1This article outlines new historical research on veto-politics in the European Communities (EC) and discusses the research themes and debates of a ‘new history of European law’. Focusing on the battle over the so-called ‘constitutional practice’ of the European Court of Justice (ECJ), the article highlights post-Gaullist veto-politics as a central element of the overall ‘disintegrating confederal political development’, that-according to Joseph Weiler – allowed the member –state governments to tolerate the ‘hardening’ of Community law¹. This problematique – inter alia researched in the European Law stream of the Frankfurt Max Planck Institute for European Legal History – will require extensive research in private, national and Community archives in the coming years.

2The treaties of Paris (1951) and Rome (1957) proposed an integration of the coal and steel sector, of the atomic sector and of the wider economy (in the agricultural and industrial fields). The treaties were based on the idea of a functional integration of economies, coordinated by supranational institutions. A four-pillar institutional frame-work that can still be found on the European stage was set up. It consists, in particular, of the High Authority or Commission, the Council of Ministers, the Assembly or European Parliament and the ECJ. According to the spillover theory, any integration effort would produce the need for further integration, and integration would spread automatically and irreversibly from one sector to another. Some politicians, officials and scholars were convinced that the treaties of the 1950s would ultimately lead to European political union and to a federal Europe; others remained sceptical. Where the treaty for the European Coal and Steel Community (ECSC) of 1951 had referred to a future European federation, the treaty for the European Economic Community (EEC) of 1957 simply suggested an ‘ever closer union’ of the European peoples. In contrast to the ECSC treaty, the EEC treaty was a framework treaty which simply established core principles, objectives and means to achieve a common market.

3A few years after its foundation, the EC entered a period of ‘crises and compromises²’ and faced the Gaullist challenge³’ of the 1960s, which deeply transformed the Communities. The federalist ambitions and the supranational style during the early years of Community diplomacy disappeared, hard negotiating tactics were employed, and pure national interest was reaffirmed. A strong trend towards re-nationalization weakened the supranational institutions-the Commission and the European Parliament-and strengthened intergovernmental elements such as the Council of Ministers. Although the EEC treaty had originally suggested a highly supranational decision-taking, member-states assumed control of the Communities’ decision-making procedure during the foundational period until the mid-1970s. Most crucially however, the ‘Gaullist challenge’ consolidated the Communities in a medium- and long-term perspective. Because the initial agenda was largely implemented, the crucial question of UK-membership was finally resolved towards the end of the 1960s, and the EC institutions survived all struggles.

4Throughout the 1970s, the Communities’ legislative procedure seemed to be blocked by ‘Eurosclerosis’. The EC’s need for structural reform and a new Community spirit was addressed by several reform proposals and attempts. However, the newly introduced European Council of the heads of state or government was yet another reaffirmation of intergovernmentalism. After Jacques Delors became president of the European Commission, the Single European Act of 1986 became the first major treaty reform and paved the way for the Maastricht Treaty in 1992, which created today’s European Union (EU).

5This article proceeds in four steps. The first part addresses the ECJ’s ‘constitutional practice’ and illustrates past and present research debates over European law. Whereas part two focuses on the Luxembourg Arrangement of 1966 as the origin of the European veto-culture, part three discusses methodological approaches that help to identify path-dependent processes and institutional cultures in EU history. Finally, part four briefly refers to French and German archival sources on EU legal history. The broader archival situation in selected EU member states is analysed in more detail by Sigfrido Ramirez-Perez in his chapter.

Origins, themes and debates of a ‘New History of European Law’

6For a long time, European Union lawyers and political scientists have held an interest in historical perspectives of European law. More recently however, historians have striven for a ‘new history of European law’, focusing inter alfa on the travaux préparatoires of European treaties, the European Union’s institutional culture and constitutional history, the history of the ECJ, its legislation and famous court cases⁴.

7A major publicly-funded cooperative research project was carried out at Copenhagen University over the past few years. The project was entitled ‘A New History of European Public Law’ and it was led by Morten Rasmussen. The researchers involved came from across Europe and North America and were mainly researching the political and discursive battle over the so-called ‘constitutional practice’ of the ECJ between 1952 and the 1990s.

8Formally, the treaties of the 1950s were classical international treaties signed and ratified by contracting parties. They were not designed as constitutional treaties, nor was the ECJ meant to be a European Supreme Court. The EEC treaty, for example, was clearly not directed at citizens, but at member states, and the application of European law remained the competence of national administrations and courts under their respective constitutional law⁵.

9However, the treaties’ scope, nature and several their technical tools went beyond international law. Even when the treaties were being drafted, and during the first years of Community experience, a small number of German foreign policy experts and the officials of the ECSC High Authority’s Legal Service suggested that the ECJ should adopt a teleological interpretation of the treaties instead of the textual approach traditionally used in international public law: the treaties should be interpreted as if they were aiming at a federal Europe. Thus, the ECJ would clearly appear as a European constitutional court. The treaties did indeed contain elements of constitutional law such as the famous preliminary reference mechanism (EEC treaty, art. 177), which gave the ECJ exclusive competence to interpret European law.

10Throughout the 1950s, this constitutional interpretation of European law was largely rejected by member state governments (with partial exception of the Dutch government) and by a large majority of experts and scholars, as well as by the ECJ itself. However, towards the late 1950s the overall context changed: conservative ECJ judges were replaced by more progressive judges; Dutch constitutional reforms suggested that international law had primacy over Dutch law; and last but not least, a powerful European law association-the Fédération Internationale pour le Droit Européen (FIDE)-started lobbying towards a constitutional interpretation of European law. This led to two ground-breaking ECJ rulings:

11‘Van Gend en Loos’ of 1963 established the principle of direct effect and clarified that European law was now directly applicable in member states⁶. And ‘Costa y. ENEL’ of 1964 established the principle of primacy of European law vis-à-vis of prior and posterior member state law. Both principles–direct effect and primacy–were enforced through the mechanism of ‘preliminary ruling’. A member state court dealing with a case in which European law was involved could (or was even obliged to) refer to the ECJ for a definite interpretation and determination of European law. This system of judicial review depended entirely on the co-operation of national courts, since the final decision and application remained with the referring national court. However, litigants now had the possibility of invoking European law with direct effect and primacy before national courts to systematically question national legislation that might be in contradiction with European law. In the ‘preliminary ruling’ procedure, the ECJ worked together with lower national courts and bypassed national supreme courts as well as governments. In the long run, the ECJ’s ‘constitutional practice’ established ‘a proto-federal legal order⁷’. Most of the current research on EU legal history thus focuses on the legal normative divide between international law and Community law.

12Following ‘Van Gend en Loos’ and ‘Costa y. ENEL’, the ECJ vigorously developed its case law from the late 1960s onwards, strengthened the enforcement procedure, expanded its jurisprudence to new fields and generally pushed the boundaries of EU law to the limit, thereby provoking the German Federal Constitutional Court, the House of Lords, the French Conseil d’État, and others⁸. European Union historians and lawyers have extensively researched the so-called ‘constitutional discourse’ of European law and have pointed out that the ‘constitutional paradigm’ has played a dual role⁹.

13First, it served as a legitimating strategy to the ECJ. From the 1960s onwards, ECJ judges insisted that they had neither been activist nor overtly political. Instead, they claimed that they had simply played the role assigned to them by the treaties, and that they had merely brought the underlying logic of the treaties to fruition by applying the treaty to the full. Thus, the ECJ’s self-understanding relied on the ‘constitutional paradigm’.

14Second, the ‘constitutional paradigm’ served as an academic paradigm, first introduced by US scholar Eric Stein in the 1980s. Stein – for biographical reasons-warmly welcomed the ECJ’s constitutionalization practice as an example for cooperation and peace in Europe and worldwide¹⁰. Thus, he gave the ‘constitutionalization paradigm’ a strong normative drive and developed an ideological zeal, which was taken over by his academic disciples such as the young Joseph Weiler¹¹. Stein went as far as warning fellows in academia that it was their duty to support the European Union by adopting the ‘correct’ academic understanding of the constitutionalization process¹².

15Stein’s and Weiler’s constitutional hypothesis seemed historically to be confirmed by the dynamic and optimism of the relance européenne of the 1980s, the Single European Act and the Single Market project, but also more generally by the end of the Cold War and the formation of the European Union. No surprise, a new generation of US scholars like Anne-Marie Slaughter, Karen Alter, Alec Stone Sweet and others read Stein and Weiler in the 1980s and 1990s and used the ‘constitutional paradigm’ as a reference. Therefore, present-day scholars working on a ‘new history of European law’ emphasize the ideological and political motivation behind the ‘constitutional paradigm’, which served to strengthen European institutions and the idea of a federal Europe.

A case study in intergovernmentalism: the Luxembourg arrangement

16The political history of European unification in the formative period from the 1950s to the mid-1970s was characterized by an increasing trend towards re-nationalization, intergovernmentalism and disintegration. Why then did member states in the same period allow the constitutionalization of the Rome Treaties and ‘integrating federal legal development¹³’? Joseph Weiler has developed a ‘theory of equilibrium’ to explain the contrasting developments of legal and political norms. According to Weiler, political re-nationalization created a context in which the governments could accept a reinforced constitutional character of European law. Thus, intergovernmentalism and disintegration served as a counterweight to increased constitutionalization.

17This trend towards intergovernmentalism and resistance to ‘constitutional practice’ is one of the current and future challenges of a ‘new history of European law’. Bill Davies has demonstrated in a ground-breaking study of the German Federal Constitutional Court that the constitutionalization of the Rome Treaties was all but a smooth and rapid process, as had been suggested by the ‘constitutional paradigm¹⁴’. A research project at the Frankfurt Max Planck Institute for European Legal History will determine the EC Council’s role and pillar-position vis-à-vis the European Commission in the battle over ‘constitutional practice’. It focuses on the gentlemen’s agreement concluded in Luxembourg in January 1966, which characterized EC decision-making for at least two decades.

18The so-called Luxembourg Compromise ended the 1965-66 crisis of the (French) ‘empty chair’ in January 1966. De Gaulle had started an EC boycott in 1965 to force his European partners into a deal that would weaken the ambitious European Commission of Walter Hallstein and establish a formal veto right¹⁵. In Luxembourg in January 1966, a four-point declaration over the question of voting and vetoing was included in the Council record. The French government unilaterally declared that where ‘vert’ important national interests’ were concerned, France demanded a veto right in the Council of Ministers when qualified majority voting was the treaty base. During the following two decades, member states invoked the Luxembourg Compromise and claimed ‘vital interests’ to prevent the Council from voting. France, the United Kingdom, Denmark and Greece invoked the Luxembourg Compromise more frequently and were regarded as the ‘Luxembourg Compromise Club’. European institutions reacted to this veto culture. The Commission stopped making ambitious proposals that might provoke an invocation of the Luxembourg Arrangement. The General Secretariat of the Council slowed down the decision-making procedure in selected cases, etc. As a result, the entire EC decision-making procedure degenerated¹⁶.

19It remains controversial whether the Luxembourg Arrangement can be categorized as international law, as Community law (acquis communautaire) or even as a new form of customary Community law. A surprising normative divide between a continental legal tradition and a common law tradition occurred when the United Kingdom joined the EC, assuming that the Luxembourg Arrangement was an EC customary law. Continental governments did not share this British point of view. A majority of observers and scholars insisted that the Luxembourg Arrangement was a purely political gentlemen’s agreement without any legal importance. However, a sophisticated analysis of the Luxembourg Arrangement cannot solely focus on legal normativity or follow a simplistic structure according to the binary logic of law and non-law¹⁷’. The informal Luxembourg Arrangement remained a central theme for more than two decades, and it reflected a diversity of legal-political and behavioural norms such as intergovernmental and federalist conceptions of the European Union, the ambition to democratize the EC, the demand for structural reform and institutional strengthening, but also the desire to respect the Council’s informal code of behaviour and ‘common sense’ regarding ‘vital interests’.

20The Luxembourg Arrangement was clearly de-legitimized over time. The EC enlargements towards the North and the South raised the question-already in the 1970s, but in particular in the 1980s-of whether an enlarged Community could still afford an informal veto-right because of its obvious blocking potential. Because the veto-culture paralyzed the Communities’ legislative process, contemporary observers as well as political scientists and historians argued that the Luxembourg Compromise was the origin of the so-called ‘Eurosclerosis’ of the 1970s. Jonathan Golub, however, has carefully examined EC legislative output and argued that ‘Eurosclerosis’ did not result from a post-1966 veto-culture¹⁸. Many reform proposals of the 1970s and 1980s thus demanded that the Communities obey the treaty rules and return to voting. Key events of European Union history such as enlargements, reform proposals or crises regularly crystallized the constitutional debate over EC decision-making. The debate over voting and vetoing was interestingly intertwined with other reform debates such as controversies over democratizing the EC, direct elections to the European Parliament or the formation of an avant-garde ‘core Europe’ group.

21The literature claims that the Luxembourg Compromise disappeared during the 1980s and in particular during negotiations over the Single European Act. Allegedly, this fundamental change in decision-making culture cleared the way for Jacques Delors’ Single Market project and for Maastricht Treaty negotiations.

Research paths and methodological considerations

22Weiler’s daim that post-1966 veto-culture enabled EC member states to accept the hardening of European legal norms suggests that the informal veto-arrangement – its consolidation and fading over time-should be researched more widely and systematically.

23Research on the Luxembourg Compromise and the resulting veto-culture faces a specific methodological problem: only in very rare instances did member states formally invoke the Luxembourg Compromise. In most cases, they informally claimed ‘vital interests’ to block Council voting. Therefore, the official Council record-with only a handful of exceptions-does not contain any evidence about formal invocations of ‘vital interests’ or of the Luxembourg Arrangement itself. A complete and reliable statistical or quantitative study on the veto-culture is thus unavailable. Given the complicated empirical situation, even qualitative reconstruction of the veto-culture is a complex puzzle¹⁹.

24Given this background, it is abundantly clear why scholars of law, political science and history were unable to reconstruct the veto-culture over time. A qualitative study of the veto-culture needs to assess the internal institutional and the external public debates over the practice and legitimacy of consensus, vetoing and voting. An analysis of the legal debate will reveal why historical actors labelled the Luxembourg Arrangement ‘international law’, ‘Community law’ or ‘customary law’. Furthermore, qualitative reconstruction will illustrate how the veto-culture worked in practice and how the Luxembourg Arrangement was utilized as a political instrument by member-state governments. A contextualized analysis also needs to take into consideration the structural influences on the erosion of the veto-culture such as the widening and deepening of integration in the 1970s and 1980s, the socio-economic crisis of the 1970s and the slow change in the power balance between member states.

25Theories of path dependency appear particularly suitable to reconstruct the consolidation and fading over time of the Luxembourg Arrangement and in particular to identify key moments of EC constitutional history, such as the lock-in point’ of the informal arrangement²⁰. In the context of European integration it becomes abundantly clear that member states did not fully control EC politics and policy-making. It became increasingly difficult for member-state governments to reverse or modify established paths, which were already locked in’. Besides historical paths, institutionalist theory also helps to identify institutional cultures, values and norms which shaped the actors’ behaviour. A variety of constructivist and social-institutionalist theories share a basic notion of the mutual constitutiveness of social structures and agents²¹. Sociological institutionalist theory appears especially useful for understanding the impact of institutional and administrative cultures-including the Luxembourg Arrangement-on actors inside and outside EU institutions. It is also particularly adequate for questioning rational choice assumptions concerning unitary and rational actors, which have long dominated European Union historiography²². The Council is regarded as an institution with a particularly strong esprit de corps and unwritten code of behaviour, a Council specialist even referred to [...] the club spirit that exists at all levels of the Council [...]²³’. A closer look at the internal institutional culture within European institutions will reveal why ‘vital interests’ were ‘common sense’ in the 1960s and 1970s, whereas voting became the Council’s procedural norm in the course of the 1980s.

Archival evidence and conclusion

26As demonstrated above, the battle over the ‘constitutional practice’ of the ECJ was all but a smooth push-through towards a ‘proto-federal legal order’. More research is required on the member states’ response to the ECJ’s ‘constitutionalization practice’ and, more generally, on member-state resistance to the project of a federal Europe. Among the accession countries, the United Kingdom and Denmark will be of special interest, because of their sceptical attitude towards supranationality²⁴. The new EU legal history will go beyond strictly legal expertise and will rely upon sources from governments and supranational institutions, European political parties, lobbies, pro- or anti-European movements, expert networks, media reporting, etc.

27When it comes to governmental sources on French and West German European politics, the Politisches Archiv des Auswärtigen Amtes in Berlin (along with the Bundesarchiv in Koblenz, the Archiv für Chrisdich-Demokratische Politik in Sankt Augustin and the Archiv der Sozialen Demokratie in Bonn) and the Centre des Archives diplomatiques in La Courneuve as well as the Archives Nationales [the contemporary history branch, formerly in Fontainebleau, is to be transferred to Pierrefitte-sur-Seine] provide helpful sources in their European integration, economic cooperation and general foreign policy series. The records of the interdepartmental units coordinating the national European policies-the French Secrétariat Général du Comité Interministériel and the West German Staatssekretärsauss-chuss für Europafragen-are of particular interest, as well as reporting by the Permanent Representatives, which is often more insightful than the official Council record. In addition, EU legal history research can draw upon cabinet files or personal files (e.g. those of Olivier Wormser, Walter Hallstein or Klaus y. Dohnanyi), records of the national Legal Services (e.g. the Rechtsabteilung of the German Foreign Office) and records of bilateral relations of EC member states (e.g. the UK-files of the Politisches Archiv).

28Because an important research focus lies on the ‘road to Maastricht’, much of the future research will have to be done in preliminary archives – called Zwischenarchiv in German archives or Liste Rouge in EC archives – with changing codes, different rules for citation and incomplete inventories. Many files dealing with topics from the early or mid-1980s chronologically stretch beyond 1987 and therefore remain closed at this point in time. Derogation requests are in most cases required for research on the aftermath of the Single European Act and on Maastricht treaty negotiations. The archival situation in selected EU member states is explored in more detail by Sigfrido Ramirez-Perez in his chapter.