Europe’s justice deficit?

Gráinne de Búrca

The ‘justice question’ is becoming increasingly important in the EU.  With the lives of so many in the European periphery dramatically affected by the policies of austerity, widely perceived to be EU-imposed; with the Court of Justice appearing to stand for its own authority and EU autonomy at any cost; with migrants attempting to reach fortress Europe and drowning en masse as the EU cuts back its rescue services; and with economic inequalities in the Member States reaching new heights, could it be that there is a justice deficit in Europe, exacerbated by the European Union?

The volume ‘Europe’s Justice Deficit?’ co-edited by Dimitry Kochenov, Andrew Williams and Gráinne de Búrca explores this question. The volume is premised on the basis that it is  appropriate to talk about justice in the context of the EU legal and political system; and that questions of justice and injustice in the EU context have not yet (with some notable exceptions) been the subject of much analysis and discussion either by academics or by political and institutional actors.

The first assumption builds on the idea that the scope of justice applicable to the EU should be considered broadly rather than narrowly:  justice should not be associated only with the State. The standards to be applied to particular organizations or polities should reflect the nature of their goals and the extent of the impact their decisions have on the lives of their constituents or those outside their borders. The EU and its institutions have assumed considerable power and influence within and beyond its Member States. Its daily actions substantially affect the interests of individuals, corporations and states, and it possesses significant capacity to address injustice both within its boundaries as well as externally.

The editors and contributors to this book suggest that it is time to think critically about the existence and nature of a perceived justice deficit in Europe, its possible implications for Europe’s future, and to open a discussion about the ways in which such a deficit might be addressed. The book is intended as a first step in this direction.

Review: EU Law and Integration: Twenty Years of Judicial Application of EU Law, José Luís Da Cruz Vilaça

Joelle Grogan, University of Oxford

EU Law and Integration is a collection of articles written by the author over the course of his eminent career as an academic, an Advocate General, the first President of the Court of First Instance (now the General Court), and now as a Judge at the Court of Justice of the European Union. Some of the contributed articles have been translated from their original language of publication, while others have been written with collaborators. Divided into sections broadly concerning EU constitutional law; the judicial structure of the EU; judicial protection of individuals; competition and state aid; and more general studies in law and economic integration in the EU, this volume has a very broad scope.

As a judge, and an academic, the author provides practical insight as well as keen analysis into the areas of the law upon which he focuses. Articles concerning the judicial architecture of the Union provide some of the most interesting reading in the volume. Writing the Foreword to the book, the Vice-President of the Court of Justice of the EU, Koen Lenaerts, aptly refers to this section as the ‘cornerstone’ of the volume. The author’s analysis of the problems facing the Court of First Instance in its first year has particular historical value and relevance, as he was the founding President of the Court. It is interesting to read – with hindsight – of the first struggles of the Court in terms of administration and the preparation of rules of procedure. The author’s rationalisation of the relatively long length of CFI judgments is illustrative of how the Court of First Instance viewed its duties with regard to the appellate jurisdiction of the Court of Justice. The concluding perspectives on the future of judicial architecture of the EU are also interesting as the author advocated incremental, rather than radical, changes in the judicial system, and the reader is sometimes left to wonder what conclusions he would make in light of the Lisbon Treaty reforms (and whether they were not reforms in name only), and the push towards judicial networking.

Seminal cases concerning economic integration feature prominently in the work, and readers are well advised to read the author’s consideration of the impact of the Pfizer case on the Precautionary Principle in EU law. The author illustrates the early caution show by the Courts which clearly advocated a prudential approach as regards determining the risks for human and animal health, and the environment. While the author acknowledges that this judicial approach probably did not pave the way to the ultimate systemic application of the principle, it did clearly foreshadow it. Readers, however, might be curious as to how the author would consider the Precautionary Principle’s current status under Article 191 TFEU, which does not feature in the republished 2004 article.

This absence of reference to the Lisbon Treaty reforms leads to an issue the reader may experience with this collection. Republished material can seem out-dated, especially in the fast-evolving European Union. Analysis and insight, while apt, would have benefitted in some articles from an updated account, or at least reference to the current situation. The cases analysed in this book, while seminal (for example Keck and Mithouard, Azores, and Alpine Investments) have had a new life in the courts which is not addressed by the book, leaving the reader at some points feeling as if they are missing part of the story. One further example of this is that ‘current case law’ of state aid relates to cases from, at the most recent, 2006. The absence of important reforms to the law over the last five years, most notably in light of Lisbon, also do not feature at all in the book, which can appear odd to the contemporary lawyer. Continue reading

Review: Of Courts and Constitutions: Liber Amicorum in Honour of Nial Fennelly

Joelle Grogan, University of Oxford

Of Courts and Constitutions, K Bradley, N Travers, and A Whelan (Hart Publishing 2014)

Of Courts and Constitutions is a collection of essays written to honour the retirement of the Hon Mr Justice Nial Fennelly, Judge of the Supreme Court of Ireland, and former Advocate General of the European Court of Justice. Over his long and distinguished career on the bench, he has had a marked influence on the development of the law in both Irish and European law. It is clear from the contributions and dedications within the volume, that he is held in high regard in both academic and legal circles throughout Ireland and across Europe.

Thematically, the volume considers the relationship between Union law and national law. The title ‘Of Courts and Constitutions’ is apt more for directing the reader as to the great diversity of the contributions, than clarifying the nature of the work. The topics of the essays are highly varied, ranging from the interpretation by the European Court of procedural law and precedent, to the Financial Crisis and the rule of law, to concepts of national identity, and the treatment of child citizens. Helpfully for the enquiring reader, the volume is divided into four sections, broadly concerning (1) the structure and functioning of the European Court; (2) issues of EU Law; (3) aspects of Irish law; and (4) transversal issues of national and European law.

One contributor rather self-consciously notes that a Liber Amicorum is often an occasion for contributors to find a place for work gathering dust on the shelf, rather than an occasion for producing an original piece written for purpose. Dedications at the beginning of the work, though evidently sincere, can sometimes have a jarring effect on the narrative of the piece, underlining a disjuncture between the aim of the contribution and the relevance to the work of the eminent judge. Despite this, there are many interesting contributions in the volume, and the standard of the contributions is overall of a very high quality.

Some of the essays stand out for their particular excellence, for example Catherine Donnelly’s topical discussion of transparency in EU public law; and Diarmuid Rossa Phelan’s analysis of the allegiance of judges to their state and to the EU, which should be read with Wolfgang Heusel’s excellent examination of national constitutional identity. For those jurists (understandably) confused by the Kadi Saga, Professor Sir David Edward, former Judge of the European Court of Justice, provides excellent insight and commentary on the series of cases which shed light (or cast shadows) on due process and judicial review in the EU courts. Continue reading

Book Review: Constitutional Review in Europe; A Comparative Analysis, Maartje de Visser

Joelle Grogan, University of Oxford

Constitutional Review in Europe: A Comparative Analysis, Maartje de Visser (European and National Constitutional Law Series, Hart Publishing, 2014)

Constitutional discourse lies at the heart of every state’s legal system. In Europe, it is the subject of even more intense debate with the rapid process of integration in the European Union, and the apparent incursion of EU regulatory norms into sacred national constitutional space. What is always assumed, but not examined, is the fact that this is a shared experience across the EU. Each Member State grapples with the realisation of its own constitutional identity, in its domestic courts and in the EU.  In her new book “Constitutional Review in Europe: a Comparative Analysis”, Maartje de Visser aims to address two questions: who (should) uphold(s) the constitution, and how is constitutional review organised. Drawing on sources from eleven representative Member States of the EU (Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland and the United Kingdom), this book is a veritable tour de force as it is a tour d’Europe.

There is an inherent hazard in comparative analysis, especially one which aims to describe the constitutional frameworks of such a diverse range of states, that the analysis will be piecemeal and the narrative of the book will simply be a list of states and their associated institutions. Evaluative considerations would either require lengthy argument beyond the scope of the book, or fall to the accusation that identified distinctions are superficial, or a whole host of justifying social, historic, and cultural norms were ignored. The author firmly acknowledges and responds to all of these concerns. Dividing the veritable behemoth of comparative constitutional review into manageable sections of the representative elements, she adroitly addresses the most important practical and theoretical aspects of constitutional review.

Covering the role of non-adjudicatory actors, the rise and purposes of constitutional adjudication, sources of constitutional review, access to the courts, the composition of the constitutional bench, and the interplay between constitutional courts and other actors; this work gives excellent scope to discover the many aspects of constitutional review. In addition to the eleven representative states, the Court of Justice of the EU also features, as de Visser has explicitly adopted the convention of European scholars of labelling the Court as ‘constitutional’. Leaving aside the normative and political challenges of that assessment, it is a wise choice: the judgments and actions of the Court have a wide ranging impact on constitutional judgments of national courts.

Within each chapter, the author presents some preliminary examples from states, followed by short sections of comparative analysis. The choice of the legal systems considered is not driven by the need to represent all states, but rather by the particular thematic question asked. So, for example, discussion of the avoidance of competence collisions between state bodies is only considered from French and Belgian perspectives; whereas the identification of the sources of standards for constitutional review merits the consideration of the Constitutional Courts of all eleven states. The carefully constructed structure of the book is a necessary feature, considering the complexity of its ambitious project. De Visser handles the material deftly, however, never losing the interest or engagement. Reading like a judicial thriller at times, de Visser engages with the most politically divisive cases to come before the Constitutional Courts to demarcate the expanding (or reducing) boundaries of judicial competence. Continue reading

Book Review: Judging Europe’s Judges

Michèle Finck, University of Oxford

Judging Europe’s Judges is a fascinating volume that addresses the legitimacy of the case law of the Court of Justice of the European Union. It would be of particular interest to those working on the ‘hard cases’ recently decided by the CJEU, but also more generally to anyone interested in European law.

An increasingly interconnected world, successive waves of enlargement, and the entry into force of the Lisbon Treaty have given rise to a European Union that is more heterogeneous than ever before. This heterogeneity is also reflected by the cases the Court engages with. As the editors state in their introduction:

‘adjudication has nowadays become more challenging than ever before, since the law is increasingly interlinking different sets of interests, so as to address ever more complex societal problems and issues. As a result, in individual cases, courts can no longer confine themselves to applying the legal rules as established by the legislator.’

They conclude that as a consequence, the process of adjudication needs to be of a dynamic nature.  The increased complexity of the CJEU’s adjudicatory task constitutes the guiding theme, linking together the papers of the various commentators. Separate contributions study the interrelated challenges faced by the Union’s highest Court in zooming in on four relatively large themes: the general principles of European Union law, the EU’s external relations, the internal market, and EU citizenship. Continue reading

Book review: Gerardin, Layne-Farrar and Petit, EU Competition Law and Economics

Christopher Brown

Gerardin, Layne-Farrar and Petit EU Competition Law and Economics (2012, OUP)

It has taken a while to get round to reviewing a recent new treatise on EU competition law and economics by Damien Gerardin, Anne Layne-Farrar and Nicolas Petit, the book having landed on this reviewer’s desk before the summer.  Mea culpa.  Better late than never, though, especially as the book, co-authored by two lawyers with considerable experience of academia and practice and a specialist competition economist, is actually a good read.

The first question that tends to spring to mind before commencing a book review is: who is the intended audience?  That is a pertinent question here.  After all, there are now various practitioner works on EU competition law in the English language: think, in particular, of two others in the OUP stable, Bellamy and Child and Faull and Nikpay – so well known are they among practitioners that reference to the (original) authors suffices).  OUP also publishes Whish and Bailey, which is aimed primarily at students but which practitioners also find useful.  There other general practitioner works, such as Van Bael and Bellis, and a host of more specialist works.  Why, then, add another treatise on competition law to a burgeoning stable?

The answer is not, as one might expect, to be found in a preface, for there isn’t one.  The OUP website does, though, give us some insight (as, of course, does the book’s title): it says that the book “is the first EU competition law treatise that fully integrates economic reasoning in its treatment of the decisional practice of the European Commission and the case-law of the European Court of Justice.”  Continue reading

The Air Passenger as a European Citizen?

Dr Jeremias Prassl

Frank S Benyon (ed), Services and the EU Citizen (Hart Publishing: Oxford, 2013) £55

The most recent volume in Hart Publishing’s Modern Studies in European Law series is a collection of essays edited by Frank S Benyon. Drawing on a series of workshops held at the European University Institute in 2010, its chapters cover a broad range of services regulated under EU law – from Electronic Communications and Broadcasting to Health Care and Transport. The overall goal of the project is an interesting one: to consider the potential interaction of two key topics in EU law – the notion of Union citizenship (Art 20 TFEU), and consumer protection (notably in Art 114(3) TFEU). As the editor puts it in his introduction, might ‘consumer advantages […] not be seen as forming a constituent part of the rights of the EU citizen’?

In keeping with the theme of my recent posts here at EUtopiaLaw, this review focuses on the two substantive chapters dedicated to transportation and travel law, as well as the final chapter, in which the editor draws together the findings of the workshop series. This is a particularly difficult area in which to explore the theme of citizenship: travel is, by definition, not limited to EU citizens: the European Union sees just over a third of worldwide air passenger traffic pass through its airports each year. In drawing a similar conclusion in the final chapter, Frank S Benyon nonetheless makes the crucial point that consumer protection in the field of services is amongst the most directly relevant EU achievements for individual citizens. Continue reading