How one pioneering Italian woman transformed EU law

In 1974, however, Viscardini decided to return to Italy. The European legal order was well developing in what we now sometimes call the ‘euro bubble’, but in the member states — in ministries, local courts, among citizens and small businesses — few seemed to be aware of it at the time.

It worried Viscardini that lawyers in Italy had little understanding of new, liberal European legislation on free movement of workers or consumer rights, which took precedence over national law and thus directly affected citizens. Judges received no training in European law at the time, and did not know how to take cases to the European Court. As a result, everyone continued to apply just national law.

Together with a handful of lawyers in Germany, Italy and France, Viscardini decided to start pioneering the legal construction of Europe in these countries during the 1970s and 1980s. In a fascinating new book, The Ghostwriters; Lawyers and the Politics behind the Judicial Construction of Europe by Tommaso Pavone — an assistant professor at the University of Arizona — she explains that ‘Euro-lawyers’ like her had lived through the horrors of the second World War and saw European integration — then in its early days — as a monumental step to a better society.

But since national political leaders did not do enough — and often did nothing — to make sure national law reflected their own European decisions, few people in the member states were aware of this. Seeing European integration thus running into a wall of national indifference and incompetence, the pioneering Euro-lawyers started to provoke court cases by asking citizens or small businesses to sue each other.

This way, they wanted to force judgements on the primacy of European Community law, hoping the new Europe would finally ‘land’ in the member states.

Italian football

One of the cases Viscardini and her husband, also a lawyer, took to a local court in Italy was about football — a popular topic. At the time, clubs had great difficulty contracting foreign players. Some clubs knew that professional footballers were covered by free movement of European workers, but did not want to antagonise the Italian Football Federation by questioning its restrictions on hiring foreign players.

The two lawyers arranged a cheap advertisement in a Belgian newspaper on behalf of an Italian club looking for foreign players, in order to provoke a lawsuit. The judge knew nothing about free movement in Europe, but the lawyers fed him the relevant articles of the Treaty of Rome that guarantee non-discrimination in employment on the basis of nationality.

Then, they ghostwrote a referral to the European Court of Justice. The only thing the judge had to do was to send it to Luxembourg. The court ruled that professional footballers were indeed covered by the principle of free movement, changing European football forever.

Pavone interviewed many Euro-lawyers from those early days. Their stories are instructive and cheerful — they tell how they, as young activists, outsmarted conservative national elites by pushing open the doors of court houses and law schools to widen European law’s reach within the member states. This is an important story, running counter to the classic myth that national judges had been the ones spreading European law in the member states. Pavone, who himself initially believed this myth, had set out to speak to those judges, documenting their stories before it would be too late.

To the author’s surprise (and initial disappointment) they told him they had never played an important role, because they were ignorant of European law and too busy with their national caseload — problems that, many said, persist to this day in some EU countries.

Luxembourg or Strasbourg?

Shockingly, some younger judges admitted in the book they still do not know the difference between the Court in Luxembourg (European Union) and the one in Strasbourg (Council of Europe).

Moreover, the judges told him that references to the court were not appreciated at the time, were discouraged or even blocked by national authorities, especially in France. Many confirmed that such references could jeopardise a judge’s promotions. Without the Euro-lawyers, who in the 1970s and 1980s were considered ‘weird’ and ‘extraterrestrial’, the judicial construction of Europe would not have taken off in the same way.

Nowadays, European law is big business. Large law firms working for multinationals dominate the profession. Most lawyers employed there are specialised in one field, like EU competition law.

Still, Pavone argues that Euro-lawyers remain much needed today. He takes the ‘Xylella’ case as an example, where citizens in Bari took the European Commission to court to fight heavy-handed European regulation against a tree disease in their area whereby most of their healthy olive trees had to be felled.

They were represented by local lawyers unfamiliar with European law and fighting the wrong battle. The result was that citizens lost their case and became furious at the ‘monsters’ in Brussels. Ignorance with EU law, the book argues, can fuel euroscepticism.

In another field, too, Euro-lawyers remain crucial.

While countries like Poland and Hungary destroy the independence of the judiciary, employing lawyers looking for loopholes in EU law to help them get away with it, the legal response nowadays tends to come from a few European law professors like John Morijn, Daniel Kelemen or Alberto Alemanno, who speak out publicly — but hardly ever from lawyers.

In Poland, lawyers and judges have been scrambling in recent years to find out how to stop the erosion of European rights by punting cases to the European Court in Luxembourg.

Another vocal law professor, Kim Scheppele, has observed that “a citizenry trained to resist the legalistic autocrats must be educated in the tolls of the law”.

Pavone calls them “missing agents”, whose task it is to give Europe back, in a way, to its citizens. He is right. The EU is based on the law. The European legal order protects European citizens’ fundamental rights and daily life. It needs lawyers who, by exerting continuous pressure, will fight to make it fair and effective — just like those ‘weird’ Euro-lawyers did some decades ago.