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: The Legal Reasoning of the Court of Justice of the EU – Dr Gunnar Beck

Jelena Ganza

The Court of Justice of the European Union (CJEU) has assumed an important role as the Community legislator: its historic and breakthrough judgments are prised for diffusion of new integrationist ideas contained in the Treaties. It has been widely accepted that the Court’s unique interpretative approach to the Treaty provisions alongside its judicial creativity promotes the development of an ‘ever closer union’. Reading through the Court’s jurisprudence one could wonder: why does the highest court of Europe employ such unique judicial vision of integration and how does it arrive at its ground-breaking decisions?

The book by Gunnar Beck sets to address these questions and reveal how the Court actually arrives at an integrationist resolution of interpretative disputes in EU law, and which underlying motives, factors and constraints lie beneath its judicial behaviour. The study seeks to provide a framework for assessing the reasoning of the Court of Justice and explaining its general interpretative tendency. Beck approaches the issue in two stages: by first developing a new heuristic theory of legal reasoning in Part I outlining a general framework of judicial decision-making, and then applying this theoretical framework in Part II which critically analyses the interpretative approach of the Court as revealed in its judicial argumentation and actual decision-making. Continue reading

Review : Antoine Vauchez & Bruno De Witte (eds), Lawyering Europe: European Law as a Transnational Social Field

Joelle Grogan, University of Oxford

The process of European Integration is under no less political, legal and social scrutiny now than during its beginnings over sixty years ago. The succession of financial and political crises of the last decade has led to increasing political scepticism and academic examination of the viability of the European dream of integration. Within this already crowded debate, it is difficult to present a new or unique perspective, or to shift argument in a new direction. However, this is what Lawyering Europe: European Law as a Transnational Social Field aims to do.

The new volume edited by Antoine Vauchez and Bruno de Witte seeks to realise European law as a social and political phenomenon, and to (re)assess the roles of lawyers, and other agents behind EU legal norms and decisions. To aid this grand vision, perspectives on the process of European integration from different disciplines (including law, political science, political sociology and history) are presented.  This shift in focus can be seen as part of an increasing movement to end the ‘splendid isolation’ of legal study, and encourage a more diverse and multi-disciplinary approach.  The danger with this approach, however, is that academic autonomy tends to breed esoteric terminology and methodology, not immediately understandable to the uninitiated. However, Vauchez provides an excellent introduction to the multi-disciplinary themes of the book, making potentially unknown concepts such as ‘transnational networks’ and ‘social capital’ as accessible as possible. Readers are advised that his introduction is essential reading, before launching into any other attention-grabbing chapter. Continue reading

The Communautaire Predisposition in the judicial reasoning of the Court of Justice of the EU – A Review of The Limits of Legal Reasoning and the European Court of Justice by Gerard Conway, Cambridge, CUP, 2012

Dr Gunnar Beck

Gerard Conway’s thought-provoking study starts from the familiar distinction between the familiar two broad types of judicial interpretation: the literal or originalist versus the purposive or teleological approach. The Court of Justice of the EU, Conway argues, relies on the second type to a greater extent than most other courts. More specifically, he demonstrates that the Court of Justice has shown a marked tendency towards a meta-teleological approach by which the Court is less concerned with specific objects and aims of legislation or specific treaty provisions but refers to the purposes of the EU treaty order at a very high level of systemic unity. This has favoured and enhanced the tendency toward further integration and harmonisation in Union law.

Conway does not commit himself to the view that the Court adopts a markedly different approach from most others courts in all, or even most cases; rather the Court’s meta-teleological approach has been most evident in a relatively restricted number of key cases concerned with the division of competences between the Union and Member States, which have had a disproportionate and absolutely crucial effect on the development of Union law. Through the development of a de facto doctrine of precedent the Court has reproduced and entrenched the key principles laid down in these fundamental ‘constitutional’ cases throughout the entire body of Union law. As a result, it has driven the borderline between Union and national law far more deeply into the realm of national competences than many of the original founding fathers, or at least the signatories, of the Treaties might have anticipated or than many of the peoples of the EU would voluntarily endorse if they were given the choice on the scope and limits of EU law in their own jurisdictions. Continue reading