EU Law Blog

Van Gend en Loos Revisited

Here's an interesting article by Professor Daniel Halberstam of Michigan Law School that discusses Case 26-62 Van Gend en Loos and Marbury v. Madison.

This is what the abstract says:

The European Court of Justice's landmark decision in Van Gend en Loos is often casually compared to Marbury v. Madison simply because in each case a central high court declares itself to be the final arbiter of central government law. But there is a good deal more to the comparison than this. Both cases serve up what is perhaps the single most profound and complex issue in their respective constitutional systems: multiple competing claims of ultimate legal authority. In addressing this issue, both decisions make important claims for central judicial authority. And yet, neither decision successfully establishes a central judicial monopoly over final legal authority. Instead, both decisions inaugurate a tradition of mutual accommodation among the competing actors lasting to this very day. By juxtaposing accommodation in the two systems, we may understand these practices better than if we limit ourselves to only one or the other legal order. In particular, we recognize that actors in both systems rely on considerations of voice, expertise, and rights to manage the pluralist standoff.

You can download it here.

Well worth reading.

The Rise of Comparative Law (And EU Law as Catalyst)

Professor Bénédicte Fauvarque-Cosson of the University of Paris II - Panthéon-Assas - has just published a monograph on how the creation EU law has had an impact on comparative law and comparative law education. The abstract states:

Over the past years, academics have reacquired a significant role in the European law-making process. A truly European legal research, based on various networks has developed. This Lecture examines the discrepancy between, on the one hand, the rise of European and comparative law and, on the other hand, the limited means allocated to the supranational education of future jurists. Legal insularity is no longer an option. Comparative law should therefore no longer be regarded as a purely academic and optional discipline but as an effective way to lead professors, judges and legislators out of national legal isolation. Moreover, the strength and durability of a truly European legal thinking depends largely on the comparative dimension of education.

You can order the monograph here.

With luck the insightful Jacco Bomhoff over at his terrific ComparativeLawBlog will write some more about Professor Fauvarque-Cosson's short piece.

Recognition of US Judgments in Europe: Baumgartner's Article

Professor Samuel Baumgartner of the University of Akron Law School has written an interesting - and useful - article on whether and how US judgments are recognized and enforced in Europe.

US litigation has several distinctive features that somehow shock lawyers and policy makers in Europe and there is some resistance to enforcing US judgments there. Added to which there is competition between London and New York to become the courtroom of the world. So what really happens ? Professor Baumgartner's article helps to provide an answer.

Here's what the abstract states:

Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very well when the time comes to recognize or enforce them abroad. If so, the resolution of a considerable number of transnational cases in this country would have no effect abroad, not exactly the result that lofty talk about ?transnational adjudication? would seem to entail.
In this paper, I intend to provide some answers to the question how well U.S. judgments really fare in Europe, where many of the important trading partners of the United States are located. I conclude that, on average, the recognition and enforcement of U.S. judgments does indeed face more obstacle in Europe than do European judgments in the United States. However, much depends on the country, the subject matter involved, the person of the defendant, and the connection of the dispute to the recognition state, among other things. Thus, a multilateral judgments convention, such as the one initiated by the United States in 1992, could indeed bring similar improvements as have resulted from various conventions and EC regulations adopted by the Europeans regarding their own judgments. The same goes for the federal recognition statute recently proposed by the American Law Institute.

You can download the article here.

Environmental Law and the EC Legal Order

Here's some more intellectual nourishment for you. Pavlos Eleftheriadis of the Faculty of Law, Oxford University, has written a stimulating article on the development of environmental law in the EC legal order. Its title is, oddly enough, "Environmental Rights in the EC Legal Order".

This is what the abstract says:

This article attempts to offer a general framework for the protection of environmental rights in the European Union's legal order. The article discusses the Aarhus Convention, which follows the international trend for procedural protection of environmental rights. The European Commission proposes to give effect to its 'access to justice' dimension of the Aarhus Convention in a way that endorses uniformtity as a goal. I argue that this goal is mistaken. The guiding constitutional principle in this area should be that unless there are strong reasons to the contrary, EC law will only supplement the public law of the Member States by providing minimum standards. Under the scheme of environmental rights established by the Aarhus Convention each applicant or environmental activist may have slightly different rights depending on the country where he or she starts their actions or launches their campaigns. The public law of the EC, of which environmental law is now a major part, is not an attempt at harmonization nor is it a simple deduction from the principles of direct effect and supremacy.

You can download it here.

Highly recommended.

Failure of the Constitutional Treaty in a Comparative Perspective: Article by Cheryl Saunders

Professor Cheryl Saunders of the Melbourne Law School has written a really interesting article on the failure of the Constitutional Treaty from a comparative perspective. Although the Reform Treaty has taken over, the article remains topical and of considerable interest.

Here is what the abstract states :

The failure of any constitution-making process is deeply disappointing for some and a source of satisfaction for others. The satisfaction of the latter may be short, or at least not long, lived, however, if it subsequently turns out that the changes were necessary, or even demonstrably useful. Initial failure in a constitutional project is relatively common, for reasons that range from the difficulty of the process to the novelty and perceived significance of the issues at stake. Experience suggests, however, that, at least where the rationale for the constitutional proposals was sufficiently soundly based, failure may not be the end of the story. It follows that it makes sense to take stock after such an event: to identify what is lost, that was of value; to determine what, if anything, might be improved, if another constitutional moment presents itself; and to consider whether constitutionalisation should be attempted again, or whether other mechanisms can be used instead.

You can download it from the SSRN site here.

Really, this article must be read by all with an interest is comparative constitutional law and the evolution of the EC.

Harry First on CFI's Microsoft Judgment

Professor Harry First of NYU has written this very interesting analysis of the Court of First Instance's recent judgment in the Microsoft case (Case T-201/04) for the American Antitrust Institute.

This is how he concludes his article:

"The CFI’s decision is a careful review of the Commission’s findings, thorough in considering the factual arguments presented by the parties but less clear in explaining the reasons behind the legal doctrines it applies. Overall, it affirms the balancing approach in which the Commission engaged, albeit without embracing this analytical structure as clearly as did the D.C. Circuit in its review of the Microsoft monopolization case. Unfortunately, though, the Commission remains mired in its effort to force protocol disclosure, an unhappy task that, on the U.S. side, led the District Court in Microsoft to extend for at least another two years the provisions of its decree dealing with protocol disclosure. As for the fines, they are now in escrow awaiting the conclusion of the case. If Microsoft chooses to appeal, that could be years off.

Perhaps next time Europe will think about a structural remedy. That approach might have been faster and more effective."

The previous post on the judgment is here

Statutory Interpretation in the EC: St. Augustine helps out

Professor Lawrence Solan of the Brooklyn Law School has recently published an interesting and original article on statutory interpretation in EC law. Clearly, interpreting statutes drafted in so many languages creates a number of problems. Professor Solan's approach is to find inspiration in the works of St. Augustine.

Here's what the abstract states:

EU legislation is written in all of the EU's official languages. Each version is authoritative, and no version is privileged as "the original," at least not as an official matter. The existence of a regime of multilingual legislation appears to create a daunting task for a court that must resolve disputes over a statute's applicability in a particular situation. The opportunity for inconsistencies among the various language versions is so profound that it would not be surprising if the entire system collapsed under its own weight.

But that has not happened. Whatever problems face Europe and the EU, statutory interpretation is not high on the list. On the contrary, the European Court of Justice resolves disputes among member states in what appears to be a routine manner. In this article, I argue that the proliferation of languages actually assists the interpretation of statutes by the ECJ. To the extent that the goal of the court is to construe statutes to effectuate the intent of the legislature and to further the goals of the enacted directive or regulation, the existence of so many versions of the law makes this task easier. In the manner of St. Augustine, the ECJ looks at several versions of the statute, and then triangulates. Using advances in linguistics, cognitive psychology and philosophy, I explain how this process can serve to reduce the universe of plausible interpretations, thus making statutory interpretation more faithful to the goals of the enacting legislature.

Highly recommended. You can download the article here.

Regulating the Internal Market and EC Powers

Professor Derrick Wyatt of the Faculty of Law, Oxford University has written a very stimulating article on the competence of the EC to regulate the internal market. In fact the article is a rigorous critique of the case law of the Court of Justice and in particular of its judgment in Case C-376/98 Germany v. European Parliament and Council on the power of the EC to regulate tobacco advertising.

This is what the abstract states:

"The claim of the Court of Justice in the Tobacco Advertising case that the Community institutions lack a general competence to regulate the internal market does not withstand critical examination. The Tobacco Advertising case contained both competence restricting and competence enhancing elements. The principal competence restricting elements were
(a) that obstacles to trade could be addressed by removal of the obstacles, but not by a ban on the subject matter of the trade;
(b) that harmonisation could only be justified by distortions of competition if those distortions were appreciable;
(c) that in principle all provisions of a contested internal market measure must contribute to the internal market aims of the measure in question.
The principal competence enhancing element was the proposition that a measure which makes some contribution to the internal market may be adopted as an internal market measure even if its main aim is public health protection; despite the fact that harmonisation of public health requirements is in principle ruled out by the Treaty. A further competence enhancing element was that the Court adopted an impressionistic approach to assessment of the requirement that distortions of competition must be appreciable if they were to justify harmonisation, leaving open the possibility that this requirement might be relaxed or sidestepped by the lawmaking institutions. The competence restricting elements of the Tobacco Advertising case have been contradicted or eroded by subsequent case law, such as the British American Tobacco case, and the Swedish Match case. After the latter case, obstacles to trade can be addressed by simply banning the trade. After the British American Tobacco case, it seems that hypothetical obstacles to trade, resulting from disparities between national labelling rules, can be addressed by eliminating the disparities in question, even if this makes no contribution to cross border trade in the products in question. In the Leitner case, the Court confirms that its approach to the requirement adopted in Tobacco Advertising, that distortions of competition must be appreciable in order to justify harmonisation, will be an impressionistic one. And in Rundfunk the Court considers that as long as a measure makes a contribution to the internal market, it is legitimate for that measure to regulate situations which have no link at all with freedom of movement - something of a retreat from the Tobacco Advertising case, but in line with case law dating from the 1960s which gives wide reading to competence to coordinate national social security rules in order to provide freedom of movement for workers. More broadly, it is noted that Community competence has not in practice been confined to removing obstacles to trade and distortions of competition, but extended to harmonising national rules which facilitate freedom of movement and to removing differences between national rules which create uncertainty for those contemplating cross border transactions. This aspect of Community competence to regulate the internal market is potentially far reaching, and could lead to the use of such measures as instruments of general governance. This does not seem consistent with a scheme of attributed competences, nor with a system in which decisions are to be taken “as closely as possible to the citizen,” in accordance with the principle of subsidiarity."

You should read the whole article. Download it from here.

Federal Constitutionalism / European Constitutionalism in Comparative Perspective

Just came across this very interesting article entitled "Federal Constitutionalism / European Constitutionalism in Comparative Perspective" by Dr. Nicholas Aroney of TC Beirne School of Law, University of Queensland. It has been out since 2005 but so glad to have found it now.

You can download it here.

This is what the abstract says :

There has been a long-standing debate over the question whether the European Community is best understood as an international organisation founded upon a series of international treaties, a supranational organisation that is essentially constitutional in nature, or some kind of sui generis entity that partakes of both sets of characteristics. In connection with this debate, the European Community has often been compared to a variety of established federal-states, such as the United States, Canada, Germany and Switzerland.
In these comparisons, while a number of similarities between federations and the institutions of the European Community have been observed, a sharp distinction has almost always been drawn between the supposed foundations of federal constitutions in the will of ?the people' and the establishment of the European Community upon the founding treaties. Further, in many of the comparisons, it has been assumed that it is the nature of the European Community that is in question, whereas the nature of the federal-state is straightforward and uncontroversial. For this reason, it is generally supposed that the established federal-states will shed light on the problematic nature of the European Community, and not vice versa.
However, this paper argues that the constitutional foundations of federal-states are far from uncontroversial and in fact display a number of features that are uncomfortably similar to the institutional foundations of the European Community. Given that the problematic and ambiguous relationship between treaty and constitution has been highlighted by the debate over the European Community, it is argued that comparisons between the European Community and the modern federal-state can shed significant light not only upon the former but also upon the latter.

In reality, the article is very well written, insightful and carefully researched. Above all, the author's style permits him to convey ideas without abstruse wordiness. Excellent.

EU and US merger policies compared

Thanks to Daniel Sokol of the University of Wisconsin Law School and of the Antitrust and Competition Policy Blog, our attention has been drawn to an interesting article comparing US and EU merger policies. The article is written by a small team spanning both sides of the Atlantic.

Here's what the abstract states:

Merger regulation affects large transactions in the market for corporate control in both the European Union (EU) and the United States (US). This paper compares the merger enforcement policies of the two regions using descriptions of the merger investigations prepared by the staff of the EU and the Federal Trade Commission. The policies are found to share a common foundation with substantial weight being placed on both the market structure characteristics and the likelihood of effective entry. US enforcement was broader-based in that it scrutinized markets that might be characterized as raising oligopoly, unilateral, and dominant firm concerns, while the EU policy focused largely on market dominance. Neither regime is found to be stricter in all circumstances, since the market and firm characteristics impact the enforcement decisions differently. However, we find that the US regime is more predictable (given our measures of the explanatory variables), tougher on strong dominance cases and oligopoly cases, but more permissive on weak dominance cases.

You can download the article here.