Paving the Road to ‘Legal Revolution’: The Dutch Origins of the First Preliminary References in European Law (1957–1963)

This article reconsiders the driving forces behind the active role of Dutch courts in the early development of European law by analysing the histories of the 1962 Bosch and 1963 Van Gend en Loos preliminary references. The legal context of these path&#8208;breaking references and their crucial impact on the development of a constitutional doctrine in European law are evident. Yet for understanding the emergence of the cases, their political and economic contexts need to be added to the well&#8208;known favourable constitutional settlement from which they arose. Adding contingency to the narrative of the Netherlands as the proverbial &#8216;good European&#8217;, this article reports how the pavement for the &#8216;road to Luxembourg&#8217; was made up of materials as diverse as an open stance towards international law, a black market in electronic equipment, and a dispute on the definition of Harnstoffharz.

history', 15 this article renews earlier pleas to link the debates and developments regarding European law and its enforcement to the market integration that was at the heart of the EEC Treaty. 16 Aiming to understand better the origins of both the 1962 Bosch preliminary reference and the 1963 Van Gend en Loos case, this study deals chronologically with the separate yet narrowly intertwined contexts of these two cases. In the first three sections, it demonstrates how the possibility of using the preliminary reference procedure had already come up in Dutch legal debate in 1957, in the context of the EEC Treaty clauses on competition. While specialized competition lawyers took the lead in these discussions, their concerns regarding the application of these treaty clauses in the Netherlands met with more general considerations vis-à-vis the uniform application of EEC law voiced by a small group of legal professionals gathering around Leiden University's new Europa Instituut. In addition, the opening of the road to Luxembourg in 1961 fed in to a well-established practice of litigation on cartel agreements.
Similarly, the famous Van Gend en Loos reference that is dealt with in the last two sections followed up on scholarly explorations on the question of direct effect, as well as the important precedent created by the Bosch preliminary reference. However, it was also a successful application of the new EEC legal framework to a specialist dispute over import tariffs that went back to long before the foundation of the EEC.

| SETTING THE SCENE: THE PRELIMINARY REFERENCE PROCEDURE AND THE INTERPRETATION OF ARTICLE 85
Before the Bosch case in 1961 led to sending the first preliminary reference to the ECJ-an occasion that allegedly was celebrated with champagne in Luxembourg-the use of the procedure described in Article 177 of the EEC Treaty was all but self-evident. 17 It was contested even among the ECJ judges, as became clear during their visit to the Netherlands in 1959. 18 However, in 1957, P.W.L. Brijnen and H.W. Wertheimer, in-house lawyers of the Dutch multinationals Bataafse Petroleum Maatschappij (BPM, currently part of Shell) and N.V. Philips had been amongst the first to address the possible use of the procedure in a joint article on the interpretation of the EEC Treaty's competition clauses. 19 Where did their interest in this procedure come from? Indeed, the articles on competition provided a major challenge to Dutch national competition legislation. In general, the Dutch legal order was very open to treaty obligations. In 1953 and 1956, constitutional reforms had cleared the way for an almost unlimited transfer of competences to international organisations, safeguarding key constitutional competences by no more than a two-thirds majority in parliament. Also, the reforms had introduced new provisions on the primacy of self-executing provisions of international treaty law-in the terminology of the constitution: those provisions considered 'binding on anyone'. The far-reaching reform built on an earlier monist doctrine, which in practice was applied rather reticently by courts that at the same time had to consider a constitutional ban on judicial 15  review of laws. Moreover, the reform had been inspired by a strong pro-integrationalist spirit in the Dutch parliament, which outweighed the concerns for national sovereignty defended by government. 20 In the same spirit, ratification of the Treaties of Rome in 1957 as such had posed no problem for the Dutch constitutional order. 21 Notwithstanding this favourable constitutional settlement, the Netherlands had been the only Member State openly contesting the direct applicability of the one treaty article broadly assumed to possess it: Article 85 EEC on competition. 22 In general, the EEC Treaty was considered to be addressed to the Member States, for example by obliging them to establish a common agricultural policy (Article 40 EEC) or not to increase tariffs (Article 12 EEC). The 'rules applying to undertakings' presented in Articles 85-86 EEC, however, clearly spoke to businesses where stating that agreements or decisions preventing, restricting or distorting competition in the trade between Member States 'shall be automatically void' (Article 85.2 EEC). Since the EEC policy that had to apply the rules set out in Articles 85-86 EEC was only to be set up within three years after the treaty entered into force, the treaty further stated that during this transition period, the authorities of the Member States were to apply these rules 'in accordance with their respective municipal law' (Articles 87-88 EEC). 23 Here, a major problem for the Dutch government arose. Unlike in most other Member States, where competition legislation was either non-existent (Italy, Belgium, Luxembourg) or in line with the EEC Treaty (Germany), Dutch competition legislation was rather tolerant towards cartels and other sorts of collusion, banning only those forms of cooperation that were contrary to public interest. 24 Thus, applying both Articles 85-86 EEC and the Dutch law presented an impossible task for the Dutch competition authorities.
At the instigation of Dutch businesses, the problems posed by the competition provisions had been a key issue during the ratification of the EEC Treaty in autumn 1957. 25 However, Minister of Economic Affairs J. Zijlstra, backed by a majority of parliamentarians, refused to acknowledge that the EEC Treaty called for a reform of the Economic Competition Act that had just been passed in 1956. 26 Zijlstra acknowledged that the German-inspired phrasing of the EEC Treaty seemed to point in the direction of a rather strict, ordo-liberal approach to competition. Yet, the negotiations on the EEC competition policy could still lead to a system more resembling the Dutch abuse system, granting regulators wide discretion to regulate competition in the public interest-this, after all, had been the dominant system in Europe since the interwar period. 27 To regulate the consequences of the treaty until a common competition policy was established, Zijlstra introduced a temporary, special law. 28 However, this law, which upheld the Dutch system while leaving the enforcement of the contradictory national and EEC rules to the discretion of the Minister of Economic Affairs, far from solved the problems signalled in business circles.
The solution found by Zijlstra met the intention of the signatory states to leave the application of Article 85.2 EEC up to the Member States until a joint policy was agreed. 29 And the Minister of Economic Affairs could be trusted to implement the treaty obligations in agreement with the Dutch cartel-tolerant legislation. However, as various members of parliament were eager to point out, the special law did not provide any legal security for companies involved in cartel agreements if these agreements were challenged in court. Since the Dutch constitution granted primacy to treaty provisions with direct effect, companies had no guarantee that the special law would hold when courts were to rule on the direct applicability of Article 85 EEC. 30 The grounds for such private legal actions-which were rare in national competition policies in Europe-were found in tort law, based on which claims challenging the breach of distribution agreements had been produced since 1937. In the pro-cartel climate of the late 1930s, courts had upheld the challenged distribution agreements. 31 The possibility that, from 1957 onwards, Article 85 EEC might lead courts to annul such agreements, posed an immediate threat to many Dutch business sectors, where cartel arrangements prevailed as a legacy of a long period of crisis, war economy and post-war reconstruction. 32 Indeed, in Brijnen and Wertheimer's 1957 discussion of Article 85 EEC, the lack of legal security for businesses engaged in cartel agreements figured as a key concern. Soon, three different interpretations of Articles 85-86 EEC emerged. Firstly, the German negotiator of the treaty and later president of the Bundeskartellamt, E. Günther, authoritatively claimed that the articles concerned directly applicable (direktwirkend) citizen binding norms. This interpretation, however, was challenged by a senior officer from Zijlstra's department, future director general of the EEC Commission's DG Competition, P. VerLoren vanThemaat. Setting the frame for the Dutch special law, VerLoren vanThemaat had argued that Articles 85-86 EEC were principles or guidelines for national policy making that would only turn into binding rules after a common EEC competition regulation had been established. 33 A third alternative regarded the articles as authorization norms for the national competition authorities, binding the Member States but not citizens until a common policy was adopted. 34 Brijnen and Wertheimer had suggested that a joint statement of the Member States should end the uncertainty resulting from these contradictory interpretations. 35  EEC, at the instigation of the Dutch officials participating in the so-called 'competition conference' set up by Competition Commissioner Hans von der Groeben. In a January 1959 press release, it stated that 'the participants [to the cartel conference] unanimously agreed that Articles 85 and 86 EEC treaty are not just guidelines but have force of law in the Member States. (...) They are part of the national legal order and have preference over national law ' . 37 As a Dutch official hastened to add, this, however, did not rule out the authorizing norms interpretation binding states rather than citizens. 38 As a consequence-as was also concluded by the national experts participating in the Commission's cartel conference-an absolute interpretation of Article 85 EEC required a court case to be presented to the ECJ. 39 This confirmed what Brijnen and Wertheimer had already observed in their 1957 analysis of the 'puzzling' interpretation of the competition clauses. 40 Yet, the knowledge of how to do this took some time to emerge.

| EURO-LAWYERS AND THE UNIFORM APPLICATION OF EUROPEAN LAW
It did not take long before a case was brought to a Dutch court in which Article 85 EEC was invoked to challenge the validity of a competition agreement. In the case in point-a procedure in which a Dutch paper manufacturer tried to use the EEC Treaty to declare an agreement it had with a Belgian counterpart, Tuberies Louis Julien S.A., null and void-no reference at all was made to the possibility of using the preliminary reference procedure. In its 1958 decision on this remarkable case, which suggests that the tide with regard to competition was turning in the highly cartelized paper industry, 41 the Zutphen district court had simply followed its normal habit of finding its own inter- preliminary reference, which by that time had been brought up in another Dutch court case on competition, but had been refused by the court that dealt with the matter. 55 Here, Polak suggested to his audience that, if courts continued to refuse to use this procedure, the use of Article 177 EEC was to be made subject to a preliminary reference itself. 56 In the same month, at the inaugural meeting of the NVER, EC Director General of Competition VerLoren van Themaat called on a dedicated audience of European law specialists to help 'synchronize' the speed of development of national competition policy and European competition policy. 57 Indeed, arguments raised by Polak, Samkalden and VerLoren van Themaat fed into pending court cases on Article 85 in which the preliminary reference was explicitly considered. Yet, the cases in point emerged independently, in particular from disputes regarding the trade in radios and other electronic equipment.

| TELEVISIONS, FRIDGES AND A PRACTICE OF PRELIMINARY REFERENCE
Although a nationwide 'radio cartel' had been prohibited in 1956-one of the few times the Minister of Economic Affairs made use of his authority to prevent 'abuse'-the market for radios and other electronic equipment in the Netherlands was dominated by distribution agreements between (mostly German) producers and their official agents for the Dutch market. 58 Yet, many small retailers bypassed these agreements, buying their products more cheaply on the German market. As a consequence of the 1930s jurisprudence on distribution agreements, these entrepreneurs risked being brought to court for deliberately violating the contract of the official agent-which a coalition of agents and producers increasingly did in the late 1950s, when the booming sale of these products challenged traditional sales chains. 59 The EEC Treaty however provided them with a new possibility to challenge the validity of such contracts and thus defend their 'illegal' trade.
While various cases had already been fought on the matter, the first time the EEC Treaty was referred to in these cases was September 1959, in a dispute between the Amsterdam bicycle retailer K.I.M. and Sieverding, the official distributor of Grundig radios and televisions in the Netherlands. 60 Not only did the lawyer representing K.I.M. bring into the discussion the articles on competition, as had been done before in the Zutphen case, but the option of starting a preliminary reference procedure was also mentioned. However, the Amsterdam Court of Appeal refused to use Article 177 EEC because it found the procedure incompatible with the nature of the case-a so-called summary proceeding (kort geding) that should be rapid. 61 In its role as cassation court, the Hoge Raad also rejected the demand, considering the interest of Sieverding in this case insufficient. In Brussels, these procedural arguments provoked an EC official to think that Dutch courts were 'conveniently avoiding' a difficult and perhaps also politically unwelcome ruling that might set aside national law. 63 Busy exploring the possibilities of the preliminary reference procedure, Dutch lawyers, however, mainly responded by asking for 'better' court cases, in other words: a full proceeding. 64 When in Rotterdam a similar case was brought before court by the German fridge manufacturer Linde, Samkalden publicly called for an ECJ ruling on the matter. 65  two sessions to the question of 'self-executing provisions in international law and its applicability regarding the European treaties'. The theme originated from the Dutch FIDE section, where a working group of 14 lawyers, most of whom were members of the Bar, had set out to study the matter as early as late 1961. Their analysis was clearly stimulated by the Dutch constitutional arrangements on the effect of self-executing provisions in the Dutch legal order. For, where other national reports focused on the theoretical question of the possibility of direct effect, the Dutch report, after asserting that the members of the working group had not found agreement on this doctrinal matter, simply listed the numerous articles of the EEC Treaty, discussing the possibility of direct effect for each of them. 76 Before the European lawyers got to discuss the matter at the FIDE conference, however, the ECJ had its say on direct effect in the second preliminary reference it received, again produced by a Dutch court: the 1963 Van Gend en Loos case. One of the lawyers defending Van Gend en Loos in Luxembourg, prominent European law specialist L.F.D.
ter Kuile, had, pending the case, joined the Dutch FIDE working group in order to provide his colleagues with the most up-to-date procedural knowledge. 77 Yet the case did not emerge as a test case: it already had been brought before the referring court-the Tariff Commission (Tariefcommissie)-by a tax law specialist months before the NVER committee had started its study on direct effect.

| TARIFFS, TRADE AND THE EMERGENCE OF A LANDMARK CASE
While it eventually led to the development of a constitutional practice in European law, the Van Gend en Loos case emerged from a rather technical debate on the content of a substance imported by this Dutch transport firm called Harnstoffharz 70. This substance, usually used as a glue for wooden doors, had been the source of many disagreements between taxation officers and transport companies because its classification, and hence taxation, depended on a rather arbitrary definition of its characteristics. The Tariff  tariff harmonization was very much in line with the objectives of the EEC, it argued. The possibility of companies taking the matter to court was not addressed. 82 Yet, this was exactly what was done by the various transport firms who, as soon as the tariff reform had been established, hired tax advisor P.N. Droog to make a complaint. 83 Droog, who as tariff specialist held close connections to the Dutch transport sector, consequently selected the most pressing cases to bring before the Tariff Commission. 84 It took several cases sent to the Tariff Commission before these complaints were turned into a preliminary reference. In the first case, regarding Article 95 EEC on internal taxation, the preliminary reference option was neither mentioned by Droog, nor considered by the court. 85 Consequently, the Tariff Commission presidium internally brought up the procedure when discussing a case regarding Article 12 EEC filed by the import firm N.V. Jacob Meijer-only to reject it because none of the parties had asked for it and the case seemed clear enough. 86 On the third occasion, however, again discussing Article 12 EEC in the Van Gend en Loos case, the same presidium decided otherwise and started a preliminary reference procedure. Relying on the presidium's minutes, a curious mix of circumstances seems to have caused this decision. Firstly, the appellant party this time had explicitly demanded it. Secondly, Droog's suggestion that the rise in tariffs for Harnstoffharz concerned a deliberate choice of the government touched a nerve with some commission members, who found their earlier rulings ignored. Thirdly, Droog had in his plea specifically emphasized the lack of alternatives for citizens to have their rights protected: not only had the government in this case acted unfairly by deliberately increasing tariffs, but also attempts to raise attention in other Member States to the infringement of the treaty on this point had failed because of the national interests of those states, he argued. 87 Finally, though it was not mentioned in the minutes, it seems no coincidence that the Tariff Commission's decision to ask for a preliminary reference was made only three days after the Hoge Raad's Bosch ruling, in which the Supreme Court had declared that the application of EEC law was indeed a matter of treaty interpretation for which the preliminary reference mechanism could be used. 88 The rather inexpert phrasing chosen by the Tariff Commission for the request-following Droog, it asked the ECJ whether Article 12 EEC had 'internal effect, in other words whether individuals can directly derive rights from the article that are enforceable by the judge'-contributed importantly to the fame of the ECJ's answer. 89  Dutch constitutional reform that introduced the clause on provisions 'binding on anyone' , 90 was precisely the type of language which proponents of a constitutional approach to EEC law like the EC Legal Service could use to defend their case. 91 The core logic was that direct effect was crucial for the legal security of citizens and companies in order to force Member States to comply with their treaty obligations. In spite of the rejections of this interpretation of the EEC Treaty sent in by the governments of Germany, Belgium and the Netherlands, the ECJ followed this argumentation. It confirmed that the EEC Treaty, with its aim to create a common market which directly concerned national citizens, also had created rights that citizens could pursue in court. 92 Thus, the ECJ took a decisive step away from an international public law interpretation of the EEC Treaty and towards a constitutional interpretation-to which it would add an even more important next step in 1964 with its Costa/ENEL ruling on the primacy of EEC law.

| CONCLUSIONS
Elsewhere, the effect of (critical) legal history on the study of law has been defined as to 'pull down, to render contingent, and to politicize' law. 93 Analysing why history developed as it did challenges claims to a timeless rationality and introduces contingency as well as actorness into the historical narrative. This article on the one hand follows this approach by challenging the narrative that reduces the leading role of Dutch lawyers, courts and companies in the early development of European law to the favourable constitutional context in which they were allowed to operate. On the other hand, however, this article also tests earlier critical histories that seem to overemphasize contingency and actorness by focusing on a narrow group of 'Euro-lawyers' . Certainly, these lawyers played an important role in brokering information and thus widening the imaginings of less prominent lawyers on what European law could mean in their everyday legal practice. By reconstructing the chronology of the Bosch and Van Gend en Loos cases, this article confirms that developments in the Netherlands would probably not have been the same without their mobilization of the field. Yet, more structural elements also stand out from this case study, suggesting that contingency should not be overstated.
Added to the internationalist set-up of the constitution, which not only created favourable legal structures for the preliminary references, but also in a broader sense influenced the way in which the failing compliance of the confront the larger Member States on a political level. In particular, the cases in the competition field were to a large extent driven by the aim to create uniformity among the six Member States, from which Dutch businesses were considered to benefit.
A second element that arises from the case studies is the conciliatory style of dealing with rule-making deeply ingrained in both political and legal culture in the Netherlands. In spite of the recent constitutional reforms, the option of challenging national legislation in court was hardly considered in Dutch politics. This created room for court cases to emerge from areas where compliance of the Dutch government with the new European legal frameworks was lacking. Both the 1957 special law on competition and the complex operation of introducing a new, harmonized nomenclature for tariffs demonstrate that this lack of compliance did not result by accident, but rather from a different style of policy-making that was soon contested in courtrooms.
As the first archive-based history of the first two Dutch preliminary references, however, this article also adds new elements of contingency to the history of European law. Thus, the typical arrangements of competition law in the Netherlands, combined with a practice of tort law, created the ideal setting for testing the preliminary reference procedure. And, apart from the recent Bosch ruling by the Dutch Hoge Raad, it is most likely that the Tariff Commission was only convinced to leave its usual conciliatory approach to solve a conflict between national and European law in its Van Gend en Loos ruling because of the way the government had dealt with the classification of Harnstoffharz, a substance the Tariff Commission had ruled on in several earlier cases. These 'coincidences' too are crucial for solving the puzzle of why the ideas on a European legal order pushed by a few pioneers in the field could lead Dutch lawyers, courts and companies eventually to take up such a prominent role in the early development of European law.