Ghostwriting the European Union — In Conversation with Tommaso Pavone

In a conversation with our editor Kasia Krzyżanowska, professor Tommaso Pavone discusses his newly published book The Ghostwriters. Lawyers and the Politics behind the Judicial Construction of Europe [CUP 2022]. He challenges the judicial empowerment thesis leveraging empirical data obtained from the EU national judiciaries; explains the role that the local Euro-lawyers played in the judicial construction of  Europe; and traces the evolutions of European lawyering, the role of contemporary legal academics, and the implications of his research for understanding the EU’s rule of law crisis.

Tommaso Pavone — Assistant Professor of Law and Politics in the School of Government and Public Policy (SGPP) at the University of Arizona and Visiting Researcher at the ARENA Center for European Studies at the University of Oslo. His research probes how lawyers and courts impact social and political change. His work has been published in leading peer-reviewed journals and his book – The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe – has won the LSA and the EUSA best dissertation prizes alongside APSA’s Corwin Award. He holds a PhD from Princeton University.

Kasia Krzyżanowska: Let us start with the basic argument of your book. “The Ghostwriters” challenges the great chunk of EU scholarship which claimed that the European project was advanced thanks to the national lower-court judges, who vehemently empowered themselves to disapply national legislation (via the preliminary ruling procedure). This is obviously the “quiet revolution” thesis elaborated by prof. Joseph Weiler. Instead, you invite us to embark on a fascinating journey “behind the scenes” of the judicial politics. You look at Euro-lawyers from Italy, France and Germany, who converted state judiciaries into vehicles of change. My first question is then: what made you think that judicial review was not enough to unite Europe?

Tommaso Pavone: That’s a great question. I should preface it by saying that this argument was developed by scholars like Joseph Weiler and elaborated by Anne-Marie Slaughter and Karen Alter. This was the very reason why I first started getting interested in studying law and politics in the EU as a PhD student in the United States. Maybe I can just quickly summarize this argument again for your audience. The EU doesn’t govern primarily with soldiers and bureaucrats; it governs through a transnational network of courts and national judges interspersed across the territories of the member states. They are kind of the EU’s judicial street level bureaucrats — the agents through which citizens are most likely to encounter the legal and political authority of the EU. 

The key question that motivated the judicial empowerment thesis is: why would judges play ball? Why would they participate in the construction of Europe? The conventional answer is that judges eagerly turn to European law to bolster their own power. Even the most humble justice of peace would turn to European law and the European Court of Justice [ECJ], because this allowed them an opportunity to challenge national legislation with which they disagreed, if they acknowledged the supremacy of European law, or to even contest the decisions of their own Supreme Courts. So, they began to refer cases to the ECJ via a mechanism known as the preliminary reference procedure, [Article 177 of the Treaty of Rome], and thus supplied the ECJ with a stream of cases to advance European integration. This is the judicial empowerment thesis in a nutshell: judges turn to European law and the ECJ in order to bolster their own power. 

When I applied for funding to start doing some field research in the three largest founding member states of the EU — Italy and France and Germany — I wanted to get a granular sense of what this empowerment narrative looked like. I wanted to talk to judges about how they were turning to European law to empower themselves.

But when I started to conduct interviews, judges were really not taken by my questions. In fact, one judge even fell asleep in the middle of our interview and, you know… I wasn’t a very experienced interviewer at the time, but I knew that this was bad, right? 

I was asking judges about things that didn’t map onto their lived experience, their day-to-day reality. I came back after a couple of months of initial fieldwork feeling like I was totally lost, my interviews weren’t going anywhere. 

Out of some sense of desperation, I started to re-listen to the audio recordings of my interviews. And I noticed that in subtle ways, judges kept nudging me to take seriously that applying European law was a lot harder than I thought, and that they rarely, if ever, even considered turning to the ECJ in practice — something was obstructing them.

This is when I began to realize that maybe judges were not the kind of empowered entrepreneurs of change that I was assuming that they would be. They actually were in an institutional context, very bureaucratically constrained, and maybe some other actors who I hadn’t met yet were actually pushing judges to embrace European law and the Court of Justice. 

And how did you discover the Ghostwriters?

In subtle ways it was judges themselves who started telling me: ‘don’t look towards the bench, look towards the bar’. Judges said: ‘look, we will only turn to European law and even consider the possibility of referring a case to the ECJ, if stubborn lawyers are pushing and helping us to do so’. Then I read some of the first preliminary reference cases referred to the ECJ in the sixties and seventies. I started to notice that the parties to those disputes were represented by the same handful of lawyers who showed up before the Court of Justice again and again. 

When I returned to Europe for more extensive period of fieldwork, I started to ask my interviewees:  ‘do you know this lawyer that kept showing up in these early cases, are they still alive? Are they still practicing?’ And they would say: ‘oh yeah, of course. I know them, here’s their phone number, here’s their email. They’re still practicing or they’re retired, but they’d be willing to speak with you’. That’s how I started to discover these lawyers that became the protagonist of my book.

Before we move to these ghostwriters, let me ask you about the court judges that you talk to in your book. The empirical evidence on national lower courts that you provide is compelling and may make us disillusioned about their contribution to the European project. In an admirable effort, you talked to hundreds of judges who shared with you the personal and institutional obstacles in referring a case to the ECJ. Would you mind elaborating on these obstacles? 

In a nutshell, what I began to realize is that the judicial empowerment thesis conflated an outcome with a process. What I mean by this is that it presumed that because applying European law stood to empower national judges, then national judges must have been the ones who mobilized European law in order to empower themselves. But what if that outcome is right, yet the process leading to that outcome was wrong?

Once I started to speak to judges, I realized that they were quite bureaucratically constrained. It was for three primary reasons: judges have historically been undertrained in European law; they have been historically constrained by onerous workloads by piles of case files; and they’ve been subjected to the conformist career pressures of their judicial hierarchies. 

So let’s unpack this.

First, the knowledge deficits. Well into the 1990s, most national judges in the founding member states of the EU had received no training in European law. It was only in 2000 that the European judicial training network was created, but even now only about 10% of national judges have participated in the European judicial training network coursework. In a recent survey by the European Parliament, the survey of some 7,000 national judges found that three fifths wouldn’t even know how to refer a case to the ECJ if the occasion required it. This can lead to embarrassing mistakes, judges could refer the case to the wrong court. We have historical evidence of judges referring cases to the European Court of Human Rights, instead of the European Court of Justice. Judges might make a mistake. They might ask the ECJ a question that has absolutely no relevance to European law. And let’s remember that judges’ reputation relies on their expertise, their legal expertise. So judges instinctually want to avoid areas of law that they don’t know and haven’t mastered because the risks of making an embarrassing mistake is high. 

That’s the first point. The second point has to do with workload pressures. This is something that really the ethnographic field work actually alerted me to. I realized that lower court judges in particular are habituated to getting rid of piles of case files by applying preexisting national law as conventionally interpreted. When you’ve got a hundred cases you must get through in a week, you’re not looking for creative points of contact between national law and European law. You are just trying to apply the laws to try to get rid of these piles of case files. In this view, trying to figure out how to refer a case to the ECJ can force you to have to take a week off, which means that then you have to work on weekends or during vacation days to make up for the work that you didn’t get done. 

In other words, applying European law and soliciting the ECJ gets perceived as a burdensome rupture of routine to be avoided if possible.

And finally — hierarchical pressures. This is important particularly in more centralized hierarchical judiciaries, and a great example is the French administrative courts under the Conseil d’État. What you start to realize is that national judges might rebel against their own Supreme Courts by referring cases to the ECJ and they might win that one-shot battle. But at the end of the day, their career advancement depends upon whether their superiors have a favorable reputation of them, whether they’re not seen as overly mischievous and fastidious colleagues. This creates an incentive to basically defer a potentially controversial application of European law to Supreme Court judges and to not do so as a lower court judge. There was even one French administrative judge that I talked to who said that they would perceive it as professional negligence, a breach of professional duty to rebel against the jurisprudence of their Supreme Court and turn to the ECJ to apply European law. 

When you put these three factors together, you get an institutional context where judges perceive turning to European law and soliciting the ECJ as risky and as burdensome. In order to break free of these bureaucratic shackles, judges had to be pushed by outside actors who could help them minimize the costs and highlight the benefits of Europeanizing judicial policy making. 

I will ask you about this French judge later on in our discussion. A question linked to what you have said now: as you conducted an ethnographic research of contemporary lower courts, do you think that your findings are applicable to the decades when the Euro-lawyers did operate?

This is a great and challenging question. A lot of my fieldwork in national courts was conducted over the past 10 years, so how do we know that these bureaucratic obstacles were also present in the past? There, you have to rely on archival evidence and oral history evidence. For instance,

we know for a fact that training in European law, even though it’s still lackluster today, was almost ubiquitously missing in the 1960s and 1970s. 

If you look at the law school curriculum in French, Italian and German law schools, European law (or at the time Community law) was just not taught. It would sometimes be discussed as a small, special section of an international law course. But what this basically means is that judges would take their posts having received no training in European law. We know the knowledge deficits were, if anything, much worse in the 1960s and 1970s.

And we know that lower court judges are always more burdened than their superiors. They have a lot more cases to discuss, and unlike their superiors, they don’t only have to adjudicate questions of law, they also have to adjudicate questions of fact. So they have a lot of work… and this has been relatively constant over time. We know from the oral history evidence of some of my interviews with the surviving first generation Euro-lawyers that these were the same kinds of obstacles that they encountered in the 1960s and 1970s. In a sense, some of the obstacles that I encountered served as a time machine, allowing me to sympathize with the challenges that the first Euro-lawyers faced. 

Sure. I think this is very convincing and all those statistical material that you provided about the contemporary legal curricula is also a compelling fact. Now, we could move to the main characters of your book — the Ghostwriters. Who were the first-generation Euro-lawyers, those active before the 1980s? Where did they predominantly operate?

Let me start maybe with a definition. What is a Euro-lawyer? How do I define a Euro-lawyer? To me,

a Euro-lawyer is an entrepreneurial lawyer who mobilizes European law to promote institutional and policy change. 

And they do so by seeking to convert national courts into a transmission belt that will link local civil society with the European court of justice. In other words, they’re the agents that are trying to convert national courts into this network of European courts of first instance. Now, as I started seeking out the pioneers of Euro lawyering in Italy, France, and Germany in the 1960s and 1970s, I realized that these political entrepreneurs were few. In fact, my research led me to the trails of just 12 teams of lawyers. 

Who were they? They had certain distinguishing traits in common. Let me mention three. First, all of these Euro lawyers had survived the second world war and were old enough to remember surviving the war. Some had their property expropriated, some lost family members, some became refugees or had their own close calls with death. They were very skeptical of the power of the state and politically committed to a liberal project of moderating state power through law. They did so by turning to the fledgling European community. 

Second, a majority of these Euro lawyers acted upon this liberal drive by founding the first transnational lawyers associations to promote the knowledge and practice of European law. Here the big one is FIDE, Fédération Internationale pour le Droit Européen, and its network of national subsidiaries. This was crucial because, again, in the 1960s and 1970s, you couldn’t get European legal training in national law schools. So oftentimes these lawyers’ associations were doing the things that national law schools were failing to do.

Finally, as I consulted the writings and spoke with the pioneers who were still alive, it was clear that they saw their lawyering as a politics via other means. These were mischievous lawyers, oftentimes with difficult personalities who relished their capacity to provoke national policy reforms through their litigation efforts. 

There’s a quote from one of these Euro-lawyers, Paolo De Caterini, who I think really captures this participatory and mischievous drive. He told me in an interview that the 1960s and 1970s were “a magical moment. There were juridical problems where you basically had to invent everything. You set the feuse, and it exploded with big booms well into the 1980s. There was a sense that we could do the unthinkable. And we were captured by our interests, by the beauty of things, the beauty of novelty. It wasn’t about omnipotence; it was about participating.” Participating of course, in the judicial construction of Europe. 

Let me ask a question that Euro-nerds might be interested in: how different they are from Antoine Vauchez‘s “Euro-lawyers”?

Antoine Vauchez is a political sociologist in France, and a great inspiration for this book, which largely builds upon his own work. However, Vauchez, who popularized the term Euro-lawyer, has a slightly different focus. For Vauchez and other great legal sociologists, like Lola Avril, a Euro-lawyer is an actor with legal training who shuttles about between private practice, state institutions, and EU institutions in order to promote European law, usually through non-litigious means. Maybe they’re in the Ministry of Foreign Affairs of France for a few years, then they join the European Commission’s Legal Service. Then they go into private practice and they become a lobbyist in Brussels. 

These are actors who try to create an autonomous field of European law and help reify what we would recognize today as the Brussels bubble. Their focus is very much on these legal actors who shuttle around various poles of power to create the field of European law in Brussels. Whereas I’m focused on lawyers who kept their feet squarely within their home states and their local communities, and tried to change the behavior of local courts through litigation. They weren’t trying to create a field of European law to which they could escape. They were trying to provoke Europeanizing change on the ground. And even though they were oftentimes friends and they knew the Euro-lawyers in Brussels at the Commission or in the various ministries of the member states, their behavior and their forms of Euro-lawyering were quite different.

Would you mind sharing a story or two on how did these Euro-lawyers initially worked on the construction of the case before the national court? Some of them are absolutely hilarious!

First, more generally: what were the strategies of legal mobilization of these Euro lawyers? What was the repertoire of strategic litigation that they invented?

They invented a repertoire that has two main elements. The first element is the construction of lawsuits and test cases, and the second element is the ghostwriting of preliminary references to the Court of Justice. 

When it comes to constructing lawsuits, these Euro-lawyers brokered connections with local import-export companies and with agricultural associations, and they did it in order to seek out clients who were willing to deliberately break national laws that violated European law. These Euro-lawyers sometimes couldn’t find clients willing to do this. It’s weird when a lawyer comes to you and tells you, ‘let’s break a law’, right? Lawyers are supposed to help you comply with the law, right? When Euro-lawyers had a hard time persuading potential clients, they sometimes turned to friends or family members when a real client was unavailable. 

Once they got before a national – oftentimes a national lower court – they pivoted to mobilizing their expertise in European law. They educated national judges via detailed memos that would serve as crash courses in European law — the A’s B’s and C’s — ‘in 1957, 6 member states came together and created the European community, article 177…’. It was really all of the basics that national judges had not received in their legal training in law school. Even when they persuaded judges, judges would say, ‘I don’t have the time or the knowledge of how to draft a preliminary reference’. So the lawyers would do it for them.

They would literally draft a memo with a motivation and the exact wording of the questions that the national judge could refer to the Court of Justice. In doing so, they decreased the reputational risks and the labor costs of mobilizing European law and soliciting the ECJ.

I think there is one case that really illustrates both elements of the ghostwriters’ repertoire. It’s a case from 1976, called Donà vs. Mantero. It’s the case that gave the European Court the opportunity to establish the free movement of professional athletes throughout the common market, which sparked a variable revolution in European sports. Now, it turns out that the ghostwriter of this case was one of the first Euro-lawyers in Italy, a woman named Wilma Viscardini. She was a pioneer, a trailblazer in more ways than one. She was the first woman admitted to legal practice in her small hometown of Rovigo in Northeast Italy. During her college studies, she fell in love with a man named Gaetano Donà who was active in the European Federalist Movement. In the early 1970s, they both moved to Brussels to work in the European Commission. 

It was there that Viscardini and her husband started feeling like they lived in a bubble. When they would go back home for Christmas, nobody back home – their friends in the judiciary and in the bar – had any idea what the European Community was or what the European Commission was doing. So Viscardini decided to in the 1970s to move back to her hometown and try to promote European law from the bottom up. She started going to schools to civic associations to talk about the European Community, but she recalls feeling like people would look at her funny, like she was recounting fairy tales. That’s when she decided to construct a test case that would demonstrate in a really concrete way the far-reaching impact that European law could have on people’s lives. She zeroed in on the one thing that all Italians and Europeans cared about — that is football, right? 

She knew that most European states, including Italy, required that you are a national of that state in order to be employed in one of its football clubs. Viscardini was convinced that this violated European rules protecting the free movement of workers in the European Community — after all, are not professional athletes workers? Are they not employed? Do they not receive a salary? So she reached out to a friend in Rovigo, named Mario Mantero, who happened to be the ex-president of the local football club. She constructed a test case as follows: Mr. Montero would task her husband, who was still in Brussels working at the Commission, with publishing a recruitment ad for football players in a Belgian sports magazine. This ad said, ‘come play for us in Rovigo’. Then Mr. Donà would ask to be reimbursed for the expense of publishing this ad. 

And then Mr. Mantero would refuse. ‘Mr. Donà,’ he would say, ‘you’ve acted prematurely. Don’t you know that Italian law forbids me from even considering to hire foreign football players? No reimbursement for you’. And then Mr. Donà would turn to his wife, Ms. Viscardini, and sue to challenge Italian law before the local justice of the peace who happened to be another family friend and practicing lawyer. Then Ms. Viscardini provided the justice with a crash course in European law and with a full copy of the judicial order of referral that the judge could use to state the proceedings and refer a set of questions to the ECJ.

In an interview with me, Ms. Viscardini recalls: “obviously I had to prepare everything myself, writing both parties’ briefs in the lawsuit before the justice, as well as the judge’s order of referral to the European court. This was all possible because Mr. Montero and the justice of the peace were both lawyers who knew me and my husband personally… and they placed their maximum trust in us”.

I think this case really showcases both elements of the ghostwriters’ repertoire, the need to remain embedded in the local community, to have friends in the local judiciary, to know what issues would be salient for legal mobilization. 

At the same time, they had to have that experience, which in this case Ms. Viscardini got when she was in the Legal Service of the European Commission, in order to be able to credibly tell a national judge, ‘let me do the work of drafting a preliminary reference for you’. 

The dynamics of the slow transformation of Euro-lawyers into Euro-firms is gloomy, but still fascinating. Even though the Euro-lawyers in Italy, France and Germany were successful in soliciting the ECJ, they did not manage to transfer their knowledge to the academic institutions in their hometowns. Instead, their role was gradually assumed by huge corporations staffed with lawyers with considerable knowledge of EU law. In your view, what were the main factors facilitating this change? Would you associate this transformation with the Community enlargement and gradual globalisation of the legal profession?

Yes, absolutely. Let me share a personal anecdote of how the Euro-lawyers that I was studying from the sixties and seventies were the kind of pioneers of a bygone era. This was a realization that I had when I started to make friends with young aspiring Euro-lawyers in Italy, France, and Germany. I made a lot of friends over the course of fieldwork, people my age, who wanted to practice European law and who shared the kind of Europeanism of the Euro-lawyers from the sixties and seventies. As I started telling them about the activities of the first Euro-lawyers, what I was finding over the course of field research, there was this sense: ‘this is fascinating, but there’s no way we could do this today’. The reason that there is no way that we could do this today is because they felt this extraordinary pressure. Once they graduated law school, they joined a large multinational corporate law firm, almost always specializing in European economic law: we’re talking about taxation law, competition law, copyright law, and their activities would be focused very much on tending to corporate clients. 

So I started to realize that Euro-lawyering has very much evolved over time. How did it evolve? I think what’s important to note is that the pioneers of Euro-lawyering might have been motivated by political idealism —they didn’t particularly care about which issue area they were mobilizing, they were trying to find any potential test case from agriculture to competition, whatever it was, from a small town, from a large town, that could serve as a vehicle for Europeanization. The repertoire of strategic litigation they invented, on the other hand, could be co-opted by a rising network of corporate law firms. There was nothing idealistic embedded in that repertoire of strategic litigation. 

Through the 1980s, big law was largely absent in Europe. It was hampered by state restrictions on inter-firm mergers, the number of firm offices, the number of lawyers that could practice in those offices. But as global competitive shifts and pressures in the legal services market, specifically from the British and American law firms started chipping away at these restrictions, then the rise of European big law started to take off. In cities like Paris, Milan and Rome, Hamburg and Munich we see a rising network of multinational corporate law firms specializing in European economic law. It is in these firms nowadays that we find the Euro-lawyers who are mobilizing national courts by ghostwriting preliminary references to the Court of Justice. 

It creates a kind of corporate ecology of Euro-lawyering that is clustered in wealthier global cities.

By paying high salaries and linking lawyers to deep-pocketed corporate clients who have the resources and the time to fund this ambitious escapades to the European court, these corporate law firms plucked aspiring Euro-lawyers from more rural areas or from poorer cities, and therefore stratify access to European justice. 

You see this when you go visiting in national courts — you start to ask around: ‘which judge in your court has solicited the ECJ?’, and they send you to the specialized corporate chamber of the court. Then you start talking to those judges and they say, ‘well, of course we have to solicit ECJ because these corporate litigants come to us with an army of 5, 6, 7 EU specialists who come with ready-made drafts of preliminary references’. 

One long-standing judge in Paris told me: ‘today, it’s all about the diffusion of knowledge between these big law firms and the courts, because these big firms are capable of launching investigations and producing pleadings based on EU law that are much more sophisticated than what judges can do’. So the irony here is that at the very same time from the 1990s onward, as the content of European law is becoming much more sensitive to consumer protections, environmental rights, fundamental rights the interests of the public, the political economy of litigation, of Euro-lawyering, is moving in a countercurrent. It’s recentralizing within these core economic domains in which corporate Euro-firms are the masters. 

It was fascinating to discover this kind of shift. Now one question came to my mind. How would you perceive the function of the European University Institute? Do you see it as a university that produces this kind of Euro-lawyers? 

My sense is that the European University Institute tends to produce more academically-oriented EU law specialists rather than legal practitioners. If you go to one of these big corporate law firms —  Cleary Gottlieb for instance — and you start to look at the professional CVs of their lawyers, most often they’ll have a law degree from a national law school, and then they will have a master’s in law, usually not a graduate degree from the European University Institute. It would rather be from the College of Europe or a British university, say Kings College or UCL, or an American law school: Harvard Law School, the University of Michigan Law School, Yale Law School, where they study competition law in the United States, and then bring that knowledge back to Europe.

This was also an interesting realization for me. I wanted to embed myself in the world of Euro-lawyers, so I attended the Academy of European Law at EUI, and I realized that most of the people I was surrounded with had kind of more academic ambitions or aspirations, they wanted to become law professors. There were relatively few who wanted to become legal practitioners and corporate law firms.

Is the EUI the central pole, the magnetic pole of Euro-lawyer nowadays? I don’t think so. 

Your empirical findings give us a unique insight into everyday challenges that lower court judges face. Among many surprising data we have already discussed, two dubious cases caught my special attention. The first one is the case of Paolo Coppola (a judge from a civil court in Naples), who submitted several references to the ECJ, and because of that was threatened with disciplinary sanctions by the state legal service. Secondly, you talked to some French administrative judges who admitted not referring to the ECJ because of the fear of “detaching [themselves] from the jurisprudence of the Council [of State]”. One judge said she would “perceive it [referring to the ECJ] almost as professional negligence”. I thought here about one of the greatest rule of law concerns in Poland: that the judges, under broadly interpreted legal provisions, might face disciplinary proceedings for referring a case to the ECJ. If we were just to compare these isolated cases, how would you assess the judicial independence? Does the assessment change if we compare black-letter law with the empirical evidence? And to put it into broader perspective: is something worrying happening in older Member States other than Hungary and Poland?

That’s a great question. Let me break the answer up into a series of parts. The first is that when you start traveling in local communities throughout Europe, you’re going to find significant institutionalized challenges to the application of European law, even in the judiciaries of founding member states, precisely because of those barriers that I talked about. They are overworked, they lack training in European law, and they too face careerist pressures. You don’t need a political party to take over the National Council of the Judiciary in order for lower court judges to feel a sense of career pressure. Sometimes that pressure comes from within an autonomous and independent judicial bureaucracy, a civil service judiciary where it’s national judges that sort of self-govern, but you still need to be thinking about your career and keeping good relations with your judicial superiors. These are the bureaucratic obstacles to the Europeanization of national judiciaries that can occur even in situations where you have good judicial independence.

Just having judicial independence is not sufficient to convert national judges into agents of Europeanization and faithful appliers of European law. You also have to overcome those bureaucratic obstacles that I talked about earlier.

The second point: there is some research that in more centralized and state-driven countries that are liberal democracies, like Denmark or Sweden, national judges oftentimes still take more direction from their national government or the ministry of justice than we might like. For instance, some of Marlene Wind’s research on the Nordic judges shows that when you have a judge in Denmark, and when there’s possibly an issue of noncompliance between national and European law, they will turn to the government and the ministry of justice and say, ‘is there a preliminary reference that we should ask?’ And then the ministry can either quash that referral or will draft it in a way that alleviates some of the more potentially controversial noncompliance issues. These are problems that occur even in EU member states in good standing, let’s put it this way.

That being said, the threats to judicial independence in Poland and Hungary are just on a whole new and different scale. I think what’s happening is interesting because what Fidesz in Hungary and PiS in Poland are provoking is this clash whereby national judges are discovering the European Court of Justice and the European Court of Human Rights in a way that only a huge rule of law crisis would spark them to discover. There’s a massive amount of judicial mobilization, especially in Poland to appeal to the ECJ, the ECtHR, to write letters to the European Commission, to urge it to act as guardian of the treaties. 

In some sense, there’s a discovery of European law that only an existential crisis would provoke. But at the same time, there is an attempt by autocrats like Kaczyński and Orban to sever the ties between national courts and the European Court of Justice by disciplining judges who dare to refer a case: transferring them from the civil division to the family court division, transferring them to a rural court, all of these games that are basically meant to make it very clear that if you want to remain a judge in our judiciary, you don’t refer cases to the ECJ.

That’s something that we don’t see in the founding member states and is just a fundamental threat to the autonomy and the functioning of the European legal order. That’s just of a whole different magnitude. But all of this is to say there are challenges throughout the EU. 

In your book’s concluding remarks, you state how the contemporary rule of law crisis might be contained by the lawyers who make use of their knowledge of EU law and combat the illiberal policies (as happens in the case of the Polish judges referring preliminary questions to the ECJ). But I was wondering if the role of the Euro-lawyers is now assumed by EU scholars, who exert every day a greater impact on public opinion — apart from producing normal academic work, they write op-eds (and are translated into national languages to disseminate their ideas more broadly), and participate in semi-academic debates. Do you think that they contribute — in a different way than Euro-lawyers — to the Europeanization process, or rather might create backlash against the EU project? Do you think that scholars have less institutional opportunity to shape cases and law? Though we should remember about scholars being cited by AGs.

I think there is some of this happening, an attempt to reclaim the liberal promise of the judicial construction of Europe. More precisely, efforts to reclaim that sort of political liberalism and idealism of the first Euro-lawyers have in many ways shifted from the legal professions to the legal academy, aS Euro-lawyers are increasingly captured by corporate law firms. We know that corporate law firms haven’t exactly been the leading voices to speak out against some of these illiberal reforms in Poland and Hungary and sometimes there’s money to be made from autocrats and autocratizing reforms.

Legal academics are increasingly on the front lines.

 I’m thinking about, for instance, Alberto Alemanno and the Good Lobby professors. I am thinking of Wojciech Sadurski in Poland, about Laurent Pech. I’m thinking about John Morijn, who has provided this great service to the European public and the academic community by publishing blog posts detailing the legal harassment and attempt to silence Wojciech Sadurski in Poland. 

This is very important because the European Union and institutions like the European Commission oftentimes lack sufficient investigatory capacity to have a real, concrete sense of what’s going on on the ground. They’re oftentimes reliant, because of the principle of mutual trust, upon the information that is supplied by a member state. By supplying behind-the-scenes legal analyses that try to rebut the misleading and obfuscatory reporting of the Polish government or the Hungarian government, they help European institutions have a better sense of the rule of law challenges on the ground. Associations of Polish judges also do the same sorts of things, and they are absolutely essential in cutting through the fog of disinformation of an abusive state. 

At the same time, unfortunately, there seems to be a lack of political will amongst EU institutions, like the Council and the Commission, to enforce European law, and to protect the rule of law in democratically backsliding states. It’s only the European Court of Justice that seems quite responsive to safeguarding judicial independence, media freedom, and civil liberties in Poland and Hungary. What this suggests is that any form of legal mobilization that can get cases to the Court of Justice, that can get it to continue to develop this foundational rule of law and judicial independence caselaw, is going to remain very important. That means preliminary references, particularly in instances when the European Commission is reluctant to bring infringement cases against noncompliant member states.

In collaboration with Angela Trentin

The transcript has been edited for length and clarity.

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