The policy origins of the European economic constitution

• DOI: http://doi.org/10.1111/eulj.12255
• Date: 01 May 2018
• Author: Brigitte Leucht
• Published date: 01 May 2018

ORIGINAL ARTICLE

The policy origins of the European economic

constitution

Brigitte Leucht*

Abstract

This article traces the origins of the European economic constitution in the debate on Article 30 of the EC Treaty

(general rule on the free movement of goods) between 1966 and 1969, which resulted in Directive 70/50. In this,

the first archive‐based analysis of the policy origins of the Court's Dassonville (1974) decision, the article demon-

strates that there was a strong continuity in the investment by a number of key actors in focusing on Article30 to

create the single market from the mid‐1960s. These civil servants and lawyers provided the backbone for the

Commission's transformation of the Cassis de Dijon judgment (1979) into a powerful tool, driving back the need

for legislative harmonisation and making it a cornerstone of the Single EuropeanAct of 1986. The article therefore

analyses one of the key moments in the transformation of European law.

1|INTRODUCTION

This article is the first archive‐based work to focus on the policy origins of the European “economic constitution”to

provide an initial building block for a more comprehensive reassessment of the role of the European Court of Justice

(ECJ) in paving the way for the launch of the single market program.

1

This issue has been examined by legal and social

science literature, which has claimed that the Court's case law, giving effect to the common market provisions of the

European Community (EC) Treaty, was instrumental to the breakthrough of the Single European Act (1986).

2

The

argument that the Court played a central role in the launch of the single market program by developing the European

economic constitution builds on the notion of the constitutionalisation of EC law. Accordingly, the ECJ

constitutionalised theTreaty in a number of milestone judgments from the early 1960s through the doctrines of direct

effect and supremacy. Direct effect recognizes that the provisions of the EC Treaty could enjoy positive legal force

directly in national law if they met certain conditions. Later ECJ judgments also extended this provision to certain

*

University of Portsmouth, School of Languages and Area Studies, Portsmouth, UK. I would like to thank the participants of two con-

ferences of the research project Towards a New History of European Public Law, funded by the Danish Research Council, for valuabl e

feedback on earlier drafts of this paper (at the College of Europe, Bruges, 12 June 2015; and at the European University Institute, Flor-

ence, 9–11 December 2016). Moreover, a special thank you to: Robert Schütze whose insistence on the importance of René‐Christian

Béraud provided the incentive for another stab at locating the materials on the making of Directive 70/50 in August 2016; Alexandre

Bernier for sharing his research findings on Béraud; and to Sylvia Perez for her invaluable help in locating archival sources. Lastly I

would like to thank the reviewer(s) of this article for their invaluable feedback.

1

Two articles in preparation for publication deal with: the move from Dassonville to Cassis de Dijon; and the Commission's transforma-

tion of the Cassis de Dijon judgment and the reception of the decision in the Member States.

2

M. Maduro, We the Court: The European Court of Justice and the European Economic Constitution (Hart, 1998); A. Stone Sweet, The

Judicial Construction of Europe (Oxford University Press, 2004), esp. ch. 3, ‘Free movement of goods’(with Margaret McCown),

109–145.

Received: 5 June 2017 Revised: 8 August 2017 Accepted: 22 August 2017

DOI: 10.1111/eulj.12255

Eur Law J. 2018;24:191–205. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 191