The History of Common Market Law Review 1963–1993

Published date01 March 2017
Date01 March 2017
The History of Common Market Law Review
Carving out an Academic Space for Europe
Rebekka Byberg*
Abstract: The transnational organisation of an academic discipline of European law has
been a key component in the history of European law. A constitutive element is explored
in this article, namely, the journal Common Market Law Review (CML Rev.). General
existing claims of a strong connection between the Community institutions and academia
in the transnational, academic discipline of European law are substantiated, and it is
documented how CML Rev. legitimised the jurisprudence of the ECJ, differentiated
European law from international law and countered national criticism as the academic
lighthouse of the discipline in the 1960s and 1970s. In the 1980s, other forces drove
the academic f‌ield forward, and CML Rev. lost its position as the avant-garde in the
discipline, but the journal developed a critical stance and rejected the most radical claims
of the ECJ on the ultimate authority as part of a development towards professional
maturity in the same period.
I Introduction
I imagine you as a missionarypreaching the Gospel in farawaycountries. But it must be a
satisfactory feeling to k now that there are more and mo re converts.
So wrote
Laurens-Jan Brinkhor st, professor of Europ ean law at Groningen Uni versity and an
editor of Common Market Law Review (CML Rev.), to John Mitchell, professor of law
at Edinburgh Universi ty and a member of the edito rial board of the journal, in 1971.
Along with a range of scholars, actors from the European Community (EC)
and judges
from the European Court of Justice (ECJ), Brinkhorst and Mitchell were in the process
of establishing a transn ational academic disc ipline dedicated exclu sively to European
* University of Copenhagen, The SAXO Institute, Karen Blixensvej4, Copenhagen, 2200, Denmark. E-mail: PhDStudent at the University of Copenhagen and a part of the research group
Towards a New History of EuropeanPublic Law. I would like to thank Morten Rasmussen, Claus-Dieter
Ehlermann, Laurens-Jan Brinkhorst, Haakon Ikonomou, and my research group for comments, which im-
provedthis article signif‌icantly.Furthermore,I would like to thank the editorsof Common Market LawReview
for grantingme access to the archive of thejournal and providing practical assistance.
Letter from Brinkhorstto Mitchell, 17 September 1971, Archive of Common Market Law Review(hereafter,
ACML Rev.).
The European Coal and Steel Communit y, EURATOM, and the European Economic Community were
merged into the European Community in 1967. This article will therefore refer to the Communitieswhen
analysingevents prior to 1967, and to the Communityafter1967. The term Community lawwas,however,
used alreadyin CML Rev. from the beginning of the 1960s.
European LawJournal, Vol. 23, No. 1-2,August 2017, pp. 4565.
© 2017 John Wiley& Sons Ltd.
law, which was highly relevant to Britons, as the Community would include Britain if
the enlargement negotiations succeeded. The ideological starting point was the recent
judgements of the ECJ in Van Gend en Loos (1963)
and Costa v ENEL (1964),
the ECJpushed by the head of the Legal Service of the Commission Michel Gaudet
had used a teleological method to def‌ine European law as a new, special legal order,
in reality providing a constitutional interpretation of the Treaties of Rome.
To the
Commission and Gaudet, the establishment of a new legal discipline that could nurture
the development of Euro pean law and differentia te it from international l aw was
considered absolutely crucial in order to provide legitimacy to the new jurisprudence
of the ECJ.
Despite the fundamental importance of the development of an academic discipline of
European law, the exploration of the transnational history of the discipline is limited.
Only recentlyhave studies come out by the political scientist Antoine Vauchez and thehis-
torians Morten Rasmussen and Anne Boerger. The conclusions of these f‌irst pioneering
efforts concur:While the f‌irst steps towards academic researchon European law had been
taken in several Member States already in the 1950s, it was the hope that a comprehen-
sive transnational academic organisation would provide a decisive impetus to the devel-
opment of European law. Steps were thus taken to establish a proper transnational
academic f‌ield of European law from the early 1960s onwards, partly by law professors
who were often ideologica lly supportive of European i ntegration, and partly by th e
supranational institutions of the European Communities, especially the Legal Service.
The latter hoped that a transnational academic discipline of European law would
underpin the development of European law generally and promote European law as
constitutional in particular. When established , the discipline functioned as a power
knowledge nexus with blurry lines between academia and the Community institutions,
and it played a key role in legitimising the jurisprudence of the ECJ as a new legal or-
der. The notion was in reality synonymous with the constitutional approach of the Le-
gal Service, but the ECJ had chosen a label that was politically less contentious, and
academia followed.
Interesting as these conclusions are, they are only backed by a few in depth empirical
studies. Thus, several articles have explored the role of the dération Internationale pour
Case 26/62, Van Gend en Loos, ECLI:EU:C:1963:1.
Case 6/64, Flaminio Costa v ENEL, ECLI:EU:C:1964:66.
Today as in the past,the terms constitutionalandconstitutionalisationaredef‌ined in various ways. This ar-
ticle builds on a loosedef‌inition of a constitutionalreading, gathering the interpretationswhich built on the
claims thatEuropean law should be constructed withtools of state constitutionallaw, not public international
law, that the European and the nat ional legal orders should be reduced to a single legal syst em, and that
European lawshould prevail in case of a conf‌lict betweenEuropean law and national law.
In contrast, the two most important cases of how EU law academia was formed nationally, in France and
Germany, have been examined recently. Se eA. -K. Mangold, Gemeinschaftsrecht und deutsches Recht: die
Europäisierung der deutschen Re chtsordnung in historisch- empirischer Sicht (Mohr Siebe ck, 2011); and J.
Bailleux, Penser lEurope par le d roit: Linventiondu droit communautaireen France(19451990) (Dalloz,2014).
A. Vauchez and S. Mudge, Building Europe on a Weak Field: Law, Economics and Scholarly Avatars in
Transnational Politics, (2012) 118 American Journal of Sociology,449492; A. Vauchez, Brokering Europe.
Euro-Lawyersand the Making of a TransnationalPolity (Cambridge University Press,2015); M. Rasmussen,
Constructing and DeconstructingConstitutionalEuropean Law: Some Ref‌lections on How to Study the
History of European Law, in H. Koch, K. Hagel-Sørensen, U. Haltern, and J. Weiler (eds.), Europe. The
New Legal Realism: Essays inHonour of Hjalte Rasmussen(Djøf, 2010), at 639660; A. Boergerand M. Ras-
mussen, Transforming European Law: The Es tablishment of the Constituti onal Discourse, (2014) 10
European ConstitutionalLaw Review, 199225.
Carving Out an Academic SpaceAugust 2017
© 2017 John Wiley& Sons Ltd.46

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