A Door into the Dark; Doing Justice to History in the Courts of the European Union

The European Court of Justice in Luxembourg has been issuing judgments since 1954. It is beyond doubt that this body has, in these judgments, influenced the nature of European integration, indeed the nature of Europe itself, in a far reaching manner. Over the years, this Court has been called upon many times to judge in cases and claims originating in wartime Europe. The first of these occurred in 1975 and there are still, in 2008, several cases rooted in the Second World War awaiting judgment. In other words, the legacy of what happened in Europe between 1933 and 1945 is very much a live, if not very well known, issue before the judges of the European Union. This paper examines how the European Court of Justice responds to wartime based claims and how its jurisprudence deals with the history of the Member States of the EU. It is, in other words a specific analysis of the Vergangenheitsbewältigung (the management of the past) by one institution of the Union. This analysis is framed within an appreciation of the difficulties inherent in confronting memories within the European Union. The Court of the Union is no different in this respect and it emerges as closed and restrained when faced with wartime narratives. This struggle to judicially handle its own history, and the narratives which are unearthed in individual, isolated, modest cases, collectively expose a European Union still very much required to confront the past.