 Good afternoon and welcome to the Institute to all the people who are looking in on us and I hope you enjoy our afternoon's talk today. I have few little housekeeping things to put to you. My name is Nora Owen and I'm on the board of the Institute. The presentation is going to be on the record and if and when it comes to question time and you want to put in a question, please give your name. And if you are representing an organization, a university, a college or whatever, please say that as well. People can join in and listen to us and put their questions during this talk if they strike you or at the end. We are very happy today to have a wonderful speaker. Just a little bit about the event. The European Union is often depicted as a cradle of judicial activism. It's great term and a policy built by the courts. In a keynote address today on his award winning book, The Ghost Writers, Dr. Tomazzo Pavone will show how this judge centric narrative conceals a crucial arena for political action. Now I read that a few times to make sure I understood what it meant and what it actually means is that we think the laws all come from the European Union and the people in the offices and that. But in fact, the judges and the lawyers throughout Europe, they also take great political action in creating the laws that they would like to see. He will argue that beneath the radar, European integration unfolded as a struggle between judges who resisted European law and lawyers who pushed them to embrace changes. So on notes to us, this activity was going on behind the scenes with the lawyers and the judges that we all respect so much. So today, ladies and gentlemen, the name of our event is The Ghost Writers, Lawyers and the Politics Behind the Judicial Construction of Europe. It's an exciting title. I love the title, The Ghost Writers. Dr. Tomazzo Pavone is Assistant Professor of European Politics at the University of Toronto and visiting researcher at the Arena Center for European Studies at the University of Oslo is joining us today from Toronto. His research traces how interactions between the lawyers, as I say, the courts and the policy makers impact on political development, social change, and the rule of law in Europe. He has a PhD in 2019 from Princeton University, and I'm really looking forward to hearing from you, Dr. Tomazzo, with this incredible title, The Ghost Writers. So I now go to hand over Dr. Tomazzo will speak for about 20, 25 minutes, and then we'll have time for questions. So good afternoon, and you're very welcome to the institutes. Nora, thank you so much for that really kind, warm, generous introduction. And thank you for your time and sharing this talk. Thank you also to Dr. Barry Colfer for the generous invitation to address the vibrant intellectual and policy community of the Institute, and to Dylan Matthews for all the support with the logistics, especially as a young researcher in the early stages of my career, it's a real privilege to be to be with you. I'm just going to share my screen now so I have a few slides. Right. There we go. Okay. So today what I want to do is to talk about law and politics in the European Union. And I want to start with the puzzle that is at the heart of my book. The European Union has no army. It levies almost no taxes, and its bureaucracy is comparable in size to that of a large city. And yet, even as the EU lacks these Weberian attributes of stateness, it acts as an inexhaustible producer of law, countless treaty articles, regulations, directives, court cases governing everything from consumer and environmental protections to free movement to freedom and intellectual property. So how can all of these laws be made real on the ground? And the answer is that the EU governs not via soldiers and tax men, but through a transnational network of courts. As national judges apply European law in the cases before them, they become the street level bureaucrats through which citizens are most likely to encounter the political authority of the EU. But why would national judges play ball and participate in the judicial construction of Europe? And the conventional answer offered by prominent legal scholars and political scientists is that judges turn to European law to bolster their own power. This view came to be known as the judicial empowerment thesis. And the story it tells goes something like this. Before the EU's existence, European states had their own domain of national law displayed here in green and lower courts in national judiciaries were bound to their Supreme Court's interpretation of national law, or their decisions would be overturned upon appeal. And furthermore, especially in continental Europe, ordinary judges lacked American or common law style judicial review powers. But once the European community was created via the Treaty of Rome in 1957, a new field of international law was forged, along with the European Court of Justice, or ECJ, that quickly proclaimed that European law trumped conflicting national law and could be directly applied by the humblest local judge. And ordinary judges were presumably all too eager to pounce on this opportunity. Whenever they encountered a national law or Supreme Court decision that they disliked, and that might violate European law, they could rebel. They began referring these cases in earnest to the ECJ via a mechanism known as the preliminary reference procedure, Article 177 of the Treaty of Rome. And through this alliance with the ECJ, national judges empowered themselves to exercise judicial review, often for the first time, to challenge their superiors and to Europeanize domestic public policies. This is a classic self-empowerment story of national judges mobilizing a new body of legal rules to expand their powers. It's a story that the EU's critics seized upon and spun into forceful charges of unbridled judicial activism. Think of law professor Halter Rasmussen in Copenhagen, who in 1986 decried how European integration rested on, quote, judicial activism beyond the limits of the acceptable, in quote. Or think of English judge Lord Denning's famous quip in 1974 that through the capillaries of national judiciaries, EU law becomes, quote, an incoming tide. It flows up the estuaries and down the rivers. It cannot be held back, end quote. It's this narrative that seduced my imagination as a young researcher. But when in the summer of 2015, I began visiting courts in three founding member states in Italy, France and Germany. Something was off. I was butting my head with a very different reality, and it looks something like this. I encountered courts that were overworked and understaffed. I learned that to this day, many practicing judges have not received training in European law and that in the past, the state of EU legal training was even worse. I realized that overworked judges are hesitant to apply European rules that they hardly know because they might make a mistake. And I learned that judges in civil service judiciaries are reluctant to rebel against their superiors because it might harm their reputation and careers. Rather than emancipated self-empowering activists, the lower court judges I encountered were more akin to street level bureaucrats doing their best to deal with the trudge of daily work. Don't take my word for it. Let me just share two representative quotations capturing light motifs that suffused my conversations and the oral histories of judges. One Italian lower court judge explained why his colleagues stick to the mundane application of well-known national rules rather than seeking points of contact with the EU law. He said, quote, the workload completely frustrates the judge, so many judges don't come to EU training because on Monday through Friday they hold the hearings. On the afternoons they must write the judgments, they must attend section conferences, they have administrative duties to attend, and in this bureaucratic silence EU law dies. The striking result of this bureaucratized death is that to this day, seven decades almost into the EU's lifespan, half of lower court judges in surveys report not receiving any training in EU law and three-fifths report not knowing how to solicit the ECJ if the occasion required it. One French judge confided on the record what many others confided off the record, quote, I would not even know who to address myself to at the ECJ to know what I can ask. We have the fear of referring for nothing. To refer a question already posed, we don't know enough. Visiting with judges convinced me that the judicial empowerment thesis may mask as much as it reveals. In order to become motors of Europeanization, lower courts clearly needed an outside push. And this is the core argument of my book. Far from cradles of judicial activism, national judges broadly resisted empowering themselves with European law because they were institutionally constrained by excessive workloads, lackluster legal training and the careerist pressures of their judicial hierarchies. The catalysts of change proved instead to be a rag tag group of what I call Euro lawyers who faced fewer bureaucratic shackles. Under the sheepskin of rights-conscious litigants and activist courts, these entrepreneurs sought clients willing to break national laws conflicting with European law. They then lobbied judges about the benefits of upholding EU rules and they propelled them to submit cases to the ECJ by ghostwriting their referrals. So behind the scenes, the judicial construction of Europe was largely propelled by lawyers who converted national courts into transmission belts linking civil society with European institutions. Now to sort of breezely walk through this argument, I want to briefly outline the research design that undergirds it. I'll show you some evidence of lawyers' impact and how Euro-lawyering evolved over time and some of its limits as a repertoire for change. And finally, I'll conclude with some broader takeaways about European integration and putting the EU experience in a broader context. So my book draws on 15 months of fieldwork in the three largest founding member states of the EU, that's Italy, France and Germany. Now to pick my field sites, what I did is I mapped the distribution of all cases referred by national courts to the ECJ. And you can see these cases here where the larger the dark blue circle, the more referrals to the ECJ from judges in those locations. And then I chose to visit some cities where courts have historically referred a lot of cases to the ECJ. And I counterbalanced these hot spots of judicial activity with more intermediate or cold spot locations to find out what was missing in those places. Throughout all of this, I gathered several bodies of evidence beyond the litigation data and the maps I just showed you. I conducted over 350 interviews with lawyers and judges. I sought out previously unavailable archival documents from the historical archives of the ECJ, from local newspapers, and from the personal archives of the lawyers themselves. And what I found is that Euro-lawyers broke from conventional lawyering. We usually think of lawyers as go-betweens, where you've got a rights-conscious client who solicits a lawyer that lawyer represents the client's interest before a capacious judge and the judge issues a decision. Instead, Euro-lawyers acted as ghost writers of judicial policymaking. They were the ones who sought out clients willing to challenge national laws. Those clients then performed agreed-upon solicitations. And then when faced with overworked and under-trained judges, the lawyers would propose ready-made judicial orders that the judges would adopt. So whereas in the go-between model, agency and change flows through the lawyer, in the ghost writer model, agency radiates out of the lawyer who becomes the hidden catalyst of court-driven change. Now the pioneers of this ghost writing in the 1960s and 1970s were really few and far between. My research led me to the paper trails of just 12 teams of lawyers. Here they are. And as you might expect, these individuals weren't representative of the bar as a whole. They had some distinguishing traits in common. First, all of them remember surviving the Second World War. Some had their property expropriated, lost family members, or had their own close calls with death. So they were very skeptical of state power and committed to a liberal project of uniting European states through law. As one of these Euro-lawyers in Germany told me, quote, I remember the Second World War. I remember the bombing nights. So we have a different approach to Europe. When I'm asked what are you, I tend to say I'm European and not German. But I must be careful because you might say grandpa here is always talking about the war. But it's a fact that for us, Europe was a gift. Second, a majority of these lawyers found that the first transnational lawyers associations to promote European law, the most important here being FIDE, the Fédération Internationale pour le droit européen, and its national subsidiaries. And this was crucial because in the early decades, national law schools neglected European law courses. So the lawyers stepped in to do what the law schools were not. And finally, as I consulted the writings and spoke with the pioneers who were still alive, it was clear that they saw their lawyering as a politics via other means. They were mischievous. They relished their capacity to catalyze reforms through their litigation efforts. As one of these entrepreneurs in Italy told me, quote, you set the fuse and it exploded with big booms well into the 1980s. There was a sense we could do the unthinkable. We were captured by the beauty of novelty. It wasn't about omnipotence, but about participating. Now, what's striking is that this handful of lawyers solicited almost half of all national court referrals to the CJ through 1980 and over 500 cases over the course of their careers. Some 88 courts across 74 cities solicited the European Court for the very first time when one of these pioneers showed up. And what's more, nearly half of those courts would never refer a case again unless one of these Euro lawyers showed up again. So how did they do it? Well, they did it through a repertoire of strategic litigation consisting of two steps. The first was the construction of test cases. And the second was the ghost writing of judicial orders. So let me just sort of share one of my favorite fieldwork stories to bring this repertoire to life. It's the story of how the ECJ established the free movement of professional athletes in the European community. And it turns out that this case was ghost written by a Euro lawyer named Vilma Viscardini. Miss Viscardini was a trailblazer. She was the first woman admitted to practice in the northern Italian town of Rovigo. She fell in love with a man named Gaetano Dona, who was active in the European Federalist movement. And in the 1960s they moved to Brussels to work in the fledgling executive body of the EU in the European Commission. And it was there that Viscardini recalls feeling like she lived in a bubble. Nobody back home seemed aware of the European community's existence. So in the early 70s, she moves back to Rovigo. She starts visiting schools and civic associations to talk about Europe. But people, she says, would look at her funny like she was recounting fairy tales. And that's when she decided to shake things up via a lawsuit that would demonstrate the real concrete impact that European law could have on people's lives. And she zeroed in on the thing that all Italians and most Europeans seem to care about, which is football. You see, she knew that member states like Italy required that you be a citizen of that state to be employed in one of their football clubs. And she was convinced that this violated European rules protecting the free movement of workers against discrimination based on nationality. So Viscardini reached out to a lawyer friend named Mario Mantero, who happened to be the ex-president of the local football club, and she constructed a test case like this. Mr. Mantero would ask her husband, Mr. Dona, with publishing a recruitment ad in a Belgian sports magazine. And here's the ad from the archives. Come play for us in sunny Rovigo, the ad says. Mr. Dona would then ask to be reimbursed for the modest expense of purchasing the ad. And then Mr. Mantero surprisingly would refuse. Mr. Dona, you've acted prematurely. Don't you know that Italian law forbids me from even considering to hire foreign football players no reimbursement for you. And then Mr. Dona, in righteous indignation, would turn to his wife, Ms. Viscardini, and sue before the local justice of the peace, who happened to be another family friend and practicing lawyer. And then Ms. Viscardini gave the judge a crash course in European law and drafted a referral to the ECJ that the judge adopted without changing a word. As Viscardini confided, quote, obviously I had to prepare everything myself, writing both parties briefs, as well as the judge's order of referral to the ECJ. And this was all possible because Mr. Mantero and the judge were both lawyers who knew me and my husband personally and who placed their maximum trust in us. This kind of ghost-striding of judicial orders was not a one-off. I was able to verify that it happened time and time again, because during my fieldwork I got lucky. The ECJ finally opened its historical archives. So I was able to access dozens of dossiers for the first national court referrals to the ECJ. And I was able to compare the lawyer's memos with the judge's decisions. And what I repeatedly found was that the lawyers provided ready-made drafts of referrals to the ECJ that the judges would then copy and paste. A great example of this is from one of the very first referrals by a lower court in France. This case was ghost-stritten by a Euro lawyer named Lise Funke-Bretano, a Jewish survivor of the Holocaust and an unwavering Euro federalist throughout her life. In this case, Ms. Funke-Bretano challenged regulatory restrictions on dairy exports, and she found herself before the commercial court of Paris, and this court was infamous. Not only had it never referred a case to the ECJ before, but in a prior case, when Ms. Funke-Bretano had cited the Treaty of Rome, the president of the court had interrupted, counsel, what treaty are you talking about? So Ms. Funke-Bretano held the judges by the hand and engaged in what other Euro lawyers described as spoon feeding. She walked the judges through the A's, B's and C's of the Treaty of Rome. And then she ghost-rode the exact questions that the judge could pose to the European court, and the questions were obviously framed to kindly invite the European court to dismantle trade barriers. And the judge proceeded to copy this text without changing a word. But this Euro lawyering didn't stop in the 1970s. It evolved, and in so doing, it exposed its own limits as a repertoire of change. If we plot the yearly number of preliminary references to the ECJ from Italy, France and Germany, displayed here in light gray, and then we plot the share of these referrals that were solicited by the pioneering first Euro lawyers, displayed here in black, we can see a striking shift. The 1960s, 70s and early 80s was truly the age of the pioneers when a small group of committed Euro lawyers mobilized almost half of all national court referrals to Luxembourg. And you can see this here in the dashed red line, the percent of referrals solicited by the first Euro lawyers. Since the 1980s, however, you can see that their influence has steadily declined as a new cast of actors enters center stage. You see, even though the first Euro lawyers were motivated by idealism, they invented a repertoire of strategic litigation that was gradually co-opted by a rising network of corporate law firms. Now, through the 1980s, big law was largely absentee continental Europe. It was hampered by national restrictions on the number of firm offices, the number of lawyers who could practice in them. But as American and British law firms enter the market and sort of lobby to chip away at these restrictions, European big law began to take off. Here's the growth across Italy, France and Germany of corporate law firms ranked in two influential journals for specializing in EU economic law. Those journals are called Chambers Europe and the Legal 500. I call these Euro firms. By linking lawyers to deep pocketed clients willing to fund ambitious escapades to the CJ, these firms plucked young aspiring Euro lawyers and forged a corporate ecology of European litigation. And I know that's a little bit of a mouthful. So here's what this looks like on a map. In blue is the distribution of Euro firms and their branch offices from the 1960s to the 2010s. And if we then superimpose some heat maps showing where national judges refer more cases to the ECJ in the darker red, over time you can see there's this growing congruence in a series of hotspots. And the reason behind this congruence can be traced to the profound impact that Euro firms have on the legal consciousness of judges. When I conducted field work in wealthy globalized cities, judges told me that they now take EU law and soliciting the CJ for granted, because they're regularly mobilized by Euro firms. For instance, as one judge in Munich told me, quote, you don't understand EU law if you don't have contact with the big law attorneys who come to my court every time. This is essential for me to understand how the game is played. You've got to hear it again and again. But outside of these hubs of Euro lawyering, EU law falls through the cracks. Judges continue to resist it as distant or inapplicable. Representative of what I heard is what a judge in Marseille confided, quote, there's certainly business lawyers elsewhere, but we don't see them in our court. So for the judge in his every day, EU law remains very far away. It's because of this that we don't apply it. It's not in our DNA to solicit the ECJ. We don't even know how to do it. This uneven judicial enforcement means that the EU's on the ground capacity to govern through courts and law remains patchworked and uneven. It varies based on place, based on issue area. So even as the EU expands its attention to say improving labor and consumer protections, fundamental rights, environmental rights, the political economy of Euro lawyering on the ground is moving along a countercurrent. It's clustering back in fields like competition and taxation law of greatest interest to corporate clients agglomerating in global cities. I want to get to the discussion. So let me just leave you with three takeaways. And the first takeaway is that the story I've just told you is not destined to just remain a European story. The protagonists of my book tapped opportunities for transnational policymaking that are on the rise outside of Europe as well. Over the past few decades, there's been a profusion of permanent international courts. You can see that in this graph in the light gray. But what's really significant, and you can see this here in the black, is that there are now a dozen transnational courts that explicitly emulate the ECJ's preliminary reference procedure. So these are courts that empower individuals in civil society to challenge their own states through a transmission belt linking national judges, civil society and international judges. Now, most of these courts are not very active or anywhere near as authoritative as the European Court, but the opportunities to engage in the type of lawyering that I've described have certainly proliferated since the end of the Cold War. Second, institutional actors like judges are not hardwired to expand their power. In fact, it's often actors with little formal authority of their own who are the drivers of institutional empowerment and of change. The judges that I met in person and in the archival paper trails had compelling reasons not to empower themselves with European law. And when they did, it was often because dexterous attorneys had put them up to it. And the lawyers matter most precisely when judges are bureaucratically constrained as change agents and clients are less aware of their legal rights, and they can exercise their agency behind the scenes without disturbing the public appearance that courts and clients are doing all the work. And finally, contra the populist caricature of the EU as an ever expanding top-down bureaucracy or a juristocracy. My book demonstrates that the EU legal order was forged through a series of struggles, contingent bottom-up actions that blurred the boundaries between the public and the private, between the national and the supranational. The EU and its legal order was only made real on the ground where private litigants could be cajoled into acting as public enforcers, where national courts could be pushed to identify themselves as European courts. So the history of the EU is not the history of the inevitable rise top-down of a super state. Instead, it's the story of how private actors with little formal authority creatively mobilized to remake law and politics and to tortuously build a transnational polity that despite all its struggles remains nowhere as real as in the field of law. And those are my comments. I'm really looking forward to your questions and discussion.