Introduction
It’s a great privilege to have been invited to contribute to this lecture series, which honours Lord Mackenzie-Stuart; and a great pleasure that Amanda Hay and Judy Mackenzie-Stuart, Jack’s daughters, and Marianna, his grand-daughter, are in the audience this evening. I got to know Jack in the late 1970s, when I went to the Court of Justice in Luxembourg as the Legal Secretary of his colleague, Jean-Pierre Warner, who was Advocate General. Then, as always, Jack was generous with his wisdom, his knowledge of the law and his friendship. He was one of those men of immense distinction who not only don’t assert their superiority over others but are simply unaware of being superior. On the Bench, he had the robust judicial manners that counsel from this country expect; off it, he was the soul of courtesy. He was that relative rarity, a practical lawyer and a practising intellectual. When I came to Cambridge, I had especial cause to be grateful to him, because, as a graduate and Honorary Fellow of Sidney Sussex, he persuaded the Master to offer me a Fellowship at a time when Professorial Fellows coming from outside Cambridge were not a highly sought-after commodity. And as long as he remained well enough, he loyally supported my activities as the then Director of CELS, and the activities of other colleagues in EU law. This is also an occasion to remember Anne Lady Mackenzie-Stuart, a formidable EU lawyer in her own right, who was in every sense a partner to Jack in his public and private life and carried on his work after his death.
This lecture has had two different titles. The title I originally proposed is the one that came to be advertised and that our Chairman has announced, “40 Years an EU Lawyer – Apologia Pro Vita Sua”. However, I was persuaded to go for something more demotic, so until last week, when I received the email advertising this event, I had thought that I was writing a lecture on the topic, “EU Law – A 40-year Journey and Still Motoring”. From the Blessed Cardinal Newman to Jeremy Clarkson. Though I prefer the former association to the latter, I’m happy with either title, because they both convey the essence of what I’m proposing to do this evening. This is not going to be an account of my picaresque career in EU law. I offer it, rather, as an Apologia – a justification – of a career choice made in relative ignorance but with great good fortune. My first year of teaching EU law, at the University of Wales, Aberystwyth, was in the academical year 1970/71, hence my 40-year perspective. I’m going to address a series of themes, which I shall announce as I reach them. They are themes that I hope will bring out the challenge and the fascination I have found in EU law.
The ideological perspective
My first theme is the ideological perspective within which EU law functions. Most of the substance of EU law is black-letter law of the deepest hue. And it is applied with all the rigour of a municipal legal order – which, in a sense, it is. But, at the same time, the legal order has a wider perspective of political aims and values, which are clear and persistent. The combination of hard law and political aspiration is what first engaged me and has held me ever since.
The first of the European Communities, the European Coal and Steel Community (or ECSC) had a limited scope but breathtaking ambition. In the words of the final recital of the preamble to the Treaty of Paris on which the Community was founded, this was “to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared”. As I’ve often said, it was a wonderfully intelligent idea, to bring together the warrior nations of Europe and their habitual victims under a set of constitution-like arrangements that would make it unthinkable for them ever to go to war with each other again. The project has been so comprehensively successful that, at this time of day, it’s hard to appreciate the enormity of the achievement, and the imagination and generosity of the politicians who brought it about.
Men like Jack Mackenzie-Stuart, who were soldiers in the Second World War, needed no reminding. In the speech he made when accepting the Charlemagne Prize, he spoke movingly of having being inspired, in his career as an EU lawyer, by his memory, as a young engineering officer, of the ruins to which the Rhur had been reduced by allied bombing. My inspiration, though at a further remove, was similar. I was still a small child when the Second World War ended, but I grew up under its shadow. And, although this was in South Africa, my father’s family had been closely touched by European Wars, as were many others in far-flung places. The eldest son was killed in the First World War and the youngest, who was my Father, was killed in the Second.
If the EU was part of the solution to geo-political challenges in the earlier Twentieth Century, so it again proved to be at the end of the Century, when the Soviet Union collapsed. Events in former Yugoslavia showed what a threat this radical change in the security situation might pose to stability in Europe. I was in no doubt that the countries of Central and Eastern Europe had to be welcomed into the Union with only minimal preparation, in spite of the problems this was bound to cause. I was, and remain, confident that membership of the Union will strengthen the commitment to democratic institutions and the rule of law in those countries, as it did in Member States that had earlier acceded to the Union.
Indeed, I would go further and suggest that peer-group pressure within EU institutions has tended to promote best practice in social policy and in the protection of fundamental rights, which has brought improvements even in old-established democracies like the United Kingdom. I doubt whether anti-discrimination legislation and employment legislation in this country would be anywhere near as advanced, if it weren’t for measures like the Directive on equal treatment of men and women in employment or the Working Time Directive.
All of this is not to suggest that I’m a starry-eyed Europhile, though I confess that, back in 1971 I was. A Belgian MEP, who is a strong Euro-Federalist, once called me “un juriste illustre mais perfide”. Being thought illustrious but perfidious is probably the best compliment I’ve ever been paid. What I like so much about the EU is how well it is designed to cater for a political reality, which my MEP critic would wish to deny. That is the inescapable fact that the Member States have refused to accept the dictates of Euro-Federalism, as they did those of Marxism, and quietly wither away. If anything (with the possible exception of Belgium), they are more self-conscious and more self-assertive than in 1971. The genius of the legal order of the Union is that it preserves the national identities of the Member States and their essential State functions, while enabling them to pursue more effectively objectives that they have in common, by accepting the discipline of acting together through common institutions, on the basis of binding rules and under the supervision of the Court of Justice. As many of you know, my answer to the question, “What kind of political animal is the EU?”, is that it’s a new species, which I describe as “a constitutional order of States”, or in moments when I feel bold enough to use the “F” word, “a federation of sovereign States”. Though I’m on record as being critical of some aspects of the Lisbon Treaty and of the recent case law, my admiration for this most ingeniously paradoxical of legal orders remains undimmed, and I intend to go on studying it, and trying in the small ways an individual can to make it work better, as long as I’m able.
The Treaty and Union Structure
Moving on from ideology to the Treaty and Union structure.
Back in 1971, there were three European Communities but no European Union The ECSC had been established in 1952, while the European Economic Community (or EEC) and European Atomic Energy Community (or EURATOM) followed in 1958. As their names imply, the ECSC and EURATOM had a specifically sectoral remit, respectively, the production and marketing of coal and steel and the peaceful use of nuclear energy. The EEC was given the much wider objective of the creation of a general common market, based on a customs union and the free movement of goods, persons, services and capital between the Member States. As you know, the EEC would provide the framework for the great bulk of Community activity, extending well beyond the economic sphere, which led to its change of name in 1993 to “the European Community” (or EC).
Each of the three Communities was based on its own Treaty, the ECSC on the Treaty of Paris and the EC (as I shall call it from now on) and EURATOM on the two Treaties of Rome. These were free-standing international agreements. And each Community had its own legal personality. So, in principle, they were legally distinct entities. But they were served by a common set of institutions, one European Parliament (or Assembly, as it was still then officially called), one Council, one Commission and one Court of Justice, to do the business of all three Communities.
The structure of today’s European Union looks very different. The ECSC no longer exists. It died from natural causes in 2002. The Treaty of Paris had been concluded for a fixed period of 50 years and by 2002 there was a consensus that coal and steel matters could be managed conveniently within the EC framework. More dramatic is the disappearance, in a formal sense, of the EC, which has been replaced and succeeded by the Union. EURATOM continues as itself, in a puzzling relationship of semi-detachment from the Union.
The intermediate step between then and now was the creation of the European Union by the Treaty on European Union (or TEU), which came into force in November 1993. For many at the time, the Union was – to borrow from W. B. Yeates – a rough beast that slouched towards Maastricht to be born. So dissatisfied were the authors of the TEU with their handiwork that they fixed a rendez-vous in 1997 to try and do better.
The Union was the child of necessity. The Member States were agreed that two policy areas, those relating to foreign and security policy and to justice and home affairs, which had previously been the subject of quite intensive intergovernmental cooperation, should be brought within the single institutional framework. Most Member States, however, weren’t willing that the decision-making procedures of the EC Treaty should apply to those policy areas in the normal way; and neither should the constitutional principles of the Community legal order, which had been elaborated by the Court of Justice in its case law. Indeed, so strong was the suspicion that the Court would find a way of communitarising these new areas of common action, that it was decided to exclude its jurisdiction completely.
How to achieve this in Treaty terms? One possible solution would have been for the common foreign and security policy (or CFSP) and cooperation in the fields of justice and home affairs (or JHA) to be incorporated into the EC Treaty, subject to special institutional and procedural arrangements, which would be spelt out in the amending provisions. The Dutch Government, which oversaw the final phase of the negotiations, when it took over the rotating Presidency in the second half of 1991, made a last ditch effort to salvage this approach, but in vain. Other Member States wanted the exclusion of the new areas of competence from the Community legal order to be given formal expression in the Treaty structure. The alternative solution, which I believe was dreamed up by advisers of the Luxembourg Presidency in the first half of 1991, involved conferring competence for the CFSP and JHA upon a new entity, the European Union, which would have direct responsibility for action in those areas, organised on the basis of provisions contained, respectively, in Title V and Title VI of the TEU.
The Union’s relationship with the European Communities was less clearly defined. The Communities retained their distinct legal identities but were linked more firmly to each other, and at the same time to the Union, not only by the single institutional framework but also by common procedures for the amendment of their founding Treaties and for the accession of new Member States, and by an express commitment in the then Article 6 of the TEU to a common set of basic values and to the protection of fundamental rights.
There were, broadly, two approaches to understanding that relationship, both of which may be illustrated by an architectural image.
One approach was to regard the Union simply as a mechanism to enable institutions belonging to the Communities to be “borrowed”, for the purpose of pursuing the limited objectives of Title V and Title VI of the TEU. Taking that approach, it wouldn’t have been correct to refer to “EU institutions” or to use the term “EU law” as a general description of the whole range of legal provisions contained in or derived from the Treaties. The image to illustrate that understanding of the relationship would be of the Union as a kind of lean-to, propped up by the solid structure of the Community, which had been constructed in order to accommodate the CFSP and JHA on a temporary basis.
The other approach was to regard the Union as an overarching, if lightly structured, legal order, incorporating the Communities, together with the CFSP and JHA, as sub-orders. The image to illustrate this approach is the familiar one of a Greek portico with three pillars linked by a pediment. Though I’ve always thought a truer image would be a Byzantine portico with pillars of different sizes – a solid, thick one in the middle representing the Communities, as the First Pillar, and thin wiggly ones on either side representing the CFSP and JHA as, respectively, the Second and Third Pillars.
I’m in no doubt that the latter understanding of the pre-Lisbon Union structure was the right one. This seems to me to follow ineluctably from the fact that Community objectives such as the creation of an area without internal frontiers, the strengthening of economic and social cohesion and the establishment of economic and monetary Union were mentioned in Article 2 of the TEU as being objectives of the Union as a whole; and also from the statement in Article 3, first paragraph that “[t]he Union shall be served by a single institutional framework...”. Though I suspect the Commission always had a hankering for the former conception of the Union as a ramshackle lean-to. They have certainly risen to the bait in legal proceedings, when I’ve teased them by referring to “the Union in its Community persona”.
Future generations of Law teachers will be thankful that they no longer have to explain the difference between the Union and the Community to their students. Though the Treaty and Union structure in the post-Lisbon era have their complexities.
I should just mention the abortive Treaty establishing a Constitution for Europe. In drafting the Treaty, the Convention on the Future of Europe opted for the model of a single foundational instrument, incorporating all of the Union’s primary law, both institutional and substantive. The TEU and the EC Treaty would have been repealed, along with all amending and accession Treaties. This was one of the fundamental errors made by the Convention, because it meant the great bulk of the substantive law contained in the EC Treaty, including on the internal market, which it was not intended to amend, would nevertheless have to be re-ratified. The other error was to call the text they were drafting a “constitution”, making it easy for those of a Europhobic disposition to present the Union as an entity with statehood in its DNA. Such political foolishness can only be explained by the frenzy of enthusiasm that sometimes grips the European elite when they gather inside their bubble. I’ve been gripped by it myself. I remember how shocked we were in Brussels by the problems encountered in securing the ratification of the TEU. The Treaty negotiations had been carried along by the euphoria of the successful implementation of the single market programme. We failed to notice that this was a purely bureaucratic euphoria.
Back to Lisbon. Under the new dispensation, the TEU and the EC Treaty (renamed “Treaty on the Functioning of the European Union” or TFEU) remain as separate legal instruments, though the relationship between them, and hence the Union structure, has been radically altered. The European Union is explicitly recognised by Article 1, third paragraph of the TEU as being “founded on the present Treaty and on the [TFEU]”, which are stated to have “the same legal value”, and there is a parallel provision in Article 1 (2) TFEU. It is further provided by Article 1, third paragraph TFEU that the Union “shall replace and succeed the Community”, and all references to the Community throughout the TFEU have been replaced by references to the Union; while the various indications in the TEU as to the primacy of the First Pillar have similarly been eliminated. Thus, unlike the former EC Treaty, the TFEU will no longer, in itself, amount to “the constitutional charter” of a legally distinct entity. That charter is now to be found in the two Treaties, re-designed as complementary instruments of equal status, fulfilling different functions in setting forth the primary positive law of the Union. The evident intention is to bring together in the TEU the core constitutional principles that define the essential nature of the EU, while consigning to the TFEU the legal bases for concrete policies, as well as more detailed institutional, procedural and financial provisions. And to this end, there has been an extensive re-allocation of subject-matter between the Treaties.
However, the symmetry of the new Treaty design is somewhat compromised by the retention in the TEU of a Title V containing in its Chapter 1 general provisions on the Union’s external action, and in its Chapter 2 specific provisions relating to the CFSP, including a section on the common security and defence policy. The explanation for keeping the CFSP within the TEU, isolated from the legal bases for action by the Union in other areas of substantive policy, lies presumably in the desire to emphasise that the competence of the Union in this domain is different in kind from the competences defined by Title I of the TFEU. The continuing specificity of the CFSP is given expression, moreover, in institutional and procedural arrangements that will remain strongly differentiated from those applicable under the Treaties generally. On the other hand, police and judicial cooperation in criminal matters, which had been left in the Third Pillar when other matters were transferred to the First Pillar by the Treaty of Amsterdam, were incorporated into the Title of the TFEU relating to the area of freedom, security and justice.
How should we characterise this new structure? A case could be made for the view that the three pillars have become two. That used to be my view, but I’m now convinced that we should abandon pillar talk. The language of the Lisbon Treaty indicates that its authors intended to establish an integral Union, but one within which the particularity of the CFSP would be preserved. The question that’s interesting legally, rather than architecturally, is to what extent the constitutional principles that were developed by the Court of Justice in cases arising under the Community Treaties now apply across the board, including to the CFSP. That’s a question on which I could give a whole lecture, maybe a series. Suffice it to say that I’m very clear that there’s no room for any principle that isn’t fully consistent with the particular character of the CFSP, and more especially with the sole responsibility of each Member State for its national security, which is now explicitly acknowledged by Article 4 (2) TEU. That would apply, for instance, to the principles developed in the case law that give rise to exclusive Union competence in certain circumstances. I agree with Paul Craig, where he writes in his book on the Lisbon Treaty that “the substance of the CFSP simply does not accord with exclusive EU competence”.
I could go on but I mustn’t, because there are other important matters I should like to address.
Enlargement
The next one is the enlargement of the Union’s membership.
In 1971 there were still the original 6 Member States – France, Germany, Italy and the Benelux countries. Spain and Portugal were in the grip of sclerotic dictatorships. Greece had recently succumbed to the Colonels’ coup. Half of continental Europe were client States of the Soviet Union. The story of how and why the Six become Nine, then Ten, then Twelve, then Fifteen, then Twenty Five and finally Twenty Seven is for another occasion. As I indicated earlier, the enlargement process seemed to me the inevitable, and right, reaction to a series of global economic and political challenges. And it isn’t complete. I once described the EU as an antidote to European history. There’s history still being made in the Balkans that will call for similar treatment.
I felt I had to refer to enlargement, because it’s such an enormous change since 1971, though it’s legal relevance may not be obvious. Of course, enlargement has vastly increased the range of legal traditions that interact with EU law. But the new arrivals seems to me to have had little discernible impact on the development of the legal order. I suspect that is because the growth of the legal order in its early years was so prodigious. French and German public law had a great influence in those formative years. In particular, they provided the source for the principles that shaped the system of legal accountability of the European institutions, including many of the most familiar general principles of law, such as proportionality and the protection of legitimate expectations. Community law, as we then thought of it, already had its own well formed character at the time of the United Kingdom’s accession in 1973. I remember that J-P Warner was proud of having seized the opportunity in the Metro case, which was about Commission procedure in competition matters, to feed in the principle audi alteram partem or the right to a hearing. Though, of course, the rights of the defence is also a familiar doctrine across the Channel. Perhaps the clearest example of common law influence was the change in the style of ECJ judgments. The French syllogistic style, with a series of attendus (whereass) leading to an apparently inevitable conclusion, which you find in the judgments of the 1950s, 60s and early 70s, gave way to the more discursive common law style that the British and Irish members of the Court brought with them. By the time of the later arrivals, the legal order was so relatively mature that it was hard for any individual tradition to make an impact. If anyone in the audience can think of examples, I’d be interested.
Another issue is how judges and practitioners, law teachers and law students in acceding countries learn to navigate in the new world of EU law. There always has to be a process of education, but I think that has become easier over the years, because EU law has been more studied and more written about, and more people are eager to lay on courses and conferences. When I started teaching EU law, there were no textbooks in English and no ECR, though we did have the commercial series, Common Market Law Reports, and were very grateful for it. There were also few conferences. A shining exception were the annual Leiden/London meetings, which are still continuing. And where would we have been without the indispensable Common Market Law Review, which also still flourishes?
I remember there was considerable anxiety in 1971 and throughout the pre-accession period, as to how courts and legal practitioners and University teachers, who had grown up in the common law tradition, would cope with a system which, it was said, rested upon civil law concepts and principles. In the event, we needn’t have worried. The London Bar and London solicitors’ firms were soon, and have remained, in the forefront of European legal practice. Even before accession, there were specialised courses on Community law in several British Universities, and after accession many of these became compulsory; though it has to be said that, the grander the institution, the later this development tended to happen. As for the Courts, Lord Denning may have used dramatic language to describe the incoming tide of EU law; but, unlike in France and in Germany, there has never been an explicit refusal by one of the higher courts in this country to acknowledge the primacy of EU law and to accept the authority of rulings by the ECJ.
There’s a variety of reasons for this smooth transition. Not least among them was the educational effort made by Jack Mackenzie-Stuart and Jean-Pierre Warner, and continued by their successors at the ECJ, hosting judicial visits to Luxembourg, attending conferences, lecturing and publishing. Another reason may have been the brilliantly economical drafting of the European Communities Act 1972, whereby Parliament instructed the courts to give effect to Community law in accordance with its own nature, and following the precedents set by the ECJ. But the main reason, I believe, was an unexpected cultural affinity. Our common law tradition turned out to be more of a help than a hindrance. So much of EU law, especially in the early period before the Union legislator began churning out regulations and directives, was judge-made. The Judges and Advocates General in Luxembourg were compelled, by the need to create a fully functional legal order, to behave very much like common law judges. Like M. Jourdain they spoke prose – or I should prefer to call it poetry – without knowing it. EU cases may have peculiar names – and these are becoming more polysyllabic as the Union expands – but EU lawyers use them in very much the same way as common lawyers use the decisions of our superior courts: to construct a coherent account of an area of law or simply to try and predict what the Court may get up to in the future. If there’s a difference, it would perhaps lie in a tendency to read passages in ECJ judgments as legislative texts, rather than as steps in reasoning towards a decision on a particular set of facts. But essentially, those who have mastered the techniques of the common law are likely to flourish as EU lawyers.
The scope of EU law
Next, the scope of EU law. Over the past 40 years, there has been a huge expansion of the range of matters governed directly or indirectly by law derived from the European Treaties. When I started, it was still possible to know the whole of EU law. It certainly isn’t now.
In 1971, the essential task of the then Community was the establishment of the common market, comprising a customs union supplemented by the liberalisation of the factors of production; hence the classic four freedoms – the free movement of goods, free movement of persons (comprising workers, the self-employed and businesses), freedom to provide services and the free movement of capital. There was machinery to prevent free competition from being restricted or distorted. And there was special provision for the organisation of the agricultural sector where, it was believed, a free market would be impracticable.
So how did the law of the common market appear in 1971? Great strides had already been made in establishing an effective competition policy. This was the area of substantive EC law that seemed to me the most interesting at the time, and it was the subject of my earliest publications in Common Market Law Review. Another well developed field was the common agricultural policy, on which I also published. A mass of legislation had been adopted during the later 1960s, establishing common organisations of the market in the main agricultural products. There had also been important legislation to facilitate the free movement of workers, including elaborate rules to protect their social security entitlements when they took a job in another Member State. However, as to the other freedoms, the picture looked less rosy.
In theory, the common market should have been completed by 1970, when the 12-year transitional period provided for by the EC Treaty came to an end. The most direct and blatant obstacles to free movement, customs duties and quotas in trade between Member States, had indeed been abolished. But there remained a mass of indirect obstacles resulting from disparities between Member States’ legislation, which had the effect, sometimes deliberate, of protecting domestic businesses and their workers against competition. The Treaty provided a legal basis, now Article 115 TFEU, for the harmonisation (or “approximation”, to use the technical term) of Member States’ laws regulations or administrative practices affecting the establishment or functioning of the common market, but the legislation could only be adopted by the Council acting unanimously. That provided too great an opportunity for Member States to resist change, often in the genuine, though misguided, belief that their national standards were the best and only way of protecting the consumers of goods and services.
The Court of Justice came to the rescue. Already in the 1960s there had been cases in which charges having equivalent effect to customs duties, such as the Belgian levy on imported diamonds that was used to finance a social fund for workers in the diamond industry, had been held to infringe the directly effective prohibition imposed by the Treaty. Through the 1970s and early 1980s a major focus of interest for EC lawyers was the steady accumulation of case law on the direct effect of the Treaty prohibitions against national measures having equivalent effect to quantitative restrictions or operating as impediments to the free movement of workers, of the self-employed and of service-providers. There isn’t time to mention the leading cases individually, but I shall make an exception for Cassis de Dijon, decided in 1979, in which a German requirement that fruit liqueurs have a minimum alcohol content was found to be incompatible with the Treaty. The justification the German authorities put forward for this rule amounted to claiming that strong drinks are less dangerous than weak drinks. This met with unsurprising scepticism. Cassis established that Member States couldn’t insist upon compliance with their own product standards by imported products which had been manufactured and marketed in compliance with the standards of the Member State of origin; not, that is, unless the Member State of importation could demonstrate to the satisfaction of the Court that its domestic standards really were necessary, as well as proportional, to the objective of protecting certain non-economic public interests.
I can’t over-emphasise the importance of Cassis and all the rest of the case law on freedom of movement, which showed that, without solid justification, the game was up for national measures having a protectionist object or effect. It’s hard to believe that, if the Court hadn’t shown such determined boldness, the internal market project, which has proved the catalyst for so many other developments, could have been launched, let alone completed successfully.
I attribute the expansion of EU competences from the 1980s onwards, far beyond the central mechanism of the common market, mainly to three things.
First, the suppleness of the common market concept itself. This was understood as covering not merely free movement and competition but also the so-called “flanking” policies that were liable to interact with the market, such as policies on regional assistance, research and the environment, as well as social policy. Embryonic developments, often based on subsidiary powers created by the Council under the provision that has become Article 352 TFEU, were later consolidated by Treaty amendments creating specific legal bases for action by the Union in these areas.
A second factor in the expansion of EU competences was one I’ve just mentioned, the detailed legislative programme for the unification of the market, which was launched by a Commission White Paper in March 1985, under the Presidency of Jacques Delors, and was piloted through its initial phase, until Mrs Thatcher sacked him as UK Commissioner, by Lord Cockfield. The programme focused on the removal, through harmonising legislation, of the remaining barriers to free movement, which had survived the Court’s onslaught because they were thought capable of being justified in some way. And it was completed – more or less, and to pretty general, though not universal, satisfaction – by the deadline of 31 December 2002, which had been set by the White Paper. The influence of the programme has been broadly of two kinds.
In the first place, it brought about a profound change in the legislative practice of the Council, which got into the habit of taking decisions by qualified majority vote (or QMV). The Council had been empowered to act by QMV, thanks to a new legal basis for internal market approximation measures, now found in Article 114 TFEU. This had been inserted into the EC Treaty by the oddly named Single European Act, an amending Treaty which came into force in July 1987. The surprise was that the Council actually took advantage of this power, because up until then its habit had been nearly always to seek consensus, even where QMV was permitted by the Treaty. When I first joined the Legal Service, majority decisions were such a novelty that we used to keep a tally. By the time I left at the end of 1994, we had given up, because voting had become routine. This change of practice had an effect across the board and helps to explain the proliferation of legislation in the past couple of decades. Maybe, some might think, it wasn’t such a good thing, after all.
The other consequence of the internal market programme, no less momentous and more directly related to its subject-matter, was the revival of the project for economic and monetary union. The mechanism for the introduction of a single currency was inserted into the EC Treaty by the TEU and, as everyone knows, this led in a surprisingly short time to the introduction of the euro in 12 Member States on 1 January 1999. We may now be on the verge of the next phase in this development, with the introduction of some form of economic government for the Member States participating in the euro.
The third factor in the expansion of Union competence was events in the wider world. These explain what would have been unimaginable in 1971, and indeed in 1981, namely that the Union should acquire competence and become active in the spheres of foreign and security policy and of criminal law and police powers. The uncertainties of the post-Soviet era underlined the importance for the Union to play a more effective role in international relations, more particularly with a view to creating a new and stable security structure in Europe and with its near neighbours. The Member States were also persuaded that they needed to act together to cope more adequately with the growing threats posed by drug-trafficking and other serious forms of international crime, and with illegal immigration. And the more recent menace from terrorists with access to global finance and failed States as safe havens attests to the wisdom of those decisions.
It’s very important to stress, however, that thanks to the checks and balances of the legal order the expansion of Union competence, and hence of EU law, doesn’t entail an equal and opposite contraction of national competence and law.
This is partly because Member States play a central role in decision-making, through their membership of the Council. It is, moreover, the European Council, composed of Heads of State or Government together with their full-time President and the Commission President, that sets the political agenda for the Union. Even if QMV now applies to most matters, so that there is ultimately the risk of being outvoted, the practice allows ample opportunity for compromise and the accommodation of serious national issues.
A second consideration is that the effect upon Member States’ competences depends upon the nature of the Union competence in question, as defined by the categories that are now listed in the new Article 2 TFEU and further clarified by Articles 3 to 6. Where Union competence is exclusive, Member States are precluded from acting autonomously; but the categories of a priori exclusivity are limited in number and uncontroversial, covering matters such as the common commercial policy or monetary policy for Member States using the euro. Where competence is shared, which is the case with most matters, the Member States retain the right of autonomous action, except to the extent that the Union may itself have acted in respect of a certain matter; and that pre-emptive effect does not apply at all in some areas, notably research and development cooperation. In areas where the Union is competent merely to support, coordinate and complement the action of Member States, such as health, industry and education, action by the Union has no pre-emptive effect. And, as I noted earlier, Union competence for the CFSP is sui generis and always subject to Member States’ responsibility for their national security, which is inalienable.
So there’s no reason for alarm and despondency.
The functional constitution
I don’t want to end without saying a word about the Union’s functional constitution, which is the chef d’oeuvre of the Court of Justice, and which initially drew me to the study of EU law.
Some of those present will have heard a talk I gave a little while ago, entitled, “Falling out of love with the Court of Justice”, in which I criticised some recent Court decisions. And you may be wondering why I haven’t launched a ferocious attack upon the Court, since I remain critical of those decisions, and I could add a couple of new ones to the list. It’s not so much my respect for the Chairman, great though that is, but rather a sense of proportion that explains my reticence. In a 40-year perspective, any appreciation of the Court’s achievements can only be overwhelmingly positive.
I’ve spent much of my academic career defending the Court against misplaced accusations of activism. I don’t regard the case law on freedom of movement as activist at all. As Jack Mackenzie-Stuart used to say, the Court was simply reminding the Member States of what they had explicitly undertaken in the Treaty. On the other hand, the Court’s invention of the functional constitution, completing and systematising the primary positive law contained in the Treaties, strikes me as judicial activism at its most benificent. What’s also remarkable is that the main features that characterise the mature Union constitution were already in place in 1971.
As early as 1963, in the Van Gend en Loos case, the Community was held to have created a new legal order whose subjects included private individuals as well as the Member States. The principle of direct effect, as it came to be known, meant that rights derived from the EC Treaty could be enforced by individuals in national courts. A year later in Costa v ENEL the Court spelt out the companion principle of the primacy of Community law: that, in the event of conflict between a national provision and a Community provision, the latter must prevail.
The great Internationale Handelsgesellschaft case was decided in 1970, just as I was beginning to get to grips with Community law, though I can’t pretend to have understood its implications fully at the time. As many of you will know, the case concerned a challenge to the legality of a forfeiture mechanism under the common agricultural policy, on the ground that it conflicted with economic rights protected by the German Basic Law. The Court of Justice held that the validity of measures adopted by the Community institutions cannot be determined on the basis of rules or concepts of national law, including fundamental rights that are constitutionally protected. That had to be so, because the unity and efficacy of Community law would otherwise be put in jeopardy. So it’s from this very early case that we learn that the EU is a self-referential legal order. What counts as a valid rule of EU law depends exclusively on the criteria of the order itself.
That was strong stuff. But the ruling was mitigated by the declaration, also of constitutional significance, that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice”. This confirmed indications given in earlier cases as to the rationale underpinning the Court’s human rights jurisdiction in matters falling within the scope of application of EU law.
One more constitutional authority from that epoch was the AETR or ERTA case, depending on whether you prefer the French or the English acronym, which was decided in 1971. The issue in AETR was whether the Member States or the Community should conclude a multilateral agreement on the working conditions of drivers of commercial vehicles. The Member States’, and therefore the Council’s, position was that the Community lacked competence, because the legal basis in the Treaty for action in the field of transport policy said nothing about the possibility of entering into international agreements. The Commission’s position was that such competence was implicit in the relevant provision; and, indeed, that the competence had become exclusive, since the Community had previously adopted internal legislation covering the same subject-matter. That view essentially prevailed. AETR was the starting point of a line of authority which says that EU competence to enter into international agreements can arise by implication, if it is needed to achieve an objective which the Union has been empowered to pursue; and that, even in matters for which competence is shared between the Union and the Member States, once an EU measure has been adopted internally, Member States must refrain from unilaterally undertaking international obligations that cover the same ground, even if the obligations would be wholly compatible with the existing measure. The Council’s Legal Service was so outraged by the AETR decision that 20 years later, when I was a member of the Service, a colleague surviving from that epoch would always try to persuade me to interpret the decision, in any advice I was giving to Ministers, in the narrowest way possible.
Those constitutionalising concepts and principles have been refined and developed over the years. The great lesson of Internationale Handelsgesellshaft about the relationship between national legal orders and the Union order has been completed, surprisingly not until 1998, by the judgment in the In. Co. Ge. case. The Court of Justice was asked whether the primacy principle means that a national provision which is incompatible with an EU provision must be considered a complete nullity. The Court said “No”. It was sufficient merely that the national court disapply the provision. This confirms that the primacy principle is essentially designed to resolve conflicts of law between legal systems in a coordinate relationship. The EU makes no hierarchical claim of a power to disable national legislatures. Other post-1971 developments have been inspired by the principle of ensuring effective judicial protection, which underlies the case law on the enforcement of Union rights through remedies available in national courts, notably the State liability doctrine.
Of course, there are developments of which I’m critical; for instance, the over-extension, as I see it, of the AETR principle. This has made it uncertain where the limits of Member States’ autonomous external competences lie, whereas they ought to be precisely discernible. However, this isn’t an occasion for carping but rather for celebration of an intellectual construction whose elegant profile caught my attention all those years ago and fired my determination to get to know it better.
Conclusion
That brings me to my conclusion, which is really just an announcement that I intend to stop speaking. The only thesis I hope I may have established is that the European Union and its legal order is worth a lifetime of serious legal study, of teaching and of professional practice. For my part, vallait le voyage, and I intend to keep motoring.