Put the words ‘money’ and ‘politics’ in a newspaper headline and the average reader will start to have visions of corruption and waste. If you add the words ‘European Union’, a positive story is rarely expected to follow.
Indeed, for a complex governance system like the EU, communicating openly and honestly how decisions are taken and how funds are used is a major challenge in which transparency is a win-win situation. It plays a huge role in promoting a more citizen-friendly EU and helps to increase public trust towards the institutions. Such trust is much needed as it helps to focus the discussion on real issues to be resolved at European level.
The Brussels Legal Yearbook 2007 is a new annual guide to the Brussels legal community. With its attempt to provide a ‘who’s who’ of lawyers and officials relevant to the legal function of the EU institutions, the Yearbook is a useful tool to enhance transparency with regard to some of the legal actors involved.
As the Yearbook went to press, the European Commission was deciding on a follow-up to its Green Paper on a European Transparency Initiative, issued in May 2006. Lobbying is one of the topics raised in the Green Paper, and the related proposals on ethics and transparency in the area of lobbying have generated strong interest in Brussels and beyond. The Initiative should interest lawyers and law firms alike, many of which are engaged in both legal representation and general lobbying.
Lobbying is a natural part of a democratic decision-making process. By providing policymakers with information from different angles and with specialist ideas, lobbying also contributes to better policies. It is therefore also an important and legitimate part of the EU decision-making process.
However, sometimes lobbying practices go beyond the legitimate representation of interests, and methods can be deceptive. Since lobbyists can have considerable influence on legislation, persons lobbied and citizens alike have the right to know who these lobbyists are, what they stand for, how they are financed and what their relationship with the institutions
looks like.
The Commission has therefore decided to create a register for interest representatives, including law firms, to register on a voluntary basis. To provide for public accountability, the Commission will develop and manage a web-based ‘Interest Representation Register’. By taking timely and adequate steps in this direction, the EU may avoid having to take the very robust legislative steps like those taken by the US Senate.
Transparency is neither a threat nor a judgement. It simply ensures that what we do is open to public scrutiny and accountability. If we work soundly, it will enhance our credibility, and if it sheds light on dark spots, we should be thankful and get rid of them.
I hope the readers of this Yearbook will agree with me and, if engaged in lobbying EU institutions, consider joining the Interest Representative Register to be launched in Spring 2008.
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The election of José Manuel Durão Barroso as lawyer/president of the European Commission provided a welcome re-enforcement of values for the continent’s legal population. Like Romano Prodi his predecessor he believes strongly in the centrality of law and its irrevocable ties to the political process of the EU. Dr Barroso graduated in law from the University of Lisbon and strengthened his knowledge of EU law at the University of Geneva’s European University Institute, where he obtained a diploma in European studies with honours. His legal academic career continued as an assistant professor in the Law School of the University of Lisbon. He subsequently moved to Washington in 1996 to teach political science at Georgetown University as a visiting professor at the Department of Government and School of Foreign Service (1996-1998).
A member of the Social Democratic Party (PSD) in Portugal since 1980, in 1985 he was appointed Under-Secretary of State in the Ministry of Internal Affairs, and in 1987 was promoted to Secretary of State for Foreign Affairs and Co-operation, before becoming Minister of Foreign Affairs in 1992. After a spell in opposition from 1995, in 1999 he was elected president of the PSD, becoming Leader of the Opposition. Dr Barroso subsequently became Prime Minister on 6 April 2002, serving until 29 June 2004 – when he resigned to become the 11th president-designate of the European Commission.
Law informed his political development. His earliest official political activity began in 1975, when he was elected president of the Academic Association of the Law Faculty at the University of Lisbon. But before that he had controversially served as a leader of the underground Maoist party in Portugal that led to the Carnation Revolution in 1974 and the overthrow of the Portuguese dictatorship. Much is made of the shift that Dr Barroso made in his defection from the left wing, but it is worth bearing in mind that he is one of the few political leaders in Europe with direct experience of life in a European country where the rule of law was under threat. In 2004 Dr Barroso put his legal knowledge into practice while overseeing the biggest integration the EU Community has undertaken, with the simultaneous accession of ten new member states to the EU. As Commission president he has referred frequently to the centrality of the legal bedrock of the EU as the basis of its legitimacy. In March 2006, during a speech at the European Institute in Florence, he paid tribute to past president Walter Hallstein, saying: “He is famous for insisting on the centrality of law to the very concept of Europe. This should come as no surprise: as the first president of the Commission, he took his institution’s responsibilities as guardian of the treaties very seriously. And a guardian of the treaties is a guardian of European law.”
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The Legal Service acts as in-house counsel to the European Commission and reports directly to the President. Its mission is to provide legal advice to the Commission and its departments, and to represent the Commission in all court cases.
In its role as legal adviser to the departments of the Commission – about 40 directorates-general (DGs) and services – the Legal Service delivers opinions on legal questions. The DGs and services must consult the Legal Service on all matters having legal implications and on all draft acts (in particular regulations, directives and decisions) for adoption by the Commission.
We also advise on compliance with Community law – the Treaties, general principles and basic legislation – and international obligations. In the case of draft acts, the Legal Service checks both the substantive legality and the drafting quality. The former covers such questions as: is the act legally correct? Is there any contradiction with the treaty, case law, and other legislation in force? Checking the quality of drafting ensures that all the formal rules are complied with and that provisions are drafted clearly and precisely. There is growing recognition that the quality of drafting is of utmost importance if both business and citizens in Europe are to be able to read and understand European law easily. The better regulation strategy, which is consistently high on the agenda of the European Council, shows that member states and the European institutions are all concerned that European legislation should be accessible, effective and simple, as well as being clearly and precisely drafted.
The independent legal advice provided by my department ensures that the Commission’s decisions are substantively lawful and formally correct. This is of vital importance in preventing or reducing the risk of subsequent litigation.
The opinion of the Legal Service carries considerable weight. A negative opinion can generally only be ‘overruled’ by a political decision of the full Commission and so DGs will make every effort to find a solution acceptable us.
As director-general of the Legal Service, I attend the weekly meetings of the full Commission (the ‘College’) to ensure that legal advice is available.
Any legal advice provided to another Commission department is an internal Commission document protected by article 4 of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents. The specific function and nature of opinions of the Legal Services of the institutions were recognised and confirmed by the Court of First Instance in a judgment of 23 November 2004 in a case concerning an opinion of the Council’s Legal Service (Maurizio Turco v Council case T-84/03).
My department issues about 14,000 formal opinions every year and many more informal ones. This task of providing such advice is of primary importance, offering dynamic input into the Commission’s actions and initiatives and helping to avoid litigation.
Since 1959, only the Legal Service has been entitled to represent the Commission in court proceedings. The majority of such proceedings take place in the Court of Justice of the European Communities (ECJ), the Court of First Instance and, since December 2005, the new Civil Service Tribunal, but some are also before World Trade Organisation (WTO) panels or in national courts when the Commission recovers debts.
The figures for 2005 illustrate how often the Legal Service appeared in European courts. There were 919 new cases, spread more or less evenly over the ECJ and the Court of First Instance. Of the 467 cases in the ECJ, 218 (46 per cent), were applications for preliminary rulings and 66 were appeals against judgments of the Court of First Instance.
A total of 447 new cases were commenced in the Court of First Instance. When the Civil Service Tribunal was established in 2005, it had transferred to it 72 cases originally brought before the Court of First Instance. The Civil Service Tribunal has jurisdiction in disputes between the European institutions and their staff, previously exercised by the Court of First Instance. Its decisions are subject to appeal, on points of law only, to the Court of First Instance with, in exceptional cases, the possibility of review by the ECJ. To complete the count, five new cases were brought before the EFTA Court.
Some seemingly small cases can have broad significance. A recent case concerning criminal penalties in the field of environmental protection (Commission v Council case C-176/03) illustrates that one single judgment can have a marked impact on the development of European law. The ECJ annulled Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law adopted under the Treaty on European Union because many of the measures it provided for were within the scope of the European Community’s powers on the environment.
In accordance with the Rules of Procedure of the ECJ, the Commission’s lawyers submit their written comments in the designated language of the case. My department is composed of lawyers drawn from all the member states, thus ensuring availability of knowledge of all legal systems and all official languages of the Community.
The Commission may appear before the courts either as applicant, for example in proceedings against member states for infringement of Community law, or as defendant, for example in proceedings for annulment of a Commission act brought by a member state, an institution or a person. The Commission also often intervenes in proceedings involving another institution.
Overall, the Commission wins 80 per cent of its cases before the ECJ and about 75 per cent before the Court of First Instance. Of course, the distinction between ‘won’ and ‘lost’ is not always clear-cut. Some cases are won in part and others won as to the principle but lost on formal grounds.
Acting as ‘guardian of the Treaties’ is yet another important role undertaken by the Commission, by monitoring the application of Community law by the member states. The Legal Service and the Secretariat-General are together responsible for coordinating the infringement procedure in the Commission.
Articles 226 and 228 of the EC Treaty provide the legal basis for the infringement procedure. Article 226 states that if the Commission considers that a member state has failed to fulfil an obligation under the Treaty it may institute administrative proceedings against it and if the member state still fails to comply the Commission may bring the matter before the ECJ, which may then deliver a judgment declaring that the member state has failed to comply with its obligations.
But what can be done if the member state does not comply with the judgment of the ECJ? Article 228 was inserted into the EC Treaty by the Treaty of Maastricht and provides a mechanism for enforcing ECJ judgments pursuant to article 226.
Under article 228, if a member state still fails to comply with the judgment the Commission may, after administrative proceedings, again bring the case before the Court and ask it to impose penalty payments or lump sums on the member state.
In July 2005 the ECJ for the first time ordered a member state to pay both a penalty payment and a lump-sum for serious and persistent failure to comply with Community law (Commission v France case C-304/02). That judgment, together with the Commission communication of 13 December 2005 (SEC(2005)1658 final), certainly makes it clear that member states which do not comply with Community law, as established by the ECJ, face substantial financial sanctions. It should act as a deterrent and further reduce the need to have recourse to the article 228 procedure.
The figures for 2003, 2004 and 2005 show that in only one to two per cent of cases brought under article 226 did the Commission have recourse to article 228 in order to make a member state comply with a judgment of the ECJ.
More infringements appear in some areas, such as the environment and the internal market, than in others. First of all, it is unsurprising that there are a greater number of infringements in areas where we have more Community legislation. The internal market has called for harmonisation by means of directives, and a large body of legislation has been adopted in the environmental field.
But while the infringement procedure is one means of securing compliance with Community law; another is the preliminary ruling procedure.
Member states’ national courts share the responsibility for applying Community law. To ensure that Community law is applied uniformly across all member states, article 234 of the EC Treaty obliges their supreme courts to refer questions of interpretation of Community law to the ECJ for a preliminary ruling.
The Commission has from the outset always intervened in such proceedings to submit to the ECJ its observations on the interpretation of the relevant Community provisions because the preliminary ruling procedure plays an important role in the protection of the rights of European citizens. A recent example was Watts v Bedford Primary Care Trust and Secretary of State for Health - Case C-372/04 in which the ECJ held that the Community rules on free movement of services applied in the case of a European citizen who had travelled to another member state for hospital treatment to avoid a long wait for treatment in her country of residence. Accordingly, subject to certain conditions, she could claim reimbursement of the costs of that treatment in her country of residence.
Organisation of the Legal Service
The Legal Service currently employs around 400 staff. There are 10 ‘thematic’ teams, ranging in size from under 10 to over 20 specialist lawyers, which cover the policies and activities of one or more DGs. They are each headed by a principal legal adviser, equivalent to a director, and they report to the director-general. The quality of legislation team, also headed by a principal legal advisor, comprises the legal revisers group and the codification group and altogether totals about 65 lawyers. It reports to the deputy director-general. Finally there are administrative support groups such as human resources, information and information technology. The internal organisation of the Legal Service is somewhat different from the organisation of a conventional Commission DG. The structure can be described as ‘flat’, unlike the pattern elsewhere in the Commission where units managed by heads of unit fall under a director who has privileged access to the director-general. The Legal Service’s special flat structure is more flexible and enables it to react quickly to defend the Commission’s interests effectively.
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Over the last few years, we have made major progress in modernising European competition law and policy and strengthening enforcement.
Since 2004, EU antitrust law has been applied in parallel by the Commission, national competition authorities and national courts – though this last still needs further encouragement. There is now no longer any requirement for notification of restrictive agreements by companies. This means the Commission, as well as national authorities, can give priority to enforcement action against anticompetitive agreements or practices which cause the greatest harm to consumer welfare. As a result, competition authorities throughout Europe, including the Commission, have moved towards a more economic and effects-based approach. There is also an excellent level of exchange of information and cooperation on enforcement action within the network of European Competition authorities (the ECN). The Commission has been informed of over 600 investigations, and over 150 enforcement decisions. In the same period – since May 2004 – the Commission itself has taken over 30 decisions. But perhaps more importantly than these raw statistics, the reality is that co-operation within the ECN is a day to day part of the work of the Commission and of the national competition authorities, co-operation which I am sure will continue to grow.
The ECN Model Leniency Programme is but one example of this. Now nearly all members of the ECN have their own leniency programmes, and many reflect the principles of the model programme.
Our own leniency policy was revised in 2006 – as was our notice on fines; the combination will continue to lead to strong cartel enforcement, building on our 2006 record of seven infringement decisions, over €1.8 billion in fines, and numerous victories before the courts.
Turning to merger control, although EU and national laws remain different, there nevertheless has been substantial convergence, not least with improvements at EU level. The substantive test for assessing mergers changed in 2004 and is now more or less identical to the US and UK ‘substantial lessening of competition’ test. We have also published guidelines on horizontal mergers confirming an effects-based approach, and have established more flexible referrals between the Commission and national authorities, while maintaining the successful ‘one-stop shop’ system. The one-stop shop system is certainly being used; 356 notifications in 2006 – including referrals – beat the 335 notifications we received at the peak of the last merger wave in 2001. The number of mergers puts great stress on the case teams, but I have every confidence that the teams, under the new leadership of Deputy Director General Nadia Calvino, will continue to meet the challenge.
In the field of State aid control the State aid action plan was launched in 2005 with a view to complete a comprehensive modernisation of our substantive and procedural rules by the end of my mandate. The main reform objectives are: less and better targeted aid; a more economic approach; more effective, transparent and predictable procedures and a more effective sharing of responsibilities between the Commission and Member States. Again, 2006 was a record year – with nearly 500 State aid notifications.
Although our programme of legislative reform has been successful, there are areas where change is needed. The first is where the current jurisdictional thresholds for mergers give some individual Member states sole competence to decide national mergers which have major implications for newly liberalised European markets such as energy and financial services. The second is the current absence of any adequate framework for the promotion of private action on the basis of the EU competition rules; here we intend to propose a White Paper towards the end of the year. Some national governments are also considering what steps can be taken in this area. We see the EU and national approaches are complements; any initiative to enhance consumer rights deserves our full support.
Finally, we need to continue the roll out of the State aid action plan; one part of this parallels the private action in antitrust – we are working on proposals to increase the role of national courts in State aid control. National courts could play a more important role in determining whether any subsidy is an aid and whether or not it should be notified to the Commission.
However there is much more to the plan than this. State aid policy is about policing the way in which public authorities at a national level use subsidies to affect market outcomes. In this area, it is difficult to imagine that the Commission could delegate it powers. But we need to make sure that the exercise of these powers strengthens the efficiency and the integrity of state aid control as a whole. In the first place, the more economic approach set out in the State aid action plan and which we are now implementing will mean that Commission decisions will have to be more linked to explicit criteria, facts and effects and will consequently reduce the perception that they are merely subject to political negotiation. There is also a case to be made for strengthening of our information-gathering powers to enable us to assess market impacts more effectively. Secondly, we are updating all the major instruments of State aid control, such as guidelines – as on R&D and Innovation aid – and where possible widening the scope of block exemptions. This should give public authorities in Member states further flexibility and also clearer guidance on how aid notifications will be analysed. However I do not myself see how the EU can get near to the target of ‘less and better targeted state aid unless the Commission strengthens, rather weakens, its control of aids.
The current and proposed EU competition regulations clearly provide the basis for a world-class competition regime in Europe, in which the Commission and national competition authorities work alongside each other to ensure effective enforcement of shared competition rules. But there are still major internal challenges to our effectiveness and key areas for improvement. In my view, the major challenge to our effectiveness is the lack of resources. In part, the squeeze on resources is due to the zero growth in Commission resources overall. Against a background of increasing globalisation and an increase in political problems that must inevitably be addressed internationally, I doubt that this zero growth option will prove to be in the long term interest of EU citizens. For example, the recent Commission proposals on energy and climate change are an important step in building a consensus around the issues addressed in the Stern report. To be effective, however, it requires substantial Commission resources.
This has been acknowledged in the OECD’s recent – and very favourable – Peer Review of us and has been confirmed by benchmarking the profile of competition authorities around the world. The European Union has expanded to 27 countries and that expansion has brought a disproportionate level of competition and state aid work with it. At the same time, markets are integrating across the EU and globally, with significant effects on the competitive situation in many Member states, whether through cross-border mergers or the conduct of major global companies. This means that the Commission is increasingly the competition authority within the EU with the investigating and decision-making powers to tackle the issues involved.
In 2006, we had a record level of merger (356) and state aid (493) notifications and those numbers are likely to increase significantly. These cases require priority attention under the law. As a result, other vital competition work risks being squeezed: anti-cartel and other antitrust action or further sector-wide enquiries. At a time when governments and the Commission are looking for ways to reduce the burden of regulation, it seems illogical that the activities of perhaps the most vital part of the EU’s network of competition authorities should be strapped for resources.
Resource constraints given the calls on our time also lead to another major problem. The length of investigations and subsequent litigation is a major obstacle to achieving a good enforcement record against cartels and other antitrust infringements. Last year, our cartels record was good (decisions against seven major cartels and nearly €2bn of fines). However, unlike the US, we cannot enter into plea agreements. This would radically shorten pre-decision work as well as post-decision litigation. At the moment it can take us up to four to five years to sanction a cartel and defend our decision in Court. And for non-cartel work, we need to take a decision in a time period which is still relevant to the problem which we have identified on the market.
We have made much progress in recent years, but there is more to be done. Under the authority of Neelie Kroes, our current very committed and active Commissioner for Competition, the essential elements of our policy over the next two to three years would appear to be:
– on the competition law enforcement front, continued priority for the fight against cartels, antitrust action as follow-up to the energy and financial services enquiries, targeted action against unilateral conduct of global firms in the IT industry, stricter merger and state aid control;
– full implementation of the State Aid Action Plan, including a new group block exemption, new environmental aid guidelines, initiatives to improve the Commission’s information-gathering procedures, and clearer guidelines for provision of services of general economic interest;
– launch of possible further sectoral enquiries;
– adoption of streamlined leniency arrangements and new procedures for plea agreements in cartel cases;
– adoption of guidelines for application of article 82 (abusive unilateral conduct);
– adoption of a draft EU Directive to create a framework for the promotion of private action for damages on the basis of competition law;
– advocacy for procompetitive changes in regulation within the Commission.
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The Council of Bars and Law Societies of Europe (CCBE), based in Brussels, represents over 700,000 lawyers through their member bars and law societies in the European Union and European Economic Area member states, as well as those from bars in seven further observer countries on the borders of the EU.
Like all EU-wide representative organisations, the CCBE responds frequently to consultations from the European institutions. We have a democratic decision-making procedure, and, when we need experts in particular areas of law, we are able to call on our members to provide them. The CCBE frequently speaks at Commission or Parliament hearings, and even sometimes at national level when the issue is important. In order to deal with the wide range of its work, the CCBE has a series of committees and working groups which take the lead on their particular areas, up to the point where a decision needs to be approved by the CCBE as a whole.
The CCBE's primary focus is on issues which affect the regulation of lawyers. There have been many examples of such issues. In the early years – the CCBE was founded in 1960 – most attention was paid first to the series of directives affecting the free movement of lawyers, and then to the CCBE's Code of Conduct, which applies to cross-border transactions. The CCBE is immensely proud of these achievements. The sectoral directives for lawyers achieve a level of liberalisation which is second to none around the world, even though lawyers are moving across national borders within the EU into different legal systems with different languages and working methods. And our Code of Conduct is rightly seen as a model for cross-border regulation, a subject of increasing importance everywhere as globalisation takes hold. In 2006, we added to these achievements by publishing a Charter of Core Principles of the European legal profession, which we hope will have a similar leading role in shaping ethical standards.
Issues of lawyer regulation now seem to arise with increasing frequency at European level. The Services Directive and the third Money Laundering Directive are the most recent legislative examples, on which the CCBE has undertaken extensive work. Indeed, in relation to the Money Laundering Directives, we have intervened in actions raised in the courts of two member states, Belgium and France, regarding the impact of the implementation of the second Money Laundering Directive on the principles of lawyer-client confidentiality. The Belgian case is currently before the European Court of Justice.
Regarding non-legislative measures, the competition authorities at European and national level have the legal profession nearly everywhere in their sights. There are radical reviews and developments in numerous member states – Italy, Netherlands, Denmark, the United Kingdom, Poland, Ireland and Hungary, for instance – and we are busy in ensuring that the fundamental role of the lawyer as a key player in the administration of justice and the maintenance of the rule of law is not overlooked in the rush to look at economic criteria alone.
In recent years, the CCBE has become increasingly involved in issues of substantive law, too. There is a tidal wave of legislation in the area of substantive law, whether that be company, family, succession, contract, criminal or civil procedural law. There are large decisions at stake, which will affect the lives of all European citizens. As a result, the CCBE has added these areas to its portfolio, with the assistance of expert lawyers from various member states. It is not easy to reach consensus among our experts, since they come from such differing traditions, but we try to achieve a common position and, where we do not, we feel that it is helpful to point out the difficulties to the European institutions.
Some areas of our work are inevitable given our status, while not falling strictly within the two defined groups of regulatory and substantive law. For instance, the CCBE has a Human Rights Committee, which concentrates on issues which particularly affect lawyers. In that capacity, we have a strong connection with the European Court of Human Rights in Strasbourg and the International Criminal Court in The Hague, and we frequently send letters to governments abroad when lawyers are killed or harassed. The CCBE is aiming to launch its own annual human rights award in 2007 for a lawyer who has particularly distinguished himself or herself in the field.
Additionally, we have for a long time had a committee which deals with the neighbouring countries to the east. Many of the countries with which this committee used to deal are now our full members, following the accession waves of 2004 and 2007. But we continue to work with other countries which are emerging as democracies, for instance Moldova and Ukraine, providing such assistance as our resources permit.
The CCBE possesses a good deal of data on the workings of the legal systems of its members. Frequently, we have to send around questionnaires to find out how particular matters are dealt with across the EU, or there is information in the answers we give to the European institutions to the many consultations for which we submit a response. As random examples, we have extensive studies of the way that professional secrecy matters are considered around Europe, figures for the numbers of lawyers, and information on such differing topics as professional indemnity insurance and social security for lawyers. Nearly all of this material is put on our website (www.ccbe.org), and those interested in finding out more about the European legal profession are encouraged to search there. In addition, we have a quarterly newsletter, CCBE-INFO, which contains detailed information on our current work (to subscribe, please send an e-mail to ccbe@ccbe.org).
As a result of its extensive work on European law and regulation, the CCBE is particularly pleased to welcome this new directory published by the European Lawyer. It is most useful that the EU-focused legal expertise available in Brussels is to be made available to a wider public, given the increasing importance of European legislation and initiatives in a national context. We know from our own work how fundamental and far-reaching such legislation and initiatives can be.
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Life-long learning has become a necessity for everyone, but the need for training in European law has never ceased to grow in importance since Jacques Delors’s Single Market Initiative in the 1980s. European law today is a fast developing, integral component of the law of each member state, and its effective application depends on its implementation by national authorities and courts and their guidance and inspiration by lawyers. As enshrined in the Tampere and Hague Programmes, mutual trust between the dispensers of justice in the EU member states is the essential requirement for mutual recognition as the primary principle governing judicial cooperation in the European Area of Justice. Mutual trust can only arise if there is mutual acquaintance with, and knowledge of, the different legal systems in the EU. These three reasons are a perfect justification for the need for continuous training of lawyers, judges and prosecutors in the member states: the application of European law and judicial cooperation can only be effective if all legal players are aware of and understand existing EU legislation and in particular the instruments for judicial cooperation. The European Commission expressly acknowledged this need in its Communication on Judicial Training of 29 June 2006, a need that the Academy of European Law (ERA) has tried to meet since it was established in 1992.
Long after the birth of the first European Community, lawyers in the ‘old’ European Union member states were still very distanced from the body of rules usually referred to as the ‘acquis communautaire’. For a long period, hardly any legal practitioner even considered regarding Community law as ‘common’ law, as an integral element in the body of legal norms applying to specific cases. In the main it was lawyers in private practice who, in those early years, discovered Community law as an efficient tool of legal enforcement, in the interests of their clients, in order to achieve breakthroughs in cases where at national level all hope of remedy had been exhausted.
The reservations of legal practitioners and in particular the judiciary towards European law derived and continues derive from many sources. In the early years following the creation of the European Communities, the number of relevant legal norms at Community level was still somewhat modest. Insofar as there was any awareness of the basic treaties, these were regarded as being of relevance purely for international law. Despite the fact that the European Court of Justice very early on established the principle in its case law that Community law takes precedence over national law and must be applied directly, awareness of this was not widespread. Even while the Community law acquis was gradually growing, far into the 1990s European law at universities remained an exotic speciality and was frequently taught as an appendage of international law. Walter Hallstein’s early recognition of the EEC as a ‘Community based on law’ was only obvious to a specialised elite.
Practitioners remained in ignorance of the increasing relevance of Community law mainly because Community legislation, outside the agricultural sector, was primarily in the form of Directives, where implementation by the national legislatures seemed to correspond to the classic system of the transposition of international law norms. Practitioners frequently completely failed to appreciate the European law source of a national norm, for example in the standard case of implementation via amendment of existing national laws or statute books. Because of this, too many practitioners still persist in the delusion that, despite any theoretical acceptance of the application of Community law, this does not affect their daily practice, or only in a very minor manner, and is therefore of purely academic interest.
In the present day, in all member states, it is at least undisputed that European law, as part of international law, must be recognised and accepted no less than national law. This awareness, probably more widespread in the new member states, is a necessary, but by no means sufficient, prerequisite for global application of Community law: awareness is not knowledge. Hence no legal practitioner can escape the need for continuous European law training.
Iura novit curia (The court knows the law), but universal knowledge is not possible and no one can absorb in total the 80,000 individual pages of the acquis. Any practitioner of law, whether in judicial, state or private practice, therefore needs primarily and above all to understand the procedures he needs to follow and the structure and basic principles of the body of law which he has to apply. These form the basic tools of his trade and skilful use of these will facilitate understanding of any particular area of substantive law in the field of European law no less than in any other area of law.
Since Community law applies equally in all member states and as a common body of law forms part of the law that all national judges must apply, legal practitioners in the member states must of necessity be equally aware of and understand the sources, structures and basic principles of Community law as they do for national law. No lawyer is expected to be familiar with the details of obscure special rulings or to be aware of the broad details. However, every lawyer must be able to identify European norms, establish priorities, interpret them and apply them, and he must know what procedure to follow if in doubt as to their validity.
Needless to say, this includes the ability to distinguish between primary and secondary sources, whatever form they take, as well as the hierarchy of their transposition into national law. Core principles, which the ECJ at a very early stage crystallised out of primary sources, have been expressly accepted and reinforced by all member states in later accession agreements as being firmly enshrined in the acquis, notwithstanding certain decisions by some constitutional courts such as the so-called ‘Solange’ decisions of the German Constitutional Court.
In particular, the dispensers of justice at national level must be able to comply with their duty to give effect to Community law, a role which goes beyond the principle of interpreting national law to comply with Directives. The revolutionary principles relating to state liability under Community law for member states, as developed by the ECJ not only in cases of (positive) legislative breaches of primary law, but also in cases of legislative omissions and finally even for judicial errors, go much further. In particular the concept of liability for judicial errors does not readily find acceptance in states where judicial privileges are enshrined in law.
As far as procedural law is concerned, the national practitioner does not need to rethink. Even the recent acquis in judicial cooperation only provides an easy hinge between national judicial procedures and does not harmonise the core of these; even when applying Community law the national judge only follows national procedures. However, since a Union-wide consistent interpretation and application of Community law cannot be guaranteed before national courts alone, and as no appeal to the European Court of Justice is available against decisions of national courts, the national practitioner must extend his horizons as far as procedures are concerned: knowledge of the preliminary ruling procedure under Article 234 EC is also part of his minimum package of basic tools.
Finally, basic knowledge of Community law must include awareness of the principle of non-discrimination on the grounds of nationality under Article 12 of the EC Treaty, which permeates the whole body of Community law – this prohibits any discrimination on the grounds of nationality. This pivotal prohibition is a sort of holy writ for every national practitioner, it must determine his reasoning and his decision-making so that he will only consider deviating from it in cases where this is justified by Community law.
In a different perspective, the national legal practitioner is frequently astounded to discover that Community law is also regarded as applying to legal issues that at first glance appear to be of purely national relevance. In all areas where there is complete harmonisation, where throughout the whole European Union the same circumstances are regulated by the same norms, national classification of individual circumstances can no longer be relevant. This is particularly clear in the area of general anti-discrimination regulations (not those referring to discrimination on the grounds of nationality): the well-known decisions by the European Court of Justice on equal treatment between the sexes apply without exception to purely national circumstances. For civil law practitioners, long before the creation of a European contract law code, large areas of contract law or trade and company law have been transformed by Community law and apply without reserve to purely national issues. Fundamental rights in the Community, as formulated since 1969 by the Court of Justice as general legal norms and consolidated by the first Convention in the Charter of Fundamental Rights, apply ‘when implementing Union law’, irrespective of nationality. Even the early ECJ decisions on the protection of fundamental rights often have no cross-border dimension. A similar situation applies to data protection, even in horizontal legal relations.
Even if the traditionally trained national lawyer can appreciate the protective nature of Community law when it comes to transcending national borders, he is often startled by the extent of this. A classic area, which has repeatedly led to discussion at political level, relates to the granting of social security payments to migrant workers. The fact that the rights of professional footballers in regard to freedom of employment go further than the standard transfer rules that apply in international professional football circles also caused a stir. The influence of the fundamental freedoms in areas where it would appear they do not apply is also surprising on occasion. The inadmissibility of restricting social security payments for goods from national companies (eg spectacles) or services (eg dental treatment) is a good example. Another area where national administrations and politicians regularly experience difficulties in complying with Community law is state aid for ailing enterprises. A further area where Community law has a surprising amount of impact is the law applying to foreigners. Here, the Court has accorded secondary law status under Community law to decisions by Association Councils in the context of association agreements, thus giving them precedence over national law and allowing for their direct application.
Apart from the system of preliminary rulings, which from the beginning was the bedrock of the application of Community law, there was no procedural acquis of relevance when the EC was established, nor for a long time afterwards. Of course the 1950 European Convention on Human Rights already existed, but 1958 it had not been ratified by all EC member states. Its relevance for Community law long remained obscure.
It is in fact quite astonishing how long the Common Market with its freedom of movement for persons, goods, services and capital managed to do without the support of easier cross-border legal proceedings. In fact the beginnings of judicial cooperation between member states lie outside actual Community law. The Brussels Convention was the start of judicial cooperation, laying the foundations for freedom of circulation in the Internal Market for legal titles in civil and commercial matters in 1968. Schengen was then the start of judicial (and police) cooperation in criminal matters. The first Schengen Agreement in 1985 and the 1990 Implementation Agreement were the first example of ‘enhanced cooperation’ between only some of the member states.
These beginnings were followed during the 1990s by an explosion of successive revisions in primary law which led to more and more ‘communitarisation’ of judicial cooperation. In 1992 the Treaty of Maastricht gave ‘Cooperation in the field of Justice and Home Affairs’ a basis in primary law for the first time. In 1997 the Treaty of Amsterdam defined the Union as an ‘Area of Freedom, Security and Justice’, for which the Tampere European Council 1999 was to point the way forward in extremely definite terms. Systematically, Amsterdam meant considerable legislative progress with the transfer of the areas of asylum and immigration policy, judicial cooperation in civil matters and the Schengen acquis to the First Pillar, allowing for regulation by classic Community legislation (in particular Regulations). While criminal matters remained under the Third Pillar, Amsterdam strengthened legislation on these by creating the new instrument of the Framework Decision, based very much on the concept of the Directive.
Today’s acquis in the field of judicial cooperation is characterised by the transition from using Conventions, which cannot enter into force until they have been ratified by all or a majority of member states, to Regulations, Directives, Decisions or Framework Decisions. In the process of implementing the first Five Year Programme, agreed in Tampere, a large number of judicial cooperation instruments have been created in the areas of both civil and criminal justice cooperation. In continuation of the Tampere programme, the European Council adopted in November 2004 the Hague programme of work in the field of justice and home affairs for the years 2005 to 2010. Even if legislation at European Union level in this field has not yet reached its peak, in future it would seem that consolidation and efficiency are to have priority. Frequently, emphasis is placed on reinforcing mutual trust as the basis for the implementation of the principle of mutual recognition. It is in this connection that the Council and the Commission have called for greater efforts in the further training of legal practitioners.
It seems to have been clearly established that legal practitioners in all member states must have a sound knowledge of EU law as being part of their national legal orders. It remains to be considered how this knowledge can be acquired and kept up-to-date. This is a challenge for both national and European players. The need for further training in European law cannot be met solely either at the national or the European level. Training programmes offered by national organisations are therefore supplemented at European level by specialised providers such as the Academy of European Law (ERA) and its network. Supported by the European institutions, ERA will be delighted to meet this challenge in the years to come.
Wolfgang Heusel is Director of the Academy of European Law (ERA), based in Trier, Germany; seconded from judicial service as a judge at the Koblenz Oberlandesgericht since 1995.
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I have recently spent some time reflecting on how the concept of sovereignty has come to play such an important part in European political discussion and what it still has to say to us today. Anyone reading the daily papers and weekly periodicals with their frequent references to loss of sovereignty can not but be struck that thoughts on this topic need untangling1.
Sovereignty, as the word is now used, is historically a relatively recent concept. It comprehends an alleged right of a state to organise affairs within its borders as it pleases and an alleged right to be free from interference by other states.
It is difficult for anyone in public life to accept, still less advocate, a loss of sovereignty. In consequence, developments in commercial and political life which have in fact resulted in a loss of power by the state to regulate what is going on inside that state have been described as sharing sovereignty. The expression may seem oxymoronic, but people in general find it easier to forget an idea than to forget a word. So we continue to use the word sovereignty long after it has lost its original meaning.
Sovereignty is one of those totemic, portmanteau words that go straight to your gut. Asking questions about the sovereignty of states produces in the United Kingdom, and beyond, much the same instinctive defensive reactions as asking questions about a man’s virility. Any suggestion that the government of the day of a particular state should in any respect bend its will to some entity outside that state is one which leaves many people uneasy.
Totemic words such as sovereignty and phrases such as liberty, equality, fraternity can be dangerous. They produce powerful, and sometimes unreasoned and unreasonable, reactions in our hearts and thus shape our actions and decisions. One must allow for the heart and not be too intellectual about all this. But one has to accept that some topics, and sovereignty is one of them, are peculiarly likely to be felt as part of an unchallengeable heritage. Our feelings about sovereignty are, as a result of history, deeply engrained in us. A challenge to a man’s virility may result in a bloody nose. A challenge to a country’s sovereignty may result in a war with millions of dead. So it is worth considering what is behind the concept of sovereignty whose magic seems to imprison us all.
Sir Thomas More lived towards the end of a time when it was taken as perfectly natural for an individual simultaneously to have several loyalties, not merely to different persons and institutions, but to different systems of law. After a period during which this approach was unfashionable for perfectly good reasons, we are now once more in a situation of multiple loyalties and that this is no bad thing.
The mediaeval system of rule reflected a patchwork of overlapping and incomplete rights of government which were inextricably superimposed and tangled. Within England, not only were there courts other than the king’s courts, but the relationships between common law, equity and the Privy Council were not ones defined and delimited with the clarity which would please a schematic mind. For hundreds of years, if the common law gave the litigant what he regarded as an unsatisfactory answer he went to Lincoln’s Inn and equity for justice.
Looking abroad, the Holy Roman Empire was highly polycentric, and consisted of many layers and interlocking compartments of legal norms and rules. These co-existed side by side, linked together in a common norm system, yet semi-autonomous and self-defining.
However, in More’s lifetime rulers were beginning to move towards a concept of unbridled sovereignty over the territories which they ruled. More was not content to follow. It cost him his head. Not long after his execution, the Peace of Augsburg in 1555 set the constitutional terms of the new society of states which emerged from the Valois-Habsburg struggle. The principle which was the basis of this peace – cuius regio eius religio – transformed the multilateral treaty into a constitution for a new society of states. It implied a theory of sovereignty by the states of Europe that permitted no distinction in law between a Catholic and a Protestant country. It carried, as a corollary, another principle which rulers readily acknowledged and proclaimed, although they did not always scrupulously observe it: non interference by one state in the affairs of another. Thus the basis of a comprehensive society of states was formed.
Even with the emergence of the European states system after the Thirty Years War in 1648, the ‘sovereign’ only gradually turned into the ultimate source of authority from which all legal rules should originate. What characterised Europe before the end of that war was not rulers with exclusive powers, that is, rulers encapsulated by well-defined territorial boundaries, capabilities and functions as we now know them, but rather diffuse power relations.
Then gradually the word ‘sovereign’, instead of being associated with feudal duties owed to a king who ruled certain territories – which might or might not be adjacent – came to be associated with the nation state.
Before considering sovereignty itself lets ponder the evolution of the concept of a state. What has happened is that the historical image of the European nation state has been transformed, from an empirical fact that shaped life in Europe from the Thirty Years War onwards, into a metaphysical entity with its own soul and volition which is taken for granted as the prime actor in political discourse.
From 1789, the idea of the nation became a powerful metaphysical focus of social identity, social unity and social purpose, something to live for and die for collectively. Millions did. The idea of the nation could set the framework of identity, unity and purpose for all human effort, not merely the practical framework but also the ideal (aspirational) framework. The economy of the nation could harness the overwhelming power of collectivised energy in the self-developing of a society internally, and externally in competition and conflict with other societies which had undergone the same kind of development.
Theories of sovereignty based on the nationalism of the 19th and early 20th centuries have produced attacks from three different directions but each, in my judgment, is justified. There are those who say that no state should be omnipotent, even within its borders. There are those who ask questions in relation to the boundaries of a state and there are those who point out that in practice no state is omnipotent.
One great desideratum of political life is to provide order and prevent the mayhem which can result from each man being in a position to give free reign to his private passions. This consideration has weighed heavily with jurists, philosophers and statesmen over the centuries. For Hobbes and many others, absolute state power, absolute sovereignty, was the necessary condition for stable politics and indeed for human safety.
But there are rival desiderata. One is so to organise society that the exercise of the power given to achieve stability does not result in unnecessary inhibitions to the free development of every man’s wisdom and personality; or to put it more graphically, does not result in murder, torture and the suppression of any freedom thought to be dangerous.
One must be conscious that the state sovereignty version of popular sovereignty can itself be an enemy of other democratic rights. Much of political discourse is concerned with the inevitable tension between these two desiderata. The task of any constitution is to see the degree of lack of freedom of the individual which is necessary in order to secure a broad measure of freedom for each. The same basic problem confronts states in their relations with each other. Democracies are designed to help resolve this tension but, as John Quincy Adams pointed out, despotism or unlimited sovereignty is the same in a majority of a popular assembly, an aristocratical council, an oligarchical junta and a single emperor.
The 20th century saw state-organised mass slaughter – in Europe, in the Soviet Union, in China, in Africa and elsewhere. This slaughter has been brought increasingly to the notice of those not on the spot.
One thing has become clear and increasingly widely accepted – even by those to whom the concept of state sovereignty is intuitively attractive. This is that, faced with mass murder within a state’s boundaries – whether that murder be instigated by the state itself or be the result of a state’s inability to exercise effective control within its own borders – a theory of sovereignty which insists on the impermeability of the state should not stand in the way of attempts by outsiders, even against the will of the state concerned, to limit that mass murder. In some circumstances the principle of sovereignty should not prevent even invasion. I think that this is generally regarded as a welcome development. There is however no denying that it has dealt the classical doctrine of sovereignty, as a politico-legal ideal, a blow. Indeed it is inconsistent with it.
That step having been taken, agreement has become increasingly widespread that some limits should be imposed on a state’s freedom of action against an individual even within its own borders. There are a number of mechanisms which are deployed to provide the individual with some safeguards.
There are national laws and constitutions which set out individual freedoms which can be safeguarded by national courts. But there are also various international bodies which have been empowered to pronounce on whether an action taken against an individual is lawful. It has been recognised that the safeguarding of individual freedom can usefully be given to a body outside the state: a body which is not caught up in the local passions of the moment. The European Convention on Human Rights is the example nearest to home. The danger that such a convention seeks to meet, is that the interests of the individual will be overrun by the will of the ruling majority of the state in which he lives.
Intuitively, one might think, that the smaller the polity, the more likely it is that the interests of the individual will be safeguarded. But I wonder whether this is so. As it seems to me the position of the individual may be more easily defended in a larger entity than in a smaller one. As James Madison pointed out, the larger the polity, the less likely it is that a majority of the majority of the whole will have a common motive to invade the rights of other citizens. Applied to contemporary Europe, such an approach might lead one to view the integration process as adding value in terms of democracy. For a British Trade Unionist in Mrs Thatcher’s Britain, or for a French industrialist interested in greater freedom of trade, the Europeanisation of social policy or of trade relations, respectively, might have appeared, as a way to secure a policy less hostile to their preferences, rather than as a loss of sovereignty. 2
In general, any form of popular government or majoritarian democracy inevitably poses the questions: ‘Who are the people? Of what group must the majority be the majority?’ When one asks the question ‘to what entity should sovereignty attach?’ the answer is seldom self evident.
Anyone who lives in a modern state which is the result of innumerable wars and/or migrations, can legitimately ask himself ‘But what makes a people? And who has the right to be considered as part of the people?’3 ‘Why today’s borders and not yesterdays?’
Problems can and do arise when the boundaries of the state do not coincide with the boundaries of any particular group which sees itself as a national entity. The group may overspill the boundaries of the state or it may be a group within the state. Outside Europe the world abounds with examples. But even within Europe those problems are with us to this day – one need but consider the break-up of Yugoslavia and the former Soviet Union and the problems associated with the Basque Country, with Ireland, and with Gibraltar. If you look back over the past few hundred years or indeed just over the last century you see that states have come and gone or changed shape. Germany, Austria, Italy, France, Poland, Yugoslavia, even what is now little Luxembourg – these countries provide examples of states which have come and gone or changed their borders very significantly.
Sitting in London we may think that we are immune from this tendency. But it is not so. Any reflection on the history of Anglo-Saxon England and, more recently, on English relationships with the island of Ireland and with Scotland shows that we too have not been immune from change.
As one who was swept up on the shores of this country as part of the flotsam of history I am perhaps more inclined to pose such questions than one who has lived in, say, Wales all his life. But even the latter may well ask himself: ‘Have I really more in common with the Scots or English than with the inhabitants of the Irish republic? At what point does the continued movement of persons from England and elsewhere into Wales deprive the electorate of the principality of its Welshness?’
Two things are worth noting in passing. The first is that once a state has been created, or changes in borders have come about as a matter of fact, then the emotional charge of the words ‘national sovereignty’ has been to a greater or lesser extent gradually invested in the newly defined nation. The second is that none of the states I have mentioned have as a matter of fact been completely independent, in the sense of being free to do what they wanted. Indeed, the changes which they have undergone have largely come about against the will of at least one so-called sovereign state.
The latter is but one example of an ineluctable fact. In the nature of things, a state has never been totally free to do whatever it wants, since what one state wants is frequently wholly inconsistent with what another state wants. They cannot both be free to do what they want. It has always been true, although the point has gained force as a result of modern technical and commercial developments, that a state is profoundly affected not only by states but also by decisions made by people over whose decisions it has no direct control and by events over which it also has no control. When asked what he most feared Prime Minister Macmillan once replied ‘Events, dear boy, events.’ That is an expression of the essential vulnerability of the politician in charge of our destinies to matters and people outside his control.
It is clear that if nation A imposes economic sanctions directly on nation B the latter may be profoundly affected. But the same is true if A does not impose sanctions but is undergoing a depression. If there is a significant amount of commerce in goods and services between nation A and B the latter again is affected. Further, if nation A invades nation C, the response of nation C may well have adverse consequences for nation B which has done nothing to irritate nation C or indeed nation A.
There are both pragmatic and normative arguments in favour of broader and more complex constitutional arrangements than those provided by a purely state-centred view based on the concept of sovereignty. First, nation states cannot contain the impact of outside policies inside their borders and therefore it is in their interest to acquire forms of constitutional control over decision-making taking place outside those borders which has the potentiality of affecting them. Second, nation states never fully fulfilled the democratic and constitutional ideals of full representation and participation. It is no longer possible to sustain the illusion of a symmetric relationship between national political decision-makers and the recipients of political decisions.4
Our political institutions and the behaviour of our markets seriously affect others whom our political institutions do not even claim to represent. Conversely, the political institutions and market forces of those abroad affect us although we will not have been consulted about many of them and consultation is in the nature of things impossible in the case of others.
In an ideal world universal harmony would reign. However, it seems that the achievement of the desires which we all have in common is not sufficient at the present stage of human development to persuade us to forego those of our own desires which would inhibit this achievement. Yet this is important. A start is to find the largest area possible within which such a voluntary sacrifice of individual desires is acceptable in order to achieve what we have in common.
We have to agree the areas in respect of which we are prepared to make this sacrifice. The more we have in common with other parties to the agreement the easier it is to expand the number and size of the areas in which we are prepared to give up our own power of decision. It is worth noting that where in practice we have no power of decision the sacrifice is not great.
Europe as a super-state does not provide all the answers to these problems nor, in my view, would the creation of such a super-state be desirable. Personally, I do not see it even as a long term goal. The fact is that people are uneasy with any idea of Europe as a super-state. Many Europeans and certainly many English people, simply as a matter of instinct, do not feel themselves to be part of a European, still less world-wide, political entity or polity. The United Nations certainly but also the European Union, seem to many, too large to provide that degree of cultural, ethnic, or historical cohesion which might be regarded as essential to any polity.
In some countries even the existing nation state seems too large or too diverse. Many are already worried that, as a result of globalisation and various other changes, the peoples inhabiting the nation state no longer share those common religious and cultural beliefs which used to define it, and that the nation state is losing some of the cohesion it had.
All of these worries are readily understandable. But any refusal to think beyond the nation state is not the answer. Yet the nation state ruled by an elected majority is still the paradigm of a polity in most people’s minds.
However, the heterogeneity of the European polity is such that the adoption in an all Europe context of a purely majoritarian system, in which decisions can be taken by a majority of representatives of the people, is difficult to conceive. The lack of any strong collective identity makes it difficult to believe that minorities would easily accept that their fate be decided against their will. Already now it is far from rare to hear the EU being accused of ignoring the traditions or the interests within the Union, in spite of the many safeguards that exist in the decision-making process to protect member states’ interests. This type of tension would be likely to grow exponentially if some strict majoritarian rule were to be adopted. Ultimately, majority rule would end up feeding centrifugal forces.5
One of the influences leading to the increasing emphasis on subsidiarity in the European Union is a recognition of this fact. Article 5 of the EC Treaty sets out the broad guidelines.
‘The Community shall act within the limits of the powers conferred upon it by this treaty and the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore by reason of the scale or effects of the proposed action be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objects of the Treaty.’
The doctrine of subsidiarity requires decision-making to be distributed to the lowest appropriate level. In that context the best democracy is surely one that insists on levels of democracy appropriate to the decision requiring to be made. The tendency to overcentralise at the level of member states is as much to be countered as is any over-centralisation towards Brussels. The demise of sovereignty in the classical sense truly opens up opportunities for subsidiarity and democracy as essential complements.6
All this is untidy. But this untidiness corresponds to reality. People fight for their interests, and the grouping to which they naturally belong depends on the interest at stake. There are fields in which standardisation brings greater benefits than variety. Of course, boundary disputes will always exist. Perhaps it would have been better if the English had been left free to stuff their sausages with bread rather than meat, difficult as it is for a German to understand this when visiting London.
What one has to recognise is that our thoughts and instincts are to a degree shaped by our history and by the received ideas of our age.
Because of our history we have a tremendously hard time conceiving of political systems where territory, identity and power are separated, functionally and/or spatially. We thus continue ending up with the federal or national model as the only conceivable outcomes of international transformation.7 But as I have indicated Europe did not always consist of nicely hierarchically organised enclaves. There is no particular reason why it should.
Most of us have been brought up with the image of the modern state. Two propositions have seemed self-evident. First, that political systems have to be hierarchically organised and, second, that there should be a final arbiter of law – a sovereign – over which no other authorities can decide. I am not persuaded that either of these propositions is necessarily right.
I tend to share the view of my colleague Miguel Poiares Maduro that, certainly in the context of present day Europe, it is artificial to assume the national polity as the natural jurisdiction for full representation and participation. It is artificial to conceive of interests as homogeneously divided according to national borders and, within those, according to particular institutions. It is artificial to make institutional choices on the basis of a single institutional analysis. ... As a consequence of the limits of national constitutionalism, there is no a priori higher claim of validity for national constitutionalism vis-à-vis European constitutionalism.8
There is no reason to accept as immutable the classic legal dogma that legal systems need to be unified, coherent and hierarchical and I see no need to accept the hierarchical territorial state as the only viable building block of international society.
As is well known, the Treaties which have been agreed between the politicians from each of the member states prescribe freedom of movement of goods, of persons, services and capital. They not only lay down various broad principles which are to govern our relations one with another but also, and unusually, create institutions for enacting detailed laws and policing their observance. The vast majority of European legislation has been painfully negotiated by these bodies which we have set up to do just that. Of course situations will arise when the application of those guidelines does not lead to an ineluctable answer to the question ‘Does this fall within the limits of Community competence’. Of course also frequently there will be directives or regulations which prescribe something which someone does not like.
What we see in the Union is a process whereby member states have each agreed not to act on their own in some fields but rather to act together. This is often called a pooling of sovereignty. A deceptive phrase but perhaps it does no harm so long as one remembers that the pooling has only been agreed in respect of some matters in some fields. Those matters in respect of which pooling has been agreed can be described as being within the Community pool. Other matters can be described as being within the state pool. In relation to matters in the state pool, each state continues to do what it thinks is best.
Such an arrangement is bound to give rise to tensions. Some of these tensions can be resolved at the political level others are left to be solved by the Court of Justice. It is to those tensions which I now want to turn.
At the ECJ we frequently hear arguments as to whether a particular matter is or is not in the Community pool or remains with the member states. Immigration and taxation are classic examples of areas where in principle member states are free to act as they will provided, and this is important, they do not infringe Community law. Problems arise when the particular immigration or taxation dispositions of a national law or practice are in conflict with one of the freedoms which the Treaties announce.
Take the situation of a German citizen who wishes to move to England and to be joined there by her aged Chinese father who is living with her in Germany. One way of looking at this situation is to say that immigration by third country nationals into this country is a domain governed by national law. Another way of looking at it is to say that any refusal by this country to permit the Chinese father to live here with his German daughter who wishes to move here to work, would be an inhibition of her freedom to move abroad for working purposes which is granted by the EC Treaty.
Take the situation of the Dane, living in a country where the purchase of cars is highly taxed, who wishes to work for a company in Germany and to be employed by that company on terms which include the provision of a car for him. Now Germany taxes the acquisition of cars relatively lightly. If the Danes allow him to use the German car without paying the Danish tax then the Danes will be deprived of revenue – a field generally regarded as left within the competence of states. If the Danes insist on the Danish tax being paid, then this will inhibit the freedom granted to him by the Treaty to move to Germany to work there.
There is much academic discussion of the so-called Kompetenz-Kompetenz problem. Is it up to the courts of the nation state to decide how much it has given up to be decided at the European level? Or is it up to the European Court of Justice to decide how much has remained in the hands of the state? This is an intellectual teaser to which different answers have been given. In general the European organs have worked on the basis that this problem must be resolved by the ECJ applying Community law. Some of the member states have worked on the basis that, in the last analysis, the decision is theirs applying their national laws. One can easily see that this point could in theory lead to a major bust up and dissolution.
However, the theoretical point has in general been sidestepped by the courts involved. Perhaps it will remain a matter without final decision, with conflicting tendencies in the judgments of state courts and the ECJ, but with an avoidance of any outright collision. In such a condition of studied indeterminacy, there remain in being two sets of interlocking and interacting legal systems that have the potential to answer the same question in mutually contradictory ways.9 So the answer to the question whether, on the one hand, the states have irrevocably transferred part of their sovereign power to the Community, or, on the other hand, have done so in a merely conditional and revocable way, may for the moment depend on whether you raise the question from the perspective of the law of a member state or the law of the Community. The Community as a non-sovereign polity or commonwealth comprising no-longer-fully-sovereign states, and the relationship of the various parts will depend in the long run on a still-to-be-elaborated principle of subsidiarity, rather than on the zero sum game of competition for sovereignty.’10
The fact is that no one wants a bust up and so the problem is avoided by those who have the responsibility for making the decision. This phenomenon is by no means unique to the European Union and indeed is a commonplace in human affairs. Marriages can last a lifetime without there being a clear rule about who takes a decision in the event of a disagreement. Commercial parties happily trade for years on the basis of two mutually exclusive standard conditions of contract. The fact is that one can find oneself in situations where obscurity is more conducive to a happy relationship than a crystal clear rule. Obscurity can lead parties who want to live together to behave reasonably by making concessions and by making it easier for the other party to make concessions.
The EU offers the hope of transcending the sovereign state rather than simply replicating it in some new superstate, some new repository of absolute sovereignty. It creates new possibilities of imagining, and thus of subsequently realising, political order on the basis of a pluralistic rather than a monolithic conception of the exercise of political power and legal authority.11
It seems to me that one should see the Community as constituting the first truly ‘multi-centred’ polity since the emergence of the European State system. Instead of a new hierarchically organised sovereign construct modelled after the nation state, we are confronting a situation where different authoritative orders and circles overlap, compete and collaborate. … if we look at the Community’s most fundamental constitutional principles such as human rights, democracy and the rule of law, these are not that easy to undermine and will most likely also in the future constitute a solid common basis for integration.12
I tend to share the vision of an Israeli professor, Joseph Weiler, who has made a study of the development of the European Union and who writes this: ‘Normally in a democracy, we demand democratic discipline, that is, accepting the authority of the majority over the minority, only within a polity which understands itself as being constituted of one people, however defined. A majority demanding obedience from a minority, which does not regard itself as belonging to the same people, is usually regarded as subjugation. This is even more so in relation to constitutional discipline. And yet, in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to accept being bound by precepts articulated not by ‘my people’ but by a community composed of distinct political communities: a people, if you wish, of others. I compromise my self-determination in this fashion as an expression of this kind of ... tolerance. … Constitutional actors in the Member State accept the European constitutional discipline, not because as a matter of legal doctrine, as is the case in a federal state, they are subordinate to a higher sovereignty and authority attaching to norms validated by the federal people, the constitutional demos. They accept it as an autonomous voluntary act, endlessly renewed on each occasion of subordination, in the discrete areas governed by Europe, to a norm which is the aggregate expression of other wills, other political identities, other political communities. Of course, to do so creates in itself a different type of political community, one unique feature of which is that very willingness to accept as binding, discipline which is rooted in and derives from a community of others. … When acceptance and subordination are voluntary, and repeatedly so, they constitute an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: a high expression of Constitutional Tolerance.’13
‘[This principle of constitutional tolerance is] most present in the habits and practices it instils in the purveyors of public power in European polities, from the most mundane to the most august. At the most mundane administrative level, immigration officials overturning practices of decades and centuries learn to examine the passport of Community nationals in the same form, the same line, with the same scrutiny as their own nationals. And a similar discipline is practiced by customs officials, housing officers, educational officials and many more subject to the disciplines of the European constitutional order. Likewise, a similar discipline is becoming routine in policy-setting forums. In myriad areas – whether a local council or Parliament itself – norms are subject to an unofficial European impact study. So many policies in the public realm can no longer be adopted without examining their consonance with the interest of others, the interest of Europe. … So also in the context of the exercise of judicial functions, whether it be by a justice of the peace, by the House of Lords, by the juge du paix, by the Conseil d’état, by the giudice conciliatore or by the BundesverfassungsGericht. European law, the interest of others, is part of the judicial normative matrix. … This process operates also at Community level. The European judge or the European public official must understand that, in the peculiar constitutional compact of Europe, his decision will take effect only if obeyed by national courts, if executed faithfully by a national public official … This too instils a measure of caution and tolerance. … thus in his daily practice the public official is invited and habituated to deal with a very distinct ‘other’, but to treat him or her as if he/she was his own. One should not be starry-eyed or overly naive; but the hope and expectation is that there will be a spill over effect: a gradual habituation to various forms of tolerance and with it a gradual change in the ethos of public administration which can be extended to Europeans and non-European alike.’14
Professor McCormic, to whom among others I am indebted for stimulating my thoughts, suggests that ‘… the modern state has been portrayed as the stark alternative to anarchy at home and abroad. The absolute power of the sovereign state has been the foundational doctrine for political theory and practice. … It seems to me, as it seems to others, that we may at last be witnessing its demise in Europe, through the development of a new and not-yet-well-theorised legal and political order in the form of the European Union.’15
He points out that: ‘The key question becomes whether there can be a loss of sovereignty at one level without its inevitable and resultant re-creation at another. Is sovereignty like property, which can be given up only when another person gains it? Or should we think of it more like virginity, something which can be lost by one without another gaining it – and whose loss in apt circumstances can even be a matter for celebration? … The idea of subsidiarity points us to better visions of democracy than all-purpose sovereignty ever did. This is a possible future reality preferable to the past of nostalgic mythology. 16
My colleague Poiares Maduro, said that the discovery round about More’s lifetime ‘that different melodies could be heard at the same time in a harmonic manner was one of the greatest developments in musical history and greatly enhanced the art and pleasure of music. In law too, we have to learn how to manage the non-hierarchical relationship between different legal orders and institutions and to discover how to gain from the diversity and choices that are offered to us without generating conflicts that ultimately will destroy those legal orders and the values they sustain. There is much to be gained from a pluralist conception of the EU legal order. In a world where problems and interests have no boundaries, it is a mistake to concentrate the ultimate authority and normative monopoly in a single source. Legal pluralism constitutes a form of checks and balances in the organisation of power in the European and national polities and, in this sense, it is an expression of constitutionalism and its paradoxes’. 17
This article is an edited version of the Sir Thomas More lecture delivered in Lincoln’s Inn, London in November 2006, with kind permission of the International and Comparative Law Quarterly. www.biicl.org/publications/iclq
My interest in the subject matter of this article was stimulated 40 years ago by Werner von Simson: Souveränität im rechtlichen Verstand der Gegenwart. My indebtedness to three outstanding books – Philip Bobbitt: The shield of Achilles – War, Peace and the course of history, to a collection of essays in European Constitutionalism Beyond the State (edited by J.H.H.Weiler and Marlene Wind) and to Mccormick: Questioning sovereignty – is enormous.
The same phenomenon is evident when one considers the relationship of national and international law
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