THE EUROPEANISATION OF LAW: THE LEGAL EFFECTS OF EUROPEAN INTEGRATION
STUDIES IN EUROPEAN LAW AND INTEGRATION General Editors Professor Francis Snyder Professor Miguel Maduro Advisory Editors Professor Christian Joerges (EUI, Florence) Professor Jo Shaw (Leeds) Professor Joseph Weiler (Harvard) Professor Stephen Weatherill (Oxford) Titles in this Series Rein Wesseling: Constitutional Developments in EC Competition Law Candido Garcia Molyneux: The Unfair Trade Instruments of the EU and USA Francis Snyder (ed.): The Europeanisation of Law: The Legal Effects of European Integration
The Europeanisation of Law: The Legal Effects of European Integration
Edited on behalf of the Department of Law, European University Institute by
FRANCIS SNYDER Professor of European Community Law, European University Institute, Florence; Professor of Law, College of Europe, Bruges; Honorary Visiting Professor of Law, University College London
OXFORD – PORTLAND OREGON 2000
Hart Publishing Oxford and Portland, Oregon Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © The contributors severally 2000 The contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work Hart Publishing Ltd is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing Ltd, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail:
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Contents Acknowledgments Notes on Contributors Table of Cases Table of Legislation 1. The EUI Law Department and the Europeanisation of Law: An Introduction Francis Snyder PART I .
1
JURIDIFICATION OF POLITICS
2. Integration Through Law Revisited: Some Thoughts on the Juridification of the European Political Process Renaud Dehousse 3. Should Public Prosecution Be Independent? Luis María Díez-Picazo PART II .
vii ix xi xvii
15 31
CHANGES IN THE STRUCTURE OF GOVERNANCE
4. The Science of Private Law and the Nation-State 47 Christian Joerges 5. The Role of Institutional Principles in the Judicial Development of the European Union Legal Order 83 Bruno de Witte 6. European Media Law: A Perspective on the Challenge of Multimedia 101 Karl-Heinz Ladeur 7 Legal Pluralism as an Evolutionary Achievement of Community Law 125 Massimo La Torre PART III .
PARTIAL CONVERGENCE OF NATIONAL LEGAL SYSTEMS
8. The Protection of Public Interests and Regulation of Economic Activities Giuliano Amato and Laraine Laudati 9. The Convergence of the Administrative Laws of the EU Member States Jürgen Schwarze
141
163
vi Contents 10. Some Basic Elements of Legal Phenomenology Patrick Nerhot 11. Trade Union Rights in EU Law Brian Bercusson PART IV .
195
UNINTENDED CONSEQUENCES
12. Why Should Europe Be a Democracy: The Corruption of Political Culture and the Principle of Toleration J.H.H. Weiler 13. Simplification of European Law Roland Bieber and Celsa Amarelle 14. Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences Gunther Teubner 15. Global or Re-nationalised? Past and Future of European Labour Law Silvana Sciarra 16. Europeanisation and Globalisation as Friends and Rivals: European Union Law in Global Economic Networks Francis Snyder 17. Social Rights and Women’s Citizenship in Europe Yota Kravaritou Index
183
213 219
243
269
293 321
335
Acknowledgments HIS book would not have been conceivable without the support of all the past and present members of the EUI Law Department. I wish to thank all of those professors who have contributed, and also those who could not contribute because of other commitments but nevertheless gave their warm encouragement and support to the venture. I would also like to take this opportunity to thank the researchers and the secretaries of the EUI Law Department who, individually and collectively, have helped in many ways to make this book possible. Special thanks are due to Dr Patrick Masterson, the Principal of the EUI, and to Dr Antonio Zanardi Landi, the EUI Secretary-General, for greeting the initial proposal for the book with enthusiasm and supporting it through to completion. Financial support for the project was provided by the EUI Research Council, to whom I am most grateful. I wish also to thank Vassil Breskovski, Katarzyna Gromek Broc, Candido Garcia Molyneux, Harm Schepel, and especially Anne-Lise Strahtmann for their contributions to the book. I would like to express my gratitude also to Richard Hart for his encouragement, patience, attention, and care in helping to transform an idea—indeed a vision—into a real book.
T
Notes on Contributors Cesla Amarelle is a Research Assistant at the Centre de Droit Comparé et Européen, University of Lusanne, Switzerland. Giuliano Amato is Minister for the Treasury and has been Prime Minister in the Italian Government. He was Professor of Legal Institutions and Public Policy at the European University Institute. Roland Bieber is Professor of European Law, University of Lausanne, Switzerland. Brian Bercusson is Jean Monnet Professor of European Law at the University of Manchester. Since 1997 he has also been Visiting Professor at the Swedish National Institute for Working Life, Stockholm. Renaud Dehousse is Jean Monnet Professor, Instituut d’études politiques, Paris. Bruno de Witte is Professor of European Law at the University of Maastricht. He was Associate Professor at the European Univbersity Institute between 1985 and 1989 and will join the European University Institute in March 2000 as holder of the Joint Robert Schuman Centre/Law Department chair of European Community Law. Luis Maria Diez-Picazo is Professor of Constitutional Law at the University of Malaga. He has also held teaching positions at the European University Institute, Florence, and the Escuela Judicial, Barcelona. Christian Joerges since 1998 has held the chair for European economic law at the European University Institute. Prior to that he was Co-Director of the Centre for European Law and Politics in Bremen. Yota Kravaritou was a Research Fellow at the European University Institute, Florence. Karl-Heinz Ladeur is Professor of Public Law at the University of Hamburg and part-time Professor at the European University Institute. Laraine Laudati was a Research Fellow at the European University Institute, Florence. Patrick Nerhot is Professor of Legal Philosophy at the Facoltà di Giurisprudenza di Torino. Jürgen Schwarze is Professor of Law, Director of the Institute for Public Law, Albert-Ludwigs-Universität, Freiburg. Silvana Sciarra is Professor of Law at the University of Florence and Professor of European Labour and Social Law at the European University Institute.
x Notes on Contributors Francis Snyder is Professor of European Community Law at the European University Institute, Florence, Professor of Law at the College of Europe, Bruges and Honorary Visiting Professor at University College London. Gunther Teubner is Professor of Private Law and Legal Sociology, Law Faculty, University Frankfurt and Centennial Professor at the London School of Economics. Massimo La Torre is Associate Professor of Philosophy of Law, Faculty of Law, University of Bologna. J HH Weiler is Manley Hudson Professor of Law and Jean Monnet Chair at Harvard University.
Table of Cases European Court of Justice Albany International BV v Stitching Bedrifspensionenfonds Textielindustrie Case 67/96, not yet reported ...................................195, 196 Algera Joined Cases 7/56 & 37/57 [1957] ECR 81........................................177 A M & S Europe v Commission Case 155/79 [1982] ECR 1575 ....................204 Amministrazione delle Finanze dello Stato v Simmenthal Case 106/77 [1978] ECR 629..........................................................................89, 129, 132 Brasserie du Pêcheur and Factortame III Joined Cases C-46 & 48/93 .............26 Brentjens’ Handelsonderneming BV v Stitchting Bedrifspensionenfonds voor de Handel in Bouwmaterialen Joined Cases C-115-117/97, pending...........................................................................................195, 196 BV Maatschappi Drijvende Bokken v Stitchting Pensioenfonds voor de Vervoer-en Havenbedrijven Case C-219/97, Opinion delivered 28 Jan 1999 .....................................................................................195, 196 Cassis de Dijon (Rewe Zentrale …) Case 120/78 [1979] ECR 649.............26, 27 Commission v BASF and others Case C-137/92P [1994] ECR I-2555 ..............85 Commission v Council Case 242/87 [1989] ECR 1425 ...................................92 Commission v Council Case C-300/89 [1991] ECR I-2867 .............................85 Commission v Federal Republic of Germany (Tafelweindestillation) Case C-217/88 [1990] ECR I-2879 ...........................................................170 Commission v Germany Case C-61/94 [1996] ECR I-3989 ...........................308 Commission v Germany Case C-191/95, judgment of 29 Sep 1998, not yet reported .......................................................................................85 Commission v Netherlands Case 49/82 [1983] ECR 1195......................307, 308 Costa v ENEL Case 6/64 [1964] ECR 585..................................22, 89, 128, 129 Council v Parliament Case C-284/90 [1992] ECR I-2227................................85 Dassonville (Procureur du Roi …) Case 8/74 [1974] ECR 837........................24 Defrenne Case 43/75 [1976] ECR 455 ......................................................24, 27 Deutsche Milchkontor v Germany Joined Cases 205-215/82 [1983] ECR 2633.................................................................................................84 Directeur Général des Douanes et Droits Indirects v Eridiania Beghin-Say SA Case C-102/96 [1997] ECR I-1453 ......................................................306 Eridania Beghin-Say Case C-103/96 [1997] ECR I-4649 ...............................314 Extramet Industrie v Council Case C-358/89R [1990] ECR I-431, [1991] ECR 2501 .............................................................................315, 316 France, Italy and UK v Commission Joined Cases 188-190/80 [1982] ECR 2545.................................................................................................92
xii Table of Cases Francovich and Bonifaci Joined Cases C-6 & 9/90 [1991] ECR I-5357 ...........25 Gebrueder Knauf Westdeutsche Gipswerke v Hauptzollamt Hamburg-Jonas Case 118/79 [1980] ECR 1183.................................310, 313 Gebreuder Weis GmbH v Hauptzollamt Wuerzburg Case C-292/91 [1993] ECR I-2219 ..................................................................................311 Germany v Council Case C-359/92 [1994] ECR I-3681 ..................................91 Germany v Parliament and Council Case C-233/94 [1997] ECR I-2405 ..........91 Gianni Bettati v Safety Hi-Tech Srl Case C-341/94, judgment of 14 July 1998, not yet reported...................................................................98 Greece v Council Case 204/86 [1988] ECR 5323 ............................................94 Hauer Case 44/79 [1979] ECR 3727 ............................................................131 Hauptzollamt Muenchen v Wacke Werke GmbH & Co (Wacke Werke II) Case C-142/96 .......................................................................................313 Hèrmes International v FHT Marketing Choice BV Case C-53/93 [1998] ECR I-3603 ............................................................................................319 Hoechst AG v Commission Cases 46/87 & 227/88 [1989] ECR 2859 ............204 Hurd v Jones (Her Majesty’s Inspector of Taxes) Case 44/84 [1986] ECR 29 ....................................................................................................98 Industrie-en Handelsonderneming Vreugdenhil v Commission Case C-282/90 [1992] ECR I-1937 .....................................................................98 International Chemical Corp Case 6/80 [1981] ECR 1191 ............................131 Internationale Handelsgesellschaft Case 11/70 [1970] ECR 1125...........131, 204 Johnston v Chief Constable of the Royal Ulster Constabulary Case 222/84 [1986] ECR 1651 ....................................................................................204 Keck and Mithouard Joined Cases C-267 & 268/91 [1997] ECR I-3843 .........27 Klockner Werke AG v Commission Joined Cases 303/81 & 312/81 [1983] ECR 1507...............................................................................................168 Les Verts (Parti Ecologiste Les Verts …) Case [1986] ECR 1339 ....................93 Luxembourg v European Parliament Case 230/81 [1983] ECR 255 ...........87–88 Maggi GmbH v Hauptzollamt Munster Case 260/78 [1979] ECR 2693 ........305 Marshall v Southampton Area Health Authority (No 2) Case C-271/91 [1993] ECR I-4367; [1993] 4 All ER 586.....................................................23 Meroni Case 9/56 [1957-58] ECR 133 ...........................................................92 Ministero delle Finanze v INCOGE ’90 and others Joined Cases C-10/97-C-22/97, judgment of 22 October 1998, not yet reported ..............89 Netherlands v Council Case C-58/94 [1996] ECR I-2169 ...............................92 Nold Case 4/73 [1974] ECR 491...........................................................131, 204 Parliament v Council (Comitology) Case 302/87 [1988] ECR 5615 ...........18, 93 Parliament v Council (Chernobyl) Case C-70/88 [1990] ECR I-2041..............................................................18, 26, 92, 93, 94, 95, 99 Parliament v Council Case C-65/93 [1995] ECR I-643 ...................................94 Parliament v Council Case C-417/93 [1995] ECR I-1185................................95 R v Secretary of State for Transport, ex parte Factortame Ltd and others Case C-213/89 [1990] ECR I-2433...............................................89, 170, 171
Table of Cases xiii Roquettte Frères v Council Case 138/79 [1980] ECR 3333 ..................18, 94, 99 Rutili Case 36/75 , 131[1975] ECR 1219 ...............................................106, 204 Thyssen AG v Commission Case 188/82 [1983] ECR 3721...........................168 Torfaen Borough Council v B & Q Case C-145/88 [1989] ECR 3851 .............24 UNECTEF v Heylens Case 222/86 [1987] ECR 4097 ............................169, 170 UK v Council Case C-84/94 [1996] ECR I-5755........................................18, 91 Unifruit Hellas v Commission Case 489/93 [1994] ECR II-1201 ...................228 Van Duyn Case 41/74 [1974] ECR 1337 ......................................................127 Van Gend en Loos Case 26/62 [1963] ECR 1 .............................22, 89, 127, 128 Van Munster Case C-165/91 [1994] ECR I-4661............................................87 W Beus GmbH & Co v Hauptzollamt München Case 5/67 [1968] ECR 83 ..................................................................................................228 Wachauf v German Case 5/88 [1989] ECR 2609 ..........................................204 Wacker Werke GmbH & Co v Hauptzollamt Munchen-West (Wacke Werke I) Case C-16/91 [1992] ECR I-6821 ....................307, 312, 313 Walrave Case 36/74 [1974] ECR 1405 .........................................................136 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe Joined Cases C-143/88 & C-92/89 [191] ECR I-415.............................................170 Zwartveld and others Case C-2/88 [1990] ECR I-3365...................................88 European Court of First Instance Industrie des Poudres Sphériques v Council of the European Union Case T-2/95R [1995] ECR II-485, [1998] ECR II-3939..............................316 Opel Austria GmbH v Council Case T-115/94 [1997] ECR II-39....................97 Union Européene de l’Artisnat et de Petites et Moyennes Entreprises (UEAPME) v Council Case T-135/96 [1998] ECR II-2335; [1998] IRLR 602 .............................................................................96, 97, 196, 207 Vlaamse Televisie Maatschappi v Commission Case T-266/97, judgment of 8 July 1999, not yet reported.....................................................................85 Opinions Opinion 1/91 [1991] ECR I-6079..........................................................132, 137 Opinion 1/94 WTO [1994] ECR I-5267 .......................................................319 Opinion 2/94 European Convention on Human Rights [1996] ECR I-1759 ..............................................................................................85 Commission Decisions ARD/MGM (Commission) OJ L284, 3 Oct 1989.........................................109 CLT/UFA-Bertelsmann ..............................................................................108 Debauve [1980] ECR 3857 ..........................................................................104 EBU [1974] ECR 401 ..................................................................................109 EBU (Commission) OJ 1991 L63, 32 ...........................................................109 EBU (Commission) OJ 1993 L179, 23 .........................................................109
xiv Table of Cases EBU (Commission) Decision 93/403, annuled CFI, Dec of 11 July 1996, ZUM 1996, 885 ......................................................................................109 Nordic Satellite 19 July 1995, OJ L53 .........................................................108 Paramount/MGM/Universal Feb 1998 ........................................................109 Saatchi [1974] ECR 409 ..............................................................................102 Telemarketing [1985] ECR 3261 .................................................................104 TV 10 [1994] ECR I-4795 ...........................................................................104 Veronica [1993] ECR-I 487..................................................................104, 108 European Court of Human Rights Bedjaoui, Recueil 18, 19 Apr 1991...............................................................167 Belgacem, Actualité juridique de droit administratif, 1991, 551 ...................167 Deweer ECHR, Series A, vol 35 (1980)........................................................173 Groppera (1990) EHHR 321 .......................................................................106 König ECHR, Series A, vol 27 (1978) ..........................................................173 Lentia (1994) 17 EHHR 93 .........................................................................106 France Enterprise Transports Freymuth v Ministere de l’Environment No 931085 Actualité juridique de droit administrafif, 1995, 555 ................................168 Plantueeux, Actualité juridique de droit administratif, 1978, 501.................171 Germany Federal Constitutional Court, BVerfGE, 73, 118 .........................................104 BVerfGE, Neue Juristische Wochenschrift 1986, 1743 .................................112 Administrative Court of Appeal (VGH) of Baden-Württemberg, 3 Sept 1993 ............................................................................................178 Ireland Webb v Ireland [1988] IR 353 .....................................................................169 Netherlands Kabelregeling/Bond van Adverteerders [1988] ECR 2085 ..............104, 105, 106 New Zealand Invercargill City Council v Hamlin (1994) 3 NZLR 513; [1996] AC 264 .......267 United Kingdom Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223 ................................................................................................167 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, HL............................................................................................169 Doody v Secretary of State for the Home Department [1993] 3 All ER 92 ....170
Table of Cases xv George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803; [1983] 2 All ER 737, HL ......................................................................264–5 Liverpool City Council v Irwin [1977] AC 239 ............................................255 M v Home Office [1993] 3 All ER 537, HL..................................................171 Schmidt v Home Office [1969] 1 All ER 909B, CA.......................................169 Shell UK Ltd v Lostock Garage Ltd [1976] 1 WLR 1187 ..............................255 Walford v Miles [1992] 1 All ER 453...........................................................243
Table of Legislation EC LEGISLATION EC Treaty Preamble ................................................................................................217 Art 2 ......................................................................................................287 Art 3 ......................................................................................................228 Art 3B ....................................................................................................237 Art 4 (ex Art 3a).......................................................................................84 Art 5 (ex Art 3b) .................................................................................90, 91 Arts 8B, 8C ............................................................................................228 Art 10 (ex Art 5) ...............................................................87, 88, 98, 99, 228 Art 12 ....................................................................................................228 Art 18 ....................................................................................................229 Art 28 (ex Art 30) ............................................................................229, 230 Art 30.................................................................................................24, 25 Art 37 ....................................................................................................228 Art 40 ....................................................................................................229 Art 44 ....................................................................................................228 Art 52 ....................................................................................................228 Art 54 ....................................................................................................228 Art 59 ....................................................................................................228 Art 75 ....................................................................................................228 Art 79 ....................................................................................................228 Art 84 ......................................................................................................20 Art 87 ....................................................................................................229 Art 95 (ex Art 100A) ...............................................................................230 Art 100 .............................................................................................79, 177 Art 100A ................................................................................................177 Art 117...................................................................................................204 Art 118a...................................................................................................18 Art 119 ...............................................................................................22, 24 Art 125...................................................................................................287 Art 128...................................................................................................106 Art 133...................................................................................................228 Arts 136-139....................................................................................203, 205 Art 136 (ex Art 117)................................................................................202 Art 137...................................................................................................202 Art 137(6) .......................................................................................202, 203 Art 138............................................................................................203, 230
xviii Table of Legislation Art 139............................................................................................202, 203 Art 139(1)...............................................................................................203 Art 139(2)...............................................................................................203 Art 151...................................................................................................229 Art 169 ....................................................................................................22 Art 173...............................................................................19, 22, 23, 26, 99 Art 174 (ex Art 130r) ................................................................................84 Art 177 ...............................................................................22, 131, 270, 312 Art 189...................................................................................................127 Art 189B.................................................................................................219 Art 207...................................................................................................229 Art 210...................................................................................................130 Art 212...................................................................................................230 Art 218...................................................................................................230 Art 226 (ex Art 169) .................................................................................97 Art 227...................................................................................................229 Art 230 (ex Art 173) .................................................................92, 83, 97, 99 Art 234 (ex Art 177) ..........................................................................99, 230 Art 235 .............................................................................................85, 177 Art 236...................................................................................................132 Art 308 (ex Art 235)................................................................................230 Protocol 7 ..............................................................................................229 Treaty on European Union (EU Treaty) Art 1 (ex Art A) ......................................................................................223 Art 2 ......................................................................................................287 Art 3 (ex Art C).................................................................................86, 222 Art 3b ....................................................................................................130 Art 5 ......................................................................................................130 Art 6 ...............................................................................................130, 204 Art 6(1) ..............................................................................................95, 96 Art 7 ......................................................................................................204 Art 43 (ex K.15)......................................................................................224 Art 56 ....................................................................................................104 Art 59 ....................................................................................................104 Art 85 ....................................................................................................107 Art 86 ....................................................................................................107 Art 103...................................................................................................274 Art 128...................................................................................................112 Annex—Hierachy of Community Acts, Declaration No 16 .....................273 Euratom Treaty (EA) .................................................................................223 Art 146 ....................................................................................................93
Table of Legislation xix Treaty of Amsterdam Arts 6–11, Part II ....................................................................................221 Arts 6–8 .................................................................................................227 Art 9 ......................................................................................................230 Art 10 (Declaration 5).............................................................................226 Part I......................................................................................................227 Part III ...................................................................................................227 Art 12 ....................................................................................................227 Art 171...................................................................................................229 Art 173...................................................................................................229 Art 197...................................................................................................229 Declaration 39........................................................................................236 Amsterdam Protocol on Subsibiary and Proportionality ...............................90 European Coal and Steel Community Treaty (CS) .................................92, 223 Regulations Anti-dumping, Commission Regulation 892/94 OJ 1994 L104 .....................316 Anti-dumping, Council Regulation 2557/94 OJ 1994 L270 ..........................316 Anti-dumping, Council Regulation 3283/94, 22 Dec 1994, OJ L1994349, 1...................................................................................175 Anti-dumping Duty, Council Regulation 2486/97 OJ 1997 L345 ..................317 Anti-dumping (FeSiMn), Council Regulation 495/98 OJ 1998 L62 ...............317 Anti-dumping (handbags), Commission Regulation 209/97 OJ 1997 L33 .....318 Anti-dumping (leather handbags), Council Regulation 1567/97 OJ 1997 L208......................................................................................319 Community Customs Code, Council Regulation 2913/92, 12 Oct 1992 OJ 1992 L302 ................................................................175, 219, 232, 233 Art 86 ....................................................................................................306 Art 114(1) ..............................................................................................305 Art 114(2)(c) ...................................................................................305, 307 Art 115(1)(a) ..........................................................................................306 Art 115(1)(b) ..........................................................................................307 Art 115(2) ..............................................................................................306 Art 123...................................................................................................306 Art 127...................................................................................................306 Art 145 (1)..............................................................................................307 Art 145(3)(b) ..........................................................................................307 Art 146...................................................................................................308 Community Customs Code (Implementation), Commission Reg 2454/93, 2 July 1993, OJ 1993 L253, 1 amended by Commission Reg 3665/93 OJ 1993 L335 ..............................................................................219, 307 Art 126...................................................................................................307 Art 503 (as amended) .............................................................................307
xx Table of Legislation Art 549(a), (b), (c), (e) ............................................................................305 Art 549 (I) ..............................................................................................307 Art 552...................................................................................................307 Art 561(1) ..............................................................................................307 Art 561(2) ..............................................................................................307 Art 569(1) ..............................................................................................306 Art 570(1) ..............................................................................................306 Art 572(1) (as amended) .........................................................................307 Art 575(3) ..............................................................................................307 Art 600...................................................................................................307 Art 601 (as amended) .............................................................................307 Arts 602-605...........................................................................................307 Community Customs Code (Nomenclature), Commission Reg 3665/93 OJ 1993 L355......................................................................................306 Community Customs Code (Textiles and Clothing), Council Reg 3036/94 OJ 1994 L322......................................................................................307 Community Tariff Quotas, Council Reg 1385/94 OJ L1994 L152 ................307 Fishery Products, Council Reg 3687/91/EEC of 28 Nov 1991 OJ 1991 L 354.....................................................................................233 Horizontal legal codification, Council Reg 17, 6 Feb 1962, OJ No 13, 21 Feb 1962, 204 .................................................................................175 Internal Market, Council Reg (EC) 2679/98 of 7 Dec 1997 OJ 1998 L337, 8 Art 2 ......................................................................................................196 Merger Control, Council Reg 4064/89, 21 Dec 1989 OJ 1989 L395, 1...........175 OPT Regulation, Council Reg 2473/86 OJ 1986 L212 ..........................302, 312 OPT Regulation, Council Reg 636/82 OJ 1982 L76 .....................................303 Production Refunds for Cereals, Reg (EEC) 112/74 Art 7(2) ..................................................................................................310 Directives Consumer Credit, Directive OJ 1987 L42......................................................80 Digital TV Signals, Directive 95/47 OJ L281, 51...................................117, 119 Doorstep Selling, Directive OJ 1985 L372 .....................................................80 European Works Councils, Directive 94/45/EC OJ L 254/64, 30 Sep 1994 ....281 Harmonisation of Customs Laws, Council Directive 69/73 OJ Eng Spec Ed 1969 (1) Art 2 ......................................................................................................309 OPT Directive, Council Directive 76/119 OJ 1976 L24 ................................303 Package Travel, Directive OJ 1990 L158.......................................................80 Product Liability, OJ 1985 L210 ...................................................................80 Television Directive, European Parliament and Council, 30 June 1997, amending Directive 89/552/EC..............................................104, 110, 114 Unfair Terms in Consumer Contracts (Consumer Protection Directive), Directive 93/13/EEC OJ 1993 L95 ..................................................80, 243
Table of Legislation xxi
NATIONAL LEGISLATION France Code des Tribunaux administratifs, Art L22...............................................171 Germany Constitution (BVerfGE) 74, 358..................................................................172 Civil Code (BGB) ........................................................61, 65, 66, 175, 180, 253 Administrative Procedure Law (Verwaltungsverfahrensgesetz, VwVfG)........................................................................169, 175, 178, 179 Correspondence Courses Act (Fernunterrichtschutz)1976 .............................71 Estate Agents Act (MaklerG) 1972 ...............................................................71 Hire Purchase Acts (AbzahlungsG) 1969, 1974..............................................71 Protection of Tenants Act (Mieterschutz) 1971 .............................................71 Standardised Terms Act (AGBG) 1976 .........................................................70 Travel Tour Contracts Act (Reisvertrags) 1979.............................................71 Unfair Competition Act (UWG) 1965 ...........................................................71 Portugal Constitution Art 268...................................................................................................173 United Nations Charter Art 2(2)....................................................................................................87 United Kingdom Supreme Court Act 1981 ............................................................................148 Tribunals and Inquiries Act 1958................................................................148 Unfair Terms in Consumer Contracts Regulations SI 1994 No 3159 Reg 4 .....................................................................................................243 United States of America Constitution (9th Am)................................................................................128 Administrative Procedure Act 1946.............................................................149 Uniform Commercial Code ........................................................................243
1
The EUI Law Department and the Europeanisation of Law: An Introduction FRANCIS SNYDER
I . THE LAW DEPARTMENT OF THE EUROPEAN UNIVERSITY INSTITUTE
The European University Institute (EUI) is distinctive, if not unique. Located in beautiful surroundings on a hillside on the outskirts of Florence, Italy, it is a multilingual, multicultural, and internationally oriented institute for postgraduate teaching and research, especially but by no means exclusively on Europe, European integration, and the European Union. Today the EUI has four departments, namely Economics, History and Civilisation, Law, and Social and Political Sciences, together with an interdisciplinary policy studies centre, the Robert Schuman Centre. The EUI was founded in 1972 by an international convention agreed by the European Community (EC) Member States. As other countries have joined the EC, now part of the European Union (EU), they have also signed the EUI Convention. The EUI opened officially in 1976. The Member States, together with the EU institutions, provide most of the financial support for the research and teaching activities of the EUI. All of these activities constitute, build upon and contribute to the distinctive features of the EUI. The EUI Law Department forms part of this unusual ensemble. Its professors, postgraduate researchers, and administrative staff are drawn from many countries, educational and professional backgrounds, legal systems and cultures, and fields of teaching and research. Professors in the Law Department, as elsewhere in the EUI, are recruited from other universities or research institutes for a maximum of eight years; they then return to their home universities or other institutions. There are now usually about ten professors in the Law Department at any one time; thus the Department is small and covers only selected areas of law. The work of professors at the EUI Law Department, in addition to administrative duties, consists primarily of research, the teaching of research seminars, and the supervision and training of postgraduate research students. The limited period of their stay at the EUI, though it also has disadvantages, means that the EUI is enriched by a continuous change of staff and the wealth of their diverse
2 Francis Snyder experience. Conversely, the brassage of ideas and cultures and the intensity of research and debate which are among the most striking features of the always stimulating, often culturally complex daily life at the EUI can then be spread widely throughout the network of their former and new home universities. Since the early 1980s, if not before, the EUI Law Department has maintained a specific character, despite some variation, and thus gained a distinctive intellectual reputation. These features can be summarised in terms of three characteristics. First, the EUI Law Department has aimed to be European and international in focus. Issues related to the EU and the international community thus occupy a large share of its teaching and research projects. Secondly, its approach is comparative. Virtually all of its professors work easily in two or more legal systems, and researchers are required to use a comparative method in their postgraduate theses. Thirdly, the Law Department is characterised on the whole by its contextual method. While taking account of the fact that ‘law in context’ has many meanings, it is fair to say that the Department has developed, and sometimes pioneered, the study of law, especially European law, in its social, political, economic, and cultural contexts. Taken together, these features distinguish the EUI Law Department as a whole more or less sharply from most other law departments or faculties in the EU Member States, as well as in other countries. The EUI Law Department has been extremely fortunate throughout its short history in being able to attract a series of very distinguished scholars in different fields of law from many countries. For this reason, among others, it has had an unusually great influence on law teaching and research in various European Union countries, as well as on teaching and research on European Union law in other countries throughout the world, such as the USA, China, Japan, and elsewhere. As teachers have left the EUI for other universities, the work they began, or in which they participated, at the EUI has been transplanted to different academic environments and diverse national legal systems. In fact, one could say that the EUI itself has been an important factor in the Europeanisation of law, in particular with regard to law teaching and research.
II . PURPOSE OF THE BOOK
The purpose of this book is to mark and illustrate the significant contribution of the EUI Law Department to contemporary legal scholarship. The book is intended to indicate the kind of legal research which has been done and which is being done today at the EUI. It also aims to make the themes, approaches, methods, and types of argument addressed in the EUI Law Department more widely known. The book consists of interrelated essays by many past and present members of the EUI Law Department. The contributors are currently members of the Department or were members of the Department for various periods during the
Introduction 3 years between 1981 and 1997; the latter cut-off date stems from the fact that the idea of the book originated as part of the celebration of the EUI’s twentieth anniversary. It is no exaggeration to say that the contributors are all well-known specialists in their fields, partly as a result of their experience and work done at the EUI. Their other publications are available in the form of numerous books and articles. By presenting some of their work together in a single book, we hope to indicate the fact that the members of the EUI Law Department have over the years also made a very significant mark on legal scholarship as a group. All of the writers whose work is presented here have made important contributions to their respective fields. In the case of the EUI Law Department, however, the whole is much greater than the sum of the parts. This, it may be asserted with some diffidence, represents a significant and consciously won achievement. For the EUI differs from most other universities and institutions, where people with a shared vision or similar interests can work together in one place for a long period of time. In the setting of the EUI Law Department, the coherence of focus, approach, and method over time must be ascribed instead to two other factors. First, though specific individuals have come and gone, their contract periods were staggered and thus overlapped; this resulted in a continuous stream of collaboration among colleagues that has had a cumulative and continuing impact. Secondly, generally speaking, the Law Department has tried since the mid-1980s to remain faithful to a coherent, albeit broad-based, contextual approach to legal research and teaching. This has in my view been the decisive factor. Without it, the first factor would have led to fragmentation and dispersion. The overall coherence of approach deserves, in my opinion, to be highly valued and preserved. This book, and the articles in it, represent a contribution to this process. III . THE EUROPEANISATION OF LAW
1. Main themes In addressing the issue of the Europeanisation of law, contributors to the book were asked to focus on a single question: what have been the principal legal effects of European integration? As initially conceived, this embraced several more specific issues: • the effects of European integration on certain fields of national law, such as constitutional law, administrative law, labour law, or private law, and • the elaboration of European Union law so as to provide a new framework for or sometimes even replace national laws, • the more piecemeal development of specific legal strands of EU law which have become intertwined with national or international laws in practice, • the indirect and sometimes unintended consequences of European integration with regard to national, EU, or international law.
4 Francis Snyder These issues provide the starting point for most, if not all, of the contributions to the book. The remainder of this Introduction highlights briefly some of the main themes treated by the contributors. On my reading, the principal legal effects of European integration may be summarised as follows. The first consequence has been the juridification of politics to an important extent, with political battles being played out through the law and European law and the European Court of Justice (ECJ) being invoked increasingly in political conflicts. This theme is treated especially (but not only) in the chapters by Dehousse and Díez-Picazo. Secondly, there have been substantial changes in the structure of governance, which sometimes have involved the creation of entire fields of European law. The chapters by Joerges, de Witte, Ladeur, and La Torre deal with this topic. Thirdly, the national legal systems of the EU Member States have partially converged. Amato, Schwarze, and Bercusson address this theme directly, while Nerhot provides a philosophical framework for understanding such differences. Fourthly, the Europeanisation of law has provoked a number of unintended or unforeseen consequences, such as new divergences among national legal sysems, an incredibly complex EU legal system, a deep crisis of legitimacy and values, and the creation of contradictory norms and processes which tend to undercut Europeanisation itself. The chapters by Weiler, Bieber and Amarelle, Teubner, Sciarra, Snyder and Kravaritou are concerned with these questions. Even the casual reader, however, will notice that most of the chapters in the book address several of these questions simultaneously, as well as raising many others. This initial, personal grouping is designed merely to indicate some of the interconnections among the chapters; it also serves as a convenient way of organising the book. A brief presentation of each of the chapters will suggest the extent to which they deal with certain overriding themes, even though the contributors often are concerned with different topics and develop their own distinctive analyses. It will also underscore the contribution of these essays as a whole to our understanding of the Europeanisation of law. 2. Juridification of politics The chapter by Renaud Dehousse opens the book by treating the topic of European integration by means of an interdisciplinary approach that draws on law and political science. It focuses on the role of the European Court of Justice and points to the legalisation, or juridification, of politics as a basic feature of European integration. It shows that law conditions the content of European decisions and also how they are taken, so that that law and legal debate are fully integrated into and thus part of the political process. The juridification of decision-making process has involved the strategic use of courts, notably the ECJ, by EC institutions as well as by private parties, particularly companies. The chapter is a reflection on the relationship between law and politics. It concludes that the legalisation of politics has advantages but also limits. For example, it
Introduction 5 empowers the ECJ, but it tends to hinder democratic political developments and weakens the political process by hiding conflicts of interest in legal terms. The chapter by Luis Díez-Picazo continues the analysis of the relationship between law and politics. Focusing on the question as to whether public prosecution should be independent, it asks which political values are expressed in the law. The chapter emphasises a point that is stressed by many of the essays in this book, namely that the development of constitutionalism requires that political objectives and values be identified and clarified. It concentrates on Italy, France, Spain, Germany; the United Kingdom has no similar system of public prosecution, nor does the USA, which also is characterised by deep differences in legal organisation and political culture. This comparative legal analysis demonstrates that the assumption that public prosecution has a unified legal status, regardless of its judicial or prosecutorial function, underlies the question as to whether public prosecution should be independent. It reveals the effects of European integration on this aspect of national law. The chapter argues that formally independent public prosecution alone is not an effective response to governmental crime. This chapter shares with the chapters by Amato and Ladeur a concern with independent agencies and their relation to the executive. It argues that the key question in determining the status of public prosecutors is the balance between the respect for legality and protection of citizens’ rights, on the one hand, and the development of an effective and legitimate criminal policy, on the other hand. Instead of an independent prosecutor, it proposes a public prosecutor with operative autonomy vis-à-vis the executive but with effective safeguards for prosecutorial professionalism.
3. Changes in the structure of governance The second group of chapters in the book, though touching on similar themes, is concerned mainly with the nature and implications of the changes in the structure of governance which have been part and parcel of Europeanisation. The chapter by Christian Joerges examines the relationship between private law and the nation-state in twentieth-century Germany. It aims partly to make nonGerman readers aware of the controversies, responses, and historical legacies, in particular related to National Socialism, which condition German private law today, and therefore exercise an important influence in the development of European private law. This kind of meta-translation is intended to help people from one country understand issues in another country and in the other’s terms; it has always been integral to the work of the EUI Law Department. The chapter shows the deep connections between the historical context of private law legal theory and Germany’s legal tradition. It points to the intimate relationship between the development of private law, the nation-state, and Europeanisation. The German decision in favour of Europe stemmed partly from a decision to open the national economy and was a response to the internationalisation of the
6 Francis Snyder economy. It implied the denationalisation of private law scholarship and also involved the role of the ECJ and the EC legislator in Europeanising German private law. The chapter demonstrates that this process raised a number of historical and political problems, which crystalised around the difficulty of reconciling the Europeanisation of private law with the renewal of Germany as a democratic constitutional state. In the next chapter Bruno de Witte considers the use of institutional principles in the judicial development of the Community legal order. He also emphasises the crucial role played by the European Court of Justice in the process of Europeanisation, conceived here as a process of the judicial ordering of relations between the EC and the Member States and among the Member States themselves. He explores basic institutional principles such as institutional balance, democracy, sincere cooperation, and subsidiarity. The chapter thus illuminates some fundamental aspects of Europeanisation which are often understood as constitution-building, the construction by the ECJ of a Community legal order or system of multi-level governance. The chapter by Karl-Heinz Ladeur on the challenges posed by multimedia to EU media law deals with other aspects of changes in the structure of governance. It introduces the themes of regulation, market management, and the relation between the transformation of markets and the development of legal institutions. Observing that the EU has limited strategic potential and little regulative flexibility, the chapter considers the institutional alternatives for managing the rapidly developing media market and its advanced technology. It discusses the failed EC directive on high-definition television and the EC directive on digital TV signals. It also shows that the processes of Europeanisation and globalisation affect especially the markets for film and sports rights, leading to the monopolisation of programme rights as a regulatory problem. The media market is being transformed by digital technology, creating a ‘local public for a delocalised culture’. Criticising the market-orientation of the EU, the chapter proposes a new strategy for the introduction of multimedia. Arguing that complex technological problems can only be regulated on the basis of consensus involving the relevant industrial actors, it suggests the creation of an agency on the basis of the organisational principle of pluralism. Note that the chapter by Amato deals with analogous themes. This chapter also argues that shifting more competences to the EC could contribute to the revitalisation of Member States’ competences. It thus joins the debate about relations between the EU and its Member States and about the consequences of Europeanisation, both intended and unintended, which are addressed by many other chapters in the book. This naturally leads one to consider the structure of the EU, models of EU law, and models of the EU as a constitutional system. These themes have been the subject of a great deal of research at the EUI. Here the chapter by Massimo La Torre discusses legal pluralism as an evolutionary achievement of Community law. It sketches three models of the relationship between international law and domestic law: (a) international law trumps, (b) domestic law
Introduction 7 trumps, and (c) a dualist model. It analyses the evolution of ECJ case law and shows the development of EC law as representing an overlapping consensus. The chapter advocates legal pluralism, not as a sociological concept, but rather as a normative criterion to direct the judge to use more than one source of law in resolving disputes; note that similar themes are raised in the chapter by Ladeur. It argues that this normative legal pluralism can operate only with certain limits, however, on the grounds that legal pluralism can be operative only if it is reducible to monism. The chapter thus constitutes a search for an appropriate concept of the EU constitution. It proposes a conception of the EU constitution based on interaction and discourse. The inquiry and the result are both the product of and part of the process of Europeanisation.
4. Partial convergence of national legal systems A third overriding theme in the essays is the partial convergence of national legal systems. The chapter by Giuliano Amato is concerned with the relationship between rules, authorities, and the control of de-monopolisation in Europe. It addresses questions of administrative law from an interdisciplinary standpoint using law and history. It demonstrates the changes in administrative law throughout Europe and in the USA, together with the survival of earlier cultural paradigms. By means of a contextual history of divergent administrative law traditions with some important similarities, it argues that convergence of administrative law has occurred in the twentieth century, partly but not only as a result of Europeanisation. However, Continental legal systems have changed more than common law systems, in particular in unbundling what the chapter calls the “structural contextuality” of public interests. The chapter argues that what is defined as “administrative” today depends not on relationship to the executive power but rather on the quality of functions entrusted to a body and the related quality of its powers. It points to the importance of totally independent administrative authorities. It argues that analysis of such authorities should be based on the doctrine of non-majoritarian institutions. In passing, it may be noted that the topic of non-majoritarian institutions has long been the subject of research by Giandomenico Majone, who was previously a member of the EUI Social and Political Sciences Department and who for several years taught jointly a seminar with members of the EUI Law Department (including the author of this Introduction). The chapter concludes by emphasising the need to redefine both administrative and constitutional law. Taking up this challenge, the chapter by Jürgen Schwarze analyses the contemporary convergence of the administrative laws of the EU Member States. It develops some of the themes introduced in the chapter by Amato by showing the extent of convergence and the dynamics of convergence, especially the role of the ECJ. It explores the effects of EU law on the administrative law of France, Germany, and the United Kingdom, arguing that these national administrative
8 Francis Snyder law systems are open to change. Changes have occurred due mainly to the influence of European law, in particular the standards established by the ECJ for the “indirect administration” of EC law, reciprocal influences among the Member States, and the approximation of administrative law concepts. The chapter argues that there is currently a corpus of common administrative law principles, which is sufficient to provide the basis for a codification of European administrative law. It suggests that such a codification would help to consolidate the EU and develop a common legal consciousness or legal culture. As these and other chapters indicate, the political philosophy and social values which have permeated the process of Europeanisation have been the subject of detailed study in the EUI Law Department. The Department has also been the host of more abstract work in legal philosophy. The chapter by Patrick Nerhot outlines some basic elements of legal phenomenology. It invites us to consider how we know the world and proposes a method for understanding how we know what we know. The phenomenological method outlined in the chapter addresses a series of issues: “monstration”, the term used in the chapter; effect and cause; induction; knowing; the “before” and “after”; and meaning. The chapter argues that these questions and the operations to which they refer can be seen to be characteristic of people from all Member States; this is a philosophical, not a sociological, argument. The chapter also illustrates another aspect of work done in the EUI Law Department, namely the interconnection, whether actual or potential, between theoretical analysis and policy studies. These two types of research can often inform each other. Many chapters in this volume, for example that by La Torre, exemplify this point. The chapter by Brian Bercusson on trade union rights in EU law discusses another aspect of the partial convergence of the legal systems of the EU Member States. It outlines the basis for a coherent and comprehensive legal framework for a European industrial relations system. Such a convergence would therefore represent also a change in the structure of governance. In showing how it is possible to formulate trade union rights in EU law, the chapter addresses the issues raised by the diversity of historical, legal, and industrial relations traditions. It considers ECJ decision-making as a form of comparative law and uses a variety of sources, including ILO, Council of Europe measures, and EC law. It also emphasises the conjunction of political strategies, law, and other legal means, leading to evaluation of strategic options. Finally, the chapter makes a proposal for the creation in EU law of fundamental trade union rights on the basis of legitimacy and consensus In addition to elaborating themes that are developed in the two preceding chapters, it emphasises other ideas common to many chapters in the book. One can mention, in particular, the importance of values such as the preservation of diversity and social justice, the relation between EC law and national law, and the role of the European Court of Justice. The chapter concludes by suggesting that a system of EU trade union rights can be accomplished by an agreement between the social partners and EU institutions according to terms acceptable to the European Court of Justice.
Introduction 9 5. Unintended consequences Europeanisation, as any social process, has had both intended and unintended consequences. A fourth group of essays in the book explores some of these unintended consequences. It is worth nothing in addition that the constitutionalisation of the EU is sometimes argued to be a consequence of European integration that was not intended by the Member States. This argument is not developed expressly in this book, but it is well known to many of the contributors, indeed some have advanced it elsewhere, and it informs their understanding of Europeanisation, in particular the work of the European Court of Justice. This in turn provokes futher reflection on the constitutional aspects of Europeanisation, that is, Europeanisation as a process of constitutionalisation, and notably on the basic values involved in Europeanisation and on the nature of the EU as a legal system and as polity. As is well known, these particular themes have been the subject of intensive research at the EUI. Joseph Weiler focuses on a first, surely unintended, consequence of Europeanisation: the EU’s systemic and perhaps systematic lack of democracy. The chapter asks a provocative but entirely serious question: why should Europe be a democracy? It proposes three answers. First, any other system would be unacceptable and illegitimate. Secondly, the lack of democracy in the EU represents the invasion of the market mentality into politics. Thirdly, a nondemocratic EU would extinguish the principle of toleration, and thus suffer from the same shortcoming that is fatal to a statist conception of the EU. The chapter argues that the very success of Europeanisation in the sense of European economic (and also legal) integration has corrupted the civic sensibilities of European peoples. It has put at risk the meaning of democracy; this theme is also developed in the chapter by Ladeur in this book. The EU policy/legal cycle tends to involve an increasing degradation of democracy within the Member States. The chapter thus poses a fundamental question, which represents perhaps the greatest challenge of all to those concerned with Europeanisation, whether in academic life, law practice, policy-making, or elsewhere. In answering this question, the chapter invites us to reflect on the values underlying European integration, the meaning of democracy, and the nature of the EU as a polity. The chapter by Roland Bieber and Celsa Amarelle focuses on a second unintended consequence of Europeanisation: the incredible complexity of EU law. It examines the possible simplification of European law. It shows clearly and in detail the intimate connection between technical legal debates about the simplification of law and political debates regarding basic constitutional values. It argues that any debate about the simplification of law requires a discussion of the content and objectives of European integration. The chapter considers both the Treaty and secondary legislation. It analyses the reasons for the complexity of Community law. The development of a Community methodology for simplification requires reducing the normative activity of the EC and thus also identifying political objectives. Simplification must be achieved through the text and
10 Francis Snyder Treaty amendment procedure and proceed acording to normative level and content. On this systematic analysis, simplification is, in the words of the chapter, really “a first step towards constitutionalisation”. The EU lawyer thus cannot avoid political choices. The Europeanisation of law raises profound political questions, and the study of EU law involves a confrontation with and clarification of basic values. Gunther Teubner deals with a third unintended consequence in his chapter on the principle of good faith in British law as “legal irritant”. The Europeanisation of law, though apparently involving the uniformity or harmonisation of national legislation, often provokes further and sometimes even great divergence. The essay analyses the ways in which importing the EC law doctrine of good faith acts in the British legal system as an irritant to the “binding arrangements” already established by the law. Instead of being absorbed or adopted, it provokes a series of further changes involving both the meaning of the initially external rule and the internal or host legal context. It argues that the metaphor of legal transplantation does not capture adequately these unintended consquences. Nor does the concept of globalistion, if it is understood to mean only the convergence of societies, economies, and legal systems. Instead, the chapter argues that both globalisation and Europeanisation produce new divergences as their unintended consequences. Attempts to unify European contract law will result in new cleavages. The chapter considers the relationship between globalisation, Europeanisation, and national law, the values embodied in law, the relations between EC law and national law, the effects of EC law on national law, and the development of a European private law. It thus raises issues that are also touched on by Joerges, Ladeur, Snyder, and other contributors to this book. It urges us to reflect more deeply on the implications of the Europeanisation of law, either by legislation or by judicial decision. A fourth, though related, unintended consequence is considered by Silvana Sciarra. Analysing the present situation of labour law, she argues that the European internal market and its legal system are developing distinctive characteristics. She uses the example of measures taken under the new Title on employment in the Amsterdam Treaty to show how differentiation has replaced harmonisation, leading in turn to a re-discovery of the “local”, as opposed to the “global”. National economic policies and values have always differed, but now these differences are being re-evaluated and re-valued. She argues that national governments and parliaments still have a role to play in establishing the balance between the market and social values. In her view, the most appropriate response to global economic constraints and to increased supranational cooperation may be the re-nationalisation of labour law. I examine a fifth unintended consequence of Europeanisation in my essay on EU law in global economic networks. The Europeanisation of law stimulates certain types of economic relationships that tend to undercut the process of EU constitution-building. The chapter examines aspects of EU international trade and customs law, especially inward processing, outward processing, and anti-
Introduction 11 dumping, mainly but not only in the context of trade between the EU and China. It argues that certain aspects of EC law, which are oriented to and foster globalisation, tend to undercut the influence of other aspects of EU law, which might otherwise lead to a stronger, more coherent process of Europeanisation. The chapter reviews various ideas about the Europeanisation of law. It shows that globalisation and Europeanisation are both friends and rivals: they are complementary, partly overlapping, mutually reinforcing, but also competing processes. This chapter, echoing themes also raised by Ladeur, Joerges, Teubner, and Sciarra suggests that, on balance, globalisation sustains and creates interests and relationships which undercut traditional constitutionalism as a mode of EU governance. Among the most striking and controversial aspects of the Europeanisation of law are social rights and citizenship. The essay by Kravaritou focuses on these topics from the standpoint of the citizenship of women. Kravaritou suggests that not only was the concept of citizenship born in Europe but also the European and EU concept of citizenship is distinctive. She argues that women have been the last to reach full citizenship in Europe. Women have not yet acquired a citizenship that recognises them as individuals enjoying civil, political, and social rights to the same extent as men. The link between citizenship, human rights, and women’s claims needs to be re-established. Once this is done, it will inevitably be recognised that the Europeanisation of citizenship implies a new identity and a new conception of a fairer society for both men and women. The interrelated essays in this book thus offer a variety of perspectives on the role of law in European integration and the effects of European integration on the law. They illustrate the European and international, comparative, and contextual approach to legal scholarship that has been developed at the European University Institute Law Department. For my own part, and on behalf of all the past and present members of the Department, I hope that they will provide a rich harvest for anyone interested in the structures, processes, and implications of the Europeanisation of law. But this book, and the many other publications of the authors of the essays included in it, are only part of the contribution of the EUI Law Department to legal scholarship. In our teaching and research, we have tried to sow the seeds for future harvests, represented in the work of our students, the former researchers in the EUI Law Department, who are now dispersed in universities, research institutes, and other institutions throughout the world. They are or will be among our colleagues and then among our successors. We hope that they, and all our future colleagues in the EUI Law Department, will carry on the tradition of legal scholarship that is reflected in this book.
Part I
Juridification of Politics
2
Integration Through Law Revisited: Some Thoughts on the Juridification of the European Political Process RENAUD DEHOUSSE*
I . INTRODUCTION
Law is a complex phenomenon: for some, a product of underlying social pressures; for others, a tool for changing society. Its mixed nature makes it hard to study its place in a given society. Lawyers, for whom its importance is axiomatic, tend to neglect the deep forces influencing the evolution of legal structures. Conversely non-lawyers, who are sometimes disconcerted by what seem to them arcane traditions, tend to regard the law as an autonomous sphere the development of which is of no great consequence to society. European Union law is no exception to the rule. Several generations of lawyers have stressed the considerable part played by the Court of Justice in the integration process, particularly by converting the basic Treaties into a sort of “constitutional charter” of the Europe Union (EU). One can no longer count the volumes devoted to systematic study of its case law. However, on the whole, the dominant legal literature remains marked by fairly strong positivism. As AnneMarie Slaughter-Burley and Walter Mattli have noted, the universe it describes seems hermetically closed to all considerations of power or interest (Burley and Mattli, 1993, p. 45). Moreover, except for a few dissenting voices, legal scholarship has until very recently enthusiastically welcomed the actions of the European Court of Justice. As long ago as 1980, another American political scientist, Martin Shapiro, sketched the rather sarcastic picture of a literature in which the constitution was presented as a sacred text, professional commentaries as legal proof, case law as the exact application of constitutional precept, and supreme-court jurisdiction as “the disembodied voice of right reason and constitutional teleology” (Shapiro, 1980, p. 538). For some decades now, this indifference of lawyers to the social context in which the integration process was taking place found a parallel in the lack of interest displayed by the bulk of political scientists in anything to do with EU * Translation by Iain L. Fraser.
16 Renaud Dehousse law. The grand theories of integration developed in the 1960s and early 1970s paid only marginal attention to the European Court of Justice (ECJ), which remained largely perceived as a technical servant confined to essentially technical tasks (Weiler, 1982). Specialists in international relations tended to rule out any possibility of supranational institutions like the Court compelling states to adopt behaviour not in line with their view of the national interest. Things began to change, however, with the real launching of the integration process on the basis of the programme for completing the single market launched by the European Commission in the mid-1980s. An analysis of the reasons that enabled this regaining of dynamism led to a partial (re-)discovery of the part played by the supranational institutions. Influenced by the work of such lawyers as Eric Stein (1981) and Joseph Weiler (1981), many political scientists recognised the importance of the transformation of EU law brought about by the ECJ. Symptomatically, in a much-noted study, two heralds of a statecentered approach in the sudy of European integration, Robert Keohane and Stanley Hoffmann, have stressed that by asserting the principle of the primacy of Community law over national law and compelling states to implement decisions taken in the Community framework the ECJ was, of all the institutions, the one that had gone furthest toward limiting national autonomy (Keohane and Hoffmann, 1991). Emerging from the shadow it had long been confined to, the ECJ thus became the object of particularly lively debate among specialists in European integration. Contrasting analyses endeavoured to explain the development of legal integration, putting the emphasis on the part the Court played in the process (see e.g. Burley and Mattli, 1993; Dehousse, 1997; Garrett, 1992 and 1995; Mattli and Slaughter, 1995; Rasmussen, 1998) and on the relations it maintains with its traditional interlocutors: governments, national jurisdictions, legal scholars (Alter, 1996; Slaughter, Stone Sweet and Weiler, 1998; Stone Sweet and Caporaso, 1998; Weiler, 1994). However, despite this new interest in the ECJ’s action, the typical perception of the relationships between law and integration does not seem to have evolved much. Though it is now accepted that EU law has had an autonomous developmental dynamic (see e.g. Keohane and Hoffmann, 1991), the law is still largely regarded as an area apart, clearly segregated from the economic and political fields. A few sectoral studies have indeed highlighted the decisive impact of the Court’s rulings on the development of certain EU policies (see e.g. Allen, 1996; Leibried and Pierson, 1996), but these were scarcely more than isolated voices. The same is true upstream of legal decisions: except for the pioneering work of scholars such as Carol Harlow and Richard Rawlings (Harlow and Rawlings, 1992; Rawlings, 1993), the evolution of EU law is still analysed as if it was exclusively prompted by objective considerations, without much regard for the fact that many actors, both public and private, view the legal sphere as a battleground where they can secure results unattainable through more classical political channels. In other words, much remains to be done in order to bridge the
Some Thoughts on the Juridification of the European Political Process 17 gap between lawyers and political scientists and incorporate legal parameters into analysis of the integration process. Quite obviously a challenge of this magnitude cannot be met within the limited framework of this study.1 In more limited fashion I shall accordingly endeavour to show that EU law conditions not just the tenor of decisions taken at the European level, but also the way they are taken, to the extent that the legal debate has become a fully autonomous element in the political process. This evolution is the best demonstration that could be given of the weight of legal factors: if all the participants in the European political game—EU institutions, national authorities and private interests – are endeavouring to incorporate a legal aspect into their political strategies, that is because they have learned— often to their cost—that the ECJ was a force that had to be reckoned with.
II . THE JURIDIFICATION OF THE DECISION - MAKING PROCESS
Given the presence within the EU system of a judicial body charged with arbitrating inter-institutional conflicts, one might think that the possibility of recourse to the judge would rapidly come to be seen as one of the basic facts of the European political process. Yet this possibility took some time to take shape in practice. Towards the end of the 1960s, several analyses highlighted the fact that the ECJ had been completely absent from such political crises as the agricultural crisis or the “empty chair” policy adopted by the French Government in 1965–66 (Green, 1969; Scheingold, 1971). Gradually, however, the main political actors ended by realising that the legal path might enable them to garner important results, leading to the development of several types of legal strategies. Recourse to the courts is definitely the most obvious way, though not necessarily the simplest, to use the resources of the legal sphere. The European Commission, charged by the Treaty with safeguarding EU law, has not failed to utilise this possibility to compel recalcitrant States to respect their commitments. Some national governments have sometimes accused it of seeking by this means to short-circuit negotiations in hand at the EC Council (see e.g. Commission v. German Federal Republic, Case 205/84). This does not prevent them from doing the same when their own interests are at stake, be it to react to what they see as an intrusion by the Commission into their province (FRG and others v. Commission, Joined Cases 281, 283–285, 287/85), or to “correct” the effects of a decision taken despite their contrary vote in Council (UK v. Council, Case 68/86). The issue in these appeals often goes well beyond the measures that were the occasion for them. In 1996, for instance, John Major’s Conservative Government challenged before the ECJ a directive on working time. This initiative 1 The interested reader can however be referred to the general works that have tackled this task: see esp. Dehousse, 1997 and 1998 and Rasmussen, 1998.
18 Renaud Dehousse surprised more than one observer, because British concerns had played a great part during the negotiations on the Directive, the final version of which contented itself with adopting a series of minimal provisions while providing for many possible derogations. In fact the objective of the appeal was not so much the EU text as the legal basis chosen by the majority of Council members. What the United Kingdom Government, traditionally attentive to preserving labourmarket flexibility, was rejecting was the very principle of a European regulation—to boot, one adopted on the basis of Article 118a authorising majority decisions. By attacking the Directive before the ECJ, it hoped to secure from them a restrictive interpretation of Article 118a,2 so as to erect a solid legal bulwark against any desires to regulate labour time more closely. In the event these hopes were disappointed by the Court, which adopted a broad interpretation of the term “work environment” contained in Article 118a and approved the main points of the Directive (UK v. Council, Case C-84/94). The example nonetheless well shows that legal policy is not just fed by single political conflicts, but also by institutional concerns of a general nature. The importance of the legal battles is such that any actor hoping to count has to join in. This explains the keenness with which the European Parliament, which at the outset had only limited access to the ECJ, fought for its prerogatives to be extended. The task was a hard one, though, since the Treaty provisions relating to the ECJ made no explicit mention of the Parliament except for disputes relating to the European Civil Service, which seemed scarcely propitious for the development of an ambitious legal policy. Remarkably, it was at the judicial level that the toughest fight was waged. Failing to wrest a Treaty revision from the Member States, the Parliament endeavoured to convince the Court that it ought to have similar prerogatives to the Council’s or the Commission’s. Despite some setbacks, these efforts were crowned with success: in the space of ten years it managed to win the right to intervene in cases in hand to support the position of one of the parties (Roquette, Case 138/79), the right to bring an action for failure to act when another institution refused to adopt an act provided for by the Treaty (Parliament v. Council, Case 13/83), and then the right to bring an action for annulment against an act of the Council or the Commission provided such an action seeks to “safeguard its prerogatives and that it is founded only on submissions alleging their infringements” (Parliament v. Council, Case C-70/88). This last ruling, which by a stroke of the pen gave Parliament a right not provided for by the Treaty, was made still more remarkable by the fact that it contradicted a previous decision of the Court (Parliament v. Council, Case 302/87). 2 The Amsterdam Treaty recast the European Treaties, entailing renumbering of most articles. Given the historical and political approach in this chapter, I have preferred not to overburden the reader, and keep to the original numbering of provisions relevant to what I am talking about. A concordance between the two numberings of the Treaties can be found in a table annexed to the version of the Amsterdam Treaty published by the Office for Official Publications of the European Communities.
Some Thoughts on the Juridification of the European Political Process 19 However, it cannot be said that this innovation was met by virulent reactions in the national capitals. Quite the contrary: in the Maastricht Treaty, Article 173 was amended in the sense prescribed by the Court. In the last analysis, everything seems to suggest that, in an awareness of the importance of judicial review, governments felt it fair to grant Parliament autonomous capacity for legal action. The volume of institutional conflicts where the ECJ has been called upon to intervene has considerably risen since 1987, the date the Single European Act came into force. Graph 1, taking as an indicator the number of actions for failure to act and of annulment proceedings brought by Member States or by the European institutions, shows the extent of the movement. From an average of ten cases per year from the period 1981 to 1984 the figure went to an average of 27 appeals for 1985–88, to 28 for 1989–92. Graph 2.1: Development of inter-institutional litigation—cases brought by the Member States (MS) and by European Institutions (Inst) 30 25
Art. 173 MS
Art. 173 Inst.
Art. 175
20 15 10 5 0
65 66 67 68 69 70 71 72 73 74 754 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95
Source: General Reports of activities for Article 173; CELEX for Article 175.
The coincidence with the Single Act would suggest that the growth of interinstitutional litigation development largely has to do with the novelties introduced by this reform. To be sure, the possibilities of majority voting introduced by the Single Act did not end the consensus nature of decision-making, since votes remain rare on the Council. However, the possibility of overriding isolated objections by one state or another multiplied the possibilities of conflict. Previously, most decisions taken at Community level required unanimous agreement of states as to both the need for Community action and its content. Once the unanimity bottleneck had been eliminated, it obviously became tempting for
20 Renaud Dehousse the minority to challenge the outcome of the political game again judicially. Moreover, the prudent compromises that successive Treaty reforms gave rise to have been reflected in a multiplication of procedures; there are no less than 23 at present (Piris, 1994). As the rights of each institution vary considerably from one type of procedure to another, the choice of the legal basis for EU decisions bears considerable importance: this explains the mushrooming of challenges to the legal bases in the post-Single Act years. To an increasing extent, the ECJ has thus been called on to set itself up as an arbiter of institutional conflicts, something that naturally exposes it to more sustained attention by political actors and public opinion (Dehousse, 1997, pp. 133–140). The phenomenon is all the more interesting since inter-institutional disputes are only the peak of the iceberg. Even if not parties to a case before the ECJ or the Court of First Instance, governments and institutions can take part in proceedings through observations they bring before the court. While these memoranda are often cast in the rigid mould of legal argument, an observer with any degree of attentiveness will generally not find it too hard to make out very specific political interests in the background. Of all the political actors, the Commission is the keenest for this type of exercise, making it a point of honour to present its observations on all cases brought before the ECJ by national jurisdictions. However, it is far from the only one to utilise the possibility. National governments have a habit of presenting their observations whenever a dispute raises problems of compatibility between national law and EU law. Some of them also intervene where a topic concerns them indirectly: the Italian government, anxious to protect the interests of the Italian diaspora in other Member States, has always been active in cases involving social security for migrant workers. Even where the ECJ is not called upon to intervene, legal considerations are far from being absent from the political process. As a Canadian observer has very rightly pointed out, the juridification of the political game is reflected not just by a change in forum but also by a change in form (Mandel, 1994, p. 81). The prospect, or sometimes even the mere possibility, of a legal dispute compels political actors to incorporate legal parameters into their strategies so as to avoid possible legal censure. Such questions as the competence of the EU institutions, the choice of legal basis, respect for fundamental principles recognised by the ECJ (human rights, the principle of proportionality) may thus play an important part in the political process. Ad hoc procedures have sometimes been established to ensure that certain questions do receive the necessary attention: following the growth in inter-institutional disputes, for instance, the European Parliament amended its internal rules of procedure to invite the parliamentary committees to ensure that its rights were indeed respected in each legislative procedure (Article 84). All this helps to explain the central role of lawyers in the European political process. The three great political institutions—Council, Commission, Parliament—each have their Legal Service, acting at various levels, be it to give
Some Thoughts on the Juridification of the European Political Process 21 an opinion on procedures or on the legality of measures proposed, or to act before the court. The influence of the Commission legal service can be felt throughout the range of EU legal policies, since it is consulted right at the start of legislative procedure on texts being written by the Commission’s services. Its opinions are systematically attached to the drafts brought before the Commissioners as a body (Berman, 1995). The fact that the director of the legal service is one of the few director-generals—and was for long the only one—to attend all the weekly meetings of the Commission says much as to the importance of legal considerations in such meetings. Even at the European Parliament, where for reasons indicated earlier the need to set up a legal service became felt only relatively late, its role has grown in parallel with the development of the Parliament’s legislative powers (Corbett et al., 1995, p.183). How is one to explain the relatively high degree of juridification that marks the EU decision-making process? Some factors are structural in nature; they have to do with the complex nature of the EU institutional system, where, with all the difficulties this implies, two sorts of distribution of power overlap: “vertical” distribution between the EU and its Member States, and “horizontal” distribution among the various EU institutions. As in most divided-powers systems, the need for a judicial umpire has made itself felt, and its activity has enhanced the importance of legal questions. These institutional factors are augmented by causes of a more political nature. In most systems where institutional conflicts can be submitted to a constitutional court, this is only one way among others of settling differences. Alternative proceedings may be used: political parties are often more inclined to favour a negotiated solution rather than embark on legal proceedings where the outcome is always uncertain. This sort of alternative is missing at EU level, where the influence of the political parties remains relatively slight. Moreover, the EU system is above all a system of checks and balances in which each institution enjoys considerable autonomy. Even were the role of political groupings to expand, it is not certain that this sort of conflict could be solved through them. Instead, the strengthening of partisan cleavages might lead to the development of another type of dispute where the judicature would have to arbitrate disputes between majority and opposition. The example of France, where we have seen partisan conflicts nourishing the rise in power of the Conseil constitutionnel (Stone, 1992), is edifying in this respect. Whatever may happen, the juridification of the EU political process does not seem likely to disappear in the near future.
III . THE STRATEGIC USE OF LITIGATION
The public institutions are not the only ones to have become aware of the potential of the legal sphere. Other actors—private companies, interest groups or even individuals—have noticed that recourse to the courts could enable them to
22 Renaud Dehousse reach results the ordinary political process could not allow them to aspire to, and they have not refrained from making use of it. A priori there was nothing to foreshadow this development. Reacting against what seemed to them an over-liberal interpretation of the relevant provisions of the ECSC Treaty, the drafters of the EC Treaty had opted for a formula that strictly limited possibilities of actions brought by private individuals against acts taken by the institutions. By Article 173, only persons “directly and individually” concerned by Community acts could ask for them to be set aside. Two factors, however, enabled private interests to become very active on another front, the relationship between national law and Community law. From the outset, with the 1962 Van Gend en Loos judgment (Case 26/62), the ECJ gave a very broad interpretation to the prohibitions of discrimination contained in the treaty. The Court saw many of these provisions as a source of rights that plaintiffs could invoke before the national courts—the phenomenon known to European lawyers by the name of the direct effect of EU law—even where the Treaty wording clearly suggested they were chiefly addressed to Member States. This reading of the Treaty, erecting it into a catalogue of individual rights, opened up for individuals doors to an arsenal of arguments they could make use of whenever the national authorities seemed to them to breach the individual rights that EU law granted them. Access to the Court was further facilitated by a second revolution—this time of a procedural nature. While the Treaty had entrusted to the Commission the task of bringing infringement proceedings against Member States in case of breach of Community law (Article 169), the ECJ accepted the national courts using the channel of the preliminary ruling (Article 177) to ask it to rule—in terms often devoid of all ambiguity—about the compatibility of national provisions with EU law, thus bringing about a true decentralisation of enforcement proceedings (Dehousse, 1998, pp. 48–53). The combination of these two developments considerably broadened possibilities for private persons to utilise the legal sphere. Where they feel that EU rules are more favourable to their interests than national rules, they can in fact lodge an appeal before a national court and endeavour to convince it to refer a case to the ECJ by asserting that in the event of a conflict between national law and EU law the latter prevails under the supremacy principle laid down by the ECJ (Costa v. E.N.E.L, Case 6/64). Through this channel, private plaintiffs can launch a legal offensive at European level against regulatory obstacles they come up against at national levels. We have thus seen big shops challenging provisions banning Sunday opening as bars to free movement, pharmaceutical firms doing the same with rules on the marketing of medicaments, women drawing on the principle of equal treatment laid down in Article 119 to gain social advantages denied them at national level, etc. The development of this type of dispute is the fruit of a convergence of specific motivations. Plaintiffs have found in it an instrument enabling them to promote their own interests, and the ECJ a way of dismantling the many barriers to
Some Thoughts on the Juridification of the European Political Process 23 trade existing at national level, thus making up for the omissions of a EU legislator hampered by the uncertain search for consensus (Dehousse, 1997, pp. 72–76). Recourse to legal strategies is by its nature complex and haphazard. From often vague provisions, the ECJ has to derive rules to apply to the cases brought before it. Given the collegiate nature of its decisions, the compromises the judges reach do not always contribute to dissipating uncertainty, something that may help to increase the number of cases. Moreover, the legal proceedings are both slow and cumbersome. The time for a preliminary-ruling procedure is about 18 months, and the procedure is often only one stage in an often much longer legal process. Thus, no less than 13 years went by between Ms. Marshall’s dismissal and the Court’s decision in the Marshall II case deciding how women compelled to retire earlier than men in breach of Article 119 were to be compensated (Marshall v. Southampton Area Health Authority (No. 2), Case C-271/91). This was still not the end of the plaintiff’s legal odyssey, since it was the British industrial tribunals that had to determine what compensation she would be entitled to. In these circumstances, it is not surprising that strategic utilisation of European legal procedures is mostly a matter for big companies (Harding, 1992) or interest groups with sufficient resources to embark on costly legal battles with uncertain outcomes. Both in fact fit the figure of the frequent participant in the legal game (“repeat player”) described by the legal sociologist Marc Galanter (1974): an actor endowed with the necessary resources and experience to tackle long legal battles, who starts many cases in order to attain long-term objectives. For this type of actor the parameters of success and failure are not the same as for an ordinary plaintiff, since recourse to the courts is often a source of interesting non-material benefits. Even if lost, a case can enable them to draw the attention of public opinion to a problem, or still more simply to engender sufficient uncertainty to hamper application of rules that harm their interests. Moreover, where the resources enable them to develop long-term strategies, they can choose the cases they bring before the courts according to their likelihood of success or their potential usefulness in a press campaign in favour of a change in legislation. If they are persistent, these “repeat players” can help to shape the case law in a given area. Thus, the British Equal Opportunities Commission has funded almost a third of the applications to the ECJ for preliminary rulings on equal treatment (Barnard, 1995, p. 254), which explains the clear predominance of cases brought by the British courts in these areas. To be sure, interest groups sometimes find difficulty in showing an interest good enough to give them standing before the courts. The ECJ has generally been very strict in applying the admissibility criteria set up by Article 173, thus preventing environmentalist groups or consumer associations from acting before the Court as often as they might have liked (Harlow, 1992). However, some groups have managed to find a way around the difficulty by having recourse to what Americans call a “test
24 Renaud Dehousse case”. The operation consists in selecting a plaintiff meeting the admissibility conditions required by the courts, and with a good chance of success in law suit. Thus, the keystone of the case law on equal treatment, the Defrenne case (Case 43/75), owes its origin to the efforts of a Belgian lawyer who, wishing to ask the ECJ about the compatibility of his country’s legislation with Article 119, launched a campaign, with the aid of a number of feminist groups, aimed at “recruiting” a plaintiff able to bring the question before the courts. After some time their attention was drawn to the case of Gabrielle Defrenne: an air hostess, she had been compelled by her employer to retire at 40—something not asked of her male colleagues—at the same time undergoing a loss in income. Having been given assurances that she would not be called on to intervene actively in the proceedings, she agreed to have a case brought in her name, thus offering the “legal entrepreneurs” that had contacted her the key enabling them to have access to the ECJ (Harlow and Rawlings, 1992, p. 283). The many cases on Sunday closing of shops brought before the ECJ in the late 1980s were the outcome of a similar strategy. In the detailed analysis he gives of this saga, Richard Rawlings has shown that recourse to law was only one of the elements in a long-term strategy developed by some big shop chains to challenge British legislation on Sunday closing (Rawlings, 1993). Having failed before the Westminster Parliament, and despite Thatcherite enthusiasm for deregulation, the promoters of the campaign decided to launch an offensive on the legal front. Invoking the losses associated with the ban on their opening on Sundays, they asserted that an appreciable portion of their sales figures came from selling products imported from other Member States, enough in their eyes to conclude that British legislation was a barrier to trade forbidden by Article 30 of the EC Treaty. Really this was an extensive interpretation of the provision, but the trenchant formulas used by the ECJ in the Dassonville judgment (Case 8/74) lent their position some likelihood. The Court’s answer was remarkable in its ambiguity. Though recognising that the rules on shop opening did not have as their main objective the regulation of trade within the European Community, but were more of a reflection of the socio-economic nature or political choices of Member States, the Court nonetheless indicated that “the prohibition laid down in Article 30 covers national rules governing the marketing of products where the restrictive effects of such measures on the free movement of goods exceeds the effects intrinsic to trade rules”. However, it left it to the British courts to evaluate whether this test was actually satisfied by British Sunday trading regulation in the case in point (Torfaen Borough Council v. B & Q, Case C-145/88). In strict legal terms, it cannot be claimed that this judgment represented a victory for the plaintiffs; it would be fairer to say that, feeling it might tread on well-established national sensitivities, the Court had sent the ball back to the national courts up to whom it was, if necessary, to take the painful decisions called for by EU law. Conversely, in practical terms, the Court’s decision clearly served the interests of the big shops. Not only had they been able to continue
Some Thoughts on the Juridification of the European Political Process 25 opening on Sundays throughout the proceedings, but the judgment’s very ambiguity now enabled them to wage long legal battles before the national courts every time local authorities decided to apply the law. The multiplicity of proceedings ended by producing a series of contradictory judgments, with some judges concluding that British law was perfectly compatible with the Treaty and others that it was totally incompatible with the general principles laid down by the Court. With the problem brought before it once again, the ECJ decided to terminate the confusion by clarifying its previous ruling: to the extent that the British law had only indirect effects on imports, which were not the object of any discrimination, it did not come under the purview of Article 30 (Stoke-onTrent v. B & Q, Case C-169/91). Despite this final “failure”, this legal saga gives a picture of the many possibilities that European litigation may offer actors that have the necessary resources to join in. The relatively indeterminate nature of many provisions in the EC Treaty in fact authorises generous interpretations, unless the ECJ displays excessive timidity, which was the case until not so long ago.3 One has thus seen a “juridification” of many political choices: decisions previously belonging in the political sphere now fall within the province of legal proceedings. In this connection, the example just described is illuminating. While ostensibly bowing to the autonomy that national legislators are supposed to have in terms of commercial regulation, the ECJ nonetheless indicated that the room for manoeuvre open to them was not unlimited: their actions are in fact subject to review by the national and European judicial bodies, who have to evaluate whether they are compatible with the fundamental principle of free movement of goods. In the event of conflict, the last word lies with the judiciary. In the areas where the influence of EU law makes itself felt—and there are many—the courts are able to exercise considerable influence on political decisions. The case law on the free movement of goods or on equality of treatment has compelled many Member States to revise their legislation. Moreover, legal proceedings brought at European level can have considerable economic impact. In Britain, for instance, the case law on equality of treatment brought an avalanche of appeals brought by women soldiers dismissed by the armed forces on the ground that their pregnancy no longer enabled them to do their duties properly. Figures supplied by the British administration show that in 1994 over £30 million had already been paid to plaintiffs by way of compensation. The figure must have grown considerably later on, since similar cases pending before the courts numbered at the time some 2,700 (Barnard, 1995). Similarly, the case law on state financial liability in the event of breach of EU law (Francovich and Bonifaci, Joined Cases C-6 and 9/90) seems to have lent plaintiffs wings, leading inter alia a group of Spanish fishing-boat owners to demand a sum of £30 million to compensate for losses they had undergone because of a compulsory 3 For an analysis of recent evolution of the case law and the structural reasons that may explain the Court’s change in course, see Dehousse, 1998, ch. 6.
26 Renaud Dehousse registration scheme invalidated by the ECJ (Brasserie du Pêcheur and Factortame III, Joined Cases C-46 and 48/93). This brings us to another interesting aspect of “juridification”: its cumulative effects. Court rulings may stimulate inventive lawyers to try their chances in other areas. The famous Cassis de Dijon ruling in which the ECJ developed the principle of mutual recognition of national legislation (Case 120/78) inspired many appeals against national rules on trade practices. Ultimately, procedures affecting social questions or political problems—be it the regulation of labour time, industrial policy or abortion—are all searchlights shining on the European legal system, and may encourage other potential plaintiffs to take advantage of the resources that juridification is able to offer them.
IV . CONCLUSION : JURIDIFICATION AND ITS LIMITS
The juridification of political decision we are seeing is highlighting the existence of an autonomous dynamic in the legal sphere. Clearly, a development of this sort is a response not so much to the will of the Community’s founding fathers as to the choices made by the ECJ. Had the Court opted for a Treaty interpretation more in line with the basic canons of international law, or refused indirectly to review the conformity of national law with EU law, or quite simply kept to a literal interpretation of certain key provisions like Article 173, the extent of the process would have been much more limited. Through its innovative interpretations, the Court has considerably augmented the room for manoeuvre by poltical actors—national governments as well as European institutions—on the legal stage; it has also supplied private actors with incentives— and with intruments—for going to court where EU law is more favourable to their interests than national law is. In doing so, the ECJ has considerably strengthened its own powers and those of national judges, to the extent that a considerable number of decisions have been withdrawn from the political power to pass under the control of the judiciary. Admittedly, it may seem tautological to insist upon the central role of the European Court of Justice in consideration of the growing juridification of European politics. The ECJ has been but one actor in this process, which would not have developed if others had not seized the opportunities that were granted to them. Nonetheless, the part taken by the Court in this process brings us back to a truth too often overlooked: in “laying down the law”, judicial bodies inevitably perform a creative function. This creative role concerns not just the tenor of the legal rules; their decisions also help to structure the dialogue between the main participants in the legal game, by determining those who can take part in the debate or the kind of arguments that may be invoked, as the Court has done for the European Parliament (Parliament v. Council, Case C-70/88). Clearly, this tendency toward juridification may help to weaken the legitimacy of the integration process as a whole. The European Union is already
Some Thoughts on the Juridification of the European Political Process 27 suffering from a form of “political deficit” to the extent that such actors as the political parties, the trade unions or even the media, whose actions often act as a reference point for national voters, are generally weak at European level (Dehousse, 1995). In many respects juridification aggravates this position (Mandel, 1994, p. 78). By camouflaging conflicts of interest and replacing partisan conflicts with supposedly neutral debates on the interpretation of law, it considerably weakens the political process, at the same time opening a yawning breach to all the opponents of integration, making it easy for them to denounce the replacement of the citizen’s democracy founded on universal suffrage by a form of “judicial democracy”, a screen for a government of judges (Chevènement, 1997, p. 11). The same process may of course be seen in a more positive light. After all, the possibilities of appealing to international courts are rare. Litigation at European level can enable Europeans to protect their rights against decisions of national administrations, which often serve very specific interests, even though a rather complacent fiction often depicts them as the product of a hypothetical general will. The fact remains that in this period of swelling mistrust in the broad scale—European integration or globalisation—ECJ rulings may easily be perceived as intrusions calling in question the choices and traditions of national communities. Moreover, to judge by its behaviour in recent years, the ECJ itself seems well aware that excessive expansion of juridification will expose it to the fire of criticism. Reacting to the responses coming from its traditional interlocutors, national courts and governments, its interpretations have often become more cautious, and the Court has shown a concern to avoid an uncontrolled drift in judicial policy-making. Already in the past, it had ruled that some annulment decisions had only limited retroactive effects, so as to prevent national authorities from being submerged by a cascade of appeals (see e.g. Defrenne, Case 43/75 and Barber, C-262/88). More recently, reacting to the multiplication of appeals taking as their target the marketing regulations of Member States, it has reviewed its Cassis de Dijon case law to prevent plaintiffs from invoking Article 30 against marketing rules limiting their commercial freedom (Keck and Mithouard, Joined Cases C-267 and 268/91). By doing so, it has limited the possibilities for economic operators to use the European judicial arena to seek results that they could not achieve through the “ordinary” political process. One might argue that such a ruling provides a fine illustration of the autonomy of the legal sphere, since it shows that the Court itself attempts to regulate the use of litigation made by private plaintiffs. But the argument can be turned around insofar as the Keck ruling seems to have been influenced by the Court’s perception of the problems its earlier case law was giving rise to at national level (Joliet, 1995). Judicial autonomy ultimately appears to depend on the political sensitivity the Court manages to show: should the ECJ be less sensitive to the messages it gets from its interlocutors or to their needs, the balance between law and politics might well change.
28 Renaud Dehousse V . REFERENCES
Allen, David, 1996: “Competition Policy” in Helen and William Wallace (eds.), PolicyMaking in the European Union, 3rd edn. (OUP, Oxford, 1996), pp. 157–183. Alter, Karen, 1996: “The European Court’s Political Power”, (1996) 19 West European Politics 458–487. Barnard, Catherine, 1995: “A European Litigation Strategy: The Case of the Equal Opportunities Commission” in Jo Shaw and Gillian Moore (eds.), Legal Dynamics of European Union (Clarendon Press, Oxford, 1995), pp. 253–272. Berman, George, 1995: “Regulatory decision-Making in the European Commission”, (1995) 1 Columbia Journal of European Law 415–433. Burley (Slaughter), Anne-Marie and Walter Mattli, 1993: “Europe before the Court: A Political Theory of Legal Integration”, (1993) 47 International Organization 41–76. Chevènement, Jean-Pierre, 1997: “Cinq ans après” in Le Bêtisier de Maastricht (Arléa, Paris, 1997), pp. 7–34. Corbett, Richard, Francis Jacobs and Michael Shackelton, 1995: The European Parliament, 3rd edn. (Catermill, London, 1995). Dehousse, Renaud, 1995: “Constitutional Reform in the European Community: Are there Alternatives to the Majoritarian Avenue?”, (1995) 18 West European Politics 118–136. Dehousse, Renaud, 1997: La Cour de Justice des Communautés européennes, 2nd edn. (Montchrestien, Paris, 1997). Dehousse, Renaud, 1998: The European Court of Justice—The Politics of Judicial Integration (Macmillan, London, 1998). Galanter, Marc, 1974: “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change”, (1974) Law and Society 95–160. Garrett, Geoffrey, 1992: “International Cooperation and Institutional Choice: The European Community’s Internal Market”, (1992) 41 International Organization 533–560. Garrett, Geoffrey, 1995: “The Politics of Legal Integration in the European Union”, (1995) 49 International Organization 171–182. Green, Andrew W., 1969: Political Integration by Jurisprudence (Siithoff, Leyde, 1989). Harding, Christopher, 1992: “Who Goes to Court in Europe? An Analysis of Litigation against the European community”, (1992) 17 European Law Review 104–125. Harlow, Carol, and Richard Rawlings, 1992: Pressure through Law (Routledge, London, 1992). Harlow, Carol, 1992: “Towards a Theory of Access to the European Court of Justice”, (1992) 12 Yearbook of European Law 213–248. Joliet, René, 1995: “The Free Circulation of Goods: The Keck and Mithouard Decision and the New Directions in the Case Law”, (1995) 1 Columbia Journal of European Law 437–451. Keohane, Robert O., and Stanley Hoffmann, 1991: “Institutional Change in Europe in the 1980s”, in R. Keohane and S. Hoffmann (eds.), The New European Community (Westview, Boulder, 1991). Leibfried, Stephan, and Paul Pierson, 1996: “Social Policy” in Helen and William Wallace (eds.), Policy-Making in the European Union, 3rd edn. (OUP, Oxford, 1996), pp. 185–207.
Some Thoughts on the Juridification of the European Political Process 29 Mandel, Michael, 1994: The Charter of Rights and the Legalization of Politics in Canada, 2nd edn. (Thompson, Toronto, 1994). Mattli, Walter, and Anne-Marie Slaughter, 1995: “Law and Politics in the European Union: A Reply to Garrett”, (1995) 49 International Organization 183–190. Piris, Jean-Claude, 1994: “Après Maastricht, les institutions européennes sont-elles plus efficaces, plus démocratiques, plus transparentes?”, (1994) 30 Revue trimestrielle de droit européen 1–37. Rasmussen, Hjalte, 1986: On Law and Policy in the European Court of Justice—A Comparative Study in Judicial Policy-Making (Nijhoff, Dordrecht, 1986). Rasmussen, Hjalte, 1998: European Court of Justice (Gad Jura, Copenhagen, 1998). Rawlings, Richard, 1993: “The Eurolaw Game: Some Deductions from a Saga”, (1993) 20 Journal of Law and Society 309–340. Scheingold, Stuart A., 1971: “The Law in Political Integration: The Evolution and Integrative Implications of Regional Legal Processses in the European Community”, Occasional Papers No. 27, Harvard University Center for International Affairs. Shapiro, Martin, 1980: “Comparative Law and Comparative Politics”, (1980) 53 Southern California Law Review 538. Slaughter, Anne-Marie, Alec Stone Sweet and Joseph H. H. Weiler (eds.), 1998: The European Court and National Courts—Doctrine and Jurisprudence: Legal Change in its Social Context (Hart, Oxford, 1998). Stein, Eric, 1981: “Lawyers, Judges, and the Making of a Transnational Constitution”, (1981) 75 American Journal of International Law 1–27. Stone, Alec, 1992: The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (OUP, Oxford, 1992). Stone Sweet, Alec and James Caporaso, 1998: “La Cour de Justice et l’intégration européenne”, (1998) 48 Revue française de science politique 195–244. Weiler, J.H.H., 1981: “The Community System: The Dual Character of Supranationalism”, (1981) 1 Yearbook of European Law 267. Weiler, J.H.H., 1982: “Community, Member States and European Integration: Is the Law Relevant?”, (1982) 20 Journal of Common Market Studies 399–456. Weiler, J.H.H., 1994: “A Quiet Revolution—The European Court of Justice and its Interlocutors”, (1994) 26 Comparative Political Studies 510–534.
3
Should Public Prosecution be Independent? LUIS MARIA DIEZ-PICAZO
I . INTRODUCTION
In recent times, an important debate on the legal and political status of public prosecution has been taking place in a significant number of European countries (Italy, France, Spain and, to a certain extent, also Germany). The key issue lies in the question: should public prosecution be independent? Needless to say, this question has a controversial purpose. In the nineteenth century, drawing inspiration from the Napoleonic model of administration of justice, most Continental countries shaped public prosecution along three basic lines: a unitary body of public officials for the whole nation, provided with a hierarchical organisation and dependent on the Executive. Generally speaking, these are still the main characteristics of public prosecution in many European countries.1 But they raise increasing dissatisfaction, mostly because they are seen as an incentive for undue politcal interference with the correct administration of criminal justice. Hence a spreading demand for public prosecution independence. It is important to stress that the most influential common law countries are not the point of reference in this debate. In the case of the United Kingdom, simply because there is no public prosecution in the strict sense of the term (i.e. a body of public officials whose specific task is to prosecute criminal offences in the name of the state). The Crown Prosecution Service, which was set up only in 1985, does not have the power to decide whether or not to start criminal proceedings. It functions predominantly as a technical legal service to assist police forces, which have the responsibility of (although not a monopoly over) starting criminal proceedings. As for the USA, only at the federal level is public prosecution unitary, hierarchical and dependent on the Executive. At the states level, where the vast majority of crimes are tried, public prosecution is usually decentralised. Each judicial district has its own prosecutor, who is normally of elective nature and has freedom to choose his assistants. Here lies the reason 1 For a comprehensive description of public prosecution in some significant countries, see C. Guarnieri, Pubblico ministero e sistema politico (Cedam, Padova, 1984).
32 Luis María Díez-Picazo why American public prosecution cannot be a good source of inspiration for the European debate: whereas prosecutorial decentralisation implies an acceptance that criminal law enforcement will not be necessarily uniform, most Europeans are deeply convinced that a minimum of uniformity in the way criminal law is interpreted and applied is an essential requirement of equality. Those who promote public prosecution independence look at Italy. At the end of the Second World War, probably for circumstantial reasons (Communist fear that Christian Democrats would remain in power for a long time), a coalition cabinet gave public prosecution officials full judicial status and, consequently, genuine judicial independence.2 An important point must now be clarified: also in France public prosecutors have always shared the same career with judges, being able to shift from judicial to prosecutorial positions and vice versa; but their legal status changes according to the nature of the function which is actually fulfilled. So the real Italian deviation from the traditional model of public prosecution was to unify the legal status irrespective of the fact whether the single official occupies a judicial or a prosecutorial position. In the following decades, Italy has witnessed a progressive legislative erosion of the links between public prosecution and the Executive, which are at present practically non-existent. Its unitary and hierarchical character has also melted down. In practice, each public prosecution unit before each criminal court is autonomuos and, even at this level, the old hierarchical relationship between the local chief prosecutor and his subordinates has eroded. This seems to be the new model which those who advocate for public prosecution independence have in mind. Are there, then, good theoretical reasons to request independence for public prosecution in a European context? In order to try to answer this question, one should both avoid frequent misunderstandings and make some distinctions. In particular, it seems to be necessary: (1) to avoid reasoning only from the point of view of “governmental crime”; (2) to take into account the inevitable existence of margins of prosecutorial discretion; (3) to distinguish between internal and external independence and, within the latter, between strong and weak meanings; (4) to be aware that, concerning internal independence, the real dilemma lies in choosing between centralisation and decentralisation; (5) to examine whether the fact that in some countries the institution of the investigating judge (juge d’instruction) is still in force affects the debate on public prosecution independence.
2 For a historical account of public prosecution in Italy, see L. Daga, “Pubblico ministero (Diritto costituzionale)”, in Enciclopedia giuridica, vol. XXV (Istituto della Enciclopedia Italiana, Roma, 1991).
Should Public Prosecution be Independent? 33
II . GOVERNMENTAL CRIME
No doubt, in recent times European public opinion has become increasingly sensitive about morality in public affairs. Even if it is far from being obvious that the level of maladministration is now higher than at any past time, a number of factors help to explain such a new sensitivity: moral standards change over time, constitutional democracy is no longer under any imminent threat, politics and politicians are under permanent coverage by media.3 In this context, nobody should be surprised by the existing diffuse concern about what might be called “governmental crime”. This is a purely descriptive term, which lacks any technical legal implication. It simply indicates criminal offences committed by public officials, especially in the fulfilment of their function (e.g. corruption, abuse of power, etc.). However, such a term may be useful, among other things, to indicate that serious difficulties are inherent to the investigation and prosecution of those crimes.4 Governmental crime poses a problem of credibility to public prosecution. If it is linked to the Executive, there will be a strong suspicion that, by conditioning prosecutorial decisions, the Executive itself may either grant immunity to friends or use criminal proceedings for partisan purposes, including the persecution of opponents. Here is one of the favourite arguments adopted by advocates of public prosecution independence: to avoid the risk of political manipulation of prosecutorial decisions. This argument, however, is open to two different objections. First, it is dubious whether the only European experience of an independent public prosecution deserves an unequivocally positive assessment. Even if one cannot deny that public prosecution independence in Italy was a prerequisite for the viability of the vast judicial operation to uncover corruption which was conducted a few years ago, it should not be forgotten that prosecutors had been enjoying full judicial status since 1947 and this circumstance did not prevent the spread of corruption. Recent success in the fight against corruption in Italy has, then, to be explained also by concurrent causes (e.g. collapse of party system stability, economic costs of corruption in the light of the requirements for European integration, etc.).5 Above all, this experience seems to teach that a formally independent public prosecution alone is not an effective response to governmental crime. 3 See, among others, A.O. Hirschman, Shifting Involvements (Private Interest and Public Action) (Princeton University Press, Princeton, 1982) and G. Sartori, Homo Videns (Televisione e postpensiero) (Laterza, Roma/Bari, 1997). 4 I have examined this idea in my book La criminalidad de los gobernantes (Crítica, Barcelona, 1997). 5 The economic and political factors behind the Italian crisis of the early 90’s have been explored by M. Braun, L’Italia da Andreotti a Berlusconi (Rivolgimenti e prospettive in un paese a rischio) (Feltrinelli, Milano, 1995) and P. Sylos Labini, La crisi italiana (Laterza, Roma/Bari, 1995).
34 Luis María Díez-Picazo Secondly, the argument drawn from governmental crime is not entirely coherent. If the real problem is the risk of political manipulation of prosecutorial decisions, the only correct conclusion will be that specific guarantees are needed in politically sensitive cases, not that public prosecution must generally be independent irrespective of the subject matter. The American idea of a “special prosecutor” offers a good example of such specific guarantees for politically sensitive cases: even if the recent experience of independent counsel Kenneth Starr’s investigation about President Clinton’s private affaires is not immune to criticism, this is due not only to defects inherent to that office (i.e. the need for self-justification which leads to produce incriminating evidence at any cost) but also to the fact that the scope of the investigation was not clearly defined at the beginning.6 In a different perspective, derogations to the state monopoly over prosecution might also work as specific guarantees for politically sensitive cases, because they would prevent selective indulgence on the part of public prosecutors. Prosecution by private persons can be either subsidiary to public prosecution (as in the United Kingdom), or even concurrent to it as a genuine actio popularis (as in Spain). In any event, experience shows that an independent public prosecution is not the only conceivable response to the problem of governmental crime, not to speak of the fact that its justification in ordinary cases, which lack partisan implications, should be looked for elsewhere.
III . PROSECUTORIAL DISCRETION
The debate over the independence of public prosecution cannot be fully understood without taking into account the question of prosecutorial discretion. The heart of the matter is that, irrespective of formal declarations for or against which may be found in each legal system, prosecution necessarily involves certain decisions which are far from being automatic: e.g. do the facts amount to a criminal offence? Is there enough evidence to start proceedings? Is it necessary to request interim measures? What is the most appropriate legal characterisation of the facts? What penalty should the prosecutor request? No minimally complex and evolved legal system provides the prosecutor with unequivovcal, ready made answers to these questions. So public prosecution always involves a margin of “technical” discretion. This is slightly different from “political” discretion, which implies that prosecution itself may be subordinated to considerations of mere expediency (i.e. both the chances of success and the actual public interest in starting or not starting criminal proceedings). Apart from the common law world, political discretion in prosecution exists only in some countries, 6 For the American institution of the special prosecutor (now called “independent counsel”), see T. Eastland, Ethics, Politics and the Independent Counsel (Executive Power, Executive Vice: 1789–1989) (National Legal Center for the Public Interest, Washington D.C., 1989) and K.J. Harriger, Independent Justice (The Federal Special Prosecutor in American Politics) (University Press of Kansas, Lawrence (Ka.), 1992).
Should Public Prosecution be Independent? 35 such as France under the label of opportunité des poursuites and, within certain limitis, also in contemporary Germany. Two consequences derive from the differentiation between technical and political discretion. First, as long as the former cannot be eliminated, constitutional or legislative rules which impose the obligatoriness of prosecution (like in Italy, Spain and, to some extent, Germany) only make sense if understood as a prohibition of political discretion; that is, as a ban on the adoption of prosecutorial criteria based on pure expediency. Secondly, since a margin of technical discretion in prosecution is inevitable, it would be legally and politically unreasonable to avoid the problem of how to structure and control such discretion. At this point, some further observations should be stressed. (1) The case of Germany is really illuminating, because it shows how a country with a deeply rooted legalistic tradition has surrendered to the hard demands of social reality and, consequently, has introduced a whole set of exceptions to the principle of compulsory prosecution.7 This should lead to a reflexion on what could be labelled the “economic argument” in favour of prosecutorial discretion: if resources are scarce, sound discretion is probably the only way which allows a rational use of them. Furthermore, from the point of view of public finance, it is not realistic to advocate for an indexation of expenditure devoted to criminal justice proportionally to the increase of crime rates. (2) No doubt, prosecutorial discretion may encourage executive arbitrariness. But such a risk may be minimised by decentralising prosecutorial decisions; that is, by organising public prosecution in such a way that its direction corresponds mainly to peripheral authorities. Thus, the central authority (e.g. the Minister of Justice) would remain as an organ responsible for general guidelines and global supervision: this seems to be the underlying idea in the recent Rapport Truche in France.8 (3) The English tradition of ethical codes can be a good way to structure discretion. At a more general level, the existence of a permanent set of instructions, which govern the way public prosecutors must carry out their function and are known to the general public, would probably favour their professionalism and, almost certainly, discourage the Executive’s temptation to interfere in individual criminal cases. (4) Lastly, one further aspect should never be underestimated: the “level of criminalisation” which exists in each legal system. This has to do with how many types of behaviour amount to a criminal offence, and their statistical frequency. An important factor in this respect is whether there is some degree of 7 See T. Armenta Deu, Criminalidad de bagatela y principio de oportunidad (Alemania y España) (P.P.U., Barcelona, 1991). 8 This is the Rapport de la Commission de réflexion sur la justice (La doumentation française, Paris, 1997). It was prepared by an independent and interdisciplinary advisory commission which was set up by President Jacques Chirac in January 1997 and chaired by M. Pierre Truche, first president of the Cour de Cassation. The report was delivered in July 1997 and nearly half of it is devoted to the status of public prosecution. Apparently, the new left-wing majority is about to implement most of the commission’s suggestions.
36 Luis María Díez-Picazo “depenalisation” and, therefore, whether there are alternatives (mostly administrative sanctions) to criminal proceedings in the field of law enforcement. A relatively low level of criminalisation not only alleviates the workload of public prosecutors but also make them concentrate on more serious cases, which demand a higher degree of professionalism and hopefully discourage arbitrary decisions. By contrast, a relatively high level of criminalisation probably contributes to the opposite effect, not least because it leads to a wide margin of de facto prosecutorial discretion. The inflation of criminal legislation which one observes in many countries seems to be the result of politicians’ wish to show a severe attitude towards new forms of social deviation, even if they have the private hope that law enforcement officials will dilute the most severe consequences of that legislation. At the end of the day, this is nothing but a new version of the old, wrong idea that governing consists basically of making laws.9 In sum, any contemporary state needs a minimally coherent criminal policy; that is, a policy of prevention, investigation and punishment of crime. Obviously, such a policy may not be limited to a legislative programme, but has to cover implementation through executive measures as well.10 Is it then reasonable to put the executive aspects of criminal policy in the hands of a public body which, as by definition happens with an independent public prosecution, is neither representative nor politically accountable? Some argue that, like monetary policy which has been taken away from the Executive’s sphere by virtue of central banks’ autonomy, it might be desirable to shape public prosecution as a sort of independent agency with responsibility for the implementation of criminal policy legislation. However, this proposal might justify only the independence of public prosecution as a whole (i.e. as an institution or public body), but not the independence of each single public prosecutor.
IV . EXTERNAL HIERARCHY
It is then necessary to stress that, in discussing public prosecution, quite often the “external” and the “internal” aspects of hierarchy are not sufficiently differentiated. In other words, the legal and political meaning of hierarchy varies depending on whether one deals with the relationship between public prosecution and the Executive, or with the organisation of public prosecution itself. Concerning the first aspect, despite what has just been said about criminal policy, there may be good reasons to consider that direct dependence on the 9 R. Romboli, “Attività tabellare del CSM e indipendenza interna del giudice”, in B. Caravita (ed.), Magistratura, CSM e principi costituzionali (Laterza, Roma/Bari, 1994), p. 108, offers a perfect definition in this respect: “quello che Treves chiamava il ‘doppio effetto sociale della legge inapplicata’, la soddisfazione cioè di chi l’ha voluta nel vederla finalmente approvata e di quanti l’hanno avversata nel vederla del tutto inattuata”. 10 For the concept and instruments of criminal policy in a comparative perspective, see M. Delmas-Marty, Les grands systèmes de politique criminelle (Presses Universitaires de France, Paris, 1992).
Should Public Prosecution be Independent? 37 Executive, as if public prosecution were an ordinary administrative body, is not desirable. This holds true even in cases without any partisan implicaction. In fact, such good reasons derive basically from the principle of legality: the use of the state’s ius puniendi always involves a very delicate decision, which demands not only taking into account criminal policy considerations but also the maintaining of highly professional behaviour. Only in such a way is it possible to comply with the procedural and substantive reaquirements of the rule of law. Therefore, the most balanced solution to the problem of the relationship between public prosecution and the Executive is probably to be found in some sort of indirect dependence. This is the only way to safeguard public prosecution’s “operative autonomy”: the Executive should be responsible for the general political orientation of public prosecution, but must not interfere with its conduct of individual cases. This leads again to the shaping of public prosecution as an independent agency. The obstacle, however, lies in the fact that the idea of independent agencies is remarkably ambiguous and, in most cases, does not involve the absence of any link with the Executive.11 Even in those cases where almost absolute freedom of decision is granted (e.g. central banks after the Treaty of Maastricht) there are still some connections with the political branches (mechanisms of appointment, duration in office, causes of removal, etc.). For this reason, it may be useful to differentiate between strong and weak meanings of “independence” in the legal language. The paradigm of the former is undoubtedly judicial independence, which implies a ban on any sort of orientation or interference by the political branches. But to apply this paradigm of independence to the idea of independent agencies poses two different problems. First, given that independent agencies are not entirely disconnected from the political process, it does not offer an accurate description of reality. Secondly, as far as public prosecution is concerned, any attempt to put its independence at the same level as that of the judiciary would be constitutionally objectionable, because it would lead to a confusion between prosecutorial and judicial functions and this, in its turn, would be hardly compatible with such a cornerstone of the rule of law as the accusatorial system. Thus, the only safe way to define the notion of independent agencies is by reference to a weak sense of “independence”. This probably leads us to say that the idea of independent agencies excludes ordinary administrative hierarchy; that is, the Executive may not give them orders and instructions, nor may it legally review their decisions. So independent agencies are bodies which administer a given public policy, as defined by legislation, with operative autonomy. In this context, “operative autonomy” is to be understood as the opposite to “administrative hierarchy” and, consequently, it does not exclude some kind of loose political control. This characterisation, of course, means that independent 11 See, among many others, M.J. Guédon, Les autorités administratives independantes (L.G.D.J., Paris, 1991) and S. Cassese and C. Franchini (eds.), I garanti delle regole (Il Mulino, Bologna, 1996).
38 Luis María Díez-Picazo agencies need not be unbound from the Executive’s general political orientation. A solution of this kind would probably be desirable for public prosecution. It already exists in Spain (where a “general prosecutor”, freely appointed and dismissed by the cabinet, functions as a filter between the Executive and public prosecutors). Spanish experience shows, however, that merely indirect political dependence may also produce highly controversial decisions, for which the Executive’s accountability is not excluded. The Executive’s accountability for prosecutorial decisions deserves further comment. An important argument used by opponents to the idea of public prosecution independence is democratic legitimacy, understood in the radical sense that all public decisions should reflect, directly or indirectly, the people’s will. Needless to say, this should also apply to such an important decision as starting criminal proceedings against somebody.12 This argument undoubtedly encompasses a crucial point: prosecutorial decisions are far from being purely technical and, consequently, democracy requires their being the expression of a criminal policy which, in its turn, must be defined and controlled by the political branches. So far, the argument does not look very different from what has already been said about the implications of prosecutorial discretion. Brought to its ultimate consequences, however, such an argument becomes much more problematic. Leaving aside the fact that the word “legitimacy” has a remarkable variety of political meanings, the major difficulty with which any radical view of democracy is confronted lies in logical consistency: what is the democractic legitimacy of public decisions adopted by bodies which are not linked to elections? The usual European answer is that they are “indirectly” legitimate as long as their function is to implement laws which have been democratically adopted. If one does not stress its close relationship with a merely declaratory theory of legal interpretation, such an answer might perhaps apply to the judiciary because its function is predominantly reactive (i.e. it decides controversies brought to it by third parties). But as soon as one considers bodies which take initiatives, as happens with public prosecution, the idea of an indirect democratic legitimacy consisting of law implementation becomes an unconvincing fiction. Probably, the heart of the matter is that constitutional democracy is incompatible with radical views on legitimacy, because limitation of power counts as much as people’s will and, therefore, the rule of law works as a check on majoritarian choices. In this perspective, what should be democratically legitimate is the polity as a whole, not necessarily each one of its components.13 So the key issue about public prosecution is better understood if put in negative terms: instead of trying to insert public prosecution into the ordinary political process, 12 A very articulate example of this way of reasoning may be found in J. García Morillo, “La legitimación democrática del Ministerio Fiscal”, in (1998) 85 Claves de Razón Práctica 15. 13 This is a point on which most contemporary theories of democracy may agree. For a good account, see N. Bobbio, Stato, governo, società (Frammenti di un dizionario politico) (Einaudi, Torino, 1995).
Should Public Prosecution be Independent? 39 one may ask whether the political process should have a say in those aspects of the prosecutorial function which may not be seen as mere execution of the laws. For a democratic mind, only an affirmative answer is possible and, in this light, the most appropriate role for the Executive would probably be to orient public prosecution whenever legality leaves room for different policy options. This means that, once criminal legislation is adopted, the real poltical question about public prosecution is not legitimacy in its everyday working (which would involve the Executive’s effective direction), but accountabilty for its controversial decisions (which implies the Executive’s overall control).
V . INTERNAL HIERARCHY
A different question is that of internal hierarchy. The reasons for operative autonomy of public prosecution as a whole do not speak in favour of each individual public prosecutor’s independence. Just on the contrary, considerations of equality before the law and efficiency in the administration of criminal justice tend to justify a hierarchical organisation, as the only way to have a minimally coordinated prosecutorial function. Certainly, a strongly bureaucratic organisation would be incompatible with the above-mentioned highly professional behaviour which must inspire prosecutorial decisions; and, precisely in the perspective of the principle of legality, it is reasonable to protect individual public prosecutor’s professionalism with certain safeguards (orders and instructions should be given in writing, prosecutors should have the opportunity to object to them or even to disqualify themselves, etc.). In any event, if one goes further, individual prosecutor’s independence tends to produce perverse consequences, as is perfectly illustrated by Italian experience: in 1992 the legislative decision to set up the Direzione nazionale antimafia, a rather loose national structure for coordination in the field of investigation and prosecution of organised crime, was preceded by an astonishingly strong opposition by the judiciary. It considered that measure as an unacceptable attack against judicial independence and, furthermore, as a surreptitious way to undermine ongoing investigations of governmental crime. Whatever the motives of this reform, one fact is clear: only after 1992 has Italy had spectacular success in the fight against the Mafia.14 This leads one to think that, perhaps, different types of crime demand different types of prosecutorial organisation. Moreover, whenever individual public prosecutor’s independence is taken to the extreme of granting them judicial status, as happens in Italy, the judiciary as a whole acquires an extraordinary bargaining power over its own conditions of employment vis-à-vis the Executive and the Parliament. This is due simply to the fact that there is an implicit threat of starting criminal proceedings over which 14 For the debate on the Direzione nazionale antimafia, see A. Gaito, “Indipendenza del pubblico ministero e ‘superprocura’”, in B. Caravita (ed.), n. 9 above.
40 Luis María Díez-Picazo no political control is possible. Judges have an undeniable corporatist interest in the judicial status of public prosecutors. It is quite obvious that, for reasons both of principle and pragmatism, individual prosecutor’s independence is not viable. Then the real question about internal hierarchy of public prosecution lies elsewhere: should public prosecution have a centralised or a decentralised organisation? Certainly, the American experience of a highly decentralised public prosecution cannot illuminate the European debate because, as has already been noted, it presupposes a different view on equality before the law, not to mention that it may hardly work without elective prosecutors. However, some degree of decentralisation would be compatible with the traditional European idea of public prosecution as a unitary body of public officials for the whole nation, provided with a hierarchical organisation and dependent on the Executive. Here the question is how much operative autonomy should be granted to local or regional chief prosecutors. No doubt, the wider the operative autonomy at the local level, the less the equality in the application of criminal law throughout the country; but, at the same time, also the fewer opportunities for undue Executive interference. Similar considerations about legality and efficiency should guide the assessment of the relationship between public prosecution and the police. No doubt, a merely reactive public prosecution, which lacks any capacity to influence investigations conducted by the police, would be deprived of any margin of manoeuvre and, consequently, would be absolutely constrained. In other words, an absolute separation between public prosecution and the police would constitute an indirect way to transform the former into a simple instrument of the Executive’s choices or, if that is the case, the choices of the authority governing the police. This is the reason why the Crown Prosecution Service in England may not be regarded as a genuine public prosecution, at least in the Continental sense of the term. Nevertheless, an insufficient differentiation between investigation and prosecution (i.e. to give public prosecution full investigative powers) involves the risk of psychological involvement on the part of the individual public prosecutor if he is later responsible for the conduct of the case before the courts; and this not only may work as an invitation for inquisitorial practices, but will hardly be compatible with the professional detachment required for scrupulous service of the principle of legality. Furthermore, the temptation of “protagonism” should not be overlooked: if individual prosecutors are independent and enjoy full investigative powers, they will be tempted to concentrate themselves in those cases which might make them popular or, even worse, to start actively looking for such cases without any indication that a criminal offence has been committed. The consequence would be arbitrariness in investigation, undue interference with privacy and unjustified damage to people’s reputation. As stressed by the American doctrine of “probable cause”, to start any investigation which is not based on a credible notitia criminis is contrary to the rule of law, simply because it involves difuse control
Should Public Prosecution be Independent? 41 over citizens’ lives.15 If constitutionalism is the art of separating and limiting power, then nobody should be concerned by the fact that in most European countries (with the exception of Italy and, for opposite reasons, the United Kingdom) there is not any systematic participation of public prosecutors in the investigation of crime.
VI . THE INVESTIGATING JUDGE
The last question is whether the fact that in some European countries the institution of the investigating judge (juge d’instruction) is still in force affects the debate on public prosecution independence. In other words, it might be argued that the reasons against strong independence of public prosecution as a whole and individual prosecutor’s independence are no longer valid whenever the decision to open the criminal process belongs to an investigating judge, who by definition is independent. A historical perspective may illuminate this problem. The Napoleonic model of administration of criminal justice, which in the nineteenth century spread troughout Continental Europe, was based simultaneously on inquisitorial and accusatorial criteria: whereas the trial has to be fully accusatorial, the pre-trial stage (i.e. investigation of facts and collection of evidence) is predominantly inquisitorial. Leaving aside the motives for this combination of principles (which have to do mainly with a weakly liberal conception of efficiency in criminal law enforcement), the crucial point is that in this context public prosecution was originally shaped as a mechanism to control judicial decisions, both in terms of legality and expediency. Furthermore, the modern European idea of public prosecution (i.e. a unitary body of public officials for the whole nation, provided with a hierarchical organisation and dependent on the Executive) was devised at that time, precisely as a result of strong distrust towards full judicial independence.16 Certainly, this arrangement amounts to a reversal of any strict understanding of the rule of law, where initiatives are taken by executive officials and control is exercised by judges; but it is unquestionable that, in such a context, the absence of public prosecution independence is perfectly consistent: even if the judge is independent in starting any criminal investigation, the trial will require that the public prosecutor, who represents the Executive’s view on legality and criminal policy, agrees to bring charges against the accused. Almost two centuries later, there are probably good reasons to abolish the institution of the investigating judge, not least in order to avoid confusion between prosecution and adjudication: if the criminal process is fully accusatorial, constitutional gurantees are better protected. However, any reform in this 15 For the constitutional meaning of the idea of probable cause, see J.H. Israel and W.R. La Fave, Criminal Procedure (Constitutional Limitations) (West Publishing Co., St. Paul (Minn.), 1988). 16 See my article “El nacimiento de la idea de Ministerio Público”, in (1998) 8/9 Tribunales de Justicia 843.
42 Luis María Díez-Picazo direction should not be regarded as a justification for public prosecution independence. Several factors must here be taken into account. (1) Before considering whether the existence of the investigating judge has any influence on the debate about public prosecution independence, the whole argumentat has been based on the assumption that it is the public prosecutor who decides to start criminal proceedings. This is precisely what would happen if the institution of the investigating judge were abolished. (2) Some might think that, although there are good reasons for abolishing the investigating judge, this institution has a positive aspect, namely the opening of the criminal process by an independent authority; and, consequently, if public prosecution is to be put in the position formerly occupied by the investigating judge, it should be as independent as this used to be. This idea is not convincing, especially because it forgets to make any consideration about criminal policy: if both the judge and the prosecutor are independent, how could uniform criteria in criminal law enforcement be implemented? What would the limit be for technical prosecutorial discretion? No doubt this is the American solution at state level; but it is based on a conscious choice for absolute decentralisation of public prosecution and, above all, it is a consequence of the prosecutors’ elective nature. (3) In addition, it is not obvious that, in order to establish a purely accusatorial system, the authority responsible for investigation and prosecution has to be invested with powers similar to those of an investigating judge. This is what has been done in those European countries which have abolished the institution of the investigating judge (i.e. Germany in 1974 and Italy in 1989); but this is certainly not the Anglo-American notion of how an accusatorial system should work. The heart of the matter is that, in order to use most powers which go beyond those of ordinary citizens, Anglo-American investigators (policemen or prosecutors) have to get a judicial order, whereas German and Italian prosecutors still have investigative privileges of judicial nature even if their exercise is under control by a genuine judge.17 At this point, the important conclusion is not that something more than the abolition of the investigating judge is needed to establish a purely accusatorial system, since confusion between prosecution and adjudication may survive especially if, as happens in Italy, prosecutors enjoy judicial status. Nor is it relevant here to stress that, if public prosecution is to be put in the position formerly occupied by the investigating judge, any debate on the abolition of such institution should be decided according to pragmatic considerations, not according to arguments of principle. What is crucial now is simply to realise that paradoxically the debate on public prosecution independence has little to do with that on the abolition of the investigating judge.
17 See J.L. Gómez Colomer, “La instrucción del proceso penal por el Ministerio Fiscal (Aspectos estructurales a la luz del derecho comparado)”, in (1997) 4 Revista del Ministerio Fiscal 84.
Should Public Prosecution be Independent? 43
VII . CONCLUSION
Summing up, one may fairly say that the basic political and legal problem in shaping public prosecution ultimately lies in finding an appropriate balance between two set of values: on the one hand, respect for legality and protection of citizens’ rights; on the other hand, the definition and implementation of a criminal policy by politically accountable organs.18 For this reason, in a liberaldemocratic country a strong idea of public prosecution independence lacks any possible justification and, above all, it would be misleading to put it at the same level as the fundamental principle of judicial independence. The most balanced solution, then, seems to consist of providing public prosecution with operative autonomy vis-à-vis the Executive, as well as to introduce effective safeguards for prosecutors’ professionalism. If needed, specific organisational devices could be introduced to fight against governmental crime. All this is not new, but merely reflects old liberal political wisdom, as shown by Montesquieu’s often forgotten statement in De l’esprit des lois (book 6, chapter 8): “Nous avons aujourd’hui une loi admirable: c’est celle qui veut que le prince, établi pour faire exécuter les lois, prépose un officier dans chaque tribunal, pour poursuivre, en son nom, tous les crimes: de sorte que la fonction des délateurs est inconnue parmi nous; et, si ce vengeur public étoit soupçonné d’abuser de son ministère, on l’obligeroit de nommer son dénonciateur”.19
18 A strong and convincing defence of this point of view is made by C. Guarnieri and P. Pederzoli, La democrazia giudiziaria (Il Mulino, Bologna, 1997). 19 Montesquieu, Oeuvres complètes, vol. II (Gallimard, Paris, 1951), p. 317.
Part II
Changes in the Structure of Governance
4
The Science of Private Law and the Nation State* CHRISTIAN JOERGES
two concepts mentioned in the title of this chapter have had a tense relationship. It was in the “nation-state” that Europe’s societies found their sovereignty, fought out their internal economic and social conflicts, and organised their legal systems. The links forged between private law and the nation-state called into question private law’s pre-positive self-justifications: both those in classical natural law and in modern rational law, the links to a common European legal culture and, finally, even the trust in the scientific nature of the private law systems constructed.1 “Called into question” is intended to mean that the non-positive self-justifications of private law principles and laws proved to be precarious without the new reference point of
T
HE
* Translation from the German by Iain L. Fraser, EUI Florence. This chapter originated as a contribution to a much more comprehensive project portraying the history of legal science in the “Bonn Republic”. It was written during my period as Fellow at the Institute for Advanced Study Berlin in 1992/93 and its original German version was first published in 1994 under the title “Die Wissenschaft vom Privatrecht und der Nationalstaat” by Dieter Simon (ed.), Rechtswissenschaften in der Bonner Republik (Suhrkamp, Frankfurt/Main, 1994), pp. 311–363. This English version was first presented in March 1998 in the context of the Symposium “The Contribution of the German Jewish Jurists to Jewish and Roman Law in Germany and of German Jurists to American and Israeli Law” at the Hebrew University in Jerusalem. It is meant to make non-German readers aware of controversies within German academia, of its responses to the tensions created by Germany’s historical past and intellectual heritage on the one hand, and its explicit turn to “the West” on the other. This kind of information seems particularly important in view of the current developmental stage where private law is under the impetus of European integration and private law scholars all over Europe need to deepen their understanding of neighbouring traditions instead of relying on inherited simplistic stereotypes or producing more sophisticated, but nonetheless speculative, accounts on the divergences between “civil law” and “common law”. The specific perspective of my reconstruction of Germany’s post-war debates has on the one hand motivated excursions into theoretical approaches and into neighbouring disciplines such as private international law and European law. On the other hand, however, this chapter does not seek to give a comprehensive account of Germany’s post-war Privatrechtsgeschichte. Furthermore, despite the dynamics of the process of European integration, I have refrained from updating my observations in the final section. Even where the present chapter touches upon European perspectives, they remain those developed in the “Bonn Republic”. 1 See R. Stichweh, “Selbstorganisation und die Entstehung nationaler Rechtssysteme (17.–19. Jahrhundert)”, (1990) 9 Rechtshistorisches Journal 254 et seq., 264 et seq.
48 Christian Joerges the positivity of all law, conveyed through the nation-state, which brought an end to the history of the influence of those remnants of tradition. The tension between the nation-state form of law and its suprapositive, universalist content and validity claims puts all disciplines of legal science, both dogmatic and non-dogmatic branches, on the spot. Not just private lawyers, but also private international lawyers and comparative lawyers, legal historians, theorists and sociologists, know that the particularism of the positive law in force cannot be laid solely at the door of the nation-state. Yet, the nation-state offers a rich reference point for the history of private law. Its suitability as a classificatory and reference concept stems from the fact that the universal dependency relationships of cultural, economic, social and political history come into view.2 Although German private law found its formal unity in the nation-state, its codification could not, in contrast with the French,3 be constructed as an act of giving law to itself. Furthermore, German private law could not be portrayed in the same way as American common law,4 as an institutionalised sub-system of a democratic constitutional state. German private law’s codification was the product of a legal culture that had, through the historical legal school, separated itself from Enlightenment natural law and the constitutional developments of the “West”,5 in order to justify the autonomy of private law by the scientific nature of its reconstruction.6 In this tradition, universalist approaches were still very much at work. Of course, the trinity of the organic formation of law, the legal profession and legal science itself refers, in the theory of the Volksgeist, merely to a national culture. But this legal culture saw itself as a part of a European tradition, and the freedom-guaranteeing quality of private law was taken for granted. This remained so in the era of legal formalism. However, this private law tradition was not conceptually prepared to respond to such modern phenomena as the modern State’s assumption of welfarist functions, the intervention of public authorities into the spheres of private law (the “publicisation” of private law), or the instrumentalisation of law for external economic purposes in the interest of national economic polity. Responding to these develop-
2 See, more generally, H. Plessner, Die verspätete Nation (1935) (Frankfurt a.M., 1974); N. Elias, Studien über die Deutschen, 4th edn. (Frankfurt a.M. 1990), p. 159 et seq.; R.M. Lepsius, “Nation und Nationalismus in Deutschland”, in idem, Interessen, Ideen und Institutionen (Opladen, 1988), 232 et seq.; J. Habermas, Staatsbürgerschaft und nationale Identität (St. Gallen, 1991), p. 6 et seq. (in idem, Faktizität und Geltung (Frankfurt a.M., 1992), p. 632 et seq., p. 635 et seq.). 3 See J.H. Merryman, The Civil Law Tradition, 2nd edn. (Stanford, 1985), p. 26 et seq.; I. Maus, Zur Aufklärung der Demokratietheorie (Frankfurt a.M., 1992), p. 203 et seq. 4 See Ph. Selznick, The Moral Commonwealth. Social Theory and the Promise of Community (Berkeley, Cal., 1992), p. 448 et seq. 5 See D. Grimm, “Der Staat in der kontinentaleuropäischen Tradition”, in idem, Recht und Staat in der bürgerlichen Gesellschaft (Frankfurt a.M., 1987), p. 53 et seq., p. 69 et seq. 6 On these qualities of the BGB as an achievement of scientific codification, see H.H. Jakobs, Wissenschaft und Gesetzgebung im bürgerlichen Recht nach der Rechtsquellenlehre des 19. Jahrhunderts (Paderborn-München-Wien-Zürich, 1983), p. 134 et seq.
The Science of Private Law and the Nation State 49 ments were new conceptions and methodologies, such as those of the later Jhering, of Interest Jurisprudence and of Free Law, all of which created a new realism and strove for a new “social” justice at the price of their formerly universalist claims.7 The difficulties of private law with the German nation-state and its antiformalist commitments to social justice continued and deepened in the brief Weimar period. Even in the retrospective view of contemporary legal historians, the problematic of the new Republic’s interventionist legislative practice is onedimensionally described as endangering the universalist traditions of private law.8 But this conceptual difficulty is not the only burden placed upon post-war West German private legal science. Its most pressing task was to deal with the racist re-definition of the ethno-cultural Volksnation of National Socialism, which had been substantively and methodologically underpinned in the contemporary science of private law by theoretically quite ambitious “legal innovations”. After the war, the legacy of the Nazi era had to be overcome in two ways: first, the links between private law theories and the ideologies of National Socialism had to be recognised so that private law could be freed from the influence of völkisch legal thinking, thereby enabling its older traditions to regenerate. Secondly, it was also important to deal simultaneously with the unresolved tensions between those traditions and the interventionist, welfarist side of the nation-state. The way this dual-track programme came about and the doctrinal tendencies that subsequently emerged will be dealt with in the first part of this chapter (see section I below). It goes almost without saying that even after the move away from the state of the Volksnation, the conflict between the regulatory aspect of the nation-state and the traditions of private law still remained on the agenda. In the Federal Republic’s reform period, the debates on the need for a renewal of the codification and on the reasonableness of the new statutes record the difficulty of the concept of a “nation of citizens”. The disputes surrounding the new Republic’s legislative activism in private law and the insistence of doctrinal thinking on its inherited authority were basically concerned with the new Polity’s legislative calling (see section II below). The history of the Federal Republic, from its inception, is one of the deliberate ceding of state sovereignty claims to European institutions. After 1989, the continuously accelerating process of European integration has not only left its traces in private law, but has also added a new dimension to the debates about universalism and particularism in private law because the Europeanisation of private law must be reconciled with the renewal of the nation-state as a democratic constitutional policy (see section III below). 7
See R. Dubischar, Einführung in die Rechtstheorie (Darmstadt 1983), p. 46 et seq. See K.W. Nörr, Zwischen den Mühlsteinen. Eine Privatrechtsgeschichte der Weimarer Republik (Tübingen, 1988), p. 13 et seq., p. 242 et seq, and the criticism by S. Simitis, “Stolpersteine der Privatrechtsgeschichte”, (1989) 8 Rechtshistorisches Journal 3 et seq. 8
50 Christian Joerges The presentation of the material in this chapter is, therefore, to be read systematically and historically. It is systematic to the extent that the Volksnation, the Staatsbürgernation and the “erosion” of the nation-state denote three aspects of nation-statehood,9 which were always operating simultaneously in the history of the Federal Republic, constituting a continuing problem for positive private law. It involves a historical reconstruction because various aspects of nation-statehood came rhythmically onto the law’s agenda, at intervals of some twenty years, with an urgency determined in each case by the times.
I . THE MOVE AWAY FROM THE PRIVATE LAW OF THE VOLKSNATION : RE - ORIENTATIONS IN THE POST - WAR PERIOD
The collapse of the Third Reich in 1945 meant the end of the state of the Volksnation, and the eventual establishment of the Federal Republic in 1949 meant the geographic partition of its territory. Legal texts record the need to loosen the entanglements of private legal science with National Socialism, to distinguish between undamaged relics and untenable remnants of tradition and the desire to arrive at a positive attitude towards the constitution of the democratic and social rule of law. Anyone taking up a text from the post-war period ought to remember the external conditions and internal constitution of legal science in those early years. First of all, there were the difficulties of getting to grips with the new conditions. Germany was dominated by the Allies, who were in conflict about the future role of Germany. Economic survival and reconstruction in the Western zones took place in a political vacuum, an ordnungspolitischer Ausnahmezustand (political and ideological state of emergency),10 a process which began to delineate the emerging opposition between East and West and which was still further nuanced by the currency reform of 1948 rather than by the creation of the Basic Law one year later.11 At the time, the programmatic idea of the social market economy (Soziale Marktwirtschaft), which was to stamp the Federal Republic’s self-image, seemed open to a variety of contents,12 embracing both a Keynes-inspired guidance and short-term economic 9 These concepts are taken from R.M. Lepsius, n. 2 above; see also idem, “Der europäische Nationalstaat: Erbe und Zukunft”, in ibid., p. 256 et seq. 10 See W. Abelshauser, Wirtschaftliche Wechsellagen, Wirtschaftsordnung und Staat: Die deutschen Erfahrungen (typescript, Florence 1992), p. 45. 11 See G. Ambrosius, Die Durchsetzung der Sozialen Marktwirtschaft in Westdeutschland 1945–1949 (Stuttgart 1977), p. 148 et seq. 12 See the survey of the contemporary debate in G. Boehmer, Grundlagen der bürgerlichen Rechtsordnung, 1. Buch (Tübingen, 1950), p. 206 et seq.; G. Brüggemeier, Entwicklung des Rechts im organisierten Kapitalismus, Band 2 (Frankfurt a.M., 1979), p. 267 et seq. It is worth noting that the Federal Constitutional Court found the conflict over the “economic constitution” to be open even after a long period of ordoliberal progress in the forming of the Bonn Republic’s public opinion (BVerfGE 4, 7—investment aid; for more detail, see the article by F. Kübler in D. Simon, n. * above, p. 364 et seq.). It is equally important to note that economic policy, against the protest of such attentive contemporaries as Franz Böhm, pursued a dual strategy: consolidation of “Ordnungspolitik” (regulatory policy) as an unofficial guideline, and reconstruction of cooperative control
The Science of Private Law and the Nation State 51 policy,13 and neo-communitarian concepts and even partial socialisations. Clarifications and demarcations followed soon afterwards,14 particularly as economic development took such a favourable course and the rearrangements of the Geld-, Wirtschafts- und Arbeitsverfassungen (monetary, economic and labour “constitutions”) proved fortunate institutional formations. All this also freed the science of private law from its initially visible insecurities: already by the early 1950s, all the schools of “mainstream” legal thought that were to point the way in the history of the Federal Republic had been (re-)established or formed anew.15 The attitude to the future, came at any rate, easier than dealing with the past. The retrospective view is epitomised by Gustav Radbruch’s position,16 that it had been, above all, positivism that had blinded legal science. Today, it is generally accepted that Radbruch’s diagnosis is too simplistic17 because it neglected the pre-democratic and anti-democratic contents of non-positivist mechanisms as a political practice; on this, see W. Abelshauser, n. 10 above, p. 24 et seq., idem, Die Langen Fünfziger Jahre. Wirtschaft und Gesellschaft in Deutschland 1949–1966 (Düsseldorf, 1987), p. 21 et seq. 13 See A. Müller-Armack, “Die Wirtschaftsordnung, sozial gesehen (1947)”, in E. Tuchtfeld and E. Dürr (eds.), Genealogie der sozialen Marktwirtschaft (Berlin-Stuttgart, 1974), p. 73 et seq., p. 79; on Müller-Armack’s separate position from the Freiburg “Ordoliberals”, see D. Haselbach, Autoritärer Liberalismus und Soziale Marktwirtschaft. Gesellschaft und Politik im Ordoliberalismus (Baden-Baden, 1991), p. 117 et seq. 14 On the dispute in the early years over the economic constitution, see, as well as the references in n. 12 above, A. Arndt, “Das Problem der Wirtschaftsdemokratie”, Süddeutsche Juristenzeitung 1946, 137 et seq.; idem, “Planwirtschaft”, Süddeutsche Juristenzeitung 1946, 169 et seq.; K. Geiler, “Personalismus und Sozialismus”, Zugleich ein Beitrag zum Sozialisierungsproblem, Süddeutsche Juristenzeitung 1948, 722 et seq. In the 1950s, the debate found its reference points in the Basic Law; see H.C. Nipperdey, Die soziale Marktwirtschaft in der Verfassung der Bundesrepublik (Karlsruhe, 1953), and the survey by E.R. Huber, “Der Streit um das Wirtschaftsverfassungsrecht”, Die öffenliche Verwaltüng (1956), 97 et seq., 135 et seq., 172 et seq., 200 et seq. On the importance of the dispute for private law, see section I 2 and section II 2 below. 15 On comparative law, not treated in this survey, see the article by M. Martinek in D. Simon, n. * above, p. 529 et seq; see section III 1 below. 16 “Gesetzliches Unrecht und übergesetzliches Recht”, Süddeutsche Juristenzeitung 1946, 105 et seq. 17 See the article by U. Neumann (in D. Simon, n. * above, p. 145 et seq.), and the study already carried out as a (critical) history of the move away from Radbruch’s thesis, by G. Luf, “Zur Verantwortlichkeit des Rechtspositivismus für ‘gesetzliches Unrecht’. Überlegungen zur ‘RadbruchThese’ ”, in: U. Davy et al. (eds), Nationalsozialismus und Recht. Rechtssetzung und Rechtswissenschaft in Österreich unter der Herrschaft des Nationalsozialismus (Wien, 1990), p. 18 et seq. 18 It is therefore hard to follow the exculpatory “Memorandum of the Leipzig Law Faculty on the Position of German Intellectuals towards the National Socialist Government and on the Causes of the Possibility of the Hitler Regime in Germany” of May 1945, recently made accessible to the public by K. Michaelis (Rechtstheorie (1991), p. 81 et seq.). This document locates the historical guilt of legal science (“but not only the German one”) exclusively in none other than “the repression of legal consciousness by philosophical and legal positivism” (p. 105). K. Larenz explained his own involvement for the first time in a letter recently published posthumously—of 1987 (see. R. Dreier, “Karl Larenz über seine Haltung im ‘Dritten Reich’ ”, Juristen Zeitung 1993, 454 et seq., 455–457; see also C.-W. Canaris, “Karl Larenz”, Juristen Zeitung 1993, 404 et seq., 405). Dreier’s indication that there had been “far-reaching differences” between Larenz and the “representatives of national-racist legal thinking in the strict sense” (op.cit., 455) is a simplification of the problem. As that “legal thought”
52 Christian Joerges German legal thinking,18 and it did not explain why its exponents had joined forces with National Socialism “beyond natural law and positivism”.19 The outcome, then, was a situation of imbalance between contending with the future and reconciling the past. Allocating “guilt” to positivism continued into the “renaissance of natural law” and recalled certain universalist, human rights bases of private law.20 However, the reasons that had prompted the departure from classical natural law in the nineteenth century could not simply be brushed aside. As the original accusation of positivism had no explanatory value in the discussion of the history of private law, it also inevitably led to a contrived and artificial debate as to the future normative bases of private law.21
1. Re-justifications: the renewal of historical Legal Science and Interest Jurisprudence “The representative of civil legal science who, tired of all the falsifying phrases and programmes presented as revolutionary in recent years, facing the collapse of all the erstwhile foundations for the existence of the German people, is sorely tempted to steer the little ship of his discipline, with broken mast and crippled back, but still seaworthy, out of the stormy sea of politics into the quiet bay of legal dogmatics, of unambitious, danger-free craftwork on the reliable material of traditional patterns of thought.”22 This introductory sentence to Ludwig Raiser’s inaugural lecture at Göttingen in 1946 depicts the needs and difficulties of guidance in the immediate post-war period. Raiser’s speech was a prophecy: an admonition, a warning, and a prediction. The prophecy was fulfilled. The admonition to bear in mind the fundamentals of private legal science was heard. There were genuine revivals of tradition alongside the development of innov-
met no academic standards of any type whatsoever, any attempt to supply a theoretical justification for National Socialism can be certified to have a non-National Socialist content. Yet, these attempts remain a genetic defect. On Larenz, see H.H. Jakobs, “Karl Larenz und der Nationalsozialismus”, Juristen Zeitung 1993, 86 et seq., and Ch. Joerges, “History as Non-History: Points of Divergence and Time Lage Between Fridrich Kessler and German Jurisprudence”, (1994) 42 Am. J. Comp. L 163 et seq. 19 Thus K. Larenz, Rechts- und Staatsphilosophie der Gegenwart, 2nd edn. (Berlin, 1935), p. 150. 20 See F. von Hippel, Die nationalsozialistische Herrschaftsordnung als Warnung und Lehre (Tübingen, 1946), and the laudation by Th. Ramm, “Fritz von Hippel als Rechtstheoretiker und Rechtsphilosoph”, (1949/50) 38 Juristen Zeitung 1992, 1141 et seq., 1146 et seq. 21 An example is offered by H. Coing’s report on “New Tendencies in North American Legal Philosophie”, (1949/50) 38 Archiv für Rechts- und Sozialphilosophie, 536 et seq. Coing reports fairly, drawing distinctions, about American legal realism, but then displays so much sympathy for its natural law critics in the USA (op.cit., 565 et seq.) that the anti-positivist tendencies within realism disappear from sight; there, they were pursued chiefly by Jewish academics; see M. Horwitz, Jews and Legal Realists; Contribution to the Conference “Jews and the Law in the United States” (Institute for Legal Studies, Madison, Wisc., November 1991). 22 L. Raiser, “Der Gleichheitsgrundsatz im Privatrecht” (1946), (1949) 111 Zeitschrift für das gesamte Handels- und Wirtschaftsrecht 75.
The Science of Private Law and the Nation State 53 ative approaches. This chapter will only focus on the efforts of renewal.23 The fact that Raiser’s more pessimistic warnings were borne out after the initial pressures of justification had ebbed away,24 was in line with the normalisation of life in the 1950s. Formalism Renewed reference to the formalist traditions of the nineteenth century, to their individualistic basic categories, their conceptual clarity and systematic and dogmatic stringency, to the separation of politics and legal science, meant, first and foremost, the rejection of the vices of völkisch legal thinking.25 Of course, the contemporary history of private law had not just National Socialist antiformalism to digest, but also the early critique from Jhering, Free Law and Interest Jurisprudence, Sociological Jurisprudence and the foundation of Ordoliberalism, and all of these developments connected with the “Welfare State” veneering of the private law system by binding regulations and measures of economic law. Accordingly, any revival of classical formal law “objectively” faced considerable difficulties. Neither the naturalist-realist insights into the limits of legal methodology nor the arguments from justice directed against legal formalism26 had been wiped out by the anti-liberalism of the National Socialist epoch. In fact, the basic justification underpinning the numerous legal advances and dogmatic innovations for the period immediately after the Civil Code came into force were never seriously questioned. A return to the tradition of the nineteenth century was only really advocated in the historical legal writings of Werner Flume. It is one of the peculiar features of the debate in post-war civil law studies that in the justification for this return to the nineteenth century, the debate on anti-formal tendencies of developments in private law was (initially) of little significance, whereas the suspicion that it meant a resumption of positivism was taken completely seriously. As late as 1960, Flume saw himself compelled to reject this reproach along with its connotations.27 23 The survey below is not in the chronological order of the programmatic documents in the postwar period. Instead, it follows the history of the emergence of the various traditions considered. 24 As one example, see J. Esser, “Gedanken zu faktischen Vertragsverhältnissen”, (1958/59) 157 Archiv für die civilistische Praxis 86 et seq.; Esser complains of an “astonishing” lack of polemic discussions, attributing it to the (regained) “inner unity” on perceptions of problems and definitions of tasks—H. Lehmann’s famous warning against “the osteomalacia of law of contract” dates from 1958 (Enneccerus and Lehmann, Recht der Schuldverhältnisse, 15th edn. (Tübingen, 1958), preface). 25 See M. LaTorre, “Nostalgia della comunità omogenea. Karl Larenz e la teoria nazionalsocialista del contratto”, Archivio Giuridico 1987, 45 et seq. 26 One might at least have known this; see only F. Kessler’s article in the Festschrift für Martin Wolff (“Freiheit und Zwang im nordamerikanischen Vertragsrecht”) (Tübingen, 1952), p. 67 et seq., which met with no echoes. 27 W. Flume, Richter und Recht, Schlußvortrag auf dem 46. Deutschen Juristentag 1966, Vol. II (München-Berlin, 1967), K 3 et seq., 12. In the preface to the monograph on Eigenschaftsirrtum und Kauf, initially published in 1948 and reprinted in 1975 (Wissenschaftliche Buchgesellschaft, Darmstadt), Flume contented himself with the dry observation that “for reasons of the times” the work submitted in 1933 in Berlin as a habilitation thesis had “not served its initially intended purpose” (op.cit., 9).
54 Christian Joerges Any effort to explore the “positivistic” nature of the historical legal school would indeed misrepresent its object.28 On the other hand, however, one cannot, without further ado, dispute the right of the anti-positivist “legal innovators” of the National Socialist epoch to lay claim to that tradition. Rückert, in his reconstruction of Savigny’s theory of the Volksgeist (“national spirit”), subtly showed that there are definitely methodological kinships between the stylisation of the Volksgeist as a source of law in Savigny and the substantive legal thinking pursued in National Socialism.29 It is sufficient to note how Savigny deals with the “Volksgeist” in detail30 in order to recognise the differences in substance between formalist and völkisch legal thinking. For all the criticism levied against organicist concepts of society it is important to remember their political context: Savigny and his followers had in mind a culturally defined German nation (Kulturnation); their theory of the Volksgeist was directed against the legislative ambitions of both the Frederician and the “modern” state.31 The National Socialist national “spirit”, however, derived its essence from the new State of the Volksnation, and had nothing to set against that state’s claims to leadership. Notwithstanding the distance between Savigny’s theory of the Volksgeist and the state of the Volksnation, it nonetheless seems questionable to attempt to renew it in the new State of the post-war period. Rifts had to emerge between the law for which private legal science claimed adjudicatory competencies as an “organ” of the Volksgeist, and the “political” law with its juridifiction of social problems. Cultivating the idea that legal creations are “typically the fruit of a conviction as to values and truth” that merely discloses the “regulatory programme and value conceptions of the legal community”,32 inevitably had to clash with the validity claims of legislative interventions. In the later debates on the “social” transformations of the private law system, it became readily apparent that there was a remoteness of historical legal science from the theoretical significance attached to the democratic legitimation of legislative policy.33 From Interest to Value Jurisprudence Interest Jurisprudence , which had been successful from the turn of the century, could more easily be recommended as a promising perspective for the future than classical formalism could. Interest Jurisprudence had managed to combine 28 See R. Ogorek, Richterkönig oder Subsumtionsautomat? Zur Justiztheorie im 19. Jahrhundert (Frankfurt a.M., 1986), p. 273 et seq; U. Falk, Ein Gelehrter wie Windscheid. Erkundungen auf den Feldern der sogenannten Begriffsjurisprudenz (Frankfurt a.M., 1989), p. 215 et seq. 29 J. Rückert, “Das ‘gesunde Volksempfinden’—Eine Erbschaft Savignys?” (1986) 103 Savignys Zeitschrift (Germanistische Abteilung) 199 et seq. 30 See J. Rückert, n. 29 above, 237 et seq. 31 As one example, see F. Wieacker, Privatrechtsgeschichte der Neuzeit, 2nd edn. (Göttingen, 1967), p. 390 et seq. 32 E. Picker, “Richterrecht oder Rechtsdogmatik Alternativen der Rechtsgewinnung? Teil II”, Juristen Zeitung 1988, 62 et seq., 63, 71. 33 See section II 2 below.
The Science of Private Law and the Nation State 55 the opening of private law to practical needs and social requirements with (relative) strictness of method and fidelity to the legislative power of a society with a pluralism of interests. Although Philip Heck had offered Interest Jurisprudence to the “new State” in unfortunate formulations,34 it was declared to be out of date as far as the task of establishing the new “concrete orders” was concerned;35 the interest pluralism presupposed by Heck’s methodology is in fact incompatible with the notion of a substantive unity of society.36 Not quite surprisingly, however, Interest Jurisprudence encountered some reservations from writers inspired by natural law. Consequently, Gustav Boehmer, in his influential treatise on the foundations of private law, opened his presentation of methodological issues with a quite defensively structured reasoning.379 Boehmer contented himself with a brief survey of the history of Interest Jurisprudence, in order then to review the objections raised by the Kiel school (“positivism”; “sociologism”; “early liberal individualism”; and “rationalism”). Boehmer’s moderating, thoughtful and innovative discussion of every individual verdict manifested the transformation of Interest Jurisprudence to “Value Jurisprudence”. As to this day it defines the self-image of private law science;38 while the judge must act in accordance with the law, he must “ultimately” also recognise the mandatory validity of supreme values; while conflicts of interest determine society, the law is constituted through the neutral assessing of them; while individualistic interests are to be recognised, they do not take precedence over common interests everywhere. Interest Jurisprudence purified in this way owed its practical power of conviction to the circumstance that it could flexibly adjust the legal system to modern regulatory functions and contemporary perceptions of justice, without having to break with the conviction that legal evaluations can be found neutrally and autonomously. It was (and remains) its theoretical weakness that, as a methodology, it leaves uncertain the conditions under which the justice of post-formal law can be brought about.
34 Ph. Heck, Rechtserneuerung und juristische Methodenlehre (Tübingen, 1936); idem, “Die Interessenjurisprudenz und ihre neuen Gegener”, Archiv für die civilistische Praxis 142 (1936), 129 et seq, see the observations in D. Simon, “Die deutsche Wissenschaft vom Römischen Recht nach 1933”, in M. Stolleis and D. Simon (eds.), Rechtsgeschichte im Nationalsozialismus (Tübingen, 1989), p. 161 et seq., p. 162 n. 4. 35 As one example, see K. Larenz, Rechts- und Sozialphilosophie der Gegenwart, 2nd edn. (Berlin, 1935), p. 25 et seq.; further references in G. Boehmer, Grundlagen der bürgerlichen Rechtsordnung, Bk. 2, Pt. 1 (Tübingen, 1951), p. 193. 36 On the contrast between the positivist, politically fungible self-image of Interest Jurisprudence as a methodology and its non-explicit pluralist premises, see G. Ellscheid, “Einleitung”, in idem and W. Hassemer, Interessenjurisprudenz (Darmstadt, 1974), p. 1 et seq., p. 4 et seq.; H.-J. Koch, Die juristische Methodenlehre im Staatsrecht (Frankfurt a.M., 1977), p. 116 et seq. 37 Grundlagen der bürgerlichen Rechtsordnung, n. 35 above, Bk 2, Pt 1, p. 194 et seq., p. 219 et seq. Moreover, Boehmer understood the limits to interest jurisprudence as a pointer to a “supralegal substantive legal value, . . . the natural-law idea of justice”. 38 As one example, see H.-M. Pawlowski, Methodenlehre für Juristen (Heidelberg-Karlsruhe, 1981), p. 60 et seq.
56 Christian Joerges
2. Models of “materialised” private law: private law as the economic “Constitution” and social private law The question of how the validity claims of the private law system can be asserted and delimited against government interventionism and the materialisations of formal law was hardly dealt with explicitly by historical legal science or interest jurisprudence. The very fact that this issue became central to basic contributions in the post-war era is in itself revealing. It reflects the need to reconsider the social function and legitimacy of private law under changing socio-economic conditions and in a new political order. The immediate impact of these debates on the “normal” (doctrinal) private law scholarship and the daily business of private law practice was marginal; and yet they were to have an enduring mark on the basic orientations and self-images of the discipline. Ordoliberal private law theory The ordoliberal school was the best prepared of the legal groups to deal with this question. As early as the 1920s, Walter Eucken and Alexander Rüstow had developed their theory of order leading beyond the historical school of national economics.39 The “strong state” constitutes, in a precisely defined institutional sense, a systematically central element in this thinking. This state must use its power not to intervene into markets but to establish an economic constitution in which the proper functioning of the market can hold sway.40 Franz Böhm, who was involved early on in the project, clarified the legal science side of the programme.41 According to Böhm, the ordopolitical weakness of the democratic pluralism of the Weimar Republic, in the face of the power structures within the economy, was one reason explaining how the National Socialists managed to seize power. Consequently, in the National Socialist era, he advocated a “strong State” in the sense of the planning of the competitive economy.42 After 39 On the history of Ordoliberalism’s national economic dogmatics, see W. Abelshauser, Wirtschaftliche Wechsellagen, n. 10 above; D. Haselbach, n. 13 above, p. 23 et seq. 40 See W. Abelshauser, Wirtschaftliche Wechsellagen, n. 10 above, p. 27 et seq., with references. 41 See, especially, Wettbewerb und Monopolkampf (Berlin, 1933); Die Ordnung der Wirtschaft als geschichtliche Aufgabe und rechtsschöpferische Leistung (Stuttgart, 1937); and, for a penetrating comment, R. Wiethölter, “Franz Böhm (1895–1977)”, in B. Diestelkamp and Michael Stolleis (eds.), Juristen an der Universität Frankfurt a.M. (Baden-Baden, 1989), p. 208 et seq., and D. Haselbach, n. 13 above, p. 84 et seq. 42 D. Haselbach traces this back to the intellectual relationships between the ordoliberal positions, Carl Schmitt’s regulatory thought and National Socialist totalitarianism (n. 13 above, esp. p. 92 et seq.). Indeed, at the end of the total war, the economic policy conceptions of the “Freiburger” met with interest from the Reichswirtschaftsministerium. This ministry was looking for a plan to give body to the National Socialist conceptions of leading the economy; this leadership ruled out a return to “classical” liberalism, but a planned economy was not aimed at either (see L. Herbst, Der Totale Krieg und die Ordnung der Wirtschaft (Stuttgart, 1982), p. 144 et seq., p. 433 et seq.; R. Wiethölter, n. 41 above, p. 227). Neither the early years, nor the closing chapters of National Socialist economic policy confirm that the ordoliberal criticism of pluralism was in line
The Science of Private Law and the Nation State 57 1945, it could then be demonstrated that the “refined competitive economy” in contrast to the Zentralverwaltungswirtschaft (“centrally administered economy”), which is more than just a “mixed economic system”, is most compatible with democracy under the rule of law.43 Because of these three-sided demarcations—against the totalitarian planned state, against laissez-faire liberalism and against welfarist interventionism—the idea of a state-guaranteed competitive constitution appeared as an attractive model for the reconstruction of the economic and legal system.44 In 1946, as part of his Frankfurt rectorial address, Walter Hallstein was one of the first to bring out the constitutional importance of private law for this sort of system.45 Entirely along the lines of the economic forerunners of Ordoliberalism, he turned against the state-interventionist restrictions on the scope of private law and the associated encroachments on private freedoms under law. It seemed obvious to him that such freedoms could not justify themselves but, instead, had to be seen as “conferred” rights and as associated with legal requirements, that the subjects of private law in using their freedoms had always to be seen as “functionaries of the overall legal system”46 and be bound to this system. The constitutional significance of statehood to the economic and legal system also has repercussions on international economic relations.47 Even to this day, economists committed to the ordoliberal tradition call “the welfare of a nation seen as a collective person”48 an important objective of economic policy. with National Socialist concepts of the State. It is, though, true that even the ordopolitical programme that emerged in the 1930s took on “after the initial period, an increasing trend towards having an important place in research, journalism, teaching and practical economic advice in the Third Reich” (W. Abelshauser, “Die ordnungspolitische Epochenbedeutung der Weltwirtschaftskrise in Deutschland: Ein Beitrag zur Entstehungsgeschichte der Sozialen Marktwirtschaft”, in D. Petzina (ed.), Ordnungspolitische Weichenstellungen nach dem Zweiten Weltkrieg (Berlin, 1991), p. 11 et seq., p. 25; the presentation in E.-J. Mestmäcker, “Über die Rolle der Politik in der Marktwirtschaft. Dargestellt anhand eines unveröffentlichten Briefes von Franz Böhm”, (1978) 27 Ordo 3 et seq., 5, is, however, too simplistic). 43 For a systematic treatment, see F. Böhm, Wirtschaftsordnung und Staatsverfassung (Tübingen, 1950), and earlier idem, “Die Bedeutung der Wirtschaftsordnung für die politische Verfassung”, Süddeutsche Juristenzeitung 1946, 141 et seq. 44 For the debate on the economic constitution, see the references in nn. 12–14 above. 45 “Wiederherstellung des Privatrechts”, Süddeutsche Juristenzeitung 1946, 1 et seq. 46 See W. Hallstein, “Von der Sozialisierung des Privatrechts”, (1994) 102 Zeitschrift für die gesamten Staatswissenschaften 530 et seq., 546; the expression was to reappear frequently later; see only K.H. Biedenkopf, Über das Verhältnis wirtschaftlicher Macht zum Privatrecht, Festschrift Franz Böhm (Karlsruhe, 1965), p. 113 et seq., p. 116 et seq., p. 133 et seq., and, retrospectively, W. Fikentscher, Wirtschaftsrecht, Vol. 1, Weltwirtschaftsrecht, Europäisches Wirtschaftsrecht (München, 1983), p. 33 et seq. For a systematic interpretation see K. Günther, “ ‘Ohne weiteres und ganz automatisch?’ Zur Wiederentdeckung der ‘Privatrechtsgesellschaft’ ”, (1992) 2 Rechtshistorisches Journal 473 et seq., 494 et seq. 47 See Ch. Joerges, “Vorüberlegungen zu einer Theorie des internationalen Wirtschaftsrechts”, (1979) 43 Rabels Zeitschrift für ausländisches und internationales Privatrecht 6 et seq., 29 et seq., and section III 2 below. 48 H. Willgerodt, “Staatliche Souveränität und die Ordnung der Weltwirtschaft”, (1989) 40 Ordo 401 et seq.
58 Christian Joerges However, these economists are not concerned here with an ethnically defined Volksnation. National statehood is, instead, regarded as the precondition and guarantee of the necessary order in economic relations. This form of statehood was compatible with the division of the nation, and is even, as was to emerge in the construction of the EC institutions, conceivable as a supranational order binding together classical nation-states.49 Ludwig Raiser’s social private law Neo-formalism had rejected the “statification” (Verstaatlichung) of private law; Ordoliberalism attempted to conceptualise the state-economy relation in its specific way. Commentators on the social welfare activities of the nation-state who failed to distance themselves from the Ordoliberalists had a difficult time. It was certainly possible in the sense of Interest Jurisprudence and Value Jurisprudence to content oneself with a methodological critique of formalism and thus, at the same time, gain a pragmatic distance from Ordoliberalism. However, to the extent that the societal structural foundations and positive regulatory functions of private law were dealt with in order to seek mediations between the universalistic, liberal heritage and the interventionist-social aspects of the legal material, the prospects for reliable orientations were blurred. The “social” aspects of private law had been disavowed by the National Socialist critique of liberalism: through its anti-individualism, its ideology of Gemeinschaft (community) and Gemeinnutz (the common weal), and the claim to Germanic, social conservative traditions. At the same time, it emerged that in the Soviet Zone, which covered “nearly one-third of the Volk’s territory, a ‘people’s democratic’ ‘State power’ was being imposed on the ‘suffering German people’, a new regime made up of political adventurers, traitors of the people obedient to foreigners, fanatical ideologues and rootless literati”.50 The twofold demarcation, from the antiliberalism of National Socialism on the one hand, and from the anti-capitalism of state socialism actually being established on the other, was not, however, a mere rhetorical device to which all proponents of Third Ways felt compelled to resort.51 It was a truly intricate issue that has remained with us until today. Among the private law scholars willing to face these challenges was Ludwig Raiser. His Göttingen inaugural lecture on “The Equality Principle in Modern Private Law”52 dealt with all the key questions of the “social” law of obliga49
See section III 2 below. See G. Boehmer, Grundlagen, n. 35 above, p. 151. The USA witnessed a similar debate about the New Deal in the 1940s. Among the administration exponents of the New Deal there actually were admirers of Mussolini until 1935; see J.Q. Whitman, “Of Corporatism, Fascism, and the First New Deal”, (1991) 39 Am.J.Comp.L. 747 et seq. Later, American legal reformers, too, had to grapple with the reproaches of totalitarianism and Hitlerism; for an example, see J.Q. Whitman, “Commercial Law and the American Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial Code”, (1987) 97 Yale L.J. 156 et seq., 170 et seq.; and more generally L. Kalman, Legal Realism at Yale 1927–1960 (Chapel Hill, N.C.London 1986), p. 121 et seq. 52 See n. 22 above. 50 51
The Science of Private Law and the Nation State 59 tions: the equality principle was primarily a formal principle but putting it into practice meant that it was generally dependent on substantive viewpoints. In private law, the point was the recognition of universalistic legal rules so that guaranteed autonomous action could be experienced as equal freedom, ensuring the freedom of development for all individuals. Raiser’s considerations on private law theory turned around mediations of these two “tasks of private law” under the circumstances arising in each case. In 1946, he believed that the postulates of freedom and equality had to be found in a social order grounded on socialist values.53 This prophecy was all too short-lived. What remained, however, was Raiser’s scepticism as to the Ordnungstheory interpretation of the economic constitution as a fundamental decision in favour of the competitive economy. In contrast to the Freiburg school,54 Raiser stayed entirely within the traditions of the historical school of national economics. Economy and law were “parts of one and the same culture, creations of the same mind, members of the same world of values, testimony to the overall style of their people and their age”.55 This “economic order” was not value-free: it encountered an already given context of tradition56 but did not “as such take on the quality of being a legal principle”.57 The order could and should be shaped by both economic policy decisions, in accordance with viewpoints of expediency, and by law in conformity with principles of substantive justice.58 Raiser also maintained his scepticism about the chances of private autonomous rights to freedom. “The social climate”, which also pervaded private law, spoke in favour of substantive equality thinking, where “the modern rationalised, depersonalised mass world” was one of “social groups within which the individual appears not as a human being but only as a worker in a big enterprise, as a shareholder or some other interchangeable member in an association, as a tenant in a big-city high-rise, as a de-individualised consumer of mass goods”.59 These are the circumstances in relation to which Raiser develops positive duties out of the equality principle, and which he has in mind when later in private law he develops a
53
Ibid., 100. For a brief self-presentation of their theoretical self-image, see W. Eucken, “Kritik der ‘Begriffsnationalökonomie’” (1940), in R. Jochimsen and H. Knobel (eds.), Gegenstand und Methoden der Nationalökonomie (Köln 1971), p. 163 et seq., and from the political-science secondary literature, D. Haselbach, n. 13 above, p. 99 et seq., p. 133. 55 L. Raiser, “Wirtschaftsverfassung als Rechtsproblem”, Festschrift Julius von Gierke (Berlin, 1950), p. 181 et seq., p. 188, and later L. Raiser, “Antinomien im Recht der Wettbewerbsbeschränkungen”, Festschrift Erich Fechner (Tübingen, 1973), p. 57 et seq., p. 62. 56 It is significant how Raiser demarcates for himself the law of international economic relations against universal principles: international economic law remains the law of a state that acts as a “historically grown economic unit” and for which the “national ties and restrictions” of its legal system are, accordingly, a matter of course (“Der Ordnungsrahmen des Internationalen Wirtschaftsrechts”, Festschrift Franz Böhm (Tübingen, 1975), p. 485 et seq., p. 486). 57 “Wirtschaftsverfassung als Rechtsproblem”, n. 55 above, 192. 58 Ibid., 199 et seq. 59 “Der Gleichheitsgrundsatz”, n. 22 above, 91 et seq. 54
60 Christian Joerges two-fold structure of subjective rights and objective-law “institutions” oriented towards “typical circumstances of life”.60 Rüthers later derided “institutional” legal thinking as merely a modulation and continuation of Carl Schmitt’s Ordnungsdenken.61 His analysis is too crude given the many nuances in Raiser’s world of ideas,62 also because Raiser’s “institutions” intended to protect universalist legal positions, thus distinguishing themselves from the Treue (loyalty) and Gemeinschafts (community) bonds advocated by the völkisch legal thinkers.63 It is true, however, that the mediation of these subjective legal positions through objective legal duties is achieved primarily by the historically contingent processes of political and cultural history. The relationship between personal rights to freedom and “social ethic” duties—between the validity claims of the private legal system on the one hand and the social circumstances that replace and overlay these validity claims on the other—was something that Raiser’s institutional private law was unable to clarify. Franz Wieacker’s social-ethical private law Not only in Raiser was the national element maintained as the resultant of the historically, analytically impenetrable and politically uncontrollable defining foundations of law. It appeared more strikingly, and also more irritatingly, in authors who had been involved in the National Socialist legal innovation and now had to explain their reasons for turning away from formalism. Such clarifications are rare. Instead, there was continued recourse to “life circumstances”, to “their intrinsic meaning and, as it were, autonomous order”, even where these circumstances were no longer called “concrete orders”, but were identified as “the nature of things”.64 As before, “social structures in their own special being”, “duties of loyalty”, “organisms”, and “factual contractual relationships” could be declared the basis of constructions of legal dogmatics: mental exercises that were obviously so familiar that they were often simply handed down and taken over without thinking.65 There remain some truly noteworthy attempts to face up to historical experience with the transformation of classical private law. Franz Wieacker endeav60 See “Rechtsschutz und Institutionenschutz im Privatrecht”, in Summum ius summa iniuria (Tübingen, 1963), p. 145 et seq., p. 146, and earlier: “Vertragsfreiheit heute”, Juristen Zeitung 1958, 1 et seq.; “Vertragsfunktion und Vertragsfreiheit”, in 100 Jahre deutsches Rechtsleben, Festschrift zum 100jährigen Bestehen des Deutschen Juristentags, Vol. I (Karlsruhe, 1960), p. 101 et seq.; “Der Stand der Lehre vom subjektiven Recht im Deutschen Zivilrecht”, Juristen Zeitung 1961, 465 et seq. 61 Entartetes Recht (München ,1988), p. 194. 62 See only R. Wiethölter, “Privatrecht als Gesellschaftstheorie?”, Festschrift Ludwig Raiser (Tübingen, 1974), p. 645 et seq., p. 691 et seq. 63 See only “Der Gleichheitsgrundsatz”, n. 22 above, 86 et seq., 92. 64 K. Larenz, “Wegweiser zur richterlichen Rechtsschöpfung. Eine rechtsmethodologische Untersuchung”, Festschrift Arthur Nikisch (Tübingen, 1958), p. 275 et seq., p. 287. 65 See, in contrast, the polemic against concrete Ordnungsdenken in S. Simitis, Faktische Vertragsverhältnisse (Frankfurt a.M., 1957), p. 27 et seq.
The Science of Private Law and the Nation State 61 oured, in his famous lecture on “the social model of the classical private law legislator and the development of modern society”,66 to reconstruct the intellectual, “national political” and economic preconditions for Pandect science and the German Civil Code (BGB), and—without even mentioning the anti-liberal critique of National Socialism67—derives them from their contrast with social reality and their legal views on the inevitability of a transformation of private law, and the necessity of its adjustment to changed social, political and legal theoretical conditions. His key concept of the law’s “social model” is mediated by positive law with social reality, culture and history. As a historian, he merely reconstructed,68 but did not explicate these mediations to such an extent as to make it possible to follow how an alternative social model appropriate to the present could be designed.69 Instead, he keeps to long-term legal developments in which “a material ethic of social responsibility” is said to be documented,70 only to discover rather unexpectedly the “actual nomos of our legal development” contained within it; legal relationships thus seem “essentially as social functions in accordance with pre-given or contractually adopted responsibilities”.71 “Subordination” in the name of accredited public benefit on the one hand, and “co-operation with mutual relations of obligation and protection, where they are sufficient for the carrying out of social tasks” on the other hand,72—these were (and are) difficult formulations primarily because they do not explain how an allocation of tasks and a demand for “subordination” is to be legitimated.73
3. Omissions The science of private law managed, following the uncertainties of the first postwar years, to adjust to the new political and social reality of the Federal Republic. In so doing it regained a self-confidence which even by the 1950s enabled it once again to treat the definitions of the places and tasks of private 66 F. Wieacker, Das Sozialmodell der klassischen Privatrechtsgesetzbücher und die Entwicklung der modernen Gesellschaft (Karlsruhe, 1953). 67 For another notably terse piece, see F. Wieacker, Privatrechtsgeschichte, n. 31 above, p. 514 et seq. 68 See n. 66 above, p. 4; see F. Wieacker, “Das Bürgerliche Recht im Wandel der Gesellschaftsordnungen”, in 100 Jahre Deutsches Rechtsleben. Festschrift zum 100jährigen Bestehen des Deutschen Juristentags, Vol. II (Karlsruhe, 1960), p. 1 et seq., p. 6: the concept is said to denote “the interdependence between the spirit of a legal order and the structure of its society”. 69 See Sozialmodell, n. 66 above, p. 30; these reservations are not taken seriously in the critique by J. Schmidt, Vertragsfreiheit und Schuldrechtsreform (Berlin, 1985), p. 17 et seq. 70 See n. 66 above, p. 18; and exhaustively, Privatrechtsgeschichte, n. 31 above, p. 516 et seq. 71 See n. 66 above, p. 20. 72 Ibid., 24. 73 It is also irritating that Wieacker singles out none other than Otto von Gierke as the prophet of the new ethos (ibid., pp. 14, 25; though there are reservations in n. 36) although von Gierke’s organicist social conception and his national-conservative, anti-democratic attitudes are inwardly related.
62 Christian Joerges legal theory as a sort of holiday activity not really necessary to the progress of the real tasks of the discipline, namely, the dogmatics of private law. The newly found self-confidence lasted until the mid-1960s, when new debates on the bases of private law began to emerge. The pre-democratic past, dealt with only provisionally in the first post-war years, however, returned onto the stage, too. This happened when Bernd Rüthers initiated a discussion on the “changes in the private legal system under National Socialism”74—and not with the distance of a historian, but as a “problem of the present”.75 He was thus taking up questions which were as unavoidable as they were difficult. Does the National Socialist critique of private law differ from that of the socialist or that of the Welfare State? Did the flexibilisation of legal methodology from Interest Jurisprudence and the Free Law school promote irrational, ideology-prone production of law? Where can the application of law find normatively responsible criteria for decision if it is dependent on trans-legal standards? But all these are not just general problems of legal theory; Rüthers’ questions related to Germany’s legal tradition. If the development of law in general, and of private legal science in particular, can neither be understood intrinsically nor interpreted as determined by external “material” circumstances, then it must have been specific pre-orientations and dispositions that favoured the turn to National Socialism. Private law thinking of the years 1933–1945 could not therefore simply be dismissed as an unfortunate aberration. The link with the traditions established before the seizure of power was just as important as its after-effects, which survived beyond the defeat in 1945. It would, moreover, be important to reconstruct the breaks in tradition that came about under the dominance of National Socialism. For the “fight against the Jewish spirit”76 was after all not just race selection, but also affected methodical, legal and socialcritical approaches in legal science as such. The discussion of all these questions, which was merely postponed in the post-war years, has gathered pace and developed momentum.77 But the fact that all this took place only after a space of decades is in itself a significant historical event.
74 Die unbegrenzte Auslegung—Zum Wandel der Privatrechtsordnung im Nationalsozialismus (Tübingen, 1968). 75 The sub-title of a newer version: “Die unbegrenzte Auslegung”, in U. Davy et al. (eds.), Nationalsozialismus und Recht. Rechtssetzung und Rechtswissenschaft in Österreich unter der Herrschaft des Nationalsozialismus (Wien, 1990), p. 1 et seq. 76 C. Schmitt, “Die deutsche Rechtswissenschaft im Kampf gegen den jüdischen Geist”, Deutsche Juristen Zeitung 1936, 1195 et seq. 77 On the continuity debate, see, most recently, the dispute between R. Alexy, G. Köhler, W. Naucke, H. Rottleuthner, in F.-J. Säcker (ed.), Recht und Rechtslehre im Nationalsozialismus (Baden-Baden, 1992), p. 219 et seq.; on the emigration, see M. Lutter, E.C. Stiefel and M.H. Hoeflich (eds.), Der Einfluß deutschsprachiger juristischer Emigranten auf die Rechtsentwicklung in den USA und in Deutschland (Tübingen, 1993).
The Science of Private Law and the Nation State 63
II . THE DIFFICULT PRIVATE LAW OF THE STAATSBÜRGERNATION : THE DEBATE ON REFORM OF THE CODIFICATION AND THE LEGITIMACY OF STATUTES IN THE REALM OF CODIFIED PRIVATE LAW
Economic historians speak in connection with the formative years of the Federal Republic of the “long fifties”, seeing the economic shifts of 1966/1997 as the end of the period.78 For economic policy and positive commercial law, the reception of Keynesianism and its positive embodiment both in the Constitution and in the 1967 Stabilitätsgesetz (Stabilising the Economy Act) marked a turning point.79 The new economic legislation was perceived within legal science as a fundamental challenge in both material and methodological terms.80 It aroused hopes and fomented fears, which concerned not just economc law and politics: substantively, it was a matter of the economic system’s latent instability, and of the question of whether forms of market failure and situations of social imbalance could also be compensated by legal means, in parallel with the institutionalisation of macro-economic control mechanisms in the micro-economic world of private law relationships. In methodological terms, a fairly paradigmatic turn seemed to be in the offing: the new law based its legal concepts on economic theories; it thus implicitly questioned the autonomy of the legal system, juridified “magical” objectives and made instruments for action available in order to institutionalise situation-related and discretionary optimisation strategies. References to economic and social problems, diffuse and open objectives, and the need for coordination of clashing objectives—all these new problems did not concern private law directly but were of fundamental significance. In the late 1960s, a new discussion started, the objects of which often changed, but which never fully died down. The point always turned around the traditional “universalism” and national (welfare-state) “particularism” of modern private law: around its normative autonomy and its de facto dependencies, around mediations between social objectives and objectively necessary functional requirements. Three phases of these debates can be distinguished. The first still widely used an already familiar terminology. On the one hand, there were calls—in the wake of the controversies of the 1950s regarding the economic constitution and the relation between the rule of law and the Welfare
78 W. Abelshauser, Die Langen Fünfziger Jahre, n. 12 above, p. 69 et seq.; on the plausibility of and problems with this periodisation see K. Borchardt, “Zäsuren in der wirtschaftlichen Entwicklung. Zwei, drei oder vier Perioden?”, in M. Broszat (ed.), Zäsuren nach 1945. Essays zur Periodisierung der deutschen Nachkriegsgeschichte (München, 1990), p. 21 et seq. 79 For more details, see the article by F. Kübler in D. Simon, n. 00 above, p. 364 et seq., p. 375 et seq., and G. Brüggemeier, Entwicklung des Rechts im organisierten Kapitalismus, Vol. 2 (Frankfurt a.M., 1979), p. 441 et seq. 80 For a critical summary, see J. Gotthold, Wirtschaftliche Entwicklung und Verfassungsrecht (Köln, 1975), p. 115 et seq.
64 Christian Joerges State81—programmatically for a Welfare-State type of private law to supplement or replace market processes;82 on the other hand, there was a sequence of theoretical revisions of paradigmatic extent within the ordoliberal tradition.83 The discussion took on a new quality through differentiations within the spectrum of arguments on a sociological, legal-theoretical and/or interdisciplinary basis: from endogenous, self-critical revisions of Welfare-State programmes, leading, in the 1980s, to an intensive debate on juridification processes and new legal concepts,84 but also from the discovery and importation of American approaches.85 A third stage emerged with the identification of the “risk society”,86 the material, theoretical and methodological problems of which were now beginning to be felt even in private law—the normative autonomy of private law and the validity of its cognitive and decisional procedures were facing new challenges.87 All these debates around the interventionist, welfarist, paternalist, caring and now environmentalist ambitions of the nation-state, which were constantly developing, withdrawing and modifying new control techniques, never took place in a vacuum. In the reform phase of the 1960s and 1970s, the connections between state functions, substantive private law and its methodology seemed very clear.88 Even the juridification debate that started after the disappointment regarding the performance of interventionist law was able to show its practical relevance.89 It was easy to foresee that the problems of the risk society would inevitably concern not just liability law but practically every basic category of 81 See E. Forsthoff, “Verfassungsprobleme des Sozialstaats”, in idem (ed.), Rechtstaatlichkeit und Sozialstaatlichkeit (Darmstadt, 1968), p. 154 et seq.; W. Abendroth, “Zum Begriff des demokratischen und sozialen Rechtsstaates im Grundgesetz der Bundesrepublik Deutschland” (1954), in idem, Antagonistische Gesellschaft und politische Demokratie (Neuwied-Berlin, 1967), p. 109 et seq. 82 See section I above, and for more details the references in Ch. Joerges, “Politische Rechtstheorie and Critical Legal Studies”, in idem and D. Trubek (eds.), Critical Legal Thought: An American-German Debate (Baden-Baden, 1989), p. 597 et seq., p. 612 et seq.; also idem, “Politische Rechtstheorie: Impulse und Suchbewegungen”, Kritische Justiz, 1989, 184 et seq., 186 et seq. 83 See section II 2 below. 84 See G. Teubner, “Reflexives Recht. Entwicklungsmodelle des Rechts in vergleichender Perspektive”, (1982) 69 Archiv für Rechts- und Sozialphilosophie, 13 et seq.; R. Wiethölter, “Materialisierungen und Prozeduralisierungen von Recht”, in G. Brüggemeier and Ch. Joerges, Workshop zu Konzepten des post-interventionistischen Rechts (Bremen, 1984) (ZERP Mat. 4), p. 25 et seq.; for more details on the relationship with the previous state of the debate, see Ch. Joerges, “Politische Rechtstheorie”, n. 82 above, 627 et seq. 85 See H.-D. Assmann, Ch. Kirchner and E. Schanze, Ökonomische Analyse des Rechts (Kronberg/Ts., 1978) and also n. 176 below. 86 U. Beck, Risikogesellschaft (Frankfurt a.M., 1986). 87 A pioneer in this turn towards questions of the environment and of risk was E. Rehinder, G. Burgbacher and R. Knieper, Die Bürgerklage im Umweltrecht (Berlin, 1972). On the paradigmatic importance of these themes for the private legal system, see W. Fikentscher, Die umweltsoziale Marktwirtschaft als Rechtsproblem (Karlsruhe, 1991). 88 See E. Steindorff, “Politik des Gesetzes als Auslegungsmaßstab im Wirtschaftsrecht”, Festschrift Karl Larenz (München, 1973), p. 217 et seq.; idem, “Wirtschaftsordnung und Steuerung durch Privatrecht?”, Festschrift Ludwig Raiser (Tübingen, 1974), p. 621 et seq. 89 See F. Kübler (ed.), Verrechtlichung von Wirtschaft, Arbeit und sozialer Solidarität. Vergleichende Analysen (Baden-Baden, 1984).
The Science of Private Law and the Nation State 65 private law. However, the relationship between the new fundamental discussions on private law theory and private law is a chapter of its own. It is connected with the context and style of the relevant contributions. The late 1960s and early 1970s were characterised by the student revolt and the reform of legal education. Thus, all the critics of mainstream legal conceptions encountered a resistance, which did not pay much attention to the differences between the various critical strands of thought.90 In the second round of the debate, the downright esoteric presentation of new legal concepts was evidently experienced as pure arrogance in comparison with normal science.91 Such conditions are inherent in the academic life; they obstructed, but did not paralyse, the debate. Testimony to this statement is corroborated by the academic and political efforts to reform the codification of private law.92 Over time, the debates surrounding the need to renew the German Civil Code (BGB) spread over all the stages of the recent fundamental debate. In substance, they first came under banner of the reform movements of the 1960s and 1970s ( section 1 below), they then led to a renewal of the debate on the political autonomy of private law and the legitimacy of legislative interventions (section 2 below). The practical solutions of the dispute, which were far from confirming all the original hopes or fears, can be interpreted as a normalisation of the relationship between legal science, judicial authority and legislation in a democratic constitutional state. A new equilibrium has been established, to which the proponents of traditional and interventionist paradigms had to adapt (section 3 below).
1. The context of private law The changing titles under which the fate and future of the BGB were discussed reflect the different moods of various periods in history. In speeches and articles on the fiftieth anniversary of the BGB, the codification was seen in comparison with the preceding shocks to “legal sense and legal certainty” as giving stability and guidance: “The gradual regaining of these substantive legal values is fundamentally facilitated by the availability of the earlier fixed civil-law platform”, on which the “tried and tested tradition of civil-law systematics and dogmatics” could be continued and “carefully and steadily” adapted to the “requirements of present and future”.93 Admittedly, Hans-Georg Isele dubiously added: changes 90 See the survey in H. Rottleuthner, Rechtswissenschaft als Sozialwissenschaft (Frankfurt a.M., 1973); idem, Richterliches Handeln (Frankfurt a.M., 1973). 91 See A. Heldrich, “Die Bedeutung der Rechtssoziologie für das Zivilrecht”, (1986) 186 Archiv für die civilistische Praxis, 74 et seq., 76, 101 et seq. 92 The choice of this example is to be explained from the theme of this chapter and its intention as a contribution to a report on the history of private law. 93 H.-G. Isele, “Ein halbes Jahrhundert deutsches Bürgerliches Gesetzbuch”, (1950) 150 Archiv für die civilistische Praxis, 5, 25; similarly, H. Dölle, “Das Bürgerliche Gesetzbuch in der Gegenwart” in H.C. Nipperdey (ed.), Fünfzigjahrfeier des deutschen Bürgerlichen Gesetzbuches
66 Christian Joerges in the “economic and social substructure and the economic and social constitution” have basically affected the “inner structure of the German Civil Code, the guidelines of its systematic picture, the pattern of its dogmatics and the mode of action of its judicature”.94 Franz Wieacker’s assessment95 reads somewhat differently: it was not just the “Mephistophelean spirit” of the legislative State, but the transformation of the classical State under the rule of law into a Welfare State that had forced a “social law” reshaping of private law, even though the new legislator evidently lacked the strength for another codification.96 The economically successful “long fifties” had to pass before Wieacker’s realistically sombre prophecies were taken seriously, in the “time for a change” mood of the late 1960s. Friedrich Kübler, in particular, in a series of essays with a historical and legal-theoretical orientation, developed all the facets of the codification problems from modern and reformist viewpoints.97 The encrustation of the codification with individual enactments related to problems and situations is seen as a world-wide, rather than a Federal German, development;98 the legislator’s inability to deal with complex social conflict situations according to a comprehensive, unitary regulatory pattern was not the index of crisis but corresponded to the plurality of socio-political regulatory conceptions, the forms for the settlement of conflicts in democratic systems.99 The “fragmentary and periodic style” of legislation was similarly part of the “normality of a democratically constituted industrial society”100 as was the revisability of all legislative enactments and the involvement of justice in the settling of economic and social differences of interest. In order to grasp all this, the science of private law needed new sociological and legal-theoretical explanatory models that could fit representative democracy.101 Although these points did not go unheeded,102 the response they brought was sometimes rather shrill. (Tübingen, 1950), p. 14 et seq., p. 21 (“today we must hold, first and foremost, to what we have, for we can believe that as before we can thereby master the tasks facing us, as long as we understand how to use wisely the instrument that has been given us”); along with this, see the assessment of the first “national codification”, which “on the whole stands up” though “like any other work of man, it can and must be improved”; see W. Kirsch, “Fünfzig Jahre Bürgerliches Gesetzbuch”, Neue Juristische Wochenschrift 1950, 1 et seq. 94 See n. 93 above, 26 et seq. 95 Aufstieg, Blüte und Krise der Kodifikationsidee, Festschrift Gustav Boehmer (Bonn, 1954), p. 35 et seq. 96 Ibid., p. 49 et seq. 97 “Der deutsche Richter und das demokratische Gesetz”, (1963) 162, Archiv für die civilistische Praxis 104 et seq.; “Kodifiktion und Demokratie”, Juristen Zeitung 1969, 645 et seq. (hereinafter: “Codification”); “Amt und Stellung des Richters in der Gesellschaft von morgen”, Deutsche Richterzeitung 1969, 379 et seq. (hereinafter: “Judge”); “Privatrecht und Demokratie”, Festschrift Ludwig Raiser (Tübingen, 1974), p. 715 et seq. (hereinafter: Private Law); Über die praktischen Aufgaben zeitgemäßer Privatrechtstheorie (Karlsruhe, 1975) (hereinafter: Tasks). 98 Codification, n. 97 above, 647. 99 Judge, n. 97 above, 381, 383. 100 “Codification”, n. 97 above, 651; see “Private Law”, n. 97 above, 721. 101 “Private Law”, n. 97 above, 719; see Tasks, n. 97 above, p. 42 et seq. 102 See J. Esser, “Gesetzesrationalität im Kodifikationszeitalter und heute”, in: H.-J. Vogel and J. Esser, 100 Jahre deutsche Justizbehörde. Vom Reichsjustizamt zum Bundesministerium der Justiz (Tübingen, 1977), p. 13 et seq.
The Science of Private Law and the Nation State 67 Kübler stressed that a social model appropriate to the new circumstances of the constitutional state could not rely upon the current liberal or social-state concepts.103 Nevertheless, the bridging concept of the social model had to be understood as a call to attribute substantive normative importance to the theoretical, sociologically oriented reconstruction of the social functions of private law itself.104 This attempt corresponded in methodological terms to the multiplicity of attempts, following upon Franz Wieacker, to set up, against classical formal law and the ordoliberal private law society, an alternative social model of private law:105 compensatory economic law,106 a substantive constitutional theory of the social state107 or even a systematic explication of the extra-legal background assumptions demonstrable in legal development itself.108 For all these reasons, the new codification debate was objectively connected with the reform movement of the social-liberal era which was committed to the project of a social-state transformation of the private law society—even, and especially, for those who could only imagine bringing about reforms through the use of problem-related special statutes.109 2. In defence of private law The legitimising basis for all the calls for legislative intervention into the codification was simply the new democratic constitution. When the new legislative activism aroused the suspicion that democratic majority rules might erode the legal basis of the market-economy system, it became insufficient for its proponents to content themselves with “pragmatic” grounds against the demand for reform—the debate now became more fundamental. Pre-political private law Werner Flume, following his rehabilitation of formalism in private law,110 in his closing lecture at the 46th Deutscher Juristentag (Congress of German 103
“Private Law”, n. 97 above, 719. See J. Habermas, Faktizität und Geltung (Frankfurt a.M., 1992), p. 474 et seq. 105 For an encyclopaedic and analytical account, see H.-D. Assmann, Wirtschaftsrecht in der Mixed Economy (Königstein/Ts., 1980). 106 N. Reich, Markt und Recht (Neuwied-Darmstadt, 1977), p. 64 et seq. 107 R. Wiethölter, “Thesen zum Wirtschaftsverfassungsrecht”, in W. Abendroth et al., Der Kampf um das Grundgesetz. Über die politische Bedeutung der Verfassungsinterpretation (Frankfurt a.M., 1977), p. 158 et seq.; G. Brüggemeier, “Privatrechtstheorie als Aufgabe”, (1978) 64 Archiv für Rechts- und Sozialphilosophie, 87 et seq. 108 See D. Hart, Allgemeine Geschäftsbedingungen und Justizsystem (Kronberg, 1975); Ch. Joerges, Bereicherungsrecht als Wirtschaftsrecht (Köln, 1977). 109 See R. Damm, “Verbraucherrechtliche Sondergesetzgebung und Privatrechtssystem”, Juristen Zeitung 1978, 173 et seq. 110 See section I 1 above, and W. Flume, “Rechtsgeschäft und Privatautonomie”, in 100 Jahre deutsches Rechtsleben, Festschrift zum 100jährigen Bestehen des Deutschen Juristentags, Vol. I (Karlsruhe, 1960), p. 13 et seq.; idem, Allgemeiner Teil des Bürgerlichen Rechts. Vol 2., Das Rechtsgeschäft (Berlin-Heidelberg-New York, 1965). 104
68 Christian Joerges Lawyers),111 formulated the positions of historically operating legal science visà-vis the “newer viewpoints” in full clarity: one must distinguish between questions “determined by law” and those “not of a legal nature in their core, but serving non-legal objectives”. Only for the former was the “lawyer as such” competent, while the latter called for “ethical, political and economic considerations” in relation to which the lawyer had “only the same competence as any citizen”.112 The lawyer as such remained dependent on his cognitive resources and tied to them.113 On this ground, he was not entirely incapable of making new law, even of an “amending” variety. His historical and legal profession enabled and entitled him to consider the development of law as a whole, and state what could be built as law.114 Flume’s followers developed the legislative policy content of these statements implicitly in the ensuing period in monographic studies on the material contributions, and explicitly in historical legal-theoretical articles.115 The distinction between law as such and non-legal objective questions, identified a gap between law and politics that was unbridgeable, and could not even be successfully bridged by legislative policy itself,116 for the law was formed not in the sphere of politics at all, but in the consciousness of “the people”. Just because the legislator of the BGB had not behaved as a political actor, having understood the codification more as a cognitive task and, as such, left its elaboration to true scholarship, we should even today not hesitate to call the codification that resulted the best “of all conceivable codifications at the present time”,117 and hence maintain it. In regard to what was really essential in forming the law, both the legislative capacity and the contribution of the judiciary to the finding of law seemed “en quelque façon nul”. A fortiori, excursions into foreign disciplines by lawyers who do not adhere to their own criteria can only lead to error; anyone not content to “rely for pre- and meta-juridical values on his own sphere” was betraying his vocation.118 Given and spontaneous orders While historical legal science did not allow its conception of private law to be affected by the appearance of a democratically legitimated legislator, for 111
Richter und Recht, n. 27 above. Ibid., pp. 18 and 26. 113 Ibid., p. 29. 114 Ibid., p. 21 et seq. 115 See, also, W. Flume’s own re-statement: “Die Problematik der Änderung des Charakters der Großen Kommentare”, Juristen Zeitung 1985, 470 et seq., 471–473. 116 H.H. Jakobs, Wissenschaft und Gesetzgebung, n. 6 above, pp. 47, 61. 117 Ibid., 160. 118 E. Picker, “Vertragsfreiheit und Schuldrechtsreform”, Juristen Zeitung 1988, 343 et seq., 343; for another view on all this, see R. Ogorek, “Volksgeist Spätlese”, (1985) 4 Rechtshistorisches Journal 3 et seq.; see, also, Ch. Joerges, “Die Überarbeitung des BGB-Schuldrechts, die Sonderprivatrechte und die Unbestimmtheit des Rechts”, Kritische Justiz 1987, 166 et seq, 177 et seq. 112
The Science of Private Law and the Nation State 69 Ordoliberalism, it was important to reconcile its critique of a pre-politically neutral interpretation of private law and its defence of an irrevocable Ordo with the “supremacy” of the new constitution.119 This was done in the theory of the “private law society”, developed programmatically by Franz Böhm in a seminal article, dating from 1966.120 In those years, Ordoliberalism had finally become the most important academic tendency, dominating not just economic law and the law of corporate governance but also private law theory.121 The account of its private law content is due, however, not so much to Franz Böhm himself as to his pupils, especially Ernst-Joachim Mestmäcker, who worked out most thoroughly the general social-theoretical bases of the renewed Ordoliberalism122 and their significance for legal dogmatics: although private law could not claim constitutional rank, what it could claim, however, was a pre-constitutional validity. Between the rule-of-law constitutional order, which was based on the system of undistorted competition on the one hand and private law on the other, there was a mutual interaction, a relationship of reciprocal dependency which had to be respected in order to do proper justice to the implied institutional content of private law.123 From this viewpoint, the legislator’s creative freedom was after all limited by law—partly and directly by fundamental-rights limitations or precepts, and secondly and indirectly by those “objective laws” that commanded an institutional interpretation of private law as the “keystone of the overall political constitution”124 and a corresponding treatment of its institutions.125 The fundamental constitutional status of private law was redesigned and was given a new basis together with the fundamental revision of the ordoliberal tradition by a turn to a Hayekian inspired Ordnungstheory in the early 1970s. Ordoliberalism had originally understood the private law society as a static system underpinned by basic constitutional decisions and stabilised by legal controls.126 This starting point was abandoned in response to F.A. von Hayek’s
119
See section I 2 above. F. Böhm, “Privatrechtsgesellschaft und Marktwirtschaft”, (1966) 17 Ordo 75 et seq.; see, also, R. Wiethölter, “Franz Böhm”, n. 41 above, 233 et seq. 121 All the same (see n. 12 above), a distinction has to be drawn between theory, the practice of normal science and economic policy; see, also, W. Fikentscher, Wirtschaftsrecht, Vol. 2. Deutsches Wirtschaftsrecht (München, 1983), p. 40 et seq., p. 44 et seq. 122 See his collected volume Recht und ökonomisches Gesetz (Baden-Baden, 1978), esp. “MachtRecht-Wirtschaftsverfassung” (1972), 11 et seq. 123 “Die normative Kraft privatrechtlicher Verträge”, Juristen Zeitung 1964, 441 et seq.; “Wettbewerbsrecht und Privatrecht”, (1968) 168 Archiv für die civilistische Praxis, 247 et seq.; “Das Verhältnis des Rechts der Wettbewerbsbeschränkungen zum Privatrecht”, Der Betrieb 1968, 787 et seq., 853 et seq.; see, also, n. 46 above. 124 A formulation by F. Böhm, “Verstößt ein gesetzliches Kartellverbot gegen das Grundgesetz?”, Wirtschaft und Wettbewerb (1956), p. 173 et seq., p. 187. 125 E.-J. Mestmäcker, “Wirtschaft und Verfassung. Zu dem Buch von Horst Ehmcke mit demselben Titel (1964)”, in Recht und ökonomisches Gesetz (n. 122 above), p. 65 et seq., p. 71 et seq. 126 See only W. Eucken, “Die Wettbewerbsordnung und ihre Verwirklichung”, (1949) 2 Ordo 1 et seq. 120
70 Christian Joerges theory of “spontaneous orders”.127 This was a revision of paradigmatic extent,128 because now the legal constitution of the market economy was no longer seen as a fixed regulatory framework but, instead, the competitive process was seen as a discovery procedure in which orders were formed “spontaneously” from the upholding of freedoms under general rules. The proper legal delimitation of conduct conforming with competition from that conflicting with it according to competition rules, accordingly, can and should not be oriented “constructivistically” to desired situations, but instead handed over to a “discovery procedure of adjudication”.129 It is then only consistent to declare not just all the “constructivist” ambitions of economic law, but also, a fortiori, all the social and redistributive intentions of private law, to be practically devoid of prospects and normatively wrong. Thus, the new version of systems theory led back to the very paradox that had led Ludwig Raiser in 1946 to call for the consideration of viewpoints of material justice in fleshing out the equality precept in private law.130
3. Some realism about private law The legislative and judicial interpretation did not join the views of historical legal science, nor comply with the natural laws advocated by Ordoliberalism, nor exercise the restraint recommended by the (revised) ordnungs-theory. In the social-liberal era, the legislative state developed considerable activities by way of consumer policy programmes, which, in the 1970s, also embraced private law and, if the 1976 AGBG (Act on Standardised Terms) can be considered here,131 had considerable effects.132 On the whole, this legislation was fully in line 127 See, for example, F.A. von Hayek, “Recht, Gesetz und Wirtschaftsfreiheit”, in idem: Freiburger Studien (Tübingen ,1969), p. 47 et seq. 128 For an exhaustive portrayal of the dogmatic history, see M.E. Streit, “Economic Order, Private Law and Public Policy. The Freiburg School of Law and Economics in Perspective”, (1992) 148 Zeitschrift für die gesamten Staatswissenschaften/Journal of Theoretical and Institutional Economics 675 et seq. 129 See E. Hoppmann, Fusionskontrolle (Tübingen, 1972), p. 59 et seq. 130 See section I 2 above. 131 The question in perhaps the most intensive dispute about the AGBG was whether protection against general terms of business was a consumer issue and its personal sphere of application correspondingly to be delimited. The view that prevailed was following the decisive plea by P. Ulmer (in his report to the 50th Deutscher Juristentag (“What measures can be recommended to protect the final consumer against general terms of business and formular contracts?”), Vol. II (München, 1974), H 8 et seq., 21 et seq.)—to link up with the offence of “unilaterial preformulation”, which led to the inclusion of business transactions in AGB controls, though the “non-businessman” was granted a different need for protection. The report by H. Kötz (ibid., Vol. I, A 5 et seq.) had treated the issue of consumer protection more pragmatically—the very path later taken by the case law on the AGBG in relativising the importance of the dispute in principle as to the protective objective of AGB controls. 132 For a survey, see Eike von Hippel, Verbraucherschutz, 3rd edn. (Tübingen, 1986); systematically, N. Reich and H.-W. Micklitz, Verbraucherschutzrecht in der Bundesrepublik Deutschland (New York-Cincinnati-Toronto-London-Melbourne, 1980).
The Science of Private Law and the Nation State 71 with the picture previously sketched of it by Kübler: it was problemoriented; its justifications were permeated by a rhetoric that conveyed ordnungspolitische reservations and pragmatic arguments; it brought in new types of procedures that could not have been created by case law;133 it took up obvious, more or less important, grievances in particular areas of business and imposed on those concerned a more or less displeasing discipline;134 partly the point was merely to round off developments already legitimated by the case law;135 sometimes, important social and political interests were taken up.136 Consideration for, and references to, the case law are part of the normality in this legislation. Even where genuine innovations were brought in, this came about with the awareness that the case law would have to flesh them out, test the generalisability of new rules and principles and, where necessary, restrict the significance of the new law. All these descriptions are translations of a typology developed by Guido Calabresi for the Statutory Law of the USA.137 This may limit the accuracy of the classifications, but shows that the German legislator was not doing anything unusual to private law. What was unique was more the response to this action. On the one hand, the consumer-policy-motivated special statutes were seen as a threat to the “unity” of private law and “the consumer protection idea . . . (as) not even adequately discussed beforehand, eminently to do with legal policy and a postulate that, in some respects, even burst the bounds of the system”.138 On the other hand, protection for the consumer counted as the most important interest of a social law of obligations.139 One who was personally involved in these debates140 can hardly lay aside his biases. Even retrospectively, the question of the conditions for the “unity” of private law in the age of its materialisation 133 The amendments to the law on unfair competition (UWG) of 1965 (§ 13 para, 1a), 1969 (§ 13 para. 1a, para. 2 and 3) and 1986 (§ 13 a); §§ 13 et seq. AGBG 1976. 134 The amendments to the AbzahlungsG (Hire-Purchase Act) 1969 and 1974; to the MaklerG (Estate Agents Act) 1972, the FernunterrichtschutzG (Correspondence Courses Act) 1976. 135 ReisevertragsG (Travel Tour Contracts Act) 1979 (§§ 651 [a]–[k] BGB). 136 MieterschutzG (Protection of Tennants Act) 1971 et seq. 137 G. Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass.-London, 1982), p. 72 et seq. 138 Thus, M. Lieb, “Grundfragen einer Schuldrechtsreform”, (1983) 183 Archiv für die civilistische Praxis, 327 et seq., 349; cf. idem, “Sonderprivatrecht für Ungleichgewichtslagen?”, (1978) 178 Archiv für die civilistische Praxis, 196 et seq, and in parallel with that the call for a reintegration of consumer protection law into an “information model” that would conform with the system and with market rationality in B. Dauner-Lieb, Verbraucherschutz durch Ausbildung eines Sonderprivatrechts für Verbraucher. Systemkonforme Weiterentwicklung oder Schrittmacher der Systemveränderung? (Berlin, 1983). 139 See N. Reich, “Zivilrechtstheorie, Sozialwissenschaft und Verbraucherschutz”, Zeitschrift für Rechtspolitik 1974, 187 et seq; idem, Markt und Recht (Neuwied-Darmstadt, 1977); U. Reinoteer, Alternatives Wirtschaftsrecht am Beispiel der Verbraucherverschuldung: Realitätsverleugnung oder soziale Auslegung im Zivilrecht (Neuwied-Darmstadt, 1979). 140 D. Hart and Ch. Joerges, “Verbraucherrecht und Marktökonomik: Eine Kritik ordnungstheoretischer Eingrenzungen der Verbraucherpolitik”, in H.-D. Assmann, G. Brüggemeier, D. Hart and Ch. Joerges, Wirtschaftsrecht als Kritik des Privatrechts. Beiträge zur Privat- und Wirtschaftsrechtstheorie (Königstein, 1980), p. 83 et seq.; Ch. Joerges, Verbraucherschutz als Rechtsproblem (Heidelberg, 1981).
72 Christian Joerges seems to me to be an appropriate designation for the object of the dispute.141 The special legislation did not mean simply statist or paternalist tutelage. It could also be seen as a guarantee of the preconditions for autonomous action. It was accordingly not a special development but, in the special form of a special statute, was in line with developments characterising private law at all levels and in all spheres—which cannot mean that legislation succeeded always convincingly in mediating between “freedom and constraint”.142 At the time, Hans-Peter Westermann gave probably the most sober analysis of the universality of the phenomenon of a development of private law differentiated according to subject areas and problem situations.143 But the announcements of an ambitious legislative policy recourse to the BGB’s law of obligations by the Social Democratic justice ministers Vogel and Schmude did not, up to the end of the 1970s, fit into this picture of the generality and necessary differentiation of special private law, nor into the one Kübler portrayed of modern private law legislation.144 Consequently, what was announced did not amount to the design of a new system but rather to a reregulation and modernisation of the typology of contracts, a reintegration of special acts, in short, a code which—as Otto von Gierke had once demanded— would be “deeply enough founded and high enough vaulted” to be able to include even social concerns “in its intellectual structure”.145 The ministry had involved many academics early on in its project, by issuing no less than initially fourteen, and later twenty-four, requests for expert opinions. The reporters gave re-statements on their spheres of work that filled three thick volumes.146 After two meetings of the Society of Teachers of Civil Law devoted to these findings,147 a Committee on the Law of Obligations composed of academics and academically trained practitioners was given the remit of “giving comprehensible, contemporary form to the general Law on Default in Performance, the Law of Warranty in Purchase and Work Contracts and the Law of Limitations, taking account, in particular, of the findings of practice”. In 1992, the outcome of the discussions became available.148 141 See Ch. Joerges, “Der Schutz des Verbrauchers und die Einheit des Zivilrechts”, Die Aktiengesellschaft 1983, 57 et seq. 142 F. Kessler, n. 26 above. 143 “Sonderprivatrechtliche Sozialmodelle und das allgemeine Privatrecht”, (1978) 178 Archiv für die civilistische Praxis, 150 et seq. 144 H.-J. Vogel, Gustav Radbruch—Ein Rechtsdenker und Rechtspolitiker der deutschen Sozialdemokratie (Bonn, 1978); J. Schmude, “Schuldrechtsüberarbeitung—Eine Herausforderung an den Gesetzgeber”, Neue Juristische Wochenschrift 1982, 2017 et seq.; and, in the same direction, by the relevant ministerial official A. Wolf, “Weiterentwicklung und Überarbeitung des Schuldrechts”, Zeitschrift für Rechtspolitik 1978, 249 et seq., and again idem, “Die Überarbeitung des Schuldrechts”, (1982) 182 Archiv für die civilistische Praxis 80 et seq. 145 O. von Gierke, Die soziale Aufgabe des Privatrechts (Berlin, 1889), p. 17. 146 Gutachten und Vorschläge zur Bearbeitung des Schuldrechts, Vols. I, II (Bundesminister der Justiz, Bonn, 1981); Vol. III (Bonn, 1982). 147 (1992) 192 Archiv für die civilistische Praxis, 80–125; (1983) 183, 327–607. 148 Abschlußbericht der Kommission zur Überarbeitung des Schuldrechts (Bundesminister der Justiz, Bonn, 1992); in parallel, see the contributions by W. Rolland, D. Medicus, L. Haas, D. Rabe, Neue Juristische Wochenschrift 1992, 2377–2400.
The Science of Private Law and the Nation State 73 The finding of the project in fact corresponds with Kübler’s diagnosis from 1969. This outcome is instructive in many respects. Not only has the legislator learned his lesson, but scholarship has, too. Those who had called for the reform to remain “conceptually a matter for dogmatic legal science”,149 now saw themselves confronted with thoroughly substantial, even detailed, proposals for corrections at which the case law had not managed to arrive. But scholarship had also normalised its relationship to the so-called special statutes.150 In any case, objections in principle to the “fragmentation” of private law had never stopped the differentiation of ever-new rules on the fine-tuning of private trade, on the mediation between binding norms and private, autonomous freedoms of development.151 The legislative technique of “special legislation” likewise continued.152 And both the legislative and legal scholars had acquired an easier relationship with judge-made law. It can be seen that the case law is not confined to the application of previously given rules; nor does it operate in full autonomy, but is exposed to a continuing discourse with interested parties, experts and dogmaticists—and remains legislatively correctable. Is, then, the course of the codification debate a confirmation that private law and democracy have become reconciled? The legitimacy and rationality of the interplay of legislation, case law, scholarship and political public will continue to concern private law science. The dispute over the question of whether one has to focus on the law’s self-reproduction,153 or whether the interplay of parliamentary legislation and non-parliamentary production of law is to be understood as a system of institutions in need of legitimation,154 will continue. In this dispute, the point is always about the justifications for the validity claims of private law and its universalisability and this concern has gained added relevance for legal theory as the progress and pace of integrating Europe has accelerated.
149 U. Diederichsen, “Zur gesetzlichen Neuordnung des Schuldrechts”, (1982) 182 Archiv für die civilistische Praxis, 101 et seq., 105. 150 See H.-P. Westermann, “Verbraucherschutz”, in Gutachten, Vol. III, n. 146 above, p. 1 et seq., with references. 151 See only the article directly following M. Lieb’s basic paper, n. 138 above, by H.-J. Mertens, “Deliktsrecht und Sonderprivatrecht—Zur Rechtsfortbildung des deliktischen Schutzes von Vermögensinteressen”, (1978) 178 Archiv für die civilistische Praxis, 227 et seq. 152 HaustürwiderrufsG (Doorstep Selling Act) 1986; ProdukthaftungsG (Product Liability Act) 1989; VerbraucherkreditG (Consumer Credit Act) 1990; UmwelthaftungsG (Environmental Liability Act) 1990; on the influences from European law and subsequent further regulations see section III 3 below; also, the retrospective survey in D. Hart and W. Köck, “Zum Stand der Verbraucherrechtsentwicklung”, Zeitschrift für Rechtspolitik 1991, 61 et seq. 153 See G. Teubner, “Ist das Recht auf Konsens angewiesen? Zur sozialen Akzeptanz des modernen Richterrechts”, in H.-J. Giegel (ed.), Kommunikation und Konsens in modernen Gesellschaften (Frankfurt a. M., 1992), p. 197 et seq. 154 See R. Wiethölter, “Zum Fortbildungsrecht der (richterlichen) Rechtsfortbildung: Fragen eines lesenden Recht-Fertigungslehrers”, (1988) 3 Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 1 et seq., and for American law Ph. Selznick, n. 4 above, p. 450 et seq.
74 Christian Joerges III . BEYOND THE NATION - STATE : EUROPEAN INTEGRATION AND PRIVATE LAW
The Europeanisation of private law is a current process but it concerns not just the present and future of private law because the readiness, in principle, to abandon national statehood in favour of European unification was present throughout the whole history of the Federal Republic. It found expression in the Constitution itself, in generally accepted political orientations and in the political culture. All this is more than comprehensible given the historical experience with the German nation-state. However, the sacrifice of national statehood in favour of European institutions also always meant a loss: not just an erosion of a “sovereignty” that was, in any case, imperfect, but also a limitation on the validity claims of the new democratic institutions. Alongside this dilemmatic mediation between the internal democratisation of the nation-state and its political domestication in external relationships, the decision in favour of integration was associated with realistic insights into economic dependencies and economic policy necessities; the decision in favour of Europe came from a response to the internationalisation of the economy and a decision in favour of opening up the national economy.155 If, accordingly, the option in favour of European unification can be explained from the Federal Republic’s initial position, it nonetheless involved original and continuing problems of national statehood that had long been known. With the merciless clarity typical of him, Max Weber formulated these problems in his Freiburg inaugural address—a year before the proclamation of the BGB: “And the nation-state is for us not an indefinite something that one feels one can place all the higher the more its essence is shrouded in mystical gloom, but the worldly power organisation of the nation, and in this nation-state is raison d’état for us, the ultimate value criterion on economic considerations too. It does not mean to us, as a strange misunderstanding believes: ‘state assistance’ instead of ‘self-help’, national regulation of economic life instead of the free play of economic forces, but we want, through this slogan, to raise the demand that for questions of German national economic policy—including the question whether and how far the State should interfere in economic life or whether and when it ought instead to set the nation’s economic forces free to develop themselves and tear down restraints on them—in the individual case the last and decisive vote ought to go to the economic and political power interests of our nation, and its bearer, the German nation-state.”156
A nasty pronouncement, as Weber later admitted.157 But the speech’s content cannot be deduced from its national tone alone. Weber was carrying on a debate 155 Very early, see A. Müller-Armack, “Zur Diagnose unserer weltwirtschaftlichen Versorgungslage (1947)”, in E. Tuchtfeld and E. Dürr (eds.), n. 13 above, p. 66 et seq., also section III 2 below. 156 “Der Nationalstaat und die Volkswirtschaftspolitik”, in Max Weber, Gesammelte Politische Schriften, 3rd edn. (edited by J. Winckelmann, Tübingen, 1971), p. 1 et seq., p. 14 et seq. 157 See the references in W.J. Mommsen, Max Weber und die deutsche Politik 1890–1920, 2nd edn. (Tübingen, 1974), p. 40; W. Schluchter, Religion und Lebensführung, Vol. 1 (Frankfurt a.M., 1988), p. 33.
The Science of Private Law and the Nation State 75 with the economic wisdom of his time. He was turning against the ethiconormative position of the historical school of national economics and holding his value judgement theory up against it. The economy was treated by Weber— as even the passage cited shows—as an international phenomenon, and recognition of this internationality was, for him, beyond question. But economic policy decisions, his economic theoretical message stated, are to be counted as value judgements and justified accordingly. Weber’s option for the “power interests of our nation and its bearer, the German nation-state” as a criterion of national economic policies was a plea in favour of the demoralisation of politics, for a political realism that, on the one hand, did not wish to believe in the reconciliation between “cosmopolitanism and the nation-state”158 but, at the same time, also turned away from ethno-cultural exaltations of the national idea.159 Those who maintain their distance from Weber’s value criterion must, nonetheless, take his diagnosis seriously. This diagnosis says that the economy is internationalising, but for the solving of the economic and social problems of society only the organisational and political unity of the nation-state is available; that the internationalisation of the economy is to be recognised, but also to be understood as a problem for policy. This diagnosis, however, fits the Federal Republic’s initial situation just as much as its present-day position.160 It also concerns private law. The internationalisation of the economy calls for corresponding legal institutions. The building up of such institutions is a political and institutional challenge to the democratic constitutional state, which cannot evade the responsibility for economic and social problems, and is committed to rule-of-law, and democratic procedures for solving problems. Private law is completely predestined by its core institutions and universalistic principles to be the bearer of the internationalisation process of economy and the law, but the legitimacy of those “post-formal” contents that constitute the regulatory and justicial content of modern private law are, to date, owed to nation-state institutions. If internationalised private law is to replace national law, then it has to take over its regulatory functions, show its own legitimacy, and harmonise its validity claims with the constitutional state’s political constraints on action. All this, of course, amounts to abstract descriptions of the need for, and problems of, “post-national” private law. Nonetheless, these problems must not be removed from the agenda of private law; they are of profound importance in all of its sub-disciplines.
158 See F. Meinecke, Weltbürgertum und Nationalstaat. Studien zur Genesis des deutschen Nationalstaates (München-Berlin, 1908). 159 See W.J. Mommsen, n. 157 above, p. 53 et seq. 160 See F.W. Scharpf, “Die Handlungsfähigkeit des Staates am Ende des zwanzigsten Jahrhunderts”, (1991) 32 Politische Vierteljahresschrift 621 et seq.
76 Christian Joerges
1. Denationalisation of private law scholarship In the early history of the Federal Republic, the freeing of private law from its nation-state setting, like all other basic problems of the discipline, was discussed in the context of the so-called renaissance of natural law.161 But it was also and especially an important theme of the disciplines that, as it were, by definition treated private law “internationally”: private international law and comparative law.162 In private international law (PIL), the continuation of the Savigny tradition as enriched by Ernst Rabel was taken as a matter of course and an obligation.163 This meant, as far as the understanding of private law went, the conservation of classical, formalist conceptions which were all the easier to maintain in practical terms because PIL had, for a long time, exempted the “strictly positive” laws of the nation-state, economic law and public law from the scope of its internationalistic, universalistic principles. It was not until the comparison with the fundamental-rights content of private law principles mediated through linkages with “social values” and the “materialisation” of private law that there came a new fundamental debate in which the nation-state displayed itself in all its aspects.164 The multifaceted debate involved the omnipresence of “binding” rules in private law, which led to a reversal of the relationship between “regular” and “special” linkages; the particularity of national arrangements which, while they took “social values” into account, could not, nonetheless, lay claim to any universal bindingness, and could no longer be reconciled with “blind” references; the insight that belonging to a legal system justified qualitative expectations of legal decisions, and that such expectations need not necessarily be confined to the nationality of positive law mediated through citizenship, compelled “loosenings” of the citizenship principle;165 and in all this, it also emerged that the sovereign nation-state pursuing its “power interests” “unilaterally” over and above PIL continued to exist only as a dogmatic fiction, but had become helpless in practical regulatory terms, and normatively unattractive. While PIL had to take a lesson from private law, the neighbouring discipline of comparative law broadcast messages of a different nature. Following his 161
See section I above. Another international discipline is legal theory, in which in part (also) German contributions can now be understood only in the context of an internationalised debate in which, admittedly, relations to positive private law and legal theory evaporate, except where legal theory sees itself from the outset as “sociology of law”. 163 See M. Martinek, in D. Simon, n. * above, p. 529 et seq. 164 See M. Martinek, in D. Simon, n. above, p. 529 et seq., p. 588 et seq., as well as, on the con* nection between substantive law and conflict of laws, E. Mazza-Teubner, Die Wiederkehr der “comitas”. Zu den Wandlungen des Politikbegriffs im amerikanischen und deutschen Kollisionsrecht (Diss. jur. Bremen, 1992). 165 See R. Pitschas, “Verfassungsrechtliche Vorgaben für das Statsangehörigkeitsprinzip des Internationalen Privatrechts”, in E. Jayme and H.-P. Mansell (eds.), Nation und Staat im Internationalen Privatrecht (Heidelberg, 1990), p. 93 et seq. 162
The Science of Private Law and the Nation State 77 renewal of the “third school in international private law”,166 Konrad Zweigert, very early on, introduced legal comparison, too, as a source of knowledge of substantive private law.167 This programme yielded fruit not just in legal comparison itself,168 but in private law, too, including domestic private law. Zweigert had still confined his plea for the incorporation of foreign legal conceptions to the “world-wide” subjects “with a cosmopolitan function or a tendency to universalism”.169 But he also saw that his “method” had to strengthen the tendency inherent in Interest Jurisprudence to relate the law’s rules functionally to regulatory problems, that a science of private law using comparative law has to relativise the meaning of establishing the “will” of national legislators, and the relative value of dogmatic systematics.170 All this was immediately presented by Ernst von Caemmerer in his eminent paper on “Enrichment and Delict”(Bereicherung und unerlaubte Handlung) in the Festschrift for Ernst Rabel.171 In the future, incorporative comparative law ought to develop as the most innovative element specifically both in specific legal fields172 and in more general methodological orientations.173 But it has not just inspired comparative law excursus in whole legions of dissertations and habilitation theses on questions of substantive private law, but has also 166
Festschrift Leo Raape (Hamburg, 1984), p. 5 et seq. “Rechtsvergleichung als universale Interpretationsmethode”, (1949/50) 15 Rabels Zeitschrift für ausländisches und internationales Privatrecht 5 et seq. 168 For more details, see M. Martinek, in D. Simon, n. 00 above, p. 529 et seq. 169 See n. 167 above, 12. 170 See, also, K. Zweigert, “Die Rechtsvergleichung im Dienste der europäischen Rechtsvereinheitlichung”, (1951) 16 Rabels Zeitschrift für ausländisches und internationales Privatrecht 387 et seq. 171 Vol. I (Tübingen, 1953), p. 353 et seq. 172 See representatively, E. Steindorff on “Abstrakte und konkrete Schadensberechnung” (“Calculation of Damages”), Archiv für die civilistische Praxis 158 (1960), 431 et seq., 434 et seq.; on manufacturer liability, S. Simitis, “Soll die Haftung des Produzenten gegenüber dem Verbraucher durch Gesetz, kann sie durch richterliche Rechtsfortbildung geregelt werden?”, Gutachten zum 47. Deutschen Juristentag, Vol. I (München, 1968), C 1 et seq.; on the function of liability law, H.-L. Weyers, Unfallschäden. Praxis und Ziele von Haftpflicht- und Vorsorgesystemen, Frankfurt a.M., 1971). 173 Josef Esser’s brilliant magnum opus (Grundsatz und Norm in der richterlichen Rechtsfortbildung des Privatrechts (Tübingen, 1956)) was hard to make use of, so that its effect is hard to estimate. In his intention, it was a path-breaker and a promoter of this development. In the early post-war years, Esser had invoked, against the romantic, organicist conceptions of law and society, against free-law irrationalism and against the eternity claims of natural-law systems, the “indispensability of rationally established, clear, positive constitution”, where “not an ounce of justice is sacrificed to any sort of political ideology” (see his article on Julius von Kirchmann: “Hundert Jahre Anklagezustand über die Jurisprudenz”, [1947] 2 Deutsche Rechts-Zeitschrift 315 et seq., reprinted in J. Esser, Wege der Rechtsgewinnung (Tübingen, 1990), p. 265 et seq., p. 271, and Esser’s Einführung in die Grundbegriffe des Rechts und des Staates (Wien, 1949), p. 17). This was not meant as a restoration of formalism, and was certainly not intended to deliver the law over to the sovereign, as Grundsatz und Norm went on penetratingly to show: here, Esser polemicises against “legal theoretical solipsism” and the “statist” attitude of nation-state legal political concepts (p. 337), but also turns against the abstractness of Rabel’s autonomism (p. 340 et seq.); if legal principles and ideas of justice can lay claim to supranational validity, this is because justice, given “equalizing common factors, including economic ones” also “requires equal decisions in principle and therefore equivalent institutions, even with different legal systematics and legal structure” (p. 378 et seq.). 167
78 Christian Joerges contributed to letting private law theoretical approaches of all kinds developed elsewhere—realistic, legal-sociological, social-critical and economic—infiltrate German private law science. It, thereby, promoted a form of internationalisation of private law science that respects the cultural and socio-political particularism in positive law but, at the same time, brings universalistic elements to bear in objective and methodological terms. The internationalisation process is clearest in the economic analysis of law. The tendencies emerging here are scarcely less numerous than their American inspirers.174 They share their various premises without wishing to suggest that “non-national” solutions to problems can, on this ground, be converted into positive law. What applies to the internal differentiation of the economic analysis of law, also emerges in this school’s attitude towards competing tendencies which, in turn, establish themselves as transnational networks. Thus, it seems that legal science is about to follow175 internationalisation processes which both legal theory and its neighbour disciplines in the social sciences have already undergone.
2. The Europeanisation of the “private law society” (Privatrechtsgesellschaft) From the comparative-law or conflict-of-laws viewpoint there is no objective reason to relate hopes of internationalisation and universality to the participatory states in the European integration project. This is essentially true also of Ordoliberalism. It is not to the historical organisational forms of the nationstate, the German or any other, that legal dignity as such attaches itself: the guarantee of the parallel course of law and the economy required by regulatory theory is the key problem in the internationalisation of the economy. Even the early writings of Ordoliberal theoreticians, dealing with questions of international trade and the world economy, treat the internationalisation of the economy as a regulatory task centring round the question of how an institutional legal framework ought to appear when it compels the competition between economies and commercial policy to obey the guiding mechanism of the price system.176 174 See n. 85 above, and M. Adams, Ökonomische Analyse der Gefährdungs- und Verschuldenshaftung (Heidelberg, 1985); P. Behrens, Die ökonomischen Grundlagen des Rechts (Tübingen, 1986); H.B. Schäfer and C. Ott, Lehrbuch der ökonomischen Analyse des Zivilrechts (Berlin-Heidelberg-New York, 1986); W.-R. Walz, “Ökonomische und rechtliche Überlegungen zur Verkehrsfähigkeit von Gegenständen”, in C. Ott and H.-B. Schäfer (eds.), Allokationseffizienz in der Rechtsordnung (Berlin, 1989), p. 93 et seq. 175 A development long evident e.g. in tort law and liability law (see only n. 173 above); for contract law, see e.g. J. Köndgen, Selbstbindung ohne Vertrag (Tübingen, 1981); H.C. von der Crome, Rahmenverträge (Zürich, 1993). 176 W. Eucken, Grundsätze der Wirtschaftspolitik (Bern-Tübingen, 1952), p. 167 et seq.; W. Röpke, Internationale Ordnung—now, 2nd edn. (Erlenbach-Zürich, 1954), p. 101 et seq.; for a systematic summary, see H. Willgerodt, n. 48 above, 408 et seq. and E.-J. Mestmäcker, “Wirtschaftsrecht”, (1990) 54 Rabels Zeitschrift für ausländisches und internationales Privatrecht 409 et seq., 415 et seq.
The Science of Private Law and the Nation State 79 The hopes for a reform of the world economy inspired by ordoliberal ideas rooted in the Second World War and pursued thereafter were quickly dashed.177 It was accordingly only consistent for the ordoliberal school to promote specifically European unification endeavours178 with interest from the outset and through all stages. Here, despite all the resistance to a political sacrifice of nation-statehood, and precisely because of the restriction of the 1957 Rome Treaties to opening up the economies, the prospect seemed to be the opening of a Europe-wide private law society. This prospect could certainly not be derived from the Treaties without interpretative efforts. However, it took shape, to the extent that, under the leadership of the European Court of Justice, the freedoms guaranteed in the EEC Treaty were recognised as directly applying private rights, the ban on discrimination enforced against state measures and the Treaty provisions on competition policy made applicable as legal rules, thus establishing the primacy of the supranational legal order of the EC Treaty.179 Private law had ignored the EC Treaty. This did not, however, prevent treating the economic system brought into effect through the treaty as a “private law ordnung”,180 ascribing the Treaty’s reticence regarding private law to the circumstance that the Community Member States were in any case private transactions through legal systems that coincided in their essentials.181 Additionally, approximation of laws pursuant to EC Treaty Article 100 opened up access to private law based functionally on the objective of creating the Common Market: since the integration aim of the supranational constitution of a “Community economy” seemed clearly defined, how the opportunities opened by the EC Treaty were to be understood and dealt with could also be indicated.182 Admittedly, the more recent developments in the integration process and the revision of ordoliberal theory183 brought rethinking here, too. 3. The Europeanisation of private law For a long time, Ordoliberalism stood alone in its interest in the fundamental importance of European integration within national private law science.184 This 177 See G. Ambrosius and W.H. Hubbard, Sozial- und Wirtschaftsgeschichte Europas im 20. Jahrhundert (München, 1986), p. 269 et seq. 178 G. Ambrosius and W.H. Hubbard, n. 177 above, p. 274 et seq. 179 See E.-J. Mestmäcker, “Offene Märkte im System unverfälschten Wettbewerbs in der europäischen Wirtschaftsgemeinschaft”, Festschrift Franz Böhm (Karlsruhe, 1965), p. 345 et seq. 180 See W. Hallstein, “Wirtschaftliche Integration als Faktor politischer Einigung”, Festschrift Alfred Müller-Armack (Berlin, 1961), p. 267 et seq., p. 275. 181 See the testimony of Franz Böhm, as reported by E.-J. Mestmäcker, “Über die Rolle des Politischen”, n. 42 above, 11. 182 See the—cautious—statements by W. Hallstein, “Angleichung des Privat- und Prozeßrechts in der europäischen Wirtschaftsgemeinschaft”, (1964) 28 Rabels Zeitschrift für ausländisches und internationales Privatrecht 211 et seq.; much more incisively later, I.E. Schwartz, 30 Jahre EGRechtsangleichung, Festschrift Hans von der Groeben (Baden-Baden, 1987), p. 333 et seq., p. 335 et seq. 183 See section II 2 above. 184 On the international law disciplines, see M. Martinek, in D. Simon, n. 00 above, p. 529 et seq., p. 567 et seq., p. 577 et seq.
80 Christian Joerges benevolent neglect slowly changed as the European Community began to convert its consumer policy programmes for the years 1971 and 1975185 into specific directives in private law186 and brought its ten years’ work on product liability to a conclusion187—slowly, because this first generation of directives was still content to lay down minimum standards entirely capable of consensus, thus leaving national law largely intact. The intensivation of internal market policy following the Commission’s 1985 White Paper188 and the 1987 Single European Act radically changed this situation. Unexpectedly, the science of private law was again confronted—twenty years after the beginning of its internal and not yet formally concluded codification debate—with legislative interventions in private law. This debate determines the present189 and will, whatever happens to the Community following the Maastricht Treaty, intensify still further. Accordingly, it does not belong in a historical article. All the same, the history of private law is rich in suggestions for this debate. The integration process forces renewed grappling with the universalisability of private law principles and rules, with the meaningfulness of legislative activities—but also with the erosion of the nation-state and its political institutions. Europe’s integration means, however, that the legal quality of the Community developing may be assessed, and that the democratically constituted nation-states can no longer decide autonomously as to their laws and their policies. There is a manifest, undisputed difference between the national constitutional structures and the Community’s institutional system.190 It is worth questioning the significance of this observation: the articles on the effects of integration and private law, on the replacement of private law law-making processes of national political institutions and cultural traditions, confirm how thoroughly the science of private law is entangled with the history of its patterns of perceptions and interpretations. If the rational core of European integration consists in its bringing about the preconditions for the achievement of a supranational private law society, then it is, at least in principle, clear how the process of integration is to be understood and utilised from the regulatory-theory viewpoint.191 Only the forms of realisa185
OJ 1975 No. C92, p. 1; OJ 1981 No. C133, p. 1. Doorstep selling: OJ 1985 No. L372, p. 31; Consumer credit: OJ 1987 No. L42, p. 47; Package travel: OJ 1990 No. L158, p. 59; Unfair terms in consumer contracts: OJ 1993 No. L95, p. 29. 187 OJ L 1985 No. L210, p. 29. 188 COM 85 (310) final, 14 June 1985. 189 The rich literature and the current state of debate are documented by P.-Ch. Müller-Graff (ed.), Gemeinsames Privatrecht in der Europäischen Gemeinschaft (Baden-Baden, 1993); for an analysis taking up the theoretical perspectives of this essay, see Ch. Joerges, “The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutionalist Perspective”, (1997) 3 European Law Journal 378 et seq. 190 For a current diagnosis, see D. Thürer, “Der Verfassungsstaat als Glied einer europäischen Gemeinschaft”, (1991) 50 Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 97 et seq., 109 et seq., 122 et seq. 191 E.-J. Mestmäcker, “Die Wiederkehr der bürgerlichen Gesellschaft und ihres Rechts”, (1991) 10 Rechtshistorisches Journal 177 et seq. 186
The Science of Private Law and the Nation State 81 tion of the supranational private law society remain to be considered. A European codification of the market-oriented core materials of civil law has been advocated for years by Wilfried Tilmann on the basis of his conceptualisations of the functions of commercial and private law inspired by regulatory and systems theory.192 A compelling alternative has been formulated by Fritz Rittner:193 differences between the private law systems were consciously accepted by the EC Treaties. Dealing with them is to be entrusted not to the Community legislature but to the decisions of the market citizens themselves. The opening of the markets and the obligation on the states to recognise their legal systems mutually was supposed to include the freedom of market citizens to choose the regulation which suited them. Indirectly, then, a private law meeting the wishes of private persons was to come to prevail. From this viewpoint, the debates about the EC’s democratic deficit concern a pseudo-problem: the constitutionality and freedom of the legal system(s) in the Community legitimate the effects of integration on private law, because their form does not concern matters concerning national citizens, but concerns only matters concerning market citizens. In practice, neither of the alternatives has consistently been implemented to date. The Community’s decisional procedures have, instead, meant that the European legislature, when coming up against legal obstacles to the achievement of the internal market, often enough imposes not the abolition of binding rules, but their unification at a “high level of protection” through majority decision. The law of the European internal market is constitutive altogether, not just of freedoms but also of protective rules and claims.194 Private lawyers discussing these easily explicable findings,195 rightly complain that the “pointillist” operations196 of Community law inside the national legal systems have, as a consequence, system breakdowns, contradictory evaluations, and forced coordination, so that Community law simultaneously acts innovatively and destructively, integratively and disintegratively.197 The science of private law will learn to deal with these difficulties just as it did with the “fragmentary and periodic character”198 of domestic legislation. But even if it shows this willingness, the follow-up question remains on the agenda: how is the legitimacy that national 192 Wirtschaftsrecht (Berlin-Heidelberg-New York-Tokyo, 1986), p. 237 et seq.; Mestmäcker prefers this way because he sees harmonisation of private law as an opportunity to promote the development of private law in the states of Eastern and South-Eastern Europe, ibid., p. 192. 193 “Die wirtschaftliche Ordung der EG und das Privatrecht”, Juristen Zeitung 1990, 838 et seq. 194 N. Reich, “Binnenmarkt als Rechtsbegriff”, Europäische Zeitschrift für Wirtschaftsrecht 1991, 203 et seq. 195 See E. Steindorff, “Freedoms, Regulation and Fundamental Social Rights After the Expanded Goals of the EC Constitution” in H.-W. Micklitz and St. Weatherill, European Economic Law (Aldershot-Brookfield, 1997), p. 71 et seq.; J.H.H. Weiler, “The Transformation of Europe”, (1991) 100 Yale L.J. 2403 et seq., 2456 et seq. 196 H. Kötz, “Gemeineuropäisches Zivilrecht”, Festschrift Konrad Zweigert (Tübingen, 1981), p. 481 et seq., p. 483. 197 P. Hommelhoff, “Zivilrecht unter dem Einfluß europäischer Rechtsangleichung”, (1992) 192 Archiv für die civilistische Praxis, 71 et seq. 198 See J. Esser, “Gesetzesrationalität”, n. 102 above, 18.
82 Christian Joerges private law owes to the reciprocally informed and controlling influences of legislation, adjudication and practice, science and the public, to be guaranteed in the process of Europeanisation of private law? This question concerns the future constitution of the European polity. The fact that this question concerns not just the public law disciplines but also the science of private law is a lesson from German history. But what does private law have to do with the nation-state’s claims to power as diagnosed by Max Weber? There is little doubt as to the innocence of private law as such. It is equally indubitable that the rules of private law are interwoven with all those institutions and regulatory measures whereby the nation-state keeps its own economy operational and ensures the social integration of its society. The constitution of a European republic could not leave these questions out. A purely rule-of-law organisational form that does not simoultaneously both enable and legitimate solidarity-based action cannot domesticate the Weberian power state—another lesson from history.
5
The Role of Institutional Principles in the Judicial Development of the European Union Legal Order BRUNO DE WITTE
I . INTRODUCTION
The “general principles of EC law” play a central role in the case law of the European Court of Justice and its Court of First Instance, and they are now a distinct and rather well-defined third major category of sources of Community law, alongside the EC Treaties and secondary law. They can be defined, for the purpose of this chapter, as unwritten principles, recognised by the European Court of Justice, which possess a higher law status by the fact that they may be invoked as a standard for the review of Community acts (and, in addition, of Member State acts falling within the scope of Community law). They are an important instrument for the protection of “individuals” (often, in fact, business firms!) against policies and administrative measures of the European Community and its Member States. One important sub-category of these general principles of EC law are fundamental rights, which, due to a well-known anomaly of the European Treaties, are not protected as written constitutional norms but as part of the unwritten general principles; alongside these fundamental rights, the general principles category also covers principles of administrative procedure (such as the principle of proportionality and the principle of protection of legitimate expectations) and principles of judicial procedure. These principles do not form the object of the present contribution. Rather, I have wanted to assemble some of the dispersed evidence of the existence of another category of unwritten and judge-made principles, namely the general principles of institutional law. They do not serve to protect the position of the individual, but rather to regulate the relations between institutions. Given the nature of the European Union, such institutional relations take place both at the horizontal level, between the institutions of the European Union, and in a vertical perspective, between these EU institutions and the Member States’ institutions, so that one can make a further distinction between horizontal institutional principles (like the principle of institutional balance) and vertical
84 Bruno de Witte institutional principles (like the principle of subsidiarity or the principle of sincere cooperation). These institutional principles have been studied separately, but hardly at all as a category. The reason may well be that, whereas the Court of Justice did make reference once to “the general principles on which the institutional system of the Community is based and which govern the relations between the Community and the Member States”,1 it has never developed this statement into a consistent doctrine of institutional principles. Few of the numerous books and articles devoted to general principles of EC law deal with institutional principles.2 One could consider this as a simple oversight and think that the concept of general principles of EC law is broad enough to include also the institutional principles.3 Or one could, alternatively, consider that institutional principles form a distinct reality, and that the use of the common word “principles” hides a profound difference with the “general principles of EC law”. The latter approach, then, leaves open the question of how this distinct reality fits within the overall picture of the system of sources of EC law and EU law. An answer to the foregoing questions presupposes a more precise definition of the concept of “general principles of institutional law”. By the word “general”, I intend to refer to those institutional principles that apply to horizontal or vertical institutional relations in general, and thereby exclude the institutional principles which are (i) limited to specific subject areas of European Union policy (like, for instance, monetary policy4 or environmental policy),5 (ii) limited to the functioning of one particular institution (like, for instance, the
1
Joined Cases 205 to 215/82, Deutsche Milchkontor v. Germany, [1983] ECR 2633, paragraph 17. Reference can be made to two recently published books which, while offering a full analysis of the general principles of EC law, do not deal with institutional principles: J.A. Usher, General Principles of EC Law (Longman, London, 1998), and T. Tridimas, The General Principles of EC Law (OUP, Oxford, 1999). Similarly limited to “traditional” general principles are the following essays: A. Adinolfi, “I principi generali nella giurisprudenza comunitaria e la loro influenza sugli ordinamenti degli Stati membri”, Rivista italiana di diritto pubblico comunitario (1994) 521; A. Massera, “I principi generali”, in M.P. Chiti and G. Greco, Trattato di diritto amministrativo europeo—Parte generale (Giuffrè, Milano, 1997), p. 431; G. Nolte, “General Principles of German and European Administrative Law—A Comparison in Historical Perspective”, (1994) Modern Law Review 191. A few institutional principles are covered, but only very briefly, by R.-E. Papadopoulou, Principes généraux du droit et droit communautaire (Bruylant, Bruxelles, 1996). 3 This is the view proposed, but not elaborated, by D. Simon, “Y a-t-il des principes généraux du droit communautaire?”, (1991) 73 Droits p. 79 (who calls them “principes généraux de droit de type constitutionnel”); the same view is repeated in D. Simon, Le système juridique communautaire (PUF, Paris, 1997), p. 231. 4 Article 4 EC Treaty (ex Article 3a) states that economic and monetary policy shall be conducted “in accordance with the principle of an open market economy” and, in its section 3, that the activities of the EC and its Member States in these fields “shall entail compliance with the following guiding principles: stable prices, sound public finances and monetary conditions and a sustainable balance of payments”. 5 Article 174 EC (ex Article 130r) stipulates that environmental policy “shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”. 2
Institutional Principles in Judicial Development of the EU Legal Order 85 Commission),6 and (iii) limited to specific institutional contexts or niches (like, for instance, budgetary matters).7 By the term “principles of law”, I want to refer essentially to the institutional principles that form an independent source of legal obligations. This is by no means the only sense in which the term “principle” is used in the case law of the ECJ or in the legal literature. Sometimes, the term is used to emphasise the particular political importance of a particular Treaty norm or set of norms, or as a synthetic description for a set of Treaty norms, but without adding any legal value to these norms. Indeed, the ECJ regularly uses the term “principle” where it does not have an independent legal content. An example in the institutional sphere is Opinion 2/94 on Accession to the European Convention of Human Rights. The reference, in that Opinion, to the “principle of conferred powers” does not seem to add anything to the written rule of (what was then) Article 3b, first sentence, EC. One could argue that the deliberate use of this principle, at the start of the Court’s reasoning, announces the Court’s restrictive interpretation of the (then) Article 235 EC in a later paragraph of the Opinion,8 but the Court itself does not connect the two statements with each other, so that it would be wrong to see this Opinion as making of the “principle of conferred powers” a true general principle of interpretation requiring a restrictive approach to the delimitation of the EC’s competences.9 On other occasions, the term “principle” is indeed used by the Court for identifying a guideline, or approach, to be taken into account for the interpretation of written norms of EU law. Such principles of interpretation do have legal value, as they may affect the outcome of cases, including of disputes in the institutional sphere. One may offer, as an example, the notorious Titanium Dioxyde case, in which the Court of Justice relied on the principle of democracy in deciding that the consultation procedure and the cooperation procedure could not be combined for the adoption of one and the same Community legislative act.10 I will try to identify, in the following pages, those institutional principles which can be considered as “principles of law” in the strong sense indicated above, namely as independent judge-made sources of law. The perspective of the analysis is therefore very much that of the European Courts, and, more particularly, that of the use made by these Courts of institutional principles as tools for the construction of the European Union legal order.11 This focus on the role 6 The principle of collegiality, which governs the functioning of the European Commission, has played a role in several recent Court cases, such as: Commission v. BASF and others, Case C-137/92P [1994] ECR I-2555, paragraph 63; Commission v. Germany, Case C-191/95, judgment of 29 September 1998 (not yet reported), paragraphs 33 to 51; Vlaamse Televisie Maatschappij v. Commission, Case T-266/97, judgment of 8 July 1999 (not yet reported), paragraph 49. 7 See, for instance, Case C-284/90, Council v. Parliament, [1992] ECR I-2227, paragraph 26. 8 Opinion 2/94, [1996] ECR I-1759, paragraphs 24 and 30. 9 Such use of the “principle of conferred powers” as a principle of interpretation has been recommended by some authors (see, for instance, H.-P. Kraußer, Das Prinzip begrenzter Ermächtigung im Gemeinschaftsrecht als Strukturprinzip des EWG-Vertrages (Duncker & Humblot, Berlin, 1991), but the European Court has not, so far, followed that line. 10 Commission v. Council, Case C-300/89 [1991] ECR I-2867, paragraphs 18–21.
86 Bruno de Witte of the Courts should, however, not be read as denying the importance of the notion of “general principles” for a study of inter-institutional relations which focuses more on the attitudes and expectations of the political actors of the EU system. Thus, the principle of subsidiarity may, so far, have played only a minor role in the case law of the European Court of Justice, but it has certainly affected the attitudes and behaviour of the political institutions of the Union.12
II . VERTICAL INSTITUTIONAL PRINCIPLES
1. The principle of sincere cooperation In the legal literature, reference is often made to a “principle of Community loyalty” (principe de loyauté communautaire),13 whereby the term “loyalty” is directly inspired by a famous unwritten principle of German constitutional law, that of Bundestreue.14 The European Court of Justice has never referred to national constitutional law in this connection, nor does it use the word “loy11 As indicated also by the title of this contribution, I take the European Union as my overall legal framework. This accords with the view, which is not shared by all authors, that the European Union is the overall organisation within which the European Community has been incorporated as a suborganisation with distinct rules (arguments for this view can be found in D. Curtin and I. Dekker, “The EU as a ‘Layered’ International Organization: Institutional Unity in Disguise”, in P. Craig and G. de Búrca (eds), The Evolution of EU Law (OUP, Oxford, 1999), p. 83; and in B. de Witte, “The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?”, in T. Heukels, N. Blokker, M. Brus (eds), The European Union after Amsterdam—A Legal Analysis (Kluwer Law International, The Hague, 1998), p. 51). To the extent that the EU has a “single institutional framework” (Article 3 EU Treaty), general principles governing vertical and horizontal relations may be considered as EU principles, rather than just EC principles. Yet, in view of the chapter’s focus on the role of the judiciary, it will deal primarily with European Community law. 12 One could also, instead of an “internal” approach focusing on courts, or an “internal” approach focusing on the political institutions, take the “external” perspective of an outside observer of the EU system, which could lead to the identification of a different set of principles again; see, for this internal/external distinction, F. Snyder, “General Course on Constitutional Law of the European Union”, Collected Courses of the Academy of European Law, Vol.VI, Book 1, 41, p.76. 13 See, among others, P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, 3rd edn., by L.W. Gormley (Kluwer Law International, London, 1998), p. 148; M. Lück, Die Gemeinschaftstreue als allgemeines Rechtsprinzip im Recht der Europäischen Gemeinschaften (Nomos, Baden Baden, 1992); K. Mortelmans, “The Principle of Loyalty to the Community (Article 5 EC) and the Obligations of the Community Institutions”, (1998) Maastricht Journal of European and Comparative Law 67; V. Constantinesco, “L’art.5 CEE, de la bonne foi à la loyauté communautaire”, Du droit international au droit de l’intégration. Liber Amicorum Pierre Pescatore (Nomos, Baden Baden, 1987), p. 97; K. Lenaerts and P. Van Nuffel, Europees recht in hoofdlijnen, 2nd edn. (Maklu, Antwerpen, 1999), p. 514; R. Barents and L.J. Brinkhorst, Grondlijnen van Europees recht, 8th edn. (Samsom, Alphen, 1998), p. 86; J. Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe (Bruylant, Bruxelles, 1997), p. 374. 14 There are comparable legal concepts in other federal and regional states. See the recent comparative study of Germany and Italy (with short comments on other countries and the EC), by J. Woelk, Konfliktregelung und Kooperation im italienischen und deutschen Verfassungsrecht— ”Leale collaborazione” und Bundestreue im Vergleich (Nomos, Baden Baden, 1999); for the concept of loyalty in Belgium, where it is written down in the text of the Constitution: A. Alen, P. Peeters,
Institutional Principles in Judicial Development of the EU Legal Order 87 alty”. It refers, more modestly, to a duty of sincere (or genuine) cooperation of the Member States towards the Community or also, but only occasionally, to a principle of cooperation in good faith.15 This duty, or principle, has a written basis in Article 10 EC (ex Article 5). The text of Article 5 was not particularly novel when it was adopted, in 1957.16 It echoed the “good faith” principle which one finds in Article 2(2) of the United Nations Charter and in numerous other international conventions, including the Vienna Convention on the Law of Treaties which declares it to be a fundamental principle of the law of treaties. In a commentary on the UN Charter provision, it was observed that “[t]he appeal for action in good faith is intended as a constant reminder that a set of treaties with such comprehensive objectives as those of the UN does not survive merely on the strength of the terms used and on its individual provisions, but only achieves its reality via the communal will of its members, for which there is ultimately no guarantee”.17 Article 5 of the EEC Treaty was probably enacted in the same spirit. The difference, however, is that the Community system did have a judicial guarantee of the “good faith” duty; the European Court of Justice has, in an impressive string of cases, spelled out the duties which, beyond the text of individual treaty provisions and in recognition of the “communal will”, fall upon the Member States of the European Union.18 But the Court of Justice has done more than adopt a broad interpretation of the Member State obligations as they are enacted in Article 10 EC. It has also reversed the perspective and connected to Article 10 a corresponding duty for the Community institutions which is not based on the wording of the Treaty. This is where the “duty” of sincere cooperation becomes a true principle of law containing additional legal obligations beyond those to be found in the Treaty. The reciprocal nature of the duty of cooperation was affirmed for the first time in the case Luxembourg v. European Parliament, where the Court held that “when the governments of the Member States make provisional decisions [about the seat of the European Parliament] they must in accordance with the rule imposing on Member States W. Pas, “Bundestreue im belgischen Verfassungsrecht”, Jahrbuch des öffentlichen Rechts 42 (1994) 439. The link between the German Bundestreue and the principle of Community loyalty was explicitly made by some (former) judges of the ECJ, writing in their extra-judicial capacity: O. Due, “Article 5 du traité CEE. Une disposition de caractère fédéral?”, Collected Courses of the Academy of European Law (1991) Vol.II, Book 1, 17; T. Koopmans, “The Birth of European Law at the CrossRoads of Legal Traditions”, (1991) American Journal of Comparative Law 493, p. 502. 15 The latter expression was used in Van Munster, Case C-165/91 [1994] ECR I-4661, paragraph 32. 16 “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.” 17 J.P. Müller, “Article 2(2)”, in B. Simma (ed), The Charter of the United Nations—A Commentary (OUP, Oxford, 1994), p. 89, at p. 94. 18 A useful survey of the many ramifications of the case law on Article 10 (ex Article 5) can be found in J. Temple Lang, “The Core of the Constitutional Law of the Community—Article 5 EC”, in L.W. Gormley (ed), Current and Future Perspectives on EC Competition Law (Kluwer, The Hague, 1997), p. 1.
88 Bruno de Witte and the Community institutions mutual duties of sincere cooperation, as embodied in particular in Article 5 of the EEC Treaty, have regard to the power of the Parliament to determine its internal organisation”.19 In Luxembourg v. Parliament, this statement was made obiter, because the Court was directly concerned, in the quoted passage, with spelling out a duty of the Member States and not a duty of the Parliament. But on several subsequent occasions, the same approach was adopted in order to impose concrete duties on Community institutions.20 In one of the most spectacular of these cases, the Zwartveld case of 1990, the Court held that the Commission may not refuse to give information and assistance to a national judge investigating a possible breach of Community law (in casu, suspected fraud against the EC fish marketing regulations), because in a Community subject to the rule of law “relations between the Member States and the Community institutions are governed, according to Article 5 of the EEC Treaty, by a principle of sincere cooperation”.21 The express mention that this is in accordance with Article 5 (now Article 10) is rather odd, as the text of that Article certainly does not provide for a mutual duty of cooperation, but is addressed to the Member States alone. The better approach seems to be the one adopted in Luxembourg v. Parliament, and repeated in several other cases, namely that the duty of sincere cooperation is an overarching, unwritten, principle of which Article 10 is only one manifestation.22
2. The “principle” of the primacy of Community law In the Amsterdam Protocol on Subsidiarity and Proportionality, the Member States specified that “[t]he application of the principles of subsidiarity and proportionality . . . shall not affect the principles developed by the Court of Justice regarding the relationship between national and Community law”. The Courtmade principles, to which the Member States approvingly refer in this phrase, can be no other than the principle of primacy, and the related principles of direct effect and effectiveness of Community law. Although these principles directly 19
Case 230/81, [1983] ECR 255, paragraph 37 (emphasis added). For a survey of the Court’s case law on the “reverse” side of the duty of cooperation, see K. Mortelmans, “The Principle of Loyalty to the Community (Article 5 EC) and the Obligations of the Community Institutions”, (1998) Maastricht Journal of European and Comparative Law 67. 21 J.J. Zwartveld and others, Case C-2/88 [1990] ECR I-3365, paragraph 17 (emphasis added). 22 In Luxembourg v. Parliament, as cited before, the Court invoked “the rule imposing on Member States and the Community institutions mutual duties of sincere cooperation as embodied in particular in Article 5 of the EEC Treaty” (emphasis added). See the comment by Kapteyn, VerLoren van Themaat and Gormley: “While the mutual nature of these obligations . . . are not immediately apparent from the wording of Article 5 itself (which, after all, is addressed to the Member States), the case law of the Court becomes logical if Article 5 is itself seen as a specific expression of a more general duty” (P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, 3rd edn., by L.W. Gormley (Kluwer Law International, London, 1998), p. 159). 20
Institutional Principles in Judicial Development of the EU Legal Order 89 influence the position of individuals, they can, at the same time, be considered as institutional principles, as they determine the legal duties of national courts and national political authorities. Indeed, the duty to apply Community law and to set aside conflicting rules of national law has been presented by the ECJ as an “application of the principle of cooperation laid down in Article 5 of the EEC Treaty”,23 and one could thus consider the principles of primacy and direct effect as elements of the principle of sincere cooperation, rather than as separate institutional principles. Yet, primacy, and the related concepts, are very peculiar “principles” indeed. In the literature, the epithet “principle” is used to describe them alongside other epithets like “rules”, “doctrines”, “notions” or “concepts”. The Court of Justice itself rarely uses the term principle in this connection: it did not use it in the founding judgments Costa v. ENEL and Van Gend en Loos, but it did refer to a “principle of precedence” in the Simmenthal case.24 Usually, the Court simply refers to the concrete obligations that lie on national courts or administrative authorities, namely to apply EC rules, to set aside incompatible national rules, etc. In a recent elaborate restatement of its primacy doctrine, the Court did not once use the term principle.25 This terminological restraint seems justified, because primacy (or direct effect) may to some extent be considered as principles of interpretation,26 but they are not principles of law in the same way as the “general principles of EC law”. Unlike these general principles, primacy is not a separate norm alongside the Treaties and secondary law, but rather a distinctive legal quality possessed by all norms of Community law, including the Treaties, secondary law and, indeed, the general principles of law. In conclusion: there is nothing against including primacy and direct effect among the institutional principles of the EC, but such a qualification does not adequately convey their very special status of meta-norms which help to define the overall nature of the Community legal order,27 much in the same way as the pacta sunt servanda rule, from which primacy derives, is a meta-norm defining the nature of public international law.
23 R v. Secretary of State for Transport, ex parte Factortame Ltd and Others, Case C-213/89 [1990] ECR I-2433, paragraph 19. 24 Amministrazione delle Finanze dello Stato v. Simmenthal, Case 106/77 [1978] ECR 629, paragraph 17 (the French expression is “principe de primauté”). 25 Joined Cases C-10/97 to C-22/97, Ministero delle Finanze v. IN.CO.GE.’90 and others, judgment of 22 October 1998 (not yet reported), paragraphs 18 to 21. 26 Indeed, primacy and direct effect were developed in the framework of preliminary rulings on the interpretation of Community law. However, this involves a very special kind of interpretation, which does not deal with the meaning of particular substantive provisions of EC law, but with the (unwritten) obligations of national courts in respect of these provisions. 27 As to the extent to which these principles make EC law legally different from international law, see B. de Witte, “Direct Effect, Supremacy and the Nature of the Legal Order”, in P. Craig and G. de Búrca (eds), The Evolution of EU Law (OUP, Oxford, 1999) 177, p. 208.
90 Bruno de Witte
3. The principles of subsidiarity and proportionality The most famous of all institutional principles is, probably, the principle of subsidiarity. Yet, it is a written principle which was put in the EC and EU Treaty by the Member States without having been “discovered” first by the ECJ. Article 5 EC (ex Article 3b) prescribes a particular course of action for the Community institutions,28 which is described as being “in accordance with the principle of subsidiarity”. Do the words “in accordance with” mean that the principle of subsidiarity has a legal currency of its own, and embodies more than the particular rules of institutional behaviour contained in Article 5 and (now also) in the Amsterdam Protocol on Subsidiarity and Proportionality? The view that the principle of subsidiarity has a wider scope of application and should, for instance, be seen as a principle to be observed by the Court of Justice, as well, in the exercise of its own competences of Treaty interpretation, has been proposed by several legal authors.29 The Court itself has, so far, given no indications in this sense: in its view, the legal effect of the concept of subsidiarity seems to be exhausted by the written rules of the Treaty. The principle of proportionality is usually mentioned in the same breath as the principle of subsidiarity. However, for present purposes, the principle of proportionality is rather different, because of its dual nature: it governs institutional relations as well as relations with individuals, depending on the circumstances; there is, one could say, both a substantive and an institutional application of this principle in the EC legal order.30 There is no doubt that proportionality was originally conceived by the ECJ, along the model provided by some national legal systems, as a principle of administrative law designed to protect the individual. It is often invoked when Community measures impose a burden on particular categories of individuals or firms, as frequently happens, for instance, in the framework of the common agricultural policy. Yet, proportionality is now inscribed in the Amsterdam Protocol on Subsidiarity and Proportionality as a distinctly institutional principle; in that Protocol, the Member States define proportionality as a principle requiring that “any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty”. In point 7 of the Protocol, they add, presumably with reference to proportionality again: “Community measures should leave as much 28 Namely, that they should take action “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”. 29 A clear proponent of this view is T. Schilling, “A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle”, (1994) 14 Yearbook of European Law 203. See also, more tentatively, G. de Búrca, “The Principle of Subsidiarity and the Court of Justice as an Institutional Actor”, (1998) Journal of Common Market Studies 214. 30 One may find a parallel here with national administrative law where the principle of proportionality similarly serves for the protection either of individual interests or of the general interest in good administration; see G. de Búrca, “The Principle of Proportionality and its Application in EC Law”, (1993) 13 Yearbook of European Law 105, 106.
Institutional Principles in Judicial Development of the EU Legal Order 91 scope for national decision as possible . . . While respecting Community law, care should be taken to respect well established national arrangements and the organisation and working of Member States’ legal systems”. Reference is made, here, to the interest of preserving the autonomy of the Member States, whereas abstraction is made of the consequences of the measures for particular categories of individuals or firms. In fact, this institutional reading of the principle of proportionality could already be found in the last sentence of Article 3b EC (now Article 5), as adopted in Maastricht, although the term “proportionality” itself was not used then. In several recent cases, the ECJ adopted the “new” view and reviewed the proportionality of policy limitations imposed by the Community on national legislative or administrative authorities. The Court examines whether the means employed by the Community legislator “are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it”.31 In applying this test, the Court may explore the balance of advantages which result for specific categories of individuals or firms (the “normal” proportionality review) but the concern for the protection of individuals is not always central to the Court’s investigation. Proportionality clearly serves for the protection of the autonomy of Member State authorities, in addition to protecting the freedom of individuals. Even though the European Court leaves a large measure of discretion to the Community legislator, the application of the proportionality test in the context of the relations between the Community and the Member States seems, to me, an unhappy development, for which there are no precedents in other federaltype constitutional systems. Even in the German legal system, from which the European Court originally borrowed the principle of proportionality, the Constitutional Court has refused to use this principle as a standard for deciding conflicts of competence between the federation and the Member States.32
III . HORIZONTAL INSTITUTIONAL PRINCIPLES
1. The principle of institutional balance In respect of the horizontal relations between the EU institutions, the text of the founding Treaties gives much more detailed guidance than in respect of the vertical relations between the EU and its Member States, so that there would seem to be comparatively less scope for judge-made principles regulating these relations. Occasionally, though, the European Court has actively intervened in the 31 United Kingdom v. Council, Case C-84/94 [1996] ECR I-5755, paragraph 57 (review of validity of working time directive); Germany v. Parliament and Council, Case C-233/94 [1997] ECR I2405, paragraph 54 (review of validity of directive on deposit-guarantee schemes for credit institutions). See already Germany v, Council, Case C-359/92 [1994] ECR I-3681, at 3713 (review of Commission’s power to adopt a decision requiring Member States to take specific safety measures with respect to a particular consumer product). 32 Judgment of 22 May 1990, Entscheidungen des Bundesverfassungsgerichts 81, 310, p.338.
92 Bruno de Witte inter-institutional relations by making a creative use of the unwritten principles of institutional balance and inter-institutional cooperation. The concept of institutional balance (or équilibre institutionnel) was used by the European Court of Justice already during the 1950s, in the context of the Coal and Steel Treaty,33 and can be found rather regularly in its case law. Yet, in contrast with many legal writers,34 the Court has never actually called it a “principle”; it simply refers to “the institutional balance”, without qualifying the legal nature of this concept. In fact, the Court mostly refers to the institutional balance as a convenient shorthand for the set of Treaty rules which happen to apply to the particular institutional dispute under consideration. In several cases, the ECJ has firmly rejected arguments that the Treaty rules on the division of powers between the institutions should, if necessary, be disregarded in view of an unwritten higher principle of institutional balance. It did so most clearly in an action for annulment brought by several states against a Commission directive on the transparency of financial relations between the Member States and their public undertakings. It was argued on behalf of the applicants that the Commission’s power to adopt directives, under the (then) Article 90(3) EEC Treaty, should not be interpreted as giving this institution an original law-making power, as that would be contrary to the general principles of the division of powers between the institutions. The Court of Justice replied that “the limits of the powers conferred on the Commission by a specific provision of the Treaty are to be inferred not from a general principle, but from an interpretation of the provision in question, in this case Article 90, analysed in the light of its purpose and its place in the scheme of the Treaty”.35 As the Court observed in another of these cases, “the powers of the institutions . . . are not always based on consistent criteria”,36 and the Court refuses to use general principles in order to bring consistency where the drafters of the EC Treaty chose not to be consistent. To the extent that the reference to the institutional balance does not modify the legal position of the institutions, the Court rightly refrains from using the term “principle” as such use would give the impression that the institutional balance is a legal norm with an independent content. There is one major exception to this approach, and that is the case law dealing with the procedural rights of the European Parliament under Article 173 EC (now Article 230), particularly the Chernobyl judgment of 1990.37 It is well known that the text of Article 173 33
Meroni, Case 9/56 [1957–58] ECR 133. G. Guillermin, “Le principe de l’équilibre institutionnel dans la jurisprudence de la Cour de justice des Communautés européennes”, (1992) Journal du droit international 319; D. Simon, Le système juridique communautaire (PUF, Paris, 1997) p. 231; J. Gerkrath, L’émergence d’un droit constitutionnel pour l’Europe (Bruylant, Bruxelles, 1997), p. 390. 35 France, Italy and UK v. Commission, Joined Cases 188 to 190/80 [1982] ECR 2545, paragraph 6. See also Netherlands v. Council, Case C-58/94 [1996] ECR I-2169, paragraphs 32 and 41. 36 Commission v. Council, Case 242/87 [1989] ECR 1425, paragraph 13. 37 Parliament v. Council, Case C-70/88 [1990] ECR I-2041 (known as the Chernobyl case). See, for a general analysis of the case law on the institutional balance (in addition to the many annotations of the Chernobyl judgment specifically): S. Prechal, “Institutional Balance: A Fragile Principle 34
Institutional Principles in Judicial Development of the EU Legal Order 93 EEC Treaty, prior to Maastricht, did not mention the European Parliament, either as an applicant or as a defendant in actions for annulment. After having established in Les Verts that, despite the text of Article 173, Parliament could be sued under Article 173 whenever acts of the Parliament had legal effects for third parties, the Court was soon confronted with the reverse question of whether Parliament itself could bring actions for the annulment of acts adopted by other institutions. In the Comitology case, the Court adopted the orthodox view that the Parliament did not have locus standi under Article 173. It held, somewhat reluctantly, that “the applicable provisions, as they stand at present, do not enable the Court to recognise the capacity of the European Parliament to bring an action for annulment”.38 Only two years later, in the Chernobyl case, the ”applicable provisions” (Article 173 EEC and its mirror provision Article 146 of the Euratom Treaty) did not “stand” any different as they did in Comitology, but this did not prevent the Court from recognising, this time, the European Parliament’s right to bring an action for annulment of a Council regulation. This overruling, though not complete, was rather spectacular. In Chernobyl, the text of Article 173 was discarded in the name of the institutional balance, whose importance is emphasised by the Court in several paragraphs of the judgments. The Court concluded that “the absence in the Treaties of any provisions giving the Parliament the right to bring an action for annulment may constitute a procedural gap, but it cannot prevail over the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties establishing the European Communities”.39 Although, even then, the Court refrained from calling the institutional balance a “principle”, this was a case where the use of that term would have been entirely appropriate, as the concept of institutional balance was used as the source of a specific legal norm which could not be found in the text of the EC Treaty or in any other written legal document.
2. The principle of sincere cooperation between the Institutions The institutional balance is “counterbalanced” by another Court-made principle, that of sincere cooperation between the institutions, which was first formulated in a case opposing Greece and the Council about the Community budget. Upon Greece’s request to judge whether certain Community expenditure for the benefit of Turkey was to be considered as compulsory expenditure (and could therefore be approved by the Council) or non-compulsory expenditure (which with Uncertain Contents”, in T. Heukels, N. Blokker, M. Brus (eds), The European Union after Amsterdam—A Legal Analysis (Kluwer Law International, The Hague, 1998) 273; G. Guillermin, “Le principe de l’équilibre institutionnel dans la jurisprudence de la Cour de justice des Communautés européennes”, (1992) Journal du droit international 319. 38 Parliament v. Council, Case 302/87 [1988] ECR 5615, paragraph 28. 39 Case C-70/88 Parliament v. Council, [1990] ECR I-2041, paragraph 26.
94 Bruno de Witte could only be decided with the agreement of the European Parliament), the Court refused to take sides and opted, instead of drawing a clear dividing line between the powers of Council and Parliament, for the “soft” language of the inter-institutional dialogue. It held that “the operation of the budgetary procedure, as it is laid down in the financial provisions of the Treaty, is based essentially on inter-institutional dialogue. That dialogue is subject to the same mutual duties of sincere cooperation which, as the Court has held, govern relations between the Member States and the Community institutions.”40 Thus, rather than looking for a textual basis in the Treaty provisions dealing with the budgetary procedure, the Court preferred to draw an analogy with the law governing the relations between the Community and its Member States, considering in effect that mutual cooperation is a necessary (but unwritten!) ingredient of both horizontal and vertical inter-institutional relations. The duty of sincere cooperation which, in Greece v. Council, had been applied by the Court to a dispute in budgetary matters, was extended to the ordinary legislative process in the judgment of 30 March 1995 in one of the many cases brought by the Parliament under its right of action recognised in Chernobyl.41 The dispute arose from the adoption, by the Council, of a Regulation extending for a further year (albeit with some changes) the existing Community regime of generalised tariff preferences for developing countries. The Council had adopted the Regulation without waiting for the opinion of the European Parliament, with the argument that the adoption was an urgent matter (the existing regime would have lapsed on 1 January 1993) and that the Parliament had failed to show due diligence in dealing with the Council’s request for an opinion. In his submissions to the Court, Advocate-General Tesauro came down in favour of the European Parliament, by insisting strongly on the fact that consultation of the Parliament, as the Court had decided in the Roquette case in 1980,42 was part of the institutional balance, and that the balance itself was an essential element of the constitutional system. The Court should not, in his view, allow for exceptions to the right of consultation in the name of urgency (even if such urgency could adequately be demonstrated by the Council) because that would “permit an alteration in the institutional balance outside the procedures and forms laid down for revision of the constitutional charter”; that was “a matter for the constitutional legislator alone”.43 The Court of Justice took a very different approach from that proposed by its Advocate General. While repeating its standard formula that the participation of Parliament in the legislative procedure “represents an essential factor in the institutional balance intended by the Treaty”, it counterbalanced this concept by insisting on the duty of sincere cooperation (which the Advocate-General had not even mentioned). It repeated the formula, coined in Greece v. Council, 40 41 42 43
Greece v. Council, Case 204/86, [1988] ECR 5323, paragraph 16. Parliament v. Council, Case C-65/93 [1995] ECR I-643. Roquette Frères v. Council, Case 138/79 [1980] ECR 3333. Case C-65/93, n. 41 above, Opinion of Advocate-General Tesauro, paragraph 20.
Institutional Principles in Judicial Development of the EU Legal Order 95 that the “inter-institutional dialogue . . . is subject to the same mutual duties of sincere cooperation as those which govern relations between Member States and the Community institutions” and decided, after a consideration of the facts of the case, that the Parliament had “failed to discharge its obligation to cooperate sincerely with the Council”. As “[t]he essential procedural requirement of parliamentary consultation was not complied with because of the Parliament’s failure to discharge its obligation to cooperate sincerely with the Council”, the action for annulment of the Council Regulation was rejected.44 One could say that, like in Chernobyl, the Court of Justice had overruled the clear wording of the Treaty (“the Parliament must be consulted”) in the name of an unwritten, but superior, principle of the Court’s own finding: that of inter-institutional cooperation.45 It would seem that, as a result of the Court’s case law, the relations between the Community institutions are now dominated by the twin values of autonomy and cooperation;46 the principle of institutional balance serves to ensure respect for the separate powers of each institution whereas the duty of sincere cooperation expresses the countervailing value that the institutions should cooperate beyond the formal rules of procedure laid down in the Treaty. Both principles are unwritten; both were developed by the European Court of Justice; both have served, at least occasionally, for reaching a result that departs from the ordinary grammatical meaning of the EC Treaty. But the two principles often point, as the judgment of 30 March 1995 shows, in a different direction. The choice which of the two principles should prevail is then left to the Court of Justice itself.
3. The principle of democracy The new Article 6, paragraph 1, EU Treaty, as amended by the Treaty of Amsterdam, states that “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.” Of these lofty principles, the principle of democracy deserves special consideration here, as it might appear to be the institutional principle par excellence. It is difficult, at this early stage, to evaluate the legal importance of this express reference to the 44
Ibid. [1995] ECR I-643, paragraph 28. The Court may have been inspired by the Opinion delivered, a few weeks earlier, by another Advocate-General in another case opposing the European Parliament and the Council. There, Advocate-General Léger had referred to the “constitutional principle of cooperation in good faith between institutions” which is based, according to him, on the fact that the institutions “are united in the attainment of the common objectives set by the Treaty and interlinked in the decisionmaking process” (Parliament v. Council, Case C-417/93 [1995] ECR I-1185, paragraphs 63 and 67 of the Opinion. In paragraph 31, the same principle is referred to as a general, rather than a constitutional, principle. 46 This development was anticipated to some extent by R. Bieber in an article written in 1984: “The Settlement of Institutional Conflicts on the Basis of Article 4 of the EEC Treaty”, (1984) Common Market Law Review 505. 45
96 Bruno de Witte principle of democracy in the text of the EU Treaty.47 Although Article 6, paragraph 1, is not one of the provisions which the European Court of Justice is allowed to enforce, the Court could feel encouraged to recognise the principle of democracy as an unwritten principle of law. On one occasion at least, the principle of democracy was used by the Court of Justice as a principle of interpretation,48 and the Court of First Instance has, in its recent UEAPME judgment, used the principle of democracy as a free-standing unwritten norm to be respected by the Community institutions. In an action for annulment brought by the European association of small businesses against a Council Directive adopted on the basis of a European collective agreement, the CFI went out of its way to state that the Council, when it is called to turn a European collective agreement into a directive, must act in accordance with the principle of democracy and check the truly representative character of the agreement’s signatories.49 Despite a veiled reference to the new Amsterdam provision, the nature of the principle of democracy, as used in this judgment, is that of an unwritten principle of higher law against which the legitimacy of Community acts may be reviewed. If this view were confirmed by the European Court of Justice, it would open a wholly new field for judicial intervention in institutional matters.
IV . THE JUDICIAL ENFORCEABILITY OF INSTITUTIONAL PRINCIPLES
The object of the institutional principles of EU law is obviously different from the object of the “general principles of EC law”, in that the former govern the relations between institutions, whereas the latter cover relations between the individual and the European or national authorities. So, even where institutional principles are “genuine” principles containing autonomous legal obligations (and, as shown in the previous sections, this is not always the case), their legal regime could be affected by their different object. More particularly, one could wonder whether even the “genuine” institutional principles are judicially enforceable exactly in the same way as the “general principles of EC law”. At first, this might well seem to be the case. Institutional principles mentioned and defined in the EC Treaty itself (like subsidiarity and “institutional” proportionality), principles only indirectly referred to in the EC Treaty (like the prin47 See, for some first thoughts about the implications for the EU Member States, A. Verhoeven, “How Democratic Need European Union Members Be? Some Thoughts after Amsterdam”, European Law Review (1998) 217. 48 See the reference to the Titanium Dioxyde case in the Introduction to this article. 49 UEAPME v. Council, Case T-135/96 [1998] ECR II-2335, paragraph 89: “the principle of democracy on which the Union is founded requires—in the absence of the participation of the European Parliament in the legislative process—that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement which is endowed by the Council . . . with a legislative foundation at Community level. In order to make sure that that requirement is complied with, the Commission and the Council are under a duty to verify that the signatories to the agreement are truly representative”.
Institutional Principles in Judicial Development of the EU Legal Order 97 ciple of sincere cooperation of the Member States towards the Community), and entirely unwritten judge-made principles (like the principle of cooperation at the horizontal level) all have the status of “higher law”. They would therefore seem to qualify as grounds for the annulment of Community acts50 under Article 230 EC (ex Article 173), exactly like the “traditional” general principles such as non-discrimination, legitimate expectations or “substantive” proportionality. Furthermore, the vertical principles regulating the action of national authorities (mainly the duty of sincere cooperation) would seem to be enforceable against the Member States in the usual two ways, namely through a Commission infringement action under Article 226 EC (ex Article 169) or through a legal action brought by individuals before a national court. On a closer look, though, there is some uncertainty as to the invocability of institutional principles by individuals, either before the European Courts or before the national courts. The case law on this matter is unsystematic and rather confusing. Strong indications in favour of the invocability of institutional principles come from the judgment of the European Court of First Instance in UEAPME. The CFI held, somewhat adventurously, that a breach of the principle of democracy should be considered as a possible ground for the annulment of a directive, in an action brought by a private party.51 The Opel Austria case, decided one year earlier by the Court of First Instance, could be read as further authority for the same view, but on a closer look, this judgment involved the use of an institutional principle as a principle of interpretation rather than as a freestanding norm. The Court of First Instance held that the Council, by adopting a regulation conflicting with an international treaty (the EEA Agreement) which was going to enter into force for the EC within days of the adoption of the regulation, had acted in breach of the (international law) principle of good faith. By doing so, it had at the same time violated the, non-institutional, principle of protection of legitimate expectations, which an individual party, Opel Austria, could rely on to oppose application of the regulation.52 So, in the end, this judgment does nothing but confirm the established view that individuals may rely, before the courts, on the principle of legitimate expectations.53 In contrast with the Court of First Instance’s approach in UEAPME, reliance by individuals on institutional principles was rejected in a number of judgments 50 Things are obviously different for acts of the European Union institutions adopted outside the framework of the EC Treaty, namely under the “second” and “third” pillars of the Union. Although most of the institutional principles would seem to apply to the EU as a whole, in view of the Union’s single institutional framework, the conditions for their judicial enforcement are obviously rather different outside the EC pillar. On the jurisdiction of the ECJ after Amsterdam, see P.J.G. Kapteyn, “The Court of Justice after Amsterdam: Taking Stock”, in T. Heukels, N. Blokker, M. Brus (eds), The European Union after Amsterdam—A Legal Analysis (Kluwer, The Hague, 1998), p. 139. 51 UEAPME v. Council, Case T-135/96 [1998] ECR II-2335, paragraph 89. One may note, though, that the applicant had invoked, among other grounds, a breach of the principles of subsidiarity and proportionality, but not of the principle of democracy (paragraph 23 of the judgment). 52 Opel Austria GmbH v. Council, Case T-115/94 [1997] ECR II-39, paragraphs 89–95. 53 P.J. Kuyper, “The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969”, (1998–1) Legal Issues of European Integration 1, 16.
98 Bruno de Witte of the European Court of Justice. In Hurd, the ECJ held that a private person could not rely on the (then) Article 5 of the EEC Treaty in domestic proceedings against the state, because the substance of the obligation deriving, for the United Kingdom, from its general duty of sincere cooperation with the Community, was not sufficiently precise to have direct effect.54 This formulation left open the possibility that, in other factual circumstances, the implications of Article 5 could be clear enough to have direct effect. In Vreugdenhil, a case decided some years later, the Court was confronted with the argument that the Commission had acted in breach of the division of powers between the institutions. The Court held that “the aim of the system of the division of powers between the various Community institutions is to ensure that the balance between the institutions provided for in the Treaty is maintained, and not to protect individuals” and that, consequently, “a failure to observe the balance between the institutions cannot be sufficient on its own to engage the Community’s liability towards the traders concerned”.55 It is unclear, though, whether this restrictive attitude is limited to liability cases, where the Court requires the violation of a rule of law for the protection of individuals,56 or whether it also extends to actions for annulment, where the violation of any higher norm of Community law can be invoked.57 Yet, an even stronger denial of the invocability of institutional principles came in the recent judgment in Bettati v. Safety Hi-Tech. In the course of a preliminary ruling on the validity of a Council Regulation on the protection of the ozone layer, the ECJ rejected an argument based on Article 5 EC Treaty (now Article 10) by stating that this provision imposed mutual duties of sincere cooperation on Member States and the Community institutions and that, consequently, it “cannot relate to a measure adopted by the Community legislature . . . which might possibly entail advantages or disadvantages for certain undertakings”.58 The language used in this phrase is fairly general. To the extent that all institutional principles impose, by definition, obligations only on the (EU and state) institutions, one would have to conclude from the statement in Bettati that they can never be invoked by individuals. But one should probably not draw such a radical conclusion from this one case. At any rate, there have been judgments in which the ECJ recognised, without any discussion, the possibility for individuals to invoke written institutional norms in support of
54 Hurd v. Jones (Her Majesty’s Inspector of Taxes), Case 44/84 [1986] ECR 29, paragraphs 46–49. 55 Industrie- en Handelsonderneming Vreugdenhil v. Commission, Case C-282/90 [1992] ECR I1937, paragraphs 20 and 21. 56 P.J.G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, 3rd edn., by L.W. Gormley (Kluwer Law International, London, 1998), p. 497. 57 For discussion of this question, see S. Prechal, “Institutional Balance: A Fragile Principle with Uncertain Contents”, in T. Heukels, N. Blokker, M. Brus (eds), The European Union after Amsterdam—A Legal Analysis (Kluwer Law International, The Hague, 1998), p. 273, pp. 281–283. 58 Gianni Bettati v. Safety Hi-tech Srl, Case C-341/94, judgment of 14 July 1998 (not yet reported), paragraph 77 (emphasis added).
Institutional Principles in Judicial Development of the EU Legal Order 99 actions for annulment of EC measures.59 To the extent that institutional principles are laid down in the text of the EC Treaty (as in the case of subsidiarity and “institutional” proportionality), they would seem to be available to individuals as a ground for requesting the annulment or invalidation of EC acts, either in an Article 230-action or in an Article 234-validity reference.
V . CONCLUSION : THE DEVELOPMENT OF INSTITUTIONAL PRINCIPLES AND THE ROLE OF THE ECJ
The recognition of general principles of EC law has been a central contribution of the ECJ to the constitutionalisation of the EC legal order. In contrast with the rudimentary distinction between primary law (the Treaties) and secondary law (all the rest) which formed the initial framework, the Community legal order now has, due to the Court’s contribution, a rather sophisticated system of sources of law which corresponds to the elaborate hierarchies of sources which one finds in some continental constitutional systems. In an article published in 1992, Pierre Pescatore emphasised “the absolutely fundamental character of what we are used to call the ‘doctrine of the sources of law’. Indeed, he who is the master of the sources of law is in truth the master of the criteria of legitimacy of the system, the guardian of the temple as it were”.60 The author of these words may have been inspired by his long experience as a judge at the European Court of Justice. With respect to fundamental rights, the Court’s decision to tap a new source of higher law was justified by the glaring lacuna, in this respect, in the EC Treaty, and the Member States have subsequently vindicated the Court’s active role. With respect to the relations between the Community institutions, such an active attitude would have been less justified, as these matters are dealt with in quite some detail in the Treaties. The Treaty rules may be confusing, or lack consistency, but they are not so rudimentary as to require the European Court actively to fill the gaps. Indeed, the ECJ has respected, by and large, the division of powers as it is established by the wording of the Treaty. The one major exception, namely the use of the principle of institutional balance as the basis for the Parliament’s standing to bring actions for annulment, was not seen by the Member States as an undue interference with their prerogatives, as they decided to codify the Chernobyl ruling in the new text of Article 173 enacted by the Treaty of Maastricht. As to the discovery of the additional dimensions of the principle of sincere cooperation, beyond the wording of Article 10 EC, this can, again, hardly be considered as a subversive move, but rather as a useful means for reinforcing, rather than redrawing, the general pattern of horizontal and vertical institutional relations in the European Union legal system. The European Court has, thereby, contributed to the “harmonious functioning of 59 60
A famous example is Roquette Frères v. Council, Case 138/79 [1980] ECR 3333. P. Pescatore, “La constitution, son contenu, son utilité”, (1992-I) 41 Revue de droit suisse 44.
100 Bruno de Witte the institutional system”61 and discouraged the institutions and the Member States from upsetting the existing division of powers and duties. Therefore, leaving aside the “pseudo-principles” of supremacy and direct effect, institutional principles of EU law have not played a really major role in the development of the EU legal order. However, the recent multiplication of express references to such institutional principles, in the text of both the EC and EU Treaty, may encourage the European Courts to use them more actively in the years to come. One may also hope for a more systematic approach from the side of the ECJ. Indeed, as has become clear from the preceding pages, the reconstruction of the case law on institutional principles is made difficult by the absence of clear guidance given by the Court on the significance which it attaches to the legal concepts it uses. One may recall, here, the comments of Hartley: “It should not . . . be thought that the Court always makes express reference to general principles whenever it propounds new rules of law. Sometimes it simply states a rule without any indication of its source; or it may give a justification based on policy or the general requirements of the Community legal system. However, if a formal source for such rules were required, it could always be found either on the basis of a wide interpretation of a written text or on the basis of the general principles”.62 In contrast with the case law on the general principles of EC law for the protection of the individual, in which the term “general principles” has become a term of art with a well-defined meaning, the term “principles” or “general principles” is, in the field of institutional relations, used in the erratic way described by Hartley. Sometimes, the term is not used where it would seem to be appropriate, namely where the Court discovers and applies an independent and unwritten source of law (as with the duty of cooperation of the Community towards the Member States, and of the institutions towards each other); on other occasions, the term principle is used where it does not have a distinctive legal meaning and its significance is merely rhetorical. Yet, what is probably more important than terminological consistency, is clarity about the legal status of institutional principles and, more particularly, their invocability by individuals before the European and national courts. These are questions to which, in the years to come, the European judiciary will have to give further thought.
61 This expression is borrowed from Jacqué, who concludes his analysis of the institutional principles by stating that these principles “trouvent leur source dans la nécessité de permettre un fonctionnement harmonieux de l’ensemble institutionnel créé par les traités” (J.P. Jacqué, “Charte constitutionnelle et structure institutionnelle de la Communauté”, in J.D. Mouton and T. Stein (eds), Towards a New Constitution for the European Union? The Intergovernmental Conference 1996 (Bundesanzeiger, Bonn, 1997), p. 73, p. 85). 62 T.C. Hartley, The Foundations of European Community Law, 4th edn. (OUP, Oxford, 1998), p. 132.
6
European Media Law: A Perspective on the Challenge of Multimedia KARL-HEINZ LADEUR
I . INTRODUCTION
The following considerations raise the question as to whether the media law and the media policy of the European Union (EU) are prepared for the rise of multimedia systems and the profound transformation of media markets to be expected, and especially whether its institutions, regulations and political strategies are adapted to the evolution of dynamic markets and the management of rapid technological change. In this perspective, problems related to the issues of regulations themselves have to be tackled. At the same time, the domain of action which is at stake has a paradigmatic importance for the future development of the EU in general and for the combination of its supranational and intergovernmental institutions, its cooperative relationship with the organisational infrastructure set up by private actors and for the level of Member State competences. The observation of the transnational phenomenon of productive and unproductive reciprocal influences between the legal systems and regulations of the Member States is gaining growing importance. After a short description of the development of European media law as it stands to date, especially the role of the television directive, the new problems raised by the growing importance of transborder communication processes and the institutional, economic and communicative aspects of antitrust in this domain will be tackled. Finally, the possibilities of the regulation of digital television, in particular, Pay-TV, will be considered. It will be shown that the risks for the internal market and the set up of a European public sphere are in a paradoxical way linked to a technology whose flexibility could at the same time play a path-breaking role in the process of the Europeanisation of the media themselves. At the same time it can be shown from the example of media law just how limited the strategic potential of the EU is and that European institutions are still not very adaptable and do not make use of flexible regulative approaches which are fine-tuned to the dynamic markets and technologies which underlie the rapid process of self-transformation. This is why the question has to be raised as to
102 Karl-Heinz Ladeur whether the EU should have a new agency which is responsible for the observation and monitoring of media developments and which, at the same time, could establish a meaningful process of coordination among the existing institutions of the Member States in this domain. This need not lead to a new accumulation of supranational decision-making power or to new problems of implementation but it could instead allow for the setting-up of a productive network of transnational interrelationships thereby inducing cooperation and competition of institutions among regulators of Member States.
II . DEVELOPMENT OF MEDIA REGULATION AND THE PRACTICE OF THE EUROPEAN COMMISSION AND THE COURT OF JUSTICE
The criterion which enables European institutions to take action in a certain domain is primarily the goal of attaining and securing the internal market. As most social transactions are in one way or the other linked to the medium “money”, the competences of the EU have considerably broadened in spite of the fact that it still does not have the “competence-competence” which is characteristic of the state; and, what is more, actions have also been extended to the media. In particular, the Green Paper of the EC Commission Television without Frontiers—a green paper on the establishment of a Common Market for broadcasting of 1984, has provoked a new discussion on the competences of the EC in the domain of “culture”.1 It has been quite a surprise for many lawyers outside the community of European lawyers in the stricter sense that the EC, which was still considered to be the European Economic Community, could claim to have competences in the domain of culture. In German constitutional law, the distribution of competences between the Länder and the Federation is dominated by the distinction of certain “subjects”.2 According to German constitutional law, the Länder are competent for the regulation of broadcasting and the media, whereas the Federation can take action in the domain of “economic law”.3 Naturally, this distinction creates a lot of problems concerning the interpretation of competencies. The distribution of competences in a federal state is linked to the presupposition of a unitary homogeneous economic market system and 1 Cf. R. Crauford Smith, Broadcasting Law and Fundamental Rights (Clarendon Press, Oxford, 1997), p. 188; J. Schwarze (ed.), Fernsehen ohne Grenzen. Die Errichtung des Gemeinsamen Marktes fuer den Rundfunk (Nomos, Baden-Baden, 1985). 2 For the German discussion cf. W.Hoffmann-Riem (ed.), Rundfunkrecht und Wettbewerbsrecht (Nomos, Baden-Baden, 1988); C.E. Eberle, “Aktivitäten der Europäischen Union auf dem Gebiet des Rundfunks und ihre Auswirkungen auf den öffentlich-rechtlichen Rundfunk”, ZUM 1995, 763–769; the ECJ acknowledged a competency of the EC for broadcasting at quite an early stage; cf. Sacchi [1974] ECR 409. 3 For a coordination of competencies in telecommunication and media law under conditions of complex technological issues cf. K.H. Ladeur, “Zur Notwendigkeit einer flexiblen Abstimmung von Bundes- und Landeskompetenzen auf den Gebieten des Telekommunikations- und des Rundfunkrechts”, ZUM 1998, 261–269.
A Perspective on the Challenge of Multimedia 103 legal order based on common principles. This is the condition for a relatively stable framework for distribution of competences following the idea of a separation of certain “subjects”. The construction of the EC and the internal market is, contrary to this state-based legal approach, considered as being dynamic, and for this reason it starts from the assumption that unity has to be designed and constructed and that institutions have to be adapted to moving targets. This approach does not only challenge the impermeability of national legal orders but excludes a systematic and stable approach to the distribution of competences between public actors, the nation-state and the EC as a supranational actor. This new approach is also a challenge to the established evolutionary process of cooperation between state and social actors. Regimes of explicit coordination and cooperation of private and public interests form an infrastructure for public regulation based on corporatistic political arrangements and which, at the same time, are not open or receptive to the interests of private actors from abroad. In broadcasting law, this goes as far as open discrimination against giving access to cable networks to foreign broadcasting operators4 which, until recently, was quite common in the broadcasting law of the German Länder and which even now has still not been completely abandoned. In this respect, open discrimination against foreign programmes has only been replaced by hidden forms of distinction according to the “relevance” of the contents. (The Commission will take action in this respect.) This is clearly unacceptable in the process of setting up a European Union. On the other hand, this specific dynamic construction of market-based attribution of competences to the European Union may appear to be quite problematic if Member States have taken an explicit decision against establishing a market regime within the broadcasting system and have developed their own organisation principles for public opinion. In most Member States the press is acting within a slightly modified market regime whereas broadcasting until recently was organised in public institutions related to a specific public financial regulation allowing public broadcasters to be more or less independent from the market for advertising. To regard this as an infringement of the establishment of the internal market would miss the point that different institutional alternatives, which cannot be evaluated following the parameter of the “internal market”, are at stake. The institutional decisions have been the object of constitutional controversies in most Member States. But from the outset, in German law for example, there is at least a consensus on the methodological frame of reference of this controversy, i.e. that the interpretation of the freedom of broadcasting according to Article 5, para. 1, of the Constitution is at stake. And the market model could not just be presupposed as a self-evident frame of reference for constitutional interpretation which turns public broadcasting into a clear case of deviation from the rule. The European conception of a functional 4
Cf. R. Dörr, “Die EU und die elektronischen Medien”, epd-medien no. 58 (1998), 2–14.
104 Karl-Heinz Ladeur distribution of competences seem to presuppose such a basic frame of reference. In this perspective the public broadcasting system appears from the outset to be an infringement of the market model which has to be legitimated. Nowadays, the problem appears less pressing because all Member States have in the meantime mitigated the monopoly of public broadcasting and have accepted private competitors as a component of a so-called “dual system” allowing for some leeway for the “market” as an institution but this does not end up in the establishment of private organisation as the paradigm for communication. On the contrary, the German Federal Constitutional Court assumes that in a constitutional perspective private broadcasting is only acceptable under the condition of a preservation and further development of public broadcasting. But as a consequence of the new mode of coordination of public and private broadcasting, broadcasters from other Member States can no longer be excluded from offering broadcasting services in any Member State. But the principal problem remains, because not only do public broadcasters and their special status continue to exist, and the public broadcasters still act within specific regulations limiting their orientation on market incentives,5 but the public component of the new “dual system” is regarded in several countries as the predominant one whereas private operators are only accepted as a supplementary component, a perspective which necessarily combines privileges for the public and limitations on private broadcasters.6 The question as to whether such a conception can also be used to hamper transborder transmission of broadcasting has been answered in the negative by the television Directive of 1989.7 Its approach has had considerable repercussions on the broadcasting regime of Member States: they may set up stricter regulations for national operators, but, on the other hand, the political pressure of these private broadcasters and the national regulation of broadcasting have to be taken into consideration. Even more important are the consequences for the specific regime of public broadcasting: The ECJ has taken a number of important decisions accepting special regimes for public organisation of communication in principle in the interest of the establishment of cultural pluralism.8 On the other hand, it has to be borne in mind that the Court refers to the principle of market freedom and regards broadcasting as a “service” protected by Article 59 TEU which underlines the principle of the internal market. The ECJ accepts 5 For the relationship between public and private broadcasting cf. Telemarketing [1985] ECR 3261: the dominant market position may also be due to the public character of the operator. 6 Cf. Reports of the Federal Constitutional Court BVerfGE 73, p. 118 et seq. 7 Cf. OJ L 298 of 17 Oct. 1989, 23; amended version: OJ L 202 of 30 July 1997, 60. The ECJ has accepted the intention to circumvent national regulations as reason for application of national discriminatory measures against transborder broadcasting (Veronica [1993] ECR-I 487; TV 10 [1994] ECR I-4795): but once the TV Directive has been put in place this argument loses more and more of its importance, at this point it is the law of the licensing state which counts, ECJ, Decision of 29 May 1997, ZUM 1997, 746, and of 5 June 1997, ZUM 1997, 934; cf. Crauford Smith, n. 1 above, p. 191. 8 Cf. Debauve [1980] ECR 3857; Kabelregeling/Bond van Adverteerders [1988] ECR 2085; TV 10 [1994] ECR I-4795; Gouda [1991] ECR I-4007; Veronica [1993] ECR I-487.
A Perspective on the Challenge of Multimedia 105 two basic exceptions to freedom of transborder broadcasting: On the first level it extends the exceptions of Article 56 TEU to the protection of a pluralistic TV system as being an issue of “public policy”; this approach allows for discriminatory measures. The second level consists of “general interests” recognised by Community law (the Veronica case). In this case the restriction has to be applied to domestic and foreign broadcasters alike.9 Pluralism is regarded as a “general interest” which can justify a restriction of the freedom of the market for services such as protection of health and environment where regulation has not been harmonised. But there is already a restriction inherent in this argument: protection of health and the environment as public interest are competing with private market principles but pluralism of the media cannot simply be regarded as a limit imposed on individual freedom but must be considered as a different organisation principle which is supposed to guarantee development and preservation of a specific process of communication within broadcasting systems. Consequently, in German law a doctrinal differentiation exists between organisational regulations (Ausgestaltung) of broadcasting regimes in the interest of pluralism on the one hand, and restrictions of substantive freedoms of action with reference to conflicting interests such as privacy, protection from defamation and protection of youth on the other hand.10 The ECJ, in fact, accepts two basic exceptions from freedom and non-discrimination of transborder flow of information. On the first level, it expands the exemptions of Article 56 for “public policy, public health or public security” reasons also to the protection of pluralism. This exemption is referred to in cases of discrimination against foreign broadcasters. In principle, pluralism can be a reason in the sense of Article 56 TEU as the ECJ has accepted in a Dutch case (Kabelregeling/Bond van Adverteerders) but not the protection of economic interests in general or the preservation of the economic basis of binational broadcasters. On the other hand, the ECJ treats pluralism just as a “general interest” which has to be subsumed under the inherent reservation of the freedom of services. In this case, only general non-discriminatory measures of protection applying to national and foreign broadcasters alike are legitimate. But the distinction between both levels is far from being evident because discriminatory effects are not easy to identify. There will always be different positions of national and foreign competitors, and, more often than not, a measure presupposing different starting positions and a measure reinforcing it cannot be clearly distinguished: for example, norms privileging broadcasters offering a variety of contents may in effect allow for discrimination of foreign broadcasters whose programmes are considered to be less “relevant”. The difference between both approaches should not be overestimated because in both cases a rather strict restriction of 9 Cf. also Crauford Smith, n. 1 above, p. 188 et seq.; H.T. Schütz, in R. Ricker and P. Schiwy, Rundfunkverfassungsrecht (Beck, München, 1997), p. 49 et seq. 10 Cf. S. Ruck, “Zur Unterscheidung von Ausgestaltungs- und Schrankengesetzen im Bereich des Rundfunkrechts”, Archiv des öffentlichen Rechts 117 (1992), 543–568.
106 Karl-Heinz Ladeur either “public policy” or “general interest” arguments based on the proportionality principle comes to the fore. The ECJ controls whether regulations protecting public broadcasting services are suitable and necessary for the preservation of pluralism.11 Though some leeway is given to Member States, the approach as such is still based on the market as a frame of reference for this evaluation. This is why the Court practice remains far from being clear and calculable. This can be demonstrated by reference to the legitimacy of the Dutch broadcasting model and the monopoly attributed to a company for the transmission of advertising in order to limit direct influence of advertisers on programming. The ECJ in general accepts that this regulation is meant to protect pluralism as a public interest while the approach itself fails the test of the “inevitability” in the concrete case.12 At this point, the dilemma of the conceptional and the functional attribution of competences between the EU and Member States comes to the fore. Pluralism is regarded to be a public interest of the Member State whereas the evolution of the internal market is considered to be a common European interest to be protected by European institutions. The TEU in the Maastricht version now acknowledges the cultural component of the Treaty—this does not bring new competences to the EU but cultural interests have to be considered in using competences to be derived from other norms of the Treaty (Article 128, para.4). But in our case this does not lead very far; the same is valid for the consideration of the freedom of opinion as protected by Article 10 of the European Convention on Human Rights that the ECJ refers to in several cases.13 The Convention has chosen a rather individualistic version of the freedom of the media but it is quite doubtful whether this international Treaty can be interpretated in the same way as the TEU meant it to set up a closely integrated legal community. It would have been necessary to develop a more cooperative approach by trying to coordinate a basic freedom of the Treaty with the constitutional conception of Member States concerning broadcasting, and it would have been more productive in cases of conflict to test whether economic privileges of national operators whose programmes do not differ much from those of competing operators from abroad are at stake or whether interests of public pluralism are at stake. Pluralism and market principles should be treated on par but pluralism should not be taken to be an exception to the rule of market freedom in this field. This is all the more important as most cases decided by the ECJ concern smaller Member States trying to preserve cultural pluralism. This is a development which shows again that broadcasting transmissions are not just services like all others and that language is still an important barrier to a European public media 11
Cf. Kabelregeling/Bond van Adverteerders [1988] ECR 2085. Cf. Crauford Smith, n. 1 above, p. 191; Schütz, n. 9 above, p. 494 and the decisions of the ECJ quoted in n. 8 above. 13 Cf. Rutili [1975] ECR 1219; cf. for the practice of the ECHR Groppera (1990) 12 EHHR 321; Lentia (1994) 17 EHHR 93; cf. also C. Engel, “The Position of Public Monopolies and Cable Monopolies under the European Convention on Human Rights”, in E.J. Mestmaecker (ed.), The Law and Economics of Transborder Telecommunications (Nomos, Baden-Baden, 1987), pp. 55–70. 12
A Perspective on the Challenge of Multimedia 107 domain. (This aspect is, on the other hand, referred to in cases of merger control where the determination of the relevant market is based among others on language barriers—an approach which tends, in a paradoxical way, to limit the scope of merger control in the domain of media). This cooperative approach will also be in conformity with the institutional model of the EU which is not based on a comprehensive concept of a constitution like a state but rather is oriented on a concept of a cooperative network of states.14 With respect to broadcasting law, the EU organs have to be more aware of the fact that the internal market in the domain of television programmes can only attain a rather limited level of integration in that foreign programmes will be more successful in those countries where people are already used to the multilingual facet of all subtitled film programmes, i.e. in smaller Member States.15 One could summarise the preceding remarks with the hypothesis that the TEU and European media law as well as the relevant decisions of the ECJ are characterised by a one-sided conception oriented on the internal market which regards Member State laws favouring pluralism as restrictions of the basic free liberties of the TEU and does not accept pluralism as an organizational principle which is on a par with the market as an institution.
III . EU LAW AND MEDIA CONCENTRATION
1. The law as it stands In the law of media concentration, differentiations have to be made between the formation of cartels, mergers and abuse of market power. It need not be mentioned that primary EU law (Articles 85, 86 TEU) as well as the Merger Control Regulation are in principle applicable to broadcasting and other media.16 In the case of media-related regulation, the problem consisted of the fact that specific law existed to protect pluralism on the very level at which the Member States 14 Cf. K.H. Ladeur, “Towards a Legal Theory of Supranationality: The Viability of the Network Concept”, (1997) 3 European Law Journal 33–54. 15 Cf. BVerfGE 89, 155, 200 et seq. 16 Cf. OJ L 395 of 30 Dec. 1989, 1; OJ L 180 of 9 July 1997, 1; Th. Jestaedt and J.Anweiler, “Europäische Fusionskontrolle im Medienbereich”, Europaeische Zeitschrift fuer Wirtschaftsrecht 1997, 549–555; Ch. Wagner, “Konzentrationskontrolle im Medienbinnenmarkt der EG”, Archiv fuer Presserecht 1992, 1–11; B. Holznagel, “Broadcasting Law and Regulation of the EC”, in id. ELSA (eds.) Media Law in Europe, (Loew & Vorderwülbecke, Hamburg, 1988) p. 1–22; cf. also the Decisions of the Commission concerning mergers of CLT/Disney (SuperRTL) 15 May 1995 OJ IV/M 566 no. 30 and Kirch/Richemont/Multichoice/Telepi`u of 5 May 1995 OJ IV/M 584 no. 24 (accepted). The Commision is on the contrary rather critical in cases of vertical mergers: RTL/Veronica/Endemol (a producer of TV programmes) of 20 September 1995 OJ No. L 134, p. 32, and especially in cases of potential technical barriers to market entry cf. MSG (digital TV in Germany) of 9 November 1994 OJ No. L 364 p. 1 and the new case of Beta Research (again digital TV in Germany, reported in Franfurter Allgemeine Zeitung of 28 May1998, p. 23); and the Magill case concerning exclusive distribution of TV-programme information (Decision of the Commission of 21 December 1988, OJ 1989 No. L 78, p. 43.
108 Karl-Heinz Ladeur could get into conflict with the necessities of the internal market, whereas in the domain of competition law we are confronted with a second effect of a certain one-sided orientation on markets as such. As a consequence, EC law does not contain any specific rules concerning the market for media. This is quite consistent with the concentration on market rationality which does not differentiate between types of goods which might have major importance for cultural identity, at least not beyond clear and evident failure of the market to provide public goods. This would be again an approach introducing certain proof-rules for the evaluation of rules set up for the compensation of market failure. Lack of specification of competition law preventing media concentration is only the flipside of market orientation. Media concentration has not been regarded by the Commission as being a European issue as long as it does not affect the openness of markets but cultural pluralism instead. Until recently, the Commission followed the assumption that this issue should be tackled by Member States. This evolution is reflected by the fact that decisions of the Commission and the ECJ in this field have not been numerous until recently and in fact have had only limited importance.17 The decisive problem is to be seen in the fact that the level of intervention prohibiting concentration processes is very high whereas, for example in Germany, there is a differentiated level of intervention; a higher one for concentration processes in general and a lower one for media concentration. On the other hand, the Commission and the ECJ tend to interpret the transborder relevance of concentration processes in a rather opportunistic way. The Commission, in particular, has previously only intervened in cases of vertical mergers (TV operators and the programme industry: RTL/Veronica/Endemol) and in the Magill case (concerning exclusive distribution of TV programme information). Horizontal mergers have been treated in a very “generous” way. In several cases (CLT/UFA-Bertelsmann) the existence of a powerful competitor has been used as an argument in favour of a merger or the transborder effect has been evaluated in a restrictive sense. This can be demonstrated in the case of the cooperation between Sky International and BSB which was not prohibited by the Commission though the level of intervention had been reached because the new entity BSkyB Satellite TV was supposed to gain more than two thirds of its turnover in the United Kingdom.18 For the time being, this assumption may have been justified but it was quite evident that the merger was meant to be the starting point for the entrance into global business. For the market of the United Kingdom, the new company should have appeared to be oversized. Three more cases concerned vertical mergers in Scandinavia (Nordic Satellite) and Germany (MSG and Beta Research) which were all prohibited.19 In the Scandinavian case, an integrated technological distribution structure for satellite television was at 17 The rise of digital TV has led to some major interventions into the concentration process; cf. the decisions of the Commission mentioned in n. 16 above: see also the case of Nordic Satellite of 19 July 1995 OJ No. L 53, p. 20 concerning also a merger creating potential technical barriers to market entry of competitors (a global satellite system for Scandinavia). 18 Cf. Wagner, n. 16 above, p. 9. 19 Cf. decisions referred to in n. 16.
A Perspective on the Challenge of Multimedia 109 stake, whereas in the two German cases, it was a merger of media enterprises, owners of programme rights (Bertelsmann and Kirch) and the monopolistic enterprise operating cable network (Deutsche Telekom) for the purpose of the common development and distribution of the signal decoder (box) which is needed for the operation of conditional access systems for digital TV. Especially in the latter case, it is quite doubtful whether such an intervention can be meaningful if one bears in mind that the EU does not have specific competences for the management of the rather complex technical issues of guaranteeing nondiscriminatory rules for the use of conditional access systems. As it would not be useful to have several competing signal decoders on the market because of the network effect of this instrument, it might have been more useful to have a differentiated regulation including common carrier restrictions, imposing common standards. At this point, the Directive on the transmission of TV signals and the use of conditional access systems is formulated in a very general way. The impression is confirmed that the Commission is rather strict on problems of technical barriers and vertical mergers. Once again one could venture the hypothesis that a one-sided orientation on the market prevents European merger control on media markets from being effective because the level of intervention is too high, or that the Commission and the ECJ lack a specific regulatory approach where the technical and mediarelated issues in their strictest senses are at stake.20 Of course, there are some decisions concerning the use of power in the domain of the media especially by way of vertical mergers and cooperation, such as the Magill case21 which concerned restricted distribution of programme information by broadcasters to newspapers. But these cases do not have major importance for the development of the media. The same problem comes to the fore in the domain of the sales of programme rights. The purchase of a high number of film rights by a private enterprise (Kirch in Germany) has not been hampered by the EU whereas rather marginal transactions and explicit forms of coordination used by public broadcasters have been turned down as being abusive.22 On the other hand, an exception to the rules of merger control concerning the agreement between Paramount/ MGM/Universal has been revoked. This is a decision which appears to have been stricter because American firms are involved.23 Cooperation schemes between public broadcasters have the disadvantage of being explicit and visible, 20 Cf. Jestaedt and Anweiler, n. 16 above; M. Motta and M. Polo, “Concentration and Public Politics in the Broadcasting Industry: The Future of TV”, (1997) 25 Economic Policy 293–334; E. Barendt, “Towards a European Media Law”, (1994) MLJ 41–55. 21 Cf. Magill (Comission Decision of 21 December 1988, OJ 1989 No. L 78, p. 43). 22 Cf. EBU [1974] ECR 401; ARD/MGM (Commission) OJ No. L 284 of 3 October 1989; EBU (Commission) OJ 1991 No. L 63, p. 32; EBU (Commission) OJ 1993 No. L 179, 23; EBU (Commission) Decision 93/403 annulled by the European Court of the First Instance, Decision of 11 July 1996, ZUM 1996, 885. 23 Cf. the decision of the Commission against a renewal of an exception granted to Paramount/MGM/Universal of February 1998; Dörr, n. 4 above, p. 12.
110 Karl-Heinz Ladeur whereas many problematic developments in the sector of private media are hidden from public observation. At any rate, the explosion of prices in the market of film and especially sports rights (football)24 is a problem for the development of free TV in Europe because it may undermine the financial basis of free TV and tends to broaden the gap between extremely expensive programme rights on the one hand and B-movies and similar cheap productions (talk shows, soap operas etc.), which are put under extreme pressure for reducing costs on the other hand. This will be a major concern for the policy oriented on the preservation of pluralism in the media, because the rise of prices in one sector of the media market necessarily has repercussions in other parts of the market. The recent reform of the television Directive restricting transmissions of “major events” in Pay-TV25 is, in fact, a quite important step in this direction. But the approach taken seems to be rather misleading because the rule enabling Member States to set up lists of major events which come under this new regime refers to the public interest in open information on issues of general interest. It would not have been preferable to introduce such a substantive differentiation between major and less important events but it should have focused instead on the broader issue of the development of prices in the market for programme rights. While talking about the dark side of European media law, reference has to be made to the quota for “European content”26 which appears to be parochial and, on the other hand, does not tackle the serious problems of financial, managerial, distributional and artistic deficiencies of specific European film production. This is a serious problem and should have been tackled in a more consistent and a more systematic way than by extending some minor subventions to European film producers. It is quite symptomatic for badly designed strategies in the area of media and the kind of general industrial policy that a great deal of money has been wasted on the support of TV films in the new 16:9 format which have then been broadcasted only in the traditional format.27 24 Cf. D. Brinckman and E. Vollebregt, “The Marketing of Sport and its Relation to E.C. Competition Law”, (1998) European Competition Law Review 281–288; C. Cowie and M. Williams, “The Economics of Sport Rights”, (1997) 21 Telecommunications Policy 619–634; K.H. Ladeur, “Pay-TV und Exklusivverträge über Senderechte fuer Sportveranstaltungen”, Sport und Recht 1998, 54–61; R.W. Bennett and J.L. Fizel, “Telecast Regulation and Competitive Balance: Regarding NCAA Division 1 Football”, (1995) 54 American Journal of Economics and Sociology 183–199; in an economic perspective C. Cowie and M. Williams, “The Economics of Sports Rights”, (1997) 21 Telecommunications Policy 619–634. 25 Cf. Directive of the European Parliament and Council of 30 June 1997 No. 97/36, amending the Directive of 3 October 1989 (89/552/EC); M. Schmitt-Vockenhausen, “Revision der EGFernsehrichtlinie”, ZUM 1998, 377–388; for the original version cf. R. Wallace and D. Goldberg, “The EEC Directive on TV Broadcasting”, (1989) 9 Yearbook of European Law 175–196. 26 Cf. Motta and Polo, n. 20 above, p. 324; Dörr, n. 4 above; A. Schardt, “Novellierung der Richtlinie ‘Fernsehen ohne Grenzen’: Quoten ohne Ende?”, ZUM 1995, 763–769; for the economic development cf. J. Hughes, “The New Hollywood Studios and the Optimization of Rights”, (1997) 25 Intermedia, no. 5, 4–8. 27 Cf. B.W. Wieland and F. Schneider, “Regulierung und Industriepolitik in der europaeischen Film- und Fernsehindustrie”, Jahrbuch für Neue Politische Ökonomie 13 (1994), 211–234; for the support of the European film industry cf. the EC-Programme “Media II” 1996–2000; U. Schneider, “Auswirkungen des MEDIA Programms auf die europäische Filmindustrie”, ZUM (1994), 769–772;
A Perspective on the Challenge of Multimedia 111 One problem of coordination between the market-oriented competition policy and the more specific regulatory approaches which are—strictly speaking— more finely tuned to conditions of media production can also be observed in the domain of concentration in cable networks: The EU Commission investigates whether the dual monopoly of the German Telekom in the domain of telephony and cable television is in conformity with the requirements of competition law. This may, in fact, be a problem but it is very doubtful that an intervention aiming at a separation of the two networks can be productive without a comprehensive conception of the new multimedia system. On the other hand, there are EU programmes and prospects for the development of a new European information infrastructure based on the multimedia, but either the approach is too narrowly designed for the development of the telecommunications industries or it remains on a highly abstract and general level and does not fit into a consistent strategy of a multimedia development for Europe.28
2. Competences of the EU for specific regulations on competition law in the domain of the media? The Commission has, in fact, taken up the problems of globalisation of media markets raised by the rapid evolution of information technology and has, in particular, discussed the possibility of an insertion of new specifications for mergers of media enterprises amending the merger control regulation. In recent years, a “non-paper” which tries to tackle these problems has been circulated29 and has finally led to a formal draft of the Commission. This issue again has shed some light on the difficulties of the European regulations of media concentration by trying to build a bridge between the market and vested interests. Once the problem is seen in the light of the guarantee of pluralism in Europe and in the Member States then the question of the competences of the EC has to be for legal aspects see European Court of the First Instance Decision of 19 February 1998, ZUM 42(1998), 403. On the occasion of the European Film Forum, held at Strasbourg in September 1998, the European Commission declared its willingness to double the budget of the MEDIA programme (Neue Zuercher Zeitung of 2 October 1998, 48). New risks for the financial support of European films arise from the Multilateral Investment Agreement set up to introduce unlimited freedom of investments also in the cultural sector. It would make European programmes impossible. 28 Cf. only M. Cave and C. Cowie, “Regulating Conditional Access in European Pay Broadcasting”, (1996) 20 Telecommunications Policy 119–142; for the United Kingdom L.P. Hitchens, “Digital Broadcasting: The Government’s Proposals—The Doubtful Revolution”, (1996) 59 Modern Law Review 427–442; W. Hoffmann-Riem, “New Challenges for European Multimedia Policy: A German Perspective”, (1996) 11 European Journal of Communication 327–346; for an economic calculation of the prospect of Pay-TV and its consequences for free TV cf. “Economic Implications of New Communication Technologies on the Audiovisual Markets” by Norcotel (Dublin), of 15 April 1997, prepared for GD X; A. Cawson and P. Holmes, “Technology Policy and Competition Issues in the Transition to Advanced TV Services in Europe”, (1995) 2 Journal of European Public Policy 650–671. 29 Cf. the Greenbook on Pluralism and Media-Concentration in the Internal Market of 1992 which tends to leave pluralism to the care of Member States.
112 Karl-Heinz Ladeur raised. If the focus is on pluralism in its strictest sense, the answer will be in favour of the Member States—and one has to admit that the lack of a European public sphere comes to the fore—it is not a question of a transborder flow of information but of cultural variety and pluralism for which the EU does not have the competence. At this point, the subsidiarity principle need not even be mentioned. Article 128, para. 4 TEU has not enlarged the competences of the European Union, though once concentration is at stake, the EU must have the possibility of adapting regulations to tackle specific aspects of merger control in different markets. Pluralism is not the only aspect media concentration has to refer to; it also raises different economic problems for which the EU can claim to have competences. The Bangemann Report30 is quite symptomatic of the approach of the EU in this respect. It refers to the fact that the European media market to date is rather fragmented and that the pressure for globalisation exercised on media enterprises has to be managed on the basis of clear and homogeneous legal limits for mergers in the domain of media. This is clearly an important aspect, though the focus has in quite a characteristic manner shifted to regarding merger control as a restriction imposed on global competition which should be prevented by the EU. The transborder and internal market-related aspect which gives the legitimation to EU competences would then in a quite paradoxical view consist of some countries tending to impose more lenient rules on their media enterprises in order to support their globalisation strategies whereas others try to produce the contrary effect by way of stricter requirements of competition law. This brings quite a problematic aspect into competition law. Increasingly, the EC Commission tends to play down problems of media control by referring to the necessities of global competition, especially with the American industry. However, the competence for the EU in the domain of media concentration should not be denied because of the close relationship between competition and the specific conditions of the market for the media. The arguments raised in the German literature are, in particular, not very plausible.31 Even in German constitutional law, it has been accepted by the Federal Constitutional Court that a federal antitrust law can introduce differentiations concerning the specificities of the media even though the media law as such comes under the competence of the Länder because there is a necessary link between both domains of the law in this respect.32 And the same should be valid for EU law because of Article 128, para. 4 TEU. If one bears in mind that there is a certain tendency towards entering into a race to the bottom because globalisation strategies are at stake, supranational competences could help Member States to establish a meaningful 30 Cf. M. Bangemann et al., Europe and the Global Information Society. Recommendations to the European Council (1994); P. Curwen, “Telecommunications Policy in the EU: Developing the Information Superhighway”, (1995) 33 Journal of Common Market Studies 331–336. 31 Cf. G. Ress (Expertise for the German Federation of Newspaper Publishers), “Summary”, epd-medien no. 66 (1997) 22; for the (critical) approach of the German government cf. Dörr, n. 4 above, p. 11. 32 Cf. BVerfG, Neue Juristische Wochenschrift 1986, 1743.
A Perspective on the Challenge of Multimedia 113 regulation of media mergers. On the other hand, one must clearly accept that the Commission tends, in some respect, even to favour media concentration and the aspect of unforeseen global competition. The function of the supranational element in this regulatory arena remains somewhat ambivalent in the end. 3. The planned regulation of media control The above-mentioned “non-paper” tries to set up a model of observation and restriction of concentration processes in the domain of media on the basis of a market share model determining a 30 per cent share of “mono-media” audience as being the upper level of acceptable concentration. The level for “multi-media” is set at a market share of 10 per cent per media. The “non-paper” takes into account the reality of inter- and multi-media mergers and stresses the influence the enterprise has gained as “media-controller” with no relevant media markets including ownership of the press and of programme rights. At first sight, this regulatory approach seems to be quite convincing. Further reflection leads to some inconsistencies which might confront the implementation process of a future directive with unsurmountable problems. First of all, it is far from being evident that the press should be included in the market share under scrutiny because tendencies of globalisation are less important in this part of the market. Later problems might also arise when it comes to problems of measurement of the “audience share”. Methods of calculation might be very different in various Member States; judging from the example of Germany, where such a model has been set up for the observation of concentration processes in broadcasting, one can still not be sure whether this is a manageable system or whether its complexities, which give leeway to different evaluations, are really manageable. Without a specific procedural rule on methods of evaluation and the establishment of a common European independent Commission, the problem might be impracticable. The same is valid for the problem of how to react to concentration processes attaining the intervention level. This is again a highly conflictual issue because the implementation of control is very different, once it is not an explicit merger which is at stake but internal growth of an enterprise which might be limited by various methods including the imposition of a programming council to be given meaningful influence on programming decisions. Perhaps a better alternative may be seen in the concentration of European regulations on certain strategic interventions regarding global tendencies instead of a very broad regulation which in the final analysis will lack a satisfactory institutional procedural and empirical basis for decision-making. To date a lot of public and private actors have tried to resist the introduction of the new regulation for “media-control”. This is why it seems to be quite unlikely that they will be accepted in the near future.33 33 One has to be sceptical as far as the realisation of this directive is concerned, cf. Dörr, n. 4 above, p. 11.
114 Karl-Heinz Ladeur
4. The monopolization of programme rights as a regulatory problem European media law could perhaps gain more efficiency if it tried to find a more strategic cooperative role which takes into account the deficiencies of the rulemaking of Member States in this field. It is especially the market for film and sports rights which will undergo a process of Europeanisation and globalisation.34 Until now, national markets were kept relatively separate because rights were sold in a fragmentary way. In the future, a global market for programme rights will be established, an evolution which will create new bottlenecks for the television market once scarcity of distribution and transmission resources have lost their importance. In this respect, the risk of the rise of new monopolies is quite serious, probably more serious than new distributional monopolies. This new evolution has hitherto not been taken seriously because the focus has been on monopolies of transmission. In the future, there will be an increasing abundance of broadcasters while the scarcity of attractive programmes will be the new issue for a policy of preservation of pluralism. This should be a primary concern for the EU Commission because once a European market, perhaps not for television but for programme rights, has been established, it will be almost impossible for Member States to impose regulatory regimes at national level. One could consider structural regulations which establish separation between broadcasting operators and distributors of programme rights; on the other hand, temporal limitations of programme rights should also be considered.35 One could think about regulations which would impose a duty on organisers of major events to split transmission rights into temporal “slots” in order to create a market which, because of the extreme temporal concentration of attention and interest, does not really exist: sports rights have a market value only for some hours; but, in principle, there is not much of a difference in the film market. Once the interest in a new film has cooled off, it has to compete on the market for “old” films and therefore loses its exclusivity. European media law could develop its own contours in this domain and gain growing importance in a cooperative venture of support for national media law which in this respect remains underdeveloped and is restricted to traditional instruments of competition law. The new television Directive contains some possibilities of restricting transmissions on major events to free TV.36 But as mentioned above the approach 34 Cf. generally K.H. Ladeur, “Die vertikale Integration von Film-, Fernseh- und VideoWirtschaft als Herausforderung der Medienregulierung”, Rundfunk und Fernsehen (1998), 5–23. 35 Cf. M. Cave, “Regulating Digital TV in a Convergent World”, (1997) 21 Telecommunications Policy 575–596, 584; D. Nolan, “Bottlenecks in Pay-TV. Impact of Market Development in Europe”, (1997) 21 Telecommunications Policy 597–610; J. Salomon and D. Walker, “Separating Infrastructure and Service Provision”, (1995) 19 Telecommunications Policy. 83–89 ; Ladeur, n. 34 above. 36 Cf. A. Forrest, “La politique audio-visuelle de l’Union Europeenne”, Revue du Marché Commun et de l‘Union Européenne 1997, 595–610.
A Perspective on the Challenge of Multimedia 115 appears to be rather unsystematic and not well designed because the problem is defined as a problem of the price of programme right and not of general accessibility of information. Since the end of the 1970s, the price for sports rights has risen by almost 10,000 per cent. This evolution ends up in the establishment of new monopolistic rents for performances which, because of the attention for innovation, can only be used within a limited time span and which, at the same time, can earn high prices because of considerable network effects and high sunk costs. Beyond a certain minimal audience the further distribution of films does not entail any additional costs but raises the net profit enormously. The difference of production and distributional costs between a film attaining an audience of one million spectators and a hundred million is next to nothing. Programme right are increasingly exploited on the basis of vertical mergers over a line of different “windows”.37 Films are shown in more attractive cinemas, then they are distributed on the video market, after which they may pass to Pay-TV and finally end up on free TV. This chain of exploitation of film rights is pushed by the production of “blockbusters” of the Hollywood type using differentiated marketing strategies to raise the attention of global audiences for a very short period of time. At this point, one has to be aware of the fact that there is a new link between a control strategy concerned about preservation of pluralism on the one hand and an economic approach which is more finely tuned to specific network effects38 created by the media and which comes to the fore once the problem of monopoly of distribution is fading on the other hand. As mentioned above, the European policy of favouring “European content” could lose its protectionist touch and be reformulated as a consistent policy of introducing variety into markets for cultural goods underlying the regime of a specific network economy. It should be accepted that there is a specific “cultural economy” which is constrained by different conditions of production, higher risks of failure and higher profits. Under this aspect, a financial contribution to be imposed on the “super-film” could be considered in so far as it “consumes” too much variety, whereas financial support should be regarded as a kind of investment in “venture capital” which is all the more important because of the constraints of high-risk production in the media economy.
IV . THE REGULATION OF DIGITAL TV
1. The transformation of media market by digital TV technologies The rather ambivalent impression of European media law is confirmed once a new central regulatory problem is taken into account: the introduction of 37
Cf. Ladeur, n. 34 above. Cf. A.B. Albarran and J. Dimmick, “Concentration and Economics of Multiformity in the Communication Industry”, (1996) 9 Journal of Media Economics 41–50. 38
116 Karl-Heinz Ladeur digital TV in Europe.39 It is especially digitalisation of programme transmission and the higher level of flexibility and variety of transmissions which enables the development of a rational and realistic strategy of Europeanisation of television. Classical television and its “comprehensive programme” was adapted to a homogeneous audience based on the cultural patterns of a public sphere centred round the institutionalised public arena of the nation-state. Digitalisation and the dissolution of the comprehensive programme by a plurality of different programming elements which can be marketed in different flexible formats allows for the intervention of transnational media enterprises. Digitalisation is at the same time the practical basis for the spread of Pay-TV. The offer is more individualised and fragmented and allows for new options of distribution which could also be used in the perspective of globalisation focusing on a local public for a delocalised culture. Digitalisation of TV signals raises a lot of new technical problems requiring regulation and, at the same time, creating a lot of difficulties in the implementation process because of its complexity. Pay-TV is dependent on the functioning of conditional access systems converting the digital signal into analogue signals to which today’s TV sets are still adapted; and, at the same time, this decoder (“set-top-box”) is used for subscriber management and for the unscrambling of signals.40 At this point, transmission systems can no longer be regarded as rigid transport systems. Transmission systems nowadays consist of different layers of software integrated into a “network of networks” (E. Noam) leading to a “system of systems” generating a high level of technological “intelligence” and relational flexibility allowing for linkages of different services and technologies. According to different transmission technologies (terrestrial, satellite, cable or a combination of these technologies), packages of bits have to be compressed into so-called multiplexes, scrambled, converted to transmission technologies, transported and finally descrambled, not to mention the possibilities of linking different information packages to one another (film on one channel, additional documentation on a special interest channel, on-line information, programming information contained in the electronic programme guide, specific links between information and commercial advertising, etc.).41 The risks related to this new flexible information technology can be demonstrated with the example of the decoder. The decoder can be based on a proprietary technology finely tuned to the needs of the specific operator constraining competitors to use their own proprietary systems and could also be established as a kind of “common carrier” working on the basis of adaptive general stan39 Cf. C. Cowie, “The Evolution of Digital TV in Europe and the Regulation of Conditional Access 1991–1995”, DIW-Vierteljahresschrift 1996, 471–481: R. Cawley, “European Aspects of Regulation of Pay-TV”, (1997) 21 Telecommunications Policy 677–691; Cawson and Holmes, n. 28 above. C.T. Marsden, S.G. Verhuulst (eds.) Convergence in Europe (Blackstone, London, 1999). 40 Cf. B. Holznagel, “Probleme der Rundfunkregulierung im Multimedia-Zeitalter”, ZUM 1996, 16–25. 41 Cf. H. Gersdorf, Regulierungsstrategien bei der Belegung digitaler Kabelnetze (Vistas, Berlin, 1996), p. 38.
A Perspective on the Challenge of Multimedia 117 dards and being programmed for a download of more sophisticated new software in the future. The same problems are related to the electronic programme guide whose level of “intelligence” can be developed in different forms. This perspective allows a lot of different options and also for the establishment of bottlenecks.
2. Development of the European Directive on standardisation of TV signals In this domain of the regulation of the technical basis which is increasingly intertwined with issues of telecommunication and media policy, the European institutions are confronted with a general problem: open access to markets in Europe in the domain of digital TV is increasingly a technical problem. This is why the Commission has tried to introduce common standards for TV in Europe which allow for interconnection and interoperability of systems and TV sets. In the field of media technologies, a specific version of the “new approach” to harmonisation has been searched for. In the field of television, the EU Commission has had some negative experience in the strategy of standardisation of high-definition TV (HDTV). Here, the Commission tried to formulate a standard in close cooperation with the European entertainment electronics industry (MAC) while the simultaneous rise of digitalisation made its efforts almost meaningless.42 This failure showed the risk of a close link between the Commission and an industry with a rather narrowly defined interest in the process of standard-setting. The Federal Communications Commission of the USA formulated a more open and more inclusive “grand alliance” based on a variety of industrial interests including the computer industry which tends to be much more innovative than the electronics entertainment industry.43 In this respect, the European Commission once again demonstrated a lack of strategic perspective and wasted a lot of time in the search for an outdated standard orientated on the interests of the electronics entertainment industry.44 After this negative experience, participants in the process of discussing standards and regulation for conditional access to digital TV systems were more reluctant to agree to a common standard. In this respect, the Directive on digital TV signals (95/47) has created a rather paradoxical normative structure.45 It prescribes the use of agreed transmission standards and the agreement on conditional access whereas coordination of technologies in detail is left to market forces which should decide on an adequate level of standardisation and make the standard themselves. A new digital video broadcasting group which has 42 Cf. D. Levy, “The Regulation of Digital Access Systems: A Case Study in European Policy Making”, (1997) 21 Telecommunications Policy 661–676; Cowie, n. 39 above. 43 Cf. the description by J.S. Lim, “Digital TV—Here at last”, Scientific American (May 1998). 44 Cf. Levy, n. 42 above. 45 Directive of 24 October1995 No. 95/47, OJ No. L 281, p. 51.
118 Karl-Heinz Ladeur expressly rejected any institutional or financial help by the EU has been set up; it includes broadcasters, the computer industry, regulators etc., and tries to develop standards in a flexible step-by-step approach.46 But until the end of 1997, the majority of conditional access systems in Europe were still “proprietary” and compatible to different systems only in a limited way which creates a new demand for costly conversion and different levels of quality of systems services and interoperability. The same is valid for the hardware of decoders and the “application programming interfaces” (API), the standards of which are important for the linkage between multimedia systems of different operators. Though the “interconnection of networks and interoperability of services and applications” are mentioned as “primary union objectives” in the Bangemann Report,47 there is, in reality, not much concrete reference to this option in the Directive itself because the Commission has changed from its failed illusionary integrative approach taken on the HDTV issue to a pragmatic approach which leaves major problems open without even finding a procedural link to the standardisation process set up by the DVB group. A more realistic pragmatic conception giving leeway to actors in a highly dynamic market could, at least, have led to a more clearly dimensioned strategic approach concentrating on interoperability to be established on the basis of different standards for proprietary systems and networks. In particular, the Directive does not determine a duty to include common interfaces in conditional access systems instead restricting itself to a prohibition of agreements between operators and producers of decoders that prevent the latter from the exclusion of common interfaces. Consequently, operators have the right to use proprietary systems, once they are less expensive and operators should have the duty to give sufficient information on technical requirements to potential suppliers of services.
3. Shifting problems to the level of implementation Complex technological problems can only be regulated on the basis of consensus with the relevant industrial actors and the EU should try to find a new strategic approach focusing on building coalitions and avoiding the alternative of pushing the technological solutions of public actors and blindly waiting for the outcome of the consensus building processes without caring about the possibilities of finding compromises. If one bears this in mind, a strategic intervention using constraints to impose solutions could be successful. This can be learned from the experience of the American “grand alliance”. The Commission could have recognised that a consensus at the time of the formulation of the Directive was not in sight. On the other hand, the regulation was too complex for the imposing of a solution by the Commission itself. Consequently, in 1993 the 46 47
Cf. http://www.dvb-group.org. Cf. Cowie, n. 39 above.
A Perspective on the Challenge of Multimedia 119 Commission was confronted with the argument of the potential Pay-TV operators that a constraint for general access to networks or the establishment of common interfaces and equivalent modes of interoperability could have the effect of postponing the introduction of Pay-TV for years;48 this argument could not be refused by the Commission. In reality, the introduction of Pay-TV systems was only started in France in April 1996 (Canal+), in Germany at the end of 1997 (DF 1 and Premiere Digital), while in the United Kingdom the start for BSkyB was postponed again and again (it started on 1 October 1998; a month later ONdigital followed. The two operators, by the way, use different incompatible decoders which will probably only be interoperable with the introduction of a “sidecar” in the future).49 It is only the European Parliament that insisted on the introduction of a duty to guarantee “fair, reasonable and nondiscriminatory access” to conditional access systems, if only in a very general way. This duty is supplemented by an important but not sufficient procedural requirement, i.e. the obligation to separate the accounts for services with reference to conditional access systems in order to make price control possible and a substantive rule to guarantee “inexpensive . . . , fair, timely and transparent dispute procedures in order to avoid time-consuming conflicts about access”. If one bears in mind the complexity of the technical and economic problems to be solved, this Directive is insufficient because the bulk of the problems is shifted to the implementation level. In particular, the problems of standardisation for the decoder (including APIs needed for flexible multimedia use) and the conception of the electronic programme guide are not taken up and the general question of adequacy of access to networks is overburdened with a lot of technical and economic queries. It is extremely difficult to determine whether access to CA-system is discriminatory or not because of the many interrelationships between different technical levels of performance of a highly complex system. The same is valid for problems of packaging of services and programmes, the design of electronic programme guides, and the information on technical specifications to name but a few. These problems will be all the more important as the slow process of implementation of digital Pay-TV systems in Member States shows that many details have not been settled. The fragmented German system of regulation by the independent Commissions of the Länder is not suitable for the development of a complex strategic approach in a turbulent economic and technological field.50 The approach of the British OFTEL51 which has adopted a strategy of cooperation with ITC seems to be more consistent. Its regulations contain the flexible specification adapted to the complexity of the issue which is at the same time open to learning through experience. 48
Cf. Levy, n. 42 above, p. 670. Cf. epd-medien (1998) no. 60, 25. 50 Cf. for the German regulation Holznagel, n. 40 above. 51 Cf. for the British approach Hitchens, n. 28 above; M. Williams, “Sky Wars: The OFT Review of Pay-TV”, (1997) 4 European Review of Competion Law 214–229. 49
120 Karl-Heinz Ladeur The EC Commission should from the outset have paved the way for the industry to introduce decoders with low levels of interoperability allowing for more proprietary systems during a first period of experimentation while, on the other hand, on a broader time horizon determining a “moving target”, i.e. the “best practice” of technological integration not entailing excessive costs. This would have produced a technological standard whose implementation could have been expected from the DVB Group once it was guaranteed that a plurality of interests could be presupposed.
4. Towards a new strategy for the introduction of multi-media Several cases of complex regulation in the field of information technologies had laid open the problem the EU had in establishing a consistent strategic approach under conditions of uncertainty. This is why the EU needs an agency which should be enabled to develop more professional and technological proficiency even though it might be doubtful whether meaningful competences for decisionmaking can or should be transferred to such an agency.52 But an agency committed to the integration of the knowledge basis of national agencies operating in this field and establishing a process of cooperation among them could be quite helpful in the setting-up of a consistent strategy. This should be of primary importance for the EU if one takes into consideration that approaches taken by Member States in the field of information technology and media regulation in particular, are far from being consistent in themselves, not to mention the divergencies among them. The evolution of a consistent regulatory strategy at European level should be a primary concern because the high level of investment necessary for the establishment of Pay-TV systems, the rapid process of transformation and the lack of knowledge required for regulatory strategies, not to mention the increasing complexity of interrelationships between the hitherto separate levels of production and distribution of programmes, create a high risk for cultural pluralism. This should be a good reason for strengthening the role of public broadcasting systems on the verge of a new step towards multimedia systems. Nowadays, there are even good economic arguments that go beyond a problematic paternalistic touch in the defence of the role of public broadcasting once one bears in mind that the media economy itself is not very favourable to the development of an innovative “market place of ideas”. The role of public television can also be justified on the basis of economic arguments because it may foster cultural variety in a media economy dominated by the costs and benefits of media effects. The existence and legitimacy of public broadcasters is no longer called into question, in principle. The conflict is now being shifted to more concrete prob52 Cf. Levy, n. 42 above: for the issue of convergence of the media cf. now the Greenbook on Convergence (www.ispo.cec.be/convergencegp); B. Clements, “The Impact of Convergence on Regulatory Policy in Europe”, (1998) 22 Telecommunications Policy 197–205.
A Perspective on the Challenge of Multimedia 121 lems of financing of programme rights (films and sports in particular) by public broadcasters: Several private broadcasters have complained about acquisition strategies of their public counterparts. Karel van Miert, European Commissioner for antitrust has suggested a separation between activities of public broadcasting to be financed by advertising and a “serious” branch to be supported by public money.53 This is a completely unacceptable idea which shows again that media regulation cannot be left to antitrust authorities: the separation between “entertainment” and “public interest” TV is meaningless, because the task of public TV according to domestic law is to provide a “pluralistic” programme composed of a broad variety of elements and types of programmes, and financial resources are dedicated to the fulfilment of this goal. The separation of resources is therefore incompatible with the public function of TV. The idea is also inconsistent: from a practical point of view it is impossible to implement; and it is meaningless because it would be illogical to limit advertising and at the same time link entertainment to income of advertising. On the other hand, if advertising is not strongly limited by broadcasting law the public function of public broadcasting is at stake. This idea is nothing but a new symptom of the awkward position of the media in European law: it is only taken into account as a producer of “services”. In spite of the fact that a protocol added to the TEU in the Amsterdam version has recognised the competence of Member States to finance public broadcasting in order to exclude a reading of Article 92 that might prohibit or limit this type of financing as an illegitimate “subsidy” this problem which seemed to be dimissed at the front-door is now reintroduced through the back-door. On the background of this recent evolution the British OFTEL’s critical position vis-à-vis an extension of European competences54 gains plausibility. Regulators have—according to OFTEL—to be well acquainted with national problems. Furthermore OFTEL’s argument in favour of a separation of content-regulation and market-based antitrust (on the national level) because of a risk of domination of one of the competing interests in one authority is valid also at the European level. Regulation of public broadcasting in particular is content related, and this is why domestic regulators should have some autonomy as far as the regulation of their activities are concerned. Under new technological conditions, public broadcasting systems can also be used as “problem finders” which could help create transparency in the market for digital TV. Public broadcasters would raise problems which private providers would not make visible when taking into account their limited interests.55 Public providers could contribute to the establishment of a dynamic 53 Cf. Discussion Paper on public broadcasting, epd-medien no. 77, 26–35; see also Neue Zürcher Zeitung of 2 October1998, 69. 54 Cf. OFTEL response to the European Commision on the Green Paper on the convergence of the telecommunications, media and information technology sectors, March 1998, http://www.oftel.gov.uk/broadcast7eu398.htm (esp. B7). 55 Cf. for the new role of public broadcasting Ladeur, n. 34 above; Motta and Polo, n. 20 above, p. 322.
122 Karl-Heinz Ladeur market as a “procedure of discovery” (Hayek). In this perspective, the tendency towards vertical integration of different levels of networks should be broadened. This is not a problem of quantitative accumulation of market power but one has to bear in mind that the rapid process of change and the transformation of different markets within a network of networks also creates problems for the transparency of the evolution. This is why the introduction of powerful actors such as the public broadcasters might also help to keep the problems of evolution within a highly oligopolistic market open. For the same reason, one should also think about new structural rules of separation between the components and the levels of the new complex network of networks. This could have been an argument against the marketing of conditional access systems (in Germany) by three of the biggest players on the market for programmes, cable transmission and programme distribution (Bertelsmann, Kirch, Deutsche Telekom). The substantive rule prohibiting discriminatory exclusion from conditional access systems is only of limited value if one takes into consideration that these systems are highly complex and differentiated and the frame of reference for the evaluation of discriminatory decisions is far from being evident.56 There is a pressing necessity to introduce procedural and formal standards which allow for a more structured process of decision-making. And this process could be established by giving public broadcasters and private competitors the possibility of raising conflicts and making them visible.
5. Final remarks The impression of the European media law still remains ambivalent: there is a lack of consistent regulatory approaches which are fine-tuned to the specificities of dynamic markets and complex information technologies.57 On the one hand, we are confronted with highly specific interventions into the media system aiming at very detailed implementations of, for example, the television Directive with reference to restrictions imposed on advertising which are of minor importance while, on the other hand, we have the process of real Europeanisation and globalisation of multimedia systems which remain completely unregulated or only by insufficient fragmentary regulations. There is a certain “tolerance” of mergers, once the American competitors are taken into acount, whereas European regulations of multimedia, especially digital TV, appear to be unsatisfactory because of their unclear and fragmentary character. The EU should try to set up a better focused media policy which considers its limited resources and 56 Cf. K.H. Ladeur, “Zur Abgrenzung von Telekommunikations- und Medienrecht bei der Regulierung von Pay-TV—Zugleich ein Beitrag zur einer Rechtstheorie der Regulierung dynamischer Märkte”, (1997) Archiv fuer Post und Telekommunikation 193–200 57 Cf. for the political constraints under which the Commission formulates its strategies S.A.J. Harcourt, “EU Media Ownership Regulation: Conflict over the Definition of Alternatives”, JCMSt 1998, 369–389.
A Perspective on the Challenge of Multimedia 123 uses procedural elements of cooperation with regulatory agencies at the level of the Member States. It has to be admitted of course that there is a reluctance of Member States (especially of the German Länder) to accept a more active role of the European Union in this field; however, the failures of the European media policy and the fragmented approaches of national regulators should be a strong warning against leaving things as they stand. A well designed policy of shifting more competences to European level could even contribute to a revitalisation of the competences of the Member States. There is an element of paradox in subsidiarity because in many respects there is not just an alternative to regulation either by the Member States or by more centralised supranational institutions, but a cooperative approach could enable the Member States to make more efficient use of the regulatory competences which cannot be used at all once many of the elements to be considered in the regulatory process have, in fact, been europeanised and globalised. OFTEL’s response rightly points at the necessity to have a more detailed regulation of conditional access systems in the first place. If these problems are not really tackled in a comprehensive cooperative way by the European Union and the Member States, the prospects for the European media policy will remain as dim as they are at present.
7
Legal Pluralism as an Evolutionary Achievement of European Community Law* MASSIMO LA TORRE I . PRELIMINARY : A WORD OF CAUTION — THREE PARADIGMS OF INTERNATIONAL LAW
Before starting I need to introduce a word of caution. Though I use the term “evolutionary achievement”, mine is not an evolutionist perspective. I am quite sceptical about the paradigm “evolution of law” especially in the form it has taken in the social sciences in the last two centuries. By “evolutionary achievement” I do not mean the outcome of a movement intrinsic in the social and legal events driven by a more or less blind and irresistible force. I mean rather that, once certain developments in a legal structure have taken place, legal scientists and lawyers cannot remain blind to them and perpetuate a discourse which is no longer coherent with the facts they have to interpret. Legal pluralism—this is my contention—is one way of overcoming the impasse which an old doctrine of sovereignty has led us to when called to deal with European Community law. In this sense we are obliged—I believe—to adopt a pluralist view, so that pluralism may be seen as an achievement of the evolution, of the making of this strange body of rules and principles which is called European Community law. I would like to start with a short mention of the modernity of international law1 and of the many problems connected with its conceptualisation within the dominant paradigm of legal theory: legal positivism. First of all we should remember that jus gentium, sometimes depicted as a kind of international law ante litteram, actually had nothing to do with what we now mean by that expression. Jus gentium in the Roman doctrine was that part of the (generally private) law which also applied to strangers and non-citizens. For the ancient doctrine it was difficult to think of something superior to the civitas, though of * Previous versions of this chapter were given as a paper at the Politische Akademie of Vienna in October 1997 and at the Universidade Autonoma of Lisbon in November 1997. For comments I am grateful to Rainer Bauböck, Joseph Marko, and Cathy Richmond. 1 Cf. G. Jellinek, “Die Zukunft des Krieges”, in G. Jellinek, Ausgewählte Schriften und Reden, vol. 2, (W. Jellinek (ed.), Häring, Berlin, 1911) p. 522.
126 Massimo La Torre course treaties and covenants were not unknown. In the end this centrality of the concept of civitas pushed towards the idea of a civitas maxima which should cover the entire world. It was a fiction, that of stretching up to the extremes the walls of Rome, and that thus every subject born within the territory of the Empire had to be acknowledged as a civis romanus. This idea of a general commonwealth is still at work in the Middle Ages and strongly present in one philosopher to whom is sometimes ascribed the honour of being the founding father of modern international law, Francisco de Vitoria. Modernity nevertheless did not adopt the model of civitas maxima, but a pessimistic view, that of a state of nature where the actors (the states here) compete with one another for hegemony. Spinoza, Hobbes and Rousseau, in spite of their different concepts of the state of nature, did all agree on the fact that states are one another’s potential enemies and in a permanent state of danger and necessity. Nor did this pessimistic picture change with the introduction of “history” as the engine of human civilisation. Hegel is as pessimistic as Spinoza as far as interstatal relations are concerned. And the nationalistic turn centering around the notion of “nationality” did not alter this picture at all.2 This picture was fully reflected by jurisprudents in their denial of attributing to international agreements and normative practices the status and the dignity of a law in the proper sense. To the question “Is International Law a Law?” the negative answer prevailed. Those who tried to give a positive answer were also often obliged to reduce the purport of their affirmative attitude. International law was thus seen as a “special”, somehow diminished or primitive kind of law. Still in the ’60s of this declining century, H.L.A. Hart told us that international law is law, but actually “primitive”, like the law of “primitive” societies, since it is only composed of “primary rules” (rules of conduct, that is) but not as well of “secondary rules” (procedural rules which qualify for a mature fully developed legal system). Nevertheless, according to Hart, international law is not just a form of morality (as it was for instance according to John Austin, the father of British analytical jurisprudence). This is because of two reasons: (a) it does not appeal to individual conscience; (b) several international rules are morally neutral. Thus we are confronted—as was powerfully shown by Hans Kelsen—by three main models of the relationship between international and domestic law. For a first view, domestic law predominates over the international. It is a statist monism which is here defended and that found its most celebrated expressions in the German doctrine of the end of the nineteenth century (see for instance the dramatic formulation of the clause rebus sic stantibus made in a book of 1911 by Erich Kaufmann). The second model is that of supranational or international monism: here the international prevails over the domestic law. This is—as is 2 For a historical overview of international law, cf. B. Paradisi, “I fondamenti storici della comunità giuridica internazionale”, in B. Paradisi, Civitas maxima. Studi di storia del diritto internazionale, vol. 1 (Olschky, Firenze, 1975), p. 24 et seq. Quite useful is Stefano Mannoni’s recent book Potenza e ragione: La scienta del diritto internationale nella cusi dell’equilibrio europeo (1870–1914) (Giuffre, Milano, 1999).
Legal Pluralism as an Evolutionary Achievement 127 well known—Kelsen’s view. Finally, we have a dualist perspective according to which international and domestic law are conceived as separate and equal in standing (enjoying an equal normative dignity)—as is argued particularly by Heinrich Triepel and Santi Romano. Now, for our purposes in this chapter the question of what is the best theory among these three can remain open. Our concern should rather be to find out which of the three models better fits the institutional setting of European Community law. II . THE EVOLUTION OF THE JURISPRUDENCE OF THE ECJ — EUROPEAN COMMUNITY LAW AS AN AUTONOMOUS ORDER
Much of Community law is the result of the jurisprudence elaborated by the Court of Justice of the European Communities. It is the the work of those judges that we have to take into account, if we want to grasp the nature of EC law. This is why it is advisable now to direct our attention to the doctrines developed by the jurisprudence of that Court . They are mainly four: (1) direct effect, (2) supremacy, (3) implied powers, and (4) human rights. Under the EC Treaty (Article 189) only regulations (measures taken by the Council of Ministers) were directly applicable in the national legal order. Now, in one case (Van Gend en Loos, Case 26/62; see also Van Duyn, Case 41/74, concerning the direct effect of directives) the European Court of Justice dramatically—if I may say so—changed this situation. We faced something foundational of a new legal order, somewhat in the same sense as the famous decision Marbury v. Madison taken by the U.S. Supreme Court introducing judicial review which actually was not contemplated in the United States Constitution. It is worthwhile to read carefully the wording of the Court in the ruling in Van Gend en Loos: “The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States, but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and the institutions of the Community”.
Summing up, this decision amounts to five basic statements. (1) It is first affirmed that European Community law is a new legal order, though only of international law. (2) European Community law is then said to imply a limitation of Member States’ sovereignty. (3) It has, thirdly, legal effects independently of the legislation of Member States, that is directly, without the need of being explicitly transformed in
128 Massimo La Torre domestic law through a specific legislative act of domestic bodies. Community law is declared to be self-executing. (4) Then it has as its subjects not only Member States but also and especially their nationals, individuals. (5) Finally, it is conceived as conferring a sum of both explicit and implicit rights to individuals, the latter being the outcome of obligations imposed in a clearly defined way. In a sense, the entire Continental legal doctrine is challenged by that decision, the dogma of sovereignty, the idea that supranational law can only be binding upon States not individuals, and then last but not least a very well established theory of legal rights according to which rights in order to exist should be explicitly conferred as such. Here, on the contrary, rights are constructed through interests which are the outcome of obligations. Once an interest is ascertained which derives for a national of a Member State from the obligation deriving from a Community law measure, then this same interest is raised to the dignity of a legal right which its holder can claim before national courts. In the words of one judge of the European Court of Justice: through the Van Gend en Loos decision: “the Court revolutionised this situation by holding that Treaty rules and provisions of directives not implemented on time may be relied upon by private individuals if they grant them rights and impose on the State an obligation so clear-cut that it can be fulfilled without the necessity of further measures”.3 The transformation of (objective) rules into (subjective) rights thus allowed introduces into European legal systems a kind of Ninth Amendment clause. You might remember that the Ninth Amendment of the United States Constitution mysteriously provides that citizens have or may have more rights than those explicitly conferred upon them by the Constitution and its Amendments. What the purport of the Ninth Amendment really is has ever remained unclear. Now, through the doctrine of direct effect it suddenly receives a plain meaning: the transformation of individual interests (involved by laws) into rights. The doctrine of supremacy (which however might be considered as already implied in the concept of a self-executing law)4 was established in the Costa v. ENEL case (judgment of 15 July 1964, Case 6/64). The court first argued for a need of uniformity of the executive force of Community law: “The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty”. Uniformity implies—the Court continues—unconditionality of Community obligations: “The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if 3 G.F. Mancini, D.T. Keeling,”Democracy and the European Court of Justice”, in (1994) 57 Modern Law Review 183. 4 Cf. J.H.H. Weiler, Il sistema comunitario europeo. Struttura giuridica e processo politico (Il Mulino, Bologna, 1985), pp. 60–61.
Legal Pluralism as an Evolutionary Achievement 129 they could be called in question by subsequent legislative acts of the signatories”. While being an autonomous legal order Community law is an integral part of Member States’ domestic orders: “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply”. Community law, in short, is here seen as a law of the land.5 As a matter of fact, in the Costa decision Community law is depicted as something even more supreme: it is higher law of the land. It is not only an integral part of domestic law, which is “law of the land”, but it is also an autonomous legal system with precedence over domestic law. In conclusion, it is higher law of the land, because of its specific nature in so far as it is an autonomous order: “The law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question”.
In a next step (taken in the case Amministrazione delle Finanze dello Stato v. Simmenthal, judgment of 9 March 1978, Case 106/77) Community law is said to be superior even to domestic constitutional law. The “Higher Law” quality of EC law means its precedence even over Constitutions of Member States or better—if you like—over constitutional justice. There is no need for an intervention of constitutional courts to guarantee direct effect. On the contrary, such intervention could only delay the enforcement of community law provisions: “In accordance with the principle of precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the member Sates on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but—in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the member States—also preclude the valid adoption of the new legislative measures to the extent to which they would be incompatible with Community provisions”.
Constitutional justice is not needed to give full executive force to Community law provisions, not even in the case in which these conflict with domestic law: “A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means”. 5 Cf. for instance M. Cappelletti, “Repudiating Montesquieu? The Expansion and Legitimacy of ‘Constitutional Justice’ ”, in W. Maihofer (ed.), Noi si mura (European University Institute, Florence, 1986), p. 202.
130 Massimo La Torre The doctrine of implied powers means that Community law is endowed with all the powers which are necessary to make its provisions effective and its aims attainable. Through this doctrine, one should note, the EC treaty is once more reinterpreted as a foundational act which gives birth to a new legal order, but this time seen in addition as endowed with stringent features of a truly political community.6 In the ERTA case (Case 22/70) the Court, moving from Article 210 of the EC Treaty which provides that “the Community shall have legal personality” held that it meant that such legal personality of the Community implied that the Community enjoyed the power of treaty-making, this power being equal in scope to its internal legislative competences. Hence, a parallelism of (internal and external) competences is proposed. Actually such an attitude will be soon reformulated as a doctrine of pre-emption.7 Every time that, in order to implement a particular common policy enshrined in the Treaty, common measures are taken and common rules are enacted by Community institutions, Member States neither individually nor collectively are any longer empowered to conclude international agreements with third parties which will concern or affect that common policy. Hence we see a rejection of a doctrine of reserved competences for Member Sates. Thus we read in the case of Rutili (Case 36/75) that derogations to free movements (of persons etc.) for reasons of public order, public health etc. are not to be meant as a reservation of competences to Member States, so that the exercise of such derogations remains subject to the judicial control of the Court. In the jurisprudence of the ECJ we are also confronted with a doctrine of teleological interpretation which gives more weight to the aims pursued by the Treaty. Teleological interpretation makes it possible to combine the rule of attributed powers (Article 3b of the Maastricht Treaty, now Article 5 of the Treaty on European Union signed in Amsterdam) with the doctrine of implied powers. In fact, implied powers can be understood to be those which are necessary to implement ends implicitely stated in the Treaty provisions: “the existence of a given objective or function implies the existence of any power reasonably necessary to attain it”8 (see Germany v. Commission, Cases 281, 283–285, 287/85). Moreover, we cannot ignore the existence of Article F of the Maastricht Treaty, now Article 6 of the Treaty on European Union adopted in Amsterdam: “The Union shall provide itself with the means necessary to attain its objectives and carry through its policies”. Nor could we forget that the Court has also introduced a doctrine of stare decisis as far as its own decisions are concerned, thus extending the range of validity of its rulings. This has been done 6 Cf. J. Locke, Two Treatises on Civil Government (Dent, London, 1975), p. 166: “Whosoever, therefore, out of a state of Nature unite into a community, must be understood to give up all the power necessary to the ends for which they unite into society to the majority of the community, unless they expressly agreed in any number greater than the majority”. 7 Cf. M. Cappelletti and D. Golay, “The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration”, in M. Cappelletti et al. (eds.), Integration Through Law, vol. 1., Methods, Tools and Institutions, Book 2, “Political Organs, Integration Techniques and Judicuial Process” (De Gruyter, New York, 1986), p. 318 et seq. 8 T.C. Hartley, The Foundations of European Community Law, 3rd edn. (Clarendon, Oxford, 1994), p. 110.
Legal Pluralism as an Evolutionary Achievement 131 once again using the argument that, in order to achieve a certain result which is fundamental for the uniformity, efficacy and coherence of Community law, means necessary and conditional for that result should be admitted as well as belonging to the range of instruments of Community law itself: “Although a judgment of the Court given under article 177 of the Treaty declaring an act of an institution, in particular a Council or Commission regulation, to be void is directly assessed only to the national court which brought the matter before the Court, it is sufficient reason for any other national court to regard that act as void for the purposes of a judgment which it has to give”(International Chemical Corporation, Case 6/80).
It is very suggestive that the ECJ felt it necessary to develop a doctrine of human rights. This paradoxically was partly the result of its doctrine of supremacy. In the case Internationale Handelsgesellschaft (Case 11/70) the Court held that a measure or an act of Community law could not be invalidated on the ground that it was conflicting with fundamental rights as enshrined in a Member State Constitution. However, the Court then adds that the protection of fundamental rights is one of the general principles guaranteed by the ECJ. These rights—such as those justified by the common constitutional traditions of Member States—are to be guaranteed within the context and the aims of Community law. Three years after, in the case of Nold (Case 4/73), the ECJ declared that the Court is obliged to follow the constitutional traditions which are common to Member States. In several cases, moreover, for instance in Rutili (Case 36/75) and Hauer (Case 44/79), explicit reference is made to the European Convention on Human Rights. Although the formulation of a protection according to standards common to Member States might imply standards derived from a kind of minimum common denominator, in the Nold case we read that the Court would not allow measures or provisions incompatible with the fundamental rights recognised and guaranteed by national Constitutions. This formulation could be interpreted as raising the standards of human rights protection as high as that given by the national Constitution. In other words, the violation of a fundamental right may invalidate a Community act or rule even if the right in question is enshrined or protected in the Constitution of only one Member State. We are here confronted with a kind of “virtuous circle”: Community law is said to prevail over national Constitutions, but it is at the same time bound to a doctrine of human rights, and human rights in Community law are given content through a reference to national constitutions. III . WHICH MODEL OF THE RELATIONSHIP BETWEEN DOMESTIC AND SUPRANATIONAL OR INTERNATIONAL LAW IS MORE APT TO RECONSTRUCT THE CONNECTION BETWEEN NATIONAL AND COMMUNITY LAW ? EUROPEAN LEGAL ORDER : MODUS VIVENDI OR OVERLAPPING CONSENSUS ?
Now we should pose an old and somewhat odd question: Is European Community law only international law? Before proceeding to discuss the relationship
132 Massimo La Torre between Community and domestic law to learn more about it, we are confronted with a preliminary question: is Community law fully reducible to international law? I believe that we can quite confidently reject a configuration of Community law as just international law, basing on the following arguments. In Community law we do not find the notion of exclusive state responsibility with its two corollaries of “reciprocity” and “self-help”.9 We should remember that the jurisdiction of the ECJ is not voluntary (such as that of the International Court of Justice), but compulsory. In the jurisprudence of the European Court of Justice we then find a clear refusal of the doctrine of reciprocity: “It must be pointed out that in no circumstances may the Member States rely on similar infringements by other Member States in order to escape their own obligations under the provisions of the Treaty”(Amministrazione delle Finanze dello Stato, Joined Cases 142 and 143/80). The obligation laid down by Community law over Member States is unconditional and cannot be avoided by referring to a violation of the same obligation by another Member State: “According to the settled case law, a Member State cannot justify failure to fulfil its obligation . . . by the fact that other Member States have also failed to fulfill theirs . . . Under the legal system laid down by the Treaty the implementation of Community law by Member States cannot be subject to a condition of reciprocity”(Ministère Public v. Guy Blanguernon, 1990).
The prohibition of self-help is explicitly stated by the Court in its decision of 13 November 1964, in Commission v. Luxemburg and Belgium (Joined Cases 90 and 91/63). Moreover, the doctrine of implied powers which we have alredy considered conflicts with the principle of (explicitly) attributed powers which rules international organisations. In addition, there are limits set by the ECJ to the revision of the Treaty. The court conceives the basic principles of Community law which have emerged through its jurisprudence (especially direct effect, primacy and autonomy) as not open to revision, not even by means of the procedure foreseen in Article 236 of the EC Treaty (see Opinion 1/91, 14 December 1991, point 72). That means that, unlike what usually happens as far as international agreements are concerned, Member States, that is, the contracting parties, do not seem to remain “masters of the Treaty”. This also because the competence of interpreting the Treaty provisions is fully ascribed to a court of justice (the ECJ) which is an agency independent from the governments of the Member States.10 A further argument to show that the legal and political order of the European Community and of the European Union is something essentially different from a traditional international organisation can be based on a conceptualisation by John Rawls. Rawls—as is well known—tries to reconstruct normatively the 9
Cf. J.H.H. Weiler, “The Transformation of Europe”, in (1991) 100 Yale Law Journal 2422. See what is said by the Advocate General of the ECJ, Giuseppe Tesauro, in a critical rejoinder to Justice Paul Kirchhoff, a member of the German Federal Constitutional Court. See Diritto comunitario europeo e diritto nazionale. Atti del Seminario internazionale, Roma, Palazzo della Consulta, 14–15 luglio 1995 (Giuffrè, Milano, 1997), p. 153 et seq. 10
Legal Pluralism as an Evolutionary Achievement 133 constitutional structure of Western polities in the terms of a pure political order, that is, of institutions which are the outcome of a conception “political, not metaphysical”. That means that such an order does nor require any thick conception of the good, any—as he says—“comprehensive doctrine”, that is, any moral and/or religious worldview, and by so doing allows for several comprehensive doctrines to agree on a “thin” project for a common political structure. This agreement is what Rawls calls “overlapping consensus”. This—according to him—is the only morally acceptable solution to the “reasonable pluralism”, the pluralism of reasonable comprehensive doctrines and ideas of the good which is—he believes—inherent in the exercise of human reason. Reason of men is plural, given that humanity consists of a sum of individuals, each with limited powers of judgement and assessment, living moreover in different and ever-changing concrete situations. Reasonable pluralism could be overcome through a unitarian concept of the good only through overwhelming dictatorial powers. But these, given the “burdens of judgment” which any unilateral worldview is subjected to, are widely unjustified. At this point, once he has explained the procedure and the utility in reaching an overlapping consensus, Rawls is confronted with a main objection. Overlapping consensus—it is objected—cannot found a fully normative structure such as a constitutional or legal/political order but only a kind of modus vivendi, a strategic arrangement which different views reach through prudential considerations centered around their respective self-interest. This is the case— the objection goes on—because overlapping consensus cannot be based—by definition—on a common idea of the good. Not being able to have this ground of justification, it is left solely with instrumental considerations of utility and opportunity. Now, Rawls contests that overlapping consensus is not strongly normative and merely instrumental. To do that he refers to the difference between international law in the sense of a law of states aiming each at its own interests, that is a modus vivendi, which is always established under a tacit “rebus sic stantibus” clause and thus instable, not claiming any duration beyond the enjoyment of a particular instrumental good, and a normative agreement with foundational character which reaches beyond futility through a shared body of moral principles: “A typical use of the phrase ‘modus vivendi’ is to characterize a treaty between two states whose national aims and interests put them at odds. In negotiating a treaty each state would be wise and prudent to make sure that the agreement proposed represents an equilibrium point: that is, that the terms and conditions of the treaty are drawn up in such a way that it is public knowledge that it is not advantageous for either state to violate it. The treaty will then be adhered to because doing so is regarded by each as in its national interest . . . But in general both strategies are ready to pursue their goals at the expense of the other, and should conditions change they may do so”.11
134 Massimo La Torre Overlapping consensus is quite different from this model of an agreement of sovereign states. It is no longer the outcome of only prudential considerations. It is moral. This is because it has a moral object and it is justified through moral reasons. As a matter of fact, it deals with the powers individuals can use reciprocally the one over the other and with the principles of distribution and allocation of the goods necessary for the satisfaction of their basic needs. What could there be of more importance for social human life? And therefore, how could we deny those devices a moral character? On the other hand, overlapping consensus presupposes a moral point of view: “It is affirmed on moral grounds, that is, it includes conceptions of society and of citizens as persons, as well as principles of justice”.12 A factual agreement is still not sufficient evidence for an overlapping consensus: “An overlapping consensus, therefore, is not merely a consensus on accepting certain authorities, or on complying with certain institutional arrangements, founded on a convergence of self- or group interests”.13 Let us now examine the European Community and the European Union. The two main theories of European integration, (1) functionalism, that is the idea of building them on a common market and underlying intrinsic economic imperatives, and (2) intergovernmentalism, that is the thesis which conceives them as a game among fully sovereign and independent states, do not have sufficient explanatory force. On the one side, functionalism, especially since the Maastricht Treaty, is no longer appropriate to explain the complex institutional reality of the Union. The performances of European Council, Commission, Parliament and Court of Justice cannot just be reduced to variables of economic “structural” interests and functions. Nor can functionalism, which is based on the assumption of the normative power of facts, explain the lasting public reproach of a democratic deficit directed against Community institutions. On the other side intergovernmentalism is at odds with the declining centrality of nation-states and with such fundamental developments as the emergence of a Community law endowed with direct effect, supremacy and a principle of mutual recognition. Functionalism and intergovernmentalism converge in a view of the European political order which could be summarised through the notion of “modus vivendi”, the latter since it conceives the Communty as the outcome of a prudential calculation of Member States, the former since according to it the Community does not need an explicit normative foundation driven as it is by the implicit normative force of facts. To be honest, however, the notion of “modus vivendi” in the proper sense is adopted only by the intergovernmentalist, the functionalist options oscillating between an extreme of instrumentality close to the solution aimed for by the intergovernmentalist, and the possibility of a more or less fully integrated community based on internal functional impulses recommended/diagnosed by the functionalist. 11 12 13
J. Rawls, Political Liberalism (Columbia University Press, New York, 1993), p. 147. J. Rawls, Political Liberalism (Columbia University Press, New York, 1993), p. 147. Ibid.
Legal Pluralism as an Evolutionary Achievement 135 In any case the notion of “modus vivendi” is inadequate for a reconstruction of the European Community legal order. This is so for at least two reasons. First, there is no need—I believe—to linger upon the fact that Community law directly concerns and affects some of the most fundamental interests and values of Member States’ citizens: their welfare, but also their identity, their social rights and their basic freedoms. We are not faced only with “a consensus accepting certain authorities, or on complying with certain institutional arrangements”. We are here dealing with something more fundamental, with an entire style of life. This being at stake, the Community and the Union cannot lack at least some moral features. On the other hand, it is clear, at least since the treaty amendment of Maastricht, that the grounds considered to establish and improve the Union, the Community and their law are not only, perhaps not even mainly, the implementation of a common market. If we read through the Preamble of the Treaty on the European Union signed in Maastricht and consider the objectives this is said to pursue, we shall find “things” like citizenship, solidarity, human rights, justice. These, without doubt, are all moral objectives. Our conclusion should then be that we have here not a mere “modus vivendi”, but something less futile and unstable. What emerges from the pictures drawn in Maastricht and a few years later in Amsterdam is actually an overlapping consensus, though its stability is still low. It is a concept of political justice both “general” and “thin”. And it is “general” (or common) by being “thin”, by allowing that a plurality of different substantive thick legal and political communities be able to find a minimum common denominator. But the quality of being “thin” does not exclude, in this context, a strongly normative commitment. It is a polity—though not a state—which was born, not an international organisation, an intergovernmental arrangement doomed to contingency and futility, nor a functional product of forces driven without any need of reflexive political deliberation.
IV . LEGAL PLURALISM AND EUROPEAN CONSTITUTION — TWO CONCEPTS OF CONSTITUTION AND AN ALTERNATIVE
To reconstruct Community law monism does not work either way: I mean, neither moving from domestic law as the productor of supranational law nor taking a supranational perspective and deriving from it an inferior national law. On the one hand, the centrality of domestic law can hardly justify the doctrine of supremacy of Community law; on the other hand, supranational monism does not fit the still severely limited competences of EC law nor is it appropriate to explain, for instance, the ECJ’s reference to substantive contents of Member States’ Constitutions to fill in the concept of human rights in Community law, nor the very simple fact that only sovereign states can apply and be Member States of the European Community. They still are, if not the masters, certainly the central characters of the Treaty. Dualism, the traditional stance taken at
136 Massimo La Torre least until recently by most Member States’ legal doctrine, cannot justify the doctrine of direct effect, extended then to secondary sources of Community law and even in some cases to interindividual relationships (see the decision in Walrave of 12 December 1974, Case 36/74). As a matter of fact, in the interpretation of the European Court of Justice “direct effect” means that Community law is an integral part of domestic law, it is “law of the land”. Such an effect would however be inconceivable, should Community law be considered (as for instance the Italian Constitutional Court holds) a legal order fully separate and independent from domestic law. One should also remember that dualism was originally conceived as a doctrine of the dynamics between domestic law and international law, the latter meant as regulating contractual relations between the states. Hence, dualism is doomed to change its purport once it is meant as a doctrine providing for the relationship between domestic law and a law which though supranational is not just international and has a stronger institutional “density”. In this case we shall have rather to do with relations between state law and not a state’s law, but another “state” (a “polity”) law, though the “state” (or “polity”) in question is still in formation or has a lesser “density”. This state of affairs alters the traditional situation to which dualism was thought to be applicable, since the supranational law in question is not the loose framework which international law was meant to be for contracts and agreements among states. In the traditional perspective states remain the actors of legal relations both in domestic and international law. Community law, however, signals the existence of a new institutional setting in which states are members not just “parties”. Community law does not regulate, or does not mainly regulate, legal relations between Member States, but provides for a common scheme of cooperation and social action. Community law actually deals with Community acts, and not with Member States’ agreements and individual conduct. Beyond domestic and interstatal relations, two other categories are considered and stressed: Community actions of the Community as a particular institutional subject and general cooperative and common acts of Member States.14 A solution is—I believe—legal pluralism. This is not to be meant as a mere descriptive approach, as the assessment that there are several legal orders, all effective but whose internal validity we are not called to consider, but rather as a normative criterion which recommends that the judge (and the citizen) do not direct themselves solely to one source of law when in search of a regulation for a case. Legal pluralism would here mean a multiplication and differentiation of the sources of law or—said differently—of the various arguments which justify a certain course of action or a specific legal decison. Pluralism in this concept is moreover a criterion which implies the recommendation of a comparative evaluation 14 In spite of his crude realism—and contrary to what some epigons write—Carl Schmitt stressed the normative independence of supranational legal actors. Cf. C. Schmitt, “Über das Verhältnis von Völkerrecht und staatlichem Recht”, in Zeitschrift der Akademie für Deiutsches Recht (1940), p. 5: “Wer die Geschichte und die Problematik des föderalistischen Verfassungsrechts kennt, wird
Legal Pluralism as an Evolutionary Achievement 137 of prescriptions and values and their interpretations according to a general rule of integrity. Rules receive their meaning from their reference to other ones. Nevertheless, if pluralism means a plurality of legal orders or a multiplication of sources of law or both, this plurality and multiplicity can or cannot be conceived as related or interconnected. It is evident that for Community law and its relationship to domestic law it can be only a question of a connected pluralism. This, however, somehow implies one common legal framework or order. Legal pluralism in other words can be operative only if it is reducible to some kind of monism. From the internal point of view, from the point of view of those who ought to apply a law, there can only be one normative system, the one which one has to render effective. If we want to apply different sources of law or use different encroaching competences within a certain normative context, we need some criteria of identification and ascription of competences or at least criteria for the assessment of the normative context within which we can then operate with the plurality of sources. It is the latter strategy which I believe to be the appropriate one for a genuine normative legal pluralism. What we need is a rule of recognition which in our case could be offered by the Treaty, whereby we are told the extension (and the intension as well) of a general normative field. Normative legal pluralism can be operative only within certain limits. Otherwise it will be transformed into descriptive pluralism, interesting perhaps for the sociologist but useless for the lawyer and the citizen who are called to orient their conduct in a specific situation. Because of this limited operativity we will not—I hope—apply the rules of the mafia to a certain context of action whose normative order is given by a plurality of legal sources, though that context of action is invested by Mafia rules. And this we will do since we aim to find a coherent general framework for our actions and the Mafia rules will conflict with the validity of the rule of law, and in any case it is not possible to integrate them with the one set of rules of recognition from which we move. Nonetheless, these rules of recognition are not higher norms in the sense of a Grundnorm, the top of a legal hierarchy or Stufenbau. Had it to be such, we would fall back again into a form of “monism” and to some notion of sovereignty. In a more modest way, the rule of recognition will consist of a delimitation of the number of acceptable reasonable sources of law to certain purposes or aims, the latter being open to considerations of legitimacy and justice. In this sense the Treaty on the European Community could indeed be seen as a “constitutional charter” (as it has been declared by the European Court of Justice, Opinion 1/91) without necessarily relying on some notion of sovereignty. We are thus forced to investigate an appropriate concept of constitution. In the literature we find two main opposing concepts of constitution. We have the statist “conventional” model: individuals agree on rules and principles and wissen, daß in jedem bündischen Gebilde—mag es nun ein Staatenbund oder ein Bundesstaat sein— neben rein innerstaatlichen und rein zwischenstaatlichen Beziehungen der einzelnen Länder immer auch eine auf die Alternative von innerstaalich und zwischenstaatlich nicht zurückfürbare dritte Kategorie der gesamtbündischen und eine vierte der gemeinsamen Länderbeziehungen besteht”.
138 Massimo La Torre through a constitutive act produce the polity. As a matter of fact, this model can be split in two extreme and then disconnected views. We have the full conventional view, according to which the polity is but the outcome of the constitution. We then are confronted with a radical statist concept which presupposes the state as prior to the constitution and hence merely so-to-say tamed by the constitution, which therefore only regulates some basic aspects of the state machine but not its entire functioning. Nor is the constitution here the only legitimation basis for the state. The statist and “conventional” models are opposed by the organicist: the community constitutes itself through history and culture and the polity is a reflex of an already produced unity. Both these models, the statist conventional and the organic one, refer to a strong concept of sovereignty and somehow imply a “monist” concept of law and a more or less exclusive idea of community. Actually, even in the first model, the conventionalist, there is an exclusionary pathos, since there is no room for political communities and for the very concept of people outside the foundational agreement on rules and principles. The constitution is a foundation a nihilo. A third model of constitution fits pluralism better: an interactionist model. A constitution, according to this third model, is the institutional and normative framework which emerges through a discoursive on-going process between different subjects each claiming rights and powers and which guarantees a correct procedure for it. Constitution in this perspective is not a one-act event; it is open-ended. Nor could it be implicit for ever. It needs normative awareness, but this does not coincide within this model with a “pouvoir constituant”. Reflexivity does not necessarily need the form of decision; what it requires is discourse. In this sense a constitution is not conceptually bound either to a compact “nation” or to a “state” which the constitution is called only to “civilise”. Interactionism then is pluralist in a more substantive sense. It requires and guarantees at the same time that several communities be involved in the constitutional process. Since there is no exclusive power to be exercised or an exclusive source of law to be produced, the subject of the political power or the production of the law can be plural, of a different nature, mixed. There is therefore no need for one and only one culture as holder of the polity in question. What we need will only be overlapping consensus for a mixed commonwealth.15 A mixed commonwealth, however, as I understand it, does not need in any case to be a “mixed constitution” or a balanced form of government (in the classical sense of a mixture or combination of the three main forms of government, aristocracy, monarchy, and democracy, in ancient times theorised among others by Cicero—see The Republic, I, xlv, 69—and more recently reproposed by Neil MacCormick. In the sense I propose here a commonwealth is mixed, in so far as it has a variety of sources of law which cannot be forcibly reduced to one supreme one. 15 See his “Democracy, Subsidiarity, and Citizenship in the ‘European Commonwealth’”, in Law and Philosophy, vol. 16 (1997), p. 331 et seq.).
Part III
Partial Convergence of National Legal Systems
8
The Protection of Public Interests and Regulation of Economic Activities GIULIANO AMATO and LARAINE LAUDATI
I . STRUCTURAL AND FUNCTIONAL DEVELOPMENTS IN COMMON LAW COUNTRIES AND IN CONTINENTAL EUROPE
De-regulation and re-regulation of public utilities and, more generally, of economic activities affected by public interests are having a highly disputed impact on the respective provinces of administrative law and of its neighbours, private law on the one side and constitutional law on the other. According to some scholars de-regulation is paradoxically extending administrative law. De-regulation gives economic activities back to private hands (and consequently to private law), but attached to such activities, principles and obligations remain that previously applied to state actions only. Upon this premise the boldest ones argue that administrative law principles are now common to the discipline both of public and of private power. According to others it is re-regulation that is modifying, and in this case eroding, the boundaries of administrative law. For re-regulation substitutes the technical supervision of independent agencies for the discretionary control of administrative departments under the political direction of the Executive, therefore reducing the realm of administrative law. The new agencies—it is argued— fall outside its boundaries and open a new era in which “non majoritarian institutions” embody a totally renewed separation of powers. Therefore, many of the traditional principles of administrative law, first of all the principles that find their origin in the dependence on the Executive of administrative institutions, are doomed to lose part of their hold. Much of the dispute is biased, and even distorted, by the resilient cultural paradigms that history built decades (if not centuries) ago around the notions of administrative law and of administrative discretion, both in Continental Europe and in common law countries. Administrative law has been profoundly changed by the legislative and judicial developments that have intervened throughout the years and further changes are occurring within the new legal frame that de-regulation and re-regulation themselves are presently shaping. Despite this uninterrupted process of innovation, the original paradigms that grew around
142 Giuliano Amato the initial administrative law survive in the culture of scholars, of courts and of those very regulatory institutions that are mostly responsible for such process nowadays. The assumption that the bodies of law that Continental Europe and common law countries call “administrative” are still as different from each other as they initially were is, in fact, losing ground (even though more than one Continental scholar keeps stubbornly arguing that Continental administrative law remains administrative as long as it retains its traditional features). However, despite the increasing acknowledgement of the converging trends that have taken place, some of the crucial factors that have changed both systems throughout the decades are frequently ignored. Attention has certainly been given to the enlarged boundaries and scope of judicial scrutiny both in the Continent and in common law countries. Much less attention has gone to the gradual process that in the Continent has “unbundled” the public interests initially incorporated in the inscrutable raison d’Etat and later on in the police power of national states and has consequently led to tying each measure to a single and identifiable public interest, therefore paving the way to the single mission authorities of our time. Under the light of this development such authorities and the rules they apply are much more than a mere transplant from common law countries exclusively due to the privatisation of economic activities. They seem to be the last (and not necessarily the final) stage of an “indigenous” process of transformation of Continental administrative law the previous stages of which deserve to be reconstructed. Such a retrospective view may lead toward a fresh and unbiased assessment of the rules and institutions that are prevailing in the current decades. The historical process by which administrative law took root and shape in the post-medieval legal systems of Europe is a well-known one. It is closely linked to the efforts (and to their respective outcomes) that were common to several kingdoms, aimed at centralising the fragmented institutional architecture inherited from the Middle Ages. In the countries where these efforts were successful a national army and a national bureaucracy were built up and became the backbone of the newly formed national States. The protection of any new public interest was in itself a good reason to strengthen such a backbone and to bestow new functions and tasks upon it. The concept of police power came out as the main cultural as well as legal product of this structural process. The State has the power to protect the “polis” and any measure aimed at this protection falls within the jurisdiction of its bureaucratic machinery, that in principle no court is entitled to review. In the countries, namely the United Kingdom, where medieval institutions succeeded in remaining the frame within the boundaries of which the process of centralisation was forced to stay, nothing similar came out. The bureaucratic arms of the King remained crippled for centuries and it was the Judiciary that extended and strengthened itself as the backbone of the nation. The difference was sharp. Judges were appointed by the Crown and were formally its agents.
Public Interests and Regulation of Economic Activities 143 And yet they were under the legal obligation to apply the same rules to everybody, with the consequence that public interests themselves could be protected only as long as their protection did not violate individual rights and liberties recognised by the common law of the country. It is a matter for dispute whether administrative law was already born in the Continental “anciens regimes” just referred to (we will see later on that the prevailing opinion dates its birth in the years following the French Revolution). Certainly there was no administrative law where the common law was the paramount law of the land and the differences between such a model and the Continental one already implied different answers to similar demands. The “reasonableness” and “affordability” of prices of first necessities and of duties to be paid for licensed and/or monopolistic services was a common concern in both systems. These were indeed the cases in which economic activities were “affected with a public interest”. Who was empowered to take care of such interest? In Continental Europe this was an area progressively absorbed into the police power of the state, with two main consequences: first, that public services could be directly run by public bodies; secondly, that setting reasonable and affordable prices for prime necessities such as bread became a primary task of officials belonging to the bureaucratic machinery of the state. In the United Kingdom (and in the American colonies) this was and remained an area of judicial decision up to the eighteenth/nineteenth century. The “Assisa Panis et Cervisiae”, an English code establishing special rules for the sale of bread, trusted the enforcement of such rules to the justices of peace. The code had been issued in 1266 and remained in force in the London area until 1815. As to public services, they were most frequently run by private “common carriers” subject to common law plus special rules equally enforced by the courts. Thus, in relation to the stage we have just described, it is fair to say that administrative law was no more than an embryo in Continental Europe, while it was part of the unknown future in common law countries. Yet some of the reasons both for the common and for the diverse features it would have taken in the two legal systems, could already be detected. In common there was the derogatory aim of the rules protecting public interests in relation to private activities. In both systems that protection was the source of special rules imposing special responsibilities and obligations upon private operators. Above this common threshold diversity prevailed. In common law countries no special responsibility or obligation was allowed to restrain property rights and freedom of contract to such an extent that a court might find “unreasonable”, according to its ordinary standards. In Continental countries derogation was not supposed to meet such a limit, it was indeed among its usual goals to trespass upon it. Do not forget that public law was aimed at the establishment of uniform, central rules replacing the fragmented rules and jurisdictions that the building up of national states was facing. A second and no less important difference should be noticed. In common law countries each one of the public interests that were to be protected was assessed
144 Giuliano Amato by the courts in its individual specificity and consequently balanced against the individual and contractual rights touched upon by it. There was an unavoidable degree of discretion both in the assessment and in the balance, but far less than the much wider discretion allowed to State officials on the Continent. Not just because Continental officials were not legally bound to respect individual and contractual rights whenever a “superior” public interest might require their sacrifice, but also for a structural reason. These officials were all entangled in the bureaucratic machinery of the State and therefore part of a net by which not one but several public interests were to be protected. Therefore any decision was expected to be mindful of all of these interests, to the effect that the protection of one would not impair the others. Such a structural contiguity of public interests, that required (and allowed) public decisions to adjust to a variety of impulses, first of all to the guidelines coming from political authorities, brought about farreaching consequences. Although justified as rational instruments to free the legal systems of the continent from the pre-existing mess of legal sources and jurisdictions, public law and its measures also appeared as flexible instruments in the hands of the rulers, whose arbitrary will could be easily channelled through them. In the long run the way was paved to the notion of administrative discretion not as a balance of public interests vis-à-vis individual rights, but as a balance of public interests vis-à-vis other public interests, sometimes equally important, sometimes “secondary”; with a lasting taste of arbitrariness in it. The nineteenth century is crucial for the development of administrative law. As already mentioned, the prevailing opinion dates its very birth in Continental Europe in the immediate aftermath of the French Revolution, when the separation of powers was firmly established and the Conseil d’Etat was set up. It is a fact that it was after these two events that administrative law was baptised as such. It is, however, disputed whether separation of powers and Conseil d’Etat were the foundation or a turning point in the life of a special branch of law, traces of which, despite the name, could be detected even before. We have already seen that what is usually pointed out as the main feature of administrative law—namely its derogatory nature with regard to the rules otherwise applicable to the relevant case—was inherent to the acts adopted under the kingly prerogatives of the ancien regimes. The real innovation that the separation of power and the judicial review bestowed upon the Conseil d’Etat brought about was the double leash which they attached to the neck of such a derogatory power. Derogation was going to be regulated by law and therefore limited to those areas deemed necessary by the newly elected Parliaments. In those very areas, which remained outside the range of ordinary courts, a specialised court, the Conseil d’Etat, was empowered to void those administrative measures that overstepped their legislative boundaries and goals. One might be tempted to argue at this point that to date the tiger’s birth from the moment of her taming is ideological, to say the least. However, it is not essential for us to go deeper into the dispute. From our viewpoint it is the new course that has to be noticed, as well as the parallel and no less significant
Public Interests and Regulation of Economic Activities 145 change that occurs in the same years. Public law’s derogation had repeatedly and pervasively entered into the sphere of economic activities during the ancien regime. Now economic activities find their uniform rules in the Civil Code upon the free market principles that leave such activities to the contractual arrangements of private parties. The change is profound in more than one sense. First, derogatory rules and measures had been used by the King and his bureaucracies to the effect of centralising and making more uniform the fragmented legal systems they were fighting against. Now the uniform rule is on the other side, on the side of the Civil Code, and derogatory administrative rules become “special” law. Secondly, after the Civil Code and according to its principles, the sphere of economic activities will remain for decades largely (even if never entirely) outside the range of administrative derogation, that will be restricted within the protection of public order. As has been rightly noted the police power of the state, so broadly defined in the eighteenth century as to include economic regulations, became the power to protect public order, public safety and the like. However, when the need arose in the last decades of the nineteenth century and the gates were opened again, administrative law was ready to restore its hold on a significant part of economic activities. Which sort of administrative law was it at this stage of its own evolution? It had both common features with the derogatory prerogatives of the ancien regime and significantly new ones. New were the interests it was called to serve. Mostly the interests of low income classes whose demand for protection against the main risks of life and of essential services at an affordable price could not be satisfied within the framework of the inter-private relations of the Civil Code. But also the interests of the emerging industry that were frequently in conflict with those of landowners and prevailed upon them by virtue of the public interest inherent to industrial activities. New also was the compliance with the rule of law and with the principles that administrative courts had been expounding. In France the principle “The king can do no wrong” was a fading one and the scrutiny on the excess of power continuously eroded the traditional discretion of administrative authorities. In Germany and in Italy the protection of the socalled legitimate interests (into which individual rights were transformed and consequently downgraded when touched upon by public interests) steadily reduced its own distance from the actual protection of legal rights by ordinary courts. Inherited from the past were two other features that the erosion of the preexisting discretionary powers had not discarded. The first one was the wide range of intrusive powers that were ready to be activated as soon as an economic activity happened to be affected by a paramount public interest: not just special responsibilities upon private operators still under the jurisdiction of ordinary courts as in common law countries, but intensely conditioning licences under review by administrative courts and private rules remaining as an ancillary source of regulation; furthermore, reserve to the state (or to the municipality) of the relevant economic activity that could be either directly exercised by public
146 Giuliano Amato entities or given back to private exercise by discretionary grants only. The second one was the enduring structure of Continental administrative machineries as bureaucratic nets in which public interests interacted with each other. Therefore, the contiguity of public interests to be considered in any administrative decision remained as a natural consequence of their being tied to the same net. However, a limited but significant break-through was achieved during the late nineteenth century, when separate institutions were set up to administer pensions, workers’ insurance and safety regulations in the places of work. Furthermore the scrutiny of administrative courts was producing a restrictive and corrosive effect even upon the traditional machinery that was of the highest importance for the future. Administrative courts increasingly requested each administrative measure to reflect a transparent and motivated order as to the respective roles of the relevant public interests. There had to be a “primary” public interest, facing which the others were “secondary” and were to be treated as such. Certainly administrative discretion remained remarkably high. And quite understandably the most authoritative scholarly opinions would have identified the core of it in the balance between “primary” and “secondary” public interests; with the consequence that all of them, even if so graded, concurred with each other in defining and consequently restricting the boundaries within which conflicting private interests had room for protection. It is however a fact that this new set was already remarkably different from the initial police power. The walls of the traditionally compact administrative machinery were not as stable as they had been. The unbundling of public interests was on its way. We have seen already that in the United Kingdom (and in the American colonies) the structural pillar of continental administrative law, a wide and hierarchically organised body of bureaucratic offices under the direct control of the Crown, was missing. New functions that naturally accrued to the “police power” exercised by that bureaucratic structure on the Continent necessarily had a different allocation here. Furthermore, according to the common law principles, the protection of public interests affecting economic activities did not require the transfer of such activities into public hands and was generally satisfied by charging private undertakings with special responsibilities, that were subject to jurisdiction by ordinary courts. On these premises, the same social demands that in the Continent were answered by widening bureaucratic administrative powers, for a long time received judicial answers in common law countries. It was only when this solution proved to be either unfeasible or counterproductive that new ad hoc institutions were set up, each of them with a limited and clearly defined jurisdiction, which was not incorporated into a general administrative realm (as on the Continent). When and how this happened it is part of a well-known history, that shares some of its developments with the Continental one. Basically, throughout the nineteenth century it emerged that the lower classes’ demands on the one hand could not be satisfactorily answered against the background of property
Public Interests and Regulation of Economic Activities 147 and contractual rights, and, on the other were conflicting with the rigid protection that the courts were giving to property and the contractual rights of others. Therefore the traditional “special responsibilities” were not a suitable answer. It became necessary to bestow derogatory powers upon new authorities that were naturally modelled more on the familiar patterns of the Judiciary than on the bureaucratic ones of Continental machineries (which was not without precedents if one goes back to the origins of the Star Chamber). Infants’ protection, housing, public health, public education and other fields of public interest increasingly fell under the jurisdiction of Inspectors and Administrative Tribunals (the name “Tribunals” has to be noted), empowered to take measures that were both derogatory of common law substantive rules and immediately effective, independently of (otherwise necessary) judicial writs. It is also well known that the tide went far beyond these new authorities (which are generally considered to be the original fruit of common law tradition in the institutional design for the protection of public interests). Besides these and after them the United Kingdom also experienced the construction of a central administrative machinery whose discretionary powers were initially exempted from judicial scrutiny by the enabling statutes. Substantially similar were the birth and the early developments of administrative law in the USA, with one significant exception, namely this wide judicial immunity. We can therefore leave it aside momentarily. Was this new statutory evolution “administrative law”? Even Albert V. Dicey had to admit it in his late years. Yet it was quite a different brand from the Continental one. The two brands shared some essential features. Both of them were derogatory in substantive as well as in procedural terms. In both brands the derogation was to be motivated by the protection of identifiable public interests. In both brands such a motivation was (or became) subject to judicial scrutiny but ordinary courts in the one case and administrative courts in the other met inexorable limits in the impenetrable core of administrative discretion (ultra vires, error of law, proportionality in common law countries, excess of power and its symptoms in Continental countries were the tools that in the course of time the courts would have used to reach and to narrow the bounds of that core). However, two substantial differences remained. In common law countries administrative law generally established itself as an added, though special segment of regulation of economic activities still subject for the rest to common law rules. The extensive incorporation of such activities in public law was much more exceptional than in Continental Europe (excluding the case of local public services). Administrative control and almost entirely public regulation of activities such as banking, insurance or (later on) oil distribution remained as a typically Continental experience. The second difference relates to the sphere of administrative discretion in the two cases. In both there was something that was to remain beyond judicial scrutiny. Yet both the new institutions and the central administrative machineries set up in common law countries had a more limited
148 Giuliano Amato sphere for the very simple reason that each unit was expected to take care of only those interests entrusted to it by the enabling statute. None of them had the DNA of the continental police power. On the contrary, they were authorised to give their attention to “secondary” public interests only when explicitly requested by law. Therefore the balance they were supposed to strike had specific public interests on the one side and the conflicting private ones on the other, which made the balance itself much less uneven and much more open to objections from the viewpoint of the latter than it still was in Continental Europe. Let us see how the process of convergence has proceeded throughout the twentieth century. In common law countries the ad hoc institutions and the ministerial offices of the early stages are initially empowered to act under procedural rules rarely consistent with the requirements of natural justice and eventually to adopt highly discretionary measures, over which (particularly in the United Kingdom)—as already observed—judicial scrutiny is either excluded or severely limited. It is a mounting trend that satisfies the new protected interests but which also raises sharp reactions. “Lawless discretion” is an expression frequently used on both sides of the Atlantic. British and sometimes American scholars express their admiration for France, where the Conseil d’Etat seems to them a desirable and effective leash. One might argue that the administrative tide appears “tyrannical” to those who stand for the conservative and rigid defence of property and contractual freedom previously provided for by traditional case law. The argument would not be an unsound one. However the initial restraint of the courts vis-à-vis the new administrative acts (and procedures) was contributing to a dangerous unbalance that required and received corrections, gradually brought about both by statutory reforms and by the courts themselves. In the United Kingdom administrative Tribunals were more and more identified as a part of the judicial machinery. Due to their quasi-judicial nature, the Tribunals and Inquiries Act 1958 provided both for better procedural rules before them and for wider right of appeal to the High Court against their decisions. Moreover a new ad hoc procedure (the application for judicial review, AJR) as a remedy exclusive to public law disputes was established (initially by revision of an Order of the Rules of the Supreme Court, more recently by statute, the Supreme Court Act 1981) to impose fast judicial scrutiny on administrative decisions. The new procedure extends its reach to the new “policyoriented” Tribunals that have arrived before and after its enactment (initially the Monopoly and Mergers Commission, the Commission on Industrial Relations, the Civil Aviation Authority, the Independent Broadcasting Authority, the regulatory agencies in the privatised public utilities sector in the 1980s). In the meantime the courts had widened the boundaries and the scope of such scrutiny by judicial interpretation of general principles and, where existing, of statute law. Already at the beginning of the century the principles of natural justice (to which the essential procedural rights of the parties were connected)
Public Interests and Regulation of Economic Activities 149 were considered inescapably applicable to “quasi-judicial” bodies, whatever the language of their respective statutes. “Administrative” bodies only (therefore departmental offices) could be statutorily exempted from such principles. Later on this very distinction faded away, judicial scrutiny was generalised and reasonableness plus proportionality were added to natural justice, thereby giving the courts adequate weapons to challenge not just the procedure, but also the substance of administrative measures. The evolution in the USA was quite similar. It was the Administrative Procedure Act of 1946 that channelled the principles of natural justice into administrative procedures and also set the distinction (necessary in that institutional context) between the right to be heard in the case of adjudication and the right to be heard in the case of rule-making. However, it was judicial “creative” action that made the scrutiny of the courts more and more penetrating, by assuming that it was a mandatory task for the courts themselves to safeguard the purpose of statutes that: (a) intended to protect the new properties (entitlements) of low incomes, (b) were not meant to be enforced by agencies captured by the regulated industries, and (c) required adequate consideration of all the relevant interests. In both countries the outcome has been a deep change in the notion itself of administrative law. It is still derogatory, which seems to be its identifying nature, but the quality of its derogation is partially reversed. The standards of transparency and due process are even higher than in procedures falling under common (private) principles. The necessary discretion in pursuing the assigned statutory mission is restricted within limits that do not allow other public or private interests to prevail in the decisions. The insurgence of a wide range of policy-oriented agencies, each of them covering its own well defined area, has underlined not just such a distinctive relevance of the protected interests, but also their nature: sometimes collective interests, more and more frequently individual rights to be safeguarded against the abuses of public or private powers. Let us now turn to Continental Europe. At the beginning of the century in the Continent, and first of all in France, public service meant by itself “regime administratif ” and therefore priority, if not exclusivity, of public entities as providers of services, in any event services extensively regulated by administrative law and jurisdiction bestowed upon administrative courts. Quite significantly (and mutatis mutandis ) the patterns of the changes that have intervened since that first stage are somehow parallel to those of common law countries. On the one side the derogatory realm of administrative law was reduced by assigning the disputes on public services of “industrial or commercial” nature to ordinary courts under the rules of private law. On the other side statutory principles and judicial scrutiny converged in requiring, and obtaining, the tying of each administrative measure to a single and transparent public interest; which in turn brought about further steps in the process of unbundling of those public interests originally confused and incorporated in the police power of the state.
150 Giuliano Amato The principle of legality played a powerful role in outlawing administrative measures not authorised by statute; and statutory authorisations (obviously before and after the reverse tide of the totalitarian regimes) standardised the request of measures distinctively aimed at the protection of specified public interests. For its part judicial scrutiny, though in different ways in France, Germany and Italy, constantly reduced the area of administrative discretion beyond its range. It did so by reviewing the administrative assessment both of the relevant facts and of the measures that could and should be adopted to face them. Among the consequences of the more severe standards of such scrutiny (proportionality, costs and benefits, reasonable connection etc.) was the increasing difficulty for administrative authorities to finalise their measures for the protection of public interests different from the ones referred to by the authorising statutes. Furthermore, under the pressure of new demands (mostly related to the more active role in the economy that the State played in the first decades of the century), new and separate public entities were set up by statute, each of them with its specific mission: regional development, promotion of small and medium companies, protection of agricultural products, urban development, financial services to municipalities for their public works (apart from public utilities). These new entities, usually entrusted both with public powers and with entrepreneurial capacity, remained under the responsibility of the Executive and therefore subject to its policies. However, the interests bestowed upon them were legally and structurally not connected with the others still tied to the traditional administrative machinery. The initial break-through that had been opened in the compact walls of such machinery by the end of the nineteenth Century for the protection of workers’ rights widened more and more. It is against this background that the birth of the first independent authorities (typically single mission authorities) in Continental Europe has to be seen and understood not as a sudden transplant, but as the outcome of a long historical process. Quite significantly the first examples were those of authorities whose mission it was to protect individual liberties threatened by public and/or private powers (“les secteurs sensibles”, as the French doctrine calls them). At this point the relevant public interest was impressively distant from those of the traditional police power. At the time of that power over such interests the interest of the state (and/or of the rulers) could always play its paramount role. Now the protection of individual rights was paramount. Furthermore, these peculiar public interests were committed to authorities totally disentangled from the administrative machinery as well as independent of the policies of the Executive. And not unexpectedly the “sensitive sectors” opened the gate to a new organisational model that (with various degrees of independence) has gradually extended its reach to other areas as well, from public utilities to privatised economic activities generally. A long historical cycle is reaching its conclusion. Eventually the bureaucratic architecture of the sixteenth century’s national state is becoming obsolete and equally obsolete become the notions of administrative institution (as a necessary
Public Interests and Regulation of Economic Activities 151 part of that architecture) and of administrative discretion (as simultaneous attention to both declared and undeclared public interests) to which that architecture gave its own DNA. To summarise the conclusions of this historical review. There seems to be more than one piece of evidence supporting the hypothesis according to which the Continental model of administrative law, throughout the process of “unbundling”, has taken longer steps than the common law one towards common patterns. And yet also the overall features of the evolution of the latter are remarkable, not just for what has changed, but even more for what has apparently remained. On the one hand, it is undoubtedly true that a refined judicial scrutiny has reduced the discretion initially trusted to the newly created administrative offices and institutions of the late nineteenth century, making administrative law much more transparent and procedurally fair than conceived at that time (and the influence of Continental judicial scrutiny is undeniable, despite the use of standards typically belonging to the common law tradition). On the other hand, the tardy creation of administrative machineries (which seem similar to the Continental ones) has not cancelled the long-standing principle (opposite to the ones that Continental machineries had nurtured) according to which each authority entrusted with the protection of public interests is expected to take care of only the interests committed to it by statute. As to the Continental model, the process of transformation has heavily affected its initial pillars and led to the gradual unbundling of the several public interests that bureaucratic machineries had structurally interconnected with each other. As we have seen, the process has been a long one, largely due to the increasingly severe standards of the courts. And yet it has been its last step, namely the creation of independent authorities, that has dealt the deadly blow to the traditional notion of administrative discretion as a balance between “primary” and “secondary” public interests. Only a few years ago the Italian Consiglio di Stato rejected complaints against interministerial decisions that had established prices in view not just of the costs of the service, but also of the anti-inflationary policy of the Cabinet, on the ground that the latter was the typical “secondary” interest to be taken into account, whatever the statutory language. The newly created independent authorities for electricity, gas and telecommunications have the power to set prices and tariffs but are expected to concentrate on those interests (technological improvement, opening of the market, consumers welfare) specifically indicated by their respective statutes, therefore ignoring the policies of the Cabinet (while in the USA micro-economic fine tuning has sometimes appeared among the “relevant” interests to American agencies, but every time it was so required by statute). One final qualification of the conclusion we have reached is, however, necessary. Despite all of these developments, despite the fact that the traditional administrative machinery is now surrounded by several separate institutions that separately take care of their respective public interests, inside the machinery the traditional notion of administrative discretion is still enforced.
152 Giuliano Amato An Italian Administrative Tribunal stated the following principle in a decision of 1995: “the Public Administration shall assume that not just one single public interest exists, but a plurality of them, sometimes conflicting with each other. It shall therefore ascertain which of them are involved in the scrutinised facts, compare their respective relevance and identify the one that has to be considered primary”. This is not a principle that we could apply to the new agencies of our time. The unbundling of public interests has occurred. But part of the past is still with us. Upon these premises, whether the current trends of regulation of economic activities are eroding or extending administrative law is an issue that cannot be solved by simplistic answers. Certainly such trends have brought about an erosion of administrative law, whenever decisions that were taken by public authorities have been transferred to private hands, therefore falling into the realm of private law. Even though—as some authors argue—private operators have frequently to comply with principles either of fairness or of restraint from abuses that, to say the least, represent the enduring legacy of the previous administrative frame. What is more disputed is the typically Continental evolution, by which economic sectors that were almost entirely subject to administrative regulations, are now subject to private law plus special regulations enforced (and sometimes issued) by independent agencies. This too appears as an erosion of administrative law and certainly it is such for the part that has moved under private law. But some authors suggest a further step and ask if the structural features and the narrow discretion of the new agencies that cover the remaining part may be such as to place them too out of the territory of administrative law. Common law scholars would be inclined to answer “no”, for these features are part of their own image of administrative law (that had its birth when similar special regulations were added to the common law rules). Continental scholars are inclined to answer “yes”, but their positive answer mirrors the outdated cultural paradigms we were initially referring to, that do not take the profound evolution of administrative law into due account. A public authority does not lose its administrative nature because the interests it protects are not to be influenced by governmental policies. And a public measure does not lose its administrative nature because the discretion it requires does not call different (and not explicitly indicated) public interests into play. Of course, in these redefined terms, the administrative nature of the measure does not imply the application of all the pre-existing principles of Continental administrative law. If the power of the Executive to declare any administrative act void for reasons of public interest is the expression of one of those principles, it is quite unlikely that it has survived the redefinition of administrative law (at least it should be restricted to a more limited area that does not include the agencies statutorily independent of governmental policies). Can the same conclusion be reached as to the political responsibility that the Executive traditionally holds in relation to any act of any administrative
Public Interests and Regulation of Economic Activities 153 authority? If the Executive is deprived both of the power to void the acts of an agency and to address previous political guidelines to the agency itself (which is not always the case, because there are “authorities” that, under some respects, are subject by statute to the guidelines of the Executive), no reason remains for it to be politically responsible. But is such a conclusion consistent with the (enduring) administrative nature of the authority and of its measures? The question is not a new one: already in the 1930s it had been raised in the USA and the U.S. Supreme Court answered that independent authorities have “special functions” that justify their special regime. More recently it has been argued that independent authorities, as “non-majoritarian institutions”, find their own legitimacy not through the channels of political responsibility, but because of their accountability by different means: the transparency of their procedures, the compliance with the due process principles, the consequent rights of the parties and the judicial scrutiny their acts are subject to. If one accepts these premises a further conclusion can be reached. Dependence or independence of the Executive is not in itself a feature in relation to which the administrative nature of an authority can be assessed. The nature of authorities that are by statute empowered to pursue their specific missions and by consequence have a discretionary sphere limited to such missions (which usually implies that they are legally obliged not to take “secondary” public interests into account) can be defined administrative in relation to other factors. Which ones? Basically, the quality of the functions entrusted to them and the resulting quality of their powers. Therefore rule-making remains administrative and administrative remains the consequent choice of the technical rules appropriate to the pursuit of the legal mission. Also adjudication of single cases aimed at deciding not who is right and who is wrong, but rather what the most appropriate balance of the interests embodied in the mission itself is, remains administrative. Within this revised frame, the special rules and the authorities that more and more frequently remain attached to sectors that are for the rest transferred under private rules should be considered administrative much more often than the traditional Continental paradigms are ready to explain (were these authorities either totally or even partially independent of the Executive). However, some cases remain in which the administrative label raises legitimate doubts even under the redefined criteria suggested above. There are authorities with no regulatory powers, that adjudicate single cases and to this end make use of quasi-judicial standards: no discretionary balance of interests, decisions on who is right and who is wrong by assessing the facts under the light of the applicable statutory rules. In these cases there is no substantial difference from the courts and the only reason for such authorities not to be absorbed by the Judiciary seems to be the special training they require: few cases indeed, perhaps no more than some of the national antitrust authorities of Continental Europe. Whatever the figures, these authorities raise an intriguing issue: if they are not administrative, what else are they? Is it conceivable that they may stand on their own, as an independent power of the state? Were there not supposed to be three powers?
154 Giuliano Amato The most reliable solution is suggested by the already mentioned doctrine of “non-majoritarian institutions” that envisages the constitutional legitimacy of such authorities in their accountability by procedural rules and principles. Of course, vis-à-vis the established frame of our constitutional systems, one of the essential features of which is the separation of (three) powers, any solution of this kind may sound too bold and too difficult to accommodate. Yet the doctrine of non-majoritarian institutions is strongly motivated and should be considered at least as a promise of a fruitful systematisation. After all, what is really essential to our constitutional systems is the principle that wants the powers to be separated. Their being three, and no more than three, reflects the political context and the consequent institutional balance of the late eighteenth century. We have inherited this balance and accepted it by tradition, but why should we exclude—as part of the French doctrine has underlined precisely in connection with independent authorities—further evolutions? The process of innovation that is profoundly changing the legal frame of economic activities is therefore calling for a redefinition both of administrative and of constitutional law. But the former is enough for the scope of this chapter.
II . TOWARDS ECONOMIC SOUNDNESS AS A MAIN GOAL OF REGULATIONS
The evolution under examination demonstrates, first that throughout recent centuries economic activities have undergone public regulations under the pressure of a variety of goals and interests; secondly that in Continental Europe’s national states all of these goals and interests were entangled with each other (and incorporated in the police power) and were later on “unbundled” by judicial and statutory action. Does this evolution have any relevance vis-à-vis the conclusions unanimously reached by economists (and not only by them) as to the impact of state interventions in the economy? Different economists adopt different criteria for their respective analyses. Yet all of them share the basic principle according to which state intervention is useful when and if it promotes nothing else but growth and efficiency, by eliminating costs of transaction and/or asymmetries that economic operators cannot cope with under their own arrangements. Upon this principle economists have constructed highly explanatory analyses both of the actual effects of public regulations and of the not uncommon discrepancies between such effects and the goals originally pursued (or declared) by the regulators. Douglas North has rightly written that in real life there is a frequent gap between the motivations of public regulators and the theoretical models of the economists. And the question is whether the gap is irredeemable. Some of the economists are very sceptical and see no remedy to it, mainly because of the selfish interests of the political actors that affect the decision-making process. Others have more positive expectations, at least under appropriate conditions. It is a fact that centuries ago public regulation played a remarkable role in
Public Interests and Regulation of Economic Activities 155 making the United Kingdom and Holland the front runners of modern capitalism. It is also a fact that the “unbundling” of the public interests previously incorporated in the police power of the state has gradually brought regulation of economic activities closer and closer to the pre-conditions at least of the ideal models of the economists (which therefore are much less unreal in today’s Europe than they were in the past). Such evolution has in fact deeply changed the range of public interests affecting economic activities and has consequently created the necessary institutional frame in which the promotion of economic growth in the context of market economy could emerge, and actually has emerged, as a distinct and more and more frequently paramount goal of public regulation of economic activities. This does not necessarily imply that economic growth is actually promoted by the regulations that explicitly and distinctively aim at it. It rather implies that within that new framework the search for regulatory solutions consistent with economic analysis (and mindful of it) can be more and more fruitful and also supported by appropriate institutional safeguards. Let us briefly reconsider the main passages of this historical evolution, focusing on aims and means of public regulations. In their early stages feudal relations (in which both the common law legal systems and the Continental ones had their initial roots) embodied a clear-cut and transparent transaction. In a time when agricultural production, and consequently food, was limited under the continuous threat of robbery and therefore either not marketed or locally marketed only, economic operators (more peasants than farmers) needed to be protected, while their feudal lords and their soldiers needed to be fed. Upon this background the first feudal contracts, which had both public and private nature, traded security against natural products and “corvées” on the land of the lord. In theoretical terms, it was the paradise of contemporary economists. Both the aims and means of that kind of regulation were consistent with the requirements of economic analysis. The aim certainly was to protect economic production, the means had the unambiguous effect of neutralising costs that the producers could have never coped with themselves. In time things changed. The story is a well-known one. The lord became more demanding. He needed more and more soldiers to satisfy the demands of the upper lord, who, in turn, needed more and more powerful armies not just to defend his territory, but also to expand it. In the United Kingdom this further development remained within the contractual frame of feudal relations, which was so successfully flexible as to adapt to it and to prevent at the same time a disruptive concentration of power at the top. In Continental Europe the evolution was quite different. It was the king who succeeded in not depending on others for his supply of soldiers. Little by little a national bureaucracy was set up to raise the necessary funds for the army and, unavoidably, to concentrate into its machinery most of the public functions previously exercised by feudal and municipal authorities. This had a profound impact on the aims and means of public regulations of economic activities. The financial burden on the
156 Giuliano Amato producers went far beyond what was needed to make their activities more secure. Furthermore, public order and the security of the Crown became paramount goals in themselves, frequently overstretched and frequently accompanied by other goals, such as the protection of health and morality, that more than once were covertly ancillary to them. Regulations of economic activities aimed at these goals and, moreover, aimed at all of them at the same time (as we have seen, all of them were issued by the same structurally compact bureaucratic machinery to which all of the goals were equally entrusted). Quite predictably they were heavily intrusive and also quite unsatisfactory from the angle of economic analysis. It has honestly to be added that the incumbency on economic activities of interests such as public order or public health was also due to other reasons, totally independent of the centralising process of Continental national states. Let us take the case of bread. When Louis XIV said that “the need for bread is the first thing a prince should care about”, he stated a universal truth, at his time equally compelling in the United Kingdom and in Continental Europe, in small municipalities and in the newly-formed national states. The distribution of flour and bread had been regulated since the late Middle Ages (when trade exchanges had been restored and towns and villages had again their own marketplaces), aiming at the promotion of direct sale to the final consumer at an affordable price. Therefore, intermediate distribution was either severely limited or totally prohibited, while bakers themselves were supplied after the final consumer and were not even allowed to store flour and bread beyond the expected daily production. Why these regulations? When they had been initially adopted and for centuries afterwards, popular revolts over sudden shortages of bread were a matter of frequent and dreadful concern to kings, lords and local officials. Public order was disrupted and the economy itself was heavily affected: outlets both robbed and destroyed, prices subsequently reduced by decree independently of costs. Prophylactic measures therefore appeared preferable (even if not always effective, as the repeated revolts eloquently demonstrate). It was the need to supply national armies and increasingly populated urban agglomerates that made such measures so economically unsound as to transform distributors, initially perceived as speculators, into an essential ring of trade. However, it was a lengthy and politically costly process, also because by tradition the list of entitlements had grown longer and longer: not just final consumers, but also local lords, parish priests, tax collectors and others. Eventually the reasons of (our contemporary) economists prevailed almost everywhere. In other areas the compound of diverse public interests, that was typical of Continental states, was much more persistent. Economic activities remained subject to regulations that were highly discretionary as well as distorting. The power to grant licences for industrial and commercial activities was one of the main instruments by which the entire set of the (at the time) relevant interests could be simultaneously protected: certainly good faith of consumers and public health, but also morality (by frequently requiring a certificate of the parish
Public Interests and Regulation of Economic Activities 157 priest) and, last but not least, public order and security of the Crown (both by keeping an eye on any outlet and by using the licensee as a source of information). It should not be found surprising that in Italy such power was transferred to local authorities not earlier than in the late 1970s. Up to that time (even in relation to any shop, or bar, or movie theatre in any small village of the country) it had remained within the exclusive and firm jurisdiction of the national police, under the legislative heading “public security”. This brand of public regulation was by far the most dominant in Continental Europe until the early nineteenth century (and it survived much longer, as we have just seen). However the European continent, and more precisely France, had also experienced public regulations more unilaterally oriented towards the promotion of economic growth at the time of Cardinal Richelieu and even more during the reign of Louis XIV, when Jean Baptiste Colbert was his Secretary of State. Both Richelieu and Colbert had clearly realised that the priority itself of military strength required a flourishing economy and a positive trade balance, which was necessary to increase the monetary reserves of the country. This was the underpinning of their action on behalf of new manufacturing activities in France, that were promoted by granting monopolies, by supplying the producers with new capital, by giving fiscal incentives to the importers of qualified manpower, and by training the poor. Furthermore guilds were given the power to inspect plants and to issue special and detailed regulations with the aim of enhancing the quality and competitiveness of French production in foreign markets. By all of these “colbertist” measures no other interest but the promotion of growth was pursued according to patterns that the nineteenth century would have extensively adopted. Our contemporary economists would object that the soundness of the aim was more than outweighed by the intrusiveness of the means, which in the long run would have crippled innovation and therefore competitiveness. And this is precisely what happened after the initial spur, mostly where monopolies had been granted and where guilds had exercised their regulatory and consequently suffocating role. However France was and stayed much better off than other Continental countries, which had remained loyal to the dominant brand of public regulation and thereafter fell into a deep and structural stagnation. The case of Spain is an unrivalled example. The picture is obviously different in the nineteenth century. The allembracing police power has gone, even though its legacy to the “administrative” states of Europe will survive for many decades and will slowly retreat before the new restrictive principles that both administrative courts and statutes will gradually introduce. Despite the fact that “police” now has a narrower meaning, which includes the preventive protection of public order and public security only, the activities within its potential range are not necessarily those in which crimes may find their origins. Still in the early twentieth century a prestigious Italian scholar, Aldo Zanobini, refers to it as the public function by which any individual freedom may be limited for the sake of such public interests.
158 Giuliano Amato Therefore, even ordinary economic activities may be reached by the “police” rules and institutions; and so they are, as it is testified by the public security laws which will regulate licenses to any commercial outlet for many decades to come. The continuous pressure of judicial scrutiny, which strictly expects from any measure a clear and demonstrated link to public order and public security, reduces the initially inscrutable discretion of these police measures and brings them towards the border of acceptability according to economic standards. As long as they take into account the reliability of the potential licensee and therefore protect the good faith of consumers, they comply with such standards. But they frequently go beyond the border. Suffice it to say that the licence may be withdrawn when “dangerous” customers attend the shop. One might argue that these are visible inconsistencies, but it is at the same time undeniable that they also prove that the process of “unbundling” is developing and already requires public measures to demonstrate the actual interests they are instrumental to—something that paves the way to the future adoption of economic analysis. Similar issues are raised by the new developments of the late nineteenth century: first, the wave of nationalisations and municipalisations of services of general interest aimed at their universality and affordability; secondly the new public interests by which economic activities and rights could be affected, such as the health of industrial workers and their protection against the main risks of life, the orderly and healthy growth of urban agglomerates, the needs of industrial growth (frequently conflicting with the existing rights on the land). All of these aims are much more familiar to us than the ones that had previously affected economic activities. Indeed they are the undisputed aims of many contemporary regulations and what is disputed about them is whether the rules that protect them are either sensible or more appropriate than others. Quite significantly these are the arguments to which one of the two main chapters of contemporary economic analysis of public regulations is usually devoted, while the other deals with regulations directly aimed at the promotion of economic growth and efficiency. However, when this new era begins in the late nineteenth century, the preexisting principles and institutions unavoidably affect it. Public services are municipalised upon the argument that the needs of consumers, mostly in case of natural monopolies, are not satisfied by undertakings whose main goal is the pursuit of profit. The expectation, therefore, is that publicly owned companies will devote their revenues both to long term investments and to provide efficiently the marginal consumer with their services despite the higher cost (which a private monopolist would not do). But municipalisations restore the old discretion of political and administrative institutions, which fact in itself opens the gates to interests totally inconsistent with consumers’ welfare, first of all the political interests of locally elected officials and also the pressure of the employees for high salaries and privileged status. This does not prevent public services from being universally provided at an affordable price. However, it also leads to overstaffing, rates frozen independently of costs, inefficiency and
Public Interests and Regulation of Economic Activities 159 consequent shift of the increased burden onto the taxpayer (who still is the consumer in a different capacity). After some decades of this kind of experience, economists will have an easy job arguing that even when competition is not available other solutions should be devised. And some of them will indicate privatisation plus independent regulatory authorities as the most reliable (or least unreliable) of these solutions. As to the new interests that emerge vis-à-vis economic activities (or property rights), they themselves are initially doomed to fall between the new and the old. In common law countries they promote the setting up of ad hoc authorities, specifically devoted to them (which opens the now long-standing debate among the economists as to the reliability and actual independence of such authorities). In Continental countries their initial protection is most frequently bestowed upon the preexisting bureaucratic machineries, which by their own nature tend to infiltrate them with other interests. And yet in the course of time here too a similar setting is slowly approached. Not just for the judicial scrutiny that obliges administrative institutions not to merge public interests unless provided by law, but also for the first breach in the compact walls of bureaucratic machineries. The fact has already been mentioned that also in Continental countries public but separate institutions were set up to administer pensions, workers’ insurance and compliance with safety regulations in the places of work—a first structural change leading towards the institutional framework that may be considered as the necessary pre-condition for economic analysis to be fruitfully applied. Next come our times. Public interests and aims that by their very nature were inconsistent with economic growth have gone. Whatever public interest is now protected, the corresponding public measure survives judicial scrutiny only if it is demonstrated that all of the relevant interests, but nothing more than the relevant interests, have been taken into account by the competent authority, even when such authority is part of a wider machinery. Furthermore, for the many instances in which not even the indirect influence of political and other public interests is deemed to be appropriate, ad hoc independent authorities are more and more frequently set up. I define this institutional framework as a necessary pre-condition for economically sound regulations for the very simple reason that within it unsound regulations are in principle due to regrettable discrepancies, not to deliberate and lawful policies—which by no means implies that the soundness of the adopted regulations can be taken for granted. However, the performance of the regulators in relation to their own declared goals may be assessed and the discrepancies that frequently remain may be reduced. In some instances it may also be argued that not even the essential and preliminary pre-conditions are actually met. Obviously mostly economists have produced this kind of analysis, but also legal experts in competition. And the movement for “regulatory reform”, which is presently taking root throughout a significant number of countries under the
160 Giuliano Amato auspices of the OECD, is largely based on the same analysis. Furthermore, in legal contexts such as the European one, many economic regulations, when issued by Member States, fall under the jurisdiction of the Community, which may prohibit any state measure that curbs the free movement of goods and services or hampers competition or aids economic activities beyond the restricted limits provided for by the Treaty. And yet, despite all of these new informal and formal constraints, the amount of inappropriate or manifestly disproportionate economic regulations that nevertheless remain unobserved is surprisingly high. This is certainly due to several reasons and a role is undoubtedly played by political and social demands as well as by the culture and the electoral interests of political groups and leaders. But a role is also played by the limits of judicial review of legislation in national countries (for economic unsoundness may not always be challenged as a violation of the Constitution) as well as (in Europe) by the limited scope of the powers that the Community has upon Member States’ measures. It is a fact that the wide immunity that anti-competitive public regulations enjoy, gives rise to a striking inconsistency. No private conduct liable to reduce the competitiveness of our economies is free of investigation. Private companies are continuously under the risk of being challenged for this reason. And public institutions have developed a formidable know-how in the analysis of markets and conducts, in the collection of appropriate evidence, in adopting decisions supported by sound economic and legal reasoning. This is why it is striking that public regulations, to which this very know-how could be usefully and extensively applied, may remain largely untouched. The consequence, and not a lesser one, is that the competitiveness of our economies, so carefully protected against private restrictions, is heavily hampered by those very institutions that have formally adopted competition as a paramount principle. They adopt or keep in force structural regulations where supply and demand should be free to find the appropriate balance, tariff regulations where information would be more than enough to tackle existing asymmetries, prescriptive rules where incentives would do a better job and exclusives to professions where there is room for an open market. What can be done to remove this inconsistency? Can we expect in the long run a more penetrating scrutiny by existing reviewers of public measures? Or should we only pursue a better quality of rule-making along the patterns of the “regulatory reform”(which in some countries, as we will see, is producing remarkable effects)? Whatever the final outcome, history tells us that a long process might be necessary, passing through more than one stage. Therefore, as far as Europe is concerned, the setting up of an observatory on Member States’ regulations aimed at the assessment of their economic soundness (that could be publicised on the newly established scoreboard) might be usefully considered as an initial stage. It would not require any formal addition of powers. It could avail itself of the existing know-how of DG IV and other Directories. It would supply Member States and the Community itself with models and standards for an improved legislation.
Public Interests and Regulation of Economic Activities 161
III . ESSENTIAL BIBLIOGRAPHY
Baldwin, R. and Mc Crudden, C., Regulation and Public Law (London, 1987). Breyer, S.G. and Stewart, R.B., Administrative Law and Regulatory Policy (Boston, 1979). Coase, R., “The Problem of Social Cost”, in (1960) 3 J. of Law & Economics 1. Collective work, Verwaltungsermessen im Modernen Staat (Baden Baden, 1986). Colliard, C.A. and Timsit, G., Les autorités administratif indépendantes (Paris, 1988). Fischer and. Lundgreen, P., “Il reclutamento e l’addestramento del personale tecnico e amministrativo”, in C. Tilly (ed.), La formazione degli Stati nazionali nell’Europa occidentale (Bologna, 1984), p. 227. Flogaitis, S., Administrative law et droit administratif (Paris, 1986). Gellhorn, W. and Byse, C., Administrative Law (Mineola, New York, 1970). Giannini, M.S., Profili storici della scienza del diritto amministrativo (Milano, 1940), now also in (1973) 2 Quaderni Fiorentini 180. Hauriou, M., Precis de droit administratif et de droit public (Paris, 1892 and 1911). Legendre, P., Histoire de l’administration de 1750 à nos jours (Paris, 1968). Majone, G.D. (ed.), Regulating Europe (London, 1996). North, D., Institutions, Institutional Change and Economic Performance (Cambridge, 1990). Pigou, A., The Economics of Welfare (London, 1920). Robson, W.A., Justice and Administrative Law. A Study of the British Constitution (London, 1928). Schwartz, B., Administrative Law and the Common Law World (New York, 1954). Stigler, G., “The Theory of Economic Regulation”, in (1971) 2 Bell J. of Economics and Management Science 3. Taggart, M. (ed.), The Province of Administrative Law (Oxford, 1997). Tarello, Storia della cultura giuridica moderna. Assolutismo e codificazione del diritto (Bologna, 1976). Tilly, C., “Approvvigionamento alimentare e ordine pubblico nell’Europa moderna”, in C. Tilly (ed.). La formazione degli Stati nazionali nell’Europa occidentale (Bologna, 1984), p. 227.
9
The Convergence of the Administrative Laws of the EU Member States* JÜRGEN SCHWARZE
as 1978, on the occasion of one of the first research projects of the European University Institute in Florence, Jean Rivero reported on tendencies towards a common European administrative law.1 Today, twenty years later, it might be time to raise the question of whether the expectations of Jean Rivero have been fulfilled and to examine what state of convergence the administrative laws of the EU Member States have achieved today.
A
S EARLY
I . ADMINISTRATIVE LAW AS A LEGAL SYSTEM WHICH IS OPEN TO CHANGE
The results of the research project have made clear that the administrative laws of the EU Member States are no longer shaped solely on the national level, but that they are subject to European influence in many ways. This tendency, inter alia, expresses itself in the fact that administrative courts increasingly have to handle questions of European law.2 At first sight, the rather strong influence of supranational law on national administrative law might be surprising. At all times there existed various impediments to an administrative ius commune. The obstacles primarily result from the nature and the tradition of administrative law. Thus this area of law traditionally is known for the national character of its regulations which for a long time—not least because of the different historical development of the * This article has also been published in (1998) 4 European Public Law Issue 2, p. 191 et seq. The author is grateful to Mrs N. Wunderlich LL.M. for her assistance in preparing this chapter. This chapter is based on the results of an international research project, which has been carried through under the author’s auspices and was concluded in 1996 (see J. Schwarze (ed.), Administrative Law under European Influence: On the Convergence of the Administrative Laws of the EU Member States (Baden-Baden and London, 1996)). 1 See Jean Rivero, “Vers un droit commun européen: nouvelles perspectives en droit administratif”, in M. Cappelleti (ed.), New Perspectives for a Common Law of Europe (Publications of the European University Institute, Florence, 1978), vol. 1, p. 389. 2 In this contribution, the term “European law” is primarily used in the sense of EU law, but it also includes the law of the Council of Europe (especially the ECHR).
164 Jürgen Schwarze administrative laws in the several Member States—hampered every effort for a harmonisation or even approximation. While in the area of civil and commercial law practical needs of personal and commercial relations across national boundaries led much earlier to an interest in foreign national legal orders, in the area of administrative law, comparative law until now has not been a significant source of juridical inspiration.3 Jean Rivero probably was one of the first who disclosed a comparative law perspective within the area of administrative law.4 In order to illustrate the differences between the conceptions of the administrative laws in the several Member States, the three widest legal systems—the French, German and English system—will briefly be looked at. Within the Continental system, the French administrative legal order traditionally focuses on the effectiveness of the administration. Therefore, the protection of the prerogatives of the administration is considered to be of particular importance. German administrative law, in contrast to that, rather focuses on the protection of the individual and his or her individual rights towards the administration.5 Both concepts are the result of a development which has already lasted for decades and which has been effected by the legislative and by judge-made law.6 The differences of the legal concepts become even more evident when one takes a look at the Anglo-Saxon legal system. In England, under the influence of A.V. Dicey,7 for a long time even the existence of a special law concerning the executive power had been denied. Today this is no longer the case.8 However, it is clear how big the conceptual differences are which have to be surmounted in order to achieve a basis of common rules in the field of administrative law. Despite the diverging traditions of the Member States, remarkable changes in national law can be perceived more recently. These changes indicate a definite approximation of the Member States’ administrative law systems. 3 For fundamental studies in the field of comparative law with regard to public law, see, for example, J.H. Kaiser, “Vergleichung im öffentlichen Recht”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 24, 1964, 391; and R. Bernhardt, “Eigenheiten und Ziele der Rechtsvergleichung im öffentlichen Recht”, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 24, 1964, 431. For further references, see J. Schwarze, European Administrative Law (London, 1992), p. 76. 4 See J. Rivero, n, 1 above, p. 389. 5 See for the different concepts in France and Germany, J. Schwarze, “Le juge—un regard étranger”, Actualité juridique de droit administratif, special issue, 20 June 1995, 233; and C.D. Classen, “Strukturunterschiede zwischen deutschem und europäischem Verwaltungsrecht”, Neue Juristische Wochenschrift, 1995, 2457 at 2461. 6 See J.-M. Woehrling, “Die französische Verwaltungsgerichtsbarkeit im Vergleich mit der deutschen”, Neue Zeitschrift für Verwaltungsrecht, 1985, 21. 7 His concept of the “rule of law” required the “universal subjection of all classes to one law administered by the ordinary courts” and was, therefore, opposed to the idea of an administrative law on its own. See A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn. (London, 1959), p. 183. 8 See S. de Smith, Lord H. Woolf, J. Jowell, Judicial Review of Administrative Action, 5th edn. (London, 1995), paras. 1-006 et seq.; see also, Lord G. Slynn, “But in England there is no . . .”, in Festschrift für Wolfgang Zeidler (Berlin, 1987), p. 397.
The Convergence of the Administrative Laws of the EU Member States 165 This development—which will be discussed in detail below—is interesting not only from a national point of view: it could have consequences for what is usually known as “indirect administration” of Community law.9 For some time, a discussion has been ongoing as to whether and to what extent a codification of the principles of indirect administration would be appropriate.10 One of the most important arguments against such a codification is the assertion that a convergence of the national administrative law systems is still lacking and that, therefore, for practical reasons, a codification at European level would not be feasible.11 The approximation of the national legal orders which has been mentioned above gives rise to a renewed examination of the question of a possible codification.
II . THE STATE OF CONVERGENCE OF THE ADMINISTRATIVE LAWS OF THE EU MEMBER STATES
The changes in national administrative law mentioned above are mainly brought about by the influence of European law. In particular the standards established by the ECJ for the so-called indirect administration of Community law have inspired national legal orders to use in their own legal systems solutions which have jointly been developed at a Community level.12 Thus to a certain extent the process of development which had until now characterised the relationship between national and European administrative law has become reversed. Whereas formerly the development of Community law was determined by the domestic legal orders, especially by way of the ECJ’s case law, the reverse process has now become apparent.13 Community law now influences national administrative law. In this way Community law does not only bring about permeability of the domestic legal orders, but it also puts pressure on the Member States to improve their own administrative legal systems. This pressure is caused by the creation of standards of comparison, i.e. common legal
9 In contrast to “direct administration” of Community law, where the Community institutions themselves implement Community law, in the case of “indirect administration” Community law is implemented by national authorities, pursuant to the conditions set by Community law; see on the terminology e.g. M. Schweitzer/W. Hummer, Europarecht, 5th edn. (Neuwied, Kriftel and Berlin, 1996), p. 125; J. Schwarze, n. 3 above, p. 1453. 10 See, for example, C. Vedder, “[Teil-]Kodifikation des Verwaltungsverfahrensrechts der EG”, in J. Schwarze and C. Starck (eds.), Vereinheitlichung des Verwaltungsverfahrensrechts in der EG, supplement 1/95 to Europarecht, p. 75; see also J. Schwarze, n. 3 above, p. 1453. 11 See n. above. The former President of the ECJ, Ole Due, first expressed doubts about this argument in 1987: O. Due, “Le respect des droits de la défense dans le droit administratif communautaire”, CDE, 1987, 383 at 396. 12 See J. Schwarze, “The Europeanization of national administrative law”, in J. Schwarze (ed.), Administrative Law under European Influence: On the Convergence of the Administrative Laws of the EU Member States (Baden-Baden and London, 1996), p. 836. 13 Ibid.
166 Jürgen Schwarze principles, which again were derived from many European legal systems on the basis of comparative law.14 However, when considering the convergence of national administrative law systems, the reciprocal influences of the legal orders of the Member States should also be considered. French administrative law had, for a long time before the foundation of the European Communities, influenced other national legal orders in many ways.15 Even today this rayonnement à l’étranger seems to be significant. In some EU Member States the influence of other administrative law systems (for instance, German administrative law) can be ascertained. Spanish administrative law, for example, is based on a rather strong comparative law approach.16 Furthermore, several principles or institutions of administrative law of the Benelux countries reflect influences of French and German administrative law concepts which in some areas have led to a “mosaique juridique”.17 How has the approximation alluded to above been realised in practice? By way of example, the following will be discussed in turn below: (1) the development of certain common principles of law, for example the principle of proportionality; (2) at the same time, such development shows clearly that those legal systems which do not have an old tradition in the field of administrative law are especially open to European influences; (3) the European Convention on Human Rights has contributed to the approximation of the national administrative law systems; and (4) a conceptual approximation of the administrative law concepts of the Member States can be perceived; this approximation may be illustrated, for example, by the development of the density of control in France, on the one hand, and in Germany, on the other.
1. The formation of common principles of law Proportionality In a study concerning the development of common administrative law principles, the principle of proportionality must be discussed in the first place. This principle, which German jurists are familiar with and which is also recognised in public international law,18 was originally not at all common in all Member 14 See J. Schwarze, “The Europeanization of national administrative law”, in J. Schwarze (ed.), Administrative Law under European Influence: On the Convergence of the Administrative Laws of the EU Member States (Baden-Baden and London, 1996), p. 836. 15 See Conseil d’Etat, Livre jubilaire (Paris, 1952), p. 481. 16 See E. Garcia de Enterria and L. Ortega, “Spanish Report”, in J. Schwarze, n. 12 above, p. 695. 17 See M. Thewes, “Luxembourgian Report”, in J. Schwarze, n. 12 above, p. 503. 18 See H. Kutscher, “Der Grundsatz der Verhältnismäßigkeit im Recht der Europäischen Gemeinschaften”, in H. Kutscher (co-ed.), Der Grundsatz der Verhältnismäßigkeit in europäischen Rechtsordnungen (Heidelberg, 1985), p. 89 at p. 95.
The Convergence of the Administrative Laws of the EU Member States 167 States.19 Particularly in France20 and in England,21 but also, for example, in the Netherlands22 and Belgium,23 the application of the principle of proportionality was either limited to some exceptional cases or even completely unknown. More recently this situation has changed. In England, discretionary administrative decisions could only be challenged successfully if they fulfilled the requirements of the so-called Wednesbury test.24 These requirements were only met if the decision of the authorities was “so unreasonable that no reasonable authority could ever come to it”.25 Today, English courts have gained more control over the proportionality of administrative decisions without, however, explicitly referring to the notion of proportionality. Particularly in cases which touch upon fundamental human rights, criteria corresponding to those used for the determination of proportionality are applied.26 Also in France, the jurisdictions of the ECJ and of the monitoring organs of the ECHR have led to an extension of judicial control. In particular, those cases which concern the expulsion of EU citizens are now subjected to a full examination of proportionality.27 The Conseil d’Etat even goes further and, contrary to its earlier practice,28 also reviews the proportionality of decisions concerning the expulsion of citizens of third states in cases in which Article 8 of the ECHR applies.29 The principle of proportionality has also been recognized by judgments of the Conseil Constitutionnel.30 Thus in France, the application of the principle of proportionality can clearly be traced back to its European origins. Similarly, in Italy it was only in the wake of the ECJ’s judgments that this principle has attracted any attention.31 In other 19 On the principle of proportionality at Community level see e.g. G. Hirsch, Das Verhältnismäßigkeitsprinzip im Gemeinschaftsrecht (Rheinische Friedrich-Wilhlems-Universität Bonn, Zentrum für Europäisches Wirtschaftsrecht, Vorträge und Berichte No. 80), p. 1; and J. Schwarze, n. 3 above, p. 708. 20 See M. Fromont, “Le principe de proportionnalité”, Actualité juridique de droit administratif, special issue, 20 June 1995, p. 156. 21 See J. Schwarze, n. 3 above, p. 695. 22 See R. de Lange, “Dutch Report”, in J. Schwarze, n. 12 above, p. 551. 23 See J. Schwarze, n. 3 above, p. 697. 24 Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1948] 1 KB 223. 25 See Lord Greene at [1948] 1 KB 223 at 229. 26 See J. Jowell and P. Birkinshaw, “English Report”, in J. Schwarze, n. 12 above, p. 289 with the references therein. 27 See Conseil d’Etat, judgments of 24 October 1990 (Ragusi) and 19 November 1990 (M. Raso), printed in 1991, Actualité juridique de droit administratif, 322 et seq.; see also J.F. Flauss, “French Report”, in J. Schwarze, n. 12 above, p. 86. 28 See, for example, the judgment of 25 July 1980 (Touami Abdeslem), Recueil, 820. 29 Article 8 (1) ECHR guarantees, inter alia, the right to respect for private and family life. For decisions of the ECtHR, see, for example, the judgments of 18 January 1991 (Bedjaoui), Recueil, 18; of 19 April 1991 (Belgacem), Actualité juridique de droit administratif, 1991, 551; see also R. Errera, “Free movement of persons, human rights and judicial policy: assessment and prospects: French law in practice”, in H. Schermers et al. (eds.), Free Movement of Persons in Europe (Dordrecht, 1993), p. 319 at p. 325. 30 See M. Fromont, n. 20 above, p. 164. 31 See G.M. Ubertazzi, “Le principe de proportionnalité en droit italien”, in H. Kutscher (co-ed.), op. cit., note , p. 79; see also J. Schwarze, n. 18 above, p. 692.
168 Jürgen Schwarze EU Member States, a European origin is not always clearly ascertainable. Even so, as the example of the Netherlands shows, the principle of proportionality has increasingly been applied even in these states.32 Legitimate expectations The examples given above show clearly that proportionality is developing into a common principle of the administrative law orders of the EU Member States. A similar though less distinct phenomenon can be perceived with regard to the protection of legitimate expectations within the EU Member States. Two examples will be given concerning the English and the Dutch legal orders. In the Netherlands, the concept of the protection of legitimate expectations has been applied for some time.33 This principle was originally developed in the context of the recovery of civil servants’ salaries which had been paid without a legal basis. Today the principle of legitimate expectations is applied in a variety of cases. Unlike the legal situation at Community level, in the Netherlands legitimate interests can also arise from an illegal assent or an illegal practice of the authorities.34 In cases which relate to Community law, this remedy is normally subordinated to the interest of an effective implementation of Community law.35 Therefore, in the long term, European influences could also lead to a decrease rather than to an increase in national legal protection. This is a possible development, which, within the framework of an approximation of the national administrative law systems, should not be overlooked.36 In England, on the other hand, and similarly in Ireland,37 the development of the principle of the protection of legitimate interests has led to an enhancement of judicial protection for the individual.38 In England, the principle of legitimate 32
See R. de Lange, “Dutch Report”, in J. Schwarze, n. 23 above, p. 551. See on this and the following, R. Widdershoven, “Dutch Report”, in J. Schwarze, n. 12 above, p. 568. 34 See on the legal situation at Community level, for example, Klöckner-Werke AG v. Commission, Joined Cases 303/81 and 312/81 [1983] ECR 1507 at 1530, para. 34; and Thyssen AG v. Commission, Case 188/82 [1983] ECR 3721 at 3734, para. 11. 35 See, for further references, R. Widdershoven, “Dutch Report”, in J. Schwarze, n. 12 above, p. 570. 36 From a German point of view, see particularly F. Schoch, “Die Europäisierung des Verwaltungsrechts”, Juristen Zeitung, 1995, p. 109. 37 See G. Hogan and A. Schuster, “Irish Report”, in J. Schwarze, n. 12 abaove, p. 446. 38 Moreover, there are signs that the principle of the protection of legitimate interests could also find its way into French administrative law. See, in this context, the judgments of the Tribunal Administratif de Strasbourg of 8 December 1994 (Entreprise Transports Freymuth v. Ministre de l’Environnement, no. 931085, Actualité juridique de droit administratif, 1995, 555) as well as the opinion of the Commissaire du gouvernement, M.J. Pommier, to which the judgment refers. Pommier, with explicit reference to the fact that the principle of protection of legitimate interests has its origins in Community law, approved the “integration” of the principe de la confiance légitime into the French legal order, and, therefore, recommended a finding for the complainant (see ibid., at 558). 33
The Convergence of the Administrative Laws of the EU Member States 169 interests was referred to in a court decision for the first time in 1969,39 and since then this principle has repeatedly been applied and upheld.40 The Irish law system followed England’s example in 1987.41 In neither of the two countries was the European origin of the principle explicitly recognised. However, the oftencited assumption made by Lord Mackenzie Stuart with regard to English law has so far been unchallenged.42 Obligation to give reasons In certain fields of the law of administrative procedure, the legal systems of the Member States increasingly concur. Today, in many Member States there no longer exist any notable contradictions between national law on the one hand and the principles of administrative law established by the ECJ on the other.43 However, it has frequently been stated that this development is not so much based on influences of Community law but rather on the increasing significance of the European Convention on Human Rights and on common roots of many legal provisions in German and French administrative law.44 The convergence of national administrative law principles becomes especially apparent with regard to the question of whether and to what extent reasons should be given for administrative decisions. This obligation, laid down in § 39 of the German law of administrative procedure (Verwaltungsverfahrensgesetz or VwVfG), has for a long time been unknown to the French and Belgian legal orders and to the English common law. In Belgium, the legislature has now introduced an obligation to give reasons for decisions of individual cases.45 This development has possibly been accelerated by the Heylens judgment of the ECJ46 in which the Court insisted upon the requirement of giving reasons, as a precondition for an ordered administration, for the purpose of the protection of the four freedoms of the common market and the guarantee of adequate legal protection. 39
Schmidt v. Home Office [1969] All ER 909B, CA. See especially Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374, HL; see also L. Jowell and P. Birkinshaw, “English Report”, in J. Schwarze, n. 12 above, p. 297. 41 Webb v. Ireland [1988] IR 353. 42 See Lord Mackenzie Stuart, “Recent developments in English administrative law—The impact of Europe?”, in Liber Amicorum Pierre Pescatore (Baden-Baden, 1987), p. 411 at p. 417: “Can one here detect the influence of Community Law or at least that of some Member States? It is at least possible to suggest that the answer is yes. The concept . . . is a novelty in English law and lacks discernible English parentage. To find the true ancestry one does not have to look far beyond the channel”. 43 See E. Garcia de Enterria and L. Ortega, “Spanish Report”, in J. Schwarze, n. 12 above, p. 701; S. Flogaitis, “Greek Report”, ibid., p. 428; M. Chiti, “Italian Report”, ibid., p. 603, and M. Thewes, “Luxembourgian Report”, ibid., p. 503. 44 This is one example of the above-mentioned reciprocal influences of national administrative law orders. 45 Statute of 19 July 1991, entered into force on 1 January 1992. 46 Case 222/86 (UNECTEF v. Heylens) [1987] ECR 4097. For the possible influences of this judgment on the Belgian statute cited above, see N.M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 353 and the references cited therein. 40
170 Jürgen Schwarze Similarly in France, where the obligation to give reasons has traditionally been regarded as a threat to an effective execution of the law by the authorities,47 changes are perceptible. For the time being, the principe de nonmotivation is still adhered to, but on several occasions in the past obligations to give reasons have been introduced for certain administrative acts.48 Commentators consider that it is doubtful whether the French legal order—particularly in view of the judgments of the ECJ49—will be able to maintain this system of imposing the obligation to give reasons only in exceptional cases.50 In England, it remains to be seen whether a general obligation to give reasons will gain acceptance in the English legal order. However, hints in the courts’ judgments51 to this respect make clear that a considerable potential exists for such a development.52 Interim relief Considerations of the convergence of the national administrative law systems should also include the wider field of legal protection by the judiciary. This is due to the fact that an effective guarantee of substantial rights in many ways depends on the availability of means of legal protection. In this respect, the possibility of interim relief should particularly be taken into consideration, because, as a result of the Factortame case before the ECJ,53 the national system of interim relief in several Member States has radically changed.54 This is true particularly for Britain, but also to a certain extent for France. In Spain, under the influence of Community law, the requirements for granting interim relief have clearly been reduced.55 In Denmark, the Factortame judgment has been accepted by the courts.56 Even in Austria, which has only recently 47
See G. Braibant, Le droit administratif français, 3rd edn. (Paris, 1992), p. 241. See, inter alia, the Statute No. 79-587 of 11 July 1979 “relative à la motivation des actes administratifs et à l’amélioration des relations entre l’administration et le public” and G. Braibant, n. 47 above. 49 See the Heylens case, n. 46 above, at 4117, para. 15. 50 See J.F. Flauss, “French Report”, in: J. Schwarze, n. 12 above, p. 75. 51 See particularly the comment made by Lord Mustill in Doody v. Secretary of State for the Home Department [1993] 3 All ER 92 at 111: “I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed”. 52 See J. Jowell and P. Birkinshaw, “English Report”, in J. Schwarze, n. 12 above, p. 299. See also R. Thomas, “Reason-giving in English and European Community administration”, (1997) 3 European Public Law, 213. 53 R v. Secretary of State for Transport, ex. parte Factortame, Case C-213/89 [1991] ECR I-2433. 54 In Germany, the influences of Community law on the system of interim relief are more connected with two other decisions of the ECJ: Commission v. Federal Republic of Germany [Tafelweindestillation], Case C-217/88 [1990] ECR I-2879, and Zuckerfabrik Süderdithmarschen AG v. Hauptzollamt Itzehoe Joined Cases C-143/88 and C-92/89 [1991] ECR I-415. See, on this, for example, D. Triantaffyllou, “Zur Europäisierung des vorläufigen Rechtsschutzes”, Neue Zeitschrift für Verwaltungsrecht, 1992, 129. 55 See E. Garcia de Enterria and L. Ortega, “Spanish Report”, in J. Schwarze, n. 12 above, p. 720. 56 See P. Germer, “Danish Report”, in J. Schwarze, n. 12 above, p. 396. 48
The Convergence of the Administrative Laws of the EU Member States 171 become an EU Member State, the question has been raised of whether national law meets the requirements of European law.57 In England and France, it is particularly remarkable that national law has been brought into line with Community law standards even when the facts in question were not linked with Community law. Thus, the House of Lords in a case of 1993, which was of no relevance to the EC, held that it was empowered to grant interim measures against a Minister.58 This is even more surprising when one considers that before Factortame it was inconceivable that an English court could grant interim measures against the Crown, let alone the possibility of refusing, even if only temporarily, to comply with Acts of Parliament. Similar influences of Community law on national legal fields which are not related to Community law can be discerned in France. Thus, for example, Article L 22 of the Code des tribunaux administratifs, which provides for the hitherto-unknown remedy of interim relief,59 was inserted with regard to certain areas concerned with Community law. Later, its area of application was enlarged in order to cover also situations which had no bearing on Community law.60 Therefore, Article L 22 constitutes one of the currently still rare examples of a voluntary adoption of Community law standards by French law.
2. The particular flexibility of legal orders which do not have an old tradition in the field of administrative law The above-mentioned examples show that especially English administrative law, because of European influences, is subject to particular change. England is an example of those Member States within the European Union in which administrative law constitutes a relatively new legal field. In such legal systems Community law and other European legal concepts meet with less-established traditions of national administrative law. Accordingly, European principles are more easily accepted as a model and are, therefore, more likely to be incorporated into their administrative law systems. By contrast, in those Member States which have a differentiated administrative law system and a long tradition in the field of administrative law, sometimes the prime concern seems to be that the indigenous national administrative law system could be changed for the worse by the incorporation of foreign concepts, and that it could even be “denatured”.61 However, this attitude now seems to be changing. Thus even the
57
See M. Potacs and C. Pollak, “Austrian Report”, in J. Schwarze, n. 12 above, p. 772. M. v. Home Office [1993] 3 All ER 537, HL. See, for example, Conseil d’Etat, judgment of 15 February 1978 (Plantureux); Actualité juridique de droit administratif, 1978, 501 at 502. 60 For more detail on this, see J.F. Flauss, “French Report”, in J. Schwarze, n. 12 above, p. 83. 61 The French Conseil d’Etat, for example, still held this opinion in 1982. See “Droit Communautaire et Droit Francais”, in Etudes du Conseil d’Etat 1981–1982, 218, at 361–362. 58 59
172 Jürgen Schwarze French Conseil d’Etat assumes now that the hybridation des droits nationaux by influences of European law could benefit French administrative law.62
3. The influence of the European Convention on Human Rights Bearing in mind the significantly larger number of Member States to the ECHR,63 the ECHR, compared to Community law, has a broader effect as regards the Europeanisation of domestic legal orders, although it is focused on constitutional law rather than administrative law. Nevertheless, influences of the ECHR on national administrative law are discernible, though to a different extent in each Member State. In Italy, for example, the impact of the ECHR is minimal,64 while in France and Belgium considerable influence on national administrative law is attributed to the ECHR.65 While the influence of the ECHR will to some extent depend on the legal status of the ECHR within each domestic legal order,66 legal practice has shown that the formal status of the ECHR does not necessarily determine the degree of its influence on a legal order. Thus the German Constitutional Court, for example, refers explicitly to Articles of the ECHR and to the case law of the ECtHR when interpreting provisions of the German Constitution.67 Even British and Irish courts take account of the ECHR although it is not part of the “law of the land”. British courts, when interpreting ambiguous statutory provisions, assume that it is Parliament’s intention to create laws which are compatible with the state’s obligations under public international law; thus, they indirectly use the ECHR as an
62
See Conseil d’Etat, Rapport Public 1992, 47. On the further increase of the number of members of the Council of Europe, see J.F. Flauss, “Les conditions d’admission des pays d’Europe centrale et orientale au sein du Council de l’Europe”, (1994) European Journal of International Law 401. 64 See M. Chiti, “Italian Report”, in J. Schwarze, n. 12 above, p. 229 at p. 267. 65 See M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 333 at p. 370; and J.F. Flauss, “French Report”, ibid., p. 101. 66 In Germany, for example, the ECHR is incorporated at the level of ordinary statutes, whereas, in Austria, it is part of constitutional law (see on this P. Jann, Verfassungsrechtlicher und internationaler Schutz der Menschenrechte: Konkurrenz oder Ergänzung?—Landesbericht Österreich— Europäische Grundrechte-Zeitschrift (1994), p.1 at p. 3). In Member States with a dualist legal tradition, like Ireland and Sweden, the provisions of the ECHR are not a formal part of the domestic legal order because of the lack of an appropriate law on transformation. In the United Kingdom, the ECHR has recently been incorporated by the Human Rights Act 1998. On the different positions of the ECHR in the Member States and for further examples, see J. Frowein, “Übernationale Menschenrechtsgewährleistungen und nationale Staatsgewalt”, in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts (Heidelberg, 1992), vol. VII, p. 731 at p. 735. 67 BVerfGE 74, 358 at 370 and 374; for details on this, see P. Kirchhof, Verfassungsrechtlicher und internationaler Schutz der Menschenrechte: Konkurrenz oder Ergänzung?—Landesbericht Deutschland—Europäische Grundrechte-Zeitschrift (1994), p. 16 at p. 25. On the similar practice of the Spanish Tribunal Constitucional F. Rubio Llorente, “Die Gesetzgebungsverfahren in Spanien. Die Ortsbestimmung des Gesetzes innerhalb der Rechtsquellen”, in A. López Pina (ed.), Spanisches Verfassungsrecht (Heidelberg, 1993), p. 377 at p. 403. 63
The Convergence of the Administrative Laws of the EU Member States 173 instrument of interpretation. Similarly, Irish courts start with the presumption that administrative decisions have been taken in conformity with the ECHR.68 With regard to the Europeanisation of the national administrative law systems, Article 6 of the ECHR is of particular importance.69 It ensures, in principle, the right of access to a court and thus guarantees legal protection in general. In addition, Article 6(1) establishes general principles for the procedure before a court or tribunal. In Belgium, for instance, the judgment of the ECtHR in the Deweer case70 led to an improvement of legal protection against certain administrative sanctions.71 In addition, several of the so-called principles of good administration of the Belgian legal order can be traced back to the ECHR.72 In Austria, the ECtHR’s case law has led to new administrative institutions for legal protection. These so-called Unabhängige Verwaltungssenate in den Ländern (independent administrative tribunals in the regions) now fully review administrative sanctions and other acts affecting individuals which hitherto had been only subject to a restricted review by the Administrative Court.73 In Germany, the reasons for the endeavour to speed up administrative procedure can probably be found in several judgments of the ECtHR which found that Germany, because of exceptionally long procedures, had infringed Article 6(1) of the ECHR.74 The incorporation of the Portuguese administrative courts in the catégorie générale des tribunaux and the wording of Article 268 of the Portuguese Constitution can be traced back to the influence of Article 6 of the ECHR. Article 268 of the Portuguese Constitution provides comprehensive legal protection against administrative acts as well as fundamental procedural rights to be more specifically determined by legislation.75
68 See G. Hogan and A. Schuster, “Irish Report”, in J. Schwarze, n. 12 above, p. 437 at p. 480, who even talk about “a form of ‘indirect incorporation’” via the above-mentioned presumption. 69 See J. Schwarze, Der Beitrag des Europarates zur Entwicklung von Rechtsschutz und Verfahrensgarantien im Verwaltungsrecht, Europäische Grundrechte-Zeitschrift (1993), p. 377. 70 Deweer, ECHR, Series A, vol. 35 (1980). 71 Under the threat of closure of his shop, a butcher had been fined for the infringement of pricing regulations; the Court held that this obligation was equal to a “criminal charge”. This meant that the person concerned must have access to court in order to have the legality of the sanction reviewed. Since there was no appropriate procedure to be found in the Belgian legal order, the Court concluded in its judgment that Belgium had violated its obligations under the ECHR, especially Articles 6 and 13 (see M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 364). 72 M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 366. 73 Cf. M. Potacs and C. Pollak, “Austrian Report”, in J. Schwarze, n. 12 above, p. 733 at p. 748. 74 On this see König, ECHR, Series A, vol. 27 (1978), and J. Frowein, “Übernationale Menschenrechtsgewährleistungen und nationale Staatsgewalt”, in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts (Heidelberg, 1992), vol. VII, p. 731 at p. 755. 75 See C. Botelho Moniz and P. Moura Pinheiro, “Portuguese Report”, in J. Schwarze, n. 12 above, p. 657 at p. 685. Also the Danish practice of employing “temporary judges”, i.e. persons who are appointed judges only for a certain number of days per year and who normally fulfil different functions, has been criticised with regard to Article 6 of the ECHR; however, this practice has not significantly changed until now: see P. Germer, “Danish Report”, in J. Schwarze, n. 12 above, p. 377 at p. 400.
174 Jürgen Schwarze Apart from the examples given above, the ECHR’s influence on national administrative law is more or less restricted to specific fields. For instance, it was Article 1 of Protocol 1 to the ECHR, guaranteeing the right to property and laying down the conditions for exceptional restriction of this right or for expropriation, which had some impact on Belgian law.76 In the Netherlands, the case law of the ECtHR and the ECJ helped the principle of proportionality to take shape.77 The examples mentioned above show that—next to Community law—the ECHR has in certain fields contributed to the approximation of the different administrative law systems although, at least from a purely formal point of view, its provisions mostly do not have the same importance as those of Community law. The ECHR’s main sphere of influence was, and still is, the constitutional field of human rights guarantees. National administrative law is affected by the Convention directly, or indirectly by way of the case law of the ECtHR, particularly concerning the procedural enforcement of these guarantees in order to ensure a minimum standard throughout Europe.
4. Approximation of the administrative law concepts of the Member States Apart from the development of common principles of administrative law, in certain areas an approximation of national concepts of administrative law can be observed. In this context, the development of French and German administrative law may serve as an example. As mentioned above, these two legal systems differ with regard to their approach to administrative law: while French administrative law traditionally focuses on the discretion of the authorities, in Germany the protection of individual rights takes precedence over the effectiveness of the administration.78 More recently, however, it can be observed that in Germany the authorities have been granted more freedom of decision-making, which is rather typical for a legal order like the French system focusing on the effectiveness of the administration.79 Furthermore, influential opinion has expressed the hope that German judicial control of administrative decisions will in future be more prag76
See M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 333 at p. 367. See R. de Lange, in R. Widdershoven and R. de Lange, “Dutch Report”, in J. Schwarze, n. 12 above, p. 529 at p. 572. 78 See on this C.D. Classen, Die Europäisierung der Verwaltungsgerichtsbarkeit (Tübingen, 1996), p. 10. 79 See the assessment by J. Schwarze and E. Schmidt-Aßmann, in J. Schwarze and E. SchmidtAßmann (eds), Das Ausmaß der gerichtlichen Kontrolle im Wirtschaftsverwaltungs- und Umweltrecht (Baden-Baden, 1992), p. 276. See, for an example, the so-called Tiergartentunnel judgment of the Bundesverwaltungsgericht of 18 April 1996 (11 A 86.95), in which the court confirmed its jurisprudence according to which there is only a right to modification of a plan for a street and not to an annulment of the plan if the authorities have not sufficiently provided for noise abatement. 77
The Convergence of the Administrative Laws of the EU Member States 175 matic without insisting absolutely on the principle of complete judicial control of all administrative decisions.80 In France, on the other hand, judicial control has been increasing in cases in which fundamental human rights are relevant, and in this respect France is tending towards the position of German administrative law.81 Thus, an approximation of two legal systems becomes apparent. This too may be seen as a “Europeanisation of administrative law”.
III . THE CONVERGENCE OF ADMINISTRATIVE LAW AS AN OPPORTUNITY TO CODIFY THE RULES GOVERNING INDIRECT ADMINISTRATION OF COMMUNITY LAW
Codification is a long process. In Germany, this has become apparent not only in the discussion about the Civil Code (the BGB), lasting for almost one century,82 but also in the lengthy efforts to pass the administrative procedural law (Verwaltungsverfahrensgesetz), which was finally introduced in 1976 after a process lasting more than twenty years.83 Community law, which is developing rapidly and often selectively, particularly needs a systematic simplification of its legal rules in order to provide for more legal transparency. Therefore, “horizontal codifications” (i.e. the combination of several existing legal rules in one text)84 have rightly been tackled and, in certain areas of Community law, have already been realised.85 In addition, the Community Customs Code86 constitutes the first comprehensive compilation of rules for the entire field of Community customs law. All of these legal acts also include administrative law provisions for the field with which they are concerned. 80 See on this in particular the former President of the Bundesverwaltungsgericht, H. Sendler, “Über richterliche Kontrolldichte in Deutschland und anderswo”, Neue Juristische Wochenschrift, 1994, 1511 at 1520. 81 See J. Schwarze, n. 5 above, p. 233 at p. 235. Corresponding tendencies in English administrative law have already been pointed out: see n. 26 above; see also S. de Smith, Lord H. Woolf and J. Jowell, Judicial Review of Administrative Action, 5th edn. (London, 1995), para. 13-059 et seq. 82 Calculated from the “classic” dispute between Thibaut and Savigny in 1814 until the final entry into force of the BGB on 1 January 1900; see, for example, F. Wieacker, Privatrechtsgeschichte der Neuzeit, 2,d edn. (Göttingen, 1967), p. 390. and p. 468 et seq. 83 See, for example, P. Stelkens, H.J. Bonk and M. Sachs, Verwaltungsverfahrensgesetz, 4th edn. (1993), Introduction, para. 6; P. Badura, in H.-U. Erichsen (ed.), Allgemeines Verwaltungsrecht, 10th edn. (Berlin, 1995), p. 421 at p. 427; R. Mußgnug, “Das allgemeine Verwaltungsrecht zwischen Richterrecht and Gesetzesrecht”, in Richterliche Rechtsfortbildung—Festschrift der Juristischen Fakultät zur 600-Jahr-Feier der Ruprecht-Karls-Universität Heidelberg, p. 203. 84 See, for the different concepts of codification, G. Isaac, “La codification du droit communautaire”, Revue Européenne, 1977, 90. 85 See, for example, Council Regulation No. 17 of 6 February 1962, OJ No. 13, of 21 February 1962, p. 204; Council Regulation No. 4064/89 on Merger Control of 21 December 1989, OJ 1989 No. L 395, p. 1; and Council Regulation No. 3283/94 on Anti-dumping of 22 December 1994, OJ 1994 No. L 349, p. 1. 86 Council Regulation No. 2913/92 of 12 October 1992, OJ 1992 No. L 302, p. 1; on this, see, for example, P. Witte, “Das Neue am neuen Zollkodex”, Zeitschrift für Zollrecht, 1993, 162.
176 Jürgen Schwarze However, at the present time no comprehensive codification governing the indirect administration of Community law through the authorities of the Member States exists. In this context, Hans Peter Ipsen said in 1982 that he thought the idea of a general codification of European administrative law was even “more daring” than that of drafting a constitution for the Community.87 Christoph Vedder pointed out that the international undertaking of codification always entails the risk of watering down rules and principles which have originally been accepted.88 Thus, it is not surprising that it is thought that the time for a comprehensive codification of the principles of indirect administration of Community law has not yet come. Instead, the continuation of partial legal codifications has been recommended.89 This cautious evaluation is particularly based on three considerations which could constitute an obstacle to a comprehensive codification of principles of Community administrative law. The three considerations are discussed in turn below. 1. The absence of convergence The first argument which has been raised against a codification is the lack of convergence of the national administrative law systems. However, as long ago as 1987, the former President of the ECJ, Ole Due, pointed out that the law of administrative procedure in the Member States and in the Community has increasingly been developing in a parallel way.90 Meanwhile, as the above-mentioned research project has shown, the process of approximation has further advanced. It is true that in some important areas fundamental differences between the national administrative law systems still persist. However, this does not mean that the level of convergence which has already been achieved only constitutes a quantité négligeable. In my opinion, today, because of the abovementioned approximation, it is now possible for the Member States to reach an agreement about the basic rules governing the indirect administration of Community law.91 2. The legislative power of the Community to codify administrative law The second objection appears to be more serious and has rightly been raised against a possible codification. The European Union does not have a sufficient 87 Contribution to a discussion in J. Schwarze (ed.), Europäisches Verwaltungsrecht im Werden (Baden-Baden, 1982), p. 123. 88 C. Vedder, n. 10 above, p. 98. 89 See, for example, G. Hogan and A. Schusters, in J. Schwarze, n. 12 above, p. 484; P. Germer, in J. Schwarze, n. 12 above, p. 405; and C. Botelho Moniz and P. Moura Pinheiro, in J. Schwarze, n. 12 above, p. 692. See also my statement in J. Schwarze, n. 3 above, p. 1453. 90 O. Due, n. 11 above, p. 396. On the parallel development of administrative procedural law in the Bund and the Länder within the German federal system, see F. Kopp, Verwaltungsverfahrensgesetz, 6th edn. (Munich, 1996), preliminary remarks, para. 11. 91 For a sceptical view, however, see C. Vedder, n. 10 above, p. 98.
The Convergence of the Administrative Laws of the EU Member States 177 legal basis for a comprehensive codification of the basic rules governing indirect administration of Community law. Christoph Vedder explained in detail that all legal bases which might be taken into consideration—particularly Articles 100, 100 A and 235 of the EC Treaty—in fact do not cover such a codification.92 Even though this has been disputed,93 in my opinion there is no doubt about the correctness of Christoph Vedder’s argument. It would be questionable indeed to base a codification on an overstretched interpretation of the EC Treaty, which would then be open to challenge because of a violation of the rule of law.
3. Codification as an impediment to further development of the EU? The lack of a legal basis for the codification is a technical impediment which could be overcome by a modification of the EC Treaty. Whether such a modification is desirable depends particularly on the third argument which has been raised against a codification of European rules governing so-called indirect administration. The argument is that a codification would entail the risk of a “rigid and inflexible” system and, therefore, would contradict the evolutionary character of Community law.94 The possible content of a codification The possible effect of impeding further development is one of the classic disadvantages of a codification and, therefore, has to be considered carefully also in the field of administrative law. It follows in particular that a codification should only be carried through when the legal situation is sufficiently clear. In my opinion, a development which is in a state of flux should not artificially be brought to a standstill.95 Therefore, a codification should not encompass those fields in which the law is still uncertain. Today, after several decades of a consolidating jurisprudence of the ECJ96 and an increasing codification of parts of secondary law,97 it can be assumed that a core of administrative law principles exists which can be compared to that of the national legal orders.98 It is true that European administrative law still contains some gaps and discrepancies. Nevertheless, it can be assumed that a 92
C. Vedder, n. 10 above, p. 90; see also J. Schwarze, n. 3 above, p. 50 at p. 52. See M. Boes and J. Stuyck, “Belgian Report”, in J. Schwarze, n. 12 above, p. 374; J.F. Flauss, “French Report”, in J. Schwarze, n. 12 above, p. 116; and A. Bleckmann, Europarecht, 6th edn. (Köln, 1997), para. 1316. 94 See, for example, J. Schwarze, n. 3 above, p. 1454. 95 See J. Schwarze, “German Report”, in J. Schwarze, n. 12 above, p. 219. 96 The main achievement of the ECJ in the field of administrative law is the development of general principles of law; as is generally known, this development started from Algera Joined Cases 7/56 and 37/57 [1957] ECR 81. 97 See nn. 85 and 86 above. 98 See J. Schwarze, n. 3 above, p. 1433. 93
178 Jürgen Schwarze corpus of administrative principles sufficient for a codification already exists. As to the content of the codification, a legislative catalogue of principles of the indirect administration of Community law could contain a mixture of pure procedural provisions (right to a hearing/principle of audi alteram partem, obligation to give reasons, requirement of legal provisions to be sufficiently precise (Bestimmtheitsgebot), deadlines, significance of procedural faults)99 and more substantial principles (for example, the protection of legitimate interests with regard to the revocation of administrative acts creating rights), similar to the German administrative procedural law (Verwaltungsverfahrensgesetz). Moreover, one could, for example, codify the principle of proportionality. Codification as a contribution to the consolidation of a developing European Union Starting from the assumption that a body of principles which could be codified exists, the advantages of gaining legal certainty and transparency have to be balanced carefully against the risk of effecting an impediment to further development. It follows in particular from the different present and future situation of the European Union that the question of codification of administrative principles should be reassessed. In my opinion, in future it will not suffice to include only new objectives in the text of the Treaty. Particularly in view of the increasing number of Member States, it is essential to aim rather at a certain inner consolidation within the European Union. Only if such a consolidation is achieved can an administration as uniform and regular as possible be guaranteed. The benefit of legal certainty and transparency brought about by a codification may also be appreciated from the point of view of economic policy and competition. This is especially true for those participants in the economic life of the Community who will profit from clear administrative guidelines if only because of the fact that they will be able to enforce their claims all over Europe pursuant to a uniform legal standard. Taking as a basis an estimate that almost 80 per cent of all economic legal rules are determined by Community guidelines,100 it readily becomes apparent what advantages a codification would 99 See on this the judgment of the Administrative Court of Appeal of Baden-Württemberg (VGH Baden-Württemberg) of 3 September 1993 in Verwaltungsblätter für Baden-Württemberg, 1994, 269, cited in H.-W. Rengeling, Europäische Normgebung und ihre Umsetzung in nationales Recht (Deutsches Verwaltungsblatt, 1995), p. 945 at p. 953. This judgment deals with the question of whether § 46 of the VwVfG—which provides that an annulment of an administrative act cannot be requested only because the requirements of procedure, form or local jurisdiction have not been met—can be applied when procedural requirements of a Community directive have not been complied with. 100 Jacques Delors, former President of the Commission, in a speech before the European Parliament on 4 July 1988, cited in BVerfGE 89, 155 at 172 and in H.-W. Rengeling, n. 99 above, p. 945. For the European influences on national law of public procurement, see M. Brenner, Neuere Entwicklungen im Vergaberecht der Europäischen Union, Schriftenreihe des Forschungsinstituts für Europarecht der Karl-Franzens-Universität Graz (Graz, 1997), vol. 11, p. 5; G. Hermes, “Gleichheit
The Convergence of the Administrative Laws of the EU Member States 179 bring. To take one example, the Special Report No. 4/93 of the Court of Auditors which points to the deficiencies in the implementation of the quota rule for the reduction of the Member States’ milk production has shown that in this field many problems still exist. In particular, those firms which reside in Member States in which the niveau of legality and control density is relatively high will benefit from a uniform administrative enforcement. It is important to note that codification is not a panacea for the present problems in the field of indirect administration of Community law.101 The observation of Reinhard Zimmermann “that codifications are rather imperfect tools”102 as concerns private law is also valid for European administrative law. Therefore, it is important to be aware of the limitations of codification. For Community law this means in particular that a codification of the basic principles, laying down transparent standards by which administrative acts may be controlled, on the one hand, can further promote uniform enforcement of Community law. On the other hand, codification alone cannot create the necessary common understanding of value and benefit of the legality of administrative acts and the long-term advantages of a uniform and effective enforcement of Community law. Apart from the readiness to bring national legal structures into line with Community law, the willingness to accept new solutions coming from the law of other Member States is necessary should these solutions, at Community level, prove to be preferable.103 However, a uniform legal standard by way of codification may at least support the development of a European legal consciousness. This is of vital importance for the equal treatment of all Member States, of their enterprises and citizens, not only from a point of view of legal policy but also from an economic and competitive viewpoint. In substance, a codification does not need to introduce too many innovations. Like the codification of the German administrative procedural law (Verwaltungsverfahrensgesetz),104 the codification of European administrative law would first aim at giving the existing judge-made law, which at first sight is not always easy to ascertain, a coherent shape. Apart from the inspiration from judge-made law, a codification of the principles of the indirect administration could also be influenced by models which have already been developed by way durch Verfahren bei der staatlichen Auftragsvergabe”, Juristen Zeitung, 1997, 909; J. Ruthig, “Rechtsschutz von Bietern bei der Vergabe öffentlicher Aufträge”, Die Öffentliche Verwaltung, 1997, 539. 101 A particularly striking example of these problems is tax law. Despite comprehensive written legal rules, the tax auhorities are unable to administer tax law in a satisfactory way: see R. Voß, “Finanzgerichtsbarkeit im Spannungsfeld zwischen Individualrechtsschutz und objektiver Rechtskontrolle”, in Festschrift für Klaus Tipke (Köln, 1995), p. 165 at p. 176. 102 R. Zimmermann, “Codification: history and present significance of an idea—à propos the recodification of private law in the Czech Republic”, (1995) European Review of Private Law 95 at 109. 103 See R. Steinberg, “Probleme der Europäisierung des deutschen Umweltrechts”, Archiv des öffentlichen Rechts 120, 1995, 549 at 589. 104 See n. 83 above.
180 Jürgen Schwarze of Community legislation in various parts of European administrative law. Once created, a naturally quite general codifcation of European principles of administrative execution would gather momentum, and, through the dialogue between doctrine and practice in the process of a continuous interpretation and application of the provisions, it would be rendered more and more precise and concrete. In other words, I think that the main advantage of such a European codification is not so much to give detailed solutions for concrete questions but rather to get a process of development going which could bring about a more uniform enforcement of legal rules and, therefore, more equality of competition in the whole Community. Thus, the following statement made by Portalis with regard to the preparatory works to the Civil Code, is in a way also valid today for European Community law: “L’office de la loi est de fixer, par de grandes vues, les maximes générales du droit; d’établir des principes féconds en conséquences, et non de descendre dans le détail des questions qui peuvent naître sur chaque matière. C’est au magistrat et au jurisconsulte, pénétré de l’esprit général des lois, à en diriger l’application.”105
IV . CONCLUSION
Administrative law, originally a purely national matter, now has a European dimension.106 For private law, the comparative law approach resulted from the necessities of personal and commercial relations across national boundaries.107 In administrative law there were two factors in particular which led to an approximation of the administrative legal orders: first, the similar living conditions and administrative tasks in the Member States, as has been already noted by Jean Rivero in 1978; and secondly, the existing ties between the Member States and the necessity of safeguarding the supremacy of Community law, as well as the need for as uniform a Community law as possible. As concerns further development, it can be expected that national administrative law will lose neither its national particularities nor its predominant role with regard to the regulation of internal processes in the EU Member States.108 Nevertheless, European integration and the concomitant necessity of developing common legal principles for the execution of Community law will in future provide for permeability of the national legal orders vis-à-vis European influ105 Cited in Fenet, Recueil complet des travaux préparatoires du Code Civil (Paris, 1827) (reprint Osnabrück, 1968), vol. I, p. 470. 106 See also M. Brenner, “Administrative judicial protection in Europe: general principles”, European Review of Public Law 1997, vol. 9, no. 3, 595 at 617; C.D. Classen, “Die Europäisierung des Verwaltungsrechts”, in K.F. Kreuzer, D.H. Scheuing and U. Sieber (eds.), Die Europäisierung der mitgliedstaatlichen Rechtsordnungen in der Europäischen Union (Baden-Baden, 1997), p. 107. 107 See on this K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung, 3rd edn. (Tübingen, 1996), p. 49. 108 See J. Schwarze, “The Europeanization of national administrative law”, in J. Schwarze, n. 12 above, p. 837.
The Convergence of the Administrative Laws of the EU Member States 181 ences.109 This tendency will be enhanced by the fact that, in cases which concern only the enforcement of national law, legal principles of European law may serve as a standard of comparison. This development, which can be seen particularly in Britain,110 has been fostered by the idea that, in the long run, it is hardly possible to keep within a Member State two different systems of administrative law: the regime for the execution of Community law on the one hand, and purely national administrative law on the other. From the above discussion it follows that an absence of convergence of the administrative legal orders of the Member States no longer constitutes an insuperable obstacle to a codification of the principles of indirect administration of Community law. In order to determine whether European administrative law should be codified, the necessity for consolidation on the one hand and the risk of an inhibition of development on the other have to be carefully balanced. For the reasons given above, the question of whether to codify must be answered differently today than only a few years ago—however, a legal basis is still lacking. A general codification of procedural principles for the indirect administration of Community law would not interfere as much with legal interests of the Member States as detailed administrative regulations within special fields already do. Furthermore, the lack of transparency of the administrative principles of Community law is not only hampering a jurist who is faced with questions of Community law,111 but it may also, in general, obscure the achievements of the Community’s legal order.112 The fact that Community law has been created is not the only achievement. This new legal order can only prove successful if it is enforced by the Member States as uniformly as possible, pursuant to uniform standards. Thus, together with a simplification of substantive administrative law,113 the codification of administrative principles would lead to more transparency. This would also promote the acceptance by EU citizens of more European integration.114 109 See also C. Tomuschat, “Europäisierung des Rechts”, in H. Kötz and B. von Maydell, Europäische Integration und nationale Rechtskulturen (Köln, 1993). 110 See J. Schwarze, “The Europeanization of national administrative law”, in J. Schwarze, n. 12 above, p. 837. 111 See also the statement of Guy Braibant, the Vice-President of the French Commission supérieure de codification, in his speech on the occasion of the renewed appointment of the commission on 18 November 1993: “Au delà de nos frontières, il serait souhaitable de codifier à son tour le droit européen, de plus en plus important et si foisonnant et touffu . . . Ce sera une tâche ardue et de longue haleine . . . mais c’est une action indispensable pour que le droit européen soit mieux connu et mieux appliqué”. 112 See further C. Tomuschat, “Normenpublizität und Normenklarheit in der Europäischen Gemeinschaft”, in Festschrift für Hans Kutscher, Baden-Baden, 1981, p. 461; and H. Schäffer, “Wege zum besseren Gesetz—Überlegungen zur Verbesserung der Gesetzgebung”, Juridisk Tidskrift, 1994, 985 at 996. 113 See the Commission’s recent SLIM (Simpler Legislation for the Internal Market) concept designed, inter alia, to strengthen the competetiveness of the Union; see EU-Nachrichten nos. 13 and 14 of 3 April 1996, 5. 114 In this context, it should be mentioned that in the Member States themselves a tendency towards the codification of national rules is discernible. Thus, several Member States have recently codified national administrative law which traditionally had been developed by judges: in the
182 Jürgen Schwarze V . BIBLIOGRAPHY :
Classen, C.D., Die Europäisierung der Verwaltungsgerichtsbarkeit (Tübingen, 1996). Flauss, J.F., “Les conditions d’admission des pays d’Europe centrale et orientale au sein du Council de l’Europe”, EJIL 1994, 401 et seq. Fromont, M., “Le principe de proportionnalité”, Actualité Juridique de Droit Administratif, 20 June 1995 (Numéro spécial du cinquantenaire), p. 156 et seq. Frowein, J.A., “Übernationale Menschenrechtsgewährleistungen und nationale Staatsgewalt”, in Isensee, J. and Kirchhof, P. (eds.), Handbuch des Staatsrechts (Heidelberg, 1992), vol. VII, 731 et seq. Kutscher, H., “Der Grundsatz der Verhältnismäßigkeit im Recht der Europäischen Gemeinschaften”, in Kutscher, H., Der Grundsatz der Verhältnismäßigkeit in europäischen Rechtsordnungen (Heidelberg, 1985), p. 89 et seq. Mackenzie Stuart, Lord, “Recent developments in English administrative Law—The impact of Europe?”, in Liber Amicorum Pierre Pescatore (Baden-Baden, 1987), p. 411 et seq. Rengeling, H.-W., “Europäische Normgebung und ihre Umsetzung in nationales Recht”, Deutsches Verwaltungsblatt 1995, 945 et seq. Rivero, J., “Vers un droit commun européen: nouvelles perspectives en droit administratif”, in M. Cappelletti (ed.), New perspectives for a Common law of Europe (Publications of the European University Institute), Florence, 1978) vol. 1, p. 389 et seq. Schwarze, J., European Administrative Law (London, 1992). —— (ed.), Administrative Law under European Influence. On the convergence of the administrative laws of the EU Member States (Baden-Baden/London, 1996). —— ”Le juge—un regard étranger”, Actualité Juridique de Droit Administratif, 20 June 1995 (Numéro spécial du cinquantaire), 233 et seq. —— Der Beitrag des Europarates zur Entwicklung von Rechtsschutz und Verfahrensgarantien im Verwaltungsrecht (Europäische Grundrechte-Zeitschrift, 1993), p. 377 et seq. Tomuschat, C.n, “Normenpublizität und Normenklarheit in der Europäischen Gemeinschaft”, in Festschrift für Hans Kutscher (Baden-Baden, 1981), p. 461 et seq. Triantaffyllou, D., “Zur Europäisierung des vorläufigen Rechtsschutzes”, Neue Zeitschrift für Verwaltungsrecht 1992, 129 et seq.
Netherlands, this has been done through the first part of the Algemene wet bestuursrecht, which came into force at the beginning of 1994; in Portugal this has been done through the Codigo do Procedimento Administrativo of 1991; and in Italy through Law No. 241/1990 laying down the main principles for administration. Even in Britain which, in this respect, has traditionally been rather sceptical about this, legislation relating to administrative procedure is on the increase. See on this, J. Schwarze, n. 12 above, p. 831.
10
Some Basic Elements of Legal Phenomenology PATRICK NERHOT
It is always by this unthank that things are given to the observer that we pretend to have access to the truth of the word.
I . THE QUESTION OF THE MONSTRATION
We call “convention” the mediation without which we could never see what, to make an example, an action, an event, shows. Everything we recognise as meaning a writing, a behaviour or whatever is always the result of a mediation. A legal text from which we claim to affirm a particular meaning has indeed this capacity in so far as we are able to accede to the mediation without which this text would signify nothing. This first point of method will go against common sense or common idea and against our traditional way of reasoning which postulates that meaning comes from the direct and immediate connection with things. This is the wrong way to understand what we traditionally call the mystery of the world. To know something is always to conceive the mediations by which we can know the world. It is always in this non-immediate, in this nondirect access to things, in this cognitive impossibility to enounce the truth by an immediate, a self-evident suggestion of meaning that a meaning is constructed. Non-immediacy to things and infinite references to an elsewhere are the two fundamental points of method which are at the basis of the construction of meaning. Let us take the question of “rule”. We must say that this question is absolutely not a pure legal question but a question for any knowledge: we need the notion of “rule” when we want to reason rationally. With the reference to a rule a meaning is indicated and when we are speaking about law this reference is correlated to a legal phenonenon. In others words, a meaning is obtained if we can accede to the mediation which leads to the phenomenon. Only through a phenomenon we are able to accede to a meaning; meaning does not let out from something which should be in itself a signifying: the “text”. A meaning does not escape, to maintain our example, from a text and which should be received by a careful reader. Again, these introductive considerations about “rule” are not only valid for legal dogmatics but
184 Patrick Nerhot for any knowledge. In linguistics, for instance, we should say that a meaning is obtained when a semantical, a linguistical phenomenon is constructed. To answer the question “what is a rule”, lawyers are confronted with the construction of legal evidences; starting from legal dogma (the conventions of legal dogmatics) lawyers face the unknown (which is precisely the question: what is the rule?). However the unknown refers to evidences which express a legal knowledge and here the theoretical question is not the question of reflexivity but of anticipation. This construction, the elaboration of such a mediation is the same for an English lawyer, for an American lawyer or for a “continental” lawyer; the epistemological and hermeneutical questions are not different for these different dogmatics. What kind of epistemological and hermeneutical questions does such a legal evidence set? The answer would be the question of causality which is involved in the principle of rationality. In spite of the general sensitivity of our times which is dominant in legal philosophy but not only, we claim that legal reasoning is a rational reasoning (very far from the model of literature for instance) and we also deny that the question of meaning is only “a question of interpretation” (opposed obviously to the truth). Let us introduce in a few lines the question of rationality, which opens to the possibility of a true-false judgement, and to do so we shall face the question of “evidence”. Legal dogmatics, when it indicates the materials lawyers utilise to exercise their competencies, manages two “things”: the behaviour thing and the rule thing (once again any dogmatics refers to this method) and the former should engage the knowledge of the latter. However the question of evidence and in consequence the question of causality must not be formalised as positivist thought claims it must be. A “behaviour”, in short, is not a given that we would have only to collect (positivist philosophy says to “describe”) and which should organise the access to meaning. A “behaviour” is not in itself, by itself, the representation of a specific action which should be the resolution of the question of meaning. Similarly, we must say that a “rule” is never immediately and directly the visible of such or such behaviour.1 A “rule” leads to a “behaviour” and a “behaviour” leads to a “rule” only by a mediation because by a mediation we have access to what is shown. A “behaviour” is such only when we accede to a monstration. This is the question of evidence, a question which again is the same for an English mind, an Italian mind or the mind of a civil servant of the European Community. It is the question of rationality and its formalisation does not depend on the construction of geographical boundaries. He who says “rule” claims to identify a “behaviour” and he who says “behaviour” claims to identify a “rule”: nevertheless it is wrong because is presupposed that from the “rule” to the “behaviour” or from the “behaviour” to the “rule” the passage is direct and immediate. To demonstrate in the most simple way that this reasoning is wrong, we can say that a gesticulation, we mean a pure physical manifesta1 In this short chapter we cannot face the question of legal custom; for a particular development of this question, see Patrick Nerhot, La fenomenologia della filosofia analitica del linguaggio ordinario, Cedam (Padova, 1998).
Some Basic Elements of Legal Phenomenology 185 tion which should not be a particular representation of a pre-comprehension, is not what a lawyer recognises when he enounces a rule. To do so, a lawyer constructs what is called in legal dogmatics a qualification: if a gesticulation is not this visible from which a lawyer recognises a rule it is because a gesticulation has not yet been moulded by a cognitive act. It is only through a mediation that a lawyer sees what is to be seen and does not see what is not to be seen. But this methodological question is precisely the question of “evidence”. Dogmatics is the specific knowledge which elaborates the conventions which belong to the mediation without which a cognitive act could never be rational. Conventions are no more supported by the “behaviour” thing than by the “rule” thing. They indicate that the way which leads to the “rule” is always an indirect way. Conventions necessarily engage this detour we do when we claim to accede to a rule: the latter never appears by itself, in itself. Thus a convention is not the affirmation of a rule but a rule is shown through a convention. It is only by the phenomenological method that we accede to a “rule” (we understand why “evidence” is an incompressible notion) and the very deep epistemological and hermeneutical question is to know how to construct these mediations by which we accede to a phenomenon. To reaffirm this fundamental notion in an another way, we can say that if it is only phenomenologically that we accede to a “rule”, it is because when we claim to express a rule as the base of an immediate and direct relation to the world we only propose a convention and it is different! Let us note incidentally that deductive reasoning by which we could accede directly to the “rule” is an extremely improbable reasoning. It is only inductively that from our legal evidence and from legal conventions we accede to the unknown which is legally represented. The representation refers to the question of the monstration (answers the question: what is a rule, what is a norm, what is a behaviour, and so on). The question of monstration can be formulated in these terms: how can we identify a “behaviour”, how can a “behaviour” be seen? How is the cognitive process that permits us to see a “behaviour”? To answer this question is to face the question of causality. Because the question of meaning depends on conventions (dogmatical knowledge), conventions must refer to what is seen. It explains the first aspect of our formula when we have introduced the epistemological question of the rule: a set of legal evidences to which we accede from conventions. Legal evidence, in a dogmatical perspective, necessarily introduces us by induction to what we do not know (to the object of interpretation as one commonly says) and which can only be formulated in the following way: the issue of the ended space which is represented juridically (to avoid a tautological reasoning). It is the only rational way to connect the question of causality and the problen of phenomenon. We must repeat that meaning always consists of the construction of mediations which constitute the monstration. A phenomenon is established through the process of monstration, it is conceived of through the conventions, the rule and the behaviour. The behaviour, as the convention, necessarily belongs to the question of monstration.
186 Patrick Nerhot A meaning is neither obtained by a pure and simple observation of things (the basic cognitive act of positivistic thought named a description) nor by a pure and simple attestation of a “behaviour” if we want to remaim close to legal dogmatics; however meaning involves the epistemological question of what is to be seen. A meaning demonstrates in so far as it monstrates. The methodological problem of the monstration must be formulated in the following way: it is because we already detain what a rule is that what is to be seen is seen. We understand immediately the epistemological problem: how to formulate the principle of rationality without being always-already condemned to a tautology, to a “logical monster” to speak like Nietzsche? To avoid the danger, such a formulation must be able always to distinguish the rule, the convention and the behaviour. The “rule” is never the translation of an immediate and direct knowledge about things; since the mediation thanks to which we accede to the rule does not open to the notion of behaviour, we must call this cognitive operation a convention. To face the question of the articulation between a rule and a behaviour is to face the question of the formalisation of the principle of rationality, that is to say the question of induction. To go from the “behaviour” to the “rule”, for instance, we need a mediation (it is the question of the representation): we find the phenomenon without which any rational knowledge should be impossible. If there is a passage between “rule” and “behaviour” (we equally could say between “norm” and “fact”) it is because a cognitive operation allows such a passage (the mediation).
II . THE QUESTION OF EFFECT AND OF CAUSE
Convention is necessary because if a behaviour is shown it is because any act of knowledge is involved in an anticipation. The error would consist in calling rule a convention. The rule far from being “constitutive”2 (of a behaviour”) is rule in so far as it is a constituted behaviour. How can we think on this? An effect must necesarily be the sign by which a cause is identified, in other words an “effect” precedes a “cause”. At the basis of a “rule” there is an anticipation of meaning but an anticipation which must not be formalised as we existentially formalise the concept of time, this passage from the “before” to the “after”. Such a formulation has been, and remains today, the main error of formalisation of the principle of rationality.3 To formalise a rule means to formalise the effect of après-coup: only this après-coup correctly formalises the principle of rationality. Let us to come back to the question of phenomenon. A phenomenon must be conceived of as an infinite anticipation of possible ways. That means, first, that a “behaviour” is an infinite representation. For a 2 John Searle in his Speech Acts following what we call the “juridicism” of John Austin in how to do things with words (to this question see Patrick Nerhot, La fenomenologia, n. 1 above) committed this error and fell into the tautology of the legal custom. To be short, it is only because we already know what a legal custom is that from a behaviour we can see a rule!
Some Basic Elements of Legal Phenomenology 187 positivistic philosophy to read a text means to fix behaviours that is to say to consider that a process of meaning is equivalent to the fixation of a representation. In such a perspective behaviour expresses a very specific apprehension of the world: the direct and immediate perception we have about the world should be a perfect reception of univocal social being. Incredible ingenuity! As infinite representation, a behaviour is never an always-already attested meaning; a representation does not express a fixity. As infinite representation, a behaviour is at the basis of a meaning because it organises the relation between a cause and an effect in a very specific way: an effect is a cognitive mechanism which already engages a cause. That means in particular that we must formalise the “before” and the “after” in a different way that we do commonly following an existential formalisation of time. Because a phenomenon is an infinite anticipation of possible ways, because a behaviour refers to an infinite representation, the convention—as an element of the demonstration—must refer to this infinite representation through a reasearch of meaning as an infinite openness. Mainly that means that when we are confronted with the question of meaning the latter must never be constructed as an ended meaning. Otherwise induction should be only a pure retrodiction and thus evidence and meaning should be confounded, we would still be in a tautological structure of reasoning. A cause does not have its principle of identification in the evidence of a (always-already) behaviour otherwise any argument could claim to be a cause. How do we formalise this epistemological question? Through a conception of “text” that should not be already an attestation of a necessary result. Phenomenon, conceived of as an alwaysalready meaning, consists in a regressio ad infinitum of what is attested (to demonstrate means to monstrate) and that is the definition of the cause. The regressio (which is an explanation) is never a come back to the always-already closed space of what we know (that should be for instance the ended meaning to which we have referred before, a retrodictive meaning as a necessary result of an always-already known which is shown). Instead it is the going out of this always-already known (defined, ended meaning). Meaning is a regressio ad infinitum, the writing of the unknown which is the issue of the ended space (what we know) of the infinite anticipation. To develop in few words this formula, we can say that an “origin”, a “starting point” of a reasoning (rhetorical figure systematically presupposes when the question of meaning is faced through the question of interpretation) is neither the formalisation of an always-already here nor the formalisation of something known for ever: every convention can reach a meaning because the writing of its ended space is already a projection conceived of as a possible. This projection is a re-writing of an “origin” that is put into question: an “origin”, a “starting point” is an impossible present (a present-past, a past-present) when it claims to 3 The error has been committed by Immanuel Kant in his criticism of pure reason when he proposed his a priori. The philosopher was obsessed by the question of time in this work ( he will be conscious of that later). We have calculated that he mentioned fifty-five times this notion in 550 pages of text (publisher Laterza, 1985): every ten pages!
188 Patrick Nerhot testify, to be an evidence of a meaning. When it has been attested, meaning reorients the look, thus abandons what is attested—however through this attestation—to reveal the modes which fix the unknown at the basis of knowledge. If an effect is necessary anticipation it is because we must construct the materials thanks to which we claim to dissipate the mystery of the world. Thus an effect will not be always-already a cause: an effect refers to a “before” and not to an “after” and this formulation is neither the expression of an enormous tautology nor the misunderstanding of the principle of rationality. An effect being a “before” we understand why so easily a reasoning betrays the principle of rationality (and is no more than a tautology): because the effect is conceived of as a result, a result that everybody can “observe”, as a something arrived, an answer is given before asking a question. To formalise the principle of rationality we must consider that to know is always a cognitive act which is engaged by moving referents which are not pure conventions. If the process of meaning is fleeing it is because it is a defined decision which is involved in an infinite anticipation. What we know is always crossed by what we do not know if we do not want to formulate knowledge as a tautology. An effect can never claim to be a definitive explanation, an effect is a regressive reading of an attestation of a cause, a regressive reading that never ends because it is never the reproduction, the repetition of what a convention poses. This perspective sets aside the relativism and the nihilism.
III . THE QUESTION OF INDUCTION
When it faces the question of the “before” an effect necessarily refers to the enunciation of a cause but it is not a tautology. This question is the question of induction. A phenomenon belongs to the question of anticipation which induction faces. By definition an induction is not a regressio ad infinitum of what we know otherwise it should be only a reformulation of a convention and we should remain in the world of repetition; every knowledge would be tautological. Induction can be only the reasoning we have defined as the infinite regression of what we do not know but which is inscribed in the what we know. To demonstrate rationally means to formalise this inscription of the unknown. The recall of the what we know has always the fundamental function of qualifying what we do not know. It is always the cognitive act by which such a qualification is done that engages the question of meaning: paradoxically what we know is engaged by what we do not know and we have defined this cognitive act as a regressio ad infinitum (the ultimate answer, the definitive answer is an impossible answer). An anticipation by definition is not a always-already known! Induction must be written as an ended space that refers to infinite anticipations. It is not the inscription of a space closed upon itself. However we must conceive of, and it is not easy, the formalisation of the ended space also as an anticipation which is revealed après-coup. The formula seems so paradoxical
Some Basic Elements of Legal Phenomenology 189 that it could appear as an absurdity. But it is not. Indeed every act of knowledge is an ended representation (we systematically speak about object, field, and so on) but when we think about it we confound the representation with its principle. If to know means to recognise we must conceive of the anticipation which is at the basis of a meaning: the what we know, we have said, far from being a place closed on itself, is a formalisation (in this sense a closure) of what we do not know which by definition is indefinite. Induction is this movement of closure—impossible closure because indefinite—of what we do not know by what we know (regressio ad infinitum). The principle of rationality is the formulation of a regressio ad infinitum of what we do not know through what we know. Thus an “after” is necessarily at the basis of a “before” when is created a meaning and temporality involved in a rational reasoning is not progressive but regression: a phenomenon is obtained through this regresion which is not to return into the space always-already closed of what we know. As an induction is not a repetition an effect is not an ended point, a necessary ended point, because the latter belongs to an induction and not to a retrodiction. The regression is not an adjustment of the “after” on the “before”, it is an alteration. If now we face the question of the ended space, we must understand that an anticipation of meaning is a projection, we mean a representation which orients. Because ended space of an infinite anticipation, a projection (or delimitation) is never an effect: through the construction of this projection, an effect and a cause are defined. Through this construction, an anticipation is the configuration of an effect but the reference of an effect to a cause is an alteration; something escapes: the “before” is what systematically flees. To know means to limit, to delimit through what we do not know what we know. It is illusory to think that to establish a knowledge means to close a space. Such a closure is a sign which does not refer to what we know but which is already an openness to what we do not know.
IV . TO KNOW
A word signifies because by words we accede to the monstration. When we claim we accede to meaning only by semantics, we affirm implicitly that to speak a language is equivalent to accede to a perception, to a look by which things are self-evident. It is an enormous mistake. By language meaning is obtained, but because language is at the basis of similitudes, mediations and phenomena. Through similitudes and mediations phenomena are obtained which permit the reading. The mediations dispose the monstration by which it is perceived what is to be perceived. If such a perception is possible it is because to know means to recognise identities and differences from which a meaning is accessible. The object of language is never given. To know means precisely to organise the mediations by which we have access to things. At the basis of these
190 Patrick Nerhot mediations operate the similitudes that organise the passage from the “seen” to the “read”. The “seen” attests the truth of things because the similitudes open the question of truth through the cognitive possibilities they offer to dispose identities and differences. Similitudes present, by similitudes an identical is shown; they construct that by which truth is attested, that is to say the phenomena (infinite anticipations), that are not yet things but are still language. He who thinks it is possible to express the truth by a pure and simple “description” commits the most common error of our times. Again, when it is written that from which it is attested, meaning is what re-orients the look that then moves, abandoning what is attested for, in this abandon itself, revealing those words that fix the unknown at the basis of knowledge. Meaning is constructed in spaces of differences, it is not a semantical retention. Conventions are the mediations by which we accede to what is seen, by which it is perceived what is to be perceived. In the writing of meaning—the writing of the unknown which is the issue of the ended space of the infinite anticipations— conventions correspond to the ended space, the defined space. To utilise a vocabulary having a more legal tonality, if “behaviours” can claim to be such it is because there are detained the conventions thanks to which we see what is to be seen. Let us develop a little more this question. A rule, as we have said, is not “constitutive” of a behaviour. A rule is not the moment of the rational reasoning which anticipates what is to be known. It is not the moment of an anticipative projection. Instead, it is the moment of the après-coup of anticipation. It belongs to a re-writing. What we can already say is that a rule is the necessary phenomenological dimension of the principle of rationality (and not of the behaviour). So the writing of a rule, we say rule and not convention, belongs to the formalisation of the après-coup, that is to say to the articulation of what we call the “before” and the “after”. When we want to express a rational judgement this formalisation is a necessary cognitive act (for a English judge or an Italian judge for instance). When we spoke about a regressio ad infinitum we outline the articulation between this “before” and this “after”. This regressio is not the passage from a “before” that would precede an “after”. The rule, we have said, is the expression of an inversion (and for this reason belongs to the après-coup effect). In consequence the rule will never be the perfect expression of a formal act of anticipation that the rational act of knowledge would symbolise. The “rule” is what we conceive when we claim, in the name of truth, to attest something that we must represent to do so. To know means to dispose identities and differences, to know neccessitates a principle of measure to which the rule is testifying. The “after” belongs to something that anticipates, belongs to a “before” if it wants to be an evidence, if it wants to permit to see what is to be seen. But it is not enough to express the principle of rationality. Because often we stop the reasoning here, previsibility is confounded with the question of representation (the “behaviour”); that leads to identify totally a cause and an effect: a “behaviour” will always-already be a “rule”. If we say that the “after” and the “before” are not coordinated as an existential conception of time, it is because a cognitive act
Some Basic Elements of Legal Phenomenology 191 is always the writing of an anticipation when is put the question of meaning. But we must say that this anticipation does not formalise the question of meaning as something which comes again. The famous metaphor4 of the circle when it claims to formulate rationally the question of meaning expresses a wrong reasoning: an anticipation never joins this point on which it should fold, an anticipation is not inscribed in an always-already closed space. What anticipates and what, already, inscribes—the effect—does not fold on what should be its cause. A cause expresses the idea of a sending back, of an openness which is not closed on the question of anticipation. A meaning is a writing of an always-already opened, a regressio ad infinitum. By the representation we provoke this effect of meaning of which words are only the evidence. By the conventions, we have said, we have access to what is shown. If a convention necessarily belongs to cognitive acts it is because in the attempt to accede to things we represent; if it is never fully the access to what is aimed it should be anyway an impossible act without the convention. Convention participates to the monstration. By the convention we see what an act shows; in consequence it belongs to the recognition. It only partially exhausts the question of knowledge but it engages decisively the question of meaning. Thus we must reach the evidences that by induction necessarily lead to what we do not know but we can nevertheless interrogate. Evidences, of our Italians or English judges for example, dispose the dissimilarities that make visible what is similar. To nominate is never to have access to things but to refer to a monstration.
V . THE QUESTION OF THE
“ BEFORE ”
AND OF THE
“ AFTER ”
To formulate a rule we have said is to formalise a meaning which is activated après-coup. This après-coup anyway must be articulated with the manifestation of a meaning which remains the representation of an articulation. First, meaning is what passes as anticipation and après-coup. Only what is activated inductively can indicate a meaning; thus an evidence is the formalisation of something which escapes but which nevertheless is at the basis of what is attested in an act of knowing. This formulation of the anticipation corresponds to the writing of the après-coup for which a meaning is never a cognitive act which would attest what is given. The anticipation sends back to the après-coup, it corresponds to an active recomposition, to a come back which is oriented by a future. With the après-coup the attestation of meaning is always a come back, as the writing of meaning is the formalisation of an anticipation. A projection is written as a come back; to foresee always is to recompose, to reaffirm a visibility which nevertheless is such only by what anticipates. To know is always the writing of this gap: the “before”—“after”. This gap opens the passage that leads the 4 Clearly this argument engages the criticism of “spontaneism”, of “instantaneism” in epistemology and obviously the criticism of the definition of legal custom too. See Patrick Nerhot, La fenomenologia, n. 1 above.
192 Patrick Nerhot “before” to a regressio ad infinitum since it is the infinite renovation of what we do not know which is at the basis of what we proclaim to know. Induction must be written as an effect of après-coup. It is the projection of a come back which does not draw a circle. We are confronted with a symbolism which is a very poor geometrical figure: we are only disposing of two points in a space which is not inscribed. These two points configurate our mystery, they are our symbolic order which cannot be represented by the metaphor of the line.5 This configuration disposes that the “after” necessarily anticipates the “before” and these two points never join: the “after” (which corresponds to the “us”, to the “today”) remains the mystery of the sense. The “after” is inscribed by its “before” but the latter is no more than an “after”. The question of the formalisation of the principle of rationality is obviously the problematisation of the “after” which is necessarily linked to a “before”. The danger here is to transform this principle in a vulgar tautology. How do we face this question? The word is a meaning because it belongs to the anticipation by which a sense recognises. A projection (the representation of the unknown) must be conceived as a re-writing, as the formalisation of an already-known. If what escapes, in other words what remains unknown, is the “after”, this “after” anyway is constructed through the formalisation of an already-known. Then it is transformed in a “before” but this ended regression does not exhaust the problem of meaning. The “after” is the regressio ad infinitum of a “before” (the après-coup) but this before is also a regressio ad infinitum because it is an anticipation of the “after”. This double movement corresponds to the rational attestation of truth. It can seem easy to understand that a projection is the simple re-writing of what precedes it (then the “after” the formalisation of the “before”) but it seems quite hard to understand how a “before” as an infinite regression can be the anticipation of the “after”. The formulation seems too abstract. Nevertheless, the difficulty is reduced when we understand that these two movements are inseparable and that they inverse permanently each other when one term is thought of necessarily in its connection with the other. Let us take the example of the “origin”. As a starting point of the narrative, it is already the point of arrival since it is the recomposition of what we know. So it can never claim to be a starting point, understood as an external element of the narrative that would institute— because external—the narrative, this “origin” is exactly what we call the anticipation and because it is an anticipation it orients the narrative (it disposes its “after”). We understand very well that in this process of reasoning an “effect” is not always-already its cause. This “starting point” or “origin” is an unfoundable point when it claims to be outside the narrative it institutes. The “before” is always the formalisation of an “after”, a projection always being a re-writing of what precedes and this movement goes with the movement of come back 5 So many philosophers are wrong when they pretend to express the principle of rationality by the metaphor of the line. This latter at the best expresses a tautology.
Some Basic Elements of Legal Phenomenology 193 where the “before” is the infinite regression, we mean the anticipation of an “after”. The first movement provokes an iteration that is not a mere repetition (semantical minutism) because the decison from which a what precedes is determined does not belong to it. Equally, any decision engages fundamentally what we (only) claim to attest: each “point”, each “origin”, is already the arrival of what we claim (only) to describe. As a formalization of a “before”, a causality is affirmed and is imposed as attestation of an effect. Nevertheless these elements of analysis are not enough to explain a rational reasoning because if we stop our analysis here we could say that everything, every reasoning, every conclusion is the result of a pure decision. Obviously it is not true. The “before” is an infinite regression of an “after” which remains an anticipation. How do we account for this? By following the same reasoning we have proposed for the “before” which is written as an “after”. An anticipative projection is a come back, an infinite come back. Then what is written as a come back necessarily must formulate an anticipation which precedes this come back and which orients it. The anticipative projection is a come back, an infinite come back which since it is a writing of the “before” (as an infinite regression of the “after”) is the inscribing, not the re-inscribing of what we know. What we know is inscribed in the infinite regression. The “before” is the issue of the ended space—the come back—of the infinite anticipations, the “after”. The “before” is alteration. The anticipation, projection, being the writing of an “after”, is always the ended regression of a “before”, or iteration, exactly as a “before” being an infinite regression of an “after” is the anticipation of a come back which is an alteration.
VI . THE QUESTION OF MEANING
A meaning is an infinite projection of a come back, the writing of an absence6 that is to say the reformalisation of what we know. This reformalisation is the redefinition of the problem it must face, the what we do not know. If this projection represents a closure, the what we know, this closure will never be the closure of meaning. This come back is always the writing of an absence. In the passage which is meaning, before after—after before, the first movement is the movement of the before after, the movement of the ended anticipation. The projection is the writing of a future as a what we know. But it is not enough: 6 We cannot develop this question here but we would like to underline that precisely on this question of absence Christianism is built and rationalism far from being a rupture has only be a re-writing, a particular re-writing inside Christianism. Because we answer the question of absence we have this structural reasoning of the “before” and of the “after” (a reasoning that responds to our impossibility to testify about presence as meaning). Our symbolical world is not the symbolical world of Greeks, Christianism is a rupture with the symbolical world of the Ancients precisely on this question of absence. The metaphor of the circle has indeed something to do with the Greek philosophy but it has nothing to do with Christianism which is only confronted with absence. To answer this question Christianism will evoke the metaphor of passage. See Patrick Nerhot, La fenomenologia, n. 1 above.
194 Patrick Nerhot what we call future always goes with the infinite projection of a come back, what we call the past.7 The formalisation of the principle of rationality is expressed by this double movement: an effect is the cognitive process of what is attested (it is the question of the monstration) and a cause is the cognitive process by which a phenomenon is established. There is no “logical monster” in this reasoning and Nietzsche was wrong.8
7 On this point, Patrick Nerhot “La vérité en histoire et le métier d’historien”, (1995) XXIV Quaderni Fiorentini 6–138. 8 Nietzsche confounded the principle of rationality with a tautological formalisation of this principle which is the philological reasoning. The criticism he addressed to rationalism (what is this reasoning which needs to know its effect before enouncing its cause?) was a criticism to philology.
11
Trade Union Rights in EU Law BRIAN BERCUSSON
INTRODUCTION : A LEGAL FRAMEWORK FOR THE EUROPEAN INDUSTRIAL RELATIONS SYSTEM
The individual Member States of the European Union have separate, but coherent and comprehensive legal frameworks for their national industrial relations systems. During the past fifteen years, a number of developments have occurred which are recognisable as central features of an emerging European industrial relations system. Three in particular are concrete realities: European social dialogue, information and consultation at multinational enterprise level (European Works Councils), and transnational industrial action. At the European level, the law of the European Union (EU) has emerged to regulate the Single European Market, including Economic and Monetary Union. The EU law regulating these areas has developed without a coherent vision of a comprehensive legal framework for a European industrial relations system. This chapter outlines a basis for such a coherent and comprehensive legal framework. Certain features of any European industrial relations system are an inevitable legacy of the economic, social and political history of the Member States: trade unions, collective bargaining and industrial action. The legal framework for the European system will inevitably require EU law to embrace trade union rights recognised in the Member States: the rights of association, to collective bargaining and to strike. Yet, as will be described below, despite a number of efforts and initiatives, the position of trade union rights in EU law remains unclear. This situation is unlikely to continue much longer. In a recent Opinion, Advocate General Jacobs bluntly rejected the claim that there is “a fundamental right to bargain collectively”.1 Further, collective agreements were to have only limited protection from EU competition rules. The Advocate General laid down a number of conditions for collective agreements to be lawful. These cases now 1 Albany International BV v. Stichting Bedrijfspensionenfonds Textielindustrie, Case C-67/96, Brentjens’ Handelsonderneming BV v. Stichting Bedrijfspensionenfonds voor de Handel in Bouwmaterialen, Joined Cases C-115/97, C-116/97 and C-117/97, and BV Maatschappij Drijvende Bokken v. Stichting Pensioenfonds voor de Vervoer- en Havenbedrijven, Case C-219/97, Opinion of Advocate General Jacobs delivered on 28 January 1999, para. 160.
196 Brian Bercusson proceed for decision to the European Court of Justice.2 They are a powerful signal that trade union rights are on the agenda of the European Courts. Fundamental rights, though important, are only the starting point. They establish principles which underpin any European industrial relations system consistent with the systems of the Member States. But the legal framework of a European industrial relations system, like that of Member State systems, does not consist only of fundamental rights. An exclusive emphasis on fundamental rights has at least two disadvantages. First, the legal framework of the industrial relations system may become excessively “constitutionalised”. Concentrating solely on fundamental rights can lead to the EU law on trade unions being subjected to constitutional tests of democratic legitimacy, institutional balance and judicial review, as illustrated in the recent decision of the European Court of First Instance in the UEAPME case.3 Yet the EU law on trade union rights regulates what is first and foremost an industrial relations system, structured around the social partners. Secondly, reliance only on fundamental rights could be taken as meaning that development of a legal framework for the European industrial relations system must await the formal revision of the Treaties through an Inter-Governmental Conference (IGC). This can mean delay in developing a European industrial system at a time when European economic and monetary union is proceeding at an ever faster pace. An example of the dangers is the above-mentioned Opinion of Advocate General Jacobs concerning an alleged conflict between collective agreements and EC competition law.4 There are interim measures which may be adopted to address problems in the interval between IGCs. Such measures may take the form of legislation (regulations, directives) adopted by the Council. An example is the “Monti” Regulation, which recognises fundamental trade union rights.5 Others may be Commission actions (training or support actions), or other forms. Further 2 The Court handed down its decision on 21 September 1999. It did not address the issue of a fundamental right to bargain collectively. It did hold that “agreements concluded in the context of collective negotiations between management and labour in pursuit of [social policy] objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of article 85(1) of the Treaty” (para. 60). 3 Union Européene de l’Artisanat et des Petites et Moyennes Entreprises (UEAPME) v. Council of the European Union Case T-135/96 [1998] IRLR 602; decided 17 June 1998. The Court of First Instance asserted that agreements reached through the social dialogue, which are incorporated into directives, may be challenged on grounds of their democratic legitimacy. The CFI also required the Council and Commission to determine whether the EU social partners, the parties to the Parental Leave Agreement, achieved “sufficient collective representativity”, while the Court itself undertook its own review. 4 Cases C-67/96, C-115–117/97 and C-219/97, delivered on 28 January 1999. 5 Council Regulation (EC) No. 2679/98 of 7 December 1997 on the functioning of the internal market in relation to the free movement of goods among the Member States, OJ 1998 No. L337, p. 8. Article 2 of this Regulation states: “This Regulation may not be interpreted as affecting in any way the exercise of fundamental rights as recognised in Member States, including the right or freedom to strike. These rights may also include the right or freedom to take other actions covered by the specific industrial relations systems in Member States”.
Trade Union Rights in EU Law 197 research is needed on the optimal legal forms for fundamental trade union rights in the short, medium and long term. However, this is not to detract in any way from the importance of guaranteeing fundamental trade union rights in EU law. This chapter addresses the legal problems in achieving recognition of the principle of freedom of association in EC law and illustrates the general difficulties to be expected in the attempt to introduce fundamental trade union rights into the EC legal order. The chapter begins by analysing the concept of “freedom of association” and the methodology used to address this concept (section I). The potential impact of an EC law right of association on national laws depends on its interpretation by the European Court. The ECJ’s interpretation may draw on a variety of legal sources in which the principle of freedom of association is to be found: international law (ILO Conventions and measures of the Council of Europe), laws of the Member States, and EC law itself (section II). The objective of establishing a right to freedom of association in EC law may adopt a variety of legal strategies, engaging different institutions, processes, legal forms and time-frames (section III). In conclusion, a proposal is made based on the experience of recent initiatives (section IV).
I . FORMULATING TRADE UNION RIGHTS IN EU LAW : CONCEPTS AND METHODOLOGY
A proposal for fundamental trade union rights in the European Union needs to address the different historical, legal and industrial relations traditions of the fifteen Member States. A detailed comparison of national laws produces all the well-known problems of harmonisation. For example, what is included in the scope of “freedom of association”? If this right was to be included in EU law, would it be necessary or desirable to include expressly other rights (the right to collective bargaining/collective agreements, the right to strike/take industrial action), or could these be assumed to be part of a right to “freedom of association”? To start from formulations of the concept in the laws of the Member States is to immediately encounter all the problems of different historical, legal and industrial relations traditions. It is unlikely that there will be exact legal equivalence in the meaning of “freedom of association” in British or Irish law, “liberté syndicale” in French or Belgian law, “Koalitions-freiheit” in German or Austrian law, or “libertà sindacale” in Italian law. For example, in Sweden, freedom of association includes the right to take advantage of union membership and to work for the organisation; in the Netherlands, the right to participation through works councils (an institutional issue) is not included in freedom of association (self-organisation), which is tied to trade unions;6 in Germany, it 6
This distinction does not make sense in countries without works councils.
198 Brian Bercusson took twenty-five years of doctrinal debate before the right of association guaranteed in the Constitution was generally held to imply the right to strike. It is not useful, therefore, to compare and contrast the meanings of the concept in each Member State. Rather than a detailed comparison, national laws on freedom of association should be analysed in order to break down the concept into a number of separate elements. Different Member State concepts of “freedom of association” include some, many or even all of the elements identified. But there is no uniform pattern. The concepts of freedom of association in different Member States often overlap. But that does not mean they are the same. Beyond the areas of overlap, different Member States will include some elements and exclude others. Analysis of Member State laws reveals that it is very difficult to separate off some trade union rights which all Member States agree are not included in the principle of freedom of association. The methodology of this chapter, therefore, is to identify those elements of trade union rights which all, or most Member States agree are protected. On this basis, it should be possible to determine which of these elements (where there is consensus) could be assembled into a principle of “freedom of association” to be implemented at EU level. Formulations of trade union rights could be made which resemble overlapping or, in some cases, concentric circles. For example, a narrow formulation of rights might embrace a large number of Member States where such a formulation is acceptable. To the extent to which different formulations take in a wider range of rights, they will embrace a lesser number of Member States which accept that those rights are within the scope of fundamental trade union rights. Nonetheless, a formulation could be adopted which included fundamental trade union rights recognised in all (or most) Member States. A Research Study on trade union rights in the Member States of the EU was recently carried out for the European Parliament.7 Drawing on this, an attempt can be made to identify a common core of elements of a right of “freedom of association” which is shared by all, or a majority of the Member States. The Research Study found that there is a unanimous consensus in the EU in favour of five trade union rights: of association to join trade unions,8 not to join 7 Trade Union Rights in the 15 Member States of the European Union, Research Study for the Committee on Social Affairs and Employment, European Parliament, (1997); summary translated and published in all EC languages, Luxembourg, Office of Official Publications of the EC. 8 All the Member States have legislation on the right of association/to join trade unions. 9 All but one (Sweden) of the Member States have legislation on the right not to join a trade union. Sweden has collective practice. 10 There are eight Member States which have legislation concerning trade unions as regards autonomous organisation (Austria, France, Greece, Ireland, Luxembourg, Portugal, Spain, the United Kingdom). The other Member States achieve this result through collective practice (Belgium, Denmark, Finland, Germany, Italy, the Netherlands, Sweden). 11 All but one (Denmark) of the Member States have legislation on the right to trade union activity (including works councils legislation). Denmark has collective practice. 12 There are thirteen Member States which have legislation as regards legal status for collective agreements. The other Member States (Denmark, Italy) achieve this result through collective practice.
Trade Union Rights in EU Law 199 trade unions,9 to autonomous organisation,10 to trade union activity (including in works councils)11 and to a legal status for collective agreements.12 For three of these trade union rights, all or all but one of the Member States have legislation in place.13 For the other two rights, a majority have legislation in place.14 These would seem to comprise the elements of a right to “freedom of association” in all Member States. Beyond this common core, there is a substantial majority (ten or eleven Member States) in favour of trade union rights already in legislative form regarding legal definition (11),15 information and consultation (including works councils) (10),16 and extension of agreements (11).17 There is also a substantial majority (eleven Member States) in favour of trade union rights, in either legislative form (L) or through collective practice (CL), regarding financial autonomy (11)18 and elections/decision-making autonomy (11).19 There is a substantial majority (eleven Member States) against the closed shop, in either legislative form (10)20 or through collective practice.21 But collective practice is ambivalent in Belgium, Denmark and Sweden, and the Netherlands appears to authorise it in certain cases. Finally, there is a clear majority (nine Member States) in favour of trade union rights in legislative form regarding the right to strike22 and to legal personality.23 Regarding two other trade union rights: the legal rights to recognition as trade unions, and to collective bargaining of trade unions, are not clearly established, either in legislation or collective practice. This is, perhaps, due to the overlap with legal requirements for the establishment of workers’ representative bodies (works councils) in dual channel systems. 13 Right of association/to join trade unions; right not to join trade unions; right to trade union activity (including in works councils). 14 Right to autonomous organisation; right to a legal status for collective agreements. 15 Austria, Belgium, France, Germany, Greece, Ireland, Luxembourg, Portugal, Spain, Sweden, the United Kingdom. However, the other Member States do not appear to have produced legal definitions. 16 Austria, Belgium, France, Germany, Greece, Luxembourg, the Netherlands, Portugal, Spain, Sweden. Denmark and Finland have collective practice. 17 Austria, Belgium, Finland, France, Germany, Greece, Ireland, Luxembourg, the Netherlands, Portugal, Spain. However, the other Member States do not appear to have formalised collective practice or preclude this possibility (Italy). 18 CP: Belgium, Denmark, Finland, Germany, Sweden. L: Austria, France, Greece, Italy, Luxembourg, Portugal. In other Member States, there are some externally determined rules on finances (Ireland, Spain, the United Kingdom). 19 CP: Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Sweden. L: Austria, Portugal, Spain. In other Member States, there are some external constraints (Greece, the United Kingdom). 20 Austria, France, Germany, Greece, Ireland, Italy, Luxemburg, Portugal, Spain, the United Kingdom. 21 Finland. 22 Finland, France, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden. Belgium has collective practice. However, the law or collective practice in the other Member States is either ambiguous or negative. 23 Austria, Denmark, Finland, France, Greece, Luxembourg, the Netherlands, Portugal, Spain. But the other Member States appear to either resist this or are ambivalent.
200 Brian Bercusson
II . THE IMPACT OF EU TRADE UNION RIGHTS ON NATIONAL SYSTEMS : THE ROLE OF THE EUROPEAN COURT
A formulation could be adopted which included rights of association recognised in all (or most) Member States. The question then arises: how would recognition in EU law of such a concept of “freedom of association” affect the rights recognised in Member States’ laws? The issue would probably arise when, in a Member State, a claim based on the EU right of association was contested. An appeal to the national courts would allow for a reference to the European Court of Justice. The Court could choose a number of interpretations. For example, it could expand the EU law concept to include as many as possible of the elements of the concept of freedom of association which are to be found in Member States’ laws. Alternatively, rather than adopt a single interpretation of the right, the European Court could allow it to be applied differently in the different Member States, by leaving its detailed content to be interpreted and applied by national courts. Another alternative would be for the Court to confine the right to claims raising issues of a transnational nature, which were not covered by national laws. In interpreting any formulation of the right at EU level, the European Court of Justice would be able to draw upon a range of sources, including international law, in particular, ILO Conventions, Council of Europe measures and existing EC law, particularly in light of the amendments to the EC Treaty by the Treaty of Amsterdam.
1. International law ILO Conventions Ratification by all Member States of ILO Conventions No. 87 of 1948 and No. 98 of 1949 has produced a common foundation of trade union rights of association in all Member States of the EU. These include, under ILO Convention No. 87, the right to establish and join organisations without prior authorisation (Article 2), the right to draw up constitutions, elect representatives, organise activities and formulate programmes without interference by public authorities (Article 3), the right of organisations not to be dissolved or suspended by administrative authority (Article 4), the right to form and join federations and confederations, which may affiliate to international organisations (Article 5) which also enjoy the guarantees of Articles 2, 3 and 4 (Articles 5–6) and the right to acquire legal personality free of restrictive conditions (Article 7). Member States’ laws must not impair, or be applied so as to impair these guarantees (Article 8(2)). The only permissible exceptions relate to the armed forces and the police (Article 9). Ratifying states must take “all necessary and
Trade Union Rights in EU Law 201 appropriate measures” to ensure that workers may freely exercise the right to organise (Article 11). This includes the right to protection against acts of antiunion discrimination and against interference with trade unions (ILO Convention No. 98: Articles 1–2). There must be machinery to ensure respect for these rights (ILO Convention No. 98: Article 3). Again, exceptions are allowed for the armed forces and the police (Article 5). ILO Convention No. 98 does not deal with the position of public servants engaged in the administration of the state, but provides that this is not to prejudice their position (Article 6). The ILO is one source of the argument, developed, in particular, in the interpretations of the Freedom of Association Committee, that freedom of association includes other rights. The three elements of the right are association, bargaining and strikes (for social and economic interests). The argument is that freedom of association is meaningless unless it is for something; in this case, for collective bargaining. However, collective bargaining cannot function unless there is a right to strike. The implications of this argument are that the EU Member States, all of whom have ratified Conventions Nos. 89 and 98, are bound by the ILO and its established practice, as reflected, e.g. in the interpretations of the Freedom of Association Committee. Despite this formal consensus, however, Member State practice differs; for example, as to whether the right to strike is included in the right to freedom of association. As a result, ratification of ILO Conventions may not be sufficient to support the conclusion that all Member States agree that freedom of association includes the other rights. The ILO Conventions, dating back half a century to 1948 and 1949, were formulated as a minimum standard. The argument that they include other rights is a modernised interpretation by experts of this minimum standard. More recently formulated modern fundamental social rights are much more explicit and detailed as to the content of the right of association. However, the argument that rights to collective bargaining and to strike are linked with freedom of association, and are established in the case law of the ILO machinery, remains valid. Council of Europe measures The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) provides in Article 11 for “the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests”. The European Social Charter (1961) provides in Part I: “The Contracting Parties accept as the aim of their policy to be pursued by all appropriate means, both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised: . . . (5) All workers and employers have the right to freedom of association in national or international organisations for the protection of their economic and social interests.
202 Brian Bercusson (6) All workers and employers have the right to bargain collectively”;
and in Part II: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties . . . recognise: . . . (4) the right of workers and employers to collective action in cases of conflicts of interest including the right to strike, subject to obligations that might arise out of collective agreements previously entered into”.
Following the Treaty of Amsterdam, these standards of the Council of Europe have become reference points for both the Community and the Member States. Article 136 (ex Article 117) of the EC Treaty was revised. It sets out the social policy objectives of the Community and the Member States and adds: “having in mind fundamental social rights such as those set out in the European Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers”.
This seems to take the legal status of the two Charters further than the Amsterdam Treaty’s addition of a new fourth paragraph in the Preamble to the Treaty on European Union: “Confirming their attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers”.
This reinstates the reference to the 1961 Social Charter in the Preamble to the Single European Act 1986, which was dropped by the Maastricht Treaty. 2. EC law One major obstacle to fundamental trade union rights exists in EU law. Article 137(6) of the EC Treaty (formerly Article 2(6) of the Agreement on Social Policy) provides: “The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs”.
It would seem a prerequisite that this provision be repealed or, if not repealed, its scope and implications need to be clarified. For example, it seems clear that Article 137(6) excludes “the right of association” and the “right to strike” from the scope of Article 137, which lays down a procedure by which the Community institutions can adopt Directives on matters listed there. However, in contrast to the legislative procedure for enacting Directives on the competences outlined in Article 137, under Article 139 (formerly Article 4 of the Agreement), labour and management may reach agreements without the direct involvement of EC institutions. Such agreements are not subject to any explicit restriction as to content. It is unclear whether Article
Trade Union Rights in EU Law 203 137(6) limits the scope of “agreements concluded at Community level” under Article 139. If not, under Article 138 (formerly Article 3 of the Agreement), the Commission may make a proposal in a social policy field specified in Article 137(6) which, under Article 138(4), is then taken up by management and labour, with the possible result of an agreement on the subject at Community level (Article 139(1)), which is not limited as to content. This agreement “shall be implemented” in one of the ways specified in Article 139(2). The allocation of competence to the social partners over “the right of association, the right to strike or the right to impose lock-outs” may be understood because of the particular delicacy of these rights, in particular, the right of association, and reflects the principle of “horizontal” subsidiarity—leaving competence to the social partners. It does not exclude rights of association from EC law altogether. The Preamble to the Maastricht Agreement, the source of Articles 136–139 of the EC Treaty, began with the affirmation that the Member States “Wishing to implement the 1989 Social Charter” agreed the following provisions. The 1989 Charter is unequivocal as to the right of association (Article 11): “Employers and workers of the European Community shall have the right of association in order to constitute professional organisations or trade unions of their choice for the defence of their economic and social interests. Every employer and every worker shall have the freedom to join or not to join such organizations without any personal or occupational damage being thereby suffered by him”.
The first paragraph of Article 11 provides for a “right of association in order to constitute professional organisations or trade unions”. Earlier drafts were amended to include in the final draft the phrase that the right of association is “in order to constitute” trade unions—i.e. to bring them into being. There is considerable debate over whether, and how far, the traditional “freedom of association” protects the activities of the trade union established by workers. Article 11 upgrades this “freedom” into a “right of association” and adds the additional phrase “in order to constitute” trade unions. This may enhance the substance of Article 11’s “right of association” by implying a right to engage in activities necessary to constitute such organisations. Any provision in the Agreement, now Articles 136–139 of the Treaty, which appears to exclude parts of the Charter would have to be narrowly construed to exclude or minimise that outcome. If such rights are recognised as within the competence of the EU, the scope of fundamental trade union rights could be elaborated in line with, among others, international instruments enshrining these rights, including ILO Conventions and Council of Europe measures. Further, in a number of decisions, the European Court of Justice has referred to general legal principles and human rights protected within Community law
204 Brian Bercusson which are inspired by “constitutional traditions common to the Member States”.24 In some of these, and other cases, the Court has also found inspiration to derive protection of rights in EC law from the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950). This was invoked, for example in a case involving the attempt by the French Government to deport an Italian national working as a trade union official in France.25 Even where there is no constitutional provision, or reference in the ECHR, the Court has been inspired to derive protection in EC law from legal principles common to all Member States, even where there are some differences in the scope of that protection.26 The European Court may become more active in this field due to amendments introduced by the Amsterdam Treaty. That Treaty amended Article F of the Treaty on European Union (now Article 6) and added a new Article F.1 (now Article 7). Article F declares that the Union “is founded on” respect for human rights and fundamental freedoms. The European Court is to have jurisdiction to review the actions of the institutions for compliance with this principle. Member States, constitutions and laws, and the provisions of international law may provide the basis for legal inspiration for the European Court to uphold protection of trade union rights as part of EC law. A last safeguard: the “social chapter” of the Maastricht Treaty did not include the “non-regression” clause found in Article 117 of the EC Treaty. Such a clause is needed to guarantee that any formulation of trade union rights in EU law does not allow for any regression from standards established in Member States. The new Article 136 incorporates this clause. The objectives are specified “so as to make possible their harmonization while the improvement is being maintained”. This should be clearly applied to trade union rights. 24 Nold v. Commission, Case 4/73 [1974] ECR 491, para. 13; Internationale Handelsgesellschaft v. Einfuhr- und Vorratstelle fur Getreide und Futtermittel, Case 11/70 [1970] ECR 1125, para. 4; Hauer v. Land Rheinland-Pfalz, Case 44/79 [1979] ECR 3727, para. 15; Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84 [1986] ECR 1651, para. 18; Wachauf v. Germany, Case 5/88 [1989] ECR 2609, para. 17; Hoechst AG v. Commission, Cases 46/87 and 227/88 [1989] ECR 2859, para. 13. In Wachauf, the Court has said, in respect of Member States implementing Community law, that they are bound by the same principles and rights which bind the Community in its actions: “The Court has consistently held . . . that fundamental rights form an integral part of the general principles of law, the observance of which is ensured by the Court. In safeguarding those rights, the Court has to look to the constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognised by the constitutions of those states may not find acceptance in the Community”. See also the Joint Declaration on Fundamental Rights of the European Parliament, the Council and the Commission of 5 April 1977, OJ 1977 No. C103/1, p. 1. 25 Rutili v. Minister for the Interior, Case 36/75 [1975] ECR 1219, para. 32. 26 AM&S Europe Ltd. v. Commission, Case 155/79 [1982] ECR 1575, para. 18: “Community law, which derives from not only the economic but also the legal inter-penetration of the Member States, must take into account the principles and concepts common to the laws of those States”. The case concerned the observance of confidentiality, in particular, as regards communications between lawyer and client.
Trade Union Rights in EU Law 205 “Mainstreaming” trade union rights27 requires a general formula to be developed for inclusion in all relevant EU measures.28
III . STRATEGIC OPTIONS
A number of strategic options are available to establish a right to freedom of association in EC law. They involve a number of dimensions: which institutions should participate; which processes should be followed; which legal forms should the right assume; over which time period(s) should the strategy (or strategies) be pursued? A simple Table (Table 11.1) illustrates the links in crude terms between these dimensions. Table 11.1: Strategic Options Institutions
Processes
Measures
Time-frame
Member States Commission/Council European Court Social partners
Treaty amendment Legislation Litigation Social dialogue
Treaty provision Regulation/Directive Court decisions EC level agreements
long term medium term short term ?
Individually, these strategic options do not require explanation. Their advantages and disadvantages can be assessed by those familiar with the nature of the institutions concerned, the processes to be followed, the different legal outcomes of the measures resulting, and the time-duration involved. In particular, the strategies of Treaty amendment and legislation are well known. That of litigation is less so, though courts have been powerful forces in the formulation of fundamental trade union rights in the Member States. Similarly, in some Member States, fundamental trade union rights have been agreed by the social partners as part of the established “rules of the game” for industrial relations. Examples include Denmark (September Compromise, 1899), Sweden (December Compromise, 1906) and Finland (General Agreement, 1944). The ETUC/UNICE/CEEP Social Policy Agreement of 31 October 1991, which became the substance of the Social Policy Protocol of the Maastricht Agreement and is now in Articles 136–139 of the EC Treaty, is a precedent for such a “Basic Agreement” at EU level between the social partners. There are complementary strategies, where Treaty amendment, legislation, litigation and social dialogue may stimulate each other. For example, one 27 “Mainstreaming” has been developed in the context of EC sex equality law: Commission Communication, “Incorporating Equal Opportunities for Women and Men into all Community Policies and Activities—Mainstreaming”, COM(96)67. 28 For example, measures adopted to secure free movement across national borders. This would protect trade union rights affected by legislation promoting the single market. Article 2 of the “Monti” Regulation, quoted above, is an illustration.
206 Brian Bercusson Group proposed integrating the 1989 Community Charter of Fundamental Social Rights, including fundamental trade union rights, into the EC Treaty. The proposal would allow for qualified majority voting on EC legislation implementing fundamental social rights. It would also specify a time limit, so that failure to implement fundamental rights would allow for them to become directly effective before the courts, or for the European Parliament to complain to the European Court about the failure to act.29 In another example, the Committee on Employment and Social Affairs of the European Parliament tabled its Own-Initiative Report on Transnational Trade Union Rights on 20 March 1998.30 This Report originally aimed to convey to the Inter-Governmental Conference the views of Parliament on amendments to the Treaty. A first draft of this Report, dated 14 January 1997, was discussed by the Committee in February 1997.31 This first draft Report proposed a series of amendments to the Treaty. This included extending EU competence to cover fundamental trade union rights, and making it an EU objective to achieve them. Specifically, this draft Report proposed the inclusion of rights of association at EC level. This was to be implemented through social dialogue:32 “Moreover, the Community shall adopt measures, in accordance with Article 3 and 4,33 to implement the rights guaranteed by the Charter of Fundamental Social Rights of Workers of 1989, and, in particular, Articles 11–13 of the 1989 Charter (freedom of association and collective bargaining). In particular, management and labour (the social partners) at Member State level shall seek to implement by agreement the trade union rights guaranteed by these measures, taking account of different national circumstances. Such national ‘basic agreements’ shall conform to the requirements of directives or framework agreements concluded at Community level”.
This draft of February 1997 proposing Treaty amendments was overtaken by the Treaty of Amsterdam of June 1997. Instead, the draft Initiative Report of 20 March 1998:34 “Confirms its demand for enshrining in particular the fundamental transnational trade union rights (right of association including the right of collective bargaining and trade union action) in the Treaty on European Union; Considers that the trade union organisations should be involved in establishing trade union rights at European level;
29 B. Bercusson, S. Deakin, P. Koistinen, Y. Kravaritou, A. Supiot and B. Veneziani, A Manifesto for Social Europe (European Trade Union Institute, Brussels, 1996), ch. 10: “A Strategy for Social Europe”, pp. 147–156. Summarised in [1997] 3 European Law Journal 189–205. 30 PE 223.118/Fin., Rapporteur: Mrs. Ria Oomen-Ruijten. 31 PE 220.024. 32 Proposed Amendment 3, to Article 2, para. 4 of the Social Policy Agreement (now Article 137(4) EC). 33 Of the Social Policy Agreement; after Amsterdam, Articles 138 and 139 of the EC Treaty. 34 PE 223.118/Fin., paras. 4–6.
Trade Union Rights in EU Law 207 Calls on management and labour either themselves or as part of the social dialogue to draw up proposals for negotiating rules and principles”.
This draft carefully distinguishes the process of “establishing trade union rights at European level” in which “trade union organisations should be involved”, from the social dialogue process “to draw up proposals for negotiating rules and principles”, in which “management and labour” are engaged. It is an open question whether “trade union rights” at European level can be separated from “negotiating rules and principles” for the social dialogue at European level.
IV . A PROPOSAL
Fundamental trade union rights need to be established on the basis of unquestionable legitimacy and consensus. The factual report above indicates that certain trade union rights, established in international, national and EC law, possess that degree of legitimacy and consensus. The EU legislative institutions and the social partners’ dialogue offer processes whereby these established standards can be translated into EU law. The final test which must be passed is the approval of the standards established in EU law by the European Court of Justice.
1. Institutions and processes The decision of the CFI in UEAPME signals that the European Court would confirm a process whereby fundamental trade union rights were established in EU law.35 The Court asserted that the social partners could achieve a degree of “sufficient collective representativity” which would confer on them the requisite democratic legitimacy to make an agreement forming the substance of a valid EC directive.36 The requirement of “sufficient collective representativity” of the social partners negotiating the agreement/directive was deemed necessary since the directive was not subject to scrutiny by the European Parliament, the indisputably democratically legitimate body. On the one hand, this confirmation by the European Court that the social partners possess, in the case of the Parental Leave Directive, “sufficient collective representativity”, is welcome. But there are strings attached. The European Court warned that an assessment of “sufficient cumulative representativity” was relative to the specific content of the agreement/directive in question. 35 Union Européene de l’Artisanat et des Petites et Moyennes Entreprises (UEAPME) v. Council of the European Union, Case T-135/96 [1998] IRLR 602; decided 17 June 1998. See B. Bercusson, “Democratic legitimacy and European Labour Law”, [1999] 28 Industrial Law Journal 153–170. 36 Ibid., paras. 88–91.
208 Brian Bercusson Further, it required the Council and Commission, when deciding to submit or approve the proposal for a directive based on the agreement, to adjudicate, on the basis of specified criteria, whether the social partners achieved “sufficient collective representativity”. Finally, it claimed that the Court itself could undertake its own assessment of “sufficient collective representativity”, based on its own criteria. Taken together, therefore, any social partners’ agreement which aims to achieve the status of an EC directive faces close scrutiny, not only of its substance, but of the democratic legitimacy of the social partners in terms of their “sufficient collective representativity”. This poses a potential threat to the autonomy of the social partners, both from the EU institutions (Commission, Council, Court) carrying out this scrutiny, and from the criteria they may choose to apply in their assessment. It might, therefore, be a preferable option for the social partners to seek to achieve the necessary degree of democratic legitimacy from the EU institution which the Court has described without reserve as possessing that quality: the European Parliament. The indications are that the European Parliament is open to approval of fundamental trade union rights through a process which respects the autonomy of the social partners. As indicated by the recent draft Own-Initiative Report of 20 March 1998, it also recognises the primary, even the exclusive, right of trade union organisations in the process of establishing trade union rights. At the same time, the Parliament recognises that negotiating rules and principles for the European social dialogue need to be established by the social partners.
2. Legal forms and time-frame The need is for a social partners–EU institutional agreement which will protect the primacy, and autonomy, of trade unions in establishing fundamental trade union rights, establish a framework of negotiating rules and principles for the EU social dialogue and provide the requisite democratic legitimacy required by the European Court. This agreement could provide the basis for the formulation of a legal measure which both enshrines fundamental trade union rights in EC law and establishes a legal framework of negotiating rules and principles for the EU social dialogue. This is an ambitious agenda. The economic re-structuring which accompanies the onset of EMU will lead to situations de-stabilising national industrial relations systems. The negative response of the national social partners could threaten the success of the European integration project. The responsibility of Member State governments, the EU institutions and the social partners at EU and Member State levels is to create a workable system which can begin to meet this challenge. Time is short.
Trade Union Rights in EU Law 209
3. Content Fortunately, there is a substantial foundation on which to begin. As regards negotiating rules and principles, there is over a decade of experience of social dialogue at EU level, backed by immense experience of negotiators in the Member States. It would be possible to construct the framework of negotiating rules and principles for the EU social dialogue. Only the political will is needed. As regards fundamental trade union rights, there is a basis in the trade union rights identified by the European Parliament’s Research Study as common to all, or most Member States. These are supported by the unanimous ratification by all Member States of key ILO Conventions and Council of Europe measures. On this basis, it should be possible to draft detailed proposals for a framework of fundamental trade union rights in EU law.
Part IV
Unintended Consequences
12
Why Should Europe be a Democracy: The Corruption of Political Culture and the Principle of Constitutional Tolerance* J.H.H. WEILER I . FIRST ANSWER
Why should Europe be a democracy? The answer seems so obvious it makes the question seem preposterous and as a result it is rarely raised quite in this stark manner. There is, thus, this curious little black (or at least gray) hole in the extensive literature on Europe’s famous “democracy deficit”. This literature is overwhelmingly diagnostic—what is the nature of Europe’s democratic malaise—prognostic—what is its future evolution, and, endlessly, prescriptive—what can we do (usually by tinkering with institutions and processes) to remedy the diagnosis and affect the prognosis. But it takes for granted that Europe should, of course, be a democracy. In one obvious and fundamental sense the question is preposterous—to the extent that it may suggest that a non-democratic Europe would be acceptable. And in this same obvious and fundamental sense the answer is obvious—our prevailing political culture is, thankfully, such that any other system of governance would be normatively unacceptable and politically illegitimate. Thus, in the extensive literature, even if implicitly, the first and principal answer to our question is given. This answer is drawn both from political theory and from social science. Culling from the rich and long tradition of political theory we simply apply to Europe any of the old or “new” justifications for democracy that are rooted in notions of the autonomy, dignity and self-determination of the individual and in similar societal notions of freedom, justice and equality. Culling from the social sciences we link the democratic imperative to the social legitimacy of European governance. Democracy on this understanding is a condition for the long term stability and acceptability of European governance. Of * Homage to Francisco Rubio Llorente. Adapted from Weiler, “Amsterdam and the Quest for Constitutional Democracy” in O’Keeffe and Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, Oxford, 1999.)
214 J. H. H. Weiler course there is as regards Europe, just as there is within the Member States, much discussion on the particular brand of democracy most suited to European governance and the European polity. I have no quibble with this genre of answer nor with the fact that it is the most fundamental. I also see no reason to explore it since it is indeed implicit and explicit in the existing excellent literature. I want to propose, however, two additional answers to this questions which I think are rooted uniquely in the peculiarities of European integration. The discussion of these aspects of European democracy, help us in our endless search to understand better the nature of the European Union. The first, inspiration for which comes from the work of, and conversations with, the Spanish constitutionalist Francisco Rubio Llorente, relates to the always uneasy relationship of and between the Community and the Member States. The second has to do with the human ends of European integration.
II . SECOND ANSWER
It is the very success of the European construct which provides the key to the second consideration. Europe has been hugely successful not simply in the attainment of many of its specific market goals but also in the continued effectiveness, despite many “doomsdayers”, of its classical governance structures and processes and, primarily, in its “mainstreaming”—in the fact that Europe has essentially moved beyond serious political contention in the Member States and is seen as an integral part of the polity—like the state itself. Success is risky because of a simple fact—it has a powerful legitimating effect. The best way to legitimate a war is to win it. This has always been such in human affairs: good outcomes legitimate, in the social empirical sense, questionable means. What are the questionable means in this context? There is no subject which is more likely to bring a yawn to the face of academics and a groan to the faces of politicians than the democracy deficit of the European Union. It is a matter which should be dealt with without shrill notes. But it will not go away. How to describe and explain the structure and process of European governance is contentious. I once described it as a multiple system covering international, supranational and infranational processes. Others have put forward other models. But whatever view you take you find democratic deficiencies at all levels of European governance. In essence it is the inability of the Community and Union to develop structures and processes which would adequately replicate at the Community level even the imperfect habits of governmental control, parliamentary accountability and administrative responsibility which are practised with different modalities in the various Member States. Even the basic condition of Representative Democracy that at election time the citizens “can throw the scoundrels out”—that is replace the Government—does not operate in Europe.
The Corruption of Political Culture and the Principle of Toleration 215 The form of European Governance is—and will remain for considerable time— such that there is no “Government” to throw out. Dismissing the Commission by Parliament (or approving the appointment of the Commission President) is not the equivalent of throwing the Government out. There is no civic act of the European citizen where he or she can influence directly the outcome of any policy choice facing the Community and Union as citizens can when choosing between parties which offer sharply distinct programmes. Further, as more and more functions move to Brussels, the democratic balances within the Member States have been disrupted by a strengthening of the Ministerial and Executive branches of government. Certain groups are privileged and others underprivileged. The value of each individual in the political process has inevitably declined including the ability to play a meaningful civic role in European governance. Added to that is the ever increasing remoteness, opaqueness, and inaccessibility of European governance. An apocryphal statement usually attributed to Jacques Delors predicts that by the end of the decade 80 per cent of social regulation will issue from Brussels. We are on target. The drama lies in the fact that no accountable public authority has a handle on these regulatory processes— not the European Parliament, not the Commission, not even the Governments. The press and other media, a vital Estate in our democracies are equally hampered. Consider that it is even impossible to get from any of the Community Institutions an authoritative and mutually agreed statement of the mere number of committees which inhabit that world of Comitology, a complex network of middle level national administrators, Community administrators and an array of private bodies with unequal and unfair access to a process with huge social and economic consequences to everyday life—in matters of public safety, health, and all other dimensions of socio-economic regulation. And now one can add the institutions of Economic and Monetary Union and the constitutional framework within which they work which, while being very vigilant against all manners of financial, fiscal and monetary deficit, contribute appreciably to the existing political and democratic “deficit” of the Union. Despite this litany of democratic woes, we must take note of the fact that the European construct, democratic deficit notwithstanding, has been approved democratically again and again. The Treaties have been subjected to the constitutional and democratic disciplines prescribed in each Member States with the ratification of the SEA, of Maastricht, of Amsterdam and of each Enlargement. I do not expect this to change. These regular ratifications—despite their “fast track” take-it-or-leave-it nature—are an authentic expression of the Member States’ democratic institutions and, in some countries, of the European electorate. They are a regular “referendum” on the success of the European construct. Here we are back to the paradox of success. Let us not mince words: these successful “referenda” which give a valid democratic patina to the European Community represent, too, the corrupting effect of the European success on the
216 J. H. H. Weiler civic sensibilities of the European peoples and on the very meaning of what it means to be a democracy. The fact that so regularly the European construct is approved without a serious challenge to its questionable democratic quotidian praxis represents the invasion of a market mentality into the sphere of politics whereby citizens becomes consumers of political outcomes rather than active participants in the political process. It represents the process whereby we come to cherish the closeted deliberations of civil servants because of the quality of their dialogue—deliberative in the most noble Habermasian sense, perhaps— and the merit of their outcomes, but in which citizens or their representatives are at best partially informed consumers of such deliberative paradise. In this respect Europe seems to produce a negative moral “spill over” effect. It would be, of course, absurd to hang all the ills of our polities at the door of the European Union. It is not only Europe that suffers from democratic deficiencies. The degradation of political culture is part of the story of democracy in many of the Member States. Its signs are obvious enough and we need list only a few. These include the prominence of image and electronic media in political discourse (the Berlusconi effect) with the consequent blurring (or Blairing) of the lines between politics and entertainment as part of a culture of celebrityship. It includes the trumping of ideology by pragmatism (the Schroeder effect) and the ascendance of technocracy and technical competence as supreme criteria of legitimacy (the Dini effect). All these things would be with us with or without the European Union. But Europe helps accentuate them, aggravate them and, most insidiously, render them normal and, thus, acceptable. The external impact of the EC on the political culture of democracy mirrors its internal ethos. Legitimisation through successful technocratic accomplishment rather than through the messy processes of democracy has become, too, a central feature of the internal Commission culture. On the one hand a central feature of the self-understanding of the Commission is the notion that it is an autonomous, policy-making political institution and not simply the secretariat of, say, the Council. This self-understanding compels the Commission to be acutely aware of the need to have political legitimacy—both internally to sustain institutional morale and cohesion, and externally—to sustain support, essential for its power given its lack of a popular political constituency. Legitimation through accomplishment, professionalism and results becomes, thus, the surrogates for democratic process and democratic legitimation. We have thus a bi-directional or circular process whereby the degradation of politics in the Member States enables the Community to claim its legitimation on the basis of its achievement and receive its regular constitutional pound of flesh from the Member States after each IGC, a legitimisation which in turn contributes to that very degradation of what democracy is meant to be about. This, then, is a vision of a successful future in which prosperity and security abound, in which we might even have a Third European way concerning social networks and redistributive policies, but in which one of the great hallmarks of
The Corruption of Political Culture and the Principle of Toleration 217 the European revolution, the subjecthood of the individual, turns out to be progressively corrupted. It is a process which should be arrested. But who will be the agent for change?
III . THIRD ANSWER
The third reply to the question “Why should Europe be Democratic?” relates to what I would consider the most fundamental or foundational principles of the Union—the Principle of Constitutional Tolerance. The principle of Constitutional Tolerance is encapsulated in the most basic articulation of its meta-political objective in the Preamble to the EC Treaty: “Determined to lay the foundations of an ever closer union among the peoples of Europe”.
No matter how close the Union, it is to remain among distinct peoples. An ever closer union could be achieved by an amalgam of distinct peoples into one nation—which is both the ideal and/or the de facto experience of most federal and non-federal states. The rejection by Europe of that One Nation ideal or destiny is typically understood as intended to preserve the rich diversity—cultural and other—of the distinct European peoples as well as to respect their political self-determination. The European choice has an even deeper spiritual meaning. An ever closer union is altogether more easy if differences among the components are eliminated, if they come to resemble each other, if they aspire to become one. The more identical the other’s identity is to my own, the easier it is for me to identify with him and accept him. It demands less of me to accept another if he is very much like me. It is altogether more difficult to attain an Ever Closer Union if the components of that Union preserve their distinct identities, if they retain their “otherness” vis-à-vis each other, if they do not become One Flesh, politically speaking. Herein resides the Principle of Constitutional Tolerance. Inevitably I define my distinct identity by a boundary which differentiates me from those who are unlike me. My continued existence as a distinct identity depends, ontologically, on that boundary and, psychologically and sociologically, on preserving that sentiment of otherness The call to bond with those very others in an ever closer union demands an internalisation (individual and societal) of a very high degree of toleration. The Leviticus imperative to love thy neighbour as oneself is so difficult, and hence civilising because that neighbour is not like myself. Living the Kantian Categorical Imperative is most meaningful when it is extended to those who are unlike me. In political terms, this Principle of Constitutional Tolerance finds a remarkable expression in the political organisation of the Community which defies the normal premise of democracy. Normally in democracy, we demand democratic discipline, i.e. accepting the authority of the majority over the minority only
218 J. H. H. Weiler 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. And yet, in the Community, we subject the European peoples to the discipline of democracy even though the European polity is composed of distinct peoples. It is a remarkable instance of civic Constitutional Tolerance to accept to be bound by a decision not by “my people” but by a majority among peoples which are precisely not mine—a people, if you wish, of others. Most remarkable is the fact that in this polity even my national constitutional norms are asked to bow to an emergent European constitutionalism. I compromise my self-determination in this fashion as an expression of this kind of internal (towards myself) and external (towards others) toleration. This principle becomes a travesty if the norms I follow, if the democratic discipline I obey is not adopted by others, my fellow European citizens, with whom I do not share the bonds of peoplehood, but by a technocratic bureaucracy over which I have little control and within the netherworld of comitology. A nondemocratic Europe extinguishes the Principle of Toleration just as a Statal or a One Nation Europe would.
13
Simplification of European Law* ROLAND BIEBER and CESLA AMARELLE**
“Everything should be made as simple as possible, but not simpler . . .” Albert Einstein
I . INTRODUCTION
What EU customs officer, having the task of executing the European Customs Code1 (consisting of 253 Articles) and its implementing provisions2 (consisting of 915 Articles) would not dream of “simplification”? What scholar of EU decision-making procedures found in Article 251 of the EC Treaty (500 words) would disagree? Simplicity is, however, an ambivalent notion in any context. It may describe an “elegant”, functionally and esthetically satisfactory system which fulfils all its purposes without a waste of time and energy under many different circumstances. It may, however, also be the characteristic of an inflexible system which fulfils its purpose only approximately, which requires a high amount of energy, and which is not able respond to changing external requirements. While the former is admirable, the latter is a threat to law and order. Within the context of European law “simplification”, one has to keep in mind the ambivalent quality of simplicity as well as of the possibility that while the same system might have the appropriate degree of simplicity for one purpose, it may be too simple or too sophisticated for another. Hence, discussing simplification of European law requires a discussion of the context and the underlying objectives. This context includes first and foremost the creation of an “ever closer Union” among the people of Europe through legal interpretation and by creating a one single market.
* This chapter originally appeared at (1999) 5 Columbia Journal of European Law 1. ** Research Assistant, Centre de Droit Comparé et Européen, University of Lausanne, Switzerland. 1 Council Regulation (EEC) No. 2913/92 of 12 October 1992, OJ 1992 No. L 302, p. 1 (establishing the Communities Customs Code). 2 Commission Regulation (EEC) No. 2454/93 of 2 July 1993, OJ 1993 No. L253, p. 1 (laying down provisions for the implementation of Council Regulation (EEC) No. 2913/92 establishing the Communities Customs Code).
220 Roland Bieber and Cesla Amarelle A lack of transparency and accessibility seems to be the price to pay for an increase in refinement and justice in any legal system. Hence, the distance between the experts and bewildered citizens has grown and the legitimacy of the system has suffered. Seen in terms of democratic accountability, simplification indicates the intent to shape legislation in a more “citizen-centered” manner to increase legitimacy through accessibility. However, Europe, as a whole, does not have a monopoly over legitimacy crises. All Member States suffer equally from the loss of support of citizens who no longer understand what is being done on their behalf. The question, however, becomes more complicated on the European level due to a greater number of actors, different legal traditions, an increased distance between the decision-making centre and citizens and the tension between centralized law making and decentralised implementation.3 The threat to legitimacy is further amplified by the unique, essentially legal, origin of the Union.4 Simplification also raises questions ahout the way a democratic organisation manages its self-created complexity. When linking humans through a wide society of cable networks, silicon chips into one collective life, one has to be aware of all the connections. Complexity meets the aspiration of this culture. If this fact is not taken into account, simplification of the laws of this culture might lead to frustration. Consequently, for complexity to be acceptable in a democratic society, it has to be understood as a dynamic concept, which—at least potentially—carries in itself the aims of brevity and accessibility to citizens. In other words, complexity must not ensue from factors outside the organisation but rather from the aims of the organisation. Legal complexity should not create contradictions and thereby undermine the organisation’s basic objectives. The future growth of the European Union, particularly with regard to strengthening the notions of citizenship, democratisation, employment and competitiveness, relies on the concept of simplification.5 The two issues are interrelated : “democracy withers if it does not operate effectively; and effectiveness is pointless without democracy. Otherwise democracy becomes nothing more than technocracy”.6 Until the development of the internal market, the potential adverse effects of functional and economic Community norms were rarely analysed prior to implementation. In this sense, the appearance of sim3 Madrid European Council of December 15 and 16, 1995 points out that “complexity is the price that Europe pays to protect our plural identity. But we firmly believe that this creation of Europe’s political ingenuity, which cannot take the place of but is now an inseparable counterpart to the Union’s Member States, from which its main political legitimacy flows, has been making an invaluable contribution of its own: peace and prosperity based on a definition of a common interest and action that is the result not of power politics but of a common body of law agreed by all”: European Parliament White Paper on the 1996 Intergovernmental Conference, vol. I (Luxembourg, 1996), at p. 26 (hereinafter White Paper). 4 In this sense, E. Snyder mentions that, “law has always been a basic instrument and a central symbol of European integration”, Francis Snyder, “The Effectiveness of European Law: Institutions, Process, Tools and Techniques”, (1993) Modern Law Review 19. 5 See discussion in section IV below. 6 See Commission Report of 10 May 1995 on the operation of the Treaty on European Union, White Paper, n. 6 above, at p. 235.
Simplification of European Law 221 plification schemes marks an evolution in European development—the functionalistic process of spillover, consisting of sector-based integration, is greatly accelerating. Morever, within the context of EMU, a method of integration that intends to settle problems one by one is no longer adequate. Consequently, the evolution of the Union requires much more coordinated integration. Simplification serves the objective of this type of integration—the assertion of a community methodology. Simplification requires reducing the normative activity of the national and/or Community legislator in terms of the economy. As a result, it has an ambiguous resemblance to “deregulation”—a European term without precise legal meaning. Two levels of deregulation can be distinguished: level one, the abolishing of unilateral national measures of economic protection (at least inasmuch as they have a transnational effect), and level two, the introduction of a distinct political objective to create an economic and social Community legal system which attempts to establish parameters of its own with regard to legislative intervention in the market and the protection of collective values. The social debate about this political orientation will not be reviewed here but a discussion of a few particular points is useful in the light of simplification. The following text discusses these different aspects of simplification by describing its aims and application from a constitutional as well as an administrative and a legislative point of view. II . A METHOD WITH A SOCIAL FUNCTION
1. A technique related to the legal foundations of the Union Simplification contributes to realising the classic objectives of the Union, such as democracy, unity and effectiveness. If this notion is vague and difficult to define, it is because it aims at the philosophy of the system. It is an instrument of “horizontal” quality promoting integration as well as cooperation. It responds to a social function of the democratic society. Simplification allows us to appreciate the unity of the system while helping those people who make up this system find acceptable solutions. Although simplification received a boost through the Treaty of Amsterdam since it was formally introduced as the heading of a Treaty chapter (Part II, Articles 6 to 11)7 the treaty negotiators did not create this concept. The first application of this concept took place more than thirty years before, at the time of the Merger Treaty of 8 April 1965.8 In the Merger Treaty Preamble, the six Member States stated the need for a merger of the Communities when describing themselves as being “[r]esolved to continue along the road to 7 Articles 6 to 11 provide for deletion and adjustments to the existing treaties; Article 12 introduces a new numbering of the articles. 8 See the Treaty establishing a Single Council and a Single Commission of the European Communities, OJ 1967 No. 152, p. 2 (13 July 1967).
222 Roland Bieber and Cesla Amarelle European unity”, “[r]esolved to effect the unification of the three Communities” and “[m]indful of the contribution which the creation of a single Community institution represents for such unification”. According to them, the merger of the executives is a start on the track of the European unity which will lead to the merger of treaties.9 Simplification here refers to the principle of unity of the founding instruments. However, no serious efforts were made to achieve this aim. Apart from the fact that the institutional provisions to a large extent contained identical wording and the Single European Act of 17 February 1986 established some provisions applicable to the different Communities in one single instrument, no merger of the substantive provisions of the various treaties was undertaken. While the Treaty establishing the 1992 European Union acknowledged a need for “consistency” of the Union’s activities,10 it retained the multitude of different instruments and different entities forming the Union. The silence of the Treaties about simplification can be explained as a reluctance to face the difficulties arising from any project that might affect vested interests. Those fears have historically prevailed over the fear of lack of control over the Union’s governability. Ultimately, the need for simplification was expressed at the 1996 Turin European Council which called for the Inter-Governmental Conference (IGC) “to simplify the Treaties and to make the aims and the functioning of the Union more comprehensible to the citizen”.11 Later the Treaty of Amsterdam enshrined the term “simplification” as the heading of its second part (referring to the various treaties establishing the Union).12
2. A technique at the service of transparency Transparency of legal norms and political institutions must be determined on two facets: formal and substantial accessibility of texts. Simplification, as it is conceived by the Amsterdam Treaty, mostly concerns the intelligibility of the texts, the second facet of this principle. Since the EU Treaties, whether complex or simplified, are not everybody’s daily reading, simplification in this context concerns mainly the institutions, the Member States, and a few experts.13 Even under such 9 See text of the Preamble to the Treaty establishing a Single Council and a Single Commission of the European Communities: “Resolved to continue along the road to European unity, Resolved to effect the unification of the three communities; Mindful of the contribution which the creation of single Community institutions represents for such unification” OJ 1967 No. 152, p.1 (13 July 1967). 10 See Treaty of European Union (TEU), Article C, now Article 3. 11 Conclusions of the Presidency, (1996) 3 Bulletin of the European Communities 11. 12 See Treaty of Amsterdam amending the Treaty of European Union, the Treaties establishing the European Communities and certain related acts, OJ 1997, No. C 340, pp. 1, 58. 13 The principle of transparency was sanctioned by the Treaty of Amsterdam (TEU, Articles 1 and TCE, Article 255), which confirms Declaration 41 on transparency, access to documents and the fight against fraud. The declarations already gave rise to an important change which substantially improved accessibility of the institutions. See Annual Report of the European Ombudsman, OJ 1997 No. C 272, p. 1.
Simplification of European Law 223 conditions, simplification serves a broader aim: the substantive accessibility of the EU Treaties. It should be borne in mind that the language, structure and genesis of the present Treaties reflects a mingling of an ever-increasing number of different legal cultures, and their respective international, constitutional and administrative law, both public and private. Therefore, national codes used to describe legal texts prove largely ineffective. Thus, while formal accessibility is a prerequisite to understanding a text, substantive accessibility requires simplification. To deal with the problems of access to Community legislation, the 1992 Edinburgh European Council has decided to focus its attention on codification and the improvement of the quality of legislation. The legal service of the Council was asked regularly to revise the legislative documents and, if necessary, to put forward suggestions to make these documents simpler and clearer.14 Among the remedies to increase the transparency of legal system of the Union, simplification appears to be a necessary part of the Union’s efforts to enhance its legitimacy. Of course, simplification goes along with a whole series of other measures that aim at the same objectives. In order to appreciate any simplification scheme, it is advisable to examine its context for adverse effects.
III . SIMPLIFICATION : A CRITERION OF A GOOD CONSTITUTION
1. The causes of complexity For the simplification to reduce most effectively the complexity of European Union, one first has to analyse the circumstances generating complexity. There are four reasons of complexity all stemming from primary law. These are the evolutionary nature of the pillar system, the originality of the integration model, the inadequacy of the constitutional procedure, and the inaccessibility of European law. The first cause of complexity is the evolutionary nature of the European Union. The European Union is a hybrid organisation of an intrinsic complexity. In its structure, the Union does not replace, nor is it even juxtaposed over, the three previously existing Communities.15 It is a complex combination of Community provisions (“first pillar”), and complementary regulations on common Foreign and Security Policy in the Union Treaty (“second pillar”) and on cooperation in matters of Criminal Justice (“third pillar”) in the Union Treaty.16 Viewing the Union in terms of predetermined notions of a state’s 14 For details, see Council Resolution of 8 June 1993, OJ 1993 No. C 166, p. 1 (on the quality of drafting of Community legislation). 15 See Treaty establishing the European Community; Treaty establishing the European Atomic Energy Community; Treaty establishing the European Coal and Steel Community. 16 See Article 1, para. 3 TEU: “The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organize in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples”.
224 Roland Bieber and Cesla Amarelle nature (federal or confederate) and forcing it into preestablished legal categories results in an incomplete characterisation. Speaking of confederalism for the first and second pillars means disregarding the links between the three pillars and the dynamics they hold: the first pillar includes fields of the other two pillars that are judicially and institutionally linked to it.17 This system represents much more than the sum of its parts: it is evolutionary, both with regard to institutions and substantive policies.18 The evolutionary nature of the system is apparent from frequent significant changes of primary law. The Treaty of Amsterdam serves as an illustration to this evolution since it operates a transfer of subject matters from an area of intergovernmental cooperation (the “third pillar”) to an area that is characterised by integrated decision-making (the “first pillar”). In EU jargon, this integration is called “communautarisation”. Such integration is apparent in fields of immigration and asylum (the free movement of persons), fraud to the detriment of the Community budget, cooperation among customs officials, and civil justice. Even matters that remained in the area of intergovernmental cooperation (the “third pillar”) underwent substantive refinement, especially in the areas of police and criminal justice cooperation. The Schengen Acquis is absorbed by the first and third pillar. These modifications complement the addition of numerous protocols to the Treaties. As a result of these transfers, the construction of Justice and Home Affairs is scattered over several separate texts, literally breaking the pillar structure into pieces.19 Indeed, it will be interesting to analyse whether in practice the structure of the pillars will resist the requirements of sound administrative management and legal reasoning. Moreover, in the future the Union will increasingly use the mechanisms that allow for a closer cooperation among some Member States and excluding others. Hence one policy area within the Union may involve a variety of forms of integrated policy-making and differing forms of participation by the Member States.20 The second cause of complexity stems from the originality of the integration system. The novelty of the integration system implies that the Union is still insufficiently definite due to a lack of pre-existing models—no political theory of its constitutional structure has been developed. Most significantly, there is a lack of constitutional clarification on the type of organisation (i.e., is the Union a federation?), the constitutional definition of an authentic hierarchy of
17 The European Council (Heads of States and Governments), albeit not a Community institution, exercises an essential role in the integration. 18 See Jean-Claude Piris, “After Maastricht, are the Community Institutions More Efficacious, More Democratic and More Transparent?”, (1994) 19 European Law Review 449. 19 See Franklin Dehousse, “Le Traité d’Amsterdam, reflet de la nouvelle Europe”, 33 Cahiers de droit europeen (1997) 265; see also Monica Den Boer, “Justice and Home Affairs Cooperation in the Treaty on European Union: More Complexity Despite Communautarization”, (1997) Maastricht Journal of European and Comparative Law 310. 20 See, e.g.,Article 43 (K.15) TEU, OJ 1997 No. C 340, pp. 1, 22–23.
Simplification of European Law 225 norms,21 and the position of the various institutions with respect to each other. Such a clarification would at least allow control over the sources of primary law,22 which at present tend to be scattered, and would provide a road-map to the multiple procedures of adopting the acts and the mass of provisions which bury the articulation of constitutional texts of the Treaties. The third cause of complexity concerns the inadequacy of the constitutional procedure. European law is the result of juxtaposed negotiations for more than forty years. During each reform, more provisions were added without reference to a consistent structure. This is shown by the lack of logic in the numbering of articles, repetitive or lapsed provisions, and different terminologies. These shortcomings result from the revision procedure of the treaties (Article 48 of the TEU) that is modelled after those of the international conferences. The representatives of the Member States, whose role is more similar to that of diplomats than legislators, represent and defend their respective States before taking into account the interests of the Union. If those negotiators have to choose between coherence and clarity that would be beneficial to the Union on one hand, and ambiguity that furthers their national interests on the other, they will not hesitate to opt for the second solution. Only a genuine Constitutional procedure, conferring a dominant role to the Community institutions, could reverse this tendency in the case of conflicts of interests. Jacques Delors explains that in the negotiation of the TEU, “the search for compromise at all costs has prevailed over effectiveness, simplicity and democratic control” and denounces “the risk of inevitable erosion, without realising it, of the objectives of the European integration and of the rules of the game”.23 Unfortunately, Member States were not prepared to alter this procedure for the 1996/1997 IGC. Therefore the same argument applies to its results as well. While it is true that the Community political institutions requested that the Treaties be simplified and merged into one more vigorously than in the past, the governments’ representatives within the “Reflection Group”, the preparatory body for the Conference, agreed only on minimal simplification consisting of suppressing all “lapsed” provisions and renumbering the articles. The French Government found it neither opportune nor appropriate to go beyond that, fearing that the substance and the “good balance” of the treaties would be threatened. Although the majority of states24 and Community institutions have 21 See Roland Bieber and Isabelle Salomé, “Hierarchy of Norms in European Law”, (1996) 33 Common Market Law Review 907. 22 The sources of primary law are composed of various acts, such as founding treaties, and also of other instruments, such as protocols, completing or amending the Founding Treaties. 23 See Jacques Delors, “Foreword” to R. Dehousse (ed.), Europe: The Impossible Status quo (Caroline Morgan trans., 1997), vii–xvii. 24 Germany, Belgium, Italy, Luxemburg and the Netherlands supported a one-text codification: summarised positions of the Member States and the European Parliament, Task Force, 13 June 1996. See also the Report of Reflection Group, White Paper, at 183: “On the scope of the operation to be carried out, all representatives could agree, on a minimal simplification process involving deletion of all obsolete provisions and the renumbering of Articles. Some members do not think it advisable or appropriate to go beyond such simplification, as it seems unlikely that this could be achieved
226 Roland Bieber and Cesla Amarelle been inclined to favour solutions with greater impact (one that would lead to establishing one single treaty), this divergence led to the compromise solution of Amsterdam.25 Finally, the fourth cause of complexity is inaccessibility of European law to the citizens. Acts, preparatory materials and non-binding texts of indirect legal relevance can not always be found easily in the official publications. Acts are frequently amended, but amendments are rarely incorporated into the basic text and up-to-date versions are seldom published. These four causes of complexity represent the fundamental problems of the community system. The impact of each is different—it is easier to solve the problem of the accessibility of documents than to agree on a constitutional definition of integration. Thus, one can hardly imagine that one single simplification operation could be able to reduce the whole complexity of the system. It is therefore necessary to analyse all possible simplification techniques.
2. The techniques of normative grouping Faced with these four origins of complexity, simplification must operate according to and within the normative level and context. From the constitutional point of view, one must take into account the dynamics of the system. The extrapolation of traditional concepts (federal or confederate) causes a useless dramatisation of the debate on simplification. Simplification will have to be achieved through the text and the amendment procedure of the Treaties. To achieve simplification on the legislative level, one must take into consideration the hierarchy and the coherence of the acts to improve the structure. From the administrative point of view, the aim is to unify or at least harmonise the procedures that relate the Union to the Member States. On either level, emphasis has to be put on the implementation of schemes. Primary law On the constitutional level, simplification involves a number of technical operations to group texts to increase their systematic consistency, resulting in a reduction of ambiguities and contradictions while at the same time rendering the text more intelligible. The authors of the Amsterdam Treaty decided that the simplification exercise should remain distinct from the negotiations on substantive modifications of the Treaties. This distinction is made explicit in Declaration 5 relating to Article 10 of the Treaty of Amsterdam annexed to the without altering the substance or balance of the Treaty. However, the majority favours more sweeping options which deliver as a result a simpler Treaty. Those options mean a reform of the structure of the Treaty that only the Conference can decide”. 25 See Reinforcing Political Union and Preparing for Enlargment, COM (96) 90 final. Doc. 596DC0090.
Simplification of European Law 227 Treaty’s Final Act, which specifies that the simplification operations shall not undermine the acquis. Simplification of treaty provisions first appears explicitly as a heading of the second part of the Treaty of Amsterdam (Articles 6–8). The modifications here are formal—as opposed to those (called “substantive amendments”) in the first part of the Treaty. Part One (“substantial modifications”) of the Amsterdam Treaty embraces simplification as well. For example, this part calls for a simplification of the decision-making procedures by simplifying the co-decision procedure and abolishing the cooperation procedure, except with regard to Economic and Monetary Union. The simplification modifications aim at “deleting lapsed provisions of the Treaty and adapting in consequence the text of certain of its provisions”.26 This approach attempts to preserve the de lege lata juridical situation by merely suppressing lapsed provisions rather than rephrasing certain sections.27 In addition, Part Three of the Amsterdam Treaty, entitled “General and Final Provisions”, contains an important clause relating to the renumbering of the articles, titles, and sections of the TEU and the EC Treaty “in accordance with tables of equivalence set out in the Annex to this Treaty, which shall form an integral part thereof” (Article 12). References to articles, titles and sections of these Treaties “shall be adapted in consequence”.28 The Final Act of the Treaty warns that the adapted and renumbered provisions are attached to it “for illustrative purposes” only. Last but not least, Declaration 42 on the consolidation of the Treaties gives the Council the competence to consolidate the Treaties. The method of simplification consisted of three phases: first, the deletion of lapsed provisions, second, the amendment of certain provisions (which continue to exist) and the renumbering of EU and EC Treaties, including the provisions added by Part One of the Amsterdam Treaty, and finally, a consolidation. Such an exercise is never purely technical. It reflects a political intent. Although the IGC suggested that for simplification to make sense the approach must be ambitious, at the same time it has refused to adopt a daring type of simplification: “Generally speaking, delegations wish to carry on the simplification exercise, providing . . . the pillar structure is preserved and that the achievement of the Conference works is not delayed. The simplification exercise . . . must remain distinct from the negotiations on substantive modifications of the treaties”.29 The IGC did not want to proceed with rewriting the Treaties for two reasons.30 First, it did not want to risk undermining the acquis by reopening the discussions on provisions which, in the past, had been subject to difficult 26
See Amsterdam Treaty, Articles 6, 7, 8. In its Explanatory Report on the simplification of Community Treaties, the General Secretariat of the Council points out that “only in exceptional cases, . . . did the Conference see fit to amend certain formulations in the Treaties in order to improve the drafting”. See Explanatory Report from the General Secretariat of the Council on the simplification of the Community Treaties, OJ 1997 No. C 353, p. 1 (hereinafter Explanatory Report). 28 Amsterdam Treaty, Article 12. 29 Dublin European Council of 13 and 14 December 1996, Conclusions of the Presidency, (1996) 12 Bulletin of the European Communities 14. 30 See the Explanatory Report, n. 30 above, at point 1. 27
228 Roland Bieber and Cesla Amarelle negotiations and compromise. Secondly, it expressed the desire to preserve the pillar structure. This induced it to carry out the simplification operation parallel to the substantial revision of the Treaties, and to prefer consolidation to codification. Deletion of “lapsed” provisions The effect of the simplification implemented by the Amsterdam Treaty in the sphere of the EC Treaty has been considerable: more than 50 provisions have disappeared partially or entirely. The EC Treaty provided that the Treaty would come into force during a twelve-year transitiona1 period divided into three phases for establishing the Common Market. This period lapsed in 1969. In most of its provisions regarding the Common Market, the EC Treaty explicitly refers to one or the other phase, or makes provision for standstill clauses. Simplification has consisted of suppressing these invalidated references and updating certain terms.31 Those deadlines had frequently been coupled with legislative objectives to be reached by then.32 Deletion of the relevant articles resulted in the risk of no longer being able to argue a lack of respect for deadlines before the European Court of Justice (ECJ). For this reason, Article 10 of the Treaty makes provision for upholding the status quo ante—repealing or suppressing lapsed provisions, or adapting some articles, does not put their effects into question. In other words, if these provisions could, after their abrogation, have some useful effect (if they contain up-to-date, though expired, obligations to act) this would be maintained by Article 10. Article 10 answers the classic question of the impact of simplification: it confirms the de lege lata operation, which consists neither of developing nor of moving back the acquis. In the same perspective, Article 44 of the EC Treaty has undergone a different type of operation. The Community juridical order is composed of certain general principles derived from specific EC Treaty articles.33 Thus, the concrete appearance of the “Community preference” principle is initially due to Article 44, para. 2, according to which minimal prices during the transitional period shall not be applied so as to form an obstacle to the development of a natural preference between Member States. Although this Article only refers to the common agricultural policy, the ECJ has interpreted this notion of Community preference as representing a general principle of Community law, applicable to the entire European Union system.34 31 To avoid confusion, reference to the suppression of customs duties of quantitative restrictions and of equivalent measures has been replaced by the term of prohibition, which clearly expresses the present situation. See EC Treaty, Articles 3, 12, 37 § 2. See also EC Treaty, Articles 37, 52, 54, 59, 133. 32 See EC Treaty Articles 8B, 8C, 75, 79. 33 An example of a general principal is the principle of financial solidarity. 34 See W. Beus GmbH & Co v. Hauptzollamt München, Case 5/67, [1968] ECR 83. But see Unifruit Hellas v. Commission, Case 489/93, [1994] ECR II-1201, 1228 (at para. 71).
Simplification of European Law 229 Within the scope of this article, the simplification operation outlined in the Amsterdam Treaty stated that because this article concerned a transitional period expired on 31 December 1969, it was repealed. Since the notion of “natural preference between Member States” contained in this article had served as a starting point for the ECJ to develop a general principle, the IGC has considered it advisable to stress in a declaration that suppressing this reference was not intended to have any repercussion on the Community preference principle.35 This example illustrates the structural impact and the risks of simplification. In other words, even dead branches of a tree may serve a useful purpose. Other simplification techniques Simplification would result from shifting provisions with a non-constitutional impact to a lower level of judicial significance. However, only too scarcely have the respective institutions attempted to achieve simplification by transferring issues from the constitutional level to the level of rules. In fact, the Treaty has overburdened the constitution with institutional details.36 With respect to the Economic and Social Committee (ECOSOC), the Treaty of Amsterdam simplification resulted in a deletion of one paragraph in Article 197, which obliged ECOSOC to establish certain committees. This matter is now autonomously to be decided by ECOSOC itself as is functionally appropriate. Other simplification techniques have been more extensively utilised. For example, simplification allowed corrections to be made; in particular, suppressing references to articles no longer valid.37 Furthermore, other dispositions have been simplified by merging paragraphs that systematically belong together.38 Unfortunately the inconsistent technique of numbering paragraphs of articles has not been abandoned. Therefore, some articles, such as Article 230, do not have numbered paragraphs while others, such as Article 228, do. In addition, thanks to an effort to promote coherence, simplification has allowed for locating and suppressing repetitions. Certain articles have been rephrased in order to avoid repetitions.39 For similar reasons, Protocol 7 to the EC Treaty was repealed because its content had been integrated into the Protocol of 8 April 1967 on privileges and immunities of the EC. Rephrasing could also be very helpful. However, only in exceptional cases has rephrasing been used as a technique for simplification. Article 28 of the EC Treaty is one example. This Article now designates the powers of the Council and Commission in fixing the Common Customs Tariff in a less ambiguous manner. Regretfully, no additional articles have benefitted from such a slimming operation. 35
See Declaration 14 on the repeal of Article 44. See, e.g., EC Treaty, Article 207 (internal organisation of the Council). See EC Treaty, Article 207. See also Article 38 (suppression of “agricultural policy of the Member States”) and article 227 relating to the Åland. 38 EC Treaty, Article 87 (Protocol relating to the original goods and coming from certain countries which benefit from a special treatment for importation in one of the Member States). 39 See EC Treaty Articles 18, 40, 207. 36 37
230 Roland Bieber and Cesla Amarelle Simplification could also be achieved by horizontal codification—integrating scattered short acts into the EC Treaty. One of the major aims of simplification should be the merging of the various Treaties, thus joining the European Union and the European Communities into one single instrument.40 The IGC failed to achieve this objective. Nevertheless, marginal mergers have been made between some texts. For example, parts of the Act concerning elections of representatives of the European Parliament by direct universal suffrage41 have been transferred to the EC Treaty and have been incorporated into their original place, Article 190 of the EC Treaty. The same operation has been used with respect to two articles that were transferred from the 1965 Merger Treaty to the EC Treaty.42 Article 9 of the Amsterdam Treaty brings together the ideas found in the texts relating to unique Community institutions, all of which have been repealed.43 Renumbering is another technique of simplification. All articles of the Treaties have been renumbered into a coherent sequence. Hence, all letter-numbered articles are integrated into the normal order. We learn from the result that the (new) EC Treaty will consist of 314 articles, and the (new) EU Treaty of 53 articles. Establishing a new, consistent and easily intelligible numbering system would bring about major progress in transparency of EU law. If one would have to live with one instrument only, this would even be worth the price of foregoing landmarks like Articles “177”, “235”, “100A” and “30”.44 Weighing all of the respective interests, one soon realises that given the relative changes brought about by the Treaty, preserving article numbers because they are familiar or because we have memorised them is not a plausible argument. However, one needs to get used to a Treaty. Now, at present, the treaty modifications are so frequent that numbering is very likely to change again within a few years. The half-baked reform is likely to create major confusion, since numerous legislative and judicial references continue to use the former numbering of the articles. This will be particularly problematic for national administrations and judges who will not always have the synopsis of former and new numbers at hand. As another method of simplification, the constituent Treaties could be subject to an official consolidation. Declaration 42 annexed to the Treaty’s Final Act 40 See Roland Bieber, Simplification of the Union Treaties and the 1996 IGC, study undertaken for the European Parliament (European Parliament, Directorate of Research, Luxembourg 1995), series W-16. 41 See Council Decision 76/787/ECSC, EEC, Euratom, OJ 1976 No. L 278, pp. 1, 5. 42 EC Treaty, Article 212 (Council’s competence regarding the status of civil servants and other agents of Communities); EC Treaty, Article 218 (Community’s privileges and immunities). EC Treaty, Article 212 is the result of consolidation of Article 24, para. 1 al. 2 of the Merger Treaty in EC Treaty. Moreover, as an economical measure, it has not been considered useful to have a specific legal base appearing for each Community in each of the three Treaties. EC Treaty, Article 218 is the result of incorporation of Article 28, para. 1 of the Merger Treaty into the EC Treaty. See also the consolidation of Article 21 of Protocol on privileges and immunties of communities in Article 3 of Protocol B on the status of the Court of Justice. 43 See convention of 25 March 1957, relating to certain institutions common to the European Communities. See also the Merger Treaty (Treaty establishing a Single Council and a Single Commission of the European Communities, OJ 1967 No. 152, p. 2 (13 July 1967). 44 According to the new numbering system henceforth Articles 234, 308, 95, 28.
Simplification of European Law 231 establishes this notion in primary law and asserts the wish to proceed as quickly as possible with a consolidation of the Treaties, including the TEU. This operation consists of grouping together all texts of a Treaty irrespective of their formal autonomy. By doing so, consolidation offers the readers a definite, complete and coherent text. Yet, according to the declaration, this consolidated version shall not have any legal effect and shall not affect the validity of these different passages.45 The semi-official nature of the resulting text raises the problem of confusion and the lack of legal certainty.46 Consolidation is a technique generally used for technical or administrative texts which often change. Yet, by applying it to Treaties consolidation is misrepresented. Since treaties are of a constitutional nature, they were not meant to be changed frequently. Because they establish the fundamentals of European Union, they must possess legal stability. Thus, the appropriate simplification technique is codification rather than consolidation. Proposals The authority of the fundamental text of any organisation has to be unequivocal: either one admits chaos and learns to live with it or one must face the task of creating a single text. Anything in between, because of its hypocritical character, reduces the organisation’s capacity to generate authority. Although this simplification looks like an editorial “tidying-up” in many ways,47 the above described modifications carry all the signs of a first step towards constitutionalisation. “[T]he IGC was for the first time an opportunity for a wide debate on simplification and codification of treaties . . . The path of codification remains open”.48 Yet, given the extent of the task, negotiators could have carried out a merger of the Treaties and codification while respecting the structure of the pillars which raise so many political problems. Instead, the IGC proposed an incomplete simplification and a consolidation. Even though this work is confined to the law as it stands, the result remains unsatisfactory. An easier way to simplify the Treaties would have consisted of a revision that was bold enough to touch upon the seemingly sacrosanct acquis. Such an operation would modify the provisions completely and would make the old act disappear for the sake of a new one. Hence, the task of carrying out a 45 See Edinburgh European Council, 11 and 12 December 1992, “Conclusions of the Presidency”, (1992) 12 Bulletin of the European Communities 21. 46 Consolidation must not be mistaken for codification—of an official nature. As regards constitutional law, see Roland Bieber, Constitutional Law of the European Union (1996); see also European Union, Selected Instruments taken from the Treaties (Office for Official Publications of the European Communities, European Union 1995), at 4 (the office indicates that “the collection has been prepared for documentation purposes and does not involve the responsibility of the institutions”). 47 Jan Wouters considers to that effect that “this may all just be the pruning of deadwood”: Jan Wouters, “Parts Two and Three”, (1997) 4 Maastricht Journal of European and Comparative Law 328, 331. 48 Jean-Paul Jacqué, “La simplification et la consolidation des traités”, (1997) 33 Revue trimestrielle de droit européen 903, 913.
232 Roland Bieber and Cesla Amarelle substantial49 revision and reorganisation of the fundamental acts remains on the agenda. Given its importance, such a revision would require convening a new IGC. Still, such an operation appears to be necessary in light of the importance of transparency. In primary law, this procedure would provide the advantage of resulting in a profound systematisation of law, which would facilitate comprehension of the integration law and its dynamics. It would have to be based on an objective analysis and be combined with its logical extension from the substantive point of view (suppressing lapsed articles, as well as rephrasing of the Preamble in a more motivating language and separating the provisions applicable to the institutions from those which govern the policies, etc.).50 Such an operation should at the same time accord with history and the dynamics of integration in order to provide a better “fit” and better prepare for the reforms to come. Gathering the different texts into one corpus turns them away from their historical particularity, but, at the same time, prevents them from turning yellow. There must be an agreement on the extent and content of simplification before the process can take place. Unfortunately, the parties could not come to such an agreement. The rift between those who wanted to enhance the EU powers, those who were afraid of the inherent risk of destruction, and those who simply preferred the status quo the most was too deep. This refusal to make a choice is further motivated by the fear of a public inclined to reopen the debate about the entire Treaty. Codification would result in a ratification procedure of the entire codified Treaty, whereas ratification of the Amsterdam Treaty affected only some articles of the existing Treaties. Consequently, a failure to achieve ratification of the Amsterdam Treaty would pose no threat to the legal foundations of the Union. It is contradictory to wish to answer the citizens’ needs for more transparency while implementing a Treaty merger which is mere window-dressing. The aims and the nature of the integration process itself also require a political commitment to the legal instruments that create such an end. Nonetheless, a solution limited to the “technical” aspects of the operation could nevertheless turn out to be useful to get things moving again. Secondary law—towards “good legislation” Efforts aiming at simplifying and consolidating constitutional law were preceded by and, to a certain extent, made in response to similar activities in secondary law. As with the Treaties, EC legislation has major shortcomings in quality and accessibility which have increasingly led to demands for simplification. These shortcomings are, however, not identical to those necessitating 49 See e.g. Council Regulation 2913/92/EEC of 12 October 1992 establishing the Community Customs Code, OJ 1992 No. L 302, p. 1, White Paper, n. 6 above, at p. 213. 50 See Parliament Resolution on the functioning of the Treaty on European Union with a view to the 1996 IGC—Implementation and development of the Union, OJ 1995 No. C 151, p. 56.
Simplification of European Law 233 Treaty reforms. Secondary law suffers in particular from frequent modifications, redundancies and contradictions between the acts. Contrary to the Treaties, the remedies here are mostly in the hands of the EC institutions themselves. In secondary law, a variety of competing simplification techniques might be used. These are “consolidation”,51 “codification”, and “refonte”.52 The purpose of consolidation is to present similar text in one document that has no independent legal value.53 In contrast, codification results in a merger of previously separate legal instruments into a single legal document. This method consists of adopting an official legislative act of the Community according to the applicable procedures and then repealing all pre-existing texts.54 The one-text document is based either on a main act subsequently modified (vertical codification), or on several acts grouped into one text (horizontal codification). This technique reinforces legal certainty by avoiding confusion between the old and the new texts. “Refonte” is a substantial revision and reorganisation of a series of legal texts referring to one issue. In secondary law, the refonte requires merging the general principles and the important substantive rules into one text and reducing the modalities of application decisions to one procedure. Among the three legislative techniques, refonte is the most significant modification of the previous legal situation. The best known example of refonte is found in the Common Customs Code.55 In 1993, the Commission achieved an important refonte scheme. The project included residence rights, pharmaceuticals, competition, mechanisms of exchange of agricultural products, fishing, structural interventions, transport, and technical controls. Nevertheless, codification has become the most important instrument of simplification—in the last few years, in accordance with a request from the European Council,56 the Commission systematically proposed consolidated57 versions of any Community legislative act that had been amended. This choice reinforced simplification rather than calling it into question. 51 The term of consolidation has progressively replaced the old term of “informative” or “declaratory codification”, the terms used by the Member States. See Guy Isaac, “La codification du droit communautaire”, 13 Revue trimestrielle de droit européen” (1977) 79; Sandra Magnin, La codification en droit communautaire”, 53 L’Actualité Juridique—Droit Administratif (1997) 678. 52 See also the “mise à jour” followed for the social security regulations. For an explanation, see Christian Timmermans, “How can one improve the Quality of Community Legislation?”, (1997) 34 Common Market Law Review 1229. “Refonte” is a French term also used in the Anglo-Saxon doctrine. 53 Consolidation of internal documents (“guides”) quickly became essential within the context of the CAP. 54 See e.g. Council Regulation 3687/91/EEC of 28 November 1991 on the common organisation of the market in fishery products, OJ 1991 No. L 354, p. 1. 55 Council Regulation 2913/92/EEC of 12 October 1992, OJ 1992 No. L 302, p. 1 (establishing the Community Customs Code). This Code is a “refonte” of some 25 regulations or directives of the Council and 75 regulations or directives of the Commission and several hundreds of regulations and directives of modification adopted since 1968. 56 See the Edinburgh European Council, 1l and 12 December 1992, “Conclusions of the Presidency”, (1992) 12 Bulletin of the European Communities 22. 57 Those consolidated texts are publishad in the OJ C-Series.
234 Roland Bieber and Cesla Amarelle In 1974, the Council had already claimed that “for legal clarity and convenience of interested parties, it is desirable to group in a single text those acts of the Council which have been amended several times; whereas, without prejudice to this experiment and the inquiry into other possible methods of consolidation, a real legislative consolidation, involving the repeal of earlier acts should so far as possible be effected”.58 In 1987, the Commission stated that all acts should be codified no later than their tenth amendment.59 Yet, it was only during the Birmingham and Edinburgh European Councils that consolidation and codification received a real boost, due to the increasing sensibility of Member States to the right of access to information and the need for more transparency in the decision-making process. The apparent confusion of the Council in 1974 between the notions of codification and consolidation shows the close relation of these two ideas. Simplification in secondary law requires the following mechanism: the “raw material” is created through consolidation, then a codification is carried out, which can be transformed through refonte if modifications prove to be necessary. The effectiveness of codification depends mainly on the procedure chosen to carry it out. If it is a slow process, codification may become obsolete, since the codified text is likely to become subject to further modifications while the codification is still under way. This problem is amplified by the fact that the codified text must be translated into eleven languages, further delaying its publication. Although codification proposals are only supposed to be of “technical” importance, they frequently give rise to a discussion about the substance of the acts being codified. The questions of which topics should be codified and which procedure should be followed were both settled among the institutions by way of the Interinstitutional Agreement of 20 December 1994, creating an accelerated working method for official codification of legislative texts.60 While this Agreement does not introduce a special codification procedure, it simplifies the implementation of the legislative procedure.61 The Council and the Parliament follow an accelerated procedure, subsequent to the Commission’s proposals. The Commission promises that the proposals will indeed be limited to a mere codification.62 For its part, the Parliament guarantees that only a qualified majority vote of deputies in commission could prevent the adoption of a codifi58 Council Resolution of 26 November 1974, OJ 1975 No. C 20, p. 1 (concerning consolidation of its Acts). 59 See COM (87) 868 60 See the Interinstitutional Agreement of 20 December 1994, modified on 8 November 1995, and on 20 April 1996, OJ 1996 No. C 102, p. 2 (hereinafter the Agreement). This Agreement induced the Parliament to modify its rules of procedure (Article 82), OJ 1994 No. C 61, p. 100. See also European Parliament Resolution on simplification, clarification and codification of Community law, OJ 1989 No. C 158, p. 386. 61 For a history of the search for a special codification procedure, see Sandra Magnin, n. 54 above, at 680. 62 See point 6 of the Agreement, n. 63 above.
Simplification of European Law 235 cation.63 It retains, however, its prerogative to examine acts passed using the codecision procedure.64 The Agreement indicates that the text is selected for codification according to quantitative and qualitative criteria. Consequently, as stated earlier, the Commission must propose the codification of an act no later than its tenth modification. Furthermore, according to the programme which the Community set itself, the Commission must identify the most urgent acts to codify. Despite the Interinstitutional Agreement, codification is still a delicate operation due to the fact that it must meet several requirements, such as the respect for legislative procedures and the criterion of “good legislation”.65 The temptation to proceed with consolidation (because of the difficulties arising through codification) turns out to be detrimental for two reasons. First, it would produce a loss of juridical certainty; secondly, consolidation ignores the connection between the necessity to perform an editorial tidying-up and the necessity to make substantial modifications. This last-mentioned point makes it clear that only a de lege lata codification allows an adequate and safe overview of the text to detect the relevant substantial modifications that have to be made. Preparing a text for codification often highlights deficiencies in the text. Consequently, certain amendments are necessary. The Commission can then put forward proposals and choose appropriately between a refonte project and the presentation of a separate proposal of modification while at the same time maintaining a proposal for codification. In this case, codification, once adopted, will directly incorporate the substantial modification.66 The main disadvantage of the refonte is the risk that the proposed text might provide an opportunity to reopen the debate with regard to the substance of the text. Within the European Parliament and the Council, this problem frequently occurs. To combat this, the Commission has suggested passing an interinstitutional agreement patterning the refonte process after that of codification. The main idea is thus not to start a debate about a refonte procedure but to adopt an accelerated working method by respecting the normal adoption procedure. Examining Community legislation is a large-scale project. The Commission select the acts to codify on the basis of the general principle of good legislation, a classic tool used to control legislative quality. This principle satisfies both 63
Before the modification, only four deputies were sufficient to block the procedure. See Parliament Resolution of 6 May 1994, OJ 1994 No. C 205, p. 514 (on the parency of Community law and the necessity of codifying it). 65 See Christian Timmermans, “How to improve the Quality of Community Legislation: the Viewpoint of the European Commission”, in Alfred. E. Kellermann et al. (eds), Improving the Quality of Legislation in Europe (1997), pp. 39, 45 (“Rules shall not go beyond what is strictly necessary... and be appropriate and proportionate to the objectives to be achieved (subsidiarity and proportionality) and respect the principle of legal certainty (obligations imposed and rights granted shall be clearly defined, the date of entering into force and, where appropriate, of application shall be established without ambiguity; there shall be no retroactivity apart from exceptional circumstances and under strict conditions, coupled with transitional regime when necessary). Other principles might be added”). 66 See para. 8 of the Agreement, n. 63 above. 64
236 Roland Bieber and Cesla Amarelle subsidiarity and proportionality in the area of legislative policy.67 Since 1993, the Commission has determined annually the priorities for an official codification. It has presented several proposals for codification and legislation refonte relating to the internal market. The results varied according to the Council’s perseverance. In fact, codification met with difficulties: out of the fifteen codification projects announced in the 1993 and 1994 programmes, only eight have been formally proposed. The delays were due to legal and language difficulties as well as technical problems.68 Declaration 39 annexed to the Amsterdam Treaty’s Final Act recommends that everything shall be undertaken to accelerate official codification of legislative texts. Nonetheless, as compared to simplification in primary law, simplification in secondary law is more efficient because it is carried out along with substantial modifications.
IV . SIMPLIFICATION AS THE FUNCTIONAL PRINCIPLE OF THE INTERNAL MARKET
1. The techniques considered for a “new approach” The creation of the internal market revealed the importance of the legislative and regulatory framework to the proper functioning of the economy. Implementing the internal market has caused a strong increase in the number of legal provisions adopted by the Community in order to suppress the technical and administrative obstacles to the free movement of persons, goods and capital. As a result, between 1985 and 1992, the Community adopted 300 provisions. Most legal acts resulted in a substantial deregulation of national law, in areas relating to the intra-community relationships. This deregulation eliminated protectionist elements that are incompatible with the objectives of the Treaty from national law and national administrative practice. Deregulation of national law did not simply increase the number of corresponding acts on the Community level. It also resulted in a simplification of Community legislation. In fact, since 1985, the Council and the Commission opted for a new approach to harmonisation of national law.69 This new approach, which was taken up later in the Commission’s White Paper on the completion of the internal market,70 stipulates that the Council should limit itself to defining the essential objectives and requirements while leaving techni67 The rules must answer a series of tests: Subsidiarity and Proportionality test (adequacy of the Community level to the effectiveness of the action); Effectiveness test (added value of Community action); Proportionality test (whether there are any useless details or a more flexible judicial instrument is necessary). 68 For a state of play on codification since the Edinburgh European Council, see White Paper, n. 6 above, at p. 341. 69 See Council Resolution of 7 May 1985, OJ 1985 No. C 136, p. 1 (on a “new approach to Technical Harmonization and Standards”). 70 Completing the Internal Market, White Paper from the Commission to the European Council, COM (85) 310 final, reprinted in 1992; Roland Bieber et al. (eds), One European Market? (1988), p. 387.
Simplification of European Law 237 cal and executive matters to the proper institution. The task of defining technical specifications should be entrusted to private standardisation bodies, preferably on a European level, such as the Comité Européen de la Normalisation. Hence, the achievement of the internal market is closely connected to legislative simplification defined as a reduction in normative density. Yet, this flow of normative emission, quite exceptional for such a short time period, caused a reaction against the “Brussels bureaucracy” and against a Europe considered to be too interventionist. In 1992, the concept of subsidiarity was introduced by the TEU into the EC Treaty. It offered a symbolic barrier against all overactive European legislation.71 The combined effect of the “new approach” and of the test of subsidiarity made compulsory by Article 3B of the EC Treaty generated new, lighter and simpler EC legislation. While simplicity was seen before as an element of good legislation, legislative efficiency and transparency, it acquired a new and quite different quality in the Single Market context. It came to represent the concept of legislative self-restraint. Although conceptually different, in practice the means to achieve this type of non-interventionist simplicity were similar to consolidation and codification.72 However, while subsidiarity concerned the substance of legislation consolidation and codification mainly dealt with its formal aspects. Self-restraint with respect to past and future legislation raises major political controversies about the areas and the scope of such an operation since it reduces the protection offered by public authority to the individual actors in the market while offering greater leeway to others. It is therefore not surprising that the European Parliament strongly criticised certain aspects of this type of simplification.73 In 1993, the European Council not only requested legislative self-restraint but invited the Commission to examine existing legislation in the light of its results. The Commission convened a group of seventeen independent experts with a mandate to examine the impact of Community and national legislation on 71 See also Communication of 27 October1992 on the subsidiarity principle which clarifies the concepts and puts forward the guiding lines which have inspired the whole approuch. See also Parliament Resolution on democracy, transparency and subsidiarity and the Interinstitutional Agreement on procedures for implementing the principle of subsidiarity, OJ 1993 No. C 329, p. 132; Protocol No. 7 on the application of the principles of subsidiarity and proportionality. 72 Among the first and most important ones, see Sutherland Report (The Intemal Market after 1992: Taking up the Challenge, established on 26 October 1992 by a working group chaired by Mr. P. Sutherland, former member of the Commission, COM (93) 430 final). The Report put forward 38 recommendations (meant for settling the functioning problems), such as “a better communication, consistency and transparency of the texts”. This suggests that first consultations should take place at the stage of the working-out of legislative texts and secondly, a larger clarity of the provisions modified on several occasions obliges a more thorough commitment to a codification policy. The transposition measures of the directives must be subject to a similar effort. All informal juridical help from the Commission services to the Member States must also be planned, in order to perform this transposition successfully. Moreover, the difficulties to face are so considerable that the Community must consider a legislative approach where a regulation would replace a directive after some years. For a complete list, see Christian Timmermams, n. 55 above, at 1230. 73 See Resolution of the European Parliament on the application of the subsidiarity principle, OJ 1997 No. C 167, p. 34.
238 Roland Bieber and Cesla Amarelle employment and competitiveness, with a view to both lightening and simplifying the law. Groupe Molitor (“The Group”) was presided over by Mr. B. Molitor, former Director of the Commission. The Group presented its report in 1995.74 The report contains an interpretation of the notion of simplification that goes beyond the aim of transparency of EC law since it is focused on national law as well as on the role of the markets. The reduction of normative action aims at reducing intervention of public authorities—both European and Member States—as providers of services, for the sake of individual liberty. In the Preface, the report announces that it aims to create a deeply rooted simplification culture by eliminating useless legal and regulatory burdens for enterprises.75 The report describes simplification as the greatest possible reduction of the constraints with which legislation overburdens competitiveness and employment, while at the same time maximising the advantages of direct intervention by public authorities.76 It also recommends repealing all legislation that has either become obsolete or is made unnecessary when other means become available to reach the same objective. The report presents proposals taken from selected areas of legislation.77 Certain proposals are particularly revealing of the degree of deregulation advocated by the experts. For example, in the field of employment and social policy, it suggests returning the responsibility for social legislation to the Member States, especially with regard to management and labour issues. To assess the relevance of this proposal, one has to consider the difficulties raised by the implementation of social legislation. Among all of the social fields in which the Community has exercised its normative powers, legislative intervention is most systematic in the area of working conditions, or more precisely, in the provisions concerning healthcare and security at work.78 Although on the whole, these directives plan to improve working conditions, the real impact in the various states concerned is still weak. The minimalist transposition of these directives raises a real problem of enforcement of social law.79 In such a context, the implementation of selective measures is difficult to achieve. Deregulation would leave social rules to the discretion of the Member States. This would significantly reduce the chances of social policy harmonisation that may prove necessary as a result of globalisation.
74 See Report of the Group of independent experts in charge of legislative and administrative simplification, COM (95) 288 final (hereinafter Report). 75 See Report, n. 77 above, at iii (point 11). 76 See ibid. at 2. 77 They consist of norms on machines, food hygiene, employment, social policy, environment, SMEs. 78 Commission of the European Communities, European social policy, a way forward for the Union, White Paper, COM (94) 333 final. 79 In the United Kingdom, for example, these directives have not modified anything significant. The United Kingdom has formally sorted out its position with the Community without considering the substantial objectives to be reached.
Simplification of European Law 239 The main criticism of the report lies with its definition of simplification. Deregulation is presented as a logical consequence to simplification.80 However, simplification is a political notion that must reflect the balance between the objectives of the Treaties. The Single European Act and the Treaty on the European Union did introduce such a balance between, for example, enhancing growth and improving living conditions. The concern about the functioning of the Internal Market cannot justify a one-sided reduction of standards on the protection of the environment, working conditions, or health and consumer protection without questioning the very principles of the Community’s acquis.81 The report is based on a preconceived idea of simplification insofar as it argues that deregulation would automatically improve employment. Although the group of experts was given the mandate to identify the real obstacles to both the creation of employment and to competitiveness,82 no empirical or scientific evidence has been presented to support this concept. No causal relationship between a particular type of legislation on one hand, and competitiveness and employment on the other has been provided.83 The analysis of the impact of employment legislation makes it apparent that it is the unforeseen legislative modifications and differences between the Member States especially in the field of the movement of goods—rather than social legislation which provokes serious obstacles to employment.
2. A sector-based simplification (SLIM) Parallel to its general deregulation programme the Commission launched a further, albeit more specific, programme for simplification. This programme concerns existing legislation. While the general programme aimed at reducing legislative intervention in the economic process, the specific programme, “SLIM”, is intended to evaluate and to adjust legislation by analysing its aims in light of its results. SLIM was part of an action plan which set priorities in order to finalise the Single Market by 1 January 1998. The SLIM working method was innovative, in the sense that it associated national administrations, the users of legislation 80 See L. Palm, “Organizing a Simplification Programme”, in Alfred. E. Kellermann et al. (eds.) Improving the Quality of Legislation in Europe (1997), p. 159. 81 The Report proposes to transform the acquis concerning water policy, garbage, biotechnology, and the level of worker protection. 82 See Report, n. 77 above, p. 99. 83 In this sense, the Commission for Social Affairs and Employment of the European Parliament mentions disparities, as an example: “[I]n Japan, the labour market is highly regulated, but the unemployment rate is only 3%. Even Great Britain cannot provide evidence that de-regulation stimulates employment. Between the present employment figures and those of 1975, the difference is just 4% in favour of the 1970s, despite important de-regulation projects implemented in this countr1”: EP Report on the Report of the Group of independent experts in charge of legislative and administrative simplification, PE 216.339, 12 June 1996.
240 Roland Bieber and Cesla Amarelle and the Commission with the scrutinising of existing legislation. The first phase of the project, SLIM I, attempted to simplify legislation in four sectors.84 The results are considered satisfactory since two of the four areas affected by SLIM were already subject to agreement by the Council,85 while the other two were subject to proposals from the Commission. Given the success of SLIM I, the second phase of the project, SLIM II, began on 21 May 1997. It concerns four other sectors of the Intemal Market: Value Added Tax obligations, fertilizers, bank legislation and the combined nomenclature used in foreign trade. One must note that, with the SLIM operation, simplification has found an appropriate method to transform some problematic legislation into a more simple and thus more effective format. The systematic scrutiny of legislation is another method for detecting inadequate implementation in national law that may, in turn, result from defective EC legislation. All in all, the sector based simplification—which is nothing else than a permanent control of efficiency of legal instruments—appears to be the most appropriate method of simplification providing the most objective parameter for an evaluation of EC legislation. Simplification in this context is not an aim in itself but a possible result.
V . CONCLUSIONS
Since the Treaty of Amsterdam, the notion of simplification has become part of the official European terminology. This term refers to an operation which concerns the founding Treaties of the European Community/European Union. It can also be used, however, in the context of EC secondary legislation. The coincidence of four factors propelled this concept to the centre of interest of European law-makers. These are the predominance of law in the European context, the adversity and obscurity of European constitutional law, the questioning of normative intervention in the market, and the wish to improve the effectiveness of the legislation. First, the European Union has been achieving its aims with the help of legislation. Since coming into being, the Community’s legislative output has been considerable. Many amendments to existing legislation have been adopted. An increasingly complex system of norms resulted from this legislative activity. Simplification is seen as a means of achieving transparency and coherence, while 84 INTRASTAT (system for collecting commercial intracommumity statistics), building products, diploma recognition and ornamental plants. 85 They consist of INTRASTAT and of diploma recognition. For INTRASTAT, see Commission Proposals for a European Parliament and Council Regulation (CE) amending Council Regulation 330/91/EEC (on the statistics relating to the trading of goods between Member States), OJ 1997 No. C 203, p. 10. For diploma recognition, see Commission Proposal for a European Parliament and Council Directive, OJ 1998 No. C 28, p. 1 (modifying several directives on the subject). See also J. Heimann, “Simplification in Statistics: The INTRASTAT Case”, in Alfred E. Kellermann et al. (eds.) Improving the Quality of Legislation in Europe (1997), p. 171.
Simplification of European Law 241 increasing the efficiency of the legal system. Secondly, the founding Treaties have been amended in an unsystematic manner, creating a multitude of acts, which, taken together, can be considered as the constitution of the Union. However, the opacity of acts makes this constitutional quality difficult for EU citizens to discern. Simplification in this respect aims at giving the EU constitution more visibility. Thirdly, during the past few years the intensity of normative intervention in the market has been questioned. The European Community as a law-maker has come increasingly under pressure to examine critically its existing legislation with the aim of cutting back its normative activities. Such requests are frequently made in the name of simplification. Finally, simplification seeks to provide an examination of EC legislation ex post, hoping to adjust legislation so that it can better reach its intended goals. These four aspects of simplification of European law correspond to the multiple facets resulting from the ambiguous nature of simplification. Simplification may be the result of legislative fine-tuning. In this case a more elegant and subtle legislation would result; one that is better adjusted to the objectives. If, however, simplification is achieved only because the legislator, for political reasons, withdraws from trying to control and to balance economic forces, the result is most likely to be primitive legislation which leaves stimulation of individual or collective behaviour to the forces of the market. If transparency and consistency in a legal system are the aim, simplification of constitutions must operate with particular sophistication so that the inherent potential of complex texts is not lost. Simplicity can be intrinsically valuable to a legal order such as the European Union, provided that it is not achieved by sacrificing values of a higher rank.
14
Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences GUNTHER TEUBNER
I . LEGAL TRANSPLANT : A MISLEADING METAPHOR
Good faith is irritating British law. Recently, the (in)famous European Consumer Protection Directive 19941 transplanted the Continental principle of bona fides directly into the body of British contract law where it has caused a great deal of irritation. A contractual term is unfair if “contrary to the requirement of good faith, it causes significant imbalances in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”. The infecting virus had already earlier found inroads into the common law of contracts, especially in the USA where the Uniform Commercial Code and the Restatement (Second) of Contracts provide for a requirement of good faith in the performance and enforcement of contracts.2 British Courts have energetically rejected this doctrine on several occasions, treating it like a contagious disease of alien origin, as “inherently repugnant to the adversarial position of the parties” and as “unworkable in practice”.3 But they are now at a loss how to deal with the EU Directive; and there is more to come extending good faith well beyond consumer protection. Article 1.106 of the Principles of European Contract Law states: “(1) In exercising his rights and performing his duties each party must act in accordance with good faith and fair dealing. (2) The parties may not exclude or limit this duty”.
* For critical comments I would like to thank Hugh Collins, Sean Smith and David Soskice. 1 Regulation 4 of the Unfair Terms in Consumer Contracts Regulations, SI 1994 No. 3159, implementing the EU Directive on Unfair Terms in Consumer Contracts, Council Directive 93/13/EEC of 5 April 1993 (OJ 1993 No. L95, p. 29). 2 Uniform Commercial Code, s. 1-203; Restatement (Second) of Contracts, s. 205. 3 Walford v. Miles [1992] 1 All ER 453, at 460–461.
244 Gunther Teubner Finally, in international commercial law, good faith is playing an increasingly important role.4 Some academic commentators have expressed deep worries: “Good faith could well work practical mischief if ruthlessly implanted in our system of law”.5 Others have welcomed good faith as a healthy infusion of communitarian values, hoping that it will cure the ills of contractual formalism and interact productively with other substantive elements in British contract law.6 The whole debate is shaped by the powerful metaphor of the “legal transplant”. Will good faith, once transplanted, be rejected by an immune reaction of the corpus iuris britannicum? Or will it function as a successful transplant interacting productively with other elements of the legal organism? Repulsion or interaction? In my view, this is a false dichotomy because the underlying metaphor of legal transplants, suggestive as it is, is in itself misleading. I think “legal irritant” expresses things better than “legal transplant”. To be sure, transplant makes sense insofar as it describes legal import/export in organismic, not in machinistic, terms. Legal institutions cannot be easily moved from one context to the other, like the “transfer” of a part from one machine into the other.7 They need careful implantation and cultivation in the new environment. But “transplant” creates the wrong impression that after a difficult surgical operation the transferred material will remain identical with itself playing its old role in the new organism. Accordingly, it comes down to the narrow alternative: repulsion or integration. However, when a foreign rule is imposed on a domestic culture, I submit, something else is happening. It is not transplanted into another organism, rather it works as a fundamental irritation which triggers a whole series of new and unexpected events. It irritates, of course, the minds and emotions of tradition-bound lawyers; but in a deeper sense—and this is the core of my thesis—it irritates law’s “binding arrangements”. It is an outside noise which creates wild perturbations in the interplay of discourses within these arrangements and forces them to reconstruct internally not only their own rules but to reconstruct from scratch the alien element itself. “Legal irritants” cannot be domesticated, they are not transformed from something alien into something familiar, not adapted to a new cultural context, rather they will 4 On Article 1.7 UNIDROIT Principles of International Commercial Contracts and Article 7 (1) CISG, see Farnsworth, “Good Faith in Contract Performance” in J.Beatson and D.Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon, Oxford, 1995), p. 153; Schlechtriem, “Good Faith” in German Law and International Uniform Laws (Centro di studi e ricerche di diritto comparato e straniero, Roma, no. 24, 1997). 5 M.G. Bridge, “Does Anglo-Canadian Contract Law Need a Doctrine of Good Faith?” (1984) 9 Canadian Business Law Journal 385, 426; similarly R. Goode, The Concept of “Good Faith” in English Law (Centro di studi e ricerche di diritto comparato e straniero, Roma, no. 3, 1992). Sceptical from a comparative law viewpoint A. de Moor, “Common and Civil Law Conceptions of Contract and European Law of Contract: The Case of the Directive on Unfair Terms in Consumer Contracts” (1995) 3 European Review of Private Law 257. 6 Roger Brownsword, “Two Concepts of Good Faith” (1994) 7 Journal of Contract Law 197; Roger Brownsword, “ ‘Good Faith in Contract’ Revisited” (1996) 49 Current Legal Problems 111 . 7 Otto Kahn-Freund, “On Uses and Misuses of Comparative Law” in Kahn-Freund, Selected Writings (Stevens, London, 1978).
How Unifying Law Ends Up in New Divergencies 245 unleash an evolutionary dynamics in which the external rule’s meaning will be reconstructed and the internal context will undergo fundamental change. Thus, the question is not so much whether British contract doctrine will reject or integrate good faith. Rather, it is what kind of transformations of meaning will the term undergo, how will its role differ, once it is reconstructed anew under British law? My guess is that this is not only a matter of reconstructing it from a common law as opposed to a civil law perspective. There is also the crucial difference of “production regimes”. The imperatives of a specific AngloAmerican economic culture as against a specific Continental one will bring about an even more fundamental reconstruction of good faith under the new conditions. This is why I think that in spite of all benign intentions towards an “Ever Closer Union”, attempts at unifying European contract law will result in new cleavages. With this argument I take issue with two fundamental assumptions that are popular today in comparative law. One is the “convergence thesis”.8 In the current movements toward internationalisation, Europeanisation and globalisation, industrial nations are supposed to converge toward similar socioeconomic structures. Consequently, socio-economic convergence makes uniformisation of law as a primary objective to appear simultaneously possible and desirable. The other is “functional equivalence”. While national legal orders are still founded on diverse doctrinal traditions, they face the same structural problems which they have to resolve. Accordingly, they will find different doctrinal solutions as functional equivalents to the same problems which again results in convergence.9 I question these assumptions because they are not aware of ongoing debates in the social sciences on globalisation which make it plausible that the exact opposite of both assumptions is true. From these debates it seems that contemporary trends toward globalisation do not necessarily result in a convergence of social orders and in a uniformisation of law. Rather, new differences 8 Locus classicus is Clark Kerr, Industrialism and Industrial Man (Harvard University Press, Cambridge, Mass., 1960): Global cultural convergence is the result of industrialisation processes. Its juridical resonances can be heard in Basil Markesinis, “Learning from Europe and Learning in Europe” in B. Markesinis (ed), The Gradual Convergence: Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century (Clarendon, Oxford, 1994), p. 30; Gerard-René Groot, “European Education in the 21st Century” in B. de Witte and C. Forder (eds), The Common Law of Europe and the Future of Legal Education (Kluwer, Deventer, 1992), p. 7. They see a convergence of sources of law, procedures, drafting techniques and judicial views. Cf. also Richard Helmholz, “Continental Law and Common Law: Historical Strangers or Companions” (1990) Duke Law Journal 1207. 9 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford University Press, Oxford, 1992), p. 31 n. 16; Marc Ancel, Utilité et méthodes du droit comparé (Ides et Calendes, Neuchatel, 1971), pp. 101–103; M. Ann Glendon, Comparative Legal Traditions (West, St. Paul, 1994), p. 12; Michael Bogdan, Comparative Law (Kluwer, Deventer, 1994), p. 60. Critical: Günter Frankenberg, “Critical Comparisons: Rethinking Comparative Law” (1985) 26 Harvard International Law Journal 411, 438; Jonathan Hill, “Comparative Law, Law Reform and Legal Theory” (1989) 9 Oxford Journal of Legal Studies 101, 106 et seq.; Pierre Legrand, “European Systems Are Not Converging” (1996) 45 International and Comparative Law Quarterly 52, 55; William Ewald, “Comparative Jurisprudence I: What Was It Like to Try a Rat” (1995) 143 University of Pennsylvania Law Review 1889, 1986.
246 Gunther Teubner are produced by globalisation itself.10 These trends lead to a double-fragmentation of world-society into functionally differentiated global sectors and a multiplicity of global cultures. Worse still, they result in a new exclusion of whole segments of the population from the modernising effects.11 Accordingly, different sectors of the globalised society do not face the same problems for their laws to deal with, but highly different ones. The result is not more uniform laws but more fragmented laws as a direct consequence of globalising processes. While there is evidence of such fragmentation at the level of the global society, it is less apparent on the regional level. In Europe, especially, there is a movement towards unification through law. This appears to lend support to the view that there is increasing convergence and functional equivalence of different national solutions. Of course, differences in fragmentation on the global level and the European level are enormous. Nevertheless, I want to take good faith, an important element of the ongoing harmonisation of European contract law, as my test case and put forward the argument that not only globalising tendencies but also the efforts of Europeanisation of national legal orders produce new divergences as their unintended consequences.
II . CONTEXT VERSUS AUTONOMY
In stark contrast to main-stream comparative law, some outsiders have recently developed ambitious theoretical perspectives dealing with legal irritants and at the same time irritating the main-stream. I single out three authors: Pierre Legrand, Alan Watson, and William Ewald. From an anthropologically informed “culturalist” perspective Pierre Legrand stresses the idiosyncracies of diverse legal cultures and irritates the Europeanminded consensus of comparativists with his provocative thesis that European legal systems are not converging.12 Of course, he argues, convergences are 10 Samuel P. Huntington, “The Clash of Civilizations” (1993) 72 Foreign Affairs 22, paints a rather dramatic scenario of global cleavages. More realistic appears a simultaneous increase of both convergence and divergence tendencies as a result of globalisation: Jonathan Friedman, “Being in the World: Globalisation and Localisation” in Mike Featherstone (ed.), Global Culture: Nationalism, Globalisation and Modernity (Sage, London, 1990); Mike Featherstone, “Globalisation, Modernity and the Spatialisation of Social Theory” in Mike Featherstone, Scott Lash and Robert Robertson (eds), Global Modernities (Sage, London, 1995); Robertson, “Glocalisation: Time, Space and HomogeneityHeterogeneity” in ibid. The crucial question is then how to identify conditions of convergence/divergence. The text identifies major conditions of convergence within the legal system and major conditions of divergence in its binding arrangements with other social systems. 11 Surya P. Sinha, “Legal Polycentricity” in H. Petersen and H. Zahle (eds), Legal Polycentricity (Dartmouth, Aldershot, 1995); Niklas Luhmann, “The Paradoxy of Observing Systems” (1995) 31 Cultural Critique 37; Niklas Luhmann, “Inklusion und Exklusion” in H. Berding (ed), Nationales Bewußtsein und kollektive Identität. vol. 2. (Suhrkamp, Frankfurt, 1994). 12 Pierre Legrand (1995a) “Comparatists at Law and the Contrarian Challenge’ (1995) Inaugural Lecture, Tilburg; Pierre Legrand (1995b), ‘Comparative Legal Studies and Commitment to Theory’ (1995) 58 Modern Law Review 262; Pierre Legrand (1997a), ‘Against a European Civil Code’ (1997) 62 Modern Law Review ; Pierre Legrand (1997b), ‘The Impossibility of ‘Legal Transplants’ ” (1997) 4 Maastricht Journal of European and Comparative Law 111.
How Unifying Law Ends Up in New Divergencies 247 observable on the level of legal rules and institutions but the deep structures of law, legal cultures, legal mentalities, legal epistemologies and the unconscious of law as expressed in legal mythologies, remain historically unique and cannot be bridged: “cultures are spiritual creations of their relevant communities, and products of their unique historical experience as distilled and interpreted over centuries by their unique imagination”13
These fundamental differences do not only exist between very distant world cultures, but between the laws of modern industrialised societies as well, and they are particularly strong between the common law and the civil law culture. Accordingly, legal transplants are exposed to the insurmountable differences of cultural organisms; they cannot survive, unchanged, the surgical operation: “Rather, the rule, as it finds itself technically integrated into another legal order, is invested with a culture specific meaning at variance with the earlier one. Accordingly, a crucial element of the ruleness of the rule—its meaning—does not survive the journey from one legal culture to another”.14
This is an exciting perspective which promises new insights from an adventurous journey through deeper and darker areas of comparative law. It is a contemporary reformulation of Montesquieu’s culturalist scepticism against the easy transfer of legal institutions, but with the important modification that the “esprit des lois” is less a reflection of a national culture, but rather, of a specific legal culture. And it radically reconstructs legal transplants anew. This is done not from the author-perspective of the superimposing legal order, but from the view point of the receiving legal culture, which is reading anew, reconstructing, recreating the text of the transplant. “Accordingly, legal transplants are impossible”.15 Promising as it is, this approach is however vulnerable to some important objections. How will it avoid the fatal calamities of any approach to “gesellschaftliche Totalität”, to “totality of society” in which each legal element reflects the whole societal culture and vice versa? How will such an appeal to the totality of cultural meaning, to the ensemble of deep structures of law and to society’s culture tout court be translated into detailed analyses of interaction between law and culture? Legrand’s still rather modest efforts stand in a somewhat strange contrast to the sweeping claims of his general programme.16 Secondly, how will he account for the manifold successful institutional transfers 13
Bhikou Parekh (1994), cited by Pierre Legrand (1995a), n. 12 above, 10. Pierre Legrand (1995a), n. 12 above, n. 33; (1997b), n. 12 above, 119. 15 Legrand (1997b), n. 12 above, 114. The inspirational source is of course Stanley Fish and his reader-response theory, see Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Oxford University Press, Oxford, 1989); Stanley Fish, There’s No such Thing as Free Speech (Oxford University Press, Oxford, 1994). 16 See Pierre Legrand (1995a), n. 12 above, and Pierre Legrand (1996), n. 9 above, for a somewhat “schematic” attempt to sort out the differences between the civil law and the common law culture. The empirical basis for his thesis is not very strong, see Legrand (1997b), n. 12 above, 118 et seq. 14
248 Gunther Teubner among Western societies that have taken place rapidly and smoothly? And thirdly, does his own transfer into legal discourse of anthropological culturalist knowledge, which presumes that legal phenomena are deeply culturally embedded, take into account fragmentation, differentiation, separation, closure of discourses which are so typical of the modern and post-modern experience?17 Does Legrand adequately reflect the double fragmentation of global society which consists not only in polyculturalism which he speaks about but also in deep cleavages between discourses which he tends to neglect?18 In direct contrast to Legrand, the legal historian Alan Watson has an easy way to deal with these three objections. He provides rich historical evidence showing that transferring legal institutions between societies has been an enormous historical success despite the fact that these societies display a bewildering diversity of socio-economic structures. He explains the success of legal transplants by a highly developed autonomy of the modern legal profession.19 He confronts functionalist comparativists with the theoretical argument that convergence of socio-economic structures as well as functional equivalence of legal institutions in fact do not matter at all. Neither does—this is his message to the culturalists—the totality of a society’s culture. These claims are based on three main arguments which deserve closer scrutiny. First, Watson asserts, comparative law should no longer simply study foreign laws but study the interrelations between different legal systems.20 In my view, this argument reflects rightly a major historical shift in the relation between nations and their laws and is apt to reduce inflated culturalist claims. Montesquieu, in his “esprit des lois”, could still maintain that laws are the expression of the spirit of nations, that they are deeply embedded in and unseparable from their geographical peculiarities, their customs and politics. Therefore the transfer of culturally deeply embedded laws from one nation to the other was a “grand hasard”. Today, due to long-term historical processes of differentiation and globalisation, the situation is indeed different. The primary unit is no longer the nation which expresses its unique spirit in a law of its own as a cultural experience which cannot be shared by other nations with different 17 Jean-Francois Lyotard, The Differend: Phrases in Dispute (Manchester University Press, Manchester, 1987) speaks of hermetic closure of discourses; Niklas Luhmann (1995), n. 11 above, sees in the global society a double fragmentation: cultural polycentricity and functional differentiation; Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT, Cambridge, Mass., 1996) identifies within the lifeworld a multiplicity of discourses. 18 Pierre Legrand needs to explain why he sees almost insuperable cleavages between different legal cultures while he negates similar cleavages between legal cultures on the one hand, political, economic, academic, aesthetic cultures on the other (Pierre Legrand (1995a), n. 12 above). Particularly under post-modernist claims which accentuate the fragmentation of diverse discourses (Jean-Francois Lyotard) this position is difficult to defend. 19 Alan Watson, The Evolution of Law (Johns Hopkins University Press, Baltimore, 1985); Alan Watson, “Evolution of Law: Continued” (1987) 5 Law and History Review 537–570; Alan Watson, Legal Transplants, 2nd edn. (University of Georgia, Georgia, 1993); Alan Watson, “Aspects of Reception of Law”, (1996) 44 American Journal of Comparative Law 335. 20 Alan Watson (1993), n. 19 above, 1–21.
How Unifying Law Ends Up in New Divergencies 249 cultural traditions. Rather, national laws—similar to national economies— have become separated from their original comprehensive embeddedness in the culture of a nation. And globalising processes have created one world-wide network of legal communications which downgrades the laws of the nation states to mere regional parts of this network which are in close communication with each other.21 Therefore the transfer of legal institutions is no longer a matter of an interrelation of national societies where the transferred institution carries the whole burden of the original national culture. Rather it is a direct contact between legal orders within one global legal discourse. This explains the frequent and relatively easy transfer of legal institutions from one legal order to the other. However, at the same time their ties to the “life of nations” have not vanished; although having become rather loose, they still exist, but in a different form. And it must be said against Watson in his engaged polemics against mirror-theories of law and society that in spite of all differentiation and all autonomy of law we should not lose sight of the cultural ties of the laws and closely observe what happens to them when laws are de-coupled from their national roots. Secondly, Watson identifies transplants as the main source of legal change.22 The legal profession prefers to imitate and take over rules and principles from foreign legal orders rather than reacting directly to external stimuli from society. Watson traces this to the peculiarities of the legal profession who need to argue from precedent and authority. They prefer to derive their solutions from legal traditions and abhor a creatio ex nihilo. Again, he has a point here. However, the idiosyncrasies of the profession seem to me a secondary phenomenon. It is the inner logic of the legal discourse itself that builds on normative self-reference and recursivity and thus creates a preference for internal transfer within the global legal system as opposed to the difficult new invention of legal rules out of social issues. But once again, this preference of the legal discourse for its own products should not blind the analysis against the fact that usually in case of transplants the law reacts to external pressures that are then expressed in a recourse to foreign legal rules. And if one wants to understand the dynamics of legal transplants one must analyse those external pressures from culture and society carefully. Thirdly, Watson generalises from his historical materials that legal evolution takes place rather insulated from social changes, that it tends to use the technique of “legal borrowing” and can be explained without reference to social, political, or economic factors.23 Again, with the richness of his studies on the history of private law he scores a point against contextualists and culturalists 21 For the debate on globalisation and law, see William Twining, “Globalisation and Legal Theory” (1996) 49 Current Legal Problems 1; G. Teubner (ed.), Global Law Without A State (Dartmouth Gower, Aldershot, 1997); Klaus Röhl and Stefan Magen, “Die Rolle des Rechts im Prozeß der Globalisierung” (1996) 17 Zeitschrift für Rechtssoziologie 1. 22 Alan Watson (1993), n. 19 above, 95. 23 Alan Watson, The Making of the Civil Law (Harvard University Press, Cambridge, Mass., 1981), p. 38.
250 Gunther Teubner who see law as mirroring culture and society. And his findings resonate with sociological theories about cultural evolution which reject a historical trajectory for the whole of society and identify, instead, separate evolutionary paths for different sectors of society, among them law. Indeed, legal transplants seem to be one main source for a specific legal evolution because they create variety of meaning in law. However, here again, Watson has not finished his task. In his polemics against contextualism he over-generalises and is not willing to scrutinise more indirect, more subtle ways of law and society interrelations.24 He makes only one attempt when he describes the legal professional elite as the translator of general culture to legal culture. But here he identifies a surface phenomenon instead of scrutinising the links between the deep structure of different discourses.25 How will he integrate obvious counter-examples of politically induced changes of the law, like the political transformation of American public law in the Revolution, as analysed by Ewald?26 He seems to be obsessed with the somewhat sterile alternative of cultural dependency versus legal insulation, of social context versus legal autonomy, an obsession which he shares, of course, with his opponents.27 The whole debate, it seems to me, needs some conceptual refinement that allows us to analyse institutional transfer in terms different from the simple alternative context versus autonomy. Hopefully, the refinement will not end up in the compromising formula that legal transfers take place in “relative autonomy” . . .
III . BINDING ARRANGEMENTS IN A FRAGMENTED SOCIETY
The impasse of context versus autonomy may be overcome by distinguishing two types of institutional transfer which Otto Kahn-Freund suggested twenty years ago.28 He proposed to distinguish between legal institutions that are culturally deeply embedded and others that are effectively insulated from culture and society. Legal institutions are ordered alongside a spectrum which ranges from the “mechanical” where transfer is relatively easy to the “organic” where transfer is very difficult, if not outright excluded. At the same time Kahn-Freund reformulated drastically the meaning of the “organic”, shifting it from the tra24 This argument is made forcefully by William Ewald, “The American Revolution and the Evolution of Law” (1994) 42 American Journal of Comparative Law 1; William Ewald, “Comparative Jurisprudence II: The Logic of Legal Transplants” (1995) 43 American Journal of Comparative Law 489, in his detailed critique of Alan Watson’s work. 25 Alan Watson (1985), n. 19 above, ch, 5; Alan Watson (1987), n. 19 above, 568 et seq. 26 William Ewald (1994), n. 24 above, uses historical studies of legal changes in the American Revolution which corroborate roughly Alan Watson’s findings in the field of private law but contradict them directly in the field of public law. See also J.W.F. Allison, A Continental Distinction in the Common Law (Oxford University Press, Oxford, 1996), p. 14, questioning Watson’s empirical evidence. 27 Richard Abel, “Law as Lag: Inertia as a Social Theory of Law” (1982) 80 Michigan Law Review 785–809. 28 Otto Kahn-Freund, n. 7 above, 298 et seq.
How Unifying Law Ends Up in New Divergencies 251 ditional comprehensive social embeddedness of law to a new selective connectivity. Legal institutions are no longer totally intertwined in the whole fabric of society and culture, their primary interdependency is concentrated on politics. Thus, institutional transfers of the organic type depend mainly on their interlocking with specific power structures of the societies involved.29 I would like to build on these distinctions—mechanic/organic and comprehensive/selective—modifying them, however, to a certain degree. They provide indeed for the missing link in Watson’s account of autonomous transplants and allow for a more sociologically informed formulation of Legrand’s culturalism. They attempt to grasp what happened to the social ties of law in the great historical transformation from embeddedness to autonomy—something that I would call law’s “binding arrangements”.30 True, Montesquieu’s vision of a total union of law and national culture is no longer adequate for the formalised, technicised, professionalised law of our times which has achieved operational closure in the process of positivisation. But, where something is excluded, it often returns through a back door. Law’s old connections reappear in new disguises in which they are barely discernible. I would like to put forward four theses showing what the new ties of law look like and elaborate on these in the remainder of this chapter: (1) Law’s contemporary ties to society are no longer comprehensive, but are highly selective and vary from loose coupling to tight interwovenness. (2) They are no longer connected to the totality of the social, but to diverse fragments of society. (3) Where, formerly, law was tied to society by its identity with it, ties are now established via difference. (4) They no longer evolve in a joint historical development but in the conflictual interrelation of two or more independent evolutionary trajectories. These four properties of law’s binding arrangements share with a culturalist perspective the assumption that law is intricately interwoven with culture, but they differ when it comes to high selectivity of the bonds which excludes any talk about the “totality of society”. They share with an autonomist perspective the assumption that it is naive to speak of law mirroring society, but they differ in their assessment of legal autonomy. Greater autonomy does not mean greater independence of law, rather a greater degree of interdependence with specific discourses in society. What do these four properties of the new ties of law and society imply for the transfer of legal institutions? In particular, how will the transfer of Continental good faith to British law be influenced by these selective bonds?
29
Ibid., 303 et seq. For this concept see Gunther Teubner, “The Two Faces of Janus: Rethinking Legal Pluralism” (1992) 13 Cardozo Law Review 1443. 30
252 Gunther Teubner
IV . TIGHT AND LOOSE COUPLING
The new ties are highly selective. Since contemporary legal rule production is institutionally separate from cultural norm production, large areas of law are only in loose, non-systematic contact with social processes. It is only on the ad hoc basis of legal “cases” that they are confronted with social conflicts. They reconstruct them internally as “cases” deciding them via the reformulation of pre-existing rules. However, as opposed to these spaces of loose coupling there are areas where legal and social processes are tightly coupled. Here, legal rules are formulated in ultracyclical processes between law and other social discourses which bind them closely together while maintaining at the same time their separation and mutual closure.31 Various formal organisations and processes of standardisation as well as references of law to social norms work as extra-legal rule-making machines. They are driven by the inner logics of one specialised social domain and compete with the legislative machinery and the contracting mechanism.32 This difference between loose and tight coupling has implications for the institutional transfer from one legal order to the other. Kahn-Freund’s suggestion that institutional transfer may be of a “mechanic” type or of a more “organic” type makes sense in the light of this difference. While in the loosely coupled areas of law a transfer is comparably easy to accomplish, the resistance to change is high when law is tightly coupled in binding arrangements to other social processes. We should, however, be aware that even in areas of loose coupling, where an institutional transfer is easier to accomplish, this is not as “mechanical” as Kahn-Freund suggested, such as the analogy of changing a carburettor in an engine. William Ewald in his subtle critique of both legal contextualism and legal autonomism makes a forceful argument against a purely mechanic transfer. Even in those situations when the law is rather “technical”, insulated from its social context, legal transfer is not smooth and simple but has to be assimilated to the deep structure of the new law, to the social world constructions that are unique to the different legal cultures.33 Here, in the difference of legal épistémes, in the different styles of legal reasoning, modes of interpretation, views of the social world, Legrand’s culturalist ideas find their legitimate field of application, particularly under contemporary conditions. After the formal 31 For an analysis of ultracyclical processes in law and society see Gunther Teubner, “Autopoiesis and Steering: How Politics Profits from the Normative Surplus of Capital” in R. in t’ Veld et al. (eds), Autopoiesis and Configuration Theory (Kluwer, Dordrecht, 1991). 32 Inger-Johanne Sand, “From the Distinction Between Public Law and Private Law to Legal Categories of Social and Institutional Differentiation in a Pluralistic Legal Context” in Hanne Petersen and Henrik Zahle (eds, Legal Polycentricity: Consequences of Pluralism in Law, (Aldershot, Dartmouth, 1995) p. 85; Gunther Teubner, ibid., p. 134 et seq. 33 William Ewald, n. 9 above, 1943 et seq. For a recent comparative analysis of the deep structure of common law and civil law, see Tim Murphy, The Oldest Social Science? (Clarendon, Oxford, 1997), pp. 81–126.
How Unifying Law Ends Up in New Divergencies 253 transfer, the rule may look the same but actually it has changed with its assimilation into the new network of legal distinctions. In such situations, the transfer is exposed to the differences of episode linkages that are at the root of different legal world constructions.34 Legal cultures differ particularly in the way in which they interconnect their episodes of conflict solution. Here, the great historical divide between common law and civil law culture still has an important role to play. Returning to our example, the famous bona fides principle is clearly one of the unique expressions of Continental legal culture. The specific way in which Continental lawyers deal with such a “general clause” is abstract, open-ended, principle-oriented, but at the same time strongly systematised and dogmatised. This is clearly at odds with the more rule-oriented, technical, concrete, but loosely systematised British style of legal reasoning, especially when it comes to the interpretation of statutes. Does then the inclusion of such a broad principle in a British statute also imply that British lawyers are now supposed to “concretise” this general clause in the Continental way? Will British judges now “derive” their decisions from this abstract and vague principle moving from the abstract to the concrete via different and carefully distinguished steps of concretisation? Will they reconstruct good faith in a series of abstract well-defined doctrinal constructs, translate it into a system of conditional programmes, apply to it the obscurities of teleological reasoning, and indulge in pseudohistorical interpretation of the motives why good faith had been incorporated into the Euro-Directive? From my impressions of British contract law I would guess that good faith will never be “transplanted” this way. But it will “irritate” British legal culture considerably. Under the permanent influence of Continental noise this culture is undergoing indeed considerable change and is developing a new order of principle-oriented statutory interpretation which is, however, remarkably different from its Continental counterpart. New dissonances from harmonisation! Under present conditions it is inconceivable that British good faith will be the same as Treu und Glauben German style which has been developed in a rather special historical and cultural constellation. Treu und Glauben has been the revolutionising instrument by which the formalistic Civil Code of 1900 has been “materialised” and adapted to the convulsions of Germany’s history in the twentieth century.35 During this time German legal culture developed an intimate “symbiotic relationship” between the new powers that the national constitution and the civil code had given to the judiciary and the old powers 34 See Gunther Teubner, “Episodenverknüpfung” in D. Baecker et al. (eds), Theorie als Passion (Suhrkamp, Frankfurt, 1987); and Gunther Teubner, “How the Law Thinks: Towards a Constructivist Epistemology of Law” (1989) 23 Law and Society Review 727 for the relation of episode linkages to social world constructions of law. 35 For a brilliant account of the materialisation of private law and the role of good faith in this process, see Franz Wieacker, A History of Private Law in Europe: With Particular Reference to Germany (Clarendon Press, Oxford, 1996) chs 27–30.
254 Gunther Teubner invested in the authorities of pandectic legal scholarship.36 The result of this unique type of episode linkage was that the highly ambivalent and open-ended good faith principle which was originally supposed to counteract flexibly on an ad hoc basis the rigidities of formal law, was actually propelled into an incredible degree of conceptual systematisation and abstract dogmatisation.37 The law of good faith as it has been developed through extensive case law is divided into three functions: (1) expansion and establishment of contractual duties (officium iudicis); (2) limitation of contractual rights (praeter legem); (3) transformation of contract (contra legem). The first function which establishes an expansive doctrine of relational contracting is divided into a series of doctrinal constructs: secondary duties of performance, duties of information, of protection, of cooperation. The second function deals with the doctrine of individual and institutional abuse of rights: disloyal acquisition of rights, violations of own duties, lack of legitimate interest, proportionality, contradictory behaviour. The third one expands the judicial power to rewrite contracts in the light of supervening events: imbalance of equivalence, frustration of contractual purpose, fundamental social changes.38 This thorough dogmatic systematisation of good faith, a contradictio in adiectu, was possible only via a mutual reinforcement of judicial and professorial activism. Bold judicial decisions were sanctified under the condition that they obeyed the rigorous requirements of “dogmatisation” and vice versa.The trend continues; in the most recent round, academics criticise the judge-made law on good faith for its free-style argument, they lament that good faith is still lacking sufficient dogmatisation and push for a closer reintegration into the doctrinal system of German private law.39 In Britain, it may well be that “good faith” (together with “legitimate expectation”, “proportionality” and other Continental general clauses) will trigger deep, long-term changes from highly formal rule-focused decision-making in contract law toward a more discretionary principle-based judicial reasoning.40 But it will probably move into a direction quite different from German-style dogmatisation. Given the distinctive British mode of episode linkages, good faith will be developed rather in forms of judicial activism similar to those other common law countries have adopted, combining close fact-oriented case analysis with loosely arranged arguments from broad principles and policies. 36
William Ewald, n. 9 above, p. 2087. For an English language account of good faith in German law, see Werner Ebke and Bettina Steinhauer, “The Doctrine of Good Faith in German Contract Law” in J. Beatson and D. Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon, Oxford, 1995); cf. also Peter Schlechtriem, n. 4 above, 9 et seq. 38 Palandt, Bürgerliches Gesetzbuch, 57th edn. (München, 1997), p. 242; Soergel, Bürgerliches Gesetzbuch, 12th edn. (Kohlhammer, Stuttgart, 1991), p. 242; Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, 13th edn. (Schweitzer, Berlin, 1993), pp. 242, 56. 39 See the attempt of a systematic reintegration of good faith into the Civil Code by J. Schmidt in: Staudinger, ibid., pp. 283–1433. 40 See Jonathan Levitsky, “The Europeanization of the British Legal Style” (1994) 42 American Journal of Comparative Law 347, 368–378. 37
How Unifying Law Ends Up in New Divergencies 255 Lawyers will avoid recourse to elaborate intermediate structures, dogmatic constructs, juridical theories and conceptual systematisation which is so close to the heart of German law. The predictable result will be a judicial doctrine of good faith that is much more “situational” in character.41 “English courts will inevitably prefer to imply more precise terms governing particular aspects of the business relation”.42 As opposed to abstract and general “conditional programmes” and to a series of finely circumscribed doctrinal figures based upon good faith, they will distinguish and elaborate different factual situations of contracting. They will not rely primarily on abstract distinctions developed by legal and economic theory (complete/incomplete, discrete/relational, consumer/commercial), rather begin to typify different “relationships which are of common occurrence”43 (landlord and tenant, doctor and patient, carrier and shipper etc.) and will see the pressures of the factual situations: “Some of this is trade usage in the narrow sense, some of it regards practices common in the situation; some of it concerns the usual players in the situation beyond the particular pair of contracting parties; and some of it connects the particular transactiontype with other institutions, or with other already-applicable rules”.44
On the basis of this type of information English law will develop on an analogical basis new rules coming out of a close analysis of the factual situations involved. And principles will enter the scene which will not be translated into strictly conceptualised and systematised doctrines, but rather appear as loosely organised ad-hoc arguments that do not deny their political-ethical origin.
V . TYING LAW TO SOCIAL FRAGMENTS
Such an exposure to the deep structures of legal culture will take place in any type of institutional transfers, whether they are “mechanic” or “organic” in Kahn-Freund’s sense, or whether they occur in situations of loose coupling or of tight coupling. Tight coupling will, however, pose additional difficulties. Transfers will not only be confronted with the idiosyncrasies of the new legal culture, they will have to face resistance which is external to the law. To identify the sources of resistance one must understand that today law meets its society as a fragmented multiplicity of discourses. Contemporary legal discourse is no longer an expression of society and culture tout court; rather it ties up closely only with some of its areas, only on
41 For such a situational approach to good faith, see Todd Rakoff, “The Implied Terms of Contracts: Of ‘Default Rules’ and ‘Situation Sense’ ” in J. Beatson and D. Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon, Oxford, 1995), pp. 191–228. 42 Hugh Collins, The Law of Contract, 3rd. edn. (Butterworths, London, 1997), p. 271. 43 Liverpool City Council v. Irwin [1977] AC 239; Shell UK Ltd v. Lostock Garage Ltd [1976] 1 WLR 1187, at 1196 et seq. 44 Todd Rakoff, n. 41 above, 221.
256 Gunther Teubner specific occasions and only to different fragments of society.45 Today’s society does not present itself to law as the mystical unity of nation, language, culture and society, as Volksgeist in the sense of Savigny and Herder, but rather as a fractured multitude of social systems which allows accordingly only for discrete linkages with these fragments. Kahn-Freund expressed a similar idea, maintaining that among the many social factors that Montesquieu had made responsible for the esprit des lois, today only certain ones matter. He singled out the political power discourse as law’s primary link to society.46 This is an important insight which must however be modified. Kahn-Freund formulated his account in the early 1970s, and the emphasis on the law’s political connections reflects the all-important political differences of the Cold War, the ever-present heritage of Europe’s political totalitarian regimes, the obsession with political institutions as the almost exclusive expression of society’s relevant conflicts, and the high aspirations for political planning and steering which was prevalent in those days. From the somewhat sobering perspective of the 1990s, this seems to overestimate the importance of the political system at the expense of other social systems. These other sub-systems have by no means lost their importance through a process of socio-economic convergence which would leave us only with differences in institutionalised politics, as Kahn-Freund argued. On the contrary, while political liberal constitutionalism has now become the dominant global norm, differences in respect of other discourses have gained in prominence. This is true especially for the different types of economic regimes under victorious global capitalism. This has implications for institutional transfer. True, some legal institutions are so closely coupled to the political culture of a society that their transfer to another society would require simultaneous profound changes of its political system if they are supposed to work properly in the new environment. This is the reason why Kahn-Freund was highly critical about the import of collective labour law rules from the USA to Britain. He denounced this as a (politically motivated) “misuse” of comparative law.47 But there are other legal institutions—especially in private law—whose ties to politics are rather loose while they are at the same time closely intertwined with economic processes. Others are tightly coupled to technology, to health, science, or culture. It is in their close links to different social worlds that we can see why legal institutions resist transfer in various ways The social discourse to which they are tightly connected will not respond to the signals of legal change. It obeys a different internal logic and responds only to signals of change of a political, economic, technological or cultural nature. Transfer will be effectively excluded without a simultaneous and complementary change in the other social field. 45
For an elaboration of this point, see Gunther Teubner, n. 30 above. Otto Kahn-Freund, n. 7 above, 303 et seq. 47 Ibid., 316 et seq; it is a another question, of course, whether they were ever supposed to work “properly”. 46
How Unifying Law Ends Up in New Divergencies 257 Good faith is a splendid example of this fundamental transformation from law’s comprehensive social embeddedness to a more selective and fractured connectivity. While contract law in general can be adequately described as consisting of “principles of voluntarism superimposed on underlying social patterns and statuses”,48 good faith has always been the element in contract law that directly connects with these patterns. But over time this recourse has taken on different forms co-varying with different forms of social organisation. Historically, bona fides had been contract law’s recourse to social morality.49 Whenever the application of strict formal contract rules led to morally unacceptable results, bona fides was invoked to counteract the formalism of contract law doctrine with a substantive social morality. Contracts were performed in good faith when the participants behaved in accordance with accepted standards of moral behaviour. Under contemporary conditions of moral pluralisation and social fragmentation, good faith cannot play this role any more. There have been attempts to take into account these historical changes and to replace recourse to morality by recourse to the “purpose” of the legal institutions involved. Contracts are performed in good faith when the participants are responsive to the policy of the rules, the telos of their rights, the idées directrices of the institutions, the elements of “ordre public”, the values of the political constitution law within private arrangements.50 This new policy-oriented interpretation of good faith which gained high prominence in this century, especially in the debate about institutional abus des droits, reflected indeed the more selective nature of law’s social ties. It concentrated them on the policies of institutionalised politics. But in a sense it privileged the political ties of law, neglecting ties to other discourses. Formal contractual obligations are not only linked to substantive policy requirements and the ordre public of institutionalised politics, they are equally exposed to substantive demands of other social institutions. Markets and organisations, the professions, the health sector, social security, family, culture, religion—they all impose certain requirements on the “private” contractual relation. Invoking good faith in such situations means making visible how contractual expectations depend upon a variety of noncontractual social expectations, among them (but not exclusively) policy expectations, and their reconstruction within the contract. Unbounded priority of the individual consensus between parties to the contract cannot be insisted upon, whether one is dealing with matters of individual conscience, strict religious prohibitions, political freedoms, regulatory policies or economic institutions. Good faith complements contractual duties with social expectations stemming from those 48
Todd Rakoff, n. 41 above, 221. Franz Wieacker, n. 35 above, ch. 25 III 3; Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts, 4th edn. (1990, Mohr, Tübingen, 1956), pp. 151–152. 50 For a thorough rethinking of German contract law and good faith in such a policy-oriented perspective, see Eike Schmidt and Josef Esser, Schuldrecht, 7th edn. (Mueller, Heidelberg, 1991), p. 1 II, p. 2 II, p. 4 IV. 49
258 Gunther Teubner various fields. Due to its high degree of indeterminacy, the general clause of good faith is particularly suited to link contracts selectively to their unstable social environments with constantly shifting and conflicting requirements.51 It is this selective and fractured linkage of good faith to highly diverse social environments that will be responsible for newly emerging cleavages. If, under European law, good faith is transferred from the Continent to British law and if it is supposed to play also in the new context its role of linking contracts to a variety of different discourses, then it is bound to produce results at great variance with Continental legal orders. Good faith will reproduce in legal form larger differences of the national cultures involved, and it will do so, paradoxically, because it was meant to make their laws more uniform. In the considerations to follow we cannot deal with the many links that good faith establishes toward different discourses. We will concentrate on only one of the links good faith is creating, that is the link of contracts to the production regimes in their economic environment. What happens to the institutional transfer of good faith clauses when they are indeed tightly coupled to the production regimes of the countries involved?
VI . DIVERGENT PRODUCTION REGIMES
Here we are confronted with rather surprising results in comparative political economy which undermine the assumptions of mainstream comparative law about “convergence” and “functional equivalence” mentioned above.52 Against all expectations that globalisation of the markets and computerisation of the economy will lead to a convergence of economic regimes and to a functional equivalence of legal norms in responding to their identical problems, the opposite has turned out to be the case. Against all talk of “regulatory competition” which is supposed to wipe out institutional differences, economic regimes under advanced capitalism have not converged. Instead, new differences have been created, even under the unifying attempts of the European Common Market. Despite liberalisation of the world markets and the legal establishment of the Common Market, the somewhat surprising result of the last thirty years is the establishment of more than one form of advanced capitalism. And the differences in production regimes seem to have increased.53 51 For a reformulation of good faith in contemporary society, see Gunther Teubner, Law as an Autopoietic System (Blackwell, London, 1993) ch. 6 IV, V.; Gunther Teubner, “Die Generalklausel von ‘Treu und Glauben’ ”, in R. Wassermann (ed.), Alternativkommentar zum Bürgerlichen Gesetzbuch. Band 2 (Luchterhand, Neuwied, 1980), pp. 32–91. 52 Michael Porter, The Competitive Advantage of Nations (Macmillan, London, 1990); Michel Albert, Capitalism Against Capitalism (Whurr, London, 1993); David Soskice, “Divergent Production Regimes: Coordinated and Uncoordinated Market Economies in the 1980s and 1990s” in H. Kitschelt et al. (eds), Continuity and Change in Contemporary Capitalism (Cambridge University Press, Cambridge, 1997)p. 271; Colin Crouch and Wolfgang Streeck, Modern Capitalism or Modern Capitalisms (Pinter, London, 1995). 53 David Soskice, n. 52 above
How Unifying Law Ends Up in New Divergencies 259 Production regimes are the institutional environment of economic action. They organise production through markets and market-related institutions, and determine the framework of incentives and constraints or the “rules of the game” by a range of market-related institutions within which economic action is embedded.54 They form a stable configuration of institutions—an interlocking system of financial arrangements, corporate governance, industrial relations, education and training, and inter-company relations, including contracting, networks, technology, standard-setting and dispute resolution. Within these stable configurations, institutions interact in such a way to produce specific outcomes thus creating comparative institutional advantages.55 “Varieties of capitalism” are the result of interlocking systems of economic institutions.56 These configurations differ widely from country to country, even in the European context. As can be expected the strongest divide is between European production regimes (mainly Germany, Sweden, Norway, Switzerland, Austria) and their Anglo-Saxon counterparts (Britain, the USA, Ireland, Canada, Australia, New Zealand). Obviously, this configuration of economic institutions is the place where private law comes into play. Here the principles of good faith play the role of the major binding arrangement between the rules of private law and economic production regimes. If we look at the German context where good faith has been a driving force in contract law, we find that the developments of this legal principle are closely linked to a specific production regime—Rhineland capitalism.57 Here, the judicial requirements of performing a contract in good faith have been deeply influenced by an economic culture which is best described as a “business-coordinated market economy”.58 Economic action is closely coordinated by business associations and by informal business networks. As several studies in comparative political economy have shown in great detail, they are characterised by longterm cooperative relations between companies in the market, between companies and their employees, between companies and their owners and the suppliers of financial capital.59 These regimes give considerable autonomy to employees within the hierarchy of the organisation and to suppliers and deliverers within long-term cooperative networks. This opens opportunities for production 54 J. Rogers Hollingsworth, Comparing Capitalist Economies (Oxford University Press, Oxford, 1993); Aoki, “The Japanese Firm as a System of Attributes: A Survey and Research Agenda” in M. Aoki and R. Dore (eds), The Japanese Firm: Sources of Competitive Strength (Oxford University Press, Oxford, 1994); David Soskice, n. 52 above. 55 Michael Porter, n. 52 above. 56 Peter Hall, “The Political Economy of Europe in an Era of Interdependence” in H. Kitschelt et al. (eds), Continuity and Change in Contemporary Capitalism (Cambridge University Press, Cambridge, forthcoming). 57 See Wolfgang Streeck, “German Capitalism: Does It Exist? Can It Survive?” in C. Crouch and W. Streeck (eds), Modern Capitalism or Modern Capitalisms (Pinter, London, 1995). 58 David Soskice, “German Technology Policy, Innovation and National Institutional Frameworks” (1997) Industry and Innovation 75. 59 See particularly the empirical studies on different economic institutions in P. Hall and D. Soskice (eds), Varieties of Capitalism: The Challenges Facing Contemporary Political Economies (forthcoming).
260 Gunther Teubner prone to long-term cooperation, but creates simultaneously considerable risks that are typical for high autonomy and high trust relations. It is open both to collective hold-up and to the moral hazard which is implied by high monitoring costs.60 In general, it can be said that this production regime has been facilitated and supported by a system of private law in which the courts used particularly the good faith principle to respond legally to the risks and opportunities which the mixture of autonomy and trust produced in the specific production regime. More specifically, the following characteristics of the German production regime find their structural correlates in an extensive series of good faith obligations which have been developed by the courts.61 (1) German corporate governance and corporate finance tend to favour longterm financing of firms. Private law supports this by good faith obligations which the participant owners, companies and banks, owe to each other. Under the umbrella of good faith, not only partners of a business association are under a general duty of mutual loyalty; German law acknowledges a far-reaching obligation upon the owners of capital and other constituencies of the firm to actively further the long-term “company interest” as opposed to their partial self-interest.62 An extensive system of duties of disclosure and provision of information has been developed in the relation between bank and company. (2) Industrial relations within the firm and in the industry are highly cooperative relations in which labour unions play an important part. As a corollary of employees’ high autonomy, the courts have developed extensive good faith duties of loyalty toward the organisation which mitigates the risk of moral hazard inherent in their autonomous position. In turn the law gives them a protected status within the firm. There are equally extensive legal duties of responsibitity and care of managers toward the employees.63 (3) Inter-company relations tend to be cooperative networks with relational long-term contracting, horizontally within markets as well as vertically between different suppliers, producers and distributors. Under the good faith clause, courts have imposed duties of cooperation which are geared toward the common purpose of the contract. In relational contracts they have developed the general duty ex lege to renegotiate contractual terms if a new situation arises. And one of the most important judicial innovations has been to re-introduce the old clausula rebus sic stantibus which the Civil Code had excluded. Judges take the freedom to rewrite contractual terms in case of supervening events.64 60
David Soskice, n. 58 above. The text builds on David Soskice, n. 52 and n. 58 above, and expands his analyses in the direction of private law requirements. 62 See Gunther Teubner, “Company Interest: The Public Interest of the Enterprise ‘in Itself’ ” in Ralf Rogowski and Ton Wilthagen (eds), Reflexive Labour Law (Kluwer, Deventer, 1994). 63 See e.g. Wolfgang Zöllner and Karl-Georg Loritz, Arbeitsrecht, 4th edn. (München, 1986), pp. 12–17. 64 For an overview, see Peter Schlechtriem, n 4. above, 9 et seq. 61
How Unifying Law Ends Up in New Divergencies 261 (4) Business associations and large firms coordinate markets via technical standard setting, business standard contracting and dispute resolution. In support of this self-coordination of industries, courts have recognised and reconstructed multilateral firm relations well beyond the wording of bilateral contracts.65 However, their most important contribution to associational market coordination was to acknowledge standard terms as binding and to regulate them by taking certain interests, particularly that of the consumer, into account.66 (5) Business associations negotiate technical and business standards with government. Other non-economic interest groups, such as consumer associations and ecological movements, favour a “neo-corporatist” culture of mediating economic transactions with their outside world, with political, social and ecological concerns. The courts can build on such a body of negotiated ordre public and reconstruct good faith standards on its basis to counteract excessive economic transactions.67 An implantation of this “living law” into the British soil simply would not find its roots in a corresponding economic culture. The British economic culture, together with the USA, Ireland, Canada, New Zealand, make up a group of relatively unregulated Liberal Market Economies. In contrast to Continental business-coordinated markets, organised business is weak and plays rather a limited role in coordinating the institutional framework.68 Instead, a rather unmediated interplay of market forces on the one side and external governmental regulation on the other takes place. Government, regulatory agencies, quasipublic bodies and the legal system play the major role in rule-setting with the rules typically taking a low-discretionary form. How would good faith duties of cooperation, information, renegotiation, contractual adaptation “fit” into a production regime that is characterised by the following traits?69 (1) financial systems which impose relatively short-term time horizons on companies, but at the same time allow high risk-taking; (2) industrial relations systems in deregulated labour markets which discourage effective employee representation within compamies—hence weak unions, but which facilitate unilateral control by top management; (3) inter-company systems which impose strong competition requirements and hence limits on possible cooperation between companies;70 65 For an extensive treatment see Joachim Gernhuber, Das Schuldverhältnis (Mohr & Siebeck, Tübingen, 1989). 66 Ursula Stein in Soergel, Bürgerliches Gesetzbuch, 12th edn. (Kohlhammer, Stuttgart, 1991), Schuldrecht II, AGB-Gesetz, Einl 3–8. 67 See Gunther Teubner (1980), n. 51 above. 68 David Soskice, n. 52 above; Peter Hall, n. 56 above. 69 For the following see David Soskice, “The Institutional Infrastructure for International Competitiveness: A Comparative Analysis of the UK and Germany” in A.B. Atkinson and R. Brunetta (eds), Economics for the New Europe (Macmillan, London, 1991), p. 45; David Soskice (1997), n. 52 above. 70 David Soskice, n. 52 above.
262 Gunther Teubner (4) a coordination between the economic sector and other sectors of society which is either left to market forces or is exclusively assigned to governmental regulation, in contrast to neo-corporatist style of intermediation which is typical of Continental production regimes. The difference between production regimes is striking. The British economic culture does not appear to be a fertile ground on which Continental bona fide would blossom. Thus, the “legal transplant” approach would lead us to expect repulsion, not interaction. The good faith clause will remain an exotic exception in the British landscape. Alternatively, what is the narrative that emerges from the irritant metaphor?
VII . CO - EVOLVING TRAJECTORIES
Here we have to take a further complication into account: the Janus-like character of law’s binding arrangements. Economic “rules of the game” are not identical with legal rules; economic institutions are different from legal institutions. An economic transaction needs to be distinguished from a legally valid contract, even if they occur at the same instant. The difference in a nutshell is that economic institutions are constraint and incentive structures that influence cost benefit calculations of economic actors, while legal institutions are ensembles of legally valid rules that structure the resolution of conflicts. While being in a relation of tight structural coupling, economic institutions and legal ones are not only analytically but empirically distinct from each other.71 Structural coupling does not create a new identity, rather it binds via a difference—via the difference that distinguishes law from the discourse to which it is bound. Binding arrangements do not create a new unity of law and society, unified socio-legal operations, or common socio-legal structures. While their events happen simultaneously, they remain distinct parts of their specific discourse with a different past and a different future. The only condition for their synchronisation is this: they need to be compatible with each other. Binding arrangements are Janus-headed, they have a legal face and a social face. And unfortunately, the two faces of Janus tend to change their minds in different directions. Now, when in the case of a legal transfer the legal side of the relation is changed, this compatibility of diverse units can no longer be presupposed; it would have to be recreated in the new context which is a difficult and time-consuming process. It would involve a double transformation, a change on both sides of the distinction of the transferred institution, not only the recontextualisation of its legal side within the new network of legal distinctions but also the recontextualisation of its social side in the other discourse. There is no unilateral determination of the direction in which the change of the other side will 71
For details see Gunther Teubner, n. 30 above.
How Unifying Law Ends Up in New Divergencies 263 take place. Their interrelation cannot be described as institutional identity. It is equally wrong to describe it as causal dependency between an independent and a dependent variable, not to speak of a “last instance” relation between economic base and legal superstructure. Rather, it is a symbolic space of compatibility of different meanings which allows for several possible actualisations. A binding arrangement, tying law to a social discourse, does not develop in one single historical trajectory but in two separate and qualitatively different evolutionary paths of the two sides which are re-connected via co-evolution. Their legal side takes part in the evolutionary logic of law while the social side obeys a different logic of development. Their changes, however, interact insofar as due to their close structural coupling they permanently perturb each other and provoke change on the other side. Now it becomes clear why the transferred rule can only serve as an irritation, and never as a transplantation, if a transfer of legal rules is supposed to change a binding arrangement between law and another social discourse. It irritates a co-evolutionary process of separate trajectories. On the legal side of the binding institution, the rule will be recontextualised in the new network of legal distinctions and it may still be recognisable as the original legal rule even if its legal interpretation changes. But on the social side, something very different will take place. The legal impulse, if it is recognised at all, will create perturbations in the other social system and will trigger there some changes governed by the internal logic of this world of meaning. It will be reconstructed in the different language of the social system involved, reformulated in its codes and programmes which leads to a new series of events. This social change in its turn will work back as an irritation to the legal side of the institution thus creating a circular coevolutionary dynamics that comes to a preliminary equilibrium only once both the legal and the social discourse will have evolved relatively stable eigenvalues in their respective sphere. This shows how improbable it is that a legal rule will be succesfully transplanted in a binding arrangement of a different legal context. If it is not rejected outright, either it destroys the binding arrangement or it will result in a dynamics of mutual irritations that alter its identity fundamentally. And good faith?—It will not even be an irritant to the British production regime if it presents itself as a bundle of legal duties of mandatory cooperation, German style, imposed on the parties to a contract. The British regime would react with cool indifference. However—and this is my concluding thesis—good faith will become a strong irritation to the market-driven production regime in Britain if the new context transforms good faith from a facilitative rule into a prohibitive rule. Instead of facilitating autonomy, trust and cooperation, its effect would be to outlaw certain excesses of economic action. Good faith would become a quasi-constitutional constraint on two central elements of the production regime: a constraint on strong hierarchies of private government and a constraint on certain expansionist tendencies of competitive processes. The Continental production regime to which Treu und Glauben responded, as we said, was characterised by high autonomy and high trust relations within
264 Gunther Teubner the market and within the organisations. They carry specific risks and dangers which were mitigated by an elaborate system of legal cooperation duties. The risks and dangers that the British production regime carry are not problems of high autonomy and high trust, but rather the opposite. This production regime is governed by the risks of “financial Fordism” where low-cost standardised production requires detailed work regulation and frequent personnel change, by the dangers of project organisations that manage complex tasks by a strong managerial prerogative, by the steep hierarchy within economic organisation, and asymmetric relations between powerful companies and their dependent satellites.72 The role of the good faith principle cannot conceivably be to transform these tightly coordinated organisations into cooperative arrangements.73 Rather, the task for contract law would be to define quasi-constitutional rights and to protect them against encroachments of private government, to set lowdiscretionary rules that draw clearly-defined legal limits to quasi-administrative discretion.74 The good faith principle would have to develop into judicial constraints on arbitrary decisions of private government. As opposed to activating the communitarian traditions of “duties” of trustful cooperation, the judiciary would have to activate the tradition of constitutional “rights” which have historically been invoked against govermental authority, and reinforce them in the private law context. There is a second re-interpretation of good faith which seems equally relevant in the new production regime. It takes into account the fundamental difference between associational coordination and market-driven coordination in standard-setting—in the broad sense of technical, intra-organisational, and contractual standards. While on the Continent the judiciary frequently refers to neo-corporatist processes of standardisation where negotiations between associations result in a certain mediation of social and political interests with market results,75 standard-setting in Britain is basically driven by market processes. Thus, according to its production regime, British law tends to invalidate standard terms when business associations have been involved unilaterally in the uniformisation of standard terms in the whole market. In George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Ltd the court saw it as an invalidating factor that “a similar limitation of liability was universally embodied in the 72
See David Soskice, n. 52 above. Production regimes are not easy to change by political action. And there is an in-built asymmetry. While it is comparably easy to switch from an association-driven regime to a market-driven regime, just by politically dismantling existing intermediary strcutures, it is infinitely more difficult, time- and energy-consuming to move from market coordination to business coordination by political will. See David Soskice, n. 52 above. 74 So-called horizontal effect of constitutional rights. For a sociological discussion, Philip Selznick, Law, Society and Industrial Justice (Russell Sage, New York, 1969) ch. 7; for an application of basic rights as legal constraints on private government; Hugh Collins, Justice in Dismissal (Oxford, 1992). A recent comparative analysis of horizontal effects of fundamental rights is Andrew Clapham, Human Rights in the Private Sphere (Oxford University Press, Oxford, 1996). 75 BGHZ 102, 41, 51; Ursula Stein in Soergel, Bürgerliches Gesetzbuch, 12th edn. (Kohlhammer, Stuttgart, 1991), pp. 9, 22. 73
How Unifying Law Ends Up in New Divergencies 265 terms of trade between seedsmen and farmers and had been so for many years”.76 Under the British production regime, business associations are not supposed to play a decisive role in the formulation of standard contracts. The courts see it as a market failure when business associations produce uniform standard contracts which exlude competition between diverse contractual regimes.77 This is in striking contrast to the German situation where business associations play a crucial role in the unilateral standardisation of business conditions.78 As a consequence, under German good faith rules it does not make a difference whether the standard contracts had been formulated by one enterprise or by business associations for the whole market.79 Under the British production regime, it is exceptional for standard terms to be bilaterally negotiated by the relevant interest associations to which the courts could then refer as a fair compromise. Standardisation is more or less exclusively left to market mechanisms. In such a situation, it would be disastrous if the judiciary understood good faith as an incorporation of spontaneously developed standards into private law. The law would simply sanction the standard-eroding effects of market-competition and would effectively rule out non-economic political and cultural aspects of standardisation. In such a situation, the role of the judiciary becomes much closer to that of an external political regulatory agency which sets firm boundaries to market dynamics when they work against the fundamental requirements of other social spheres.80 In conjunction with government, regulatory agencies and quasi-public organisations, the judiciary of the British production regime needs to set its own external standards to economic action without having recourse to social norms that have been preformulated in inter-associational negotiations. Thus, the procedural dimension of good faith is profoundly influenced by the difference of production regimes. If good faith means among other things that one party has to take the other party’s legitimate interest into account, and in the case of consumer contracts that standardised contracts must reflect the consumer interest,81 then the central question is what kind of procedures are effectively working to satisfy this requirement. This is, to be sure, a more demanding procedural requirement of good faith than the usual question of absence of pressure and deception. Under an association-driven production regime the courts have to monitor whether the negotiations between different associations and regulatory agencies fulfil the procedural requirement of an adequate and 76
Lord Bridge, [1983] 2 AC 803, [1983] 2 All ER 737, HL. Hugh Collins, n. 42 above, 242. Steven Casper, “German Industrial Associations and the Diffusion of Innovative Economic Organisation”, Discussion Paper FS I 96306 Wissenschaftszentrum Berlin (1996). 79 Ursula Stein in Soergel, Bürgerliches Gestzbuch, 12th edn. (Kohlhammer, Stuttgart, 1991), Schuldrecht II, AGB-Gesetz § 1, 11, pp. 9, 22. 80 Roger Brownsword, “Contract Law, Co-operation and Good Faith: The Movement from Static to Dynamic Market-Individualism” in Simon Deakin and Jonathan Michie (eds), Contracts, Co-operation and Competition (Oxford University Press, Oxford, 1997), p. 255 at 278: MS 21: “the law of consumer contracts must be seen nowadays as a regulatory regime in its own right”. 81 Preamble, para. 16 to the Council Directive, n. 1 above. 77 78
266 Gunther Teubner effective representation of consumer interests in the process of standardisation. Their corrective action would primarily consist in changing the rules of the game and re-defining the property rights of the collective actors involved. Under a market-driven production regime, the courts will have to take a more active approach in order to make sure that standardised contracts fulfil the procedural requirements of good faith. In the absense of associational negotiations they have to rely on a division of labour with regulatory agencies, particularly the Office of Fair Trading and the Trading Standards Departments of local government authorities.82 However, as has been well documented, those procedures seem to have “serious defects”.83 This implies that for the time being the courts themselves would have to carry the main burden of making sure that the procedural requirements of good faith are satisfied. Instead of monitoring a negotiation process, the courts will have to answer themselves the substantive questions involved and decide about how to account for the legitimate interest of the other party to the contract. Such an interpretation of good faith which is oriented to the peculiarities, opportunities, risks and dangers of a specific production regime would indeed result in widely divergent rules in different countries, even in contradictory decisions in apparently equal cases. These cleavages cannot and should not be papered over by the European zeal for harmonisation of laws. If there is a role for the European legal authorities to play, it would be to strengthen the capacity for irritation of the good faith clause instead of neutralising it when they try to enforce its unitarian interpretation. European efforts at harmonisation have not yet seriously taken into account the “varieties of capitalism”, the difference of production regimes. If there is a lesson to learn then it would be a new interpretation of the susidiarity principle, understood no longer only in terms of political decentralisation, rather of respect for the autonomy of social, economic and cultural sectors, devolution of rule-making powers to social groups, and a reinterpretation of conflict of laws no longer in terms of national laws but of different production regimes.84 And maybe the young emerging network of European nations may learn a lesson form the experiences of another, a bit older, federation of nations, the Commonwealth. Recently the Privy Council allowed for the possibility that a House of Lords decision about the general clause of negligence need not to be adapted throughout the Commonwealth if this were not warranted by the
82 See the annual report, Office of Fair Trading, Unfair Contract Terms, Bulletin Issue No. 1 (May 1996). 83 Hugh Beale, “Legislative Control of Fairness: The Directive on Unfair Terms in Consumer Contracts” in J. Beatson and D. Friedmann (eds), Good Faith and Fault in Contract Law (Clarendon, Oxford, 1995); Office of Fair Trading, Trading Malpractices (1990). 84 For a new perspective on European integration in terms of pluralisation, fragmentation utilising the idea of network, see Karl-Heinz Ladeur, “Towards a Legal Theory of Supranationality: The Viability of the Network Concept” (1997) 3 European Law Journal 33; Christian Joerges, The Impact of European Integration on Private Law (1991) European Law Journal 378.
How Unifying Law Ends Up in New Divergencies 267 “general pattern of socio-economic behaviour”.85 This sounds a bit like the diversity of production regimes: a general legal principle allows for a diversity of concrete decisions once it is respecified in different social and economic cultural contexts. This is not a question of Euro-philia or Euro-phobia, rather a question of Euro-paradoxia, the paradox of the unitas multiplex which requests the integrating law against all the rhetorics of an “ever closer union” to pay utmost respect to the autonomy and diversity of European cultures: “Le devoir de répondre à l’appel de la mémoire européenne . . . dicte de respecter la différence, l’idiome, la minorité, la singularité . . . commande de tolérer tout ce qui ne se place pas sous l’autorité de la raison”.86
To summarise our more abstract reflections, attempts at institutional transfer seem to produce a double irritation in the new context. They irritate law’s binding arrangements to society. Foreign rules are irritants not only in relation to the domestic legal discourse itself but also in relation to the social discourse to which law is, under certain circumstances, closely coupled. As legal irritants, they force the specific epistème of domestic law to a reconstruction in the network of its distinctions. As social irritants they provoke the social discourse to which law is closely tied to a reconstruction of its own. Thus, they trigger two different series of events whose interaction leads to an evolutionary dynamics which may find a new equilibrium in the eigenvalues of the discourse involved. The result of such a complex and turbulent process is rarely a convergence of the participating legal orders, rather the creation of new cleavages in the interrelation of operationally closed social discourses.
85
Invercargill City Council v. Hamlin (1994) 3 NZLR 513; [1996] AC 264. Jacques Derrida, L’autre cap (Minuit, Paris, 1991). For such a perspective in contract law, see Hugh Collins, “European Private Law and the Cultural Identities of States” (1995) 3 European Review of Private Law 353. 86
15
Global or Re-nationalised? Past and Future of European Labour Law* SILVANA SCIARRA
I . THE ERA OF RE - NATIONALISATION : LABOUR LAW AS A LEADING EXAMPLE
The main argument brought forward in this chapter is that, notwithstanding the integration of the internal market, national governments and parliaments still have a role to play in establishing a balance between market and social values. Trends in European social policies, especially after Maastricht and the appearance on the scene of the Social Chapter, indicate that harmonisation belongs to the past, whereas differentiation is a diffused current reality and is adding to the construction of an articulate and sophisticated legal order of the future. Whereas the “global” legal system does not express an internal coherence, but simply reflects the complexity of economic transactions in enlarged geographic areas,1 the European one is developing even more distinct characteristics, for reasons inherent to the development of an internal market, governed by common rules, but also due to the peculiarities of its own law-making process. It will be argued in this chapter that this leads to the re-discovery of the “local” against the “global” and it will be done so by taking the example of recent measures adopted under the new Title on employment in the Amsterdam Treaty.2 The convergence of national economic systems towards a supranational market, in view of the adoption of the single currency, has shown the fragmentation of national economic choices, when liberated from the fulfilment of goals which are shared by other countries. It has also revealed how pervasive market rules can be and how deeply they can interfere with national legal traditions. Re-nationalisation of labour law3 may therefore be the appropriate and most * I am very grateful to Miguel Poiares Maduro, formerly research fellow at the EUI and now professor of European and International Law at the Universitade Nova de Lisboa, for his comments on earlier drafts of this chapter and for his invaluable help and suggestions. A partially different version of this chapter appears in Ton Wilthagen (ed.), Advancing Theory in Labour Law and Industrial Relations in a Global Context (Hugo Sinzheimer Institute, Amsterdam, 1998). I wish to thank the editor and the publisher for allowing the publication of this revised version. 1 M.R. Ferrarese, 1998, p. 410. 2 See below. 3 The expression is borrowed from S. Simitis, 1994.
270 Silvana Sciarra natural reaction to economic constraints and to necessitated supranational cooperation, such as the one chosen by most Member States at Maastricht. Re-nationalisation gives back to nation-states the role of first and powerful interpreters of national legal values. Indeed the role of parliaments becomes even more crucial because of the dynamic impulse given to European integration by other actors. National courts, on the one hand, have been following very original paths, either through direct enforcement of Community law, or through interpretation of the same via the ECJ, using Article 177 preliminary ruling procedures.4 Social partners, on the other hand, have been coopted in well-structured and intense procedures, whereby information and consultation are considered essential steps before the adoption of economic and political measures. The heterogeneity of actors involved in the process of European integration puts yet another burden on nation-states: there is a need to establish their legitimacy. First internal to the states, this search for legitimacy crosses national boundaries and is reflected in the wider European legal system. One can argue that a circular movement is set: re-nationalisation—namely the search for new and stronger legitimacy of all institutional and quasi-institutional actors—is an effect of Europeanisation and yet it may be the cause of new dynamism in integration. The readiness shown by most Member States for the setting up of a central bank and the adoption of a single currency is not a sign of weakness. National banks become “agents” of a centralised bank system and, as a result of a political choice, the obligation arises to adapt national legislation to the new reality.5 There is no implication that states, simply because of this new financial and economic order, should resign from the regulation of the market. On the contrary, they remain guardians of their own constitutional principles: solidarity, in particular, is a fundamental principle, equal to freedom and dignity, which should guide parliaments in establishing states’ priorities and in counterbalancing the strengthening of the internal market.6 Whereas globalisation brings about a disorder, which may be disorienting for law-makers, Europeanisation offers a new focus to nation-states and forces them to re-invent their role as regulators.
II . LABOUR LAW IS CHANGING ITS SKIN — NEW THEORIES OR NEW SOURCES ?
Globalisation is a word full of mysteries, hence full of fascination for labour lawyers. A search into its many meanings opens up a field for research so vast as to cause what psychoanalysts have come to describe as the Stendhal syndrome: from the overwhelming effects of new sights and new cultures, travellers 4 5 6
A.-M. Slaughter, A. Stone Sweet, J.Weiler, 1998; S. Sciarra (ed.), forthcoming. J.V. Louis, 1998, p. 47. A. Predieri, 1998, pp. 48–49.
Past and Future of European Labour Law 271 become irreparably ill and excitement is gradually replaced by discontent and suffering. Globalisation could also foster the fear of finding legal analyses totally dominated by the rules of a “geo-economic order” in which very little space is left for social and political themes and to discover that this scenario reflects very closely what at the end of last century and at the beginning of the current one was described as imperialism, a society in which international financial institutions imposed their own order over national economic systems.7 “Individualisation”, as a result of the transition from industrial society to risk society, does not result in a negative implication; it reflects individual and personal biographies, often related to a role covered by institutions such as the labour market or the nuclear family,8 different today from what it was before. This is an issue closely related to globalisation, if we accept the view that all social institutions are undergoing a deep transformation, because of the constant challenges and threats imposed by the world economy. It also appears central to an ongoing debate in labour law, exemplified by the tension between the “individual” and the “collective” which, in a transitional phase, such as the current one, must be adapted to new social and economic needs.9 Individualisation has also been described as the effect of disembedding and then re-embedding people’s ways of living, a process originated in the sixties and proceeded onwards, whereby leaving aside previous traditions and practices meant to conform with the regulations of welfare states.10 Far from abandoning traditions, theories on reflexive modernisation attempt to reinvent them; the answer to globalisation is to justify traditions, because “traditions only persist in so far as they are made available to discursive justification.”11 “Reflexive traditionalisation” is yet another process to look at from the perspective of labour law; traditions are given back to communities rather than to individuals, they become common and shared goods, within the place of work as well as in wider geographical areas.12 Training and craftsmanship, for example, are traditions which create trust and stability, especially when they are the outcome of shared values and become common objectives of management and unions. It is of no surprise that the most coherent proposals which, in recent times, have appeared in the social policies’ agenda of the European 7 See Touraine, 1996, n. 2, p. 126 et seq. This very authoritative analysis exemplifies some of the scepticism legal analysis shares in approaching globalisation. Touraine implies that it is the individual who demands to be put at the centre of social analysis; his identity must be reconstructed taking into account his desire to be free and yet part of his own culture, despite the fact of being at the crossroad of global flows and communication and information. See also Touraine, 1992, mainly at pp. 264–266 and 428–431. 8 Beck, 1994, 15. 9 S. Simitis, 1990, 87 et seq.; Wedderburn, 1994a, 13 et seq. 10 This terminology is used by Giddens, 1990, 63 and Giddens, 1991. An analysis along similar lines is developed by Habermas, 1996, 134 et seq. 11 Giddens, 1991, 105. 12 Lash, 1994, p. 121 and p. 126 in particular.
272 Silvana Sciarra Community13 try to connect unemployment trends with education systems and to inculcate the idea of life-long education as a possible answer to unsettled labour markets and to employment instability. Instability has become a recurring concept for labour lawyers and runs parallel to the notion of risk society, elaborated in social studies as a key concept to understanding modern culture. Labour law was intended to create stability for workers, both in terms of equitable wages and in terms of rights within the workplace; it is now meant to create flexibility, to trade off salaries for the continuation of employment; to invent ways of moving workers across many occupations during their working lives. Globalisation has undoubtedly pushed into this direction; it has forced states into transnational practices and trapped them into so many connections with supranational institutions that they have become less relevant as social actors and often less powerful as legislators. This has been described as the third period of post-modern legal pluralism: the “state as contested terrain” sees the conflict between the local and the transnational, experimenting its inability to intervene and to develop internal pluralism; its regulatory functions “become derivative, a kind of political franchising or subcontracting”.14 The European Union, in particular, fosters a situation in which the tension between political integration and decentralisation of powers is indicative of the dangers caused by possible collisions of different legal traditions but also of the need to find synergism for a more efficient functioning of the internal market. The relevance of a “partial global culture”,15 such as the one developed within the Member States of the European Union, does not need to be demonstrated, since its outcomes are visible and indeed central to current legal discourse. As for labour law, there is a further need to stress that the process of creating a global—albeit partial—legal culture is a very slow and at times contradictory one. The lack of a supranational identity for a legal discipline which is so deeply embedded in national traditions may therefore appear to be coherent with maintaining each country’s cultural peculiarities as undiminished as possible. We could borrow the concept of “reflexive traditionalisation” and so rename in a more inventive way the principle of subsidiarity, central to the interpretation of European law. In so doing, those labour lawyers who are most attentive to the cultural implications of legal transplants would be aware of the risk lurking behind this attitude, namely to weaken the supranational legal system, without strengthening the national ones.16 Because of this danger, legal thinking should be aware of the fact that constraints imposed by a world economy require the construction of legal systems 13 Such as those presented in J. Delors’ White Paper, Growth, Competitiveness and Employment, COM (93) 700 final, 5 December 1993. 14 De Sousa Santos, 1992, n. 2, pp. 133 and 135. 15 De Sousa Santos, 1995, p. 257, who underlines that partial global cultures are the only possible outcome of the capitalist world economy. 16 Simitis, 1994, 641 et seq.
Past and Future of European Labour Law 273 wider than the national ones and yet inspired, as much as possible, by common legal values. This is why the search for national constitutional traditions, well acknowledged by the European Court of Justice over the years, becomes the search for European lawyers’ cultural roots, those which should be giving blood to the flesh of common supranational principles. The constitutionalisation of such principles is the step to be taken in order to govern a complex society, like Europe, in which, “nationalism can be replaced by what one might call constitutional patriotism”.17 Facing globalisation from the perspective of a very significant “partial global culture”, such as the European one, forces labour lawyers to rethink their own identity, either as inherent to a national legal culture, or as a fragment of a supranational legal order, or both. If, as a consequence of globalisation, labour law is changing its skin, theory must be accompanied by such a change. This may imply that labour lawyers— like lizards sitting in the sun—throw away their old skin and generate a new one, by taking fresh views at the subject. Before undergoing this renewal, it is important to prove that what occurs in legal thinking is not an automated reaction imposed by the overwhelming strength of economic and financial institutions. As for lizards, the change of skin should be a natural phenomenon, enabling them to live better and to face the external world with new energies. The European dimension, an important part of developing theories in labour law, is one of the causes behind this transformation; when confronted with theories on globalisation deriving from other disciplines, it helps labour lawyers to re-locate their discipline in a cultural context which does not release its links with nation-states and yet remains a significant part of a global debate. Labour law theories, as they have been developed in Europe from the beginning of this century onwards, have been profoundly influenced by the nature of the legal and non-legal sources to be taken into consideration and—what is most interesting—by a combined use of the same.18 At a European level a similar theoretical manipulation has not yet been completed, due perhaps to the fact that the hierarchy of relevant Community sources is undefined and so is the legal nature of sources, such as collective agreements, particularly relevant in the shaping of labour law theories. The choice to postpone what would have been a major rationalisation of the European legal system as a whole was made at Maastricht19 and it is certainly indicative of the need to allow time and to experiment first with the credibility of a more integrated political entity.
17
Habermas, 1996, 133. It is essential, in this regard, to refer to O. Kahn-Freund’s masterly work. See, in particular, Kahn-Freund, 1983 and 1979. 19 See Declaration No. 16 on the Hierarchy of Community Acts, attached to the Maastricht Treaty. 18
274 Silvana Sciarra As a result of the narrow legal basis provided for labour law issues in the EC Treaty20 and because of the uncertain solutions proposed in the Social Chapter annexed to the Maastricht Treaty, theoretical perspectives have not been too innovative, as if they had been moving on a slippery floor of rights and principles. Parallel to this slow course of theory and practice, a complex netting of guidelines has been reinforced: although they all emanate from European institutions, they are dependent on, and influenced by, strategic decisions taken outside of Europe. The global bearing of unemployment and the impossibility of conceiving of growth for Europe without looking beyond its borders, is the philosophy which inspires the Delors White Paper21—a suitable example to show how global and local economic choices must be jointly redefined and reshaped, using labour law as one among the many available tools. Global and local are the dimensions of labour law when one looks at monetary policies and at their impact on unemployment; constraints on wage and budgetary policies are similarly to be viewed as the effect of macro-economic choices, caused also by the threats of competition in a global market. The development of the Economic and Monetary Union, according to the targets set at Maastricht, is indicative of the way in which labour issues become dependent on and conditioned by strategic choices conceived outside national boundaries.22 The Council recommendations on broad economic guidelines, based on Article 103 of the EU Treaty, were issued regularly every six months and were accompanied by the social partners’ joint opinions. Although they are not binding on governments, nor on the social partners, they are perceived as extremely important political indications of how to combine national economic performances with supranational targets. An even stronger symbolic value is attached to procedural developments, relevant both in economic and political terms, if one looks at the first joint Report issued by the ECOFIN and the Social Affairs Council, at the December 1995 Madrid meeting.23 This is an indication of collaboration going far beyond the mere bureaucratic apparatus of policy-making bodies, displaying the strict dependency of social policies on economic and financial strategies of the Community. Although it can be claimed that this has always been the case, even in past economic contingencies, it is certainly true that the rules of the market have become more and more penetrating, so much so as to influence the function of labour law and to demand the development of new theories. 20
Wedderburn, 1991, 13 et seq.; Davies, 1992, 313 et seq.; Sciarra, 1995a. See n. 13 above. The Ciampi Reports, so called by the chair of an experts’ group set up to reinforce the policy guidelines of the Delors agenda, follow very closely this kind of analysis. See Competitiveness Advisory Group, 1995. 22 Busch, 1995, p. 49; Sciarra, 1995, 64 et seq. 23 Joint Commission Ecofin/Social Council, European Council of Madrid, December 1995. See Agence Europe n. 6619, 4/5 December 1995, p. 10; n. 6620, 6 December 1995, p. 14; n. 6626, 14 December 1995, p. 2. 21
Past and Future of European Labour Law 275 Looking at all recent European developments, we are due to acknowledge the fact that relevant sources for the making of EC labour law emerge from the ongoing political debate, rather than from consolidated legal texts. This is a sign of the weak foundations of social rights and of their dependence on other interrelated policies, all being shaped in areas different from law-making. Global— and even “partial global”—flows of guidelines and procedures necessitate legislative reactions from national legislators and possibly from supranational institutions. Law-making becomes more and more complex, influenced by economic and financial constraints beyond the national ones and carried out by institutions, such as the EC Council and Commission, which must produce supranational cooperation without ignoring the voices of national governments. This has led commentators to describe the EC legal system as an example of partnership or joint administration, rather than as the product of a real separation of powers, whereby EC institutions, through their bureaucracies, have an interest in pervading entire sectors of states’ activities, in order to gain consensus and allow at the same time national administrations to influence centralised law-making strategies.24 In this particular cultural context, hit by the flows of national legal traditions and yet forced by the world economy into a constant confrontation with impelling market demands, a revitalising energy can be found in the constitutionalisation of fundamental social rights at EC level. The image to suggest is that of an harmonious circle: European social rights are nourished by national constitutional traditions and yet re-invented when they reach the stage of positivisation. Not only do labour lawyers have to think in terms of re-interpreting their own constitutional traditions in the light of a new and distinct legal system, but they must do so having in mind that Europeanisation is the outcome of separate open processes and is an open process in itself. Globalisation adds uncertainty to this new order: the larger the geographical scheme of reference, the stronger the danger of impoverishing international guarantees, especially when the scene is occupied by “mixed” international agreements, such as GATT and WTO, accepted by the EC and by its Member States. Still, challenges proposed by globalisation break the barriers of each single discipline and impose a healthy change of perspective. It is here argued that management and labour within the European Union constitute a “political public sphere”25 in itself, bearing strong links with civil society and capable of generating a process of constitutionalisation of social rights; their strongest power resides in their capacity to interact with governments as necessary partners of national political economy and consequently in their entrance into the supranational scene as interest groups embedded in national traditions. 24
Cassese, 1991, p. 487 et seq., p. 496 in particular. This expression is used by Habermas (1995, 304) and is referred to in the debate following the German Constitutional Court Maastricht judgment, on which see Weiler, 1995, 219 et seq. 25
276 Silvana Sciarra
III . THE
“ GLOBAL ”
LABOUR LAWYER TAKES A JOURNEY
ACROSS OLD AND NEW WORLDS
At the beginning of the previous section the image of travellers being hit by an excess of images and cultural stimulation was introduced, to illustrate the effects that the debate on globalisation, wide and multiform as it is, may have on labour lawyers. To prevent the negative effects of this syndrome, it is suggested in the following sections that labour lawyers take a step-by-step approach to globalisation and travel slowly across old and new worlds, both to rediscover old vicinities and to acquire new connections.
1. The world of economics The journey of the “global-to-be” labour lawyer through new lands starts with a visit paid to a neighbouring discipline. The world of economics has always been particularly close to that of labour law: inside or outside an institutionalist theory of industrial relations, seen either as a coherent set of variables or as an unpredictable combination of social, economic and political factors, the two disciplines have nurtured mutual interests. However, communicative difficulties have existed, not for mere semantic reasons, but because of a recurrent lack of shared values and of common objectives. Globalisation forces this controversial dialogue into a closer confrontation: competitiveness of the economic systems within a world-wide frame of reference requires the acknowledgement of differences. Yet a few questions remain to be answered: is competitiveness perceived as an objective by employees; does it bring with it reassuring messages of stability and guarantees; does it conflict with regional if not national traditions? What does labour law gain from competitiveness? or rather what is the scope of labour law in a competitive environment? The world of economics has traditionally been open to influences from other worlds. In particular, the observation of industrial policies and production organisation creates new elements of a complex analysis, leading towards a redefinition of the firm. This is not without relevance for labour law: its whole history matures within the scheme of an organisational unit, often coinciding with the place of work. Breaking up this model implies, among other things, rewriting the basic rules of the game and finding a fresh perspective for the contract of employment. Globalisation means, therefore, the merging together of different methodologies, all becoming part of a combined strategy: post-Fordist ways of production have favoured the outburst of new legal solutions. The result is a hybrid labour law, torn between the old protective function and the new aspiration towards
Past and Future of European Labour Law 277 flexibility. A possible prediction is that globalisation will not favour a coherent result out of this long and difficult change of identity: there will be traces, here and there, of past customs and practices; there will be different needs behind legal rationality; there will be new rights and new obligations within individual and collective labour relations. The French Regulation School26 has analysed the present period of transition, generated by the end of Fordism and composed of elements from the past entangled with new tendencies. The former show the persistence of mass production and of internationalisation through the activities of multinational corporations and banks; the latter reveal, among other emerging new issues, a more individualistic style in industrial relations practices and a more flexible nature of the contract of employment. The most important results of comparative research undergone by the Regulation School show that “each national welfare state is the outcome of deeply embedded compromises and that these compromises were the result of past struggles that shaped social stratification, politics and economic specialisation”.27 One important reason behind the efficiency of markets is the strength of social rules, including social solidarity implemented by welfare states; the dominance of transnational markets threatens the power of nation-states, but does not give rise to a supranational body capable of governing the new order. Globalisation fails to produce a fully integrated world economy; one of its most visible effects is the ever rising number of transnational corporations, deprived however of “democratic accountability” and therefore not reliable for the promotion of growth and stability.28 The lesson to learn for labour law is to use adaptability as a key concept to develop new theories and as an answer to complexity. Social contracts, for example, are not typical outcomes of labour law traditions; they are not comparable to traditional collective bargaining29 and they might even undermine its foundations and transform its natural habitat, reducing the role of industrial conflict to the point of making it superfluous, if not dangerous, for economic stability. Social contracts have, nevertheless, become central to the reduction of public expenditure, for the recovery of national economies from inflation, and for the introduction of moderate wage policies.30 In these developments, 26 Included by Amin and Dietrich (1990, 6 et seq.) in the landscape of new approaches within changing macro-economy. See the authors’ introductory chapter in the book, edited by them. This publication is based on a conference of the European Association of Evolutionary Political Economy, born in 1988 to launch alternative analysis to orthodox neo-classical economics. See Boyer, 1990. 27 Boyer and Drache, 1996, 5. 28 Boyer and Drache, 1996, 7–8. See also Drache’s chapter in the same volume, p. 31, for a criticism of theories on globalisation which deny the role of national markets and for proposals to strengthen national economies in view of stronger stability in the international regime. 29 As was anticipated by Kahn-Freund, 1979, p. 74 and p. 83, it is stressed that one of the new functions of collective bargaining is to protect the workers as consumers, not only as producers and to do so through centralised agreements. 30 For a comparative overview, see Dore, Boyer and Mars, 1994.
278 Silvana Sciarra occurring in Europe as a result of world-wide competition and of more limited economic resources, one can see the betrayal of labour law’s original promises and the desertion of its role as an emancipating discipline in the strengthening of employees’ rights. A different perspective can be proposed, which reflects the current state of affairs in most European legal systems. Adaptability, when applied to social contracts, must not imply dismissing the right to strike, although it may very well suggest that social consensus is a way to achieve stability and, in the long run, to protect employment. Even when the state’s economic credibility is at stake, employees and their representative organisations must remain the only ones entitled to weigh up the sacrifices imposed on them by the market and to evaluate the fairness of the overall exchange with other parties in the negotiation. Labour law’s fundamental principles must remain independent from the market, precisely because in advanced economies they are acknowledged as important guiding forces of the same. This perspective does not solve all problems. Although it might help economies to seek stability, it will not force governments into active policies to fight unemployment. One way of addressing the issue of deindustrialisation—which might indeed question the very essence of labour law in the era of globalisation—is to accentuate structural changes linked to a new division of labour between manufacturing firms and service sector firms.31 When complementarity occurs between goods and services, products can be proposed to markets in which it is important to value specification and differentiation, without losing the wider advantages of mass production. This proposal, supported as it is by empirical evidence, shows yet one more inextricable link keeping together the global and the local. The internationalisation of business services—either complex and large scale, such as financial, legal and commercial services, or more locally oriented, such as those providing flexible specialisation in “industrial districts”—appears central to the globalisation of the world economy, and of parallel importance to the multinationalisation of firms. Its suitability for local and sub-national levels reduces the chances of “regressive flexibility which downgrades jobs in the labour market”32 and favours new social compromises, open to long term plans of action, such as those envisaged in the European Union. One principle, central to the growth of labour law, remains to be addressed in the theoretical debate as well as in the practice of globalisation, and that is the role of collective means of action. Both industrial action and collective bargaining seem to lose their congruity, when eradicated from a local context; they are, by definition, non-global, even when no ideology pushes them to become antiglobal. 31 32
As suggested by Coriat and Petit, 1991, 18 et seq. Coriat and Petit, 1991, 42.
Past and Future of European Labour Law 279 Although parallels with European developments do not always do justice to a wider debate involving world trends, what takes place in the European Union is a confirmation of the difficulties inherent in any mechanical transposition of collective labour law to a supranational level. Yet the relevance of collective confrontations and of active participation of the social partners in the lawmaking process is now established in the European debate and is the most visible result of the Maastricht Social Protocol’s implementation in the years following the coming into force of the EU Treaty.33 The influence of labour law is subtle and can be intuitively learned from the need to use agreements or other forms of accords shown by economists whose theoretical approaches take into account political forces and industrial traditions, together with markets and technologies. Economie des conventions is a perspective as well as a methodology applied to the understanding of production systems.34 Its central idea is that coordination must be pursued between different worlds of production and conventions must be favoured to ascertain the quality of products. Although this may appear an impossible task to achieve in the world market, it is nevertheless the outcome of “global interconnectedness”, which has been shown to reduce the capacity of the nation-states to act powerfully.35 Coordination among agents of production—whether producers, or consumers and producers, or employers and workers36—brings about different outcomes from the ones labour law assigns to collective agreements in relation to individual contracts of employment. It should not, however, seem too adventurous to propose that standardisation of a similar kind to the one achieved through the normative function assigned to collective agreements in some national legal systems can be granted by other kinds of accords, which become binding on economic and political actors. Collective agreements have also shown the way to combine standardisation with differentiation, taking into account regional and local diversities as well as industrial peculiarities in different areas of economic activities. Agreements, developing into other forms of pacts, linking together a multiplicity of parties, leading to political promises and forcing into precise patterns of economic behaviours: this seems to be a way to rediscover collective identities within the global. Rising complexity in economic and productive systems, on one side, and the firm’s loss of centrality on the other, are two indicators of a new function pursued by collective norms. Rather than being limited to a regulatory function inside the firm, they are required to play a wider role, beyond the employeremployee relationship and to include other institutions—such as public bodies, consumers’ associations, regulatory agencies, independent authorities and the 33 34 35 36
Sciarra, 1996b. Salais and Storper, 1992, 169 et seq. Held, 1991, p. 138 and p. 141 in particular. Salais and Storper, 1992, 179.
280 Silvana Sciarra like. This is why the very notion of a binding norm changes, together with the changes required for the sanctions attached to it. Competitiveness is a firm’s philosophy as well as a target for the market: it may function as an incentive for optimal work performances, as long as it is counterbalanced by visible advantages for the employees. Traditional sanctions are therefore substituted by common objectives, such as training schemes, flexible working time arrangements, productivity-related payments. Efficiency in employment relationships must not imply a lowering of the labour salaries, nor an ongoing loss of rights related to the contract of employment.37 The answer to over-simplified analysis is found in interdisciplinary legal-economic research: it proves that competitive strategies must include social costs among their most innovative investment costs.38
2. The world of geography and cultural studies In constructing global theories of labour law the implications of what has been described as “borderless geographies with quite different breaks and boundaries from what went before”39 must be taken into account. A geographical dimension of this kind may seem to add uncertainty to legal analysis, introducing, as it does, a set of unlimited and mutable variables and opening the lawyers’ eyes to concepts which are not inborn. In particular, the concepts of “local” and “global” need to be clarified, in order to establish whether the local is subjugated by global political economy, thus losing its own autonomy, or whether there are ways of maintaining identities and even distinctiveness of the places, so that “local in the local amounts to a recognition of place as both ‘home’ and ‘the world’ ”.40 The relevance of all this to labour law is self-evident: challenging the global from the local means maintaining the specificity of local regulations, be they customs and practices at the place of work, or wider regional and national rules. Territorial “embeddedness”, a notion which has already grown to encompass relevant socio-economic actions,41 may open up even more and include the making—and sometimes the rescuing—of legal norms. Industrial districts are recurrently quoted as an example of geographic and economic self-inclusiveness, and yet of interdependence with the external world, due also to the active and reliable role played by local government and the social partners.42 They are an indication of how cooperation in the social 37
Wedderburn, 1994b. Deakin and Wilkinson, 1994, 289 et seq. 39 Amin and Thrift, 1994, 5. 40 Amin and Thrift, 1994, 9. 41 See the research based on experiences in the City of London and Santa Croce sull’Arno, a Tuscan industrial district, by Amin and Thrift (1992, 571), in which the most interesting outcome is the relevance of institutionalisation within the local area, positively affecting the economy and the actors. 42 Sabel, 1989. 38
Past and Future of European Labour Law 281 field and the provision of business services facilitates the access to international markets.43 Even in recent G7 summits it has been repeatedly indicated that small and medium enterprises, flourishing within industrial districts, must be taken as leading examples of how the global market, rather than being a constraint or a threat for local economies, becomes a further aim to pursue, the final prize to gain for the success of the local economy.44 A flexible and adaptable notion of “local” can be combined with a nonsuffocating notion of “global” if one looks at the location of the firm. The most interesting European development at this regard can be found in Directive 94/45, establishing European Works Councils.45 In the spirit of this document, it is the functioning of the internal market, involving concentrations of undertakings, cross-border mergers, take-overs and joint ventures, which requires the introduction of such new bodies. Competitiveness is, in this particular case, achieved through the recognition of employees’ rights to information and consultation. It remains to be ascertained whether the “Community-scale undertaking” or the “Community-scale group of undertakings”—as in the precise phraseology of the Directive—must be described as “global” or “local”. The qualification of the employer as European, namely operative in two or more Member States, is a pre-condition for the granting of information rights to the employees. It is then for national law and/or practice to establish who the employees’ representatives are, and how they must be selected. Competitiveness appears to be respectful of social norms and to draw its own strength from within national traditions and cultures. “Glocalization” is a neologism which exemplifies the need to explore new concepts, although in economic terms this may not appear so innovative, close as it is to the notion of micromarketing.46 What the labour lawyer wants to explore in this case is the relevance of consumers’ and producers’ traditions in the elaboration of a cultural model which is also respectful of local practices. The enforcement of anti-discrimination legislation at the place of work—to take only one of many possible examples—must not seem irrelevant or remote from the aims of the market. Respect for gender, ethnic or even regional traditions creates a favourable habitat for cultural open-mindedness and shows the relevance of legal rules in establishing cultural cohesion. Similarly, it can be argued that legislation and collective agreements providing for fair and equitable wages are at the same time influenced by the local environment and able to influence it through the establishment of standardised norms. The latter are generated by market trends, but may also reflect the capacity of organised 43
Becattini, 1989. Da Detroit a Lille (passando per Napoli), Roma 1996. Also the Delors White Paper, n. 13 above, stresses the important role of medium and small enterprises, as the ideal working environment in which to experiment flexible labour law and as driving forces of the local economies. 45 Council Directive 94/45/EC of 22 September 1994, OJEC No. L 254/64, 30.9.94. 46 Robertson, 1995, 28. 44
282 Silvana Sciarra labour and management to accomplish more satisfactory results or to adapt wage policies to particular characteristics of local production systems and of the expertise of local workers. Furthermore, different sources of regulations referred to in employment contracts are very relevant. Collective and customary sources reflect traditions in a different way from statutory sources; rights to information and consultation may favour non-conflictual relations and have an impact on the socio-cultural environment outside the place of work; the survival of industrial conflict proves that traditional solidarities and collective forms of action may still be adopted.47 Whether these examples fall within the tradition of “institutionalisation”, according to which “there is a global creation of locality”,48 or whether this is yet a confirmation of “interculturalism”,49 which finds its origins in the early 1960s and brings with it all the important acquisitions of what can be conceived of as an historical epoch, it is clear that the multicultural dimension of globalisation is central to legal discourse and that social traditions, including employment practices and labour law developments, are a significant part of this dimension. The European Union is often referred to as an example of globalisation leading to “both supranational and sub-national regionalism”, and international courts are acknowledged as an element of unification, for they encourage claims from different states or regions and even from individuals.50 Globalisation is not meant to reduce the complexity of legal traditions: both legal practice and more theoretical perspectives bear the heavy weight of fragmentation, which has become a dominant feature of recent developments, even in legal systems in which a high degree of juridification has occurred.51 Analyses taking place in the new worlds visited by the travelling labour lawyer give him a more solid base from which to understand globalisation and to ascertain for himself whether crossing boundaries implies the abandonment of legal cultures or the re-centralisation of the same.52 If a reference needs to be made, once more, to EC legal developments, the impression is that legal culture as such has reacquired centrality in the academic debate, both because of the awareness of national lawyers to maintain their own traditions and because of the necessity to include the supranational dimension in their legal thinking. 47 The examples of strikes occurred in France against the Juppé Government in the winter of 1995 is quoted by Touraine (1996, p. 129) as a national reaction to globalisation, led by sectors of the middle class linked to the public sector, a “leftist nationalism”, demanding the state not to diminish welfare rights. On the French situation see Supiot (1996, 115). Different examples are the ones taken into account by Hadjimichalis (1994, 239) where the emphasis is on territorial mobilisations, involving a variety of social groups. 48 Featherstone and Lash, 1995, 4. 49 Pieterse, 1995, 45 et seq. 50 Pieterse, 1995, 50. 51 Still relevant is the discussion among labour lawyers reported in Teubner, 1987. 52 As it is suggested in more general terms by Featherstone (1995, p. 3) where the implication is that culture, from the periphery of social sciences, has moved to the centre and has facilitated interand transdisciplinary studies. See also ibid., p. 6, where the intention is shown to bring back the issue of complexity to people and groups representing cultures.
Past and Future of European Labour Law 283 Legal culture proudly remains within national boundaries and yet changes because of globalisation; it can be maintained for lawyers, as well as for other social scientists, that “rather than the emergence of a unified global culture there is a strong tendency for the process of globalisation to provide a stage for global differences”.53 How this process will bring about innovation and progressive achievements remains to be seen; the issue at stake in this transition phase is the visibility of culture and its impact on law-making mechanisms. No doubt labour law provides a privileged perspective, linked as it is to civil society and to the needs of organised groups.
3. The world of international relations and international law Globalisation brings about a different perception of inter-state relationships and a stronger pressure for integration. “Transnational economic diplomacy”54 is one visible outcome of this: it leads to the creation of “plural authority” structures, such as the United Nations, the G7 and the EU, and to “new dimensions of interconnectedness”, having to do with technological, organisational, administrative and legal factors, as well as with a greater mobility of people, goods and capital.55 Although this might seem an old panorama, new light is being shed onto the picture, time after time. The abovementioned Delors White Paper argued that the ways out of unemployment are paved with transnational projects, such as the trans-European networks—in transport, energy transport, telecommunications—financed by a combination of private and public funds. Similarly, the outcomes of G7 meetings have stressed the point that global competitiveness is achieved through the transfer of knowledge and through the mobility of people and resources. Openness of the markets must imply openness of the economic actors, including the unions, which are asked to be flexible and not to cultivate prejudicial oppositions to changes. Let us take a more specific example and look at the World Bank as to a paradigm of a global institution. A whole chapter of a recent World Development Report56 was dedicated to unions and to the positive effects they can have on the economy; reading it is like going through the pages of a basic labour law textbook, written with the very clear aim not to offer a dogmatic view of the subject and to include as many approaches as possible. One discovers that a collective voice at plant level may limit the employer’s arbitrary behaviour and that grievance-resolution and arbitration may bring stability into the workplace, thus enhancing productivity. One also learns that legislation establishing the right to join a union allows for more than one union 53 54 55 56
M. Featherstone, 1995, p. 13. Amin and Thrift, 1994, 4. Held, 1991, 145. World Bank, 1995, p. 79.
284 Silvana Sciarra to be active and therefore forces them to maintain qualitatively very high services, in order not to lose membership. The latter point is presented as being consequential to the pressures of competitive markets; when unions are limited in obtaining higher wages, they must offer better services to their members. Furthermore, the negative right to join a union is presented as a way of exerting discipline on the union labour market and on the unions’ monopolistic behaviour, useful in economic terms to keep monopolistic wage practices under control. Even more important is to ascertain that competitive markets temper wage increases at plant level, thus establishing the need for strong guarantees on union rights. This selection of labour law topoi is like a small gallery of treasures: efficiency and equity are the two most precious objects kept in it. The combination of both would immensely increment their value. But, would a stronger emphasis on one of them diminish or nullify the value of the other? Is efficiency at all similar to equity? Although the former is a value in economic terms, the latter is a fundamental principle; if labour lawyers had to make a “tragic choice”, what would they do? In a labour law perspective, the necessity to reach compromises and to trade off established legal solutions, because of the pressures exerted by globalised markets, may cause distortions in ongoing legal traditions and have an ultimately destabilising effect on industrial relations. Equity will have to take into account efficiency, whereas the contrary might not be such an easy target. A developing labour law theory must include fundamental social rights among the guiding principles of a global legal order; their capacity to be functional also in terms of efficiency is a question of adaptability at various levels of decision-making and also within different legal cultures. This perspective is easily lost in any mechanical exercise which gives way to efficiency of the global market, ignoring what is behind any given social system. A most challenging theoretical perspective is the one offered by the proponents of a liberal theory in international law and international relations.57 Liberals centre their analysis on all social and domestic constraints which contribute to shape state action and to express collective interests. In pursuing international action, governments put the accent on civil societies; states capable of offering a social substructure to governmental initiatives, make governments’ initiative more solid when competing with other actors. Rational choices and rational state behaviour are leading principles of liberal intergovernmentalism. The emergence of national interests, as a result of internal contradictions and conflicts, is followed by bargaining at an international level, in order to classify and protect those interests. Economic interdependence is significant in that it shapes governmental preferences in international negotiations: liberal thinking accentuates the interest governments must have in
57
Moravcsik, 1993, 473 and 1998; Slaughter Burley, 1990 and 1993, 205 et seq.
Past and Future of European Labour Law 285 pursuing national goals through cooperation and in reducing the risks of international policy externalities.58 The link between societies and governments is traditionally expressed by a constitution, which is also the source through which social and economic interests are determined. Comparative constitutional law assumes a key position in the explanation of all factors influencing international behaviour; even the role courts may play becomes very central, as has happened in the EC, in which the active role of the ECJ has—at times—taken the place of a constitution.59 In describing transnational interests in the labour law field, we verify that states are put under severe pressure by groups. Unions—to quote one example—are obliged to organise their collective action looking beyond national boundaries; especially when interacting with governments as interlocutors, they bring about issues of transnational relevance into the formation of state policies. Through these mutual exchanges and through negotiations, they become quasitransnational organisations, even when they lack the status of formal institutions, as it is the case in the EC.60 Liberal intergovernmentalism, unlike neo-functionalism, envisages a limitation in the role of institutions and an empowerment of national coalitions.61 In this theoretical framework well-established organisations rooted in national traditions become crucial for the creation of strong links between states and the international community, through the political mediation of governments. Globalisation constitutes a further reason for adopting such a theory: it forces local institutions to expand their scope and to be visible in a larger political arena. The accent must be put on the liberal bearing of the theory, allowing the inclusion of quasi-public organised groups—such as labour and employers’ associations—within the number of influential collective actors capable of influencing governments. It can be argued that the impact of such groups on domestic law-making as well as on income policies and re-distributive economic measures is so significant not only in shaping intergovernmentalism but also in laying the foundations of new labour law theories. IV . GLOBAL LABOUR LAW IN SEARCH OF NEW CONSTITUTIONAL FOUNDATIONS
The journey of labour lawyers through old and new worlds is meant to continue in terms of mutual interdisciplinary exchanges. Post-modern legal pluralism offers a very wide angle for interdisciplinary orientations, all strictly interconnected with the other analytical tools more familiar to lawyers. It also favours the adoption of a new language, a sign of the fact that new meanings need to be discovered behind legal norms. 58
Moravcsik, 1993, 480–485. Slaughter Burley, 1993, 228–229. 60 See the analysis of the Maastricht Social Chapter and of its relevant provisions in Sciarra, 1996b. 61 Moravcsik, 1993, 517–519. 59
286 Silvana Sciarra A few souvenirs have been brought back, all reflecting the particular tastes of the travellers; they can be mentioned in the form of a brief summary. (a) Globalisation strengthens and enriches the debate on EU developments. The feebleness of European social policies may favour the impression that there is no prospective ahead for a local-global labour law and that a clear identity of the subject will be lost, or rather never constructed, in the process of European integration. This point of view is both unproductive and unimaginative. The adaptation of the contract of employment’s relevant features to different economic and productive needs and the constitutionalisation of fundamental rights at a supranational level appear at present a feasible theoretical perspective. As for all exercises in “institutional imagination”62 it must be proposed even against all political constraints emerging from the current debate taking place at an institutional level. (b) The intergovernmental conference started in 1996 was surrounded by widespread scepticism, a sentiment that is recurrently expressed when putting forward projects of reformulation of the social policies foundations in the Treaties. It, nevertheless, started a debate among academics63 and the Commission.64 The agenda became even richer after Amsterdam, due also to the unsatisfactory amendments introduced in the Treaties.65 One visible—albeit not sufficient—outcome of the debate generated by the IGC is that social rights must now be discussed in the light of wider reforms which should take place within the EU. They should, on one side, be harmonised with citizens’ rights and respond to the needs of a European civil society; on the other side, they should be adapted to national cultures and their implementation should be left to the active intervention of the Member States, thus ensuring the continuation of welfare states’ traditions, albeit under new economic constraints.66 The “tragic irony”67 of the German Supreme Court’s decision on the Maastricht Treaty can be recalled in this regard. In putting forward the cultural homogeneity that should be at the basis of constitutional states, it also goes against the expansion of citizenship and denies pluralism inside each national society, thus weakening even more their capacity to be part of a supranational system. 62
This expression is used by Unger, 1996, 1 et seq. Blanpain, Hepple, Sciarra and Weiss, 1996; Bercusson et al., 1996. 64 For a Europe of Civic and Social Rights. Report by the Comité des sages, Bruxelles, October 1995–February 1996, Luxembourg, office for Official Publication of the EC 1996. 65 A critical overview of proposals in the social policies field and an indication of possible way forward is in Sciarra 1996 and in Sciarra 1999a. See also the follow up to the proposals of the sages, quoted at n. 64 above: Group of Experts, Simitis et al. European Commission. 66 The notion of “instrumental social rights” has been suggested (Sciarra, 1996a, 13) to indicate that workers’ entitlement to states’ legislative measures may be seen as a way to enforce fundamental rights at a decentralised level. Parental leaves may be quoted, as an example of instrumental social rights aimed at completing the notion of employment rights beyond contractual obligations; the right to training and to life-long education may also be described as instrumental to obtaining and maintaining an occupation. Lenaerts (1991, 367) talks in a similar line of “aspirational rights”. 67 Habermas, 1996, 137. 63
Past and Future of European Labour Law 287 Nation-states must be viewed as “a temporal fusion of law’s globalising and localising elements”;68 although in this operation legal culture might be lost as a direct and possibly unique outcome of each nation-state, a new one would be developed, through the understanding of shared legal values. (c) Globalisation may bring the individual back to the traditions of a place or of a local community, and compensate for his/her loss of identity by giving a new meaning to membership in an organised group. Unions are forced to rethink their own role and break the tradition of monolithic organisations, in favour of more decentralised structures of representation. Unlike in previous experiences, when decentralisation meant also taking refuge in informality and customary rules within the enterprise, the model to be evoked in present circumstances is that of political confrontation with local governments and of participation in economic choices. This implies that unions are called to take on an institutional role and to be interlocutors of all political actors—be they national or regional, or sub-regional—and to take part in strategic choices.
V . AN EXAMPLE IN THE WAY OF CONCLUSIONS — THE NEW TITLE ON EMPLOYMENT IN THE AMSTERDAM TREATY
In the debate that took place within the IGC, the suggestion was made to include a chapter on employment in the Treaty and to formulate similar procedures to the ones enforced under the provisions for economic and monetary union. Building on the Essen criteria,69 both the Council and the Commission were very active and produced documentation and guidelines of different nature and depth, aiming towards short and medium term results.70 Employment—not full employment—is now included in Article 2 of the TEU, among the objectives of the Union and in Article 2 TEC among other achievements which must run parallel to the completion of economic and monetary union. The language adopted in Article 125 is intriguing: on the one hand there must be a strategy on the side of European institutions, on the other hand there must be coordination, which implies an active role for Member States. The latter should be under the obligation to improve the infra-structures at national level, ameliorating labour markets, favouring new placement and hiring mechanisms, allowing flexibility in employment contracts. Article 126, however, indicates that all employment policies must remain coherent with macroeconomic policies started with the Maastricht Treaty and confirmed in the new 68
Nelken, 1995, 440. The Essen European Council (9–10 December 1994) was the last one in which J. Delors took part as President of the Commission. Among the criteria indicated to fight unemployment we must recall training, wage moderation, the reduction of indirect labour costs, labour market flexibility, special measures for long-term unemployed. There is a continuity—one might also say a lack of originality—between the Essen criteria and the philosophy inspiring the Delors White Paper. A most challenging analysis of regulatory techniques on the matter is offered by M. Freedland, 1996. 70 Detailed references in Sciarra, 1999b. 69
288 Silvana Sciarra Article 99.2 at Amsterdam. Employment guidelines issued by the Council must therefore be coherent with other economic measures; furthermore such a coherence should be sought through the activity of the new Employment Committee, empowered to consult the social partners and to enhance coordination among Member States. If coordination and cooperation on employment policies are both instruments towards the achievement of European integration, what has been said at the beginning of this chapter with regard to the creation of a polycentric legal system is confirmed. Re-nationalisation of labour law occurs when Member States are required to submit national employment plans; Europeanisation is visible in the effort put forward by European institutions to evaluate such plans and make them harmonious with general criteria, while respecting national peculiarities. The symbol suggested is that of a network: no more a state as a pyramid, rather a state with “no head and no tail”,71 a sovereign state which keeps together an endless series of communications and interactions within the network. It is self-explanatory that in this new legal order not all commands and rules are binding in a traditional sense. There is constant re-adjustment to supranational standards and re-evaluation of national needs; there is a flow of messages between centre and periphery. All this explains the reality of a local legal culture as opposed to a merely virtual global law. European employment policies, in the light of the now established monetary union, will bring about the need for further adjustments, even within the autonomous sphere of the social partners. It is suggested that financial and economic stability is not sufficient in itself and that wage negotiations might have to follow common criteria, at least in certain geographic areas and in particular sectors of production, in order to become “shock absorbers” and compensate the differences among national economies.72 The concurrence of legal, non-legal, quasi-legal sources is a feature of this new legal system. Collective bargaining, such an indistinct source in the Maastricht Social Protocol, could develop into a distinct expression of private governance, able to counterbalance the effects of the monetary union. No federal state has been built and yet federalist institutions are at work; no right to bargain has been established at a supranational level and yet collective agreements might become an important channel for the stability of the quasifederation. Cohesion is a fact slowly absorbing all expressions of legality at state level. The question on whether legal systems are original and complete expressions of legality must be re-phrased and asked to a variety of legal actors within the states. As for labour law, what is new is the combination of re-distributive measures of a different kind—monetary, fiscal, social—generated by widespread consen71 72
A. Predieri, 1998, p. 418. T. Kauppinen (ed.), 1998 and in particular the introductory chapter of the editor.
Past and Future of European Labour Law 289 sus. Consensual results are not to be taken for granted; this is why industrial conflict still remains a value inside national legal systems; it reminds states that equity must be an outcome of social pacts. Within this framework labour law acquires a new legitimacy; it is not swept away by globalisation: rather it is reborn.
VI . REFERENCES
Amin, A. and M. Dietrich, 1990: “Introduction”, in Towards a New Europe? (Edward Elgar Publ, Aldershot, 1991). Amin, A. and N. Thrift, 1992: “Neo-Marshallian Nodes in Global Networks”, (1992) International Journal of Urban and Regional Research. Amin. A. and N. Thrift, 1994: “Living in the Global”, in Globalization, Institutions and Regional Development in Europe (OUP, Oxford, 1994). Becattini, G. (ed.), 1989: Modelli locali di sviluppo (II Mulino, Bologna, 1989). Beck, U., 1994: “The Reinvention of Politics: Towards a Theory of Reflexive Modernization”, in U. Beck, A. Giddens and S. Lash, Reflexive Modernization (Polity Press Cambridge, 1994). Bercusson, B., S. Deakin, P. Koistinen, Y. Kravaritou, U. Muckenberger, A. Supiot, and B. Veneziani, 1996: A Manifesto for Social Europe (1996). Blanpain, R., B. Hepple, S. Sciarra and M. Weiss, 1996: Fundamental Social Rights: Proposals for the European Union (Peeters, Leuven, 1996). Boyer , R., 1990: The Regulation School. A Critical Introduction (translated from the French edition) (Columbia Univ. Press, New York, 1990). Boyer, R. and D. Drache (eds.), 1996: “Introduction”, in States against Markets. The Limits of Globalization (Routledge, London, 1996). Busch, K., 1995: “EMU: Socio-economic Dilemmas of European Monetary Integration”, in: Economic and Monetary Union and Social Protection, Observatoire social européen, Working Paper n. 11 (May) Cassese, S., 1991: “La costituzione europea”, Quaderni Costituzionali. Competitiveness Advisory Group, 1995, Enhancing European Competitiveness. 1st Report. Brussels (June). Coriat, B. and P. Petit, “Deindustrialization and Terziarization: Towards a New Economic Regime?”, in Amin and Dietrich, 1991. Davies, P., 1992: “The Emergence of European Labour Law”, in W. McCarth (ed.), Legal Interventions in Industrial Relations. Gains and Losses (Blackwell, Oxford, 1992). Deakin, S. and F. Wilkinson, 1994: “Rights vs. Efficiency? The Economic Case for Transnational Standards”, (1994) ILJ. Dore, R., R. Boyer and Z. Mars (eds.), 1994: The Return to Incomes Policy (Pinter, London, 1994). Drache, D., 1996: “From Keynes to K-Mart. Competitiveness in a Corporate Age”, in Boyer and Drache, 1996. Featherstone, M., 1995: Undoing Culture. Globalization, Postmodernism and Identity (Sage, London, 1995). Featherstone, M. and S, Lash, 1995: “Globalization, Modernity and the Spatialization of
290 Silvana Sciarra Social Theory: An Introduction”, in M. Featherstone, S. Lash and R. Robertson, Global Modernities (Sage, London, 1995). Ferrarese, M.R., 1998: Mercati e globalizzazione. Gli incerti cammini del diritto, (1998) Politica del diritto. Freedland, M., 1996: “Employment Policy”, in P. Davies, A. Lyon-Caen, S. Sciarra, S. Simitis, European Community Labour Law. Principles and Perspectives, Liber Amicorum Lord Wedderburn (OUP, Oxford, 1996). Giddens, A., 1990: The Consequences of Modernity (Polity Press, Cambridge, 1990). Giddens, A., 1991: Modernity and Self-identity (Polity Press, Cambridge, 1991). Giddens, A. , 1994: “Living in a Post-Traditional Society”, in Beck et al., 1994. Habermas, J., 1995: “Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’ ”, (1995) ELJ. Habermas, J., 1996: “The European Nation State. Its Achievements and its Limitations. On the Past and Future of Sovereignty and Citizenship”, (1996) Ratio Juris. Held, D., 1991: “Democracy, the Nation-state and the Global System”, (1991) Economy and Society. Kahn-Freund, O., 1979: Labour Relations. Heritage and Adjustment (OU, Oxford, 1979). Kahn-Freund, O., 1983: Labour and the Law, P. Davies and M. Freedland (eds), 3rd edn. (Stevens, London, 1983). Kauppinen, T. (ed.), 1998: The Impact of EMU on Industrial Relations in European Union, Finnish Industrial Relations Association, Helsinki. Lash, S. 1994: “Reflexivity and its Doubles: Structure, Aesthetics, Community”, in Beck et al., 1994. Lenaerts, K., 1991: “Fundamental Rights to be included in a Community Catalogue”, (1991) European Law Review. Louis, J.V. 1998: “A Legal and Institutional Approach for Building a Monetary Union”, (1998) Common Market Law Review. Moravcsik, A., 1993: “Preferences and Power in the European Community: a Liberal Intergovernmentalist Approach”, (1993) Journal of Comm. Market Studies. Moraves, K.A., 1998: “The Choice for Europe, Social Purpose and State Power from Messina to Maastricht” (Cornell University Press, Ithaca, NY, 1998). Nelken, D., 1995: “Disclosing/Invoking Legal Culture: An Introduction”, (1995) Social & Legal Studies. Pieterse, J.N., 1995: “Globalization as Hybridization”, in Featherstone et al., 1995. Predieri, A. 1998: Euro, Poliarchie Democratiche e Mercati Monetari (Giappichelli, Torino, 1998). Robertson, R., 1995: “Glocalization: Time-Space and Homogeneity-Heterogeneity”, in Featherstone et al., 1995. Sabel, C., 1989: “Flexible Specialisation and the Re-emergence of Regional Economies”, in P. Hirst and J. Zeitlin (eds.), Reversing Industrial Decline? Industrial Structures and Policies in Britain and her Competitors (Berg, Oxford, 1989). Salais, R. and M. Storper, 1992: “The Four ‘Worlds’ of Contemporary Industry”, (1992) Cambridge Journal of Economics. Sciarra, S., 1995a: “European Social Policy and Labour Law. Challenges and Perspectives”, in Collected Courses of the Academy of European Law 1993. vol. IV Bk 1 (Martinus Nijhoff Publishers, The Hague, 1995). Sciarra, S., 1995b: “Social Values and the Multiple Sources of European Social Law”, (1995) ELJ.
Past and Future of European Labour Law 291 Sciarra, S., 1996a: Verso una costituzionalizazione dei diritti sociali fondamentali dell’Unione Europea, EUI Working Paper Law No. 96/1. Sciarra, S., 1996b: “Collective Agreements in the Hierarchy of European Community Sources”, in P. Davies, A. Lyon-Caen, S. Sciarra and S. Simitis, European Community Labour Law: Principles and Perspectives (OUP, Oxford, 1996). Sciarra, S. 1999a: From Strasbourg to Amsterdam: Prospects for the Convergence of European Social Rights Policy, in P. Alston (ed.), The European Union and Human Rights (OUP, Oxford, 1999). Sciarra, S. 1999b: The Employment Title in the Amsterdam Treaty: A Multi Language Legal Discourse, in D. O’Keeffe and P. Twomey (eds.) Legal Issues of the Amsterdam Treaty (Hart Publishing, Oxford, 1999). Sciarra, S. (ed.), forthcoming: Labour Law in the Courts. National Judges and the European Court of Justice (Hart, Oxford, forthcoming). Simitis, S., 1990: “Il diritto del lavoro e la riscoperta dell’individuo”, (1990) Giornale di diritto del lavoro e di relazioni industriali. Simitis, S., 1994: “Europeizzazione o rinazionalizzazione del diritto del lavoro?”, (1994) Giornale di diritto del lavoro e di relazioni industriali. Simitis, S., et al., Affirming fundamental rights in the European Union, Time to Act, Report of the Expert Group on Fundamental Rights, European Commission DGV/D.2, February 1999. Slaughter Burley, A.M., 1990: International Law and International Relations Theory: a Dual Agenda (The Polity Press, Cambridge, 1990). Slaughter Burley, A.M., 1993: “International Law and International Relations Theory: a Dual Agenda”, (1993) American Journal of International Law. Slaughter, A.-M, Stone Sweet, A., Weiler, J. (eds.), 1998: The European Courts and National Courts (Hart, Oxford, 1998). Sousa Santos, B. de, 1992: “State, Law and Community in the World System: an Introduction”, (1992) Social & Legal Studies. Sousa Santos, B. de, 1995: Toward a New Common Sense, Law, Science and Politics in the Paradigmatic Transition (Routledge, New York, 1995). Supiot Teubner, G. (ed.), 1987: Juridification of Social Spheres (de Gruyter, Berlin/New York, 1987). Touraine, A., 1992: Critique de la modernité (Fayard, 1992). Touraine, A., 1996: Ricominciamo dall’individuo (Micromega, 1996). Unger, R. Mangabeira, 1996: “Legal Analysis as Institutional Imagination”, (1996) MLR. Wedderburn, Lord, 1991: “European Community Law and Workers’ Rights after 1992: Fact or Fake?”, (1991) Dublin University Law Journal. Wedderburn, Lord, 1994a: “Labour Law and the Individual in Post-Industrial Societies”, in Labour Law in the Post-Industrial Era (Dartmouth, Aldershot, 1994), pp. 13–82. Wedderburn, Lord, 1994b: “Labour Standards, Global Markets and Labour Laws in Europe”, in W. Sengenberger and D. Campbell (eds), International Labour Standards and Economic Interdependence (International Institute for Labour Studies, Geneva, 1994). Weiler, J., 1995: “Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision”, (1995) ELJ. World Bank, 1995: World Development Report 1995. Workers in an Integrating World. Oxford and New York (OUP, Oxford, 1995).
16
Europeanisation and Globalisation as Friends and Rivals: European Union Law in Global Economic Networks FRANCIS SNYDER
I . INTRODUCTION
Europeanisation and Globalisation are complementary, partly overlapping, mutually reinforcing, but also competing processes. This chapter explores their dialectical relationship by examining some aspects of European Union (EU) law that are integral to global economic networks, especially but not only those linking the EU and China. The purpose of the chapter is two-fold. First, the chapter seeks to bring out into the open various legal arrangements which create, channel, structure, or express some of the most important economic relations involved in globalisation. It focuses on selected aspects of EU law and certain types of global economic networks.1 The aspects of EU law in question are highly technical rules Earlier versions of parts of this chapter were presented at the International Conference of Sociology of Law, “Conflicts and Rights in Transnational Society”, Courmayeur Mont Blanc, Italy, 10–12 September 1998; the Workshop on EU Law and Legal Issues in EU-China Economic and Trade Relations, Law School and European Studies Centre, Wuhan University, Wuhan, China, 28–30 December 1998; the seminar on “The EU, WTO, and Multi-level Governance”, which I taught at the European University Institute Law Department in Spring 1999; and the Guangzhou International Research Institute for Technology and Economy, Guangzhou, China 13 May 1999. I am grateful to the participants for discussion and comments. For research assistance and helpful comments during the preparation of the chapter, I wish to thank in particular Candido Garcia Molyneux. I am also grateful to Chen Yongquan, Vincenzo Ferrari, Emir Lawless, Jens Mortensen, Song Ying, Anne-Lise Strahtmann, and Zeng Lingliang for their indispensable contributions. The usual disclaimer applies. This chapter is based on research in progress. Comments and suggestions for improvement can be sent to the author by e-mail at
[email protected]. 1 This chapter is one of a series of related papers. See also: Francis Snyder, “Legal Aspects of Trade between the European Union and China: Preliminary Reflections”, in Nicholas Emiliou and David O’Keeffe (eds), The European Union and World Trade Law after the GATT Uruguay Round (John Wiley & Sons, Chichester, 1996), pp. 363–377; Francis Snyder, International Trade and Customs Law of the European Union (Butterworths, London, 1998), pp. 594–600 and passim (hereafter Snyder, International Trade); Francis Snyder, “Global Economic Networks and Global Legal Pluralism”, in George Bermann, Matthias Herdegen, and Peter Lindseth (eds), Transatlantic Regulatory Cooperation (Oxford University Press, Oxford, forthcoming) (hereafter Snyder,
294 Francis Snyder of customs and international trade law known as inward processing and outward processing. They rarely see the light of day and are virtually unknown except within the business community, institutions of governance, and a handful of specialist lawyers. Global economic networks are more well-known, at least among economists and political scientists; but lawyers have so far paid them very little attention. This chapter tries to make such material accessible and to pry open some of the broader issues it raises. It seeks to demonstrate that both the extremely technical customs rules and the international economic relations which have developed in conjunction with and around them are directly relevant to current debates about EU law. My basic argument is that we cannot understand the interests, structures, and processes involved in European integration today without taking global economic networks into account. Secondly, and correlatively, the chapter aims to introduce the theme of globalisation into current debates concerning the EU constitution. On the one hand, globalisation both reinforces and strengthens the demand for the constitutionalisation of EU decision-making. On the other hand, it tends to reconfigure economic relations and undercut potential political alliances which otherwise might encourage the constitutionalisation of Europe. I suggest that, on balance, globalisation tends to regard or even prevent the marriage of Europeanisation and constitutionalisation, at least if we take “constitutionalisation” to mean the elaboration, both legally and in terms of social practices, of a constitutional structure analogous to that of nation states. For not only is it true that the development of global economic networks—a key economic aspect of globalisation—has, and will continue to have, a profound effect on the constitutionalisation of Europe. It is also the case, as this chapter argues, that the form and content of the Europeanisation of law have stimulated and enhanced certain types of global economic relations which, though promoted by the EU and many of its Member States, tend to undercut the process of EU constitutionbuilding. Far from being a negative, destructive exercise, however, this opens up a space for and shows the necessity of a different constitutional imagination. The chapter thus is a plea for a re-thinking and reorientation of EU constitutional law scholarship, one which takes fully into account the impact of globalisation. Or, to put it more positively, the argument of the chapter takes place on two different levels. It is explicitly concerned with the role of EU law in global economic networks as part of the processes of globalisation and Europeanisation. Its implicit message, however, is that we as legal scholars and citizens need to “Global Legal Pluralism”); Francis Snyder, “Governing Economic Globalisation: Global Legal Pluralism and European Union Law”, (1999) 5 European Law Journal, Special Issue on “Economic Globalisation and Law”, 334 (hereafter Snyder, “Governing Globalisation”); Francis Snyder, “Judicial Review in the Age of Globalisation: Chinese Toys in the European Court of Justice”, in D. O’Keeffe and A. Barasso (eds.) Liber Amicorum for Gordon Slynn: Judicial Review in European Law, (in press); Francis Snyder, “Legal Issues in EU-China Trade Relations”, Wuhan University Law Review, forthcoming (in Chinese); Francis Snyder and Song Ying, Introduction to European Union Law, 2nd edn. (Peking University Press, Beijing, forthcoming (in Chinese)).
Europeanisation and Globalisation 295 use our constitutional imagination and envisage a distinctive EU constitution, one which takes these processes seriously and thus differs significantly from the traditional model of the nation state. The remainder of the chapter is divided into six main sections. Section II defines the concept of globalisation used here and sketches the main features of certain types of global economic networks. Sections III to VI consider the basic arrangements in EU law which foster, structure, channel and seek to manage these economic relationships. Section V sets out the basic legal framework of trade disputes involving inward processing or outward processing that have come before the European Court of Justice. Section VI considers some aspects of the relationship between inward processing, outward processing, and antidumping. The general trade disputes are discussed first because they are easier to understand: they tend to be simpler than the anti-dumping disputes in terms of facts, legal concepts, and applicable law. This way of organising the material also presents the disputes involving inward processing and outward processing in roughly chronological order. It thus illustrates more clearly the development of inward processing and outward processing and their dramatic impact on EU law. The reader thus can appreciate easily the dialectical relationship between Europeanisation and globalisation. A brief conclusion summarises the argument and its implications. II . GLOBALISATION AND GLOBAL ECONOMIC NETWORKS
What do we mean by “globalisation”? By globalisation, I refer to an aggregate of multifaceted, uneven, often contradictory economic, political, social and cultural processes which are characteristic of our time. In economic terms, the most salient features of globalisation, driven by multinational firms, are for the present purposes the development of international production networks (IPNs),2 dispersion of production facilities among different countries, the technical and functional fragmentation of production, the fragmentation of ownership, the flexibility of the production process, worldwide sourcing, an increase in intra-firm trade, the interpenetration of international financial markets, the possibility of virtually instantaneous world-wide flows of information, changes in the nature of employment, and the emergence of new forms of work. Globalisation also has political, social, and cultural dimensions.3 Here, however, I focus on the economic dimension. Among the key economic aspects of globalisation are global economic networks. These cross-national production networks involve “the organization 2 See e.g. Michael Borrus and John Zysman, “Globalisation with Borders: The Rise of Wintelism as the Future of Industrial Competition”, in John Zysman and Andrew Schwartz (eds), Enlarging Europe: The Industrial Foundations of a New Political Reality (University of California at Berkeley, Berkeley, 1998), pp. 27–59 (hereafter Enlarging Europe). 3 This is based on a more complete definition set out in Francis Snyder, “Governing Globalisation”.
296 Francis Snyder across national borders of research and development activities, procurement, distribution, product definition and design, manufacturing, and support service”.4 Their basic features include the fragmentation of production, the dispersion of production facilities, world-wide sourcing, and intra-firm trade. This chapter focuses on the customs operations known in EU law as the inward processing procedure and the outward processing procedure. Put simply, the inward processing procedure allows firms to import into the EU materials for processing in the EU without paying custom duties. The outward processing procedure allows materials to be exported temporarily for processing and the resulting products to be re-imported with partial or total relief from duties. In this section of the chapter, I consider these operations from the economic standpoint. I refer to these economic operations as “inward processing traffic” (IPT) and “outward processing traffic” (OPT), respectively, to distinguish them from the customs procedures. Viewed as economic relationships, IPT and OPT represent one of the organisational forms of international production networks; other forms are branch plant production, contract manufacture and original equipment manufacture, and vertical integration.5 Both in Central and Eastern Europe and in Asia, they have often been a step leading toward the development of complex, capital-intensive cross-national production networks.6 International production networks increasingly involve not just inter-industry or inter-firm but also intra-industry and intra-firm trade. Neither intraindustry nor intra-firm trade is wholly new, at least between industrialised countries.7 In recent decades, however, both intra-industry and intra-firm trade have increased dramatically with the growth of multinational companies. According to recent estimates, intra-firm trade now accounts for approximately 60 per cent of international trade. In fact, in its 1996 Communication on “The Global Challenge of International Trade”, the European Commission noted that globalisation and increased trade liberalisation imply increased networking among companies, increased intra-firm trade in manufactures, and global resourcing with regard to research, development, and production facilities. 4 This definition has been elaborated in the publications of the Berkeley Roundtable on the International Economy (BRIE). See e.g. E.M. Doherty (ed.), Japanese Investment in Asia: International Production Strategies in a Rapidly Changing World (BRIE, University of California at Berkeley, 1995); John Zysman and Andrew Schwartz (eds), Enlarging Europe: The Industrial Foundations of a New Political Reality (University of California at Berkeley, 1998). 5 See T. Sturgeon, “Does Manufacturing Still Matter?: The Organizational Delinking of Production from Innovation”, BRIE Working Paper 92B (Berkeley Roundtable on the International Economy, University of California at Berkeley, 1997), and T. Sturgeon, “The Rise of the Global Locality: Turnkey Production Networks in Electronics Manufacturing” (University of California at Berkeley, forthcoming); both cited in John Zysman and Andrew Schwartz, “Reunifying Europe in an Emerging World Economy: Economic Heterogeneity, New Industrial Options, and Political Choices”, (1998) 36 Journal of Common Market Studies 405 at 410–411 (hereafter Zysman and Schwartz, “Reunifying Europe”). 6 “Reunifying Europe”, n. 5 above, at 417. 7 See H.G. Grubel and P.J. Lloyd, Intra-Industry Trade: The Theory and Measurement of International Trade in Differentiated Products (Macmillan, London, 1975).
Europeanisation and Globalisation 297 Furthermore, in its view, “[o]utward processing trade using local advantages for lowering production costs or the logistics of distribution systems is turning even medium-sized companies into global players”.8 The EU, its Member States, and firms based there are involved in a wide variety of IPT and OPT operations. From the EU standpoint, such links between the EU and other industrialised countries, such as the USA, involve mainly inward processing. In 1996 the European Commission published a report on inward processing.9 Table 16.1 indicates the increasing use of IPT between 1988 and 1994, the last year of available statistics. Table 16.1: Inward processing in the EU, 1988–1994
Year
Total inward processing in 1000 ecu
1988 1989 1990 1991 1992 1993 1994
20,959,603 28,714,720 27,725,170 30,840,191 21,467,345 31,627,016 36,997,799
Total
198,331,845
Source: Commission Européenne, “Rapport sur le fonctionnement et l’avenir du régime douanier économique du perfectionnement actif., XXX/1073/96-Fr., p. 13.
Trade between the EU and the Central and Eastern European countries (CEECs) frequently involves OPT. Most of the few existing empirical studies of EU IPT and OPT concern the use by EU firms of OPT in the CEECs.10 They have shown that OPT represents one type of international division of labour and that it frequently provides the basis for more complex forms of IPNs. They have also argued that the ways in which production facilities located in the CEECs are inserted into IPNs centred in the EU are likely to be of crucial importance to European regional integration. 8 European Commission, “The Global Challenge of International Trade: A Market Access Strategy for the European Union” (Communication to the Council, the European Parliament, the Economic and Social Committee, and the Committee of Regions), COM(96)53 final, 14 February 1996, p. 1 (para. 4), available on the Internet at website 9 Commission Européenne, “Rapport sur le Fonctionnement et l’Avenir du Regime Douanier Economique du Perfectionnement Actif” (Commission Européenne, DG XXI, 1996). 10 See Julie Pellegrin, International Business and the European Integration Process: The Example of Outward Processing Traffic between the European Union and the Central and Eastern European Countries (unpublished PhD Thesis, Department of Social and Political Sciences, European University Institute, July 1997) (hereafter Pellegrin, International Business); Zysman and Schwartz, “Reunifying Europe”, n. 5 above; John Zysman and Andrew Schwartz (eds), Enlarging Europe n 2 above.
298 Francis Snyder We can add a further dimension by referring briefly to trade between the EU and China. Such trade often involves links between the EU and the Chinese Special Economic Zones (SEZs),11 even though such zones are not yet standardised and apparently are not generally recognised by international law.12 IPT and OPT are crucial for trade between Hong Kong and Chinese inland areas, and hence for re-exports from Hong Kong to the EU as well as for direct exports from mainland China to the EU.13 Special economic zones and other export processing zones are not of course unique to China. They exist in many other parts of the world, and there is even a World Export Processing Zones Association (WEPZA) with its own Internet website.14 In this instance, as in others, the most significant elements from the standpoint of EU strategic actors, which are usually the large firms, are where the production process starts and whether the company intends to export the product once the product is already in the EU. From the EU standpoint, inward processing means that production starts in the third country, the product is processed further in the EU, and the product then is exported to a third country, either where the production process started or another country. From the same EU standpoint, outward processing means that production starts in the EU, further processing takes place elsewhere, and the product is intended in principle for the EU market.15 To this perspective must be added the home country of the firms concerned, either in the EU or elsewhere, because this determines many of the other interests which affect and are affected by the operations of strategic actors. IPT and OPT are often associated with intra-industry trade (IIT). Intraindustry trade now dominates North-North trade, or trade between industrialised countries. However, there are few studies of IIT with respect to economies in transition and relatively little easily accessible information on China.16 This represents a striking lacunae in view of the significance of 11 See e.g. Nicholas R. Lardy, China in the World Economy (Institute for International Economics, Washington, DC, 1994), pp. 112–114; Dieter Loesch, “Chinese Special Economic Zones at a Crossroads” (HWWA-Institut fuer Wirtschaftsforschung-Hamburg, HWWA-Diskussionspapier Nr. 25, 1995). 12 See Sun Xiuping, Chen Wen and Lei Xianseng, New Progress in China’s Special Economic Zones (Foreign Languages Press, Beijing, 1997), p. 54. 13 As of the first quarter of 1997, 48% (US$6.6 billion) of Hong Kong’s total exports to Chinese inland areas were for outward processing. During the same period, outward processing contributed to 75% (US$12.5 billion) of Hong Kong’s imports from the inland areas. Also during this period, 85% (US$15.6 billion) of Hong Kong’s re-exports of origin from Chinese inland provinces were related to outward processing (source: Press Releases on Statistical Data, Statistics on Trade Involving Outward Processing in China, ). 14 WEPZA is based in Flagstaff, Arizona, USA. See its website at . 15 I am grateful to Candido Garcia Molyneux for these points. 16 But see, e.g., Chung H. Lee and Helmut Reisen (eds), From Reform to Growth: China and Other Countries in Transition in Asia and Central and Eastern Europe (OECD Development Centre Documents, Organisation for Economic Co-operation and Development, Paris, 1994); Francoise Lemoine, “Trade Policy and Trade Patterns during Transition: A Comparison between China and the CEECs” (Centre d’Etudes Prospectives et d’Informations Internationales (CEPII), Document de Travail No. 96-02, février 1996).
Europeanisation and Globalisation 299 OPT/IPT in EU-China trade and the fact that these economic relationships are involved in many of the numerous EU anti-dumping actions against China. One recent study, however, deals with intra-industry trade (IIT) between China and the OECD countries, including but not limited to the EU.17 It concluded, first, that IIT between China and OECD countries increased moderately during the 1980s and rapidly thereafter. By the late 1980s it was approximately 20 per cent of total PRC-OECD trade. Secondly, IIT is most important in certain product groups, such as chemicals and related products, manufactured goods, and machinery and transport equipment. It is of less importance in respect of miscellaneous manufactured goods. For this product group, it accounts for only about 4 per cent of trade,18 even though the product groups accounts for about 67 per cent of total manufacturing exports from China (but only about 5 per cent of total manufacturing imports, partly because of high tariffs).19 Thirdly, IIT between China and OECD countries is primarily vertical in nature, while IIT among OECD countries is mainly horizontal in nature.20 In other words, China tends to export lower quality varieties in exchange for higher quality varieties in a large share of the PRC-OECD IIT volume.21 This is consistent with recent reports on the structure of traded goods between the EU and China. Figures for 1994 show that 60 per cent of EU imports from China consist of textiles and clothing (20 per cent), mechanical/electrical machinery (30 per cent), and toys, leather goods and footwear (20 per cent), while 60 per cent of EU exports to China consist of mechanical/electrical machinery, transport equipment, and nuclear reactors.22 Fourthly, there is a wide variation in IIT shares among different OECD countries. If we consider only the EU Member States, the order in 1992 was United Kingdom, Italy, Germany, France, Netherlands, Benelux, Ireland, Spain, Sweden, Austria, Denmark, Portugal and Greece.23 17 Lisbeth Hellvin, “Vertical Intra-Industry Trade between China and the OECD Countries”, OECD Development Centre, Technical Papers No. 114, July 1996 (hereafter Hellvin, “Vertical Intra-Industry Trade”). 18 Hellvin, “Vertical Intra-Industry Trade”, n. 17 above, p. 28. 19 Hellvin, ibid., p. 15. 20 “Horizontal intra-industry trade is trade in varieties of a product characterised by different attributes, while vertical intra-industry trade is trade in varieties of a product characterised by different qualities”. The former typically occurs between countries with high and similar per capita incomes, while the latter typically occurs between countries at different levels of per capita income: Hellvin, “Vertical Intra-Industry Trade”, n. 17 above, p. 18. 21 Note that the study used unit price as a proxy for quality differences: Hellvin, “Vertical IntraIndustry Trade”, n. 17 above, p. 22. This is based however, on the assumption of the “open economy macroeconomic model” which presumes that international prices apply (or should apply) in China. For a critique of this assumption, see Willem van der Geest, “Bringing China into the Concert of Nations: An Analysis of its Accession to the WTO”, (1998) 32 Journal of World Trade 99 at 105–106. 22 See the Internet homepage of the European Commission Delegation in China at . 23 Lisbeth Hellvin, “Vertical Intra-Industry Trade”, n. 17 above, p. 16, Table 2.
300 Francis Snyder Fifthly, tariff barriers in China tend to reduce the IIT component of its trade with OECD countries. These findings suggest that, with increased market opening, increased foreign direct investment (FDI), and increased per capita income, there is likely to be an increase in intra-industry trade, and in particular horizontal intra-industry trade, between China and the OECD countries. This would be consistent with Cantwell’s presentation (see Table 16.2) of the evolution of international production and the development of intra-firm trade and intra-industry trade. Table 16.2: The evolution of international production and the development of intra-firm and intra-industry trade Type of international production
Composition of MNC trade
resource-based production local market-oriented production internationally integrated production
intra-firm, inter-industry trade some intra-firm, intra-industry trade intra-firm and intra-industry trade
Source: John Cantwell, “The Relationship between International Trade and International Production”, in David Greenaway and L. Alan Winters (eds.), Surveys in International Trade (Blackwell, Oxford, 1994), pp. 303–328 at p. 308, Table 11.1
These forms of globalisation do not have equal effects on all EU Member States. As shown in Table 16.3, some member States made much more use of inward processing than others. We may complete the picture, at least for the present purposes, by noting that the volume of trade with China, both imports and exports, varies widely Table 16.3: Use of inward processing by Member States (EC-11), 1966–1994 Member State
Total use 1988–1994, in 1000 ecu
Belgium and Luxembourg Denmark France Germany Greece Ireland Italy Netherlands Portugal Spain United Kingdom
10,538,146 3,919,567 43,642,981 32,773,550 2,348,185 6,630,856 20,374,496 22,872,909 1,941,987 9,819,675 43,469,493
Source: Commission Européenne, “Rapport sur le fonctionnement et l’avenir du régime douanier économique du perfectionnement actif”, XXX/1073/96-Fr., pp. 14–15.
Europeanisation and Globalisation 301 Table 16.4: Trade between the EU and its Member States and China, January–December 1995 (in millions of ECU)
France Belgium and Luxembourg Netherlands Germany Ireland United Kingdom Ireland Denmark Greece Portugal Spain Sweden Finland Austria EU-15
Imports from China
Exports to China
Balance
3094 1516 1908 8966 3044 4551 207 567 288 151 1454 827 250 450 26333
2028 674 635 6799 2061 957 28 200 13 26 658 852 440 331 14602
1066 842 1273 2367 943 3594 179 367 275 125 796 25 190 119 11731
Source: Home Page of the European Commission Delegation in China, , as of 14 January 1999, based on Eurostat.
from one EU Member State to another. Table 16.4 gives statistics for January–December 1995, the most recent annual figures available. It is true that, as Cantwell argues, “[t]he major regions are becoming linked to one another more by international production than by trade”.24 However, it is also the case that, once we examine these economic relations in national (or even local) rather than regional terms, there is a great diversity and unevenness in the extent to which particular EU Member States (and localities) are linked to other regions and sub-regional areas through international production as well as trade. An even more differentiated picture emerges if we consider these links in terms of firms rather than in terms of the territories which we usually associate with state governance structures, and consequently with the classical view of international (inter-national) trade. For example, the Commission report on inward processing shows that inward processing procedure is used mainly by large firms, not small and medium-sized enterprises (SMEs). This is the case even though the latter comprise 93 per cent of all EU firms and account for onethird of all employees. SMEs thus are extremely important in the EU economy as compared to the USA, where enterprises with fewer than 20 employees 24 John Cantwell, “The Relationship between International Trade and International Production”, in David Greenaway and L. Alan Winters (eds), Surveys in International Trade (Blackwell, Oxford, 1994), pp. 303–328 at p. 320 (hereafter Cantwell, “The Relationship”).
302 Francis Snyder account for only 20 per cent of employees, and large firms employ 61 per cent of the workforce and account for 61 per cent of business turnover.25 Yet they occupy a disproportionately small role in the global economic networks of IPT and OPT. As a working hypothesis, it may therefore be suggested that the interests of SMEs thus lie frequently in protecting their domestic markets, if necessary by anti-dumping duties. The interests of large firms involved in global economic networks, however, lie in maintaining inward processing procedures and outward processing procedures as unfettered as possible. Seen from this perspective, anti-dumping on the one hand and IPT and OPT on the other hand deal with two distinct channels of imports. They compete with each other, partly because each tends to be occupied by firms that differ in their degree of participation in global economic networks. The resulting two groups of firms, and the EU Member States which defend them, thus have conflicting interests with regard to EU trade policy and the deployment of trade policy instruments. These hypotheses remain to be tested by further research.
III . GLOBALISATION , EUROPEANISATION , AND EU LAW
EC law on inward processing and outward processing bears a complex relationship to the processes of Europeanisation and globalisation. Both are different responses to trade barriers. If there were no trade barriers, such as tariffs or quotas, there would be no demand or need for IPT or OPT, in the sense of specific legal customs regimes. National legislation permitting OPT preceded EC legislation. Originally OPT was “a national response to the globalisation of production activity in certain sectors”.26 It was stimulated by the search by firms for lower production costs, in particular for labour. Certain national governments responded to the demands of firms by creating a specific customs regime that favoured the internationalisation of production. Subsequently, the Europeanisation of the OPT regime was “a response to the internationalisation of firms’ strategies adopted by national governments in order to recapture political control over growing economic interdependence”.27 The EC (mainly the Commission) sought to capture political control of the internationalisation of production via OPT by means of the law. By pushing for the creation of the customs categories of inward processing and outward processing in EC law, it sought to Europeanise the legal control of OPT, in other words, to shift the locus of control of globalising firms and the development of global economic networks from the Member States to the European Community. 25 26 27
Cantwell, “The Relationship”, n. 24 above, p. 38, including n. 1. Pellegrin, International Business, n. 10 above, p. 157. Pellegrin, International Business, n. 10 above, p. 11.
Europeanisation and Globalisation 303 The Europeanisation of IPT and OPT, which in this case meant EC legal harmonisation, is relatively recent. If we take the case of OPT, there have long been two types of OPT, one providing partial or total suspension of quotas and involving mainly textiles and clothing (economic OPT), and the other providing partial or total suspension of tariffs and concerning other sectors (tariff OPT). Initially the former was managed by the Member States and the latter by the Community. A 1975 EC Directive28 applied to both. The first Community regulation on OPT29 applied only to tariff OPT, and the more controversial economic OPT was first regulated by the Community only in 1982.30 The latter and a subsequent 1994 regulation, which is currently in force, were both attempts to harmonise the national OPT regimes. Today, in addition, IPT and OPT are both exempted from quotas, for example for imports into the EU of textiles from China.31 As institutional strategy and economic policy, however, the Europeanisation of law in these matters has not been straightforward or free from conflict. For the European institutions, as for certain national governments, the creation and control of these customs procedures was an institutional and organisational response to globalisation. The EU and the Member States (despite conflicts between Member States) were frequently competitors. Both sought to govern, through their respective laws, the global economic networks which were developing as part of (and indeed stimulated) the process of globalisation. Just as demands for these customs procedures were a response, mainly by large firms, to economic globalisation in the face of trade barriers, so the law establishing and regulating these procedures represented attempts by different, and often competing, systems of governance to regulate the economic relations and capture the political benefits of globalisation.32 Furthermore, the political attempts to govern these economic aspects of globalisation through law has involved conflicts between the EC and the Member States as a group and among the Member States themselves. Both the demand for and the use of these customs procedures has varied among firms and thus from one Member State to another. These factors played a fundamental role in shaping conflicts regarding the creation of these customs procedures, first by national law, and then by EC legislation. The conflicts regarding EC law concerned not only the details of legislation, but also the very process of the Europeanisation of this body of law, which harmonised, often transformed, and always replaced the previous national legislation. 28
Council Directive 76/119, OJ 1976 No. L24, p. 1. Council Regulation 22473/86, OJ 1986 No. L212, p. 1. 30 Council Regulation 636/82, OJ 1982 No. L76, p. 1. 31 See Agreement on trade in textile products covered by the MFA Agreement, Articles 4(1), 4(4), OJ 1988 No. L380, p. 2 (MFA textiles); Agreement on trade in textile products not covered by the MFA bilateral agreement, Articles 4(1), 4(4), OJ 1995 No. L104, p. 2 (non-MFA textiles, especially silk and linen). See further Snyder, International Trade, n. 1 above, pp. 417–419, 596–599. 32 See also Pellegrin, International Business, n. 10 above, passim. 29
304 Francis Snyder It is not surprising, therefore, that the Europeanisation of law concerning inward processing and outward processing has not been entirely successful, at least if the main criterion for judging success is the degree of effective control over global economic networks. Member States, largely at the instigation of firms, were able, as Pellegrin shows, to negotiate the bits and pieces of EC OPT legislation so as largely to preserve the interests of these firms. The process of Europeanisation in the sense of the harmonisation of national legislation thus was uneven, and the governance of OPT was not very effectively centralised.33 As this example suggests, the Europeanisation of law is rarely straightforward, and it is also not always entirely successful, whether measured in terms of centralisation or of harmonisation. In addition, the contribution of IPT and OPT to the process of Europeanisation in ways other than the elaboration of legislation has also been uneven. The basic assumption, as Pellegrin emphasises with regard to OPT between the EU and the CEECs, was that territory, political competence, governance, and economic activity were congruent. EC OPT law thus represented “an attempt to transpose the national model of market management at the Community level”.34 In fact, however, the contribution of OPT to regional integration has varied a great deal, not only according to sector but also according to the production network involved.35 The governance of globalisation in this instance tends to refract in a complex way the internal EU constitution. The EC law on inward processing and outward processing mirrors to some extent the division of labour between the Member States and the EC. Rarely, however, does law reflect politics directly. In this instance EC law was a product of a specific process of Europeanisation, occurring over a period of time and involving particular interests and specific relations between firms, states, and EC institutions. The governance through law of globalisation in this sense shifted in form from the Member States to the Community. But many of the pre-existing conflicts remained, and were represented and even crystallised in the details of the legislation. The different interests of the Member States, and in turn those of the firms which they represented to some extent in the legislative process, have been articulated in terms of Community law. They were partly preserved in the substance, though not in the form, of Community law.36 One may also hypothesise that Europeanisation of IPT and OPT law, in the sense of a shift in the locus of decision-making and law-making, tended to strengthen the ties between each Member State and the firms based, or located principally, within its territory. Such ties may have been more loose, and subject to other pressures, when the applicable law was national law. It is likely that the 33
Pellegrin, International Business, n. 10 above, passim. Pellegrin, International Business, n. 10 above, p. 8. 35 See also Zysman and Schwartz (eds), Enlarging Europe, n. 12 above. 36 For a similar example, see Francis Snyder, New Directions in European Community Law (Weidenfeld & Nicolson, London, 1990), pp. 146–176, especially p. 171. 34
Europeanisation and Globalisation 305 process and the results of the Europeanisation of IPT and OPT law shaped conflicts of interests between Member States.
IV . INWARD PROCESSING AND OUTWARD PROCESSING IN EU LAW
The fragmentation of production, the dispersion of production facilities, worldwide sourcing, and intra-firm trade thus have developed in a symbiotic relationship with certain legal categories and concepts. IPT and OPT are intimately linked to the EC customs procedures of inward processing and outward processing. The same terms (IPT and OPT), or virtually the same terms (inward processing traffic (IPT) and outward processing traffic (OPT); inward processing procedure and outward processing procedure), refer at one and the same time to economic relationships and to the legal labels, pigeonholes or customs devices which facilitate their creation and maintenance. This economic dimension of globalisation and these legal categories of customs law are symbiotic: each owes its existence to some extent to the other, and each feeds on and thrives to some extent because of the other. This section and the following two sections of the chapter consider inward processing and outward processing from the standpoint of EC law. In terms of current EC law,37 inward processing is the system whereby imported goods may be processed in the EC customs territory without giving rise to liability for payment of customs duties, or other commercial policy measures, if the goods are intended for export outside the customs territory of the Community in the form of compensating products.38 Use of the procedure is subject to certain conditions, which in principle are designed to ensure that IPT does not harm unduly the interests of EU-based producers. This arrangement is designed to promote exports from EU firms and foster the international division of labour, but without adversely affecting the essential interests of Community producers.39 There are two basic procedures. Under the suspension system, non-EU goods intended for re-export from the EU in the form of compensating products may be imported duty-free: customs duties are suspended. Use of this system can be authorised only if the applicant actually intends to re-export the main compensating products from the EU customs territory. Under the drawback system, normal customs duties are paid but then the exporter can request their 37
For further detail, see Snyder, International Trade, n. 1 above, ch. 5. Council Regulation 2913/92, Article 114(1), OJ 1992 No. L302, p. 1. As to the processing operations allowed under the inward processing procedure, see ibid., Article 114(2)(c). The implementing Commission Regulation (EEC) 2454/93, OJ 1993 No. L253, p. 1 defines the main compensating products in Article 549(a) and the secondary compensating products in Article 549(b). Losses and operators are defined in articles 549(c) and 549(e), respectively, of this Commission Regulation. The following discussion presents only a skeleton outline of inward processing. 39 See Maggi GmbH v. Hauptzollamt Munster, Case 260/78 [1979] ECR 2693. 38
306 Francis Snyder repayment or remission if the imported products are re-exported in the form of compensating products. Authorisation to use the drawback system is granted only where opportunities exist for export of the main compensating products from the EU customs territory. Export duties may be exempted under the suspension system but not under the drawback system. The basic theme of inward processing is also subject to four more complex variations. The first variation concerns processing operations outside the Community customs territory. Imported goods in their unaltered state, or their compensating goods, can be exported temporarily for the purpose of further processing outside the customs territory of the Community.40 This is possible only, however, after the customs authorities grant authorisation in accordance with the rules provided for outward processing.41 Under the drawback system, the temporary exportation of compensating products will not be considered as exportation for the purposes of repayment or remission of the import duties initially paid except where the products are not reimported into the Community within the period prescribed.42 The second variation is equivalent compensation. Under special conditions, the compensating products intended to be exported may be obtained from equivalent Community goods instead of import goods.43 As an exception to the general rules on inward processing, this is interpreted restrictively.44 The equivalent goods must be of the same quality, have the same technical characteristics as the import goods and fall within the same eight-digit sub-heading of the combined nomenclature code.45 Exceptionally, however, equivalent goods may be at a more advanced stage of manufacture than the import goods, provided that the essential part of the processing to which the equivalent goods are subject is carried out in the undertaking of the holder of the authorisation or in the undertaking where the operation is being carried out on its behalf.46 The third variation is prior exportation. The Customs Code allows compensating goods to be exported from the Community before the importation of the 40
Council Regulation 2913/92, Article 123, OJ 1992 No. L302, p. 1. Ibid., Article 86; see also ibid., Article 123. As to outward processing, see below. 42 Ibid., Article 127. 43 Council Regulation (EC) 2913/92, Article 115(1)(a), OJ 1992 No. L302, p. 1. 44 Directeur Général des Douanes et Droits Indirects v. Eridiania Beghin-Say SA, Case C-103/96 [1997] ECR I-1453. 45 Council Regulation 2913/92, Article 115(2), OJ 1992 No. L302, p. 1. See also Commission Regulation 2454/93, Article 569(1), OJ 1993 No. L335, p. 1, as amended by Commission Regulation 3665/93, OJ 1993 No. L335, p. 1, which adds the requirement that the goods must fall within the same eight-digit sub-heading of the combined nomenclature. This requirement was upheld by the Court of Justice in Directeur Général des Douanes et Droits Indirects v. Eridiania Beghin-Say SA, Case C-102/96 [1997] ECR I-1453. Special provisions laid out in Annex 78 may apply to goods included in this Annex: see Commission Regulation 2454/93, Article 569(2), OJ 1993 No. L253. 46 Council Regulation 2913/92, Article 115(2), OJ 1992 No. L302, p. 1. See also Commission Regulation 2454/93, Article 570(1), OJ 1993/No. L335/1. 41
Europeanisation and Globalisation 307 import goods.47 This is not possible, however, under the drawback system,48 nor for authorisations to be issued on the basis of certain economic conditions.49 The fourth variation is triangular traffic. As part of the prior exportation system the customs authorities may allow the triangular traffic system.50 This system allows the import goods to be entered for the inward processing procedure in the Community at a customs office other than the one at which the prior exportation of the compensating products took place.51 Outward processing, as defined in EC law, is the system whereby Community goods may be exported temporarily from the customs territory of the Community in order to undergo processing operations and the compensating products resulting from those operations be released for free circulation with total or partial relief from import duties and non-tariff common commercial policy measures.52 The purpose of this mechanism is to avoid the levying of customs duty on goods exported from the Community for processing.53 This procedure may apply to all Community goods other than those whose export gives rise to repayment or remission of import duties, or which prior to export were released for free circulation with total relief from import duties by virtue of end 47 Council Regulation 2913/92, Article 115(1)(b), OJ 1992 No. L302, p. 1. The customs authorities must indicate the period within which the non-Community goods must be declared for the procedure taking account of the time required for the procurement and transport to the Community of the import goods. See ibid., Article 118(3); see also Commission Regulation 2454/93, Article 561(1), OJ 1993 No. L253, p. 1. As a general rule this period must not exceed six months, but it may be extended if the holder of the authorisation submits a reasoned request, provided that the total period does not exceed twelve months. See ibid., Article 561(2). Special rules apply to specific products, such as goods subject to a price regulating mechanism (Article 561(2)) and raw sugar (Article 561(2)). 48 Ibid., Article 126. 49 Commission Regulation 2454/93, Article 572(1), OJ 1993 No. L253, p. 1, as amended by Commission Regulation 3665/93, OJ 1993 No. L335, p. 1. As to the economic conditions which do not allow for the possibility of prior exportation under the suspension system, see Commission Regulation 2454/93, Article 552, OJ 1993 No. L253, p. 1, as amended. 50 Commission Regulation 2454/93, Article 600, OJ 1993 No. L253, p. 1. Triangular traffic system is only possible as part of the prior exportation system. 51 Ibid., Article 549(i). As to the details of the triangular traffic system, see ibid., Article 575(3); see also ibid., Article 601, as amended by Commission Regulation 3665/93, OJ 1993 No. L335, p. 1. See also Commission Regulation 2454/93, Articles 602–605, OJ 1993 No. L253, p. 1. Article 503 has been amended by Commission Regulation 2193/94, OJ 1994 No. L235, p. 6. 52 Article 145(1) Council Regulation 2913/92, OJ 1992 No. L302, p. 1; see also ibid., Article 160. See also Commission of the European Communities v. Kingdom of the Netherlands, Case 49/82 [1983] ECR 1195. As to the specific conditions for the application of economic outward processing arrangements to textiles and clothing listed in Chapters 50 to 63 of the Combined Nomenclature and resulting from outward processing operations, see Council Regulation 3036/94, OJ 1994 No. L322, p. 1. See also Council Regulation 1385/94, OJ 1994 No. L152, p. 4 (opening and providing for the administration of Community tariff quotas for frozen hake fillets and for processing work in respect of certain textile products under Community outward processing arrangements). Allowed processing operations under the outward processing procedure are: (a) the working of goods, including erecting or assembling them or fitting them to other goods; (b) the processing of goods; (c) the repair of goods, including restoring them and putting them in order. See Article 145(3)(b) Council Regulation 2913/92, OJ 1992 No. L302, p. 1; see also ibid., Article 114(2)c). 53 See Wacker Werke GmbH & Co. KG v. Hauptzollamt Munchen-West, Case C-16/91 [1992] ECR I-6821.
308 Francis Snyder use, for as long as the conditions from granting such relief continue to apply, or whose export gives rise to the granting of export refunds or in respect of which a financial advantage other than such refunds is granted under the common agricultural policy by virtue of the export of the said goods.54 The EC inward processing arrangements (and, one assumes, outward processing arrangements) are themselves subject to international agreements, such as the International Dairy Agreement, concluded by the Community as part of the GATT.55 Both inward processing and outward processing are also governed by the International Convention on the Simplification and Harmonization of Customs Procedures, signed at Kyoto on 18 May 1973.56 The Convention entered into force for the EC on 26 September 1974. Annex E.6 of the Convention concerns temporary admission for inward processing. It entered into force on 6 December 1977, and, subject to certain reservations, it entered into force for the EEC on the same date. Annex E.8 deals with temporary exportation for outward processing. It entered into force for the EEC, with certain reservations, on 20 April 1978. It may be noted that China is a signatory to the International Convention on the Simplification and Harmonization of Customs Procedures signed at Kyoto, but has not yet accepted the Annexes.57
V . IPT AND OPT IN THE EUROPEAN COURT OF JUSTICE
Global economic networks do not correspond in their geographical reach to national or EC political and legal boundaries. Partly as a result, they tend to generate disputes which sometimes take the form of very complex litigation. Before examining some such anti-dumping cases, however, this section focuses on a selection of relatively simple cases before the European Court of Justice (ECJ). They provide a useful introduction to IPT/OPT disputes, because they suggest what types of disputes arise, illustrate the basic legal concepts, and show how the ECJ has dealt, explicitly or implicitly, with global economic networks. In Commission v. Netherlands, Case 49/82,58 the Commission brought an Article 169 action against the Netherlands for authorising the packing in small 54
Ibid., Article 146. Products brought into the Community under the inward processing arrangement are considered to be imported and exported for the purposes of the International Dairy Agreement (IDA) or any international trade agreement. Consequently, Community legislation does not allow authorisations for products for inward processing at a value below the minimum prices set by the IDA: see Commission of the European Communities v. Federal Republic of Germany, Case C-61/94 [1996] ECR I-3989, paras 22–27. 56 See World Customs Organization, Handbook: International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto, 18 May 1973), 1st edn., October 1975, Amending Supplement No. 13, January 1993, available on the Internet at the website . 57 The Convention entered into force for China on 9 August 1988. China has accepted only E.3 concerning customs warehouses and Annex F.5 concerning urgent consignments. 58 [1983] ECR 1195. 55
Europeanisation and Globalisation 309 packages of butter imported from third countries and stores in customs warehouses. It argued, in essence, that this kind of packing was not the simple operation of a “usual form of handling” as required for the use of the customs warehousing procedure. The customs warehousing procedure provides for the storage in a customs warehouse in the EU of goods, either from the EU or from a third country, free of customs duty. The Commission considered that the operation in this case called instead for the use of the inward processing procedure. Goods imported under the inward processing procedure were reserved solely for export, were subject to more stringent controls to protect Community producers, and had to comply with more formal requirements. In addition, during the period in question the use of the inward processing procedure had been temporarily suspended in order to encourage EC processors of butter for export to use surplus EC butter rather than third country butter. Even in normal circumstances, therefore, customs warehousing would have given the importer or processor greater commercial freedom of choice and would have been lower in cost. But in the specific circumstances of the case, the authorisation by the Netherlands of the customs warehousing procedure also enabled Dutch processing enterprises to avoid an agricultural levy payable on the release for consumption of butter imported from third countries. Detailed harmonised rules concerning inward processing were then not yet in force in the Community, and the Netherlands had in fact followed its previous national practice. Advocate-General Slynn pointed out, however, that: “[t]he dividing line [between customs warehousing and inward processing] is not entirely clear. None the less it seems to me that where the goods are shown to have been brought into the Community with the intention that they may be processed, and then re-exported, rather than for the essential purpose of storage with incidental handling, they ought to be dealt with under the inward processing system”.59
He also identified a need for harmonisation because of the existence of different national provisions as to what operations were regarded as inward processing or as customs warehousing.60 The European Court of Justice, following its Advocate-General, held that the operation in question did not come within the scope of the customs warehousing procedure and was therefore covered by the inward processing procedure, as defined in Article 2 of the Council Directive 69/73 on the harmonisation of provisions laid down by law, regulation or administrative action in respect of inward processing.61 The judgment implicitly affirmed the power of the ECJ to decide on the classification of such import transactions. Harmonisation by the judiciary could substitute, at least provisionally, for harmonisation by the legislator. Such judicial empowerment itself was part of the Europeanisation of law, in both the institutional and normative terms. In its 59 60 61
[1983] ECR 1195 at 1213. [1983] ECR 1195 at 1212. OJ Eng. Spec. Ed. 1969, (I), p. 75.
310 Francis Snyder judgment the ECJ also re-affirmed the preeminence of EC law, which was then being elaborated. Diverse national practices could not be allowed to undermine common EC policies, such as the Common Agricultural Policy, or impede the eventual development of harmonised EC customs law. In normative terms, the case also clarified the distinction between customs warehousing and inward processing. Customs warehousing could be used only for very simple procedures, whereas certain types of packaging, as well as more complex procedures, required the use of inward processing. Seen from a broader perspective, the case demonstrated that the boundary between inward processing and customs warehousing would in the last instance be policed, if necessary, by the ECJ. Patrolling this boundary represented a way of managing the complex relationship between Europeanisation and globalisation. In the specific circumstances of the case, the ECJ gave priority to protecting the EC’s financial interests and EC producers; these may be some meanings of Europeanisation, though certainly not the only ones. At the same time, it urged the EC legislator, that is, the Member States via the Council, to adopt harmonised rules to manage on a more coherent, less ad hoc and more long-term basis the problematic relationship between Europeanisation and globalisation: in other words, to adopt a Europeanised solution to certain problems posed by economic globalisation. Outward processing has been the subject of several ECJ judgments. Most involve German companies, which should not be surprising in view of the early internationalisation of German firms and the importance of OPT between Germany and central and eastern European countries. An early case was Gebrueder Knauf Westdeutsche Gipswerke v. Hauptzollamt Hamburg-Jonas, Case 118/79.62 It concerned exports of maize starch authorised under German OPT legislation, and reimported into the EC as compensating products manufactured from that starch and intended for the building sector. At the time there was no EC OPT legislation. For this reason, OPT was not subject to permanent customs supervision. In other words, there was no system of Community control ensuring the re-importation of the products exported under national outward processing arrangements. As pointed out by the Commission in the case, OPT was attractive for EC enterprises because of the lower production costs of third country undertakings63 but in the absence of EC control of re-imports, this could result in disturbance of the markets of third countries and also led to shortages on EC markets. The Court of Justice was asked to interpret the concept of “export” within the meaning of Article 7(2) of Regulation (EEC) 1132/74 on production refunds in the cereals and rice sectors. It held that this concept must be interpreted to mean that any levy which may be introduced in pursuance of that provision must also be imposed on the exportation of the products in question when they 62 63
[1980] ECR 1183. [1980] ECR 1183 at 1187.
Europeanisation and Globalisation 311 are exported under outward processing arrangements and later re-imported as compensating products. In other words, products exported for OPT under national law remained subject to export levies imposed by Community law. As a result of this judgment, not only did EC law complement national law; the footprint of EC law left its mark on national law. Even in the absence of EC OPT legislation, Member States’ attempts to control and capture the fruits of economic globalisation could not escape the financial consequences of Europeanisation, even though Europeanisation had occurred in other spheres and not yet with regard to OPT. In this case, EC export levies served as an ex ante substitute for the ex post controls which would have been available under EC OPT legislation. The case illustrates the overlap and conflict of different national and EC legislation in the period before the Europeanisation of the outward processing procedure. The ECJ was the arbiter of competition between the EC and the Member States about who should govern economic globalisation and to what extent. A second OPT case was Gebrueder Weis GmbH v. Hauptzollamt Wuerzburg, Case C-292/91.64 It concerned the post-clearance recovery of customs duties on import. Fabrics originating inter alia in Portugal had been sent to Yugoslavia for the production of men’s outer garments and then returned to the Community. Article 15 of the 1980 EEC–Yugoslavia Cooperation Agreement65 provided inter alia that industrial products originating in Yugoslavia “shall be imported into the Community free of quantitative restrictions and measures having equivalent effect, and of customs duties and charges having equivalent effect”. Article 30 of the Agreement provided that “products originating in the Community” are to be considered “products originating in Yugoslavia” on condition that they have undergone in Yugoslavia working or processing which is not “insufficient” within the meaning of Article 3(3) or Protocol 3 of the Agreement. The defendant customs authority decided to levy customs duties on the ground that, in the context of the transitional scheme applicable to products originating in Portugal, according to which goods traded between Portugal and the other member States were subject to residual customs duties, the fabrics in question were not to be regarded as “originating in the Community”. The Court of Justice held, however, that such customs duties were not recoverable where the importer had observed all the applicable provisions as regards the customs declaration and where any error as regards the categorisation as Community goods or not of goods originating in Portugal would have been far from detectable from a mere reading of the provisions in force by a normally experienced trader. In other words, the ECJ reaffirmed its institutional interpretative role, it applied a test of reasonableness, and in economic terms it gave the trader the benefit of the doubt. The ECJ favoured the market by allowing traders in these circumstances to rely on their business experience. Lex 64 65
[1993] ECR I-2219. OJ 1983 No. L41, p. 2.
312 Francis Snyder mercatoria prevailed, and money accrued neither to the EC as own resources, nor to the national customs administration which would otherwise have received 10 per cent of the duties to cover the cost of collection. The judgment also favoured economic globalisation by lowering the operating costs of transnational economic networks and OPT. Wacker Werke GmbH & Co. KG v. Hauptzollamt Muenchen-West, Case C16/9166 exemplified the connection between inward processing and outward processing and the potential for abuse of the system. The case was an Article 177 reference for a preliminary ruling on the interpretation of Council Regulation 2473/86 on outward processing relief arrangements and the standard exchange system.67 The proceedings concerned the value for customs purposes of certain products imported by the applicant Wacker Werke between 1986 and 1988. Wacker Werke had purchased the products from Wacker Corporation, established in the USA, with which it had financial links. Wacker Werke manufactured petrol engines and purchased diesel engines from other undertakings in Germany. It then sold these two types of engine to Wacker Corporation. The engines were exported as temporary export goods under an authorisation issued on the basis of the regulation on outward processing. When Wacker Werke sold the engines to Wacker Corporation, it added, by way of general expenses and profit margin, 25 per cent of the cost of manufacturing its petrol engines and 5 per cent to the purchase price of the diesel engines it purchased from other German undertakings. Wacker Corporation incorporated these engines into vibration plates, vibro-compacters and hydraulic pumps. It then sold these products partly on the American and European markets directly, and partly to Wacker Werke, which reimported them into the Community as compensating products under the outward processing arrangements. Wacker Werke bought these compensating products from Wacker Corporation at the prices shown in the latter’s price list for the American markets less a reduction of 45 per cent. The dispute between Wacker Werke and the German customs authority concerned the valuation of the temporary export goods. The OPT regulation allowed compensating products in an OPT transaction to benefit on their release from free circulation in the EC from partial or total relief from customs duties. Relief was to be calculated by deducting from the amount of import duties applicable to the compensating products (here, vibration plates, vibrocompacters and hydraulic pumps) the amount of import duties that would have been applicable to the temporary export goods (petrol and diesel engines) if they were imported into the Community from the country in which they underwent the processing operation or last such operation. The essential issue was whether the 25 per cent and 5 per cent “uplift” or supplements added by the applicant should be taken into account. The German 66 67
[1992] ECR I-6821. OJ 1986, No. L212, p. 1.
Europeanisation and Globalisation 313 national court, which referred the case to the ECJ, states that there was no evidence that the prices charged by Wacker Werke for the temporary export goods, or those charged by Wacker Corporation for the compensating products, were influenced by the links between the two companies.68 However, the German Government argued that “all these factors [regarding pricing] suggest a deliberate intention to set as high a value as possible for the temporary export goods in order to keep the differential duty payable at a moderate level”.69 The essential problem, in its view, was the evasion of duty by transfer pricing.69 The European Court of Justice held in this case, known as Wacker Werke I, that the value of the temporary export goods corresponded to the difference between the customs value of the compensating products and the processing costs determined by reasonable means, such as taking account of the transaction value of the goods in question. As in Gipswerke, Case 118/79, it adopted a reasonableness test, gave the benefit of doubt to the company, and respected the decision of the market. In other words, the applicant company won. The judgment also facilitated OPT by lowering its costs and encouraged the use of the outward processing procedure as part of the calculations of a transatlantic economic network. Following the ECJ ruling, the Finanzgericht upheld Wacker Werke’s application. The German customs authority appealed the judgment. It argued that the judgment conferred unjustified customs advantages on the trader. The case was then again referred for a preliminary ruling to the ECJ as Hauptzollamt Muenchen v. Wacker Werke GmbH & Co. KG, Case C-142/96 (Wacker Werke II).71 The European Court of Justice, once again following Advocate-General Tesauro, held that reference to the transaction value of the temporary import goods was a reasonable means of determining processing costs. In determining the transaction value, reference could be made to the purchase price, inclusive of uplifts, even if this resulted in a higher rate of duty for the unprocessed goods than for the compensating products.72 With regard to the possibility of transfer pricing, the ECJ stated that the possibility of “tariff anomalies”, and the consequent financial advantages for traders, were risks that were inherent in the outward processing procedure. These risks were outweighed, however, by the benefits of OPT. The ECJ held that the merits or demerits of individual cases had to be accepted, provided that there was no evidence to indicate the inter-firm prices were influenced by their business links, or even by the fact that the “inter-firm” prices were even “intrafirm” in the sense of belonging to a single, tightly knit global economic 68
[1992] ECR I-6821 at I-6839 (para. 6). See the Report for the Hearing, [1992] ECR I-6821 at I-6829. 70 As to transfer pricing as a regulatory issue, see Sol Picciotto, “Transfer Pricing and the Antinomies of Corporate Regulation”, in Joseph McCahery, Sol Picciotto, and Colin Scott (eds), Corporate Control and Accountability: Changing Structures and the Dynamics of Regulation (Clarendon Press, Oxford, 1993), pp. 375–405. 71 [1997] ECR I-4649. 72 [1997] ECR I-4649 at I-4667 (para. 22). 69
314 Francis Snyder network.73 Such an approach might seem to give more weight to legal form than to economic reality in the sense of the practical operation of economic networks. But the ECJ judgment also entailed that the existence of transfer pricing among related enterprises was a question of fact to be decided by the national court. National judges therefore have the task of evaluating and supervising the financial arrangements of firms which litigate before them. Such a norm itself, though perhaps continuing previous national practices, is a form of Europeanisation: it represents a jurisdiction marker between different courts that is laid down by the ECJ. In the absence of any such finding, the ECJ judgment also signalled a policy preference for encouraging OPT and creating economic incentives for the development of global economic networks. Another case involving IPT and OPT was Eridania Beghin-Say, Case C103/96.74 The ECJ was asked to give a preliminary ruling on the validity of a regulation that made recourse to inward processing arrangements with equivalent compensation subject to the condition that the equivalent goods must fall within the same sub-heading of the Common Customs Tariff as the imported goods. The basic issue was the compatibility of the regulation with the basic EC law principles of legitimate expectations and legal certainty. The ECJ concluded that, in the circumstances of the case, a trader could not have any legitimate expectation other than being able to have recourse to equivalent compensation where the goods concerned fall within the same sub-heading under the nomenclature in force at the material time. This was because the availability of equivalent compensation depended on a criterion forming part of another set of rules, namely the tariff classification of specific goods, which were liable to vary as a result of periodic changes. The possibility of such changes was foreseeable. This fact barred the creation of a legitimate expectation with regard to the inward processing procedure. The case illustrates the interconnection and hierarchy between different sets of customs rules. The ECJ subordinated those concerning inward processing to those concerning tariff classification, valuation, and origin, which constitute the basic skeleton of all EU customs law.75 The inward processing procedure makes sense only within this normative framework. Its existence, as already noted, is due precisely to such normative trade barriers, whether in the EU or elsewhere. In more general terms, the ECJ judgment reaffirmed the primacy of Europeanisation over globalisation. In so far as inward processing may be seen to represent globalisation, the ECJ considered that, for EU-based traders, it could only take place within the normative framework of EC law. Globalisation, in other words, was subject to European integration.
73 74 75
[1997] ECR I-4649 at I-4667 (para. 21). [1997] ECR I-1453. See further Snyder, International Trade, n. 1 above, Part I.
Europeanisation and Globalisation 315
VI . IPT , OPT AND ANTI - DUMPING
The interrelationship between IPT, OPT, and anti-dumping involves more complicated disputes and exemplifies the increasingly complex—and increasingly problematic—relationship between Europeanisation and globalisation. IPT and OPT are frequently involved in EC anti-dumping investigations and litigation concerning global economic networks. It may in fact be suggested that the development of global economic networks is an important factor in recent changes in EU anti-dumping law and practice,76 though this hypothesis remains to be tested.77 Here it is not possible present a full picture of the intersection of IPT, OPT, and anti-dumping; a thorough substantive analysis must wait until later. The following paragraphs are intended simply to indicate some of the different scenarios that have arisen in practice. In many anti-dumping cases, downstream EU users of the allegedly dumped imports argue that the imposition of anti-dumping duties will threaten their exports from the EU to third countries so should not be imposed. They appeal in this way not only to commercial rationality but also to virtually patriotic (in a double sense) notions of enhancing EC trade, or at least not damaging the EC balance of payments. Such arguments, however, are rarely successful. Instead, anti-dumping duties are imposed, and the downstream users are required to source materials to produce their exports by using the more restricted inward processing procedure. The Extramet saga concerned imports of calcium metal from China and the then Soviet Union. In January 1988 the Chambre Syndicale de l’Electrométallurgie et de l’Electrochimie made a complaint on behalf of the sole Community producer, namely Péchiney Electrométallurgie, which accounted for the entire EC calcium metal production. Extramet Industrie was the main EC importer. Its activity consisted partly in granulating calcium metal. It accounted for between 62 per cent and 97 per cent of aggregate imports of calcium metal from China and Russia into the EC. The Chinese exporter was the China Nuclear Energy Industry Corporation (CNEIC), the trading arm of the sole producer of calcium metal in China, China National Nuclear Corporation (CNNC). Extramet argued that it had no source of supply other than China and Russia, because the sole EC manufacturer either had high prices or refused to supply. The Commission investigation led eventually to the imposition of definitive anti-dumping duties.78 Extramet’s application of interim measures was dismissed.79 However, its action for annulment was declared admissible,80 and 76
See further Snyder, International Trade, n. 1 above, ch. 13, “Dumping and Subsidies”. These recent changes are among the main themes in my current research on EU anti-dumping actions regarding China. 78 Calcium Metal Originating in the People’s Republic of China and the Soviet Union, OJ 1989 No. L271, p. 1 (definitive). 79 Extramet Industrie v. Council, Case C-358/89R [1990] ECR I-431. 80 Extramet Industrie v. Council, Case C-358/89 [1991] ECR 2501. 77
316 Francis Snyder subsequently the ECJ declared the anti-dumping measure void.81 Subsequent complaints led to a new investigation. This resulted in turn in the imposition of a new provisional anti-dumping duty82 and then a new definitive anti-dumping duty.83 Once again Extramet, now trading as Industries des Poudres Sphériques (IPS) brought an application for interim measures. As before, the action was unsuccessful.84 In evaluating the results of its investigation, the Commission assessed the possible impact of eventual measures on primary users. They included processors such as IPS, and user industries, such as the lead and ferro-alloy industry and the steel industry. The latter argued that the imposition of anti-dumping duties would disrupt their exports. However, the Commission concluded, inter alia, that for their sales of processed calcium metal outside the EC, these firms could continue to derive their inputs from Russia or China under the inward processing arrangements without paying any duty. Similarly, when IPS applied for interim measures, the Council argued that, if interim measures were adopted, they should be conditional, inter alia, on the establishment of a mechanism to prevent IPS from reselling the goods imported from China and Russia without processing in the EU. This was intended to ensure that, if IPS were granted interim measures in respect of anti-dumping, it did not also circumvent the restrictions on IPT which were intended to protect EU producers. This demand raises several larger issues which, for reasons of space, can only be mooted here. For example, what is the relationship between IPT and anti-dumping? What are their respective roles in the international division of labour and the restructuring of industry? To what extent are domestic EU producers protected by anti-dumping measures if their competitors have recourse to IPT? Are anti-dumping measures and IPT to some extent contradictory? What contribution, if any, does each make to the building of the EU in the age of globalisation? In this case, the ECJ dismissed the IPS application. A second example concerns imports of silicon metal from China.85 China was by far the world’s biggest supplier of silicon metal. The main EU users of the imports were producers of aluminium. In 1995 the Comité de Liaison des Industries de Ferro-Alliages (CLIFA) lodged a complaint on behalf of four Community producers, which allegedly represented a major proportion of the total EU silicon metal production. The Commission then initiated an expiry review of the anti-dumping measures that were then in place on silicon metal from China. Five Chinese exporters replied to the questionnaire sent as part of 81
Extramet Industrie v. Council, Case C-358/89 [1992] ECR I-3813. Calcium Metal Originating in the People’s Republic of China and Russia, OJ 1994 No. L104, p. 5 (provisional). 83 Calcium Metal Originating in the People’s Republic of China and Russia, OJ 1994 No. L270, p. 27 (definitive). 84 Industrie des Poudres Sphériques v. Council of the European Union, Case T-2/95R [1995] ECR II-485; see also Industrie des Poudres Sphériques v. Council of the European Union, Case T-2/95 [1998] ECR II-3939. 85 Silicon Metal Originating in the People’s Republic of China, OJ 1990 No. L198, p. 57 (definitive). 82
Europeanisation and Globalisation 317 the Commission investigation. All were represented by the China Chamber of Commerce for Import and Export of Metals, Minerals & Chemicals (CCCMC). During the investigation it emerged that some of the main Community importers might be related to the exporters, as part of state-controlled “Minemetals” import and export network. In the past more than two-thirds of China’s silicon metal exports had usually gone to Japan. As Japanese and other Asian markets became saturated, Chinese production declined. With the lapse of the EC and USA anti-dumping measures then in force, or at least so EC producers argued in this case, Chinese producers could regain the previous high level of production and increase exports to the EU. On the contrary, a United Kingdom aluminium producers association argued that anti-dumping measures would damage the international competitive position of EC products. The Commission accepted the former argument. It dismissed the latter on the ground that silicon metal used for the production in the EU of aluminium for export could enter the EU without duty under the inward processing procedure. In 1997 the Council imposed a definitive antidumping duty.86 A third example concerns ferro-silico-manganese (FeSiMn) from China. FeSiMn is used in the steel industry for deoxidation and as an alloy. It is mainly produced from manganese ore and silicon, which are mixed together and brought to fusion temperatures in a furnace. The main downstream user is the steel industry. The original complaint, which also concerned other importing countries, came from EuroAlliages, the association representing the Community producers of ferro-silico-manganese; the latter were located in Belgium, France, Spain, and Italy. On the other side, the Commission received comments from two user associations and one user. The users stated that the imposition of an anti-dumping duty would cause a significant increase in the cost of production of steel products. They also argued that it could also endanger the competitiveness of the EC stainless steel industry on the world market. However, the Commission concluded that FeSiMn needed for the production of exports could enter the EU under the inward processing regime without any duty; one user was in fact using this regime to import FeSiMn from South Africa. The Council in 1998 imposed a definitive antidumping duty on imports of Chinese FeSiMn.87 The EU institutions were concerned here to maintain the integrity both of anti-dumping measures to protect certain EU producers and of inward processing as a separate but restricted channel for imports for processing for export by other EU producers. The case illustrates, thus, the potentially contradictory roles of anti-dumping and the inward processing procedure. It also exemplifies the different roles assumed by each procedure concerning the role of the EU in 86
Silicon Metal Originating in the People’s Republic of China, OJ 1997 No. L345, p. 1 (defini-
tive). 87 Ferro-Silica-Manganese Originating in the People’s Republic of China, Ukraine, Brazil, South Africa and Russia, OJ 1998 No, L62, p. 1 (definitive).
318 Francis Snyder global economic networks. The assumption underlying regular imports and anti-dumping measures is that the EU is the final destination of the products. Under IPT, however, the EU serves as simply a node in a global economic network or as a processing site. To what extent are these different assumptions compatible, at least to the extent to which the firms using each import channel compete? The issue arose with regard to handbags from China. Large European firms control the major designs and thus access to the market. Sub-contractors do the work of producing handbags, which is labour-intensive. Chinese and EU producers tend to compete for the contracts. In China handbags are produced under Chinese inward processing arrangements, and thus under outward processing arrangements as seen from the EU. These IPT/OPT arrangements involve global economic networks; large EU firms may establish a Hong Kong subsidiary, which rents factory space and hires workers for production in China. In the EU handbags are produced mainly by SMEs, especially from the southern Member States. Chinese producers dominate the EU market for plastic handbags. The fiercest competition thus concerns contracts for the production of leather handbags. In 1997 the Commission imposed a provisional anti-dumping duty on plastic and leather handbags from China.88 Indonesia was chosen as an analogue country. In calculating normal value, the Commission considered that, with regard to raw materials, there were no significant differences between Indonesian producers and the Chinese producers that cooperated in the investigation. Both obtained most of their raw material on the international market under inward processing arrangements. The Commission also considered that the imposition of anti-dumping duties would not harm the exports of handbags by EU firms to China, since such exports were minimal due to the high Chinese customs duties. It should be noted, however, that global economic networks operated mainly outside this channel of trade and instead through OPT and IPT arrangements, in both the EU and China. The Commission investigation revealed that a number of EU manufacturers had already moved part of their production to China. These manufacturers, which did not cooperate in the investigation, argued that the imposition of antidumping measures would reduce employment in their EU factories. Such measures would make it impossible to cross-subsidise the manufacture of low-volume, high-priced handbags in the EU with high-volume, low-priced imports of handbags from China. Some producers, mainly in Germany and the United Kingdom, were in fact able to maintain a small EU production by achieving higher profit margins on handbags imported from China. The Commission pointed out that, even if anti-dumping duties were imposed, these firms would still be able to source handbags from China. The Commission also considered whether the imposition of anti-dumping duties would hinder EU exports of raw 88 Certain Handbags Originating in the People’s Republic of China, OJ 1997 No. L33, p. 11 (provisional).
Europeanisation and Globalisation 319 materials for handbags to be produced in China. It concluded, however, that the majority of Chinese manufacturers sourced the accessories in Asia, mostly in China itself, but also in Taiwan and Korea. It is worth noting that all of the sampled EU producers visited by the Commission in the anti-dumping investigation purchased their raw materials and accessories from EU suppliers. In 1997 the Council imposed a definitive anti-dumping duty on leather handbags alone.89 This was a compromise, especially between the northern and the southern Member States. Viewed in general terms, these two groups reflected the interests of global economic networks and EU SMEs, respectively. The Council compromise recognised the dominance of global economic networks, including Chinese producers, in the EU market for plastic handbags. It also served, at least provisionally, to protect the mainly SME EU producers of leather handbags. This EU institutional strategy aims to manage the conflicts and contradictions between Europeanisation and globalisation by separating global and domestic markets, and trying to insulate each from the other, at least temporarily and so far as possible. Whether it is feasible, and for how long, remains to be seen.
VII . CONCLUSION
Europeanisation and globalisation are both friends and rivals. EU law is an expression, a means, and an outcome of Europeanisation. At the same time certain aspect of EU law, such as the inward processing and outward processing customs procedures, respond to and encourage the development of global economic networks, which are among the basic features of economic globalisation. EU law thus is an integral part of global economic networks. But these networks have contradictory effects on the EU and its Member States, tending both to strengthen and to fragment and partly restructure them as political organisations and polities. Europeanisation and globalisation thus are complementary, partly overlapping, mutually reinforcing, but also competing processes. This chapter has emphasised the symbiotic development of global economic networks and EU international trade and customs law. It has also pointed to some present or eventual contradictions between the two. But the implications of the argument are not limited to external relations or trade. The demand for the constitutionalisation of governance in the EU stems partly from the impact and implications of globalisation; this is exemplified by economic and monetary union.90 At the same time globalisation sustains and creates interests and relationships which undercut traditional constitutionalisation as a mode of EU 89 Certain Handbags Originating in the People’s Republic of China, OJ 1997 No. L208, p. 31 (definitive). 90 See Francis Snyder, “EMU Revisited: Are We Making A Constitution? What Constitution Are We Making?”, in P. Craig and G. de Búrca (eds), The Evolution of EU Law (Oxford University Press, Oxford, 1999), pp. 471–477.
320 Francis Snyder governance. The ECJ Opinion 1/94 WTO91 and its judgment in Hermès92 can be used to support both of these points. EU law thus is at war with itself. It embodies and reflects conflicting interests and thus, partly for this reason, comprises contradictory strands. This is more true of the EU than the Member States’ legal systems because of the dimension of scale. Its implications are more far-reaching for the EU than for a Member State (though for Member States the implications of globalisation are also profound), in particular because the EU is relatively new, lacking in legitimacy, and in search of its basic values. Certain aspects of EU law, which are oriented to and foster globalisation, tend to undercut the influence of other aspects of EU law, which might otherwise lead to a stronger, more coherent process of Europeanisation. This gives the processes of Europeanisation and globalisation an especially complex character. These assertions may seem surprising if our reading of reality is limited only to processes and consequently neglects the interests and structures which underlie them. An understanding of these interests and structures is essential, however, if we are to grasp the complex interaction of Europeanisation and globalisation . It is even more important if we wish to imagine a different way of constitutionalising EU governance in the age of global economic networks and other forms of globalisation.
91 92
Opinion 1/94 World Trade Organization [1994] ECR I-5267. Hermès International v. FHT Marketing Choice BV, Case C-53/93 [1998] ECR I-3603.
17
Social Rights and Women’s Citizenship in Europe YOTA KRAVARITOU
I . INTRODUCTION : SO MANY CHANGES , SO MANY EXPECTATIONS .
The fact that fundamental rights have not been included in the Treaty on European Union is widely known, as is the necessity of their recognition and assertion.1 The steps which have been taken in order for these rights to be recognised by the Treaty of Amsterdam, although positive, do nothing but stress the gaps and incoherence of Community law. The socio-economic logic of the Treaties of Paris and Rome (which play an important part in the genealogy of fundamental rights in the European Union), the profound changes that have taken place in Europe in general and the declining importance of the nation state in the field of industrial relations have imposed a recognition at EC level of the classic social rights provided by the Constitutions of all the Member States. It is, notably, at a time when there is an absence of the right to organise and the right to strike—even though the latter seems to have lost its vitality—that collective bargaining has obtained at Community level a place not previously possessed. Its function is in a way more important and even without precedent in some Member States. If social rights keep pace with social citizenship,2 it will be interesting for those concerned with gender relations and the history of women’s rights to see whether such rights are formed in a manner parallel to, or different from, those of men. In the past the expression of “social citizenship” has referred, at least in France, to the position of women. It was different from the real political citizenship, that of men, coming very close to an oxymoronic
1 Relazione del gruppo di esperti in materia di diritti fondamentali (Simitis), Per 1’ affermazione dei diritti fondamentali nell’ Unione europea. European Commission 1999; Comité des Sages, For a Europe of Civic and Social rights, European Commission, Directorate General for the Employment and Social Affairs, 1996, B. Bercusson, S. Deakin, P. Koistinen, Y. Kravaritou, U. Mückenberger A. Supiot, B. Venezani, A Manifesto for Social Europe, Brussels, Berlin, London, Paris, 1996. 2 Alain Supiot (ed.), Au deli de 1’ emploi, Rapport pour Ie Commission européen, Transformation du travail et devenir du droit de travail en Europe, Flammarion, Paris 1999, p. 201 et seq.
322 Yota Kravaritou “passive citizenship”.3 However, fundamental rights in Europe constitute an open process, with regard being given to scientific analysis from the perspective of gender (defined as social relations between the sexes). The language of fundamental rights sheds light on the “end of the age of extremes”4 and the beginning of the millennium sees a new era that will create a “local” European civilisation where the subject of rights creates new demands and forces new consciences. It should be emphasised that in the course of the last twenty-five years, a strong critique of “human rights” has developed not only in the field of Gender/Women’s Studies but also outside this new discipline. This is due, amongst other things, to the fact that the body, the corporeality as such, is not taken into consideration. The classical subject of human rights was a neutral and disembodied individual, something that feminist theories do not accept.5 Nonetheless, it was within the context of the revolutionary movement of 1968 that the new demands were made by citizens, both women and men, for international solidarity, the internationalisation of justice, sexual rights and the cultural rights of minorities.6 These demands support a redefinition of citizenship with an emphasis on liberating the concept from the confines of the nation state, already undergoing crisis, or rather transformation, albeit as yet imperceptible. The focus of this chapter is Europe, where in historical terms citizenship first appeared and specifically those last in this land of human rights to reach full citizenship - women.7 The group ‘women’ is defined as women who live in Europe, rather than “European women”, in order to include those who have migrated. It should be noted that the category is presented in a transverse way in relation to other categories claiming a particularity of their own: such as immigrants and disabled people. This also shows the great diversity which exists among women, that indeed they are not a homogeneous category, or a class, as they have been treated by some female authors.8 The discussion relates to women, and how their citizenship is conceptualised, a notion associated with human rights which 3 William H. Sewell, Le citoyen/la citoyenne: Activity, Passivity and the Revolutionary Concept of Citizenship, The Political Culture of the French Revolution, Lucas Cohn, Editor, Oxford, Pergamon Press, 1998, vol 11, p. 105 et seq. 4 Eric Hobsbawm, Age of extremes, (1996). Christine Faure, Des Droits de l’homme aux droits de la femme une conversion intellectuelle difficile, Encyclopedic politique et historique de femmes, PUF, Paris, 1997. 5 Even though these theories were developed—and above all institutionalised across the Atlantic, they were nourished to a large extent by theoretical texts that were “imported” from Europe. But they had also been developed in Italy, France, and the Scandinavian countries. On the contrary they are left behind in these European countries, which, at the time of the development and apotheosis of the social movements of the 1960s that marked a turning-point in the content of human rights and citizenship, found themselves under totalitarian or non-democratic regimes: this was the case in Greece, as well as in Portugal and in Spain. 6 Perti Koistinen, Work and Social Rights, Working Paper, Tempere, 1998. 7 Eliane Vogel-Polsky, Les femmes et la citoyenneté européenne, Communautés européennes, WD/5, V/2337/94/Fr. 8 E.g. Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law, Harvard University Press, 1987, id., Toward a Feminist Theory of the State, Harvard University Press, 1989.
Social Rights and Womens’ Citizenship in Europe 323 is constantly evolving, especially within the framework of the European Union which already acknowledges European citizenship. It is a notion linked also to the need to create a European public space. Such a space does not exist, despite the nearly overwhelming weight that is brought to bear on the decisions taken in Member States by the role of the European Union, amounting to more than 80% of national decisions. This “democratic deficit” is well known, as is the need for a European constitution. Its realisation however, will be either linked to the full acknowledgement of the right to equality between men and women,9 10 which will, among other things, call attention to reproduction—generally excluded by the law—and everything which is related to it, or it will never happen at all, in the sense that it will be a repetition of what already exists in the constitutional charters bearing the mark of the beginning of the last century, and of what we already know, without registering the deep-felt changes that have occurred and the new demands that have appeared in the land of Europe. New demands concern equality, representation of the sexes, the new aspirations of human beings as to the authenticity of relations and, at the same time, autonomy all linked to the new needs of their “psyche”. The sciences related to the psyche, another scientific discovery of our century which is of importance to both law and human rights, help a lot in understanding it:11 this marks evolution. II . ON THE PECULIARITY OF EUROPE
Whether or not we submit ourselves to the notion of “diversified universalism”12 when it comes to human rights (something which is strongly linked to and expressing citizenship) we cannot ignore the European peculiarity. First, for historical reasons: the concept of citizenship was born in Athens, as part of the concept and function of democracy;13 it is found again with the Romans and 9
Eliane Vogel-Polsky, op. cit. Some authors in their work on Europe and for the need for a European constitution forget not only the redefinition of the relation between the public and the private sphere (that is to say, the democratisation of the rights of the private sphere) but also the simple reference to sex equality. They are male European scientists who ignore the scientific production and the gender theories concerning these specific questions. 11 On law and psychoanalysis see Pierre Legendre, Le crime du Caporal Lortie, Fayard, Paris, 1989, David Caudill, ‘Freud and Critical Legal Studies, Contours of a Radical Socio-Legal Psychoanalysis’, Indiana Law Review, 1991, p. 651 et seq., id., Lacan and the subject of Law, 1997, Alain Pottage, ‘The Paternity of Law’ in Policy, Postmodernity and Critical Legal Studies, 1994, p. 147 et seq., Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law, Drucilla Cornell, ‘What takes places in the dark’, Transformations, 1993, p. 170 et seq., Costas Douzinas, ‘Law and Emotion’, IUE seminar on Law and Love, 1997. 12 After the Ruth Lister’s phrase (Citizenship: Feminist Perspectives, MacMillan, London, 1998). 13 Whether according to Aristotle “The City is constituted by men” (andres i polis esti) it is a representation of the City nowadays. Even Claude Levi-Strauss wrote “The entire village embarked the previous day on thirty pirogues, leaving us alone with the women and the children in the quitted houses”. See Michele LeDoeuf, Le sexe du savoir, Alto, Aubier, Paris 1998, p. 14. This did not prevent Plato from providing the same education for girls and boys in his Politeia and also accepting women as guards. In Leonardo Bruni’s (Leonardo Arretino) Constitution of Florence, women are totally absent in his description of the constitution of the City of Florence. 10
324 Yota Kravaritou then within some Italian cities, such as Florence; and finally in a thriving manner during the French Revolution. In this chronological chain in the development of the concept, which is located in Europe, its content evolves and its area of application is enlarged. But citizenship is linked above all to its understanding of modernity: according to Agnes Heller “modernism, a creation of Europe, created Europe”.14 According to this author, it has to do with three elements, namely technological imagination and productivity, confidence in political life and the power of the State,15 and the legal guarantee and the “constitutionalisation” of the citizen’s fundamental rights which constitute the European legal order. The dynamic combination of these three has led to the creation of the social state in the European context—marked by the class struggle and the struggle for collective identity—themselves being considered an integral part of “......”. This European context is very different from other “local” legal orders: it is different in the case of the welfare state, for example, that conceives rights mainly in the form of rights to allowances for the deprived. Linked to the process of modernisation and to the formation of the state as a universal phenomenon, social rights are considered in all Member States of the European Union as positive rights, which is not the case in the United States or Canada.16 There are also other European legal specificities such as the European Convention of Human Rights and the European Court of Human Rights in Strasbourg which reigns in the field of human rights and is the Court par excellence in this matter for the Member States and the European Union itself. A plethora of studies exists on this subject. There is however a double shift to which special attention has to be paid.17 It has to do with the change of objective of a welfare state based in reality as well as in respect of social rights on the idea and the general principle of equality, of a more equal redistribution. There is now something of a paradigm shift, away from a concern with equality, towards a focus on social inclusion and equality of opportunity, ignoring that aspect of equality linked to redistribution. This change in respect of equality places at the same time the emphasis on responsibility, emphasising social obligations rather than social rights. This shift “despite its deployment of the . . . social exclusion . . . inclusion [discourse] reflects, more the influence of the United States”.18 But the problem is how to promote inclusion without prompting (more) equality, how in the context of entrenched structural inequalities to obtain genuine social inclusion (including also women’s social rights arising from their invisible work). 14 Agnes Heller, ‘Europe, An Epilogue?’, in B. Nelson, et al. (ed.), The idea of Europe, problems of national and transnational identity, New York, Berg, 1992. 15 Op. cit. 16 Mückenberger et al., op. cit. 17 Ruth Lister, ‘From equality to social inclusion: New Labour and the welfare state’, Critical Social Policy, 1998, p. 1. 18 loc. cit. The question is also how to develop active forms of participation where there are no jobs at all and if responsibility can be enforced by penalties. In respect of the responsibilities and attitudes of new workers, see Supiot.
Social Rights and Womens’ Citizenship in Europe 325 III . THE DISTINCTION BETWEEN THE PUBLIC AND THE PRIVATE AND THE
“ ANNEXATION ”
OF WOMEN
If equal opportunities between men and women, founded as they are on the well-known article 119 of the EC Treaty (now article 141, following the renumbering of the Amsterdam Treaty) are conceived in this narrow context and based on law which is immersed in the logic of the male norm—whether this is obvious or implicit—it will be very difficult for women to obtain their social rights in the name of equality. The whole approach will be extremely superficial; women will once more be annexed or marginalised. This “precedent” is now well known in the history of citizenship. Despite the fact that the democracy of the French Revolution’s “Declaration of the Rights of Man and Citizen” has a universalist as well as an individualistic character, and in this sense excludes nobody, thus also including women, women are in fact very soon excluded. Further still: democracy and citizenship will justly—and legally—be organised on the basis of this exclusion, which is founded upon the distinction between the public and private spheres. This distinction corresponds to a sexualisation of these spheres—which are nevertheless strictly interdependent—and of the tasks accomplished in each one. The law contributes strongly to this structuring process, mainly through the Napoleonic Civil Code, the provisions of which, regulating relations within the family, are being taken up again and will influence all European states. Women belong in the family, which is placed in the private sphere. The woman is identified with love19 and sometimes has even fewer rights than she did before. There are rights either in family law or under labour regulations.20 If the family comes between the state and the individual, it is seen as a natural entity, and the sexual division is established on a basis of these different roles, which prevents women from being present in the public sphere: the public arena belongs to men. The citizen’s status, the right to elect and be elected, belongs only to the man even when we speak of “universal suffrage”. The work of women, both that of production and of reproduction, remains invisible: it is not taken into account in public discussions and parliamentary debates and neither are the interests of women. By the time women acquire access to citizenship rights, mainly during the course of the second half of the last century, the die has already been cast, the legal structure has been built: the public interest is unable to incorporate the 19 Yota Kravaritou, ‘Du Droit et de L’Amour dans l’Union européenne’, EUI, Working Paper, no. 97/15. 20 If it were true that during the first period of a revolution, equality and rights are recognised to women - as is the case in the French and Russian revolutions - but are quickly taken back, attention has to be directed to European Community law in the hypothesis that the vital contributions of the Court of Justice on art. 119 were also linked to and influenced by the revolutionary movement of sixties (May 68) in Europe, as the conservatism of the nineties is so much in favour of “progress”. In the field of social rights in general the backlash was not limited to women. See Pierre Legendre, ‘Remarques sur la reféodalisation de la France’, Mélanges offerts à Georges Dupuis, Paris, LGDJ, 1997, p. 201.
326 Yota Kravaritou interests of women within the framework of the nation state, although these interests have both a societal and a collective connotation. The common interest had already been structured—welded even—by male citizens, in the absence of women, who, whilst linked by their “nationalisation”, being instrumentalised by the nation state, were not considered citizens and their work was always pushed aside. That’s why, although they are “annexed” to the citizenship that was historically formed by men, women have not yet acquired full citizenship. That is to say, they have not yet acquired a citizenship that recognises them as individuals who enjoy civil, political and social rights to the same extent as men, namely a citizenship where their own corporeality is taken into account. IV . THE IDEA OF CITIZENSHIP IN EUROPEAN THOUGHT INCLUDES FREEDOM AND SOCIAL RIGHTS
The composition of citizenship is evolving: without limiting itself to classical political rights as it reaches its consummation with the late inclusion of women into citizenship, as elected and electors, citizenship now embraces social rights, which themselves constitute a late addition to the cannon of fundamental rights. It has become a commonplace to say that it is through social rights that citizens can have access to dignity, in our complex, industrial and monetarist society. Thus, social rights are integrated into civil status, namely into the rights that constitute citizenship. And things could be different since fundamental rights, political and social, are indivisible. The new conception of citizenship was elaborated for the first time by the Englishman Thomas H. Marshall21 at the end of the 1940s, before the creation of the European Community, or rather during its gestation period: it is embedded in a collective vision of things which have their roots in the legal tradition of Europe. In fact, there is indeed a model of freedom as well as a conception of human rights and social rights that form part of the tradition of European society—and legal civilisation—a tradition which is quite different from the liberalism that is identified with the American model. Despite the existence of indisputably common origins, freedom in this case following Julia Kristeva “apparait comme une liberté de s’adapter à la liberté des causes et des effets: à la logique de la production, de la science, de 1’économie.”22 To be free means “libre de s’adapter au marché de la production et du profit”23 “La cause suprême (Dieu) et la cause technique (Dollar) étant des deux variantes, fort solidaires et coprésentes, qui 21 After a series of lectures in Cambridge in 1949, he published his essay Class, Citizenship, and Social Development (Anchor Books, 1965) for first time in 1950, see Alisa Del Re, ‘Per una ridefizione del cocetto di cittadinanza’, in Franca Binibi-Alisa Del Re (eds.), Genere e Democrazia, Rosenberg and Sellier, Torino, 1997, p. 63 et seq. 22 Julia Kristeva, L’avenir d’une révolte, p.99, appears as a freedom to adapt to the logic of causes and results, the logic of production, of science and of economy. 23 “Free to be adapted to the market of production and of profit” .“The supreme cause (God) and the technical cause (Dollar) being two variants, with solidarity and coexistence, which guarantee the function of our liberties in the logic one could call instrumtentalisation”.
Social Rights and Womens’ Citizenship in Europe 327 garantissent le fonctionnenment de nos libertés au sein de la logique qu’on pourrait appeler d’instrumentalisation”. Still, there is another concept of freedom based on Being and on the Being of Speech, through dialogue, that is to say through the presence of the Self in the Other. Although it has ancient (Greek) roots, it is part of the threefold motto of the French Revolution which is itself linked to—and a continuation of—the English concept of Habeas Corpus.24 This conception of freedom which favours this Being, corresponds to another model of society—different from the liberal one—which suits Europe because it is engraved in its own social experience and way of thinking: it is embedded in Europe’s social memory25 and in the collective revolutionary imagination of the French Revolution. We can think in particular of the 1848 Revolution, the Paris Commune and the Workers’ Councils. This conception which favours Being is imbued, firstly, with a concern for human life in its uniqueness. It is a facet of one of the dimensions of European culture with regard to freedom: the “valorisation” of uniqueness, intimacy, the art of living, taste, leisure, pleasure for nothing, grace, chance, ludism, waste, the “accursed share”, in short, of freedom as the essence of the “Being in the world” above all “cause”.26 But this model is, secondly, also inspired by a concern for human life in its simplicity and for the most vulnerable, namely the unemployed, the poor, sexual and ethnic minorities, and this concern has to do above all with their specific intimacy. Thirdly, at the same time, this conception offers the chance to satisfy this taste for freedom not only in private life but also in public life itself,27 that is, of expressing oneself as a citizen who participates in the Res Publica. This is an important dimension of the European model of freedom, relating to the very concept of citizenship and, for us, to the future development of European citizenship. As this model of freedom, a model of European thought, opposed to the other powerful American model of freedom, is founded upon the being but also in relation to the other—and not on the model of the omnipotent and atomised individual—it holds great interest for women, because it represents a rather relational model. It is of special relevance for women and their rights, insofar as they have been distinguished from men through their responsibilities for children and reproduction in general, responsibilities which have been imposed, rather than based on natural attributes. In any case, it is on the basis of this model of freedom and of this legal culture that Thomas H. Marshall founded his theoretical elaboration of social rights as an integral part of the status of citizenship in the twentieth century. We are familiar now with Marshall’s theory: the notion of citizenship is structured around civil, political and social rights, which correspond to three successive, historically determined periods. That is civil rights, which belong to the eighteenth century, political rights which belong to the nineteenth century and 24 25 26 27
Kristeva op cit p 100. Mückenberger et al., . op cit. Kristeva, op cit, p 102. Ibid, p. 104.
328 Yota Kravaritou social rights, which were formed in the twentieth century. All together, and in an inseparable way, they constitute the citizen’s status expressing the tendency for evolution towards the equality of all citizens. Citizenship thus becomes a status which involves both rights and obligations and grants full membership of a society. The contribution of this theory to the concept of citizenship is invaluable above all for highlighting the indivisibility of fundamental rights: it serves to update the concept, taking “social class” into consideration, regardless of the fact that it is open to criticism mainly because of its linearity. The one criticism which is probably most important derives from the study of those rights, relating to women’s citizenship, which have a different, and still largely invisible, history with regard to the recognition of their rights from that of men, with an almost inverted chronology of the main stages. In fact, women were initially granted certain social rights as wives, mothers or daughters, then political rights, whereas some of their civil rights were recognised rather recently with the major reforms of the 1970s and 1980s in the family law of Member States. Social rights as an element of citizenship acquired an even greater importance in the Europe of the late 1990s because of dramatic changes in the sphere of employment, with the growth of the classical model and the erosion of the traditional labour contract and of the social rights linked to them.28 These changes are also linked to the historically recent and persistent phenomenon of the massive participation of women in the labour market, the vast majority of whom work in the new forms of flexible employment. The changes in the field of salaried work/labour go hand in hand with the changes in the family:29 in all Member States we can observe a rise in the number of single-parent or even homosexual families, a high percentage of divorce and a low birth rate, a situation which is characterised as dramatic and new in the demographic history of the members of the European Union. We could say that women use their own bodies perhaps more unconsciously than consciously, in order to resist a policy of domination that is directed towards them and wishes to use them equally in the area of production, having them engaged in poorly-paid jobs while limiting their social rights, as well as in the sphere of reproduction involving traditional tasks, that is continuing to treat them as second-class “passive” citizens. V . CITIZENSHIP AND DOMESTIC VIOLENCE ARE NOT STRANGERS TO EACH OTHER
Citizenship which includes social rights is linked not only to independence and financial autonomy but also to protection against violence and particularly against what is known as domestic violence. In this respect, citizenship is connected to what we may call intimate citizenship—intimate citizenship is indeed 28 29
Mückenberger et al., op. cit. Olwen Hufton—Yota Kravaritou (eds), Gender and the Use of Time, Kluwer, 1999, passim.
Social Rights and Womens’ Citizenship in Europe 329 associated with the dignity and respect of the human being at work but also within the bosom of the family: furthermore, it is often centred on the ideal of the couple, featuring by definition intimate and, among others, sexual relations. If there is an increasing number of cases of domestic violence, that is also because women are not financially autonomous and they “must obey their husband entirely” according to a phrase in the Spanish Penal Code that is still in force. Although we know that this phrase will soon be eliminated, nevertheless it carries a significant historical weight and it is quite similar to other texts within the founding codes of other Member States. We are conscious of the fact that the phenomenon of domestic violence is very much present in Spain, where every ten days at least one woman is murdered by her husband or partner.30 The same situation applies equally to all other Member States of the European Union, although in Spain there is an awareness developing on a national level, whereas in most other countries this awareness is confined mainly to specialist circles, feminist associations and to the field of “feminist studies”. The delicacy of the issue31 leads to a silence which is guilty of obstructing the manifestation of resistance, and fosters an ignorance around the phenomenon. Indeed, it is the case that domestic violence now constitutes the subject of studies and inquiries in all Member States, not because it did not exist in the past, but because it was hidden, invisible, kept secret by the violated women themselves. It is a family issue, and as a Greek adage says: what goes on in the family must not be made public, (ta en oiko mi en dimo). There are, however, other reasons as well, which are contributing to the increasing occurrence of domestic violence and which are, in our opinion, associated with the employment crisis in Europe. The fear32 and insecurity it stirs among working people can result in the “outburst” of violence in the household. All the more so, since workers can no longer express violence by means of a strike, firstly, since the number of strikes in European Union countries is diminishing. Collective claims are in fact advanced through consultations, collective negotiations, social dialogue and other “soft” participation procedures, all of which are being encouraged by the European Union itself. Secondly, the social topography has sustained deep-felt changes and a strike can no longer promise anything, at least for the time being: strikes are not directed, as before, at radical social change to the advantage of working people.33 More than ever before, violence seems to be centred within the family: our times seem indeed to be harbouring domestic violence at the expense of the couple’s weakest member, the woman. And this “standstill” in the use of strike action for communication and transformation, arrives at a moment in history when the female demand for autonomy is expressed in the most powerful way ever in Europe. It is a demand 30
See Le Monde, 11-12 October 1998. Pierre Bourdieu, La domination masculine, Seuil, Paris, 1998. 32 See the papers of the conference organised by Prof. Aliprantis at the University of Thrace, Komotini 15-17 October 1998 on “The fear of workers and the Labour Law”. 33 See papers of the conference organised by Fz. Denuer and Bo Stråth on the subject “From Social to Political Violence”, IUE, Florence 16-17 October 1998. 31
330 Yota Kravaritou which also encompasses the demand for self-determination and self-definition even within the bosom of the couple, which is no longer what it used to be. Thus, this intimate citizenship, which amounts to the consolidation of women’s civil status with the need to allow them to fulfil themselves, requires the recognition of full, modern citizenship, as defined by Thomas H. Marshall, although he had not considered women’s rights. Intimate citizenship requires that citizenship include social rights. These two dimensions of citizenship cannot be dissociated from one another. As has been mentioned, human rights are indivisible.
V 1 . RE - ESTABLISH THE LINK WITH THE HISTORY OF WOMEN ’ S
“ VINDICATIONS ”
IN EUROPE .
The demand to take women’s rights and viewpoints into account within international human rights charters has a long history which goes back at least two centuries, although the treaties and manuals on human rights have never—up to now—mentioned these legal claims. To overlook this history impairs one’s understanding of the development of human rights discourse in Europe. It also suggests that human rights do not evolve in a linear manner, that there is no continuous progress, but rather a series of exclusions and reappearances. The history of women’s legal claims in Europe, with regard to human rights and citizenship, remains as yet incomplete. That human rights should be recognised in the so-called private sphere was first advocated, as far as we are aware, by Olympe de Gouges, who one can describe as one of the ‘founding mothers’ of equality in Europe.34 Human rights in this context had for a long time been concealed and kept outside the realm of law, reproduction, sexual relations in their various manifestations, affective and other relations in the bosom of the family and access to dignity through economic independence (both for women and children). De Gouges made this claim in the Declaration of the Rights of Woman and Citizen which she wrote in 1791, a historical legal document whose unique importance lies in the fact that it demonstrates a different approach to equality based on experience, the lived experience, which is related to the small physiological differences of women—and the legal claims that derive from such. This different approach, which acts as a complement and a counterbalance to the concept of equality and citizenship proposed by men, is drafted in legal language,35 containing 17 arti-
34 Sophia Aboudrar-Ravanel, Olympe de Gouges, Construction normative et feminite: sens importe du modele declaratif, paper presented to the Conference organised by the IUE in Florence, 3–4 June 1999 on “Founding Mothers of Equality in Europe”, see also Cristine Clément, Olympe de Gouges et nous, Lettres francaises, March 1992. 35 It is a pity that lawyers feminist who cite the work of Carol Gilligan in a “different voice, etc” ignore the text of Declaration of Woman and Citizen Rights of 1791; Joan Scott, Only Paradoxes to offer, 1997.
Social Rights and Womens’ Citizenship in Europe 331 cles and an addendum;36 nevertheless, it is still largely ignored by traditional legal scholarship. It is certainly inspired by the Universal Declaration which contains exactly the same number of articles, but an attentive reading shows that far from being a copy or a paraphrase of the famous text, it radicalised “human rights” by extending them to the private sphere and particularly to the relations between women (and children). De Gouges’ Declaration not only extends human rights to all human relations, but it also extends them to the relations that are considered to belong to nature, and at the same time to an intimacy that is untouched by law. In a certain way, Olympe de Gouges introduces what we can today call intimate citizenship, which concerns the most personal and ineffable relations between men and women in a couple.37 Intimate citizenship, which had been forgotten by the law for more than 200 years, now timidly reappears. It is beginning to be considered an important dimension of the concept of citizenship. We could find a sort of continuation of this idea that encompasses in the notion of citizenship the respect for intimacy of every person—an intimacy which is also related to certain biological characteristics—in the “projet d’un code civil de citoyenneté”38 elaborated by Luce Irigaray and Renzo Imbeni and submitted to the European Parliament before the adoption of the Treaty of Amsterdam in 1997. The project proposes certain elements for the construction of a (novel) European citizenship, insisting mainly on the (re)definition of civil identity. This will allow a person to pass from the sphere of natural intimacy to the sphere of civil life, without conceding the uniqueness (in one form or another) of the family, as was the case in the past, or in a neutral identity which signifies a partial loss of one’s own identity. Therefore, in order to build the European identity, we must ensure the passage from the natural identity to the civil one in a union whose formation will depend on the connection between naturality and living together on a level of relations between men and women, between generations and between cultures (races, religions). The cornerstone of the proposed code is the status of people as civil persons and—as opposed to the existing civil codes which are centred around rights related to the possession of goods—a person’s identity and the relations between them as citizens. It is being that counts, not having. Among the factors which have made actual civil identity a reality are, in addition to the practice of living together in various cultures, the relative 36 Ute Gerard, ‘Human Rights Women’s Rights 1789’, Feminist Legal Theory in Europe, Faculty of Law, University of Lunz, 1996. 37 After Joan Scott (Only Paradoxes to Offer, 1997), in Olympe de Gouges’ Declaration there is perfect equality in relation to desire: masculine desire is not the necessary complement of love, but feminine sexual desire appears as one of the equal components in the construction of the heterosexual couple; women are not transformed in object but they have their own desire for another, which is an expression of the will of the feminine self. De Gouges’ understanding of women’s rights is not limited to political activism as was the case for members of the “Societé des citoyennes républicaines revolutionnaires”; see D. Gay Levy, H. Branson Applewhite, M. Durham Johnson, Women in Revolutionary Paris 1778-1795, Urbana, 1979. 38 Luce Irigaray, La democrazia comincia a due, Torino, Bollati Baringhieri, p. 62 et seq.
332 Yota Kravaritou fragmentation of the family and the absence of rights and responsibilities conferred on real civil persons, namely men and women; this is particularly the case in respect of women, who were only recently emancipated from paternal and maternal authority.39 This is manifest in the types of violence to which they are subject—such as rape—and the nature of the trials that follow. It is the same with the choice of motherhood, which in the best case is defined as a permission to have an abortion without suffering criminal consequences, that betrays the patriarchal power contained in the law and still exercised by legislating on the body of the woman, even of the adult woman.40 The criticism attached to the philosophy of the rights contained in the Civil Codes, based on “having”— which includes even the human body itself—is absolutely correct, but it is very general on one side and very partial on the other. As far as this last issue is concerned, we would argue that although not everything can be reduced to the “economic”, the recognition of social rights in their economic dimension is a determining and absolutely indispensable—though not—element for the recognition of full citizenship for women. The existence of article 7 in the Maastricht Treaty, which recognises European citizenship (a new institution in international law aiming to reinforce the protection of the rights and interests of those domiciled in European Union Member States) does not however, provide for dual nationality (nor the replacement of one nationality by the other). This provision has not been altered in any meaningful way by the Treaty of Amsterdam, which simply added the following phrase in article 8: “Citizenship of the Union shall complement and not replace national citizenship” and has paved the way for new proposals aimed at putting an end to “the scandal of the confiscation of political economic and social power by men.41 Notably, the proposals include those elaborated by Eliane Vogel-Polsky concerning the introduction of parity in the decision-making mechanisms of the Community, at all levels of the three powers: executive, legislative and judicial. In addition, the proposals recommend the recognition of the fundamental right to equality between men and women within the judicial order of the Community in such a way that all Community action and policies will be subject to it. These proposals, despite their well-elaborated and clearly justified legal basis, were not actually discussed within the framework of the Intergovernmental Conference, nor were they adopted. The issue of the effective citizenship of women in Europe is one which still remains to be resolved. It is linked to the recognition of social rights as part of the category of fundamental rights, since all rights are indivisible. They have to be discussed in depth during the next Intergovernmental Conference. 39 Naomi Schor, ‘Cet essentialisme qui n’(en) est pas un: Irigaray a bras le corps’, Future Anterieur, 1994,p.106. 40 This seems to be the case when the law denies abortion for social reasons e.g. the poverty of parents, and requires the continuation of an unwanted pregnancy, which will probably create problems, including problems of a psychological order as well, for the members of the family including the unwanted child. 41 Eliane Vogel-Polsky, op. cit.
Social Rights and Womens’ Citizenship in Europe 333 VII . FOR AN EFFECTIVE
“ EUROPEANISATION ”
OF CITIZENSHIP : IT DOES NOT
ONLY CONCERN WOMEN
European citizenship implies a new identity for the male and female citizen, which goes beyond everything else, incorporating at the same time national identity, in the direction of a “lieu of unity” where new “patriotic” ties of affection and identification are emerging which can perhaps be labelled “Europatriotic”. Although so much has been said about the “end of work”, we know that access to dignity necessarily involves the recognition of social rights and the autonomy they guarantee, that this much is an integral part of citizenship in Europe. But these rights should be the updated social rights which also recognise the (necessary, socially essential and up until recently invisible) work, the work of reproduction—once more identifying it with one of the two sexes— as well as the social rights which (re)distribute this work between the two sexes (we must indeed make the distinction between physical and social reproduction) placing it in the centre of social concerns. If this dimension of European citizenship, in harmony with the concern for the “common good” and the collective (common) interest, contributes to the recognition of the necessary work provided by one of the sexes by including it in the concept of citizenship, there is also another dimension which has to register the tendency towards greater autonomy of individuals, women as much as men, which is unfairly called “tendency of individualisation” when it is a matter of the quest for the most authentic and chosen ties. In this sense, fundamental rights should also include this dimension, which we have termed “intimate citizenship”. These two dimensions of citizenship, that is the joint undertaking of reproduction (including generation) and the guarantee of the autonomy of individuals, are strictly interdependent for women: one completes the other, and the two together express full citizenship, such as it had been imagined by some women about two centuries ago. Not having been realised by the nation state, which is probably unable to do it—especially now that the nation state is losing its capacity to satisfy its citizens’ needs—it becomes the duty of the European Union, as well as a condition for an effective (new, dynamic and innovative) European citizenship. Indeed, there are certain classical social rights which urgently need to be recognised on a Community level, such as the right to organise collectively and the right of association and to strike, since the right to bargain collectively already exists at a European level. The end of the last century enlarged the frontiers of citizenship so much, sexualising (engendering) it at the same time, that these social rights, however necessary, seem to belong to past times. They will amount to only a part of European social citizenship42 which should make greater progress towards conjugating rights in the “feminine’ form as well: so that “human rights” may be updated, so that society may become fairer not only with regard to women. 42
Mückenberger et al., Manifest, op.cit. chap. V, VI et passim.
Index Administrative law: anciens regimes, 143, 144, 145 approximation of laws, 165, 166, 174–5 Benelux, 166 change, 163–5 codification, 8, 165, 175–80 common law/continental law contrasted, 143–4, 147–8, 152 comparative law, 165–6 convergence, 7, 8, 142, 163–81 courts, 146 discretion, 144, 145, 146, 147, 151 European Convention on Human Rights (1950), 166, 167, 169, 172–4 France, see under France Germany, see under Germany interim relief, 170–1 Italy, 145, 150, 151, 152, 157 legal history, 141–54 legality, 150 legitimate expectations, 168–9, 254 mosaique juridique, 166 obligations, reasons, 169–70 police power, 142, 143, 146, 148, 150, 157, 158 proportionality, 166–8 Spain, 157, 166, 170 tribunals, 147, 148, 152 UK, see under United Kingdom United States, 147, 149, 151, 153 Amarelle, Celsa, 4, 8, 9, 219–41 Amato, Giuliano, 4, 5, 7, 141–61 Annulment proceedings: Court of First Instance (CFI), 97 ECJ decisions, 93 European Parliament, 93, 99 Anti-dumping: calcium, 315–16 China, 299, 315–19 downstream users, 315 economic relationships, 295 ferro-silico-manganese (FeSiMn), 317 global economic networks, 315 handbags, 318 silicon, 316–17 see also International trade Approximation of laws, 165, 166, 174–5 Austin, John, 126 Australia, production regimes, 259 Austria: European Convention on Human Rights (1950), 173 interim relief, 170–1
production regimes, 259 Autonomy: Community law, 127–31 direct effect, 127–8 implied powers, 130–1, 132 institutions, 95 national, ECJ decisions, 16 public prosecutions, 5, 37 supremacy, 128–9 Bangemann Report (1994), 112, 118 Belgium: European Convention on Human Rights (1950), 173, 174 ferro-silico-manganese (FeSiMn), 317 freedom of association, 197, 199 obligations, reasons, 169 Benelux: administrative law, 166 Belgium, see Belgium Holland, see Netherlands Bercusson, Brian, 4, 8, 195–209 Bertelsmann, 109, 122 Bieber, Roland, 4, 9, 219–41 Boehmer, Gustav, 55 Bohm, Franz, 56 Bona fides, see Good faith Business associations: Germany, 261, 265 United Kingdom, 264–5 Caemmerer, Ernst von, 77 Calabresi, Guido, 71 Canada, production regimes, 259, 261 Cantwell, John, 300, 301 Central and Eastern European Countries (CEECs): international production networks (IPNs), 297 outward processing (OPT), 297, 304 Chambre Syndicale de l'Electrometallurgie et de l'Electrochimie, 315 China: anti-dumping, 299, 315–19 Chamber of Commerce for Import and Export of Metals, Minerals and Chemicals (CCCMC), 316 EC trade statistics, 301 Hong Kong, 298 International Convention on the Simplification and Harmonization of Customs Procedures (1973), 308
336 Index China (cont.): National Nuclear Corporation (CNNC), 315 Nuclear Energy Industry Corporation (CNEIC), 315 Organisation for Economic Cooperation and Development (OECD), 299–300 Special Economic Zones (SEZs), 298 tariff barriers, 300 textiles, 303 Civil Aviation Authority, 148 Clinton, William Jefferson (Bill), 34 Codification: administrative law, 8, 165, 174–80 certainty, 178 Commission, 234–5 consolidation, 178–80 convergence, 175–80 Council of Ministers, 236 Customs Code, 175 de lege lata, 235 European Council, 223, 234 European Parliament, 234 Germany, see under Germany horizontal, 175, 230 impediment to development, 177–80 indirect administration, 165, 176 Inter-Governmental Conferences (IGC), 231 Interinstitutional Agreement (1994), 234–5 legislation, 176–7, 233 possible content, 177–8 refonte, 235 transparency, 178, 181, 231 treaties, 231–2 Colbert, Jean Baptiste, 157 Comite de Liaison des Industries de FerroAlliages (CLIFA), 316 Comite Europeen de la Normalisation, 237 Comitology: European Parliament, 93 regulation, 215 Commission: codification, 234–5 Delors White Paper (1993), 274 Directors-General, 21 dismissal, 215 division of powers, 98 dumping, see Anti-dumping ECJ cases: infringement proceedings, 22 observations, 20 globalisation, 296–7 Green Paper (1984), 102 institutional balance, 92 international trade, 296–7 Legal Service, 20–1 legitimacy, 216 media law, 108–9, 111–14, 117–21
national courts, assistance, 88 refonte, 235, 236 safeguarding law, 17 sector-based simplification (SLIM), 239–40 self-restraint, 237 sincere cooperation, 88 single market programme, 16 transparency, financial relations, 92 White Paper (1985), 80, 236 Commission on Industrial Relations, 148 Common agricultural policy (CAP): customs warehousing, 310 outward processing (OPT), 308 Common Customs Tariff: equivalent goods, 314 simplification, 229 see also International trade Community Charter of the Fundamental Rights of Workers (1989), 202, 203, 206 Community law: accessibility, 220, 222, 226 autonomy, 127–31 competences, 102, 104, 130 complexity, see Complexity connection with national law, 131–5 constitutional law, 129, 135–8, 224–5 inward processing (IPT), 305–8 merger control, 107–15 outward processing (OPT), 305–8 pillar structure, 223–4 pluralism, see Pluralism political science, 15–17 principles: general, see General principles of EC law institutional, see Institutional principles simplification, see Simplification trade union rights, 8, 9, 195–209 treaties, see Treaties Community legal order: cooperation, see Sincere cooperation democracy, 6, 85, 95–6, 97 direct effect, see Direct effect institutional balance, 6, 84, 91–3 legal personality, 130 principles: general, see General principles of EC law institutional, see Institutional principles proportionality, see Proportionality subsidiarity, see Subsidiarity supremacy, 88–9, 100, 128–9 Companies: Germany, 260 small and medium-sized enterprises (SMEs), 301–2 Comparative law: administrative law, 165–6 convergence, 245, 258 functional equivalence, 245, 258
Index 337 Competences: community law, 102, 104, 130 media law, 102, 103, 104, 111–13 merger control, 111–13 subject matter, 102, 103 Complexity: causes, 223–6 Community law, 9–10 democracy, 220 European integration, 224–5 evolutionary, 223–4 inaccessibility, 220, 222, 226 legislation, lack of coherence, 225 pillar structure, 223–4 see also Simplification Consolidation: codification, 178–80 legislation, 232, 233 simplification, 232, 233 treaties, 227, 230–1 Constitutional law: Community law, 129, 135–8, 224–5 dualism, 135, 136 Germany, 50, 86, 91, 102, 103, 112, 172, 197 human rights, 131, 135, 172, 203–4 interactionist model, 138 mixed commonwealth, 138 organicist model, 138 pluralism, 136–8 politics, 133 simplification, 223–6 statist conventional model, 137–8 United States, 127, 128 Constitutionalism: ECJ decisions, 9, 15, 273 employment law, 275 general principles of EC law, 99 globalisation, 294 political values, 5 trade union rights, 196 Consumer protection, good faith, 243 Contracts: employment, 280, 282 good faith, 243, 244, 245, 253, 257, 259, 264 United Kingdom, 243, 244, 245 United States, 243 Convergence: absence, 176, 181 administrative law, 7, 8, 142, 163–81 codification, 175–80 comparative law, 245, 258 Europeanisation of law, 4 globalisation, see Globalisation institutional transfer: organic/mechanical, 250–1, 252, 255 politics, 256 tight/loose coupling, 252–5 legal culture, 246–7, 253, 256
new divergences: binding arrangements, 10, 250–1, 262, 263 co-evolving trajectories, 262–7 context versus autonomy, 246–50 law/social fragments, 255–8 legal irritants, 10, 243, 253, 262, 263, 267 legal transplants, 243–6, 262 production regimes, 258–62, 263–6 see also Good faith non-majoritarian institutions, 7 partial convergence, 7–9, 141–209 present state, 165–75 public interest: economic activities, 141–61 structural contextuality, 7 single currency, 269 socio-economic, 245 standardisation: legal rules, 252 United Kingdom, 264–6 trade union rights, 8 Cooperation, see Sincere cooperation Council of Europe: European Social Charter (1961), 201, 202 trade union rights, 8, 197, 200, 201–2, 203, 209 see also European Convention on Human Rights (1950) Council of Ministers: codification, 236 ECOFIN, 274 Employment Committee, 288 European Council, see European Council Legal Service, 20 negotiations, 17 Social Affairs, 274 treaty consolidation, 227 urgency, 94 Court of Auditors, 179 Court of First Instance (CFI): annulment proceedings, 97 principle of democracy, 96, 97 trade union rights, 196 see also European Court of Justice Court of Justice, see European Court of Justice Customs Code: codification, 175 prior exportation, 306–7 refonte, 233 simplification, 219, 233 see also International trade de Vitoria, Francisco, 126 de Witte, Bruno, 4, 6, 83–100 Decision-making: co-decision procedure, 227, 235 cooperation procedure, 227 juridification, 17–21
338 Index Defrenne, Gabrielle, 24 Dehousse, Renaud, 4–5, 15–27 Delors, Jacques, 215, 225, 274 Democracy: Berlusconi effect, 216 Community legal order, 6, 85, 95–6, 97 complexity, 220 consumption, 216 degradation, 216 deliberations, 216 democratic deficit, 213, 214, 215, 216 Europeanisation of law, 9 legitimacy, 213, 214, 216 mass media, 215 political culture, 213–18 principle of toleration, 217–18 Prodi effect, 216 referenda, 215–16 representative, 214 Schroeder effect, 216 simplification, 220 technocracy, 220 treaties, 215 Denmark: freedom of association, 199, 205 interim relief, 170 Deregulation: employment, 238 internal market, 236 meaning, 221 re-regulation compared, 141–2 simplification, 221, 238–9 see also Regulation Deutsche Telekom, 109, 111, 122 Dicey, Albert V., 147, 164 Diez-Picazo, Luis Maria, 4, 5, 31–43 Direct effect: autonomy, 127–8 individual rights, 22, 128 institutional principles, 88–9, 100 meaning, 136 sincere cooperation, 98 sovereignty, 128 Due, Ole, 176 Economic and Monetary Union (EMU): cooperation procedure, 227 employment law, 274 European integration, 221 single market, 195 social partners, 274 Economic and Social Committee (ECOSOC), 229 Economics: anti-dumping, 295, 315 employment law, 276–80 networks, globalisation, 11, 293–20 outward processing (OPT), 303
public interest, 141–61 regulation, 154–61 Special Economic Zones (SEZs), 298 Einstein, Albert, 219 Employment law: adaptability, 277, 278 association, see Freedom of association Community Charter of the Fundamental Rights of Workers (1989), 202, 203, 206 competition, 280, 281 constitutionalism, 275 contract of employment, 280, 282 deindustrialisation, 278 Delors White Paper (1993), 274 deregulation, 238 differentiation, 10 Economic and Monetary Union (EMU), 274 economics, 276–80 education and training, 271–2 equal treatment cases, 22, 23, 24, 25 geography/cultural studies, 280–3 global/local, 269, 274, 278, 280, 281 globalisation, 270–1, 273, 275, 276, 277, 282, 285–7 glocalization, 281 individualism, 271 instability, 272 institutions, 275 Inter-Governmental Conferences (IGC), 286, 287 internal market, 10 international law, 283–5 legal culture, 272, 282–3, 288 new theories/new sources, 270–5 past/future, 269–89 pluralism, 272 politics, 256 procedural developments, 274 production regimes, 279 re-nationalisation, 269–70, 288 reflexive modernisation, 271 reflexive traditionalism, 271, 272 Regulation School, 277 Social Chapter (1992), 204, 269, 270, 279, 288 subsidiarity, 272 trade unions, see Trade union rights treaties, 273–4, 286, 287–9 unemployment, 274, 278 working time, 17–18 works councils, 198, 199, 281 England, see United Kingdom Equal Opportunities Commission, ECJ decisions, 23 Eucken, Walter, 56 European Convention on Human Rights (1950): administrative law, 166, 167, 169, 172–4
Index 339 Austria, 173 Belgium, 173, 174 ECJ decisions, 85, 131, 204 France, 172 freedom of association, 201, 204 freedom of opinion, 106 Germany, 172, 173 Ireland, 172, 173 Italy, 172 Netherlands, 174 Portugal, 173 private/family life, 167 proportionality, 167, 174 United Kingdom, 172–3 see also Human rights European Council: codification, 223, 234 Edinburgh (1992), 223, 234 Madrid (1995), 274 refonte, 233 self-restraint, 237 simplification, 222, 233 Turin (1996), 222 see also Council of Ministers European Court of Justice (ECJ): annulment proceedings, 93 autonomy, EC law, 127–31 CFI, see Court of First Instance constitutionalism, 9, 15, 273 deadlines, 228 Equal Opportunities Commission, 23 equal treatment cases, 22, 23, 24, 25 European Convention on Human Rights (1950), 85, 131, 204 Germany, private law, 6, 79 indirect administration, 8, 165 inter-institutional litigation, 18–19, 20 inward/outward processing, 308–14 juridification of politics, 4–5, 26–7 jurisdiction, 132 legal entrepreneurs, 24 national autonomy, 16 obligations, reasons, 169, 170 parental leave, 207 political significance, 4–5, 16–17 preliminary rulings, 22–3 principles: general, see General principles of EC law institutional, see Institutional principles repeat players, 23 strategic litigation, 21–6 Sunday trading cases, 22, 24–5 test cases, 24 trade union rights, 9, 195–6, 200–5 European Economic Area (EEA), agreement, 97 European integration: communautarisation, 224, 244, 264
complexity, 224–5 Economic and Monetary Union (EMU), 221 functionalism, 134 Germany, 74 intergovernmentalism, 134 modus vivendi, 134–5 novelty, 224–5 sector-based, 221 European Parliament: ad hoc procedures, 20 annulment proceedings, 93, 99 budgetary matters, 94 codification, 234 comitology, 93 Commission, dismissal, 215 Committee on Employment and Social Affairs, 206 direct elections, 230 freedom of association, 198 institutional balance, 92–3 internal organisation, 87–8 legal policy, 18–19 Legal Service, 20, 21 procedural rights, 92–3 sincere cooperation, 94–5 television, 119 trade union rights, 198, 206, 207, 208, 209 urgency, 94 European Social Charter (1961), 201, 202 European University Institute (EUI): EUI Convention (1972), 1 Law Department, 1–2 legal scholarship, 2–3, 7, 8, 11 meta-translation, 5–6 Robert Schuman Centre, 1 Europeanisation of law: convergence, see Convergence democracy, 9 Germany, 74–82 globalisation, 10, 293–320 inward processing (IPT), 302–5 main themes, 3–4 outward processing (OPT), 302–5 regulation, 270 unintended consequences, 4, 9–11, 213–320 Ewald, William, 246, 250, 252 Extramet, 315–16 Feudalism: corvees, 155 United Kingdom, 155 Finland, freedom of association, 205 Flume, Werner, 53, 67–8 Food, regulation, 143, 155, 156 Foreign direct investment (FDI), 300 France: administrative law: approximation of laws, 174, 175
340 Index Decision-making (cont.): administrative law (cont.): convergence, 8, 164, 166 flexibility, 172 French Revolution, 143, 144 interim relief, 170, 171 legal history, 143, 144–5, 149–50, 157 obligation to give reasons, 169, 170 Civil Code, 145, 180 Conseil constitutionnel, 21, 167 Conseil d'Etat, 144, 148, 167, 172 empty chair policy, 17 European Convention on Human Rights (1950), 172 ferro-silico-manganese (FeSiMn), 317 freedom of association, 197, 204 Inter-Governmental Conferences (IGC), 225 private law, 48 proportionality, 167 public prosecutions, 5, 31, 35 Regulation School, 277 Freedom of association: Belgium, 197, 199 concept, 197–9 Council of Europe, 197, 200, 201–2, 203, 209 Denmark, 199, 205 ECJ decisions, 200 European Convention on Human Rights (1950), 201, 204 European Parliament, 198 Finland, 205 France, 197, 204 Germany, 197 ILO Conventions, 197, 200, 203, 209 Ireland, 197 Italy, 197 Netherlands, 197, 199 strategic options, 205–7 Sweden, 197, 199, 205 United Kingdom, 197 see also Trade union rights Galanter, Marc, 23 General Agreement on Tariffs and Trade (GATT), 275, 308 General principles of EC law: constitutionalism, 99 fundamental rights, 83 individual rights, 83, 98 institutional principles distinguished, 84 meaning, 83 objects, 96 proportionality, 97 sincere cooperation, 97 supremacy, 89, 100 unwritten character, 83 see also Institutional principles
Germany: administrative law: approximation of laws, 174, 175 convergence, 8, 164, 166 legal history, 145, 150 obligation to give reasons, 169 Basic Law, 50 Bertelsmann, 109, 122 Bundestreue, 86 business associations, 261, 265 codification: administrative procedure, 175, 178, 179 Civil Code (BGB), 53, 61, 65, 68, 72, 74, 175, 253, 260 Federal Republic, 49, 65–6, 73 companies, 260 competences, subject matter, 102, 103 constitutional court, 104, 112, 172 constitutional law, 50, 86, 91, 102, 103, 112, 172, 197 denationalisation, private law scholarship, 76–8 Deutsche Telekom, 109, 111, 122 ECJ decisions, 6, 79 European Convention on Human Rights (1950), 172, 173 Europeanisation of law, 74–82 Federal Republic: codification, 49, 65–6, 73 European integration, 74 Keynesianism, 63 long fifties, 63, 66 self-confidence, 61–2 Welfare State, 63–4 federalism, 102–3 formalism, 53–4, 60 Free Law school, 62 freedom of association, 197 Freiburg school, 59 given and spontaneous orders, 68–70 good faith, 253, 259, 260 individual rights, 164 Interest Jurisprudence, 54–5, 58, 62, 77 Kiel School, 55 Kirch, 109, 122 Lander, 102, 103, 112, 119, 123 legal dogma, 254 media law, 103, 104, 105, 108–9, 113, 119 National Socialism: anti-liberalism, 58, 61 collapse, 50 legacy, 5, 49 seizure of power, 56, 62 Volksnation, 49, 50, 54, 58 Ordoliberalism, 53, 56–8, 64, 67, 69, 70, 78–9 outward processing (OPT), 310–11, 312–13 positivism, 51–2, 54, 55
Index 341 post-war re-orientation, 50–62 private law: context, 65–7 defence, 67–70 good faith, 254 nation-state, 5–6, 47–82 pre-political, 67–8 private law society, 78–82 realistics, 70–3 social private law, 58–60 social-ethical private law, 60–1 production regimes, 259–61, 263 proportionality, 91, 166 public prosecutions, 5, 31, 35, 42 Rhineland capitalism, 259 Supreme Court, 286 trade union rights, 260 Treu und Glauben, 253, 263 Value Jurisprudence, 55, 58 volkisch legal thinking, 49, 53, 54, 60 Volksgeist, 48, 54, 256 Wacker Werke, 312–13 Weimar Republic, 49, 56 Globalisation: Commission, 296–7 conflicts, 303 constitutionalism, 294 economic networks, 11, 293–320 employment law, 270–1, 273, 275, 276, 277, 282, 285–7 Europeanisation of law, 10, 293–320 fragmentation, 245–6, 248 G7 summits, 281, 283 governance, 304 international production networks (IPNs), 295, 296 intra-industry trade (IIT), 300 legal culture, 248–9 media law, 6, 111, 122–3 polyculturism, 248 production regimes, 258 Good faith: communitarian values, 244, 264 consumer protection, 243 contracts, 243, 244, 253, 257, 258, 264 functions, 254 Germany, 253, 259, 260 international law, 87, 97, 244 legal culture, 253 legal irritant, 10, 243, 253, 262, 263 legal transplants, 243–6, 262 production regimes, 245, 258, 264, 265, 266 United Kingdom, 10, 243–67 Governance: democracy, see Democracy globalisation, 304 media law, 6 regulation, 215
remoteness, 215 structural change, 4, 5–7, 47–138 see also National governments Groupe Molitor (1995), 238 Hallstein, Walter, 57 Harlow, Carol, 16 Hart, H.L.A., 126 Hartley, T.C., 100 Hayek, F.A. von, 69–70, 122 Heck, Philip, 55 Hegel, Georg Wilhelm Friedrich, 126 Herder, Johan Gottfried von, 256 Hobbes, Thomas, 126 Hoffmann, Stanley, 16 Holland, see Netherlands Human rights: constitutional law, 131, 135, 172, 203–4 see also European Convention on Human Rights (1950) Independent Broadcasting Authority, 148 Indirect administration: codification, 165, 176 ECJ decisions, 8, 165 Individual rights: direct effect, 22, 128 general principles of EC law, 83, 98 Germany, 164 United States, 128 see also European Convention on Human Rights (1950) Industrial relations, see Trade union rights Industrie des Poudres Spheriques (IPS), 316 Information technology: Bangemann Report (1994), 112, 118 multimedia, see under Media law Institutional principles: Amsterdam Protocol, 88, 90 Community legal order, 83–100 conferred powers, 85 construction/interpretation, 86, 89, 96 democracy, 6, 85, 95–6, 97 development, 99–100 direct effect, 88–9, 100 enforcement, 96–9 general principles, 84, 86 horizontal, 84, 91–6 institutional balance, 6, 84, 91–3 inter-institutional dialogue, 94, 95 invocability, 97, 98 legal norms, 85 particular institutions/contexts, 85 primacy of EC law, 88–9, 100 proportionality, 90–1, 96, 99 sincere cooperation, 6, 84, 86–8, 92, 93–5 subject areas, 84 subsidiarity, 6, 84, 90–1, 96, 99
342 Index Institutional principles (cont.): vertical, 84, 86–91 see also General principles of EC law Institutions: autonomy, 95 Council, see Council of Ministers division of powers, 98 ECJ, see Court of Justice employment law, 275 European Commission, see Commission institutional balance, 6, 84, 91–3 inter-institutional dialogue, 94, 95 inter-institutional litigation, 18–19, 20 Interinstitutional Agreement (1994), 234–5 non-majoritarian, see Non-majoritarian institutions Parliament, see European Parliament principles, see Institutional principles sincere cooperation, 88, 92, 93–5 trade union rights, 207–8 Integration, see European integration Inter-Governmental Conferences (IGC): codification, 231 Community preference principle, 229 employment law, 286, 287 France, 225 legitimacy, 216 Reflection Group, 225 simplification, 222, 225, 227–8, 229, 230, 231–2 trade union rights, 196, 206 Interim relief, common principles of law, 170–1 Internal market: deregulation, 236 employment law, 10 EMU, see Economic and Monetary Union media law, 101, 103, 107 sector-based simplification (SLIM), 239–40 simplification, 236–40 single market programme, 16 International Convention on the Simplification and Harmonization of Customs Procedures (1973), 308 International Court of Justice, 132 International Dairy Agreement, 308 International Labour Organisation (ILO): collective bargaining, 201 Freedom of Association Committee, 201 strikes, 201 trade union rights, 8, 197, 200–1, 203, 204 International law: civitas maxima, 126 Council of Europe, see Council of Europe employment law, 283–5 good faith, 87, 97, 244 human rights, see European Convention on Human Rights (1950)
ILO, see International Labour Organisation inward processing (IPT), 308 jus gentium, 125 modernity, 125–6 pacta sunt servanda, 89 paradigms, 125–7 private law, 48, 76–7 proportionality, 166 reciprocity, 132 self-help, 132 International production networks (IPNs): Central and Eastern European Countries (CEECs), 297 globalisation, 295, 296 inward processing (IPT), 296 outward processing (OPT), 296 International trade: CCT, see Common Customs Tariff China, see China Commission, 296–7 Customs Code, see Customs Code customs warehousing, 309, 310 division of labour, 297, 305 dumping, see Anti-dumping General Agreement on Tariffs and Trade (GATT), 275, 308 global economic networks, 11, 293–320 IIT, see Intra-industry trade International Convention on the Simplification and Harmonization of Customs Procedures (1973), 308 International Dairy Agreement, 308 IPN, see international production networks IPT, see Inward processing OPT, see Outward processing World Export Processing Zones Association (WEPZA), 298 World Trade Organisation (WTO), 275 Intra-industry trade (IIT): foreign direct investment (FDI), 300 globalisation, 300 inward processing (IPT), 298 Organisation for Economic Cooperation and Development (OECD), 299– 300 outward processing (OPT), 298 product groups, 299 variation, 299 vertical/horizontal, 299, 300 Inward processing (IPT): China, 298 Community law, 305–8 drawback system, 305–6 dumping, see Anti-dumping ECJ decisions, 308–14 equivalent compensation, 306 Europeanisation of law, 302–5 industrialised countries, 297 international division of labour, 305
Index 343 international law, 308 international production networks (IPNs), 296 intra-industry trade (IIT), 298 legitimate expectations, 314 meaning, 296, 305 Netherlands, 308–9 prior exportation, 306–7 processing outside EC, 306 small and medium-sized enterprises (SMEs), 301–2 suspension system, 305 trade disputes, 295 triangular traffic, 307 volumes/use, 297, 300 see also International trade Ipsen, Hans Peter, 176 Ireland: European Convention on Human Rights (1950), 172, 173 freedom of association, 197 legitimate expectations, 168, 169 production regimes, 259, 261 Isle, Hans-Georg, 65 Italy: administrative law, 145, 150, 151, 152, 157 Consiglio di Stato, 151 corruption, 33 Direzione nazionale antimafia, 39 European Convention on Human Rights (1950), 172 ferro-silico-manganese (FeSiMn), 317 freedom of association, 197 Mafia, 39 proportionality, 167 public prosecutions, 5, 31, 32, 35, 39, 41, 42 Joerges, Christian, 4, 5, 10, 11, 47–82 Juridification: decision-making process, 17–21 limits, 26–7 politics, 4–5, 15–43 strategic litigation, 21–6 Kahn-Freund, Otto, 250, 252, 255, 256 Kant, Immanuel, 217 Kaufmann, Erich, 126 Kelsen, Hans, 126 Keohane, Robert, 16 Kirch, 109, 122 Kubler, Friedrich, 66, 67, 71, 73 La Torre, Massimo, 4, 7, 8, 125–38 Labour law, see Employment law Ladeur, Karl-Heinz, 4, 5, 6, 7, 9, 10, 11, 101–23 Legal culture: convergence, 246–7, 253, 256 employment law, 272, 282–3, 288
esprit des lois, 247, 248, 256 evolution, 249–50 globalisation, 248–9 good faith, 253 legal transplants, 247, 248, 249, 250, 262 Legal dogma: Germany, 254 legal phenomenology, 184, 185 Legal irritants, 10, 243, 253, 262, 263, 267 Legal phenomenology: before and after, 188, 189, 190, 191–3 behaviour, 184–7, 190, 191 convention, 183, 186, 191 effect and cause, 186–8 elements, 8, 183–94 induction, 188–9 legal dogma, 184, 185 logical monster, 186, 194 meaning, 193–4 mediation, 183, 186, 189–90 monstration, 183–6, 189, 191 rules, 183–5, 186, 190 similitudes, 189, 190 to know, 189–91 Legislation: codification, 176–7, 233 consolidation, 232, 233 lack of coherence, 225 refonte, 233–6 regulation, see Regulation self-restraint, 237 simplification, 232–6 treaties, see Treaties see also Community law Legitimacy: Commission, 216 democracy, 213, 214, 216 Inter-Governmental Conferences (IGC), 216 non-majoritarian institutions, 153, 154 public prosecutions, 38–9 transparency, 220 Legitimate expectations: common principles of law, 168–9, 254 inward processing (IPT), 314 Legrand, Pierre, 246–8, 251, 252 Llorente, Francisco Rubio, 214 Louis XIV, King of France, 156, 157 Mackenzie Stuart, Alexander John, 169 Mainstreaming: politics, 214 trade union rights, 205 Majone, Giandomenico, 7 Major, John, 17 Mass media: democracy, 215 law, see Media law TV, see Television
344 Index Mattli, Walter, 15 Media law: Bangemann Report (1994), 112 Commission, 108–9, 111–14, 117–21 competences, 102, 103, 104, 111–13 development of regulation, 102–7 discrimination, 103, 105 dual system, 104 electronics entertainment industry (MAC), 117 general interest, 105, 106, 121 Germany, 103, 104, 105, 108–9, 112, 113, 119 globalisation, 6, 111, 122–3 governance, 6 internal market, 101, 103, 107 markets, 6, 103, 104, 106 merger control: competences, 111–13 EC law, 107–15 horizontal mergers, 108 planned regulation, 113 vertical mergers, 108, 109 multimedia, 6, 101–23 Netherlands, 106 pluralism, 104, 105, 106, 108, 111–12 proportionality, 106 public policy, 105, 106 regulation, 6 television, see Television Merger control, mass media, see under Media law Molitor, B., 238 Monopolies and Mergers Commission, 148 Montesquieu, Charles Louis de Secondat, 43, 247, 248, 251, 256 National governments: ECJ cases, observations, 20 governmental crime, 33–4 market/social values, 10–11 National laws, convergence, see Convergence Nerhot, Patrick, 4, 8, 183–94 Netherlands: capitalism, 155 European Convention on Human Rights (1950), 174 freedom of association, 197, 199 inward processing (IPT), 308–9 legitimate expectations, 168 media law, 106 proportionality, 168, 174 New Zealand, production regimes, 259, 261 Nietzsche, Friedrich Wilhelm, 186, 194 Non-majoritarian institutions: convergence, 7 legitimacy, 153, 154 separation of powers, 141 North, Douglas, 154 Norway, production regimes, 259
Office of Fair Trading, 266 OFTEL, 119, 121, 123 Ordoliberalism, Germany, 53, 56–8, 64, 67, 69, 70, 78–9 Organisation for Economic Cooperation and Development (OECD): China, 299–300 intra-industry trade (IIT), 299–300 regulation, 160 Outward processing (OPT): Central and Eastern European Countries (CEECs), 297, 304 China, 298 common agricultural policy (CAP), 308 Community law, 305–8 dumping, see Anti-dumping ECJ decisions, 308–14 economic, 303 Europeanisation of law, 302–5 Germany, 310–11, 312–313 international division of labour, 297 international production networks (IPNs), 296 intra-industry trade (IIT), 298 meaning, 296, 305, 307 Portugal, 311 purpose, 307–8 small and medium-sized enterprises (SMEs), 302 tariffs, 303, 313 trade disputes, 295 Yugoslavia, 311 see also International trade Parental leave, ECJ decisions, 207 Pechiney Electrometallurgie, 315 Pellegrin, Julie, 304 Pescatore, Pierre, 99 Pluralism: Community law, 7, 125–38 constitutional law, 136–8 employment law, 272 media law, 104, 105, 106, 108, 111–12 reasonableness, 133 Politics: Community law, 15–17 constitutional law, 133 constitutionalism, 5 ECJ decisions, 4–5, 16–17 employment law, 256 juridification, 4–5, 15–43 mainstreaming, 214 modus vivendi, 133–5 overlapping consensus, 133, 134, 138 political culture, 213–18 political deficit, 26–7 public prosecutions, 5, 33–4, 36–9, 43 Portalis, 180
Index 345 Portugal: European Convention on Human Rights (1950), 173 outward processing (OPT), 311 Positivism, Germany, 51–2, 54, 55 Private law: France, 48 Germany, see under Germany international law, 48, 76–7 nation states, 47–82 natural law, 47, 53, 55, 76 rational law, 47, 53 Production regimes: Australia, 259 Austria, 259 Canada, 259, 261 employment law, 279 Germany, 259–61, 263 globalisation, 258 good faith, 245, 258, 264, 265, 266 Ireland, 259, 261 new divergences, 258–62, 263–6 New Zealand, 259, 261 Norway, 259 Sweden, 259 Switzerland, 259 United Kingdom, 259, 261, 262, 263, 264–5 United States, 259, 261 Proportionality: administrative law, 166–8 common principles of law, 166–8 European Convention on Human Rights (1950), 167, 174 France, 167 general principles of EC law, 97 Germany, 91, 166 institutional principles, 90–1, 96, 99 international law, 166 Italy, 167 media law, 106 Netherlands, 168, 174 United Kingdom, 167, 254 Public interest: economic activities, 7, 141–61 media law, 105, 106, 121 necessities, 143 primary/secondary, 146 structural/functional developments, 141–54 television, 121 unbundling, 142, 150, 151, 154, 155, 158 Public prosecutions: accusatorial system, 41, 42 compulsory, 35 criminal policy, 36–7 decentralisation, 40 discretion, 34–6 ethical codes, 35 external hierarchy, 36–9
France, 5, 31, 35 Germany, 5, 31, 35, 42 governmental crime, 33–4 independence, 5, 31–42 internal hierarchy, 39–41 investigating judge, 41–2 Italy, 5, 31, 32, 35, 39, 41, 42 legitimacy, 38–9 level of criminalisation, 35–6 Napoleonic model, 31, 41 operative autonomy, 5, 37 police, 31, 40 politics, 5, 33–4, 36–9, 43 Spain, 5, 31, 34, 35, 38 United Kingdom, 5, 31, 34, 35, 40, 41 United States, 5, 31–2, 34, 40, 42 Rabel, Ernst, 77 Radbruch, Gustav, 51 Raiser, Ludwig, 52–3, 58–60, 70 Rawlings, Richard, 16, 24 Rawls, John, 132–3 Reasonableness: pluralism, 133 United Kingdom, 167 Reasons, common principles of law, 166–8 Regulation: comitology, 215 economic soundness, 154–61 Europeanisation of law, 270 food, 143, 155, 156 governance, 215 media law: development, 102–7 merger control, 113 television, 6, 109, 115–22 Organisation for Economic Cooperation and Development (OECD), 160 re-regulation, 141–2 see also Deregulation Richelieu, Armand Jean du Plessis, 157 Rittner, Fritz, 81 Rivero, Jean, 163, 164, 180 Robert Schuman Centre, 1 Romano, Santi, 127 Rousseau, Jean Jacques, 126 Ruckert, J., 54 Rustow, Alexander, 56 Ruthers, Bernd, 60, 62 Savigny, Friedrich Karl von, 54, 76, 256 Schmitt, Carl, 60 Schwarze, Jurgen, 4, 8, 163–81 Sciarra, Silvana, 10, 11, 269–89 Secondary legislation, see Legislation Shapiro, Martin, 15 Simplification: acquis communautaire, 227, 231
346 Index Simplification (cont,): ambiguity, 225, 226 ambivalent notion, 219 Amsterdam Treaty (1997), 222, 225–6, 226–7, 228–9, 236, 240 Common Customs Tariff, 229 Community law, 10, 219–41 consolidation, 232, 233 constitutional law, 223–6 Customs Code, 219, 233 democracy, 220 deregulation, 221, 238–9 elegance/inflexibility, 219 European Council, 222, 233 Groupe Molitor (1995), 238 horizontal, 221, 230 Inter-Governmental Conferences (IGC), 222, 225, 227–8, 229, 230, 231–2 internal market, 236–40 legislation, 232–6 Merger Treaty (1965), 221–2 method with social function, 221–3 new approach, 236–9 non-constitutional impact, 229–31 normative grouping, 226–36 sector-based (SLIM), 239–40 transparency, 222–3, 230, 238 see also Complexity Sincere cooperation: Commission, 88 Community legal order, 6, 84, 86–8, 92, 93–5, 97 direct effect, 98 European Parliament, 94–5 general principles of EC law, 97 institutional principles, 6, 84, 86–8, 92, 93–5 institutions, 88, 92, 93–5 Single market, see Internal market Slaughter-Burley, Anne-Marie, 15 Small and medium-sized enterprises (SMEs): inward processing (IPT), 301–2 outward processing (OPT), 302 united States, 301–2 Snyder, Francis, 1–9, 293–320 Social partners: Economic and Monetary Union (EMU), 274 Employment Committee, 288 trade union rights, 203, 205, 207, 208 Social Policy Agreement (1991), 205 South Africa, ferro-silico-manganese (FeSiMn), 317 Sovereignty, direct effect, 128 Spain: actio popularis, 34 administrative law, 157, 166, 170 ferro-silico-manganese (FeSiMn), 317 interim relief, 170 public prosecutions, 5, 31, 34, 35, 38
Spinoza, Baruch, 126 Standardisation: business conditions, 264–6 Comite Europeen de la Normalisation, 237 digital signals, 117–18 legal rules, 252 Starr, Kenneth, 34 Stein, Eric, 16 Subsidiarity: employment law, 272 institutional principles, 6, 84, 90–1, 96, 99 treaties, 237 Supremacy, Community legal order, 88–9, 100, 128–9 Sweden: freedom of association, 197, 199, 205 production regimes, 259 Switzerland, production regimes, 259 Synder, Francis, 1–11 Television: cable/telephony, 111 Commission Green Paper (1984), 102 digital signals: application programming interface (API), 118, 119 decoders, 109, 116, 118 DVB group, 118, 120 implementation, 118–20 market transformation, 115–17 new strategy, 120–2 regulation, 6, 109, 115–22 standardisation, 117–18 entertainment/public interest, 121 film rights, 109, 110, 114, 115 globalisation, 6 high-definition (HDTV), 6, 117, 118 Pay-TV, 110, 115, 116, 119, 120 programme information, 109 programme rights, 109–10, 114–15 sport, 110, 114, 115 transborder broadcasting, 104–5 United Kingdom, 108, 119 United States, 117, 118 see also Media law Teubner, Gunther, 4, 10, 11, 243–67 Tilmann, Wilfried, 81 Trade disputes: anti-dumping, see Anti-dumping inward processing (IPT), 295 outward processing (OPT), 295 see also International trade Trade union rights: association, see Freedom of association CEEP, 205 CFI decisions, 196 collective bargaining/agreements, 195–6, 197, 198, 201, 279
Index 347 Community Charter of the Fundamental Rights of Workers (1989), 202, 203, 206 Community law, 8, 9, 195–209 constitutionalism, 196 convergence, 8 Council of Europe, 8, 197, 200, 201–2, 203, 209 ECJ decisions, 9, 195–6, 200–5 ETUC, 205 European Parliament, 198, 206, 207, 208, 209 European Social Charter (1961), 201, 202 fundamental rights, 195–7, 202, 207 Germany, 260 ILO, see International Labour Organisation industrial relations system, 195–7 institutions, 207–8 Inter-Governmental Conferences (IGC), 196, 206 mainstreaming, 205 Social Chapter (1992), 204 social partners, 203, 205, 207, 208 Social Policy Agreement (1991), 205 Social Policy Protocol (1992), 205 strikes, 197, 199, 201, 202, 278 UNICE, 205 works councils, 198, 199, 281 Transparency: codification, 178, 181, 232 financial relations, 92 legitimacy, 220 simplification, 222–3, 230, 238 Treaties: ambiguity, 225, 226 codification, 231–2 Community preference principle, 228, 229 consolidation, 227, 230–1 constitutional charter, 137 de lege lata, 227, 228 democracy, 215 employment law, 273–4, 286, 287–9 Foreign and Security Policy, 223 four freedoms, 169 good faith, 87 IGC, see Inter-Governmental Conferences (IGC) Justice and Home Affairs, 223, 224 lapsed provisions, 225, 227, 228–9 moral objectives, 135 pillar system, 223–4 ratification, 232 renumbering, 225, 227, 230 revision limited, 132 Schengen acquis, 224 simplification, 221–2, 225–6, 226–32, 236, 240 Social Chapter (1992), 204, 269, 274, 279, 288 subsidiarity, 237 see also Community law
Triepel, Heinrich, 127 Truche, Pierre, 35 United Kingdom: administrative law: convergence, 165, 181 flexibility, 171 history, 8, 142–3, 146–7, 148–9 interim relief, 170, 171 legitimate expectations, 168–9, 254 obligation to give reasons, 170 proportionality, 167, 254 reasonableness, 167 tribunals, 147, 148 business associations, 264–5 capitalism, 155 Civil Aviation Authority, 148 Commission on Industrial Relations, 148 contracts, 243, 244, 245 Crown Prosecution Service, 31, 40 Equal Opportunities Commission, 23 European Convention on Human Rights (1950), 172–3 feudalism, 155 freedom of association, 197 good faith: legal irritant, 10, 243, 253, 262, 263 legal reasoning, 253, 254–5 Independent Broadcasting Authority, 148 judicial review, 148 legal history: Assisa Panis et Cervisiae (1266), 143 judiciary, 142–3, 147 Monopolies and Mergers Commission, 148 Office of Fair Trading, 266 OFTEL, 119, 121, 123 production regimes, 259, 261, 262, 263, 264–5 public prosecutions, 5, 31, 34, 35, 40, 41, 42 relationships of common occurrence, 255 standardisation, 264–6 Star Chamber, 147 television, 108, 119 working time, 17–18 United Nations, good faith, 87 United States: administrative law, 147, 149, 151, 153 common law, 48 constitutional law, 127, 128 Federal Communications Commission, 117 individual rights, 128 judicial review, 127 Ninth Amendment, 128 production regimes, 259, 261 public prosecutions, 5, 31–2, 34, 40 Restatement (Second) of Contracts, 243 small and medium-sized enterprises (SMEs), 301–2
348 Index United States (cont,): television, 117, 118 Uniform Commercial Code, 243 Wacker Corporation, 312, 313 van Miert, Karel, 121 Vedder, Christoph, 176, 177 Wacker Werke, 312–13 Watson, Alan, 246, 248–50, 251 Weber, Max, 74, 75, 82 Weiler, Joseph H.H., 4, 9, 16, 213–18 Westermann, Hans-Peter, 72
Wieacker, Franz, 60, 66, 67 Works councils, 198, 199, 281 World Bank, 283 World Export Processing Zones Association (WEPZA), 298 World Trade Organisation (WTO), 275 Yugoslavia, outward processing (OPT), 311 Zanobini, Aldo, 158 Zimmermann, Reinhard, 179 Zweigert, Konrad, 77
