The Court of Justice in the Archives Project: Analysis of the Opinion of the Court of 11 November 1975 (1/75)

EUI Academy of European Law Working Paper Series, No. 2021/11

50 Pages Posted: 6 Jul 2021

See all articles by Jaka Kukavica

Jaka Kukavica

European University Institute

Date Written: June 20, 2021

Abstract

This Working Paper is part of the CJEU in the Archives Project and it discusses the dossier de procédure of the Opinion 1/75 case. It does so in three parts. Firstly, it discusses the state of the art in literature on Opinion 1/75, highlighting the narratives and understandings of the case we have built before the opening of the CJEU archives. Secondly, it analyses the contents of the Opinion 1/75 dossier de procédure – the procedural documents, observations submitted by the Member States and the Community institutions, and the evidence submitted to support those observations. None of these documents have been available to the public prior to the opening of the Archives. Finally, the Working Paper discusses how our existing understanding of the Opinion 1/75 case, and the narratives we have surrounding it, can be enriched on the basis of materials found in the dossier de procédure. It demonstrates that the case was marked by efforts of President Lecourt to micro-manage the case, while there was an atmosphere of novelty and urgency within the Court at the time. On the basis of an analysis of arguments submitted to the Court by Member States and Community institutions, which were not reported by the Court in the Opinion and are thus revealed for the first time, the Working Paper argues that there was a hidden kompetenz-kompetenz dimension in the case which has remained hidden thus far. It also demonstrates how the Court responded to certain types of arguments; most importantly it shows that teleological arguments that permeate Opinion 1/75 were not advanced by any of the parties but were devised by the Court proprio motu.

Keywords: CJEU Archives, Opinion 1/75, Kompetenz-Kompetenz, EU External Relations, Methods of Interpretation, President Lecourt

Suggested Citation

Kukavica, Jaka, The Court of Justice in the Archives Project: Analysis of the Opinion of the Court of 11 November 1975 (1/75) (June 20, 2021). EUI Academy of European Law Working Paper Series, No. 2021/11, Available at SSRN: https://ssrn.com/abstract=3871689 or http://dx.doi.org/10.2139/ssrn.3871689

Jaka Kukavica (Contact Author)

European University Institute ( email )

Villa Salviati
Via Bolognese 156
Firenze, Toscana 50139
Italy

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