The Garden Grows Lusher: Completing the Narratives on Opinion 1/75

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Table of Contents: I. Introduction. – II. Background of the case. – III. A short journey through the dossier. – IV. An insight into the atmosphere at the Court: procedural documents. – V. Of incomplete narratives and forks in the road: learning from the submissions. – V.1. Paving the way to admissibility: the affirmation of kompetenz-kompetenz and the acceptance of exclusive community competence. – V.2. Towards exclusive competence: what types of arguments interest the Court? – VI. Conclusion.

Abstract: In the European legal tradition, legal researches typically do not have access to court documents to the same extent as in the USA. This has partially changed in 2015, when the Archives of the Court of Justice of the European Union first became available for public consultation. This Article inspects the dossier de procédure in the Opinion 1/75 case and discusses how our knowledge of the case itself, and the development of EU law more generally, may be enhanced as a result of the availability of the archival material. Through analysing the dossier, the Article demonstrates, on the basis of internal communication between the members of the Court, that there was an atmosphere of novelty and urgency within the Court at the time and that the entire procedure was considerably micro-managed by President Lecourt. As the Court did not report the arguments the parties made in the Opinion, they are revealed for the first time as the submissions of the actors in the proceedings are made available. Analysing these arguments demonstrates that there was a kompetenz-kompetenz dimension to the case which remained hitherto hidden and unnoticed in scholarship as arguments to this effect were ignored by the Court when ruling on admissibility. It also demonstrates that when deciding on merits, the Court routinely responded to some types of arguments (textual, literalistic) and routinely ignored others (factual, practical, policy), while devising some of them (teleological) proprio motu. These new findings complete the existing historical narratives about Opinion 1/75.

Keywords: CJEU archives – Opinion 1/75 – kompetenz-kompetenz – external relations – methods of interpretation – President Lecourt.

European Papers, Vol. 6, 2021, No 2, pp. 869-879
2499-8249 - doi: 10.15166/2499-8249/500

* PhD Researcher, European University Institute,


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