Book review, EU – Baltic States, Legislation

The book’ new 9^th edition analyses – through a complicated set of interconnections among policy, economy and politics - the new legal framework which appeared in Europe at a post-Lisbon period. The book’s importance is in presenting numerous Court cases and CoJ’s materials illustrating the evolution of various EU legal issues.   

The author is a well-known authority in the EU legal studies, having a Jacques Delors professorship of European law at Oxford University (in the Institute of European and Comparative Law); and the book is already the 9^th edition of the well respected texts on the EU law.*)

 *) Cases and materials on EU law, by Stephen Weatherill. 9^th edition, - Oxford Univ. Press, 2010.-710 pp.

Contents and aims

The contents of the book cover three main issues (the first two are most detailed and extensive covering about two-thirds of the whole text):

• The so-called constitutional law of the EU, including sources and nature of the EU law, e.g. supremacy and direct effect. As well as state liability and judicial control of the EU institutions;
• The EU trade law and policy, covering legal aspects of the internal market development, law and economics’ issues, competition law and policy, as well as free movement of workers, freedom of establishment and free movement of services. Particular attention is devoted to the issue of European citizenship within the area of freedom, security and justice.
• The final part covers policy-making in the EU and new forms of European governance.   

The author underlined in the preface, that his aim remained “to encourage students to appreciate how the legal order has been developed (and is still is the process of being developed) in response to sometimes conflicting economic, social and political pressures” (p. xii). 

The EU legislation through Court’s work

The author begins with the acknowledgement that the EU treaties are having a framework effect, i.e. they set out an overall legal design and the rest, i.e. the implementation, “belongs to the political and judicial institutions of the Union” (p.30). The most important of these institutions are the Council, the Commission, the Parliament and the Court of Justice of the European Union (the Court, the CoJ). The normal legislative procedure contained in the art.289 TFEU provides that such procedure “consists in the joint adoption by the Parliament and the Council of a regulation, directive or decision on a proposal from the Commission”.    

The author underlines that “the Union has neither a general legislative competence not a single uniform legislative procedure” (p.33); he specifies that, first, any proposed EU law must fall within the scope of the Treaty; the requirement which is called the “principle of conferral”. Then, second, even when the proposed EU law falls within the scope of the treaty, it may be necessary to select between legal bases granted by the treaty (art. 5-1 and 5-2 TEU). As competences not conferred upon the Union in the treaties, says art. 5-2 TEU, remain with the member states.

For the first time in the EU’s legislative history, the treaty specifies areas of legislative competence between the EU and the member states, i.e. excusive, shared and supporting.  

The author specifies some of the general principles of the EU law: proportionality and fundamental rights: the two were first developed as legal principles by the Court and only later appeared in the treaty (p.77). Two other principles –supremacy and direct effect- the author specifies as “the nature of Union law” (p.79).

The enforcement of the EU law

In a breach of the Treaty, a member state may be brought before the Court of Justice by the Commission (art. 258 TFEU) or by another member state, which is less common (art.259); similar arrangements were inserted in the previous Treaties, as well. The member states can seek the assistance of the Court in matters of the EU law interpretation, which is the situation described in art. 267 TFEU on preliminary reference.

This model of enforcement envisages two routs for “protecting the EU law”, often called the “dual vigilance”. The first rout, at the EU level approach dates back to founding treaties, e.g. EEC of 1958. This procedure involves two phases – the administrative and the judicial.

The second, “the national-level of control” has been the product of creative jurisprudence, including the “direct effect”, the principle produced by the Court (Van Gend en Loos case, p.91).   

The author specifies particularly the issues of the direct effect of directives (pp. 125-153).Thus, art. 288 TFEU suggests that a Directive, in contrast to a Regulation, would not be directly effective. Regulations are directly applicable becoming a law in the member states (direct applicability), conferring legally enforceable rights on individuals (direct effect).   

Directives, in contrast, are clearly connected to the states’ implementation process, as they are not designed to produce direct effect on individuals. However, already in 1974, the Court held that a Directive might be the basis for an individual complaint before the national court (case 41/74, Van Duyn). Yet in another case, the Court of Justice explained how, when and why Directives can produce direct effect at national level (case 148/78, Publico Ministero v Ratti).

Some author’s comments deserve attention concerning “horizontal direct effect” of Directives. As is well-known, Directives do not provide private individuals to seek protection in national courts, i.e. there is no “horizontal direct effect” of Directives. It could happen only in case when a member state had not fulfilled the Treaty obligation (to implement the Treaty, pursuant art. 288 TFEU) and did not dully transpose the Directive; only in that case the Directive is imposing obligations on private parties. However, in the chapter on Directive’s “incidental effect”, the author argues that “the status of a Directive in national legal proceedings is a complex phenomenon” (p.137).

Thus, through analyzing different cases the author concludes that a Directive can have incidental effect on private parties in national proceedings (bold mine-EE).

Some interesting cases have shown that although the Court excludes the horizontal effect of Directives, the legal position of private parties may be affected by the “unimplemented State’s procedure” of which parties might be unaware with. E.g. such cases originating from an original Council Directive 83/189/EEC (with amendments consolidated in Directive 98/34 and Directive 98/48) as: CIA Security International SA v Signalson SA and Securitel Sprl –Case C-194/94; Johannes Martinus Lemmens –Case C-226/07; Unilever Italia SpA v Central Food SpA –Case c-443/98, etc.).   

The Court: judicial control

The book’s first part concludes with the revealing of the administrative aspects and the remedies concerning the EU legal implementation (pp. 205-256). The Court’s jurisdiction is exercised (art.19 TEU): by the Court itself, the General court and specialized courts. “It shall ensure that in the interpretation and application of the Treaties the law is observed”.

The CoJ, as the article 19 TEU proceeds, performs the following functions: a) it rules on actions brought by the member states, EU institutions and legal persons; b) it gives preliminary rulings, at the request of member states’ courts or/and tribunals (on the interpretation of the EU law or validity of acts adopted by the EU institutions; c) it rules on other cases provided for in the Treaties.

Besides, as the art. 263 TFEU stipulates, the Court shall review the legality of legislative acts of the Council, the Commission and the ECB, as well as acts of the European Parliament and the European Council “intended to produce legal effects vis-à-vis third parties”.

The author underlines that art. 263 TFEU provides a procedure by which the acts of the EU institutions may be annulled by the Court; hence the Lisbon Treaty “has effected important changes” (p. 207). In this regard, the author cites the following cases: Commission v Council - Case 22/70, concerning the nature of acts susceptible to review; International Fruit Company v Commission – Cases 41-44/70, concerning “direct concern” as a pre-condition in standing to challenge the EU acts; Plaumann v Commission –Case 25/62, concerning “individual concern” principle (so-called clementines’ case), etc.

The author provides interesting collection of cases specifying CoJ’s interpretations and approaches to art. 265 and 277 TFEU, as well as art. 268 and 340 (concerning contractual liability). As to the latter, the case 145/83 Adams v Commission is of a particular interest (p. 236-238).

EU trade policy and law

The second part of the book covers controversial legal aspects of the European economic development. This – about two hundred pages analysis- could be of practical use for those studying European economic integration. The difficulty in legal versus economic policy/regulations approach has become an important issue for the EU’s perspectives, in general. One of the key themes of debates among the member states and the EU institutions is that of “regulatory competition” facing “level playing field”.

Another important issue is that of the EU’s taxation policy as an instrument to eradicate “barriers to trade”. Two features are revealed in the “physical and technical barriers to trade” (chapter 11). The main argumentation here is that due to so small a number of articles on such an important issue as taxation: 3 articles in the Customs Union (art.30-32 TFEU), 5 articles in the Customs cooperation (art. 33-37 TFEU) and in Tax Provisions (art. 110-113) definitely requires intensive CoJ’ s involvement.

Through numerous cases the author stipulates that although customs duties and charges are prohibited (art.30), they are not forbidden; they forbid discrimination according to nationality (neutrality principle). Thus, the member states remain free to levy taxation as they want.

The CoJ is concerned with the restrictive effect on trade, not the purpose of the charge or tax; see, for example, two cases in Commission v Italy, Case 7/68, ECR 423; and another case 24/68, ECR 193 (European Court Reports-ECR).

In still another case – Commission v Germany, case 18/87, ECR 5427, German regions (Lander) charged fees on the importation of live animals to cover costs of inspections installed by the Directive 81/389. Interesting enough, the CoJ adopted an approach on the compatibility of the system with the Community law. The reasoning behind the ruling was that the EU stands for harmonized system of health inspections.

In the conclusion, the author tries to answer an eternal question, “what sort of Europe”? It would be, of course, premature to find an answer to the EU’s future, as the author concentrates on such issues as the European decision-making perspectives and that of the “new European legal order”. In this regard the so-called Brunner case is a vivid sign of a debate on the nature of the EU and its relationship with the member states (Ruling of the Federal Constitutional Court, Second Division, 12 October 1999; Case Brunner v European Union Treaty). In this ruling the German Supreme Court acknowledged that “the EU is a confederation of allied democratic states whose objectives include dynamic development” (p.648).

Further on, S. Weatherill reveals the challenges of national constitutional courts, multi-level governance and constitutionalism, and finally the “Europe’s true soul”. Finally, the author acknowledges that “European integration is an evolving process with no defined end in view” (p.681).   

 However, still some author’s final remarks are well worth mentioning, e.g. a) the EU law represents “an intricate web of politics, economics and law; it is to be understood by means of political economy of law”; b) the differences between the EU and traditional international law represent “a particularly strong limitation upon sovereignty” and justify the EU’s supranational effect and order.