2008, Volume 14, N°2 - Centre d'études et de recherches ...

The Origins of a Legal Revolution – The Early History of the European Court of Justice 79
European Federalism and the Search for a European Constitution
At the most fundamental level the historical roots of the legal revolution can be
found in the federalist ideology and activities of the various transnational
movements working in favour of European unification in the 1940s and 1950s. It
was here that constitutional thinking on the future organisation of Europe was most
ambitious, including several attempts to contemplate how a European legal order
should be constructed. Moreover, a number of politicians and jurists, involved in
the constitutional battles of the late 1940s and early 1950s, would later in different
capacities be directly involved in or support the legal revolution of the ECJ. 10
From 1947 to 1953 the European Movement and its constituent parts, among
these the European Union of Federalists (UEF), the Socialist Movement for the
United States of Europe (SMUSE), and the Christian Democratic, Nouvelles
Equipes Internationales (NEI), made several attempts to push for the establishment
of a European federation; first in the framework of the Council of Europe in
1949-50, then during the European Coal and Steel Community (ECSC)
negotiations and finally in the negotiations on the European Political Community
(EPC) from 1952-53. 11 During this period the, often diffuse, federalist ideology
inspired several concrete proposals for a federal constitution for Europe. 12 Perhaps
because these proposals were often drafted by jurists, and certainly due to the
inspiration drawn from the American federal model, they considered a European
Federal and Constitutional Court a central part of the institutional edifice of a
European federation. The Council of Europe quickly disappointed European
federalists and the establishment of the ECSC, which included a Court, was
considered an insufficient, if important, step forward. Instead, it was the EDC
Treaty and the prospect of establishing the EPC that most attracted their attention.
The first serious discussions about the nature of a federal court and a European
legal order had begun before the EDC Treaty had been concluded. It was in the
context of the initiative to establish the European Council of Vigilance (ECV) by
the French economics professor from the University of Poitiers, Daniel Viley, that a
committee of jurists was first established in 1951. The aim of the ECV was to
create an alternative assembly to the Council of Europe. The task of the jurist
committee was to draft a statute for a European assembly with independent
political powers and financial means. The committee was chaired by Belgian
10. This section owes much to the ground breaking work by Antonin Cohen. A. COHEN, Constitutionalism
without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise
in the Making of a Constitution for Europe (1940s-1960s), in: Law & Social Inquiry,
32(2007), pp.109-135.
11. For general treatments focusing on the EPC see R.T. GRIFFITHS, Europe’s First Constitution.
The European Political Community, 1952-1954, The Federal Trust, London, 2000; D. PREDA,
Sulla soglia dell’Unione. La vicenda della Communità Politica Europea (1952-1954), Editoriale
Jaca Book SpA, Milano, 1993.
12. Federalism was, as pointed out by Antonin Cohen, a buzz word in the public debate in several Continental
European countries that offered an alternative to Communism and past Fascist totalitarianism,
but not one coherent school of thought. A. COHEN, Constitutionalism …, op.cit., pp.123-125.