In the second part of his long, book-length essay on the workings of the European Union (I wrote about the first part here), Perry Anderson focuses on three key EU institutions: the European Court of Justice, the European Commission and the now all-powerful European Central Bank.
The ECJ, he writes, is notorious for his secrecy, even for an EU institution — none of which are given to let mere mortals know about their inner workings:
Its archives grant minimal access to researchers. In modus operandi, the ECJ is the antithesis of the US Supreme Court, whose emoluments it comfortably tops – its president receives a salary worth $400,000, plus many allowances; the chief justice in Washington a measly $277,000. Its origins date back to the first stage of integration: the European Coal and Steel Community (ECSC) born of the Schuman Plan was endowed with a Court of Justice that was rolled forward into the European Economic Community set up by the Treaty of Rome five years later, and then into the European Union created at Maastricht. Thanks to the pioneering work of a young historian from Luxembourg, Vera Fritz, we now have a detailed scholarly study of the composition of the court in the first twenty years of its existence. Her findings are illuminating. There were seven founding judges and two advocates-general. Who were they? The Italian president of the court, Massimo Pilotti, had been deputy secretary-general of the League of Nations in the 1930s. There he acted as the long arm of the fascist regime in Rome, advising Mussolini on what counter-measures to take to shield Italy from condemnation by the League for its actions in Ethiopia. On resigning his post in 1937, Pilotti took part in the celebrations in Genoa of the conquest of Ethiopia; and during the Second World War headed the high court of occupied Ljubljana after Italy’s annexation of Slovenia, where resistance was met with mass deportations, concentration camps, and police and military repression.
OK! One bad apple! A Fascist stay-behinder in the court. All right, so no big deal. After all, we know the whole EU was the brainchild of an aristocratic, lunatic racist. Let’s move on:
The German judge on the court, Otto Riese, was so devoted a Nazi that without any duress – he spent the war as an academic in Switzerland – he retained his membership of the NSDAP until 1945. His compatriot Karl Roemer, an advocate-general to the court, spent the war in occupied Paris managing French companies and banks for the Third Reich; after the war, he married Adenauer’s niece, and acted as defence lawyer for the Waffen SS charged with responsibility for the massacre of the occupants of the French village of Oradour.
All right! Three bad apples! Only three bad apples, right?
The other advocate-general, Maurice Lagrange, was a senior functionary in the Vichy government, fully committed to the ideology of a ‘National Revolution’ to sweep away the legacy of the Third Republic. Acting as link-man between the judicial apparatus of the Conseil d’État and the political apparatus of the Council of Ministers, Lagrange was in charge of co-ordinating the first wave of persecution of French Jews. When Laval took over the reins of Vichy in 1942, transferring Lagrange back to the Conseil d’État, Pétain thanked him for his ‘rare perseverance’ in the regime’s legislative and administrative work, to which Lagrange replied that ‘for me it has been a great privilege to be so closely associated with the enterprise of national renovation you have undertaken for the salvation of our country. I am convinced that every Frenchman can and should take part in this work.’ After the war he was chosen by the Americans to help democratise the civil service in Germany, and by Monnet to help draft the treaty establishing the Coal and Steel Community. That figures like these were the ornaments of Europe’s first Court of Justice reflected, of course, the closing of political ranks after the Cold War set in, when what mattered was not the misdeeds of the fascist past but the menace of communist present. It was a time when the last commander of the Charlemagne Division of the SS, fighting to the last bullet to defend Hitler in his bunker, could emerge as best choice for the Robert Schuman Prize for services to European unity.
The man was named Gustav Krukenberg. Mentions of this prize has been memory-holed in the Internet (it’s not cited, for example, in his Wikipedia page) but persists in books. For example, this one.
Why should European justice too not let bygones be bygones? More generally, appointments to the court had little or nothing to do with juridical qualifications. Nearly all were political. The Belgian judge was a leading figure in the Catholic Party of his country; one of the Dutch judges was the brother of a prewar foreign minister; the French judge, Jacques Rueff, a former deputy governor of the Banque de France, was one of the founders of the Centre National des Indépendants et Paysans; a Catholic trade unionist from the Netherlands and a socialist magistrate from Luxembourg rounded out the set. Among the next levy of judges were a founder of the Christian Democratic Union (CDU) in Berlin, later a deputy for the party in the Bundestag; the son of a leader of the Anti-Revolutionary Party (Calvinist) in the Netherlands; a former aide to Dino Grandi, minister of justice for the Duce, and brother of the then finance minister in Italy; a co-founder of the Christian Social Party in Belgium; a one-time Nazi and stalwart of the SA (1933 vintage), latterly a Social Democrat in Germany; a long-time functionary in the Italian colonisation of Rhodes; a former chef de cabinet to the civil and military governor of Algeria. Justice à l’européenne was never blindfold: its eyes were wide open, and round its head was a bandana gaudy with the colours of the establishment parties of the time.
In this kind of thing, an element of straightforward conspiracy is needed:
Meanwhile, associations of jurists concerned to promote European law had been springing up in each of the countries of the Six, of which the German Wissenschaftliche Gesellschaft für Europarecht (WGE) was the largest and most important, followed by the Association Française des Juristes Européens. In close touch with these organisations, the Commission supplied financial support for their meetings, and in 1961 Gaudet created an umbrella group, the Fédération Internationale pour le Droit Européen (FIDE), ‘with the explicit aim of facilitating exchanges across political, bureaucratic and scholarly boundaries’. In the words of its first president, FIDE acted as ‘a private army of the European communities’. ‘In Europe around 1950,’ a member of its German branch recalled, ‘the idea of European unification was capable of evoking almost religious enthusiasm among young lawyers. We believed in the United States of Europe.’ The Dutch section of FIDE was particularly active. One of its members acted as counsel for Van Gend en Loos and it can be surmised with some confidence that the case was set up by this lobby. However that might be, supported b the Commission it found the right rapporteur in Luxembourg, where Robert Lecourt, hotfoot from Paris, wrote the historic verdict overturning a national law…
There, Anderson is referring to the ECJ’s 1963 verdict that invoked the “spirit” of the Treaty of Rome, to declare itself superior to any other court, cited in the earlier post discussing Anderson’s first essay on the EU.
It’s important to understand that setting up cases for specific courts, so that impactful, landmark rulings can be made by sympathetic judges, is a pretty old trick: Rosa Parks, who became a byword for civil rights in the US, didn’t sit on a Whites only seat of a bus because of a sudden personal decision: she was an activist, working with other activists who decided that such a challenge to the racist legislation of the US South had the best chances to succeed. Likewise, in 2011 I reported on the legal case against Spain’s celebrity judge Baltasar Garzón — who had led the prosecution against Chile’s Augusto Pinochet in the 1990s — and found that the case was driven by fellow judges who were sick and tired of Baltasar, and set up a number of cases so they could have him expelled from the judicial career.
A year later, in 1964, came the second decisive act. In Italy, two lawyers outraged by the nationalisation of the electricity industry set up a challenge to the constitutionality of its issuance of a 1925 lire utility bill. When the Italian constitutional court ruled that nationalisation was not a constitutional issue and couldn’t be challenged by reference to the Treaty of Rome, as passed subsequent to it, they appealed to the European court. Two weeks after its advocate-general argued that the Italian court could not be overridden, though it should be encouraged to seek ways of integrating European law into national law, the WGE held a meeting in Hesse at which three ECJ judges were present. There, a participant recorded, they sat with ‘red ears’ as a leading authority of the WGE, Hans Peter Ipsen, instructed them on the supremacy of European law over the national law of any member state. Ipsen’s opinion would prevail: five days later Lecourt issued the ECJ’s ruling on Costa v. Enel to the same effect. The cornerstone of European justice was laid. Who was Ipsen? A jurist from Hamburg who joined the SA in 1933 and the NSDAP (Nazi Party) in 1937, becoming a full professor at the age of 32 on the strength of a doctorate subsequently published as a book under the title Politik und Justiz, which dealt with ‘sovereign acts’ by the state that dispensed with considerations of justice. Exalting the German version of these based on the ‘Führergewalt’ of Nazi power – which had found expression since 1933 in arrests, purges, expropriations, the Gleichschaltung of trade unions – as superior to earlier merely ‘governmental’ legislation in France, and to the fascist variant in Italy, which was based on legislative authority in a division of powers system, the book understandably attracted the interest of the Nazi Party’s central Chancellery. During the war, Ipsen served as a commissar for Hitler, dealing with universities in occupied Belgium. There in 1943 he extolled the ‘external administration’ of the Third Reich, which now covered Norway, Belgium, the Netherlands, France, the Ukraine, the Baltic states, the General-gouvernement of Poland, occupied areas of Serbia and Greece, not to speak of Alsace, Lorraine, Luxembourg, Southern Styria and the protectorates of Bohemia and Moravia – an area comprising some 2,865,000 square kilometres and 154 million inhabitants, in addition to the nearly 700,000 square kilometres and 90 million inhabitants of the enlarged ‘inner Reich’, and amounting in all to 46 per cent of the population of the continent. These lands held the promise of a future Grossraumordnung of Europe under Nazi command. Before the war was out, Ipsen became dean of the Law Faculty at the University of Hamburg and adviser to the Ministry of Justice in Berlin. In 1945 he was briefly deprived of his chair, but soon recovered it. A better than average Nazi career was capped with postwar honours as he became the doyen of European law, in 1972 authoring a monumental summum on the subject in the Federal Republic.
Again, the system was based on providing the right court with the right cases, so that precedent could be slowly built up:
In this cause, the Legal Service led the way, supplying the Court of Justice with the overwhelming majority of cases on which its verdicts could build an ever more extensive edifice of European law trumping the rights of national legislatures. Between 1954 and 1978 the ten most frequent plaintiffs before the court brought a total of 1381 cases before it: of these 1082 came from the Commission or its adjuncts – just under 80 per cent. The loop of collusion was tightly woven. By 1964, Hallstein could announce triumphantly that Europe had achieved ‘the beginnings of a real and full “political union”’.
The decisions of the court in the 1960s, Joshua Grimm (a senior lecturer at Liverpool University) has observed, were ‘revolutionary because the principles they announced were not agreed on in the treaties’ that created the ECSC and the EEC, and ‘almost certainly would not have been agreed on had the issues been raised’. It was a court with an agenda that did not correspond to the intentions of its founders, seeing itself ‘neither as the guardian of the rights of the signatory states, nor as a neutral arbiter between the states and the Community, but rather the driving force of integration’. Its assertion of the supremacy of Community over domestic, let alone constitutional laws, Horsley remarks, had no basis in the Treaty of Rome, which granted it rights of judicial review only ‘with respect to acts of the Union institutions’, not those of member states. ‘Yet, in effect, this is exactly what the court now undertakes on a routine basis’, proceeding as if ‘the treaty framework, as touchstone on the internal constitutionality of all EU institutional activity, has never actually meant what it so clearly states’. The court thus became not just a unique institution within the Community, but unique within supreme or constitutional courts, endowed with powers that no analogue in a democracy has ever possessed. In all other cases, the rulings of such courts are subject to alteration or abrogation by elected legislatures. Those of the ECJ are not.
Here, I would point out that Anderson is getting carried away: yes, ECJ’s effective judicial dictatorship is abhorrent for the UK legal system and was a key driver for Brexit, but it’s only slightly abhorrent for countries with the Roman legal system (which, like France or Spain, have constitutional courts which are mostly political and responsive to shifting political trends) and not abhorrent at all for the US, where the Supreme Court emerged since FDR’s time as the dominant political actor.
They are irreversible. Short of amendment of the treaties themselves, requiring the unanimous agreement of all member states, ‘which, as everyone knows, is all but out of the question’, as Grimm writes, there is no recourse against them. They are set not in stone, but in granite, and are far from neutral in effect. Written in ‘a technical language that is often opaque’, the court’s decisions often cloak highly political issues in an apolitical fashion; they fall ‘below the threshold of public attention’, rendering their effects difficult ex ante to perceive; but should they subsequently be protested, they are treated as accomplished facts that citizens are told it is too late to do anything about – ‘there is now no alternative.’ Since these rulings have constitutional force, much of what would be ordinary legislation at national level has been built into successive sequels to the original Treaty of Rome – Maastricht, Amsterdam, Nice, Lisbon – resulting in documents of such ‘epic length’ that the Ireland’s EU commissioner declared of the last that ‘no sane and sensible person’ could read it, after his prime minister admitted, after signing it, he had not done so: they amount, in effect, to enormous cryptograms beyond the patience or grasp of any democratic public.
We move on from the power-grabbing ECJ to the even more power-grabbing European Commission, an institution for which power-grabbing is an end to itself, with no other goal in sight (if you think they’re trying to build a powerful United States of Europe, these dudes who were terrified when Trump hinted that he might withdraw US occupation troops that have been in Europe since 1945, you should think again).
The European Commission, whose evolution has been more winding, was in its early years the crucial partner of the court. Its history can roughly be divided into three phases, corresponding to the three figures who would hold its presidency for a full decade across two terms: Walter Hallstein (1958-67), Jacques Delors (1985-95) and José Manuel Barroso (2004-14). Hallstein, a German lawyer and diplomat – a Christian Democrat best known for the Cold War doctrine to which he gave his name, which made West German recognition of any state dependent on its refusal to recognise East Germany – was an outspoken federalist, who conceived the Commission as a proto-government of the Community, declaring national sovereignty a ‘doctrine of yesterday’, and awarding himself the status of ‘prime minister of Europe’. De Gaulle put a brusque end to his pretensions in 1965, and he left Brussels a mocked and deflated figure. However, in his heyday, between 1958 and 1964, Hallstein presided over a Commission that was a dynamo of energy in finding ways and means to circumvent the Treaty of Rome in the higher interests of European unity.
Barroso’s elevation, from presidency of the Commission to chairman of the international division of Goldman Sachs, was a natural sequel to these reforms:
There are now around 30,000 registered lobbyists in Brussels. That is more than double the number infesting Washington, reckoned at a mere 12,000. In Brussels, 63% are corporate and consultant lobbyists, 26% are from NGOs, 7% from think tanks and 5% municipal. That Europe’s executive could resist infection from the vapours of this swamp is implausible. Contemporary popular suspicion of the Commission as the bureaucratic demiurge of the Union is in that sense misplaced. But it remains a considerable power within the complex machinery of the EU, by reason of three attributes peculiar to it. The first is simply its size as a corps of permanent functionaries compared with that of any of the Union’s other institutions, and the closed citadel of its workings – 34 different ‘procedures’ that no lay person is equipped to understand. The second lies in the sheer size of the rulebook that it wields as an instrument of power within the Union – the acquis communitaire, impenetrable to its citizens, but inescapable for its states, forming the primary means of the Gleichschaltung of Eastern Europe to EU norms, over which commissioners presided as proconsuls from Brussels. Originally put together as a codification of EEC regulations to which the UK, Denmark and Ireland would have to adapt on entry into the Community in 1973, when it already came to 2800 pages, the acquis now runs to 90,000 pages, the longest and most formidable written monument of bureaucratic expansion in human history (the notorious US tax code is a mere 6500). Foucault’s overblown identification of knowledge with power here finds literal embodiment.
The width of the gap between the institution and the populations beneath it can be judged from the rare occasions on which the latter have been able to make their voice heard directly:
In the Netherlands, turnout for the European elections of 2004 was just 39 per cent. A year later, it was 63 per cent for the referendum on the Draft Constitutional Treaty – which, while supported by 80 per cent of the Dutch delegation at Strasbourg/Brussels, was rejected by 62 per cent of Dutch voters. The Parliament is not what it seems, and is the least consequential component of the Union.
The European Central Bank is the last, and perhaps most important at this point, key power-grabber in this pretty picture. To illustrate the workings of the most secretive of all EU institutions, Anderson uses the cloak-and-dagger events around the height of the euro-crisis in 2010-2012:
Jean-Claude Trichet, the Frenchman next at the helm in Frankfurt, was a smoother figure, but equally blind. His response to the global financial crisis was pro-cyclical: raising interest rates to force governments to cut public spending, imposing austerity as a cure for the crash. His successor, Mario Draghi, was widely celebrated for reversing course, spraying money into the Eurozone economies with purchase of government bonds and a generous dose of other forms of liquidity. In fact, there was more overlap between the two than generally believed. Draghi, responsible for a sweeping privatisation progamme in Italy, was more outspokenly neoliberal, pronouncing Europe’s social contract obsolete in the pages of the Wall Street Journal. But in August 2011, the two jointly wrote a secret letter to Berlusconi, then Italian prime minister, demanding that he resort to a Cold War emergency mechanism to cut pensions and other public expenditures – an unprecedented violation of its mandate by the bank. Three months later Berlusconi was gone. For his part, Trichet had by the end of his tenure come round to the use of schemes to circumvent the ban in the Treaty of Maastricht on the purchase of public debt by the bank. Praising her chief, the former head of research at the ECB, Lucrezie Reichlin, told the Financial Times in February 2012: ‘The whole concept of getting around European rules and doing QE without calling it QE was extremely clever.’ (*)
They think only their friends and accomplices read the Financial Times:
It was to safeguard this that the ultima ratio regis of the hour was required: ‘targeted longer-term refinancing operations’, ‘outright monetary transactions’ and the rest, or clever ways of getting around European rules, ‘within the mandate’ of the bank – that is, in blatant breach of Articles 123 and 125 of the Treaty of Lisbon. In due course, their legality would be challenged before the ECJ. But just as it had no compunction in interpreting the Treaty of Rome to arrogate powers to itself of which no trace can be found in the document signed by the Six, so the ECJ had none in deciding that Lisbon meant the opposite of what it said. Since it was now a question not of reading into a treaty what it did not contain, but of purging one of what it did contain, the contortions required were, in Horsley’s words, ‘herculean’. The comedy of judges solemnly explaining that financial assistance under the European Stability Mechanism constituted an act of economic, not monetary policy, and was therefore perfectly in order, while outright monetary transactions were an instrument of monetary, not economic policy, and therefore were also perfectly in order, calls for the pen of a Swift. What did the ‘no bail-out clause’ of Article 125 actually mean? That bail-outs were fine, so long as they served ‘the higher objective’ of preserving the euro. Or in van Middelaar’s gloss, to break the rules was to be true to the contract.
Let’s close with a German judicial flourish:
In Germany successive attempts in 1974, 1986, 1993 and 2009 to contest the validity of laws or treaties of the Community before the country’s own constitutional court have all yielded the same result. The judges in Karlsruhe have declared that Germany’s Grundgesetz – Basic Law – may not be overridden by the European Court, but since no such infringement has ‘so far’ or ‘yet’ occurred, the plaintiffs have no case. Last year, it was called on once more, this time to pronounce on the legality of the blessing the ECJ had given to the ECB’s bond-purchasing programme. Once again it declined to say this was illegal, while observing that the proportionality of its effects had not been adequately appraised, and instructing the German government and the Bundesbank to conduct such an appraisal and ensure appropriate proportionality. There was uproar in the Euromedia. The Financial Times was apoplectic. ‘The German court has set a bomb under the EU’s legal order,’ Martin Sandbu cried. The court had ‘launched a legal missile into the heart of the EU. Its judgment is extraordinary. It is an attack on basic economics, the central bank’s integrity, its independence and the legal order of the EU,’ Martin Wolf thundered. ‘Future historians may mark this as the decisive turning-point in Europe’s history, towards disintegration.’ They need not have turned a hair. The Bundesverfassungsgericht is a mostly toothless body, as its studiously suspended judgments indicate. Best known for meekly overturning Germany’s Basic Law to allow Schröder and Merkel in 2005 to stage an unconstitutional election before polls were due, it takes care to avoid serious offence to the Obrigkeiten of the day. Berlin and Frankfurt are unlikely to have much difficulty sending Karlsruhe back to sleep.
*She’s referring to Quantitative Easing, a monetary policy trick that the US Fed was indulging at during this era, to great “success.”