career as a magistrate, reaching the position of President of Chamber at the Corte di Cassazione. However, for many years he also worked under the authority of the Ministry of Foreign Affairs as a magistrate on the island of Rhodes, the administrative centre of the Aegean islands, which were under Italian control from 1912 to 1943.

The two German judges who worked at the ECJ during the first half of the 1960s were both partially members of the revolutionary bench of judges. Riese left the Court in the immediate aftermath of the Van Gend en Loos judgmentFootnote ¹⁴ and was replaced by Walter Strauss, an official from the German Ministry of Justice who spent his entire career as a legal expert in the German public administration. Riese was on the panel of Van Gend en Loos judges, Strauss participated in the decision-making process of the famous Costa v ENEL ruling.Footnote ¹⁵ Finally, the revolutionary generation counted among its judges the French Robert Lecourt. Appointed in 1962 to replace Rueff, Lecourt was a lawyer, but spent most of his career in politics as a member of the Christian-democratic Mouvement Républicain Populaire. He had been Minister of Justice in France on several occasions.

The years 1964 to 1967 constitute a period of transition between the second and the third generation of judges. In October 1964, Judge Rossi left Luxembourg. Since Riese had already resigned from his judge position a year before, only five of the seven men who delivered Van Gend en Loos were still on the bench: Trabucchi, Lecourt, Donner, Hammes and Delvaux. The latter two left the Court in 1967. Following their departure, the institution was composed of a majority of new judges who had not experienced the 1963 and 1964 judgments from the inside. We can here speak of a ‘third generation’. Most of those who arrived in Luxembourg after the ‘founding’ judgments had career paths like their predecessors. The Italian judge Riccardo Monaco (appointed in 1964) and the Luxembourgish Pierre Pescatore (appointed in 1967) had long careers as officials in the Ministries of Foreign Affairs of their respective home states. They have represented their governments as legal experts in international conferences, and as lawyers in several international court cases.

The second judge who was appointed in 1967, the Belgian Josse Mertens de Wilmars, had a career path very much like that of his predecessor Delvaux and colleague Lecourt. He was a lawyer who spent more than twenty years in politics, as a member of the Christian-democratic party Christelijke Volkspartij. It was only with the appointment of Hans Kutscher, who replaced Walter Strauss in 1970, that the European bench again included a judge who conducted most of his career in the judiciary. Kutscher had spent fifteen years at the West German Constitutional Court (Bundesverfassungsgericht, BVerfG). Prior to his appointment, he worked as a legal expert in the West German government.

The fact that the governments of the member states appointed for the Court of the European Communities fewer candidates that came from higher judicial positions than they had for the Court of the ECSC is striking. Between 1967 and 1970, only one of the seven members of the European bench had occupied a senior magistrate position prior to being appointed on the European level.Footnote ¹⁶ This observation echoes questions which have surrounded the selection process of the European judges since the very beginning of the European integration process: did national governments have a strategy in composing the ECJ? Did they deliberately appoint candidates who were known for their proximity with national administrations rather than senior high magistrates who spent most of their careers working independently from the member states? Did they try to control the Court via the appointment mechanism?

The Selection Process for the Members of the Court

According to the Treaties of Paris and Rome, the members of the ECJ were appointed for a term of six years by the member states of the communities acting in common agreement. In practice, however, each government was free to select its own candidate. During the first decades of the ECJ’s existence, appointments by mutual agreement consisted of systematic endorsements of the choices made by the member states. This only changed in 2009, when for the first time an independent advisory panel gave its opinion on the suitability of candidates before governments made their appointments.Footnote ¹⁷ The biographical research carried out on the first members of the ECJ combined with archival material on the member states’ nomination processes provide a detailed account of the rationale for the selection of the early members of the ECJ. The following section will present the three main findings of this research. They show that the generally pro-European governments of the six member states indirectly contributed through their selection procedures to nurture pro-integration dynamics inside the Court.

The first and most important result of the study of the first appointments at the ECJ is a methodological one. To draw conclusions with regard to the ‘intentions’ of the member states from the professional and legal profiles of the candidates chosen can lead to hasty and incorrect conclusions. The composition of the Court of Justice of the ECSC, for example, with its striking presence of judges with an economic background (above all the economist Rueff, who was not trained in law), can lead to thinking that the member states tried to minimise the judicial weight of the first Court or that they tried to form a sort of economic tribunal.Footnote ¹⁸ Archival evidence, however, shows that the governments at first wanted to nominate highly qualified legal experts when the Court of Justice of the ECSC was established in 1952. Italy, for example, had on its list of candidates next to the elected Pilotti, Tomaso Perassi, a law professor of international reputation, who could count substantial diplomatic experience amongst his qualities.Footnote ¹⁹ Belgium brought up the name of the most prestigious candidate that it could possibly find at the time for a judge position at the Court: Charles de Visscher, a renowned professor of international public law who had been a judge at the Permanent Court of Arbitration in The Hague, at the Permanent Court of International Justice and then at its successor, the International Court of Justice.Footnote ²⁰ France turned first towards Pierre-Henri Teitgen, a senior French politician, prominent member of the French Resistance during the Second World War and professor of public law, as well as Paul Reuter, a professor of international law who had been Jean Monnet’s first legal advisor during the negotiations of the Treaty of Paris.Footnote ²¹ The candidacy of Rueff only came up after several other qualified jurists refused to accept the position, and therefore cannot be interpreted as a deliberate choice by the governments to have an economist sit on the bench. Candidates who are selected for European institutions are not necessarily the first choice of their respective governments. Thus, we should be careful when ascribing intentions into their appointment.

Rueff’s case is also relevant for the second result of the analysis of the selection process: not only professional and legal profiles mattered in the recruitment of the judges. Personal connections and political affiliations were also important and very often decisive.Footnote ²² The available historical documents indeed confirm an assumption expressed as early as 1964, namely that the selection process of the members of the CJEU in the first decades of its existence was highly political.Footnote ²³ Decisive personal connections were most of the time not visible in the official curriculum vitae of the candidates. One must take a closer look at the trajectory of each individual judge to lay bare the connections and identify the reasons that landed judges in Luxembourg. Largely unknown about Jacques Rueff, for example, is that he not only worked as an economist, but also had a brief stint of political activity. Like Antoine Pinay, the French prime minister at the time of his appointment, he was the co-founder and member of the steering committee of the political party Comité national des Républicains indépendants.Footnote ²⁴ This personal connection with Pinay played into the selection of Jacques Rueff who recruited, in return, no other but Pinay’s son, Pierre Pinay, as legal assistant (attaché) once he was in Luxembourg.Footnote ²⁵

As demonstrated first by Morten Rasmussen, the appointment of Lecourt (judge from 1962 to 1967 and then President of the court until 1976) was highly political as well.Footnote ²⁶ After Lecourt left the French government led by Michel Debré in August 1961, he wanted to be appointed as the head of a national insurance company. This was however impossible because French legislation did not allow for the nomination of a former member of government to a state company within five years after the carrying out of political functions.Footnote ²⁷ Prime Minister Debré consequently came up with other solutions: the triple presidency of three public companies/institutions namely the Comptoir de vente des charbons sarrois, the Conseil supérieur des alcools and the Mines de Bor or a judge position at the ECJ.Footnote ²⁸ Lecourt opted for the latter. We do not know exactly what made Debré, a champion of Gaullism and national sovereignty, nominate an ardent federalist like Lecourt to become a European judge, but one answer is that he may have believed at the time that the ECJ was of little importance.

The former French Minister of Justice was not the only professional politician who arrived in Luxembourg because of a stagnating political career. The circumstances in which the Belgian Mertens de Wilmars was appointed in 1967 were similar. Mertens de Wilmars was a co-founder and long-time member of the Belgian Christian Democratic Party. Contrary to many other members of the party, however, he had never managed to get a position in the government and was not placed near the top of the party’s election lists. He entered the Belgian Parliament three times as a supplementary delegate after the death or the resignation of the actual candidate. In the early 1960s, he gave up his political ambitions. Along with his interest in European law and integration, this disappointment about his political career was one of the key reasons for his application for a judge position in 1967. For his party, this appointment was similar to the case of Lecourt – an opportunity to reward a loyal member with a prestigious position in public service.Footnote ²⁹

Despite the many appointments to the ECJ from the Ministries of Justice and Foreign Affairs during the 1960s, one should not automatically assume that they represented attempts by the member states to control the Court. Biographical research shows that Monaco (Director of the Legal Service of the Italian Ministry of Foreign Affairs before his appointment), Strauss (State Secretary at the German Ministry of Justice) and Pescatore (Secretary-General of Luxembourg’s Ministry of Foreign Affairs), had all volunteered for a judge position.Footnote ³⁰ These spontaneous applications of long-serving and trusted jurists were without doubt convenient for governments, as they could hope that individuals who had delivered quality work for their state in the past would not completely forget about national interests once they had become European judges. However, that does not mean that they were actively seeking to appoint high officials from ministries to control the Court, or curb and derail its constitutional interpretation. In fact, Monaco and Pescatore could be expected to become strong promoters of integration through law, as their application for open positions at the ECJ came from their interest in the European integration process, which both displayed not only as diplomats since their participation in the negotiations of the Treaties of Rome, but also as law scholars. Monaco, for example, co-founded the Rivista di diritto europeo in 1961. In 1963, Pescatore created an Institute of European Law at the University of Liège with Professor Fernand Dehousse. The case of Strauss’s appointment was a bit different. After a long and brilliant career in the German Ministry of Justice, Strauss became frustrated with his position and aimed at giving his career a different orientation.Footnote ³¹ It is noteworthy that these candidates also had substantial personal and political affiliations: Strauss was a long-time member of the German Christian Democratic Union (CDU) and Pescatore was the brother-in-law of Luxembourg’s Prime Minister at the time of his appointment.

The link between political affiliations and the selection process led to a certain vulnerability of the judges’ mandates. After their six-year terms expired, new political leaders could decide to appoint ‘their own’ candidate. In 1958, when the newly appointed President of the Court Donner asked his government for a written guarantee that he would be reappointed after his term expired, he received the answer that such a document even if produced would have no legal value. The next government would be able to decide itself whether it wanted to reappoint him or not.Footnote ³² The most striking example of the vulnerability of the positions of the members of the Court was probably the replacement of the Italian judge Catalano, who was reappointed pro forma in 1961, with the instruction to resign shortly afterwards to make room for the brother of the Italian Minister of Finances, Trabucchi. Catalano resigned in March 1962 citing ‘personal and family reasons’.Footnote ³³

The vulnerability of their positions led some members of the ECJ to engage into ‘re-(s)election campaigns’ when their terms expired. When the Dutch judge Van Kleffens found out in 1958 that his government planned not to reappoint him in the new Court of Justice of the European Communities, he requested a meeting with the Secretary-General of the Dutch Ministry of Foreign Affairs to express his indignation about those rumours. He argued that in all the other member states it went without saying that all the members of the Court of Justice of the ECSC would be reappointed in the new Court.Footnote ³⁴ The Dutch government still replaced him with another candidate. Advocates General of the Court faced the same methods of appointment as the judges and thus had equally vulnerable mandates. Karl Roemer, for example, was in a situation like Van Kleffens’s in 1967 when he found out that the German government was considering replacing him with a younger candidate:Footnote ³⁵ Ernst Féaux de la Croix, a high official from the Ministry of Finances. He reacted with a long letter to the German Ministry of Justice arguing that his age was not an argument against his reappointment.Footnote ³⁶ He even went as far as suggesting to the German government to appoint him as a judge to the ECJ instead, and provided advice on how this solution could be made acceptable by the other member states.Footnote ³⁷

The third conclusion that can be drawn from the analysis of the judges’ trajectories and documents stemming from national selection processes is that, quite surprisingly, the procedure was strikingly apolitical when it came to controlling the ECJ’s pro-integration judicial activity. In other words, the candidates’ views on European integration do not seem to have mattered all too much in their selection process. Not even one of the numerous sources gathered in the founding member states regarding the selection process of the first generation of judges refers to the candidates’ ideas on European integration or the ECJ’s constitutional case law. This indifference allowed for the appointment of highly pro-federalist judges in the late 1960s and early 1970s.

Equally important is that none of the consulted sources indicate that the national governments aimed at reorienting the ECJ’s audacious jurisprudence via the selection process. At no point between the 1950s and the late 1970s did the member states individually or collectively attempt to compose a weak ECJ. The candidates should ideally be confirmed jurists with a previous international experience, that is, judges whose legitimacy could not be questioned.Footnote ³⁸ To conclude it seems certain that, despite the ECJ’s controversial case law, the member states never tried to control the Court via the selection process of the judges.

Political scientists have argued that the member states did not manage to control the Court via the appointment mechanism because the judges’ délibéré was secret, making it impossible for governments to find out whether ‘their’ judge was a promoter of the constitutional interpretation inside the ECJ.Footnote ³⁹ The biographical research shows that the notion that the national governments did not know the ideological tendencies of their judges is not correct. Many of the judges (Pescatore, Lecourt, Touffait, Kutscher and Mertens de Wilmars for example) made no secret of their ambitious views for the Court’s role in the EC, both before and during their years as European judges.Footnote ⁴⁰ Their governments cannot have ignored that they were the motors behind the ECJ’s so-called ‘activist’ judgments. Yet none of them were sanctioned; they all left the Court of their own free will. Lecourt, who was reappointed in 1970, did not want his term renewed in 1976; Monaco (appointed in 1964 and reappointed in 1970) retired from office shortly before the end of his term and was replaced by another pro-integrationist judge, Francesco Capotorti;Footnote ⁴¹ Kutscher (appointed in 1970 and reappointed in 1976) resigned from office in 1980, at the age of sixty-nine; Mertens de Wilmars resigned in 1984 after seventeen years at the ECJ (age seventy-two); and Pescatore stayed until 1985 (eighteen years).

These appointments or reappointments of federalist-inclined candidates played a key role in the ECJ’s capacity to uphold its constitutional interpretation of European law in the decade that followed the breakthrough of 1963/1964. They can be explained by two underlying factors. First, even if the constitutional case law of the ECJ was not always popular in the member states, or even to the extent that it was contained or resisted by various national actors, there generally existed in all the member states an overarching consensus about the value of EC-membership.Footnote ⁴² This meant that the governments appointing the judges and advocates generals typically consisted of parties supporting European integration, and since political affiliations were highly important, the nominees had a pro-European outlook. The only real mystery when it comes to nominations is the appointment of Lecourt by Gaullist France in 1962. However, as shown in Chapters 5 and 7, the various governments of Gaullist France did not always pay sufficient attention to the legal dimension of the integration process. It was, for example, never part of the French grievances discussed during the Empty Chair Crisis. When Debré came back to the Ministry of Foreign Affairs from May 1968 to June 1969 with the intention to curb the ECJ, it was too late.Footnote ⁴³ The new French President, Georges Pompidou, then nominated two pro-European Ministers of Justice and Foreign Affairs, René Pleven and Maurice Schumann, who were only happy to renew what proved to be the final term of Lecourt in 1970.

A second factor which tended to create a bias in the nomination process towards pro-European nominees was the development of the academic field of European law. While the governments encountered difficulties in finding qualified international law specialists willing to move to Luxembourg in the 1950s, European law began, in the following decade, to grow into a genuinely new discipline of law with several well-known specialists with both practical and academic experience. Monaco and Pescatore were precisely the prototype of these new experts in European law. Both had prolific academic careers. At the same time, they both held the highest positions in their Ministries of Foreign Affairs and defended their states’ interests in countless international conferences and negotiations. When governments looked for suitable candidates from the mid-1960s onward, the best qualified – not that it always mattered – were now participants in a new transnational field of law that identified itself with the constitutional case law developed by the ECJ, as demonstrated in Chapter 4. While a strong interest in European law arguably was the main reason these candidates aimed to get a position at the Court, their competent and loyal services in national diplomacies convinced governments of their suitability for the position. Governments were aware of candidates’ views on European integration, but such questions seemed not to matter. Instead, politics and personal connections decided nominations. This allowed for the ECJ to be composed of a highly pro-federal bench of judges, at the end of 1960s and 1970s. Let us now look at those pro-integration dynamics that prevailed inside the Court.

The Dynamics inside the European Court of Justice

Since the judges’ délibéré remains secret even after the opening of the ECJ’s judicial archive, it is difficult to analyse how individual rulings came into existence. However, the biographical research on the different generations of judges makes it possible to put forth some explanations regarding the Court’s hesitancy to pronounce ground-breaking judgments in the 1950s, as well as its constitutional judgments of the 1960s and 1970s. This biographical research laid bare that among the first members of the Court few identified the institution as a sort of embryo of a federal Supreme Court. None of the three high magistrates who worked at the Court between 1952 and 1958 (President Pilotti, who was moreover often ill and absent, Riese and Hammes) approved of the idea that the Court of Justice of the ECSC was of a constitutional or federal nature. Rueff was very much in favour of the European integration process for economic reasons, but he was not particularly interested in contributing to the making of a federal Europe.Footnote ⁴⁴ The only fervent promoters of a federal Europe were the two judges Delvaux and Serrarens, and they were both not very influential at the Court. According to German sources, Delvaux did not have the personality to impose his views in the deliberation room and Serrarens lacked influence because he was not trained in law.Footnote ⁴⁵ The absence of federal-inclined leadership in the Court is probably the main reason why the Court of Justice of the ECSC only timidly followed the Legal Service of the High Authority when it pushed for a constitutional interpretation of the Treaty of Paris.Footnote ⁴⁶

It was the arrival of Lecourt and Trabucchi in 1962 that finally changed the dynamics inside the ECJ and played a crucial role in paving the way for Van Gend en Loos and Costa v ENEL.Footnote ⁴⁷ However, as Morten Rasmussen argued, not all the members of the Court seemed to have approved of the constitutional interpretation in the first half of the 1960s. After all, the vote in favour of direct effect of Article 12 EEC in Van Gend was only approved by four out of seven judges.Footnote ⁴⁸ The in-depth study of the judges confirmed this analysis and laid bare that the disagreements probably also existed one year later in the Costa v ENEL case. The President of the Court André Donner, for example, did not share the opinion that the ECJ should take on the role of a constitutional jurisdiction. In 1966, he stressed that he fully understood and sympathised with the aspirations of the national judiciaries to remain the masters of their own judicial orders. He also did not hide the fact that, in 1951, he expressed himself against the introduction of the clause of primacy of international law in the Dutch constitution.Footnote ⁴⁹ Donner’s successor at the presidency, judge Hammes, was equally critical of the idea that the ECJ was to be of a similar nature to domestic supreme courts. In 1966, he openly rejected the notion that the ECJ had a constitutional and federal nature.Footnote ⁵⁰ These internal divisions inside the Court may explain why, except for the Lütticke judgment of 1966Footnote ⁵¹ (stipulating the direct effect of Article 95 of the EEC Treaty), the ECJ refrained from pronouncing new groundbreaking judgments in the immediate years following the Van Gend en Loos and Costa v ENEL judgments.

If the second generation prompted the breakthrough for a constitutional interpretation of European law, it was the third generation that finally advanced and consolidated it. The main explanation for this is obviously the changing of the composition of the bench. When one looks at the composition of the ECJ, the year 1967 appears as one in which key changes took place inside the Court. First, the President of the Court Hammes, one of the judges who was sceptical towards the constitutional interpretation, left. He was replaced at the presidency by the long-time militant pro-European judge Lecourt. Second, two other judges with a strongly pro-European background entered the Court of Justice, Pescatore and Mertens de Wilmars. Pescatore had at that point been a champion of European supranationalism for years. During the Fouchet Plan negotiations in the early 1960s, for which he presided Luxembourg’s delegation, he defended a highly federal view of the political union that was to be created.Footnote ⁵² It is also noteworthy that four years before his appointment, he expressed his desire to see the ECJ evolve into a ‘courageous and strong’ institution, which should guarantee the legitimate interests of the states, but also impose the EC’s authority on them because they could too easily be tempted to take back with the left hand what they conceded with the right hand when signing the treaties.Footnote ⁵³ Pescatore became the Court’s ‘troupe d’assaut’ in terms of supranationalist views, as the attaché of Judge Mertens de Wilmars put it in an interview.Footnote ⁵⁴ In 1976, Jean Foyer, a French Gaullist Minister, refused an appointment to the ECJ because he disagreed with the Court’s case law on integration. His argument was that Pescatore was the ‘doctrinaire’ of this jurisprudence.Footnote ⁵⁵

The Belgian Mertens de Wilmars’s views on European integration were more moderate than those of Pescatore. However, he was also a long-time defender of the European integration project and spent more than a decade in the Belgian section of the European Movement. In 1970, another judge joined this pro-European group, namely Kutscher. In 1976, Kutscher gave a speech that was highly revealing of his ideas on the role of the Court of the EC. Only days before he became Lecourt’s successor at President of the Court, he wondered ‘how else … the Court of Justice [should] carry out [the] function which it has been assigned except by an interpretation of Community law geared to the aims of the treaty, that is to say, one which is dynamic and teleological?’Footnote ⁵⁶

The Italian judge Monaco was also a defender of a dynamic interpretation of the Treaty. In 1963, he wrote that even though they could not move away from the text and the norms of the treaties, the European judges had to enter into their spirit and perform a delicate systematic approach while interpreting the Treaties of Rome.Footnote ⁵⁷ It was hence not only the ECJ’s most ’legendary’ judges, Lecourt and Pescatore, who were willing to push the interpretation of the treaties towards the objective of ‘an ever closer union’, but an entire group of judges that were happy to do so. These new insights on the 1970s question the narrative that the Court’s audacious judgments, following the Van Gend en Loos case,Footnote ⁵⁸ were simply a logical consequence of 1963.Footnote ⁵⁹ The biographical analysis rather leads to the following question: what would have been the actual impact of Van Gend en Loos without a highly pro-European generation of judges working at the ECJ during the following decade(s)? Most courts may look for consistency and thus tend to follow the same jurisprudential line. However, this alone does not explain the fact that the Court issued a number of judgments that significantly developed the constitutional interpretation of European law and step by step built what ultimately resembled a proto-federal legal order between the late 1960s and the early 1980s.

In 1968, the judges ruled that Article 31 and 32.1 of the EEC Treaty (member states shall in their mutual trade refrain from introducing new quantitative restrictions and making more restrictive quotas) could be directly invoked by nationals in front of their national courts (SalgoilFootnote ⁶⁰). In 1970, they opened the possibility for community acts other than regulations (directives and decisions for example) to have direct effect (Franz GradFootnote ⁶¹). In 1974, they held that a directive which had not been transposed into national law could be cited in national jurisdictions (Van DuynFootnote ⁶²). In 1976, they adjudicated that nationals of member states could invoke Article 119 EEC Treaty in front of national courts (men and women should receive equal pay for equal work, Defrenne II).Footnote ⁶³

The notion of primacy of European law was expanded in an even more blunt way: in 1970, the European judges stated ‘the validity of a Community measure … cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure’.Footnote ⁶⁴ In other words, no national text, not even a constitutional provision relating to fundamental rights, could prevail over European law which itself did not have a genuine catalogue of fundamental rights.Footnote ⁶⁵ The extraordinary audacity of the ruling did not fail to provoke the resistance of the BVerfG.Footnote ⁶⁶ Last but not least, the third generation of judges considerably expanded the Commission’s powers to conclude agreements with third countries by ruling that ‘each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the member states no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope’.Footnote ⁶⁷

This ‘activist’ case law, as it was referred to by the ECJ’s critics, cannot be seen as merely a logical consequence of the revolutionary breakthrough of the constitutional interpretation in 1963 and 1964. More than half of the revolutionary generation did not sit at the bench anymore in 1970. A new, deeply pro-integrationist group of judges had taken over, and was now pushing the European integration process forwards in a political context that was all but favourable to the construction of a constitutional legal order. During the negotiations of the Treaties of Rome, the governments decided to diminish the powers of the supranational institutions compared with the ECSC, and instead turned the Council into the main decision-making body.Footnote ⁶⁸ The Empty Chair Crisis and the Luxembourg Compromise demonstrated that the time was not right for pro-integration measures which could result in a further loss of sovereignty for member states. After de Gaulle’s resignation in 1969, the new French President George Pompidou aimed at relaunching the European integration process, but his views on the role that should be played by European institutions did not differ much from the ones of his predecessor.Footnote ⁶⁹ From the end of the 1960s to the mid-1970s, the European judges developed their very own pro-federal dynamic, and attempted to take a leadership role in the integration process. This dynamic was, to a significant extent, the result of the composition of the bench of judges – of which most members had pro-integrationist personal convictions. The judges’ biographies demonstrate that the composition of the Court did matter and, interestingly, that the great advances made by the ECJ in its case law in this period were an indirect consequence of the choices made by individual member states in the nomination process.

The Political Affiliations Between the Members of the Court and National Governments

As seen previously, political affiliations played heavily in the appointments of the first European judges. To be selected for a position at the Court, one needed to have a well-developed political network. The judge biographies show that even though the ECJ was supposed to work in complete independence from the member states, these political ties were not necessarily cut off once a candidate arrived in Luxembourg. Rueff, for example, worked on several accounts as an economic expert for the French government while he was a European judge.Footnote ⁷⁰ He was not the only one to do so. During his several mandates at the Court, Judge Hammes presided over Luxembourg’s private international law committee and chaired his state’s delegation at several international conferences on private international law at The Hague. The German judge Riese continued during his mandate to work as a legal expert for Germany’s ministries in both matters of air law and private international law. While spending nineteen years without interruption in Luxembourg, the President of the Court, and later judge Donner, served as a member, and even co-president of different Dutch committees where he oversaw reforms of the Dutch Constitution. The Italian judge Monaco worked as a legal expert for the Italian Ministry of Foreign Affairs in the first years after his appointment.

Quite naturally, personal and family networks were kept up. Roemer, the German Advocate General from 1952 to 1972, was married to the niece of Konrad Adenauer. Donner was the son of the former Minister of Justice and President of the Dutch Supreme Court, Jan Donner. Pescatore was, as aforementioned, the brother-in-law of Pierre Werner, Luxembourg’s Prime Minister between 1958–1974 and 1979–1984 (Pescatore was judge from 1967 to 1985). If one adds to that the fact that several members of the Court had personal affiliations which resulted from long careers in national politics (this was notably the case of Lecourt, but also the two Belgian judges Delvaux and Mertens de Wilmars, who had been long-time members of the steering committee of the Belgian Christian Democratic Party), then it appears that the ECJ possessed a vast and quite significant political network.

This network proved in various regards to be a crucial asset for the Court: primarily, the judges could use their personal affiliations to evaluate to what extent cases were sensitive in the eyes of the member states. As confirmed by the former attaché of judge Mertens de Wilmars, Ivan Verougstraete, the keeping up of political affiliations was strongly encouraged inside the ECJ. Since the judges were anxious not to offend the fundamental interests of the governments, the use of its political network was part of the ‘game of the Court’. It allowed the members of the Court to assess what was acceptable, and to be strategic in their decision-making, to avoid a rebellion by the member states.Footnote ⁷¹

Second, the political network helped the judges gain the governments’ trust and explain how their decisions were not meant to go against the interests of the member states, even if they followed a pro-integration dynamic which impacted their sovereignty.Footnote ⁷² Almost all of the selected candidates either had a political career or worked in, or for, the administration of their home state, mainly as legal counsellors for Ministries of Justice and Foreign Affairs. Many of them defended their state’s interests in various international negotiations. There was no reason they would now make decisions which could directly harm their country’s national interests. Thus, their professional trajectories, as well as their personal affiliations with national decision-makers, strengthened the ECJ’s legitimacy and capacity to have even ambitious case law accepted by national governments. In that sense, the Court operated very much like national constitutional courts, which were also characterised by a strong proximity and interconnectedness with political decision-makers. This proximity gave governments the impression that their political incentives were better taken into consideration than if the court were staffed with traditional judges. However, it also made it more difficult for them to criticise constitutional courts or the ECJ, because their decisions emanated from individuals whom they selected themselves and know personally and professionally. Moreover, the European judges had, via these political ties, direct contact lines to the governments to defend the Court’s actions and interests in behind-the-scenes discussions.

An example of the judges using their political network in the interest of their institution was the negotiations on the interpretation of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The Brussels Convention was the first private international law convention signed between the six member states of the EC. It replaced a complex web of existing national rules and bilateral agreements regarding the international enforcement of judgments in civil and commercial matters and aimed to establish an autonomous system of international jurisdiction in relation to the EC. As the Convention was going to radically alter the manner in which national courts were determining their jurisdiction and enforce decisions of other member states’ courts in civil and commercial matter cases, a centralised interpretative authority should ideally be designated or created to ensure that it would be applied consistently. In the eyes of the European judges, this authority should be the ECJ. Similarly to the preliminary reference mechanism, which allowed the ECJ to answer questions for interpretation of the treaties raised by national courts, the Court should be granted the power to give authoritative answers to questions of interpretation that national judges could have regarding the Brussels Convention. However, since the preliminary ruling mechanism had known an unexpected progressive development in the 1960s this was not uncontroversial.Footnote ⁷³ As the Brussels Convention was not a Community Act, but a separate private international law agreement signed between the member states, not all of the governments shared the point of view that the preliminary reference mechanism should be extended to the Brussels convention – especially since its rather vaguely formulated provisions left substantial room for interpretations. Special negotiations between legal experts of the six states were consequently organised to evaluate to what extent the competence to adjudicate on the Brussels Convention should be conferred upon the ECJ.

During these negotiations, France and Belgium proposed restrictive solutions for the powers that the ECJ was supposed to have over the terms laid out in the Brussels convention. These positions caused profound concern among the judges – several of which resorted to their political network to repeatedly urge national decision-makers to give them larger powers than originally proposed.Footnote ⁷⁴ Whereas Judge Mertens de Wilmars sent a memorandum explaining the legal situation to the Belgian government, Pescatore opted for direct communication with the Belgian Minister of Foreign Affairs, Pierre Harmel. In letters addressed to Harmel, which were written in a strikingly blunt tone typical for Pescatore, he bemoaned to the Minister the fact that the experts’ discussions were in his eyes taking an increasingly political turn ‘especially’ due to the negative and wholly unjustified position adopted by the Belgian delegation. He also accused the Belgian experts of putting forth inefficacious solutions which could encourage the French government to aim for the dismantling of the judicial guarantees established by the Treaties of Rome. Harmel should, in Pescatore’s view, take a personal interest in his government’s experts’ standpoint.Footnote ⁷⁵

President Lecourt, on his end, organised several informal meetings with key members of the new French government nominated by Pompidou including the new Ministers of Foreign and Justice Affairs, Maurice Schumann and René Pleven, in order to influence the very restrictive French position in the negotiations.Footnote ⁷⁶ He argued during those meetings that not giving the ECJ the prerogative to exercise power through the Brussels Convention in the same manner as in the framework of the preliminary ruling procedure of the EC would establish a precedent that could harm the European integration process.Footnote ⁷⁷ Even the Court’s Belgian clerk, Albert Van Houtte, participated in the lobbying by sending several notes to the Belgian Ministry of Foreign Affairs asking whether the Belgian position had been re-examined, and arguing that the German and even the French delegations were willing to accept solutions that were based on Article 177 of the EEC Treaty.Footnote ⁷⁸

The ECJ’s pressure was only successful to a certain extent. While Lecourt finally managed to convince Pleven and Schumann to give the French experts in the negotiations less restrictive instructions, the European judges did not manage to obtain a simple extension of the preliminary ruling mechanism.Footnote ⁷⁹ Nonetheless, the way in which they used their political network in this situation to potentially obtain a large extension of their powers is striking. One must stress here that the members of the Court were not completely wrong when they suspected that the governments were trying to attack the ECJ’s powers. Archival evidence demonstrates that the former French government under President de Gaulle had indeed been trying to obtain a revision of Article 177 of the EEC Treaty and hoped to establish a precedent for a more restricted version during the negotiations of the Brussels convention.Footnote ⁸⁰ What this episode hence shows is that through their political network, the judges were apparently well informed about these hidden intentions and were capable of countering them, at least to a certain extent, with their own diplomatic efforts towards national decision-makers. In fact, their main success in these negotiations was arguably that they managed to alert the five other member states about the French intentions and led them to clearly spell out that they were not willing to revise the original Article 177 of the EEC Treaty in the future. The ECJ thus appears to have been, since its early years, a strategic actor, involved in the institutional battles of the EC and ready to fight for its own institutional interests.

Conclusion

While this chapter could not address the entire period covered in this book for practical reasons,Footnote ⁸¹ it has argued that we should pay greater attention to the personalities that compose the ECJ’s bench of judges. Through careful examination of judge biographies, it has demonstrated that the composition of the bench of judges directly shaped the dynamics that reigned inside the ECJ in the foundational years and the Court’s case law. Few of the seven members of the first ECSC generation of judges initially embraced a federal vision of the Court. Moreover, they suffered from a fragile legitimacy to pronounce ground-breaking constitutional interpretations of the Treaty of Paris. President Pilotti was often absent for reasons of health, and two of the seven judges were not even trained in law. Remarkably, the change in the composition of the ECJ with the addition of Lecourt and Trabucchi in 1962 led to the embracement of the constitutional interpretations of the new Treaties of Rome recommended by the Legal Service of the Commission with a narrow majority favouring the Van Gend en Loos judgment in 1963. However, despite this legal revolution, the Court remained divided on the question of whether it should further push its new constitutional interpretation. It was only after 1967, with the nomination of a third generation of judges that a broader consensus emerged on the need for a dynamic reading of the treaties, which allowed the Court to continue, in a much more forceful way than in the early 1960s, to push the integration process forward through its rulings. The analysis of the judges’ backgrounds demonstrates that the personal pro-European convictions of the third generation played a decisive role in the jurisprudence that the ECJ developed from the end of the 1960s to the mid-1970s.

At the same time, biographical research has also stressed the member states’ role in making the ECJ’s ambitious case law possible through the choices of judges made by the governments in the selection procedure. Two factors allowed the ECJ to uphold and strengthen its constitutional reading of the Treaties of Rome after the revolutionary interpretations in 1963 and 1964. First, in the 1960s, the Court was composed of federalist-inclined European specialists whom the national governments trusted because they had spent decades in national diplomacy. Second, a pro-European consensus reigned in most of the member states during the period analysed here, which meant that national (coalition) governments did not tend to worry too much about the federalist views of the candidates that they selected for positions at the ECJ. This did not, however, mean that the judges were completely exempt from any political ‘attack’ by the governments. Their positions were vulnerable because they had to be renewed every six years. They were also not completely protected from a revision of their powers. France, under Gaullist leadership, considered asking for a renegotiation of the Court’s powers by the end of the 1960s. The ECJ’s political network helped the judges prevent such an attack. Not only did their political connections and network give them a sense of how far they could go in their constitutional interpretation of European law, but it also gave them the possibility to lobby for the renewal of their mandate, as well as the extension of their powers. The composition of the Court hence played a key role in the establishment and the development of the constitutional practice in the 1960s and 1970s, from both a legal and a political point of view.