Bill Davies

Towards a New History of European Law

This article introduces the special issue on the new history of European law. Its intention is to provide our audience with the intellectual context that the contributions seek to address and some of the underlying conclusions from the fields of political science and legal scholarship that the archive material synthesised here will recast. Each of the individual contributions will be described and located in the new field of scholarship, and the intentions and current limitations of our findings will be delineated.

Integrity or Openness? Reassessing the History of the CJEU’s Human Rights Jurisprudence

This Symposium highlights the different comparative law methods used by the contributors and at the same time reveals a common theme, namely the difficult tension facing the Court of Justice of the European Union (CJEU) in maintaining the integrity and exclusivity of EU law in a unique supranational system, while simultaneously maintaining an openness to the legal traditions of its constituent states and other judicial systems. This emerges in the Court’s views on one particular foreign source of law: the European Convention on Human Rights (ECHR). Starting in the 1970s, the CJEU began imagining the basic set of fundamental rights that could be found both in the general principles of the original treaties and in the constitutional traditions of the member states. When the Court began articulating these in the Internationale Handelsgesellschaft ruling, it was met with stiff opposition for the first time by the constitutional courts of the member states, the erstwhile guardians of human rights across the Union. Faced with this resistance, the Court was pushed to articulate its rights doctrine, which it did by including the ECHR in its Nold ruling of 1974. Still insufficiently appeased, the national courts continued their demands. Efforts to mediate this crisis were led by the European Commission and its Legal Service, which advocated strongly for the then-Community to fully accede to the ECHR in the late 1970s. This effort was, however, stymied by the President of the CJEU in late 1978, for reasons which closely reflect the much more recent Opinion 2/13, in which a barrier on ECHR accession was also raised. Instead, the Court responded to the Commission’s continued advocacy of accession in the 1970s with its Hauer ruling of 1979, in which it cited national constitutional law and the ECHR for the first time, adroitly navigating the tension between maintaining integrity and openness in EU law.