It is only in the last decade that a productive ‘discovery’ of the Court of Justice by legal historians and sociologists has occurred. Legal historians have sought to ‘identify the best possible documentary and oral evidence to analyse the historical processes that shaped European public law’ (Rasmussen). Sociologists have instead stressed the fabrication of EU law and the legal entrepreneurs who played key roles: the lawyers, the legal services of the institutions, the référendaires and the routines and networks they establish. Such work productively destabilises existing narratives of EU law produced by legal scholars and political scientists. Yet the archival sources used to develop such work have, given their very recent opening, not been those of the Court of Justice itself but mainly personal archives or accounts, and the work done to date has almost exclusively focused on just two cases: Van Gend en Loos and Costa v ENEL.
We wish to approach the Court of Justice archival material through a broad selection of its cases concerning a variety of areas: free movement of workers; free movement of goods; gender equality; access to justice; external relations; and competition law.
© HAEU / Details from the dossiers of Consten and Grundig and Defrenne II.
Our hypothesis is that EU legal scholars, legal historians and sociologists can together productively approach these valuable new archival sources and exploit the extensive material found in the dossiers de procédure of the Court of Justice. The project aims to demonstrate the opportunities and challenges the dossier de procédure present for relevant academic communities and lay solid foundations for ongoing work as more cases are released.
Strikingly, the Court of Justice judgment constitutes a very small portion of each dossier. Instead, the dossiers contain information about parties, their lawyers, the presentation(s) of the facts, sources that draw on national legal categories and legal scholarship to shape Community Law in a particular dispute, interim proceedings, the many steps of internal court management including decisions on who might intervene before the Court of Justice, assignment of cases to different members of the Court and how the oral hearing interacts with the written procedure.
© HAEU / Details from the dossiers of Consten and Grundig, Meroni and Cassis de Dijon.
EU legal scholars have the technical know-how to deconstruct the filters through which the ‘raw material’ of ‘facts’ and ‘law’ are passed to produce a judgment. At the same time this exercise sheds new light on practices of rational reconstruction of successive judgments of the Court of Justice which remains a central organising feature of EU legal scholarship. In the procedures and routines and personnel practices revealed in new detail by the dossiers, we can obtain deeper sociological insights into the manufacture of Court of Justice judgments. The crucial moments, sources or people behind certain outcomes may emerge from careful archival analysis.
At the same time, the dossier de procédure does not contain the ‘full story’. The Court of Justice makes decisions on what is released. To date, in practice only cases until the end of 1982 are available, the unofficial working documents are not part of the archival holdings, and most importantly, the opening of each dossier is accompanied by decisions on significant redaction. In evaluating the implications of these absences for the archives as a source, the collaborative assessment of historians and EU lawyers is essential.