The social-fabric approach to courts

Although it is still referred to as the ‘European Court’, the ECJ has undergone drastic transformations throughout the nearly six decades of its existence, moving away from the small, stable, and cohesive milieu of legal professionals that had coalesced with its founding decisions – Van Gend en Loos (1963) and Costa c. ENEL (1964). Ever since the departure of a small group of judges and référendaires who had been closely linked with the consolidation of the ‘Van Gend en Loos–Costa doctrine’Footnote 7 in the 1960s, the stability and relative homogeneity of the Community's judiciary gave way to an increasingly mobile and diverse group (Vauchez, Reference Vauchez2010b). Indeed, throughout the five Community enlargements and the subsequent increase of its caseload, the ECJ has experienced an ongoing process of internal differentiation that has transformed the Court into a complex organization made up of a number of institutions (the Court of Justice, the Court of First Instance created in 1991, and the Civil Service Tribunal), judges (from a group of 13 from nine Member States in the mid-1970s to a group of 70 from 27 Member States today), associations (the Amicale des référendaires et anciens référendaires created in 1991, the permanent delegation to the Court of Justice of the Council of European Bar associations and Law societies, etc.), and specialized professional groups (Schepel and Wesseling, Reference Schepel and Wesseling1997; Alter, 2008; Vauchez, Reference Vauchez2008a; Cohen, Reference Cohen2010). Such transformations came with an increasing turnover: although only two judges were leaving the ECJ every 3 years during the 1950s, 1960s, and 1970s, the average rate of departure rose to two per year in the 1980s and 1990s, and to more than three per year in the past decade. Such instability was made even more obvious by the fact that the group of référendaires, until then regarded as the permanent figures of the institution, not only grew in number to more than 200 members (Grass, Reference Grass2006: 76), but also lost their stability as their time in office drastically fell to 5 years on average in the late 1990s (Kenney, Reference Kenney1998). What is it then that makes the Court's jurisprudence so consistent over time when it is grounded on such shaky foundations? The general scholarly study of judicial decision-making in the realm of political science suggests at least three conventional explanations to the puzzle of case-law stability.

The first, promoted by neo-rationalists, regards such consistency as essentially unproblematic. Although it is well known that the Court has been a bone of contention between the competing inter-governmentalist and neo-functionalist theories of integration (for recent accounts, see Conant, Reference Conant2007; Stone, Reference Stone2010), both converge in viewing it as a unitary actor driven by pre-existing preferences (the continuous expansion of its pan-European jurisdiction), rationally pursuing its interest in front of a variety of external constraints (Garrett, 1995; Garrett et al., Reference Garrett, Kelemen and Schulz1998; Alter, Reference Alter2001; Carubba et al., 2008). All in all, none of these streams of research questions how these preferences were initially produced, nor how they are transmitted to new members of the Court and, thereby, perpetuated. Yet, there are good reasons to doubt that judicial preferences constitute an ahistorical ‘given’ independent from the changing set of national, professional, and political backgrounds of the judges themselves (Jenson and Mérand, Reference Jenson and Mérand2010). In the same vein, it is quite safe to hypothesize that, absent a supranational judicial professional able to train and instill core values and beliefs, ECJ judges do not spontaneously converge on how the prestige and the independence of the Court should best be promoted. In particular, such rationalist explanations fail to account for why the ECJ has maintained and even pushed its constitutional and pan-European jurisprudence in a number of recent groundbreaking decisions – from Kadi to Laval and Viking – while at the same time nearly doubling the number of its members following the last waves of EU enlargement (Grass, Reference Grass2006; Rasmussen, Reference Rasmussen2007).

The second explanation points at the particular relevance of path-dependent mechanisms in the realm of judicial decision-making. It is well known that judges, both in civil law and in common law systems, value references to previously established legal principles and tend to frame their own judgments within the boundaries of precedents (be they labeled stare decisis or jurisprudence constante, depending on the specifics of one's national legal culture). Alec Stone has authored interesting pages on the development of precedent-based practices in the case of the ECJ, with Van Gend en Loos (1963) standing out as the critical juncture, and the EU litigation arena being the site of a long-term self-reinforcing process (Stone, Reference Stone2004: 30–41). Recently, legal scholars have pointed at the existence of a ‘judicial style’ specific to the ECJ (Azoulai, Reference Azoulai2009) in order to frame their legal suits authoritatively, Euro lawyers need to draw from a limited set of previously established legal sentences that form the commonly accepted bricks of EU law reasoning (Bengoetxea, Reference Bengoetxea1993). However, the fact that EC lawyers do not work in an unpredictable and chaotic manner is not enough of an explanation when it comes to understanding why and how ‘the Court’ maintains and repeatedly revives its pan-European agenda. Institutions and professional roles do not hold by themselves, nor do they have a life of their own, unless their underlying creeds and credos are perpetuated and revitalized through continuous social and political mobilizations. By insisting essentially on the endogeneous dynamics of EC judicial decision-making, this neo-institutionalist account therefore overestimates the inherent stability of the judicial process itself.

There is, however, a third possible explanation for our puzzle, partly related to the previous one. It points at ‘role transmission’ within the court itself. According to this thesis, courts hold their jurisprudence constant because newcomers to the judicial office are incited through a variety of means to embrace the new professional role, progressively embodying the behavior and worldviews expected from anyone taking over such a position. Lisa Hilbink recently tested such a causal mechanism in the case of the Chilean judiciary, explaining the persistence of a specific pattern of judicial behavior across regime change ‘through the watchful eye of the Supreme Court’ responsible for lower judges’ appointment and promotion (Hilbink, Reference Hilbink2007). Granted, institutional roles do matter, but how is it that such professional codes and canons are built and instilled in the case of international courts for which there is no such thing as a supranational recruiting and training system able to set and diffuse shared beliefs and common understandings to newcomers? Contrary to their national counterparts, international judges such as the European ones cannot rely on a professional body of judges, or even a ‘feeder’ court where future members would be socialized and selected. Studies show that there are as many breeding grounds and criteria for selecting judges as there are countries to EU treaties (Kenney, Reference Kenney1998; Cohen, Reference Cohen2008, Reference Cohen2010; Voeten, Reference Voeten2007; Terris et al., Reference Terris, Romano and Swigart2007), each country seeking to ‘balance a different constellation of interests and cleavages in choosing its members of the ECJ, such as party, language, region, legal system, and governmental department’ (Kenney, Reference Kenney1998: 108). True enough, one could argue that an increasing number of ECJ judges have had some national training or/and professional experience in the realm of EC law. National socialization to the Court's jurisprudence would then secure newcomers’ lasting support for core ECJ legal principles.Footnote 8 Yet, such an argument does not account for the fact there is still a ‘nationally colored outlook on EU law (de Witte, Reference de Witte2008) impeding any form of cognitive mainstreaming. In this, international courts differ from national constitutional courts. Even though they also lack a proper profession from which to recruit members, they are not confronted with such heterogeneity, as judges are mostly drawn from the national bar's or law schools’ elite, trained within the same legal culture. To put this in the terms of the sociology of professions, international courts lack the supranational professional body able to set common educational requirements and establish an institutionalized ‘control over the production of producers’.

To answer the enigma of judicial consistency at the ECJ, it therefore proves necessary to break open a renewed conceptual framework equipped to track the social fabric of jurisprudence. This perspective draws on the recent political sociology stream of research in EU studies that criticizes rational-choice institutionalism for treating institutions as formal, free-floating, and disincarnated institutions with abstract interests (Vauchez, 2008b; Cohen and Vauchez, Reference Cohen and Vauchez2010; Georgakakis, Reference Georgakakis2010; Mangenot and Rowell, Reference Mangenot and Rowell2010). In line with these developments, I suggest a more sociologically informed understanding that considers the ECJ as a specific site of contention where a number of legal professionals contend over the definition of its nature and future, including the most convenient direction for its jurisprudence, the most relevant type of know-how and credentials to persuasively perform EU judicial office, the priorities for its future organizational reform, etc. In other words, the social-fabric approach does not take ‘the Court’ – its ‘interests’, ‘mandates’, and institutional ‘identity’ – as a premise of the analysis. Rather, the very aim of the inquiry is to trace the social process through which these are produced and reproduced over time. In the case of the European Court of Justice, I have, elsewhere, traced the genesis of such an institutional identity and the related constellation of actors supporting it back to the Van Gend en Loos and Costa vs. ENEL decisions. Then, a variegated set of pan-European legal professionals, including the Commission's legal service, the legal section of the pan-European movement (the so-called Fédération internationale pour le droit européen-FIDE) and a select group of ECJ judges, coalesced around the promotion of the Court's jurisprudential ‘coup’, thereby defining the EU judicial branch as both the pillar and the engine of European integration (Vauchez, Reference Vauchez2010a). This is not the place to return to these circumstances. Suffice it to say that EU jurisprudence did come about as a mere set of legal principles, but concurrently emerged as a distinct social and professional constellation and an underlying system of meaning concerning the Court's role in the Europeanization processes.

The social-fabric approach takes as its object of inquiry the process of socialization to such historically built social and cognitive systems. The related empirical strategy therefore tracks the social mechanisms through which the Court's institutional identity has been maintained and inculcated over time. Such questioning is all the more intriguing given that, in the particular case of courts, role transmission happens under constraining circumstances. Judges’ margins of maneuver are quite narrow in a milieu – that of law – which draws much of its authority from displaying neutrality (Bourdieu, Reference Bourdieu1987; Dezalay and Garth, Reference Dezalay and Garth1996). As a result, judges – and, in particular, international judges – very seldom engage in overtly professional mobilizations that would undermine their own specific legitimacy (Mcintosh and Kates, Reference McIntosh and Kates1997).Footnote 9 There are therefore good reasons to believe that most socialization happens behind closed doors, within the Court itself. Just like in any other institution, informal meetings in the corridors or discussions in the canteen are likely to constitute essential socialization loci. In particular, the sociability of référendaires across cabinets could be studied in such a perspective, as they are home to discussions over ongoing judgments and, more importantly, to a general mainstreaming of the cognitive and normative frames used to evaluate legal issues and individual professional moves.Footnote 10 The changes in the Court's organization since the Nice Treaty and the subsequent concentration of judge-making power in the hands of the presidents of the three five-member Chambers and the Grand Chamber could be an equally interesting entry point (for an interesting analysis in this direction, see Petkova, Reference Petkova2010).Footnote 11 Last but not least, formal instruments – such as legal databases or internal vademecum – are also essential channels of socialization. As they include routinized legal formulas, keywords, and standardized forms of judgments that have been framed over the decades, in-house software and guidelines are certainly also decisive in socializing newcomers to a set of previously established legal alternatives and debates.Footnote 12 Yet accessing the internal functioning of the Court in the way Bruno Latour was allowed to do at the Conseil d'Etat (Latour, Reference Latour2009)Footnote 13 remains a far remote perspective in Luxembourg. The ECJ has indeed not only remained strikingly silent about its decision-making process (absence of dissenting opinions, non-publication of reports of hearings, etc.), but has also more generally maintained a strenuous secrecy concerning its internal functioning (non-disclosure of archive).Footnote 14 It takes some shrewdness on the part of the researcher to circumvent such a lack of access. Among the few possible empirical options (see also the interesting empirical material gathered by Petkova, Reference Petkova2010), commemorations, be they Festschriften, tributes, eulogies, or Courts’ jubileesFootnote 15 constitute an interesting and so far neglected entry point. As indicated above, they are probably not the essential, nor the primary locus of ECJ judges’ socialization. Yet, I will argue hereafter that the commemorative empirical corpus makes for a propitious and original terrain of inquiry in order to address the puzzle of the ECJ's case-law consistency over time and across policy domains.

More often than not, these commemorative venues are viewed as self-promotional instruments through which Court officials engage in some sort of public relations strategy. I would actually argue the contrary. There are indeed good reasons to believe there is more to these venues than mere legitimatory devices or, worse, mere smokescreens. One indicator of this lies in the fact that, although they are of almost no legal value and are time consuming, they are, however, organized with great care and remain very popular. To be sure, creating and publishing Festschriften involves a whole economy of effort and investments such as ‘initiating, commissioning, composing, compiling, editing, proof-reading, and generally organizing the volume prior to publication’ (Macalister-Smith and Schwietzke, Reference Macalister-Smith and Schwietzke2002: 369; see also Taggart, Reference Taggart2002). Most of the time, it also requires the launch of a subscription among contributors and others, engagement in fund-raising to finance these usually very long volumes (there are often two volumes or more) and often the organization of a presentation ceremony. Moreover, such tasks involve not only a group of authors – from 20 to 98 in this case – and some members of the secretariat, but also an editorial team and an honorary committee in charge of supervising the publication process. And yet neither eulogies nor Festschriften correspond to any of the traditional formats valued for their legal or judicial contributions: they are neither procedural acts (such as opinions of the advocate general or conclusions of reporting judges), nor are they case-notes. Rarely read (as they are often edited by publishing houses of secondary importance), not readily available, Festschriften are best described as ‘graveyards of scholarship’ (quoted in Melchior, Reference Melchior1962: 410). In such a context, the general willingness to participate in such ungratifying volumes, as well as the great care with which both eulogies and Festschriften are organized, is indicative of the fact that there is more to these publications than just a formal celebration of the addressee. In many regards, these commemorations are indeed authentic institutional rites. They are the one rare occasion when ‘the Court’, or at least a large part of its members, is publicly brought together. Moreover, a great deal of attention is paid to specific ceremonial rules, whether through the so-called ‘formal sittings’ of the Court or through the very formalized editing process of Festschriften (on such formal rules, see Macalister-Smith and Schwietzke, Reference Macalister-Smith and Schwietzke2002). Drawing from the abundant literature on the sociology of rituals (Mauss, Reference Mauss1897, 1898, Bourdieu, Reference Bourdieu1971; Espeland and Halliday, Reference Espeland and Halliday1994), I contend they are home to two essential and interrelated phenomena: the codification of the impersonal and ahistorical features of the institution through the exaltation of the departing judges and the social stratification of the related milieu of professionals through the position each of the participants is given throughout the ceremony itself. To put it differently, they are critical venues for the symbolic maintenance of international courts; and, at the same time, as they are invitation-only circles, they also provide an opportunity to select and authenticate ‘founding fathers’, institutional leaders, and putative heirs faithful to the Court's core principles. For this reason, these celebrations – which could appear as purely idiosyncratic in that they refer to the profile of the addressee, the specifics of a given moment in history, and the singularity of the genre (discourse, written article, short biographical note, etc.) – are integral to the reviving and the transmission of the Court's institutional identity as a whole.Footnote 16

Inventing tradition: legal landmarks and the building of a transnational judicial community

Commemorations are not new on the Kirchberg Plateau where the Court has its headquarters. Ever since the first ECJ judges left the Court in 1958, ‘formal sittings’ praising the departing judges and welcoming the newcomers have been held, and the related speeches published by the Court's publishing department. Yet, from the 1970s onwards, there has been growth in the variety and number of commemorative venues (tributes, jubilees, Festschriften). This development is in part nothing more than the consequence of the gradual reduction in the terms of office of the judges and the arrival of new judges following the various enlargements that automatically multiplied the occurrence of these rites of passage: whereas departures amounted to three in the 1950s, seven in the 1960s, and 10 in the 1970s, they increased to 20 in the 1980s/90s and 32 in the 2000s. But there is more going on here than just an automatic increase. From the mid-1970s onwards, the Court also began celebrating itself as an institution, marking the various anniversaries of its existence – for example, the 25th anniversary in 1976 and the 50th anniversary in 2002, not forgetting the 35th anniversary in 1987 – with as many ceremonies and commemorative editions (CJEC, 1976, 1987, 2003). Even more striking is the new genre that has gradually established itself at the Court, namely that of the judicial Festschriften in honor of retiring judges offered by their former colleagues.Footnote 17 Admittedly, some of the professors who were judges at the Court had previously benefited from this tradition (Otto Riese, Riccardo Monaco), but this was usually an offering edited by their former university students in recognition of a long academic career. 1981–82 saw the beginning of what was to become part of the Court's own traditionFootnote 18: between 1981 and 2008, no less than 15 judges (i.e. nearly one-fourth of the 61 departing judges) were honored with Liber Amicorum, Studi in onore, Mélanges, Festschrift, or even Essays in honor of, either in the year preceding their retirement or in the years following their term of office at the Court. As a result of these concurrent investments, commemorations are no longer exceptional; from the early 1980s onward, they constitute an almost uninterrupted internal practice.

What is first striking when looking at this rich commemorative material is the fact that it is grounded in a particular narrative of the Court's turning points. Interestingly enough, these ritualized celebrations of judges’ departures are characterized by a continuous return to the decisions of the Court's ‘revolutionary years’ (the 1960s), in particular the ‘golden age’ when the Court delivered its most renowned decisions: Van Gend en Loos and Costa vs. ENEL. For instance, references to the sector-specific jurisprudence of the Court in domains such as non-discrimination, competition, or state aids ritually involves going back to the period of the seminal cases. Hence, the comment by President Iglesias on the occasion of the 50th anniversary of the Court: ‘if there was just one judgment that should be cited on this historic occasion, it would without a shadow of a doubt be the Court's decision of 5 February 1963 in the Van Gend en Loos case, which represents the cornerstone of the successive developments of the Community's legal order’ (Iglesias in CJEC, 2003: 40–41). However, this return to the source is not so much about remembering the past history of the Court as about constantly reactivating an ‘original prophecy’Footnote 19 that provides the Court and its judges with a timeless truth regarding their role within the European Union.Footnote 20 The heydays of the Court's revolutionary years may well be remote, but they nevertheless form – eulogists purport – the enduring message the Court must constantly refer back to in order to remain true to itself. As they are elevated to the statute of an ‘original prophecy’, they provide lasting cognitive and normative truths about the nature of Europe's judicial power, its office holders and its jurisprudence. Hence, the comment by former judge Pierre Pescatore: ‘after the declarations of principle of the 1960s, which put Community law permanently on the right road, came the period of deep immersion in the practical problems which we, as judges of the second or even third generation, have to master’ (Pescatore in CJEC, 1980, 1981: 25). By working to bridge the gap between current cases and the ‘constitutional’ cases of the past, by going over the stages of a jurisprudence that remains in line with its first steps, eulogists continuously (re-)design the Court's ‘invented tradition’ (Hobsbawm and Ranger, Reference Hobsbawm and Ranger1983), that is, one jurisprudential acquis Footnote 21 consistent over time and across policy domains. By exalting the legal continuity and the unity of its case-law since the 1960s, the eulogists help eclipse the many political ruptures (enlargements, revisions of the treaties) and their effects on the course of the ECJ (increase in the number of judges, changes in its competences, etc.). By constantly placing the construction of current judicial strategies as direct descendants of these two judgments, the tributes therefore grant the Court a truly juridical foundation different to its political origin: eulogists help ‘the Court’ join the far more stable and ‘apolitical’ world of ‘ordinary’ courts and jurisdictions. Thereby, the many different ECJs (the European Court of Coal and Steel born in 1952 from the Paris treaty, the ECJ of the European Communities born in 1958 from the Rome treaties, the current CJEU born in 2009 from the Lisbon treaty) are indeed superseded by one unique ‘European Court’ characterized by an invariant and trans-historical mission begun 58 years ago in the service of Europe.

Yet, there is more to this ‘original prophecy’ than just the general willingness to ground ECJ case-law in a distinctively legal tradition. It is integral to the building of a sense of belonging to one unique community whose collective task it is to defend and enrich the Court's jurisprudential acquis. Under the aegis of praising such common judicial patrimony, Festschriften or departure ceremonies symbolically mark the cohesiveness of a group of rather diverse perspectives and backgrounds (national and European, public or private, academics, and practitioners of EU law). Beyond their many differences, ECJ law clerks, judges, senior members of the judiciary from the countries of origin, law firm partners, and renowned academics are reunited through these ritualized occasions. Such a community bond is intensely praised throughout the discourses. By insisting on ‘the link that unites us in the memory and the recognition of our great colleague and unforgettable friend’ (Iglesias in Iglesias et al., Reference Iglesias, Due and Schintgen1999: 19), Festschriften and tributes enable the contours of this symbolic community to be defined and maintained. No doubt the recurrence of the metaphor of the Court as a ‘family’ and/or as a ‘community’ takes here its full meaning in order to reactivate a transversal solidarity beyond the multiplicity of differences, or even conflicts, that now afflict the Court as an organization. We are reminded of the ‘atmosphere of collegiality, one might even say of brotherhood – since, unfortunately, we (the Court) have only had had one sister’ and of ‘the congenial rapport between the judges when carrying out their common task’ (Due in CJEC, 1995: 156).Footnote 22 Reference is thus made to ‘our Court of Justice’ (Wathelet in Iglesias et al., Reference Iglesias, Due and Schintgen1999: 443). We are told about the congenial atmosphere within the cabinet of each of the judges –‘one big happy family’ (Hoskins and Robinson, Reference Hoskins and Robinson2004: xv) – and their habitual lunchtime parade to the cantine of the Court: ‘we were the first Cabinet to dine en masse, but the Sevóns and the Ragnemalms (other ECJ judges) followed suit’. Some ‘disagreements and highly debated questions’ (Grevisse in Iglesias et al., Reference Iglesias, Due and Schintgen1999: 151) were sometimes on the menu but these would always take the form of a disinterested legal discussion ‘based on the esteem and friendship forged in the joint fulfillment of the task of ensuring the observance by all (…) of Community law and thus contributing to the structure of a Community legal order in accordance with the principles of the rule of law’ (Mertens de Wilmar in CJEC, 1986: 117). On the whole, the Court is staged as ‘a collegiate body made up not of different nationalities but of individual persons’ (Ole Due in CJEC, 1990: 61). United despite the diversity of the judicial and extra-judicial functions they carry out in Europe's legal environment (as judges, lawyers, experts, civil servants, professors, etc.), they know and recognize each other as insiders of the Court for which they have worked in the past, present, or future. The apparent multiplicity of points of view contributes to overshadow the reason for the communal presence in the Festschrift, namely their professional experience at the Court and, just as importantly, the subscription to the ‘Van Gend en Loos doctrine’. They contribute to identify both in-groups within this circular legitimization and out-groups who are excluded from this process: both experts and laypersons.

Stratifying the court: founding fathers, court spokesmen, and putative heirs

Within this transnational judicial circle as drawn throughout the Festschriften and tributes, symbolic and material exchanges take place across national, generational, and professional lines. What makes them particularly relevant to our purposes is the fact that current, former, and – as I argue hereafter – future members of the Court are the central players in these venues. They constitute the editors coordinating the written volume in honor of their former (judicial) master or colleague, and the vast majority of the contributors as they are responsible for almost half of the 511 contributions contained in these volumes, with 68 (current or former) ECJ référendaires, 57 former ECJ judges, and 113 current ones. To this number should be added the 21 future judges and advocate generals who took part. Most of the time, a select number of ‘founding fathers’ whose role in the Court's history is widely recognized are present in the celebration. Their participation (68 of 511 contributions) represents more than just an accolade. Through their presence, they knit an invisible thread that connects all of those, alive or dead, in office or in retirement, who belong to the ‘big family’ of the Court. Here, the great alumni are not the former university professors, but the survivors of the ‘generation of judges of the early 1960s (…), which resolutely worked out the basic principles of our case-law’ (Kutscher in CJEC, 1980: 17) and who are thus elevated to the rank of ‘founding fathers’ of the Court. Among them, Pierre Pescatore is most frequently invited to contribute to these collective publications (4 out of 14). Through his role in the negotiation of the Treaties of Rome, his numerous publications, his 20 years at the Court, and his longevity, he has become one of the main figures of the institution, a genuine trustee of the Community's judicial spirit. His statements show that he embraced this role enthusiastically: ‘although for a long time I remained the youngest of the company (of judges), I am now aware of being in Community terms one of the oldest. Indeed today, I have been connected with the Community for exactly 29 years, of which I have spent 18 as a judge’ (Pescatore in CJEC, 1986: 170). Other judges of the Court during the 1960s, such as Andreas Donner, Roberto Monaco, or Robert Lecourt, have also been invited to make respective contributions, depending on the nationality of addressee. By their presence, they certify the inter-generational continuity of the Court. By ensuring that the heritage of these ‘great alumni’ is passed on and that the flame of the ‘Van Gend en Loos doctrine’ is kept alive, the members of the honorary committee that supervises the Festschriften, most often composed of ECJ judges currently in office, are instituted as the spokesmen of the Court's jurisprudence, as referred to by President Gil Iglesias when he remembered ‘our predecessors whose contributions to the Court's rulings remain alive in our daily work’ (Iglesias in CJEC, 2003: 44). Indeed, the special value of this continuing historic thread stems in particular from the fact that by referring back to those who shaped the Court's history, the new generation of judges is able to perpetuate that history and thus play its role as heirs to the Court's heritage. In other words, the different forms of narrative on the Court's institutional identity also provide the occasion to designate those who can usefully invoke this common judicial heritage. By replicating on their own account ‘a university tradition that reserves this rare distinction for the elite of its professors’ (CJEC, 1998), the judges of the Court have to some extent copied this rite of passage where alumni and peers both praise and appropriate this heritage together.

Yet, not all current judges or advocate generals benefit from such commemorative undertakings: of the 61 judges that left the Court between 1981 and 2008, only one-fourth (n = 15) were granted such an honor. Those involved in paying these tributes – whether as a speaker during the eulogies (president of the Court or president of Chambers)Footnote 23 or as a member of the Festschriften honorary editorial committee – are the most integrated judges: their position within the Court (presidents or former presidents of the Court or of one of its chambers) and their seniority (an average of 12.6 years) are significantly higher than that of their peers. Such longevity, as illustrated by the Court's former president Lord Mackenzie Stuart, who ‘served with no less than 42 Judges and Advocates General, not to mention three Registrars’ (Mackenzie Stuart in CJEC, 1989: 201), puts them in a prime position to perceive the threats affecting the Court's perpetuity and react to them. This rite of remembrance may thus be conceived as a means used by a number of judges to establish the legitimacy of their temporal powers (as de facto spokesmen of the ECJ) by becoming the interpreters of the timeless ideals of the Court as embodied by the Court's ‘founding fathers’. The rest of the participants (from the law clerks organizing the Feschriften volume to the various authors) in these tributes, those who are neither former nor current judges in Luxemburg are not, however, merely a public attending this transmission ceremony. Most often, they are fellow countrymen or countrywomen of the addressee, reminding us of the double bonds of each of the Court's judges to transnational and national legal circles of EU law practitioners, a feature more generally characteristic of EU law (de Witte, Reference de Witte2008). The participants convened around the addressee thereby form a select group of EU lawyers from the same country sharing a special relationship with the addressee: depending on the latter's original profession, they can be former university colleagues (assistants or acquaintances), former law firm partners (collaborators or associates), or former judicial fellow workers, etc. Yet, although they praise the ‘Italian’, ‘German’, or ‘French’ tradition at the Court, these networks of friendship identify a national pool of persons who possess the professional and social qualities required of those who aspire to eventually inherit this tradition through an appointment at the ECJ. Among the 22 contributors to the Festschriften in honor of Baron Jossé Mertens de Wilmar, all of whom were Dutch speaking (including those of Flemish origin), there were one former judge, five judges in office and three référendaires also in office, and 17 other participants, including two future judges. Thus, the inter-generational bonds forged through these tributes establish genuine national career paths to the Court. The fellow countrymen and former référendaires called upon to celebrate the outgoing judge therefore appear as his natural heirs. Tasked with coordinating the Festschrift for their former master, they stand out as future candidates for the office of EC judge as shown by the fact that from the middle of the 1980s, a growing number of référendaires became judges at the Court.Footnote 24 Far from being illegitimate, these national breeding grounds, through which European judicial capital is accumulated, are often praised in speeches and Festschriften as a mark of excellence. When addressing the outgoing President, the Danish judge Ole Due, Judge Federico Mancini recalled: ‘that wonderful essay on the constitutional consequences of the accession of the Kingdom of Denmark to the European Communities which – a sign of destiny – bears, next to your signature, that of our colleague Claus Gulmann who today (22 years later) succeeds you as judge (…) May I add that Mr Gulmann was legal secretary to Max Sørensen, the first Danish judge (…)? Here we have an example of continuity almost virtually unrivaled in the 42 years of the Court's existence’ (Mancini in CJEC, 1995: 181). All in all, Festschriften and eulogies sanction both contours of a judicial community and its spokesmen, be they ‘founding fathers’ authoritatively embodying the Court's ‘eternal yesterday’, spokesmen in charge of leading the Court's currents, or (putative) ‘inheritors’, with each of these sub-groups calling the other into existence in a sort of continuous cycle of legitimacy.

Profiling the court: paths of EU judicial glory

The continuous referring back to the Court's jurisprudential acquis also allows the profiling of the Court's formal missions and most-suitable interpreters. Although the Court's members do not participate in the election of their successors, commemorations offer a rare opportunity to publicly set the unofficial parameters for what makes a ‘good Community judge’. Indeed, eulogists prefer to suggest ideal types of judges whose specific capacity to adhere to the EU's judicial spirit is highly valued. As a matter of fact, most of time, the recalling of individual characteristics only appears in respect of ‘individual accomplishments in building a collective undertaking’ (Iglesias in CJEC, 2003: 44). Paying his respects in memory of an advocate general who had died a few days earlier, the President of the Court referred to the advocate general's opinions that were published in the Court's reports as follows: ‘Karl Roemer's monument surrounds us in this building and it lies on our bookshelves’ (Mackenzie Stuart in CJEC, 1986: 161). Each time, the person's life is celebrated as if they were the incarnation par excellence of the legal person that the Court constitutes as a whole. In this regard, the construction of the biography of the judge – of the character-defining moments, the key stages – contributes to the construction of the office of judge at the Court. In this regard, eulogies form a privileged opportunity to define, crystallize, and impose specific criteria of professional worth within the European Court. Most of the time, the spotlight of the commemoration is on the person's role as an accomplished practitioner and a renowned academic, as a typical representative of his or her national legal culture and as a convinced European. In other words, both the ‘internal aspect of his responsibilities’ and the ‘international aspect of his activities’ (Iglesias in Iglesias et al., Reference Iglesias, Due and Schintgen1999: 17) are remembered. European judicial excellence thus consists of the capacity to combine simultaneously – throughout one's career – an anchorage in one's national legal culture as the basis of the ‘representativeness’ of the judge within the Community field, together with European (or even international) goodwill. In other words, the Court's judges do not seek to derive legitimacy only from their independence from the groups (including the Member States) that they are meant to judge; indeed, they seek to draw in equal measure upon their attributes as renowned legal scholars and experienced practitioners. This combination is repeatedly underlined as a balancing act: ‘Nor at that time of fruitful academic work did Mr Koopmans stand aloof from the world of practical law’ (Kutscher in CJEC, 1979: 26). ‘It is scarcely possible to imagine a more valuable addition to the Court in the task entrusted to it of declaring the law than this rare blend of experience in an official capacity, legal learning, insight and belief in the great venture which has now united our States and peoples for a generation’ (Mertens de Wilmar in CJEC, 1982: 86). This ‘wealth of experience will enable (the appointed judge) to discharge to the full the duties of office’ (ibid.). Thus, breadth of experience is considered as the key criterion for carrying out the role of judge at the European Court of Justice, over and above the proof of a candidate's independence from those who are the potential subjects of the Court's rulings. It all appears as if the fact of having successively directly represented each of the EC-implicated actors present would give the judge full legitimacy to rule on the disputes among them. In this context, the key factor is reflected in the comment by the German judge Everling with regard to his own career: ‘my work always lay on the dividing line between the Community and the Member States. In Brussels I represented German interests and in Bonn I represented Community interests’ (Everling in CJEC, 1989: 181). Hence, the ‘good ECJ judge’ declares neither his pan-European beliefs – references to European militancy, a rare thing, disappear almost entirely during the 1990s – nor demonstrates his independence from EU political and social games; instead, he manages to serve equally all the interests that are present in the EU polity while only ever serving the law. This model of excellence was emphasized by Advocate General Van Gerven when he retired from the Court: ‘for a jurist who has dedicated his life to the study and the practice of law, in particular to Community law, leaving an institution is nothing out of the ordinary, even if that institution is the Court of Justice. To give up one particular type of legal practice is not to renounce the law. For someone whose ideal is to practice law in varied contexts and in different posts, it is normal to close one chapter and move on to the next. (…) That is what I have been doing for 33 years’ (van Gerven in CJEC, 1995: 149). Thus, the model of excellence, which gathers strength with each tribute, praises the European judge as a pontiff of Europe, with the idea that he or she is able to build bridges between the different interests present in the EU polity (François, Reference François1992). In other words, it is through a subtle mixture of proximity to and distance from the groups that confront one another in the construction of the EU that ‘the ECJ judge’, as represented by the Festschriften and relevant tributes, claims to help the Court reach a position that transcends each of them. In a context where there is no settled definition, nor official criteria, of what it takes to access the Court, such profiling provides role models that wannabe judges are therefore incited to refer to.