How a pioneering Italian transformed European law
Europe, it seems, needs more people like Wilma Viscardini. In the 1950s, she became the first female lawyer in the town of Rovigo, in northern Italy, and one of the few in the whole country to specialize in European law.
Later, while working for the Legal Service of the European Commission, she represented the Commission in landmark cases, such as “Van Gend & Loos‘ (1963), before the European Court of Justice in Luxembourg.
In 1974, however, Viscardini decided to return to Italy. The European legal order was developing well 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 be aware of it at the time.
It worries Viscardini that lawyers in Italy have little understanding of new liberal EU legislation on free movement of workers or consumer rights, which takes precedence over national law and therefore directly affects citizens. The judges received no training in European law at the time and did not know how to approach the European Court. As a result, everyone continued to apply only national law.
Along with a handful of lawyers in Germany, Italy and France, Viscardini set out to pioneer the legal construction of Europe in those countries during the 1970s and 1980s. In an exciting new book, The Ghost Writers; Lawyers and politics behind the judicial construction of Europe by Tommaso Pavone — 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 infancy — as a monumental step towards a better society.
But as national political leaders did not do enough – and often nothing – to ensure that national legislation reflected their own European decisions, few people in member states were aware of this. Seeing European integration hit against a wall of national indifference and incompetence, pioneering Euro-lawyers began to provoke lawsuits by asking citizens or small businesses to sue.
In this way, they wanted to impose judgments on the primacy of European Community law, hoping that the new Europe would finally “land” in the member states.
italian soccer
One of the cases that Viscardini and her husband, also a lawyer, took to a local court in Italy concerned football – a popular subject. At the time, clubs had great difficulty recruiting foreign players. Some clubs knew that professional footballers were covered by the free movement of European workers, but did not want to upset the Italian Football Federation by questioning its restrictions on hiring foreign players.
The two lawyers put together an ad 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 provided him with the relevant articles of the Treaty of Rome which guarantee non-discrimination in employment on the basis of nationality.
Then they wrote a referral to the European Court of Justice. The only thing the judge had to do was send him 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 joyful – they tell how, as young activists, they outwitted conservative national elites by opening the doors of courthouses and law schools to widen the reach of EU law within member states. This is an important story, which goes against the classic myth that national judges were the ones who spread European law in the Member States. Pavone, who himself initially believed in this myth, set out to speak to these judges, documenting their stories before it was too late.
To the surprise (and initial disappointment) of the author, they told him that they had never played an important role, because they were unaware of European law and were too busy with their national workload – problems which many believe persist to this day in some EU countries.
Luxemburg or Strasbourg?
Surprisingly, some young judges admitted in the book that they still do not know the difference between the Court of Luxembourg (European Union) and that of Strasbourg (Council of Europe).
Moreover, the judges told him that referrals to justice were not appreciated at the time, were discouraged or even blocked by national authorities, particularly in France. Many confirmed that such references could jeopardize a judge’s promotions. Without the Euro-lawyers, considered in the 1970s and 1980s as “weird” and “extraterrestrial”, the judicial construction of Europe would not have taken off in the same way.
European law is big business these days. Large law firms working for multinationals dominate the profession. Most of the lawyers employed there specialize in one area, such as European competition law.
Yet Pavone argues that Euro-lawyers remain indispensable today. He takes the ‘Xylella’ as an example, where citizens of Bari took the European Commission to court to fight tough EU regulations against a tree disease in their area, resulting in the felling of most of their healthy olive trees.
They were represented by local lawyers unfamiliar with European law and fighting the wrong fight. The result was that the citizens lost their case and became furious with the “monsters” in Brussels. Ignorance of European law, according to the book, can fuel Euroscepticism.
In another area too, Euro-lawyers remain crucial.
As 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 now tends to come from a few European law professors like John Morijn, Daniel Kelemen or Alberto Alemanno, who speak publicly – but almost never through lawyers.
In Poland, lawyers and judges have scrambled in recent years over how to stop the erosion of European rights by bringing cases to the European Court in Luxembourg.
Another vocal law professor, Kim Scheppele, observed that “a population trained to resist legalistic autocrats must be educated in the consequences of the law”.
Pavone calls them the “missing agents”, whose task is to return Europe, in some way, to its citizens. He is right. The EU is based on law. The European legal order protects the fundamental rights and daily life of European citizens. It needs lawyers who, with continued pressure, will fight to make it fair and effective — just like those “weird” Euro-lawyers did decades ago.