Paving the road to ‘legal revolution’: The Dutch origins of the first preliminary references in European law (1957–1963)

Date01 November 2018
Published date01 November 2018
AuthorKarin Leeuwen
Paving the road to legal revolution: The Dutch
origins of the first preliminary references in
European law (19571963)
Karin van Leeuwen*
This article reconsiders the driving forces behind the active role of Dutch courts in the early
development of European law by analysing the histories of the 1962 Bosch and 1963 Van Gend en
Loos preliminary references. The legal context of these pathbreaking references and their crucial
impact on the development of a constitutional doctrine in European law are evident. Yet for under-
standing the emergence of the cases, their political and economic contexts need to be added to the
wellknown favourable constitutional settlement from which they arose. Adding contingency to the
narrative of the Netherlands as the proverbial good European, this article reports how the
pavement for the road to Luxembourgwas made up of materials as diverse as an open stance
towards international law, a black market in electronic equipment, and a dispute on the definition
of Harnstoffharz.
Dutch courts took an extraordinarily large share in the early development of a constitutional practice
in European
law. Until 1964, no less than 15 of the first 18 questions sent to the European Court of Justice (ECJ) via the prelim-
inary ruling mechanism (Article 177 EEC, now Article 234 TFEU) were in fact Dutch requests.
Moreover, the first
two Dutch referencesthe 1962 Bosch case and the 1963 Van Gend en Loos caseblazed the trail for the rest to
follow. The former was used by the ECJ to transform the preliminary reference mechanism into a route for private
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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, provided the original work is properly cited.
© 2018 John Wiley & Sons Ltd.
*Assistant Professor in History, Maastricht University, email: For their comments that
greatly helped improve this article, the author would like to thank the editor Agustín José Menéndez, Monica Claes, Bill Davies,
Brigitte Leucht, Benno ter Kuile and Michel Waelbroeck. More in particular, the author is much indebted to Morten Rasmussen
for the many inspiring discussions on the subject as well as his valuable comments on many drafts of this article.
On this notion, see B. Davies and M. Rasmussen, Towards a New History of European Law, (2012) 3 Contemporary European His-
tory, 305, 306.
See figures in K.J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford Uni-
versity Press, 2001) at 35.
Received: 22 December 2017 Accepted: 6 March 2018
DOI: 10.1111/eulj.12296
408 Eur Law J. 2018;

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