A. Capital in the EU legal field

It was mentioned in the second section of this article that the EU litigation landscape, including that giving rise to the Court’s constitutional practice, can be characterised as a distinct legal field of transnational magnitudeFootnote ⁶² due to it drawing on national judicial or otherwise rules of procedural and substantive character, alongside the available litigation avenues in the Treaties.Footnote ⁶³ It is also part of the wider European field of power, which in sociological terms represents the overarching ‘locus of the struggle for power between different types of power holders’.Footnote ⁶⁴ As a field, the EU legal field more broadly, as well as that of the Court’s constitutional practice more specifically, comprise a number of stakeholders: the CJEU and its bureaucracy, its national counterparts, litigants and their lawyers, and collective actors and similar organisations.Footnote ⁶⁵ These stakeholders inevitably interacted with each other in the course of the CJEU’s proto-federal jurisprudence.Footnote ⁶⁶ The power dynamics within the afore-mentioned field are – at least partly –determined by the levels of capital each stakeholder possesses.Footnote ⁶⁷

‘Field’ and ‘capital’ are concepts coined by French sociologist Pierre Bourdieu, who acknowledged the existence of a distinct legal field.Footnote ⁶⁸ As mentioned above, capital is a determinant of power within a field. Capital also comes in different forms. However, before setting those out, it is important to first define it. Capital is a twofold concept manifested as the innate force behind social interactions, but also as an underlying principle of society more broadly, acting as a behavioural code instilled in each person through their upbringing, and which pre-determines their disposition.Footnote ⁶⁹ Whomever possesses capital is likely to win the afore-mentioned struggle for power, while it is society and its structures that apportion capital to the stakeholders within a field. In turn, this means that, focusing on the EU legal field, including that of the Court’s constitutional practice, there are some conclusions that can be drawn for the actors involved therein. For example, judges, especially those of the CJEU, due to its position as the final arbiter for EU law matters, are likely to enjoy a, if not the, decisive role in the context of the EU legal field. Likewise, they are likely to hold larger amounts of capital, since they are traditionally perceived as belonging to the dominant class.Footnote ⁷⁰

Despite their interpretative monopoly, decisive role and seemingly abundant capital, judges alone do not determine the outcome of a case before them. Other stakeholders of the legal field exert influence in the judicial process. Bourdieu poignantly observed the following:

Lawyers, therefore, play an important role in the process, as does any other support litigants receive. The litigants’ socio-economic background also influences their access to justice and, mutatis mutandis, the outcome of the judicial process in the EU legal field. The interdependence of these actors is the reason why the capital of each and every one of them matters. Their levels of capital assign their position within the judicial process and the EU legal field more broadly. Capital extends beyond an economic understanding to other forms, such as social and cultural.Footnote ⁷² All forms of capital are interrelated. Economic capital refers to anything that can be translated into monetary value, including property rights. Social capital captures people’s connections, including club or other powerful group affiliations. Finally, cultural capital is threefold and includes mental and bodily dispositions (embodied state), cultural goods (objectified state), and education, qualifications and other skills (institutionalised state).Footnote ⁷³ When a specie of capital is recognised as legitimate, then it constitutes symbolic capital.Footnote ⁷⁴

The three forms of capital might be interdependent, but the salience each bears depends on the field where the stakeholders interact. This is so because ‘a field constructs its own particular symbolic economy in terms of the valorization of specific combinations and forms of capital’.Footnote ⁷⁵ In the EU legal field, this goes beyond a simplified exchange between judges and lawyers to a complicated amalgam of stakeholders in the form of the CJEU, national courts and their bureaucracies, lawyers, supporting actors and litigants. Since the EU legal field consists of actors that fulfil often mutual needs, determining and upholding EU law in the wider sense, then forms of capital beyond its merely economic manifestation might take the lead in influencing the judicial processes and power struggles among them.

Even though economic capital is important for litigants to afford legal representation and contemplate commencement of such proceedings, possessing social capital is equally important for gaining support from collective actors, or liaising with contacts with appropriate expertise. Likewise, symbolic capital in the form of similar – or even better, identical – qualifications or education could help improve the degree of interaction between lawyers and judges. The foregoing is common for all legal settings or fields. In addition to its distinct legalese, the EU legal field presents an additional challenge: the double hurdle of its transnational context, where actors often tend to interact first at a national and then at a supranational level.Footnote ⁷⁶ The accumulation of various forms of capital could result in different degrees of power at each level.

Given that non-discrimination law has been a notable component of European social policy, and considering that during the proto-federal era gender was the main ground of discrimination, apart from nationality, clearly protected under EU law, it would be useful to briefly discuss the gendered dimension of capital. Gender and its dispositions have been considered as always underpinning the various forms of capital, and at the same time constituting a hidden, ‘universal and natural’, form of capital on its own.Footnote ⁷⁷ This duality in the representation of gender in the capital discourse emanates from the societal valorisation of gender per se as a determinant of power in a field on the one hand, and the impact it has on the formation of the traditional forms of capital on the other. In turn, cases of discrimination on grounds of gender tend to involve women, which are traditionally more disadvantaged.Footnote ⁷⁸ To achieve a breakthrough in the field, they need to possess or accumulate adequate levels of one or more forms of capital, which, based on the foregoing, is harder compared to their male counterparts.

More broadly, the stakeholders involved in bringing forward social policy cases before the CJEU were faced with a series of innate obstacles in terms of capital formation and accumulation. The uneven policy trajectory and relatively narrow ambit of the subject matter negatively affected the starting point of anyone wishing to rely on the social acquis to precipitate positive change. Along the same lines, litigants in social policy case-law are traditionally worse off, not only from an economic, but also from a cultural or social capital perspective, than those in internal market cases, not least because they are not backed by financial interests.Footnote ⁷⁹ These factors undoubtedly dampen the breadth of the cases that can be brought before the CJEU, as well as their successful litigation and transformative potential. Yet, in some instances, the afore-mentioned obstacles were overcome, and European social policy case-law managed to shape the proto-federal order of the EU. This could be explained by making recourse to legal mobilisation and minority social influence.

B. Legal mobilisation

Legal mobilisation addresses some of the problems facing individuals or groups wishing to instigate positive change. They might not be able to instigate that change through the policy process because they lack the required combination of capital, but they can litigate their case through the courts. Accordingly, legal mobilisation at EU level could help overcome obstacles or disadvantages at the national level.Footnote ⁸⁰ This is in line with a broad definition of legal mobilisation, which departs from the traditional socio-legal view of the concept to acknowledge its use by a wider range of actors extending beyond social movements.Footnote ⁸¹ Such a broad understanding of legal mobilisation covers instances of strategic litigation initiated by holders of capital, not supporting a social movement per se, but other interests. Giangaleazzo Stendardi and Flaminio Costa, the individuals behind Costa v ENEL, for example, were motivated by favourable views of an expansive understanding of economic freedoms and an activist belief in the European rule of law.Footnote ⁸²

As a bottom-up mechanism of instigating change, legal mobilisation is not immune to the implications of capital. Litigants like Costa, other Euro-lawyers, or some of the companies engaging in internal market litigation are at a better starting point than Gabrielle Defrenne, due to the attributes of capital they possess. The former, enjoying higher overall levels of capital due to their know-how, standing, connections or money, have an advantage over the latter, enjoying some of the benefits that Galanter identified as going hand-in-hand with the so-called ‘haves’ or ‘repeat players’.Footnote ⁸³ These advantages include past experience, resources, lobbying and informal institutional relations, increased credibility and not being risk averse more generally.Footnote ⁸⁴ On the other hand, the so-called ‘have-nots’ or ‘one-shotters’, individual litigants at the bottom end of the capital continuum, need to push hard and mobilise strategically to increase their levels of capital, and, consequently their chances of success.

The social policy case-law is an area where ‘one-shotters’ abound. The litigants themselves are often marginalised and disadvantaged, with the exception of the odd trade union or other institutional or collective actor. For these litigants, supported legal mobilisation through strategic litigation is key. Support by what would have otherwise been repeat players, such as interest groups, activist lawyers, trade unions or other institutional and organisational actors ‘can give individuals who would normally pursue just “one shot” in court the advantages of repeat players’.Footnote ⁸⁵ This form of supported legal mobilisation, akin to that undertaken by social movements, has provided disadvantaged actors within the EU legal field with avenues for effective legal representation, resources, specialisation and networks, which effectively increases their capital, in particular its social and cultural forms.

Non-discrimination law, in particular, is a poster child for legal mobilisation. Ever since the emergence of second-wave feminism in the late 1960s and 1970s, European feminists, acting as an advocacy coalition, pushed for policy change at EU level to tackle, among other issues, discrimination in the workplace.Footnote ⁸⁶ These feminists saw the CJEU as the institution capable of enforcing working women’s rights derived from EU law in their respective Member States.Footnote ⁸⁷ To achieve that, they sought test cases, with the most famous among them being that of Gabrielle Defrenne.Footnote ⁸⁸ The next section of this article examines the Court’s seminal judgment in Defrenne II in detail. Feminist lawyers, public interest groups or equality bodies brought additional capital to disadvantaged women litigants, enabling them not only to bring their cases forward, but to have a viable chance of success.Footnote ⁸⁹ Success in that context even resulted in changes to national legislation.Footnote ⁹⁰

A form of transnational activism, legal mobilisation in European social policy case-law has enabled ostensibly weak actors to push their claims through and instigate positive change for themselves and the proto-federal legal order of the EU.Footnote ⁹¹ Legislative change at the national level as a result of successful mobilisation leading to and following up on a CJEU judgment, for example, buttresses the enforcement of EU law, developing the Court’s constitutional practice. Indeed, Schmidt sees constitutional change throughout the EU as ‘the significant prize of successful litigation’.Footnote ⁹² The constitutional change was achieved indirectly. The claims that social policy litigants raised in this supported mobilisation landscape, in turn, permitted the Court to enrich its constitutional practice of European law.Footnote ⁹³

At this point, one may ponder on the motivations behind lending support to social policy litigation. Why did support emerge for this strand of legal mobilisation that resulted in such profound constitutional ramifications? Although better perceived as a continuum rather than binary, actors supporting such mobilisation harboured both internal and external motives vis-à-vis the subject matter. Social policy cases represent a good example of altruistic mobilisation, a fertile ground of cause-lawyering to improve conditions in the labour market, social protection and welfare across the EU.Footnote ⁹⁴ Identity politics is another selfless reason why certain collective actors, trade unions, equality bodies or other similar organisations, intervene and support litigation in the field. On the other hand, advancing European integration more broadly is a distinct external motive, deeply associated with Euro-lawyers. The latter example of mobilisation is less about the substance of the case from a social policy perspective, and more about its potential for constitutional change, developing the proto-federal order of the EU.

The combined capital of those litigating social policy case-law is undoubtedly increased through legal mobilisation, no matter its motives. Although it is difficult to decipher the variations of legal mobilisation in detail,Footnote ⁹⁵ this article offers an understanding of its effectiveness in the specific context examined herein through the concept of minority social influence. Despite their prima facie lower levels of capital, actors involved in social policy litigation at EU level are empowered by legal mobilisation to successfully pursue their claims and, at the same time, they end up influencing the Court’s constitutional practice of European law as a result. In this context, minority social influence offers an explanation of the transformative – in constitutional terms – impact of social policy case-law, despite it being a resource-lite – at least in terms of material resources and economic capital – area of mobilisation.

C. Minority social influence

Minority social influence, a concept coined by French social psychologist Serge Moscovici,Footnote ⁹⁶ is ‘a form of social influence in which the deviant subgroup rejects the established group norm and persuades the majority to the minority attitude, opinion, belief, or behaviour pattern, thereby changing the norm’.Footnote ⁹⁷ To contextualise this definition, in social policy case-law the deviant subgroup is comprised of the claimants and any other stakeholders that support them (lawyers, activists, national courts, organisations, etc). The term ‘deviant’ should not be perceived as having a negative connotation, but purely as denoting marginalised social groups with limited resources and capital, termed active minorities, a broad group including – but not limited to – social and scientific movements, whose common thread ‘is the tendency to seek visibility, to forge an identity, to convert the majority to their ideas and beliefs, in short, to change the groups or societies to which they belong’.Footnote ⁹⁸ Similarly, the established group norm in the examined context is the traditionally held view, especially until the Treaty of Maastricht, that social policy-making sits at the margins of European integration compared to other areas, being primarily located within the realm of the Member States’ competence. As such, social policy was prima facie unlikely to contribute to the Court’s constitutional practice. Indicatively, until the end of 1975 only two cases had been lodged before the CJEU falling under the social policy subject matter, Defrenne I and II.

The preceding analysis constitutes an abstract construction of the mainstream view. More specific manifestations of it arise in each dispute adjudicated before the CJEU. To give some examples, the majoritarian view prior to Defrenne II was that it was debatable that the wording of Article 119 of the Treaty establishing the European Economic Community (EEC), one of the then few social policy provisions, could be enforced in horizontal situations to benefit disadvantaged women claimants.Footnote ⁹⁹ Likewise, workarounds to the lack of horizontal direct effect of Directives, the core legislative instrument of EU policy-making in labour and non-discrimination law were not systematically developed prior to Von Colson and Harz. Finally, before Francovich it was unlikely that non-compliance with a Directive on the insolvency of the employer would give rise to state liability, and avail a precise remedy for litigants, eroding the principle of national procedural autonomy.

Minority social influence offers fresh insights for the EU legal field, by plausibly establishing a link between the emergence of social policy case-law, which was supported by legal mobilisation, and the impact that this had on the development of the proto-federal order of the EU. This is because the European social policy case-law stakeholders, representing the minority in the popularity of their views and accumulation of capital, managed to influence the majority, the capital holders that represent the institutionalised majority. In the EU legal field, the majority would include the Court and other EU institutions, as well as stakeholders that uncritically side with the dominant views, such as (some of) the Member States.

Against this backdrop, a pressing question lingers. How does the minority manage to persuade the majority of its views? A minority will be successful if it ‘has a clear view of reality, is committed to its view, and is unwilling to yield or compromise with respect to its position’.Footnote ¹⁰⁰ If these qualities exist, then the minority is likely to exert influence on the majority through the validation process, wherein the majority is keen to understand and ascertain the minority’s arguments, becoming more receptive to the latter.Footnote ¹⁰¹ This is possible because active minorities are the key drivers of innovation, which, together with the majority’s erring on conformity, underpin decision-making processes.Footnote ¹⁰² The innovation in the examined field rests on the efforts to rely on the fragments of the European social policy acquis, centred on labour and non-discrimination law, to induce change. Although the end-goal of the minority is not always to induce a constitutional change, their innovative approach might entail new readings of EU law that mutatis mutandis helped propound the Court’s proto-federal jurisprudence.

A problem that these active minorities, such as the actors involved in litigating European social policy, are faced with is lack of – mainly economic – capital or resources. Although having economic capital in abundance would undoubtedly help such minorities, they have successfully devised alternative strategies to succeed through innovation.Footnote ¹⁰³ Indeed, such a pattern has been observed in the field of legal mobilisation. Actors with low levels of capital associated with material resources resorted to strategies that drew on non-material resources and non-economic forms of capital for their claims to succeed.Footnote ¹⁰⁴ Active minorities’ constant struggle for innovation as telos, framed as a committed and uncompromised endeavour, is the main route for them to have their voice heard and achieve policy and societal change. The concept of minority social influence does not involve a forced compliance mechanism.Footnote ¹⁰⁵ Instead, it seeks to influence the majority’s behaviour, hoping to achieve attitude change, reflected in policy and judicial decision-making outcomes. The risk remains, though, that the intended outcome may never materialise.

Studies have shown that innovation exerted through minority social influence tends to produce change, which is mostly covert or private, leaving additional hurdles for the active minorities to overcome in order to ensure that change eventually materialises in the public sphere too.Footnote ¹⁰⁶ Nevertheless, in the legal field, their influence already seems to extend to the public sphere because judges can become allies to active minorities. Bourdieu noted that ‘through the more or less extensive freedom of interpretation granted to them in the application of rules, judges introduce the changes and innovations which are indispensable for the survival of the system’.Footnote ¹⁰⁷ Even though the motivation behind the commitment to change may differ, judges’ attitudes may still support an active minority’s innovative agenda, especially if it helps serve their own. Likewise, through legal mobilisation, a small minority, as in the single unit of the European social policy claimant, is supported to become an active one,Footnote ¹⁰⁸ with its voice being amplified as a result, subsequently increasing that minority’s accumulation of various forms of capital.

In the context of the article’s case-study, it is important to underline that minority social influence remains relevant and can continue to act as part of the explanatory framework even if the minorities teaming up to pursue a case do not share the same objectives or motivations. The same applies in regard to the objectives and motivations of the majority. They do not have to allign with those of the active minority. By way of illustration, there might be different underlying motivations from the part of the CJEU for accepting the minority’s position. Such motivations could be self-serving like the aggrandisement of its role, for example, as opposed to a desire to advance and enforce gender equality per se, which could be the objective sought by the minority. This does not render minority social influence irrelevant, but it rather means that the innovation brought forward by the minority should also act as a tool to serve the motivations of the actors representing the majority. What is, thus, required is some behavioural alignment between the two sides for the minority position to be eventually satisfied by being relied on, and by simultaneously acting as an acceptable vehicle serving (part of) the majority’s own motivations to innovate.Footnote ¹⁰⁹

Drawing parallels to the prerequisites for litigation to precipitate policy change,Footnote ¹¹⁰ what is required for the framework to work in the field of the Court’s constitutional practice is: a) a network of actors constituting a powerful minority, b) the latter’s desire to innovate by relying on European social policy for whatsoever motive, c) national courts’ use of the preliminary reference procedure, and d) eventual alignment between the innovation proposed by the minority and the Court’s receptiveness to it. It does not mean that whenever these conditions are met, minority social influence would have played a role, but that in these circumstances, and upon further engaging with the particulars of each case, minority social influence might be a persuasive tool to add to the narrative used to examine the Court’s proto-federal judgments.

A. Defrenne II: the textbook case

Defrenne II is arguably the pre-eminent case of European social policy and its non-discrimination strand more specifically. It enshrined in EU law the principle of equal pay for equal work between men and women, laid down in what was then Article 119 EEC. At the same time, the case contributed to the proto-federal legal order of the EU. The Court explicitly spelled out the existence of horizontal direct effect: the ability of individuals to rely directly on a provision of EU law, even against another private party.Footnote ¹²⁴ The constitutional implications of the judgment were immense. The CJEU, by fleshing out the specifics of direct effect further, accepting its horizontal application, contributed the final piece of the puzzle regarding the enforcement of EU law, broadening significantly the pool of situations where individuals could make use of the preliminary reference procedure.Footnote ¹²⁵ Although previous judgments paved the way and hinted at the existence of horizontal direct effect,Footnote ¹²⁶ it was in Defrenne II that the Court handed down a fully realised conceptualisation of it, framing it as a positive right in the face of a narrowly worded provision seemingly addressed to the Member States.Footnote ¹²⁷

The foregoing shows what propelled Defrenne II to be a textbook case for horizontal direct effect and the affirmation of a cornerstone principle of EU law alike. Yet, it is also the textbook case of strategic litigation through legal mobilisation with a litigant successfully relying on EU law to pursue their claims.Footnote ¹²⁸ But how did Gabrielle Defrenne, a flight attendant for the then Belgian flag carrier SABENA, manage to precipitate a change of such magnitude? On the face of it, a woman in a precarious job, fired at the age of 40, as opposed to 55 for her male counterparts, must have been situated at the lower end in terms of capital accumulation, no matter which form. The most obvious route of support, and mobilisation, the trade unions, was not an option for her, or her women co-workers.Footnote ¹²⁹ For them, a professional organisation was in place, ‘for some time unrecognised as a social partner by management and other unions’, which later became formally known as the Belgian Corporation of Flying Hostesses (BCFH).Footnote ¹³⁰ Amongst their series of actions, they sought a test case to reach the courts. Defrenne, willing to fight her dismissal,Footnote ¹³¹ but not to take an active role publicly, stepped forward.Footnote ¹³²

Defrenne, herself a minority due to her low levels of capital, paired up with an active minority, BCFH, to gain adequate representation and support, and to improve the chances of her claim succeeding in court. Nevertheless, due to its non-recognition as a trade union, the position of BCFH was relatively weak. It was still an outsider in industrial relations and the EU legal field more broadly. Nevertheless, BCFH’s standing as a feminist organisation, provided it with cultural and social capital, and helped it find the right lawyers for the claim, Éliane Vogel-Polsky and Marie-Thérèse Cuvelliez, active in the feminist movement, cause-lawyering and academic community, and long known to each other since university.Footnote ¹³³ Inspired by the women’s strike at the Belgian weapons factory Herstal, Vogel-Polsky saw the opportunities that a horizontally directly effective Article 119 EEC would create and teamed up with Cuvelliez to look for a test case, which they found in Defrenne.Footnote ¹³⁴

Vogel-Polsky and Cuvelliez boosted Defrenne’s chances considerably.Footnote ¹³⁵ They were insiders of the (EU) legal field and, in advocating for women’s protection and empowerment, sided with the agenda of BCFH, together constituting a potentially powerful active minority, with increased levels of all forms of capital, and mobilised to make use of the EU legal arena. Moreover, according to social psychology, a minority will succeed in exerting influence if it is aware of the reality, committed to its view and unwilling to compromise.Footnote ¹³⁶ At an interview, Vogel-Polsky noted that, even before the case was brought, she was convinced that Article 119 EEC was capable of direct effect, but was repeatedly dismissed as a professional feminist by Euro-lawyer colleagues.Footnote ¹³⁷ She alone could not push for change. She needed a case, and further support, which she found in her feminist comrades, women workers and their associations, such as the BCFH, and finally Defrenne as the ideal test case. Precipitating change turns, therefore, into a collective endeavour for someone who wants to innovate.

Here, the innovation propounded by the team behind Defrenne II was simple: to rely on EU law for the protection and promotion of the rights of women workers, being disregarded at the national level. Vogel-Polsky and Cuvelliez sought to achieve this by taking advantage of the emerging constitutionalisation of the EU by the Court. Indeed, Vogel-Polsky admitted that she was convinced of the CJEU’s fundamental role because, in her view, the supranational mechanisms (direct effect and supremacy) that supported the creation of the proto-federal order and which were coined by the Court, signalled an institution that was willing not simply to reiterate the law, but to create it.Footnote ¹³⁸ This, together with the overall attitude of the Court’s stakeholders, who strived through their interpretation of the law to create a European consciousness, inspired her to pursue strategic litigation and cause-lawyering.Footnote ¹³⁹ There were signals that this group might be receptive towards innovation, recalling Bourdieu’s observations about judges and their desire to innovate.Footnote ¹⁴⁰ In fact, it has been noted that the Court in Defrenne II engaged ‘in an absolutely original approach’.Footnote ¹⁴¹

At this stage, it seems that the requirements for this famous social policy case to contribute to the judicial constitutionalisation of Europe were met. There was an active minority of various actors (claimant, professional organisation, lawyers) that wanted to innovate, which, allied together, increased their levels of capital. In addition, Defrenne II was a clear example of mobilisation, where altruism and identity politics on behalf of BCFH, Vogel-Polsky and Cuvelliez were instrumental in bringing the case forward.Footnote ¹⁴² However, the process of persuading the majority to side with their view took time. Defrenne was more of a saga, resulting in three judgments by the Court. The first,Footnote ¹⁴³ in 1971 against Belgium,Footnote ¹⁴⁴ was a failure.Footnote ¹⁴⁵ The Court found that statutory pensions did not fall within the definition of pay under Article 119 EEC, despite the sympathy expressed by the Advocate General assigned to the case.Footnote ¹⁴⁶

As an active minority exhibiting the prerequisites for successful minority social influence, they persevered. The fact that preliminary references were sent to the CJEU by the Belgian courts was an early sign of success, at least in terms of their mobilisation effort. The second was the sympathy of Advocate General Dutheillet de Lamothe, assigned to the first Defrenne case, and his hinting that Article 119 EEC was directly effective, something that was used by the claimant’s lawyers in Defrenne II.Footnote ¹⁴⁷ The intervening years between the two CJEU judgments (1971–1976), during which Europe witnessed the rise of second-wave feminism, widespread industrial action in the form of strikes and the institutional commitment to social policy at the EU level, constitute the third.Footnote ¹⁴⁸ These show how actors within the legal field could interact and influence each other. Cuvelliez herself noted that Defrenne II was ostensibly taken much more seriously from the outset.Footnote ¹⁴⁹

The Court was likely persuaded due to the increased capital of everyone involved in supporting Defrenne’s case, their mobilisation and conformity to the requirements for successful minority social influence. Their commitment to innovate succeeded in precipitating change, but this took time. The Court was also influenced by the social reality, which in turn helped the latter to better understand the claimant’s position.Footnote ¹⁵⁰ In addition, the Court’s prior engagement in the constitutionalisation of the EU might have made it easier for it to eventually find that Article 119 EEC was capable of horizontal direct effect. Research in the archives of the case has shown that the Court ruled out the Commission’s argument about a distinction between private and public sector employees, disregarding the views of this powerful player in the EU legal field.Footnote ¹⁵¹

The judgment represented an important breakthrough on behalf of everyone involved in the case, and its significance for both European social policy and the proto-federal legal order is undeniable.Footnote ¹⁵² In relation to the more tangible aspects of the case, though, the Court yielded to the economic arguments by the intervening Member States, mainly the UK, rejecting the retroactive application of the principle, which meant that Defrenne still suffered a material loss.Footnote ¹⁵³ Even though the explanatory framework and its components showed how this landmark social policy ruling contributed to an overall positive outcome alongside the further elucidation of the Court’s constitutional practice, this was restricted in practical terms to future cases. This outcome confirmed the role capital plays, by showing that being a minority, no matter how active and mobilised, still amounts to being disadvantaged compared to the ever-so powerful Member States.

B. Von Colson and Harz: the underdogs

In contrast to Defrenne II, the Von Colson and Harz judgments are rather subdued, with less academic commentary surrounding them. Nevertheless, they left their mark as seminal judgments of the so-called second wave of constitutionalisation.Footnote ¹⁵⁴ The latter revolves around the creation of doctrines, such as indirect effect and state liability, which further empowered national courts by providing them with ‘enhanced means of guaranteeing the effectiveness of [EU] law’.Footnote ¹⁵⁵ Furthermore, the judgments showcase the dynamic application of the analytical framework depending on the type of social policy case in question. Here, key actors that played an instrumental role in the trajectory of the case were not the claimants’ activist lawyers or a civil society organisation, but, instead, national first instance courts. It was a different kind of mobilisation, with seemingly more powerful allies, in terms of the afore-mentioned actors’ standing and accumulation of capital in the legal field.

The Court in Von Colson introduced the doctrine of indirect effect, also known as the principle of harmonious interpretation. The doctrine crystallised a duty falling on the Member States, including national courts, to interpret relevant domestic law in light of EU law, insofar as possible.Footnote ¹⁵⁶ It helped overcome issues of enforcement of provisions of EU law that did not fulfil the direct effect conditions and has been widely used as a workaround to the lack of horizontal direct effect of Directives. Additionally, indirect effect reinforced the perception of national courts as EU courts.Footnote ¹⁵⁷ Harz was an almost identical judgment that was handed down on the same day.Footnote ¹⁵⁸

Sabine Von Colson and Elisabeth Kamann were female social workers who applied for positions at the Werl prison in the German state of North Rhine-Westphalia. Despite them being qualified, their applications were rejected on grounds of their sex, officials claiming that it would be risky to appoint women to work in a men’s prison.Footnote ¹⁵⁹ In Hamburg, Dorit Harz found herself in a similar position. A business graduate, she applied for a position at the private company Deutsche Tradax, but was informed by the manager that they would only consider men, due to the market in agricultural raw materials being male-dominated, coupled with the company’s strong presence in Saudi Arabia.Footnote ¹⁶⁰ The weak societal position of the claimants in terms of capital is obvious.Footnote ¹⁶¹ As women looking for employment, their economic capital was likely low. Despite being qualified, their gender put them at an undue disadvantage in the job market, recalling the gendered dimension of capital, including in its cultural and social forms.

The problem that led to the preliminary references before the CJEU was not the finding of discrimination on grounds of sex, which the national courts in Hamm and Hamburg established had taken place. Instead, it was that the national legislation setting out the available sanctions for victims of discrimination in recruitment under §611a II BGB (German Civil Code) provided only minimal compensation in connection with the application stage.Footnote ¹⁶² Apart from its inability to act as an incentive to eliminate discrimination on grounds of sex in recruitment, the national courts were wary of the paragraph’s compliance with EU law, namely Directive 76/207/EEC, for whose transposition it had been enacted. This is what prompted the almost identical references, which gave rise to this cornerstone principle. Created by the CJEU as a way to compensate for the lack of direct effect of the Directive’s provision at issue,Footnote ¹⁶³ the conceptualisation of indirect effect was, moreover, accompanied by a constitutional reasoning relying on the principle of sincere co-operation,Footnote ¹⁶⁴ which in turn enriched the Court’s jurisprudence shaping up the proto-federal order of the EU.

Similar to what was the case when analysing Defrenne II, the aim of this section is not to offer a detailed account of the cases, which already exists, but to apply the explanatory framework so as to decipher what was so special about them that led the Court to hand down a judgment with constitutional implications. This becomes an even more interesting question if one considers the litigants’ low levels of capital as women who suffered discrimination. Unlike Defrenne II, where a lot has been written about the actors who supported the claimant, there is not as much information available in relation to Von Colson and Kamann, or Harz. The Harz judgment mentions that the regional department promoting equality for women (Leitstelle Gleichstellung der Frau) requested an explanation from the company, but at the ‘instigation of the plaintiff’.Footnote ¹⁶⁵ Consequently, it appears that there was no well-orchestrated effort to support the claimants – at least not overtly. In Germany, campaigns by organisations such as the afore-mentioned regional department were generally disregarded at that time, highlighting weak levels of capital and mobilisation more broadly.Footnote ¹⁶⁶

However, the question remains: how were Von Colson, Kamann and Harz able to precipitate paradigmatic change through their cases? It seems they acquired a different ally: the national courts adjudicating their claims. German courts had been especially active in bringing references on matters of EU equality case-law. Unlike other jurisdictions, such as the UK, first instance labour courts played an active role in taking advantage of the preliminary reference procedure, representing the majority of German references on gender equality in the 1980s and 1990s.Footnote ¹⁶⁷ Von Colson and Harz originated in two of these courts: the first instance labour courts of Hamm and Hamburg respectively. Apparently, there was some court-based mobilisation in place.

This court-based mobilisation stemmed from a form of inter-court competition characteristic of Germany, which allowed the lower courts there to pit the CJEU’s approach to gender quality against that of the Federal Constitutional Court, or other higher courts for that matter, and, contrary to other jurisdictions such as Italy and Spain, to choose the CJEU approach as the way forward.Footnote ¹⁶⁸ The inter-court competition could open up avenues for litigants and their lawyers, by making non-economic forms of capital more influential in the judicial decision-making process. Lower courts in Germany have been seen as occasional rebels to higher courts’ judgments,Footnote ¹⁶⁹ which, in turn, could render them more receptive to novel claims by minorities and, consequently, the perfect arena for legal mobilisation. Indeed, when comparing lower labour courts ‘with active judges and lawyers’ in Germany to their UK counterparts, Kilpatrick characterises them as ‘innovative protagonists in preliminary reference dialogue and interaction with EC sources’.Footnote ¹⁷⁰ Their receptiveness to innovation denotes how minority social influence can explain the outcome in Von Colson and Harz. Judicial support, no matter its underlying motives, also increased the minority’s levels of non-economic forms of capital in the legal field.

The court-based mobilisation was undoubtedly beneficial to the claimants. National courts were key in ensuring that their cases reached the EU legal field. At the same time, they constituted an actor within that field, according to earlier developments in the CJEU’s constitutional practice. The motives behind this mobilisation were likely mostly external. National courts must have wanted to ensure effective remedies for victims of discrimination. Indeed, the first instance labour court in Von Colson appeared to have inserted a pre-emptive statement of its position regarding the type of compensation that would be appropriate.Footnote ¹⁷¹ The court in Harz also discussed leaving out §611a II BGB in favour of a remedy found elsewhere in German civil law.Footnote ¹⁷² This approach can be perceived as a methodological tool on behalf of the national courts in their attempt to influence ‘the ensuing supranational legal debate and interpretation’.Footnote ¹⁷³ The CJEU, especially in the first decades of its jurisdiction, was receptive to such tactics, to encourage the use of the preliminary reference procedure.

The Hamm and Hamburg first instance labour courts, therefore, not only mobilised but made themselves part of the minority, ‘attempting to circumvent a national provision clearly at odds with [EU] obligation in circumstances where the legislature has so far failed to amend the law’.Footnote ¹⁷⁴ Given their depiction as rebels and their position in the judicial hierarchy, they were in a way a minority, with aligned interests, but perhaps different motives, with the minority formed by the litigants and their lawyers in instigating change. The two labour courts also employed a pattern characterised by Kilpatrick as same-issue repetition.Footnote ¹⁷⁵ Indeed, the same issue was referred only months apart by labour courts located in different cities, in different Länder. Finally, when the judgments by the CJEU were handed down, German labour courts entered into a dialogue with each other ‘on the possibilities for judicial action within the terms of the German Civil Code’,Footnote ¹⁷⁶ as a result of the newly minted interpretative obligation that formed the basis of indirect effect.

This sequence of events frames a concerted effort by the national courts which is not limited to isolated examples. The combination of the pre-emptive framing of references in Von Colson and Harz and the same-issue repetition pattern both point to tactics falling within the minority social influence paradigm:Footnote ¹⁷⁷ namely, belief in a cause, perseverance and attempts at innovation by hinting at the desired end result, prompting the CJEU to find a way to achieve it. The Court responded positively to this call for innovation by adopting a new approach, manifested in the creation of another doctrine of constitutional magnitude.Footnote ¹⁷⁸

The first instance labour courts were instrumental in enabling the claims of Von Colson, Kamann and Harz to precipitate change. Alongside them, there was a wave of legal mobilisation that dominated the CJEU at that time, and which boosted the non-economic forms of the litigants’ capital. Inspired by its judgment in Defrenne II, whose significance activists made sure to spread across Member States, ‘individuals and legal activists created the subsequent opportunity for the [CJEU] to further expand and elaborate these rights’.Footnote ¹⁷⁹ National courts, at least in cases such as Von Colson and Harz, were taking part as active stakeholders in this arena of women’s transnational activism.Footnote ¹⁸⁰ The result was yet another powerful judgment.

As ever, when first bringing a constitutional principle to light, the CJEU was somewhat Delphic, but the seeds for further elaboration were sown.Footnote ¹⁸¹ The fact that Harz, a case involving a private employer, was not distinguished also paved the way forward for the use of the doctrine as a workaround to the lack of horizontal direct effect of Directives, hinting at the limitations of active minorities in fully controlling the outcome of their case. Both judgments were a victory for the litigants, who received appropriate compensation. They also represented an important moment for EU law, by allowing the Court to further elucidate crucial elements of the proto-federal order. Lastly, Von Colson and Harz showed how, even without substantial capital or well-orchestrated support at the pre-litigation stage, mobilisation can still occur through other stakeholders in the EU legal field, the national courts and minority social influence coming to play in such a context.

C. Francovich: the Last Supper

The final judgment that rounds off the analysis, Francovich, is more widely accepted as a landmark one, at least in comparison to Von Colson and Harz. Francovich prompted the Court to conceive yet another constitutional doctrine, that of state liability for breaches of EU law. The doctrine further empowers the private enforcement of EU law, by creating a remedy that until that point was not explicitly spelled out in the Treaties.Footnote ¹⁸² In doing so, the Court followed its teleological interpretation of the Treaties, similar to Costa v ENEL and Van Gend en Loos, on which its reasoning in Francovich elaborated, rendering the latter their ‘ultimate consequence’.Footnote ¹⁸³ It is characterised as the ‘Last Supper’ case of the case-study since it is widely perceived as the final judgment of the Court during the heyday of its proto-federal jurisprudence. Moreover, in English language textbooks of EU law, it also seems to have been superseded by Brasserie du Pêcheur.Footnote ¹⁸⁴

Similar to Brasserie, Francovich also consisted of joined cases. On the one hand, there was Andrea Francovich, who was owed part of his wages by his former employer, CDN Elettronica, and was unable to enforce a prior judgment against the company since the bailiff assigned by the national court to collect the money was forced to submit a negative return.Footnote ¹⁸⁵ On the other hand, there was Danila Bonifaci, with 33 co-workers. They had worked for another insolvent company, Gaia Confezioni, and discovered that, despite their wages owed having been proved as debt in the insolvency process, it was unlikely they would receive any of them.Footnote ¹⁸⁶

The cases were lodged in neighbouring tribunals in the province of Vicenza. Not only that but the questions put forward before the CJEU were identical. The subject matter, although located within the realm of European social policy is also different from Defrenne II, Von Colson and Harz, in that it moves away from non-discrimination to stricto sensu employment law, namely Directive 80/987/EEC and the protection of employees in the event of the insolvency of the employer, which Italy had failed to implement.Footnote ¹⁸⁷ The claimants here, workers whose wages were at least partly unpaid, continue the pattern of underprivileged litigants with limited amounts of mainly economic, but also likely other forms of, capital. Contrary to the preceding cases though, there is a male worker in the case of Francovich and a sizeable group of workers in Bonifaci, which was likely to put them at a better starting point, compared to Defrenne, Von Colson, Kamman and Harz. If nothing else, they had more power in numbers.

The proximity of tribunals and the fact that the questions referred were identical hint at an underlying mobilisation effort, which was instrumental in increasing the litigants’ social and cultural capital. Looking at the text of the judgment, one observes that the parties in both cases were represented by the same lawyers: Claudio Mondin, Aldo Campesan and Alberto dal Ferro of the Vicenza Bar. This is certainly not a coincidence. Indeed, Bartolini and Guerrieri note that Francovich was akin to a fictio litis, a case framed in such a way to prompt the national courts to make a preliminary reference to the CJEU.Footnote ¹⁸⁸ The Italian lawyers actively sought the involvement of the CJEU in that case. In an interview, Campesan and Dal Ferro were candid about their intentions when putting the case together: ‘there are times when European judges limit themselves to being “notaries”, and take note of certain events; yet there are also others, in which they feel a deep urge towards the development of new principles: we were well aware that the latter was the case at that juncture, and that it could be turned to our favour.’Footnote ¹⁸⁹ They saw litigation before the CJEU as an opportunity, hinting at how an active minority could influence the latter. Although not supported by a civil society organisation, such as Defrenne, it was still a form of legal mobilisation, despite the fact that ostensibly it is not a stereotypical case of cause-lawyering, which is usually deployed on the basis of altruistic motives to aid disadvantaged litigants.

From the information available, at least two of the lawyers, Campesan and Dal Ferro, graduated in law from the University of Padua in the mid-1980s. The university was one of the few in Italy at that time where a specialised course in EU Law was offered. Campesan and Dal Ferro not only attended this course but also wrote their dissertations in that area.Footnote ¹⁹⁰ It seems that their belief in the transformative potential of EU law was ingrained in them by their professor, Paolo Gori, who had been a référendaire at the CJEU for 20 years (1958–1978), assigned to the three Italian judges.Footnote ¹⁹¹ One of them, Alberto Trabucchi, was also a former law professor at the University of Padua.Footnote ¹⁹² Trabucchi was one of the judges in Van Gend en Loos, one of the pre-eminent judgments that propelled the judicial constitutionalisation discourse to fame, as well as the Advocate General in Defrenne II. As a référendaire involved in the making of Van Gend en Loos, Gori played the role of activist by proxyFootnote ¹⁹³ and was part of the Court’s legal revolution.Footnote ¹⁹⁴ This context must have certainly been instrumental in forging Francovich and Bonifaci’s lawyers’ pro-European views.

Having a good understanding of EU law, a commitment to European integration and strong views on the opportunities they presented for litigation certainly equalled increased levels of cultural capital, of the kind that would prove useful in navigating the EU legal field, in light of the reluctance by the national courts hearing the cases to submit the preliminary references to the CJEU.Footnote ¹⁹⁵ In framing their arguments, they used their specialist knowledge to focus on ensuring compliance with EU law and, more specifically, Directives, whose non-implementation was a pressing issue.Footnote ¹⁹⁶ This EU-centred motivation in bringing the case forward denotes a strand of legal mobilisation based on external factors, which proved to be beneficial to the outcome of the case. Anecdotally, Campesan and Dal Ferro assert that their accumulated capital helped them mobilise and find an ally in Giuseppe Federico Mancini, the then Italian judge at the CJEU, a prominent labour law scholar with pro-European attitudes, whose views Francovich ostensibly echoed.Footnote ¹⁹⁷

The foregoing passages paint a picture of an emerging form of mobilisation that transcended national boundaries. Moreover, the same-issue repetition found in the identical framing of the references is a sign of commitment to their goal. The latter is characteristic of active minorities, according to social psychology. Likewise, the lawyers representing this active minority wanted to innovate. They must have sensed that the claimants’ circumstances, constituting a clear example of injustice suffered because of non-compliance by a Member State with EU law, could be utilised as a powerful mechanism to gain the sympathy of the Court.Footnote ¹⁹⁸ In other words, they had a clear view of the (legal) reality, they were committed to relying on state liability, and finally, unwilling to compromise by not pushing for the cases to reach the CJEU, or by looking at conventional and well-established remedies, all quintessential ingredients for a minority to exert influence on the majority.

Moving on to the legal front, although the lawyers’ first question began by inquiring about the possibility of relying on the direct effect of the Directive against the Member State that had failed to implement it, perhaps trying their luck but deep down knowing it was likely to fail, they put forward an alternative, making an open plea to the CJEU to continue building its role as guarantor of the effectiveness of EU law, by instituting an additional enforcement route for individuals.Footnote ¹⁹⁹ Their closing statement is telling:

In putting forward their plea for innovation to the Court, they made sure it reverberated with the Court’s objectives and agenda for moving European integration forward.Footnote ²⁰¹ This proved a successful strategy for their claimants, as well as the proto-federal order, resulting in the doctrine of state liability and, consequently, demonstrating a good example in successful minority social influence. As Ross observed, beyond granting individuals across the EU a right to reparation, in Francovich, ‘the Court has taken a significant step towards giving individuals the right to have the [EU] run in accordance with its constitution as developed by the Treaty and judicially-defined fundamental principles’.Footnote ²⁰² Francovich kicked off as a fictio litis, which ended up becoming a social policy case of constitutional magnitude, perhaps the last big bang judgment completing the proto-federal order of the EU.Footnote ²⁰³ Looking back, Francovich’s potential may have actually been too powerful, with the Court having to limit its scope later, coinciding with the end of the heyday of its proto-federal jurisprudence.Footnote ²⁰⁴