Tuesday, October 16, 2007

Conference „Europeanization of Public Law“ in Utrecht: some (personal) impressions

As I noted earlier, last week I was at a conference in Utrecht. The main purpose of the conference was to present and discuss a new book recently published by four Dutch professors - Jan H. Jans, Roel de Lange, Sacha Prechal and Rob Widdershoven. Some of the contributions nevertheless went fairly beyond the scope of the book and the participants could get information on some of the most recent developments in European (public) law.

By “European public law” the book understands especially administrative law, as it is perceived in continental Europe, while it focuses on “the question of what consequences Community law has for general administrative law and its principles within the Member States” (p. 4). Indeed, if you look inside the book, you will find almost as many references to national law (and national judicial and administrative practice) as to Community legislation and the ECJ’s case law. One of the purposes of the conference was to create a network of experts coming from various jurisdictions across Europe in order to continuously explore what influence Community law has there, since the book is intended to be “the beginning of an ambitious, ongoing research project on the influence of European law on the fundamental structures of national public law in a comparative context”.

For that reason the authors of the book launched a new journal: Review of European Administrative Law, with an attractive acronym: REALaw: a journal about the relation between European and national administrative law. You can find out more about it here (pdf). Let’s hope with the editors that it will be a success!

How about the contributions presented at the conference? The following is very unbalanced, as sometimes I made quite detailed notes, but this was not always the case - depending also on how much I participated myself.

Prof. Roberto Caranta’s paper was entitled “The Rising Tide: European Inroads in Administrative Law”, clearly referring to famous dicta made by Lord Denning in Bulmer v. Bollinger when he described the influence of EC law on national legal systems. Caranta pointed to some of the persisting themes of European constitutional theory, such as the conception of State and the relations of States to the “outside world” in the past and now in the era of diminishing boundaries between various legal orders. He also expressed some concerns about the role of the civil society in the Union and also the role of regions. There he provoked some debate on whether or not the EU enhances the role of the regions. It may be true that the EU institutions deal with the States instead of the regions (which is indicated also in some of the ECJ’s judgments on standing of regions in direct actions), as Caranta said. However, Professor de Lange rightly stressed that the existence of the EU assisted regions to get more autonomy from the central governments (just note the recent developments in Scotland, for example). On the other hand, as Professor Koopmans (former judge at the ECJ, who nicely presented himself as an old retired man living in the neighbourhood of the Hague) reminded, we haven’t invented a better form of organisation of public power then states, at least as far as representation and the rule of law is concerned. One would perhaps want to add that some supranational forms of governance are able to complement (not to replace!) the state structures in order to remedy some of their failures.

Prof. Hans D. Jarras commented more specifically on one of the book’s chapters: consistent interpretation. It was a lesson in German conceptual precision, but quite interesting! He objected to the use of the term “consistent interpretation” (which is used also in Prof. Sacha Prechal’s book on Directives in EC law) and suggested the term “interpretation in conformity with EC law”, used by the ECJ, instead. To him it better reflects the one-dimensional nature of the principle, whereby it is national law, which must conform to EC law. (It is interesting to note that e.g. the Polish Constitutional Tribunal has used both of the terms in its judgments - see this paper (pdf), fn. 62).

A very interesting discussion concerned a question whether this principle comes into play only in cases of conflict between national law and EU law - as Prof. Jarras insisted, or whether it is a general rule of interpretation used in any case. As a Danish colleague from the audience (I am sorry for not providing his name) pointed out, it should be the latter, since you never start with interpreting a piece of national legislation in isolation from EU law and only then you examine whether or not it is in conflict with EU law, particularly when a great part of national law is based on EU law. So, from this methodological point of view it does not make sense to say that the requirement of consistent interpretation is relevant only in cases of conflict. It is true, Prof. Jarras replied, but we need to distinguish this methodological question of how we interpret law from what the ECJ requires national institutions to do.

Prof. Jarras’ point seems to be confirmed by a rather awkward formulation of the obligation to interpret national law in conformity with EC law made by the Court in C-212/04 Adeneler and Others: “that obligation, arising from the second paragraph of Article 10 EC, the third paragraph of Article 249 EC and the directive in question itself, has been imposed in particular where a provision of a directive lacks direct effect, be it that the relevant provision is not sufficiently clear, precise and unconditional to produce direct effect or that the dispute is exclusively between individuals” (para. 113). From this it would seem that the ECJ understands the obligation as a “remedying measure”, which comes into play only after the provision of EC law cannot be applied directly (so even one step later after the national institution has found that there is a conflict between national and EC law).

I think that the distinction between consistent interpretation as a method and as an obligation is important: just take the line of case law represented by e.g. the judgment in Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen: “Community law does not require national courts to raise of their own motion an issue concerning the breach of provisions of Community law where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in application of those provisions bases his claim” (para. 22). If there was an obligation of consistent interpretation regardless of existence of a conflict, the courts would be in fact required to abandon their “passive role” because they would have to start their legal reasoning from EU law.

It does not mean, however, that national law cannot turn the wider concept of “methodological” consistent interpretation into a stricter obligation. But this obligation would be based on national law, e.g. as a requirement of consistency and coherence of the national legal order (it would not make much sense to have one set of norms, based on EU law and interpreted in a particular way to conform to EU law and another, “purely national”, which would regulate the same area but being interpreted differently) or based on a provision of the Constitution: it seems that e.g. the Polish Constitutional Tribunal imposes an obligation for courts to take into account European law ex officio as a criterion of domestic law interpretation – see P 10/04 of 26.1. 2005 “Bank Enforcement Title Decision”, part III, point 7 (here - doc).

After this digression from Prof. Jarras speech I will only briefly present the other contributions.

Dr. Martina Künnecke presented the last contribution of the first day of the conference, concerning state liability and its Europeanisation in England and Germany. One of the possible explanations of a different approach of German and English courts to “Francovich liability” may lie in the path dependence of legal systems, a concept elaborated in more details e.g. here).

The second day started with my own presentation, entitled “The use of EU law as a conclusive argument to everything”. Quite promising, isn’t it? Professor Michael Dougan was so kind, when he saw that I was a bit nervous before my speech, to tell me that I should have won a prize for the best conference paper title, releasing some pressure from me. Having Peter Wattel, the author of a well-known article published in the CML Rev as a reaction to the ECJ’s judgment in C-224/01 Köbler (Köbler, CILFIT and Welthgrove: we can't go on meeting like this” - if you don’t like Köbler, it is a must-read!) I felt better when criticizing the ECJ for its argumentative practices, which spread to other contexts as well (see also this post). Essentially, I considered an improper use of EU law and its “particular” nature or doctrines as a means to close deliberation on some difficult questions arising before lawyers, especially public law lawyers. I discussed this in different contexts: judicial process, political process involving the legislature and the executive and also academic discourse. Hopefully, I did not disappoint those who expected a lot from the title.

My very good friend (if I may say so), Dr. Xavier Groussot, presented on “General principles of law in the process of europeanisation of public law” (last year Xavier published his Ph.D. “General Principles of Community Law”). We have a continuous disagreement concerning the question whether or not the principles fall from Heaven and the same discussion arose after Xavier’s speech.

Prof. Michael Dougan presented “Community law and national rules on standing”. It is hard to do justice to Dougan’s very substantive paper here: after all, he published the whole book related to the topic (“National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation”). What he pointed out, there are two lines of case law concerning standing, one where the ECJ is quite intrusive and defines the standing for claimants relying on EC law autonomously. The second line leaves this to national procedural law (subject to the requirements of effectiveness and equivalence). It is hard to find some rationale behind these two lines, although there is a strong academic support for the first approach. However, Dougan stressed that it is not without problems: EC law as such does not clearly distinguish between public and private law and leaves this qualification to national law. Thus, the Community rules on standing can never fully be autonomous. Related issue is presented by a missing coherent distinction between protection of individual rights and enforcement of collective interests. Beyond this, autonomous EC law approach to the national rules on standing may create some unintended disturbances on the national level.

I was really glad to see Prof. Dougan in person, since I am still a newcomer to the world of EU law scholarship and know many people just as authors of articles I read in journals. And as I am interested in the ECJ and judicial process in the EU, I have come across with a number of Dougan’s articles already and always learn something from them!

Finally, Prof. Jean-Bernard Auby discussed “Europeanisation of administrative enforcement law”. Similarly as I said that Prof. Jarras’ contribution was an exercise in conceptual clarification, Prof. Auby’s presentation provided a thorough classification of the various stages, actors, and areas of enforcement of EC law.

Well, and that was all for the conference. But as the organizers pointed out: it was just a beginning of an ongoing research project and I hope to meet the people who come to Utreacht again!

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