When I was a young law student in Amsterdam, in the early 70s of last century, ‘European Community Law’, as it was called then, was an optional course. The very far away subject was followed by some 10 students. It intrigued me because there seemed to be a new organisation to achieve a common economic market for the six Western-European countries originally involved. We generally knew about the European Coal and Steel Community (ECSC, in Dutch EGKS), but what was this European Economic Community (ECC)? We learned bits about the EEC Treaty, whether ECSC was a ‘supranational’ organisation and what that meant. We learned about cases such as Van Gent en Loos and Costa v Enel, literature was scarce, the lecturer I recall as uninspired and uncertain.
Since then (open door!) the world has drastically changed. The European Union (so not ‘community’) reflects a fully different area, in terms of its composition, scope and depth and influence in general legal practice. It also influences the use of languages and the overall involvement of courts in all (still) 28 Member States. It really is there, also socio-politically, e.g. allowing certain populist groups to look for a scapegoat (‘Brussels’). In parallel with the enormous geographic and thematic expansion, also the constitutional and legislative principles underpinning the EU as a Union have constantly evolved. The publication Oxford Principles of European Union Law, with Volume I in front of me, is a witness of it. It will grow to a three-volume study aiming to provide an authoritative academic treatment of European Union law.
Written by over 100 scholars and practitioners, the editors, Schütze and Trimidas, promise an exercise in ‘intellectual federalism’, bringing together a diversity of distinct intellectual traditions and academic viewpoints ‘… in the hope of weaving them into a coherent intellectual ‘order’’. They have their home universities but are both also professor at the College of Europe in Bruges, Belgium. All contributors will use three volumes to achieve this aim, the first one shortly discussed below, a Volume II, exploring the structure of the internal market, and a Volume III which will present internal and external substantive policies of the EU.
Volume I presents an analysis of the constitutional principles governing the EU. It contains six parts: I History and Nature, II Constitutional Foundations, III Institutional Framework, IV Legislative and Executive Governance, V Judicial Protection in the EU and VI The External Relations of the Union. With close to 1300 pages of text in Volume I, I only can thumb through it.
Part I starts off with a thorough piece on the EU’s history, dividing its stages of geographic enlargement, including its progress towards achieving an internal market, and broadening its areas of interest: social policies, environmental and consumer protection as well as the Maastricht and Amsterdam Treaty innovations. The chapter on International Perspective elaborates on phenomena such as ‘State’ and ‘Sovereignty’, using political theories of for instance Schmitt and Kelsen, including the debates and controversies that go with these terms. Here also one finds the sheer emo-political debate about the EU as a (con)federation. In the chapter about the constitutional context the case law I mentioned and where I heard about over 40 year ago (finally) is been put in the perspective that they can be understood. This chapter incudes a good overview of the principles of subsidiarity and proportionality, so often used in debates about to which level of detail the European Commission can take legislative measures, and the explanation of the principle of sincere cooperation, which the CJEU in 2011 (in the Handlowy case) surprisingly used in a cross-border insolvency case. Many of the topics mentioned above are treated in a comparative chapter, as last chapter of this Part I.
Part II on Constitutional Foundations is instructive as to the EU’s competences, including future observations on e.g. the policy responses in the light of the existing EU Treaty framework, and beyond it, with regard to the financial crisis. With a constitutional eye the present state is regarded as ‘the current imperfect’. In this part even more profound attention for the principle of subsidiarity (the CJEU uses a light touch subsidiarity review) and the principle of proportionality, regarded as a powerful principle for the protection of the individual but an ineffective tool to tame the expansion of EU competence. All forms of direct effects and indirect effects are discussed, including some useful (at least for insolvency lawyers) remarks with explanation of what a Regulation and a Directive is, who the addresses of these effects are and their vertical or horizontal effects. In another chapter, again, the principle of sincere cooperation is shed light upon, be it rather in the angle of the principle of respect for member states’ national identities. Instructive and / or instrumental are chapters on fundamental rights and the EU and the method and processes of Treaty amendments.
Very clear and insightful too is the explanation of the EU institutional machinery, particularly the European Parliament (including discussion on the seat and working places of the EP and the puzzle of consensus formation, for instance), the Council’s structure and role (its democratic legitimacy is problematic, it is submitted), the Commission, the Court of Justice of the European Union (its jurisdiction and the role of the Advocate General, and the way judgments are reached, and the structure and role of the European Central Bank and the the Court of Auditors. Part IV on legislative texts and executive governance, covers such items as delegated legislation and implementing acts and Union’s budget and the budgetary procedure, Part V is a must read for litigators in the EU area, covering judicial protection, including judicial review, EU liability actions and enforcement actions and state liability. Finally, in Part VI, the focus is on external relations of the Union, including its external competences and decision making procedures and the membership of the EU in international organizations.
In this short announcement there is no room for discussion. Compared to available literature over 40 years ago, the book is a blessing for the brains. All of the chapters portray richly latest research and case law on the theme described, being of interest to anybody (e.g. practitioners, PhD students, legislators, judges) studying or dealing with the legal complexities the EU presents. From the title, Oxford Principles of European Union Law, the word ‘Oxford’ is odd. In this Volume only one author is connected to the university with the same name. Did the publisher elbowed itself into the title, claiming exclusivity? On its content, in all, in a broad historical, comparative and theoretical approach, it presents an illuminating analysis of the constitutional principles governing the EU. Evidently, this volume goes well beyond the traditional textbook, rather is a scholarly and doctrinal treatment of the founding building blocks forming an interwoven part of the constitutional legal order we call European Union.
Robert Schütze and Takis Tridimas (eds.), Oxford Principles of European Union Law, Volume 1: The European Union Legal Order, Oxford University Press 2018, 1322 pp. ISBN 978 0 19 953377
Ordering information: global.oup.com/academic/product/oxford-principles-of-european-union-law
Note: this book I received free of charge from the publisher with the request to announce it or to review it on my blog at www.bobwessels.nl.