The Court of Justice in the archives project : analysis of the Foglia case (244/80)

Abstract

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The Foglia cases are key to understanding the relationship between the ECJ and national courts in Article 267 TFEU proceedings, as they were the first cases in which the Court clearly stated that it would decide on its own jurisdiction. In particular, it ruled that it would only be competent to answer preliminary references if these derived from ‘genuine disputes’. This working paper derives from the project ‘The Court of Justice in the Archives’ which, by analysing a selection of key ECJ cases, seeks to illustrate how and why the archives of the Court, opened in 2015 in the Historical Archives of the European Union (HAEU), can be relevant for scholars of various disciplines. Building on the dossier de procédure of Foglia II, this paper aims at investigating the added value that this source can provide to the current narratives about the case. After an analysis of the Foglia saga and its reception in the literature (section 2), this paper goes on to discuss the dossier of Foglia II. In section 3, the quantitative and qualitative analysis of the documents found in the dossier is followed by some reflections on the added value that these can add to the traditional understandings of the case. In light of the documents found, this paper contends that the final judgment undermined the magnitude of the arguments evidencing the existence of genuine litigation at the domestic level. Secondly, the information found points at the influence of the French government upon the judgment, as it was already suggested in the early literature.