chapter outlines one of the text's strongest arguments: the selection and funding of non-public ...... Unión Europea. Valencia: Tirant lo. Blanch, 2007. 482 pages.
Common Market Law Review 46: 1001–1021, 2009. Book reviews © 2009 Kluwer Law International. Printed in the Netherlands.
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BOOK REVIEWS M. Freedland, P. Craig, C. Jacqueson and N. Kountouris, Public Employment Services and European Law. Oxford: Oxford University Press, 2007. Pages 402. ISBN 978-0-19-923348-9. EUR 80. The pedestal reserved for public services is eroding, top-down and bottom-up. ECJ judgments are tending away from an “immunity” stance – which would find public service activities to be non-economic and outside the ambit of Community rules – and towards a “justificatory” approach. Under the latter, public services increasingly fall within, and fall foul of, Community legislation, but transgressions – such as monopolistic activity, competition distortion, obstacles to free movement, etc. – may be justified. Meanwhile the sanctity accorded to public services within Member States has degraded, such that private-provider ideologies have percolated through national “public” systems. This impressive and timely book is a compelling message to “be aware”; it invites readers to interrogate the buzz-words that characterize the fashion for redesigning public services; to understand the domestic and European forces that, directly and inadvertently, are reshaping relationships with public services; and to confront the implications of these changes. The authors draw a convincing narrative of the progressive infiltration of public services by marketizing influences, which are considered as three phenomena – first privatization, second economization (the increasing economic rather than social impetus driving public services), and third Community-centrism (the increasing influence of Community law on national systems). Public employment services (PES) are explicitly used as a case study intended to throw light on broader public service development – a choice that relies heavily on the Job Centre (C-55/96) and Hofner (C-41/90) cases, in which the Court found that employment service provision was an economic activity and public agencies involved therein were undertakings. This is a well-chosen and quickly ripening area in which to pitch this study, in view of developments since the book was written: the profile of “tackling unemployment” has risen as a Commission policy objective, the Commission has recently focused on information sharing between national PES, and the PROGRESS project has been launched, to “create more and better jobs”. The case study incorporates PES developments in five countries – Denmark, France, Germany, Italy, and the UK. The book is divided into two parts. Part I sets up the general public service context, and notes marketizing trends. In the first chapter of Part I, the question of EC competence over social policy is raised, and trends of negative and positive integration are examined. The authors posit a re-conceptualization of the internal market, in which the economic precepts of the Community have become subsumed into broader, holistic objectives encompassing social policy initiatives. A digression on the bumpy drafting path traversed by the Services Directive makes clear that Member States retain the capacity to reign in broadening Community competence ambitions. The cultural value and consequent symbolism attached to public services, particularly in France, is the basis of Chapter 2’s opening discussion. A general privatizing trend within Member States is noted, and the resulting mix is described, borrowing Freedland’s phrase, as the “public service sector” – neither State nor private. The liberalizing influence of EC law is further examined and the “social” dimension of Community level regulation is challenged. The interweaving of Community law and national policy on public employment services is described as resulting in “an extremely complex regulatory web”, strands of which are unpicked in Chapter 3. This provides a helpful guide to the roles played by traditional and new regulatory instruments, with an understandable focus on the Open Method of Coordination.
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The final chapter (4) in Part I serves mostly as a set-up for Part II – justifying the use of PES as a case study, breaking down the PES activities considered, and providing a taxonomy of PES organizational models in the countries examined. National resistance to harmonization is noted as a particular reason for examining this area, sited as it is at the crux of a potential competence clash. A brief historical summary for each of the five countries studied is offered, situating PES in the public sector. Institutional models are defined and mapped onto the studied national systems, which all fall somewhere between cooperation and competition. Part II transposes these observations to the particular PES context and begins with a chapter charting the changing roles of PES and Private Employment Services (PRES). The authors here set out one of their main arguments – that PES face particular challenges and are in some aspects being outmanoeuvred by PRES. Through the European Employment Strategy and the EURES network, the EU is found to have provided an ideologically-infused impetus to increase the diversity of actors in employment service delivery, and to give PRES a freer hand. The authors go on to find that this trend is not unmitigated; they contend that marketization of public services can only be partial, given prevailing conditions: the service providers are not necessarily seeking to maximize profits; services are public-funded; service quality has low visibility; and the State retains ultimate responsibility. It is further suggested in this chapter that the opening up of employment services, through contracting out certain activities to private providers is frequently not presented by Member States to the public as privatization (in the Danish case it is framed as “involvement of other actors”), allowing readers to draw their own inferences about the perceived political popularity of privatizing ideologies. The book then turns, in Chapters 6-8, to examine the development of three particular PES activities: active labour market policies; vocational education and training; and making work pay policies. The development of active labour market policies (ALMPs) is charted in a brief jog through history (18 pages to cover 90 years in 5 countries renders the narrative a necessarily impressionistic one). The job-seeking relationship is described as having been reconfigured due to the modern emphasis on compulsion, as unemployment benefits are tied to an agreement to seek work and accept reasonable job offers, on pain of benefit sanction. The European Employment Strategy is examined and found to create pressures on Member States to swap passive support for activation, making unemployment benefits conditional accordingly. The authors’ use of the overarching label “ALMP” to cover a vast range of practices – including Keyensian macro-economics, job creation and production support – challenges preconceptions that ALMP involve only recent policies of activating workers. However to the reader, the single term does have drawbacks; the difference is not clear between an active labour market policy, and a mere labour market policy, while the policies thus terminologically equated have very divergent underlying philosophical rationales. An activity very much bound up with activation – vocational education and training (VET) – is considered in Chapter 7, an excellent examination of the disjuncture between theory and practice. The influence and impact of Community policies espoused in the Lisbon Strategy, the Kok report and Council guidelines, are considered. The increased emphasis on training policies reflects the emergence of what the authors term “supply side” policies – i.e. a belief that unemployment is tackled through focusing on job-seekers, as opposed to through demand side policies that aim at creating jobs. The weaknesses of different VET policies are discussed, and an inevitable tension highlighted: training measures are liable to be criticized at one extreme for being ill-matched to the labour market, or at the other extreme of being too much dictated by employers. Neither angle is geared towards the needs or existing skills of job-seekers. The implications of contracting out VET programmes are explored, as the authors suggest that VET also exemplifies the encroachment of the private sector into the realms of PES. The chapter outlines one of the text’s strongest arguments: the selection and funding of non-public training providers is often determined by outcome, i.e. quantity of people successfully placed in jobs, which skews the role played by for-profit and not-for profit VET providers respectively. The authors persuasively contend that the easy-to-place work-seekers are “creamed
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off” quickly by for-profit providers, and the focus is on quick labour-market reinsertion, with a low priority accorded to actual tailoring of training. Where medium term educative programmes are established, they frequently display very little in terms of accessibility to all but the least qualified. These “trends” are, the authors point out, not new to the UK, but Denmark and Germany have recently followed on. Germany has, for instance, introduced a “training voucher” which can be used in a number of approved schemes, but only where individuals are forecast to have a 70% chance of employment following the completion of the training. France has experimented with some private sector outsourcing of placement services, while such practice is well established in Italy. This eye-opening chapter is a must-read not only for academics, but also for anyone working within the realm of national or European employment policies. Making work pay (MWP) policies are the subject of Chapter 8, and are presented as the “carrot” to be combined with the “stick” of ALMPs; positive incentives for the unemployed to get back into work. The focus is on “employment friendly wages” and the increased prominence of in-work benefits. These include expense-covering benefits in Germany, tax credits in the UK, a means tested tax reduction in France, and a general tax reduction in Denmark. This chapter seems less cohesive than preceding ones, using elisions which seem a little forced in an attempt to generalize a narrative across borders – equating UK tax credits with French and Danish tax deductions is perhaps simplistic. There is little exploration of the distinct political difference between means-tested cash benefits which make for provision for childcare, targeting low income workers and families, on the one hand, and a universal tax cut on the other. This amalgamation with other MWP policies results in the authors’ claim that UK tax credits indicate an increased “economization” of the system. However, the authors appear to base this conclusion on the administration by Her Majesty’s Revenue and Customs as opposed to the Department for Work and Pensions. Admittedly, this administrative fact is not without consequences, particularly with regard to the tax year being the new locus of calculation, meaning that changes of circumstances can instantly create retrospective overpayments. But it is arguable that the shift does not bear the “economizing” label which is attributed to it here for the sake of trend-spotting. The argument that DWP has a greater capacity for value judgements and is more lenient is not particularly convincing. Moreover, the appraisals offered of the MWP policies in the countries considered appear weakened by the absence of “better off” calculations, leaving open the question of whether they do “make work pay”. However, the chapter clearly ties MWP in with ALMP, the combination representing in different Member States a form of work-fare programme, which is broadly characterized as economically, rather than socially orientated. MWP also reflect the Community-centrism of public services noted throughout the book; although presented as responses to internal pressures, MWP exhibit conformity with Community hard and soft law measures. The final chapter deals with the changing nature of the relationship between job-seekers and the PES. Two particular trends are noted – individualization of the relationship, through (ostensibly) tailored job-seeking plans; and contractualization, through sanctions. The contractualization process raises a number of issues – freedom of contract due to constraints imposed on the unemployed, a disparity of bargaining power, and the displacing of preacquired social rights by future counter-obligations. The implications for notions of universality and solidarity are explored. The effect of contracting out aspects of employment services is seen to give rise to multi-pathway relationships between PES and jobseekers; the resulting network, controlled by an overall job seeking contract, means that it is no longer only public service providers that influence (or even control) the imposition of sanctions on job-seekers. This is an engaging study that makes compelling claims about the difficulties faced by public services, drawing upon a well-researched case study on PES. A detailed analysis of PES in each of the Member States is rightly avoided as too ambitious a project. The focus on trends enables the authors to extrapolate conclusions for reflecting on public services generally, necessitating brief historical overviews, rather than a close snapshot at any one time. This does
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not mean that the book is short on “facts” – it uses a wealth of weighty, sometimes surprising data to substantiate several powerful theses, but the scope of the study gives the impression of “cherry picking” relevant observations when counter-arguments are absent. The current political relevance of PES makes the study a revealing read for anyone with an interest in the regulatory vicissitudes facing public services in general; it is an essential read for those working in the area of PES and the European Employment Strategy in particular. Charlotte O’Brien Liverpool Alan Dashwood and Marc Maresceau (Eds.), Law and Practice of EU External Relations. Cambridge: Cambridge University Press, 2008. 484 pages. ISBN 978-05318-9923-9. USD 130. To any reader interested in watching the European Union consolidate its position within world legal orders, assert its emerging identity, and implement policies for its own protection and which are beneficial to neighbours and other non-Member States, this series of essays is fascinating, stimulating and immensely informative. The subtitle of the book is “Salient Features of a Changing Landscape” and the Introduction stresses the fast footwork required for the editors and authors firing at a constantly moving target. There was indeed an admirable effort to keep ahead, but in fact among the most interesting contributions are those few whose insights have already been vindicated by later events. Eeckhout’s essay, “EC law and Security Council Resolutions – in search of the right fit”, is the most obvious example. His criticism of the Kadi judgment of the Court of First Instance is based on the international law principle that neither treaties nor even Security Council resolutions prescribe the method of their implementation at national (or in this case Union) level, but impose only an obligation of result. While the national (or European Union) court may not annul or challenge the international instrument, it is not obliged by any international legal rule to set aside its own constitutional requirements where these would normally require review of the implementing domestic instrument. (The international law approach has been most recently confirmed by the International Court of Justice in its Judgment of January 2009 on Mexico’s Request for Interpretation of Avena.) Eeckhout also dismisses the somewhat unhappy proposition of the Court of First Instance that review by a European (or national) court would be possible, though only on grounds of alleged violation of a ius cogens norm. Although the alternative he suggests – based on application of the “solange” approach – was not the one selected by the European Court of Justice, most of his analysis has been supported by the Court in its later judgment in Kadi reversing the Court of First Instance on the review issue. What was clearly shown in that judgment was the inadequacy of the UN system of sanctions from the point of view of entitling affected individuals to challenge decisions – so that “the right fit” may require urgent review at the UN level with the object of upholding the rule of law, rather than blind acceptance at the national or Union level. By contrast, as emerges from Spaventa’s essay on “Fundamental rights and the interface between Second and Third Pillar”, the “domestic” terrorism suspect is in an even less happy position under the Union’s legal order. Spaventa shows that the enthusiasm of the Union for developing international cooperation and Third Pillar measures against terrorists has not so far been matched by any corresponding evolution in the system of judicial protection. The Treaties provide no passerelle from the Third Pillar opening the way to a First Pillar sanctions measure and no possibility of proceedings by individuals before either of the European courts to challenge inclusion of their name (often by way of secret information) on lists of terrorists drawn up by the Council under Third Pillar powers. Review may be possible at national level, but would have effects only within the relevant national jurisdiction. Nor does recent
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experience (following the Court’s judgment in OMPI) show any readiness on the part of the Council to comply promptly and fully with rulings, indicating that the name of a “foreign” suspect has been wrongly included on a list of terrorists. While one may blame the increasing sophistication and speed of smart sanctions for the difficulty in enforcing them across a multi-layered legal order, the struggle to achieve a “better division and definition of competence within the Union” was self-imposed by the European Council in the Laeken Declaration. Like the call for simplification of the Treaties and of Union instruments, it seemed a good idea at the time (as P. G. Wodehouse would have put it). But Cremona as shows, in a rigorous analysis of the external relations provisions in the Treaty establishing a Constitution for Europe and of the Lisbon Treaty – which replaced vaulting ambition with crab-like manoeuvres in the same direction – it appears that one set of ambiguities which were gradually being clarified by the practice of the institutions and by European Court cases would be replaced by another set. Her essay seeks to draw lessons from the Treaty reform process and a number of these are very clear. One is that even in the interests of simplification and transparency, it is undesirable to try to codify principles elaborated with subtlety over several years by the European Court of Justice into a distilled treaty text. Another major defect of the provisions on competence is the construction of a list of types of competence – exclusive, complementary and shared, with “shared competence” as the default option – which then leaves the Common Foreign and Security Policy hanging out on its own. Experts such as Cremona and Dashwood are clear that CFSP competence is sui generis, but others have been setting it into the default option of shared competence – which at the least shows a failure by the treaty-makers to achieve the aim of clarity. Dashwood also explores competence with specific reference to Article 47 TEU – the boundary demarcation between the First Pillar and the intergovernmental pillars. Many of the elements in his analysis were confirmed by the Court’s judgment in Case 91/05 ECOWAS – and luckily it was possible to include comment on that judgment in an Epilogue. Of long-term interest is the assessment in this Epilogue of how demarcation disputes might be resolved under the Lisbon Treaty, given that the Second Pillar has shown itself remarkably resilient to sustained efforts to “tidy it up”. As to whether turf wars between the phantoms of the First and Second Pillar might continue, Dashwood says that it is vital that the first double-hatted High Representative of the Union for the Foreign Affairs and Security Policy should establish authority across the whole field of the Union’s external action and independence from sclerotic interests within the institutions. Perhaps wisely, however, given the failure to make changes in the institutional responsibilities of the Council and the Commission, he does not venture an opinion on whether such authority and independence is in practice likely. The list of contributors to the book is impressive not only in terms of academic and practising excellence, but also in terms of the variety of perspectives. A number of the essays have an interest going wider than external relations law. Maresceau’s account of the relations between the EU and Andorra, San Marino and Monaco is fascinating in historical and political terms as well as for the international lawyer interested in the emergence of new States and the processes of recognition. Passing from micro-States to super-power, Burghardt’s account of the EU’s transatlantic relationship describes that relationship from the communication from Truman’s Secretary of State Dean Acheson to Jean Monnet on his first day as President of the High Authority of the European Coal and Steel Community – regarded as the first international recognition of the new organization – down to the recent tensions arising from the US commitment to a strategy of pre-emptive use of force and a “war on terror”. Although relations with the US have been centred on highly specific matters of substance rather than on the general political or legal problems which occupy greater space in relations with most other countries, this essay is a powerful reminder that, as pointed out, “the EU-US relationship is still the most powerful, the most comprehensive and the strategically most important relationship in the world”. Francis Jacobs gives a sweeping, necessarily selective, account of the recent case law of the European Court on direct effect and interpretation of international agreements
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which enables gradual shifts in approach to be more easily discerned. He sees the Court as now readier to give direct effect to international agreements – with the important exception of the WTO – and to assimilate their interpretation to that of similar provisions in the EC Treaty. This was another essay which the reader would have liked to see continue to the next stage – namely the Court’s judgment of June 2008 in the Intertanko case. Space constraints have regrettably compelled omitting discussion of other essays which are perceptive or challenging in their analysis or prescient in their forecast of impending developments. As a whole the book is rigorously critical but unusually realistic. It achieves with distinction its objective of presenting a panoramic view of the European Union achieving more of its external objectives and with greater political and legal sensitivity than it is usually given credit for – though still excessively preoccupied with gazing at the emerging contours of its own identity. Eileen Denza London Maximilian B. Rasch, The European Union and the United Nations. The Functioning and Coherence of EU External Representation in a State-centric Environment. Leiden: Martinus Nijhoff Publishers, 2008. 360 pages. ISBN: 978 90 04 16714 8. EUR 99. In recent years, and especially since the publication of Laatikainen and Smith’s edited volume “The European Union at the United Nations. Intersecting Multilateralisms” (Palgrave Macmillan, 2006), a growing group of scholars have started to analyse the complex interrelationship between the EU and UN. Rash’s volume fits within this flourishing research tradition, examining the implementation of the EU’s Common Foreign and Security Policy (CFSP) at the UN in New York. The back cover sets high expectations: this volume deals with the effectiveness and coherence of EU representation at the UN, scrutinizes the potential of the EU as a single actor in foreign and security affairs, reviews CFSP developments generally and explores whether the process of Europeanization is taking place in EU external relations. Does the author meet these fairly broad claims? Starting with a useful review of existing literature, Rasch offers a detailed empirical exploration of the EU at the UN, in particular of the situation at the UN General Assembly (UNGA). His empirical material being impressive, he manages to provide a profound analysis of EU-UN relations. Rash provides new information and fresh insights, especially on the Brussels dimension of EU representation at the UN, the interaction between Brussels and New York, and the voting behaviour of the individual EU Member States at the UNGA. The insider’s perspective he gained while interning at both the European Commission Delegation and the Liaison Office of the Council in New York clearly shows. However, his search for comprehensiveness gives this volume at times a rather encyclopaedic character, sliding into (factual) description rather than (theory-based) analysis. Continuing on the same line, since it is Rash’s ambition to examine the implementation of the EU’s CFSP at the UN, the choice to include the UN Security Council (UNSC) in his analysis seems rather logical. However, in comparison to his data collection and analysis on the UNGA, his approach to the UNSC is a less meticulous one. As it builds upon earlier research, conclusions might not always be up to date. True, the CFSP is here in statu nascendi (p. 175), especially in comparison to the UNGA. But the way in which Article 19 TEU is operationalized today in relation to the UNSC is different from the years described by Winkelmann (2000) or Burghardt, Tebbe and Marquardt (2003). Even by concentrating his analysis on the EU’s relationship with the UNGA and leaving aside the UNSC, Rash would have made an important addition to the literature. Like many scholars, Rash blends legal-institutional analysis with measuring voting cohesion. While his way of analysing the voting patterns of the various EU Member States at the
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UNGA is innovative, his study also shows the limitations of such approach. The presence (or absence) of voting cohesion is often the end result of complex negotiations. To fully grasp the implementation of the CFSP at the UN, careful process-tracing is most appropriate. As a result, case-study research is the way forward. Moreover, to reach more qualified conclusions on the manifestation of EU “actorness” at the UN, a comparative research design might be adequate, one which compares the action of the EU at the UN with other international settings or with other regional players at the UN, as Rash himself hints (p. 226-232). While more empirical and theoretical work thus remains to be done along these lines, Rash has produced a well-researched piece of work that provides novel and valuable insights for scholars and practitioners interested in the functioning of the CFSP at the UN(GA). Edith Drieskens The Hague Paolisa Nebbia, Unfair Contract Terms in European Law. A study in comparative and EC law. Oxford: Hart Publishing, 2007. 225 pages. ISBN 1-84113-594-1. GBP 40. This book review was written some time after the Commission had made its proposal for a directive on consumer rights (COM(2008)614 final of 8 October 2008). That proposal merges 4 directives on consumer protection in the contractual sphere (Directive 85/577 on off-premises contract, Directive 93/13/EC on Unfair Terms in Consumer Contracts, Directive 97/7/EC on Distant Contracts, and Directive 1999/44/EC on Consumer Sales and Guarantees). The book reviewed here is about Directive 93/13 on Unfair Terms in Consumer Contracts. The new Commission proposal consolidates, more than it amends the existing Directives, but it replaces the minimum harmonization approach which is characteristic for the four existing Directives by full harmonization. If the proposal is adopted, this full harmonization approach will also have important consequences for the protection of consumers in the field of unfair contract terms. Apart from that, the proposal will not bring important changes. The only significant change is that the existing indicative list of unfair terms in the annex to the Directive would be replaced by two exhaustive lists of unfair terms, a black list of terms considered unfair in all circumstances and a grey list of terms presumed to be unfair (see Arts. 34 and 35 of the proposal). All the issues discussed by Nebbia in her excellent book will remain relevant if the proposal is adopted. The scope of the book is somewhat restricted. And that is its strength. The author basically looks at English and Italian law against the background of Directive 93/13, but adds elements of comparison with other national laws, in particular German law (the mother of all laws on unfair contract terms) and French law, where appropriate. After a brief introduction, the author deals in seven chapters with the following topics: the Directive and EC consumer law and policy, unfair terms regulation, a comparative study (implementation in England and Italy), unfair terms control in England and Italy, the subjective scope of application, application to public services, objective scope of application, formal and substantive controls. The conclusion is called “a European tradition?” and contains two sections: Convergence and divergence in the interpretation of Directive 93/13 and The European Court of Justice as the engine of European integration? Directive 93/13 and the relevant, English, French, German and Italian laws are appended. In the chapter on EC Consumer Law and Policy, the author discusses inter alia the rationale of the Directive, i.e. the internal market argument (the confident consumer) and the problems created by the minimum harmonization formula. On the future of Directive 93/13, the author suggests that the problem traced by the Directive will now be dealt with under the new proposal for a European contract law, particularly as part of the plan to the improve the quality of the EC Contract Law acquis. At this moment (early 2009) it should however be noted
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that the Commission’s new proposal in the field of unfair terms has not really taken into account the present Draft Common Frame of Reference (Principles, Definitions and Model Rules of European Private Law). The third chapter, a comparative study, widens the comparison to other legal systems (English and Italian), by a brief discussion of the German Allgemeine Geschäftsbedingungen Gesetz and French law (Loi Scrivener). This chapter concludes with very interesting observations on the rationale of unfair terms control in Italy and England and on the implementation of the Directive in these two countries. Chapter 4 relates to the control of unfair terms in England and Italy: formal controls (rules on incorporation of contract terms, rules on interpretation) and substantive controls. The author also looks at the different methods of adjudication, based on the reasonable expectations of the consumer or the assessment of the fairness of contract terms depending on specific circumstances surrounding the conclusion of the contract. The English system is based on the second method and is qualified by Nebbia as “contextual justice”. Compared to that, the Italian law on unfair terms presents different – almost opposite – features. This is not the place to go into detail, however. Interestingly the author writes that the problem of unfair terms is a social problem, and the Italian private lawyer has traditionally considered social problems as outside his competence, thus restraining his field of action strictly to the data provided by positive law, and avoiding any contamination of his judgements by other considerations (including obviously the application of general principles like good faith). In the fifth chapter, on the subjective scope of application, the author goes quite deeply into the notion of consumer. She identifies areas of conflict between the domestic and the European definitions. Here the author underlines the lack of coherence in the definition of consumer, and even more so, in the definition of the business part of the consumer, in the different consumer directives. A particularly interesting chapter is chapter 6 on the application to public services. Although the Directive applies to private companies and public services (dealing with consumers), it only applies to relationships of a contractual nature and, in addition, Article 1(2) of the Directive excludes “the contractual terms which reflect mandatory statutory or regulatory provisions and the provisions and principles of international conventions to which the Member States or the Community are a party, particularly in the transport area” from the application of a Directive. Nebbia shows convincingly how this exclusion gives rise to a lot of uncertainty. She has looked into the divergent ways in which this exclusion has been implemented in the laws of the UK, Italy, France and Germany. Unfortunately, the proposal for a Directive on consumer rights does not address these problems. In the seventh chapter, the author discusses the objective scope of application. The rules of the Directive only apply to contractual terms which have not been individually negotiated. Both the English and the Italian law were familiar with such a limitation. The author also discusses the exclusion of so-called “core terms” in Article 4(2): “assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract law of the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other, in so far as these terms are in plain intelligible language”. Chapter 8 deals with the fairness test in Article 3 of the Directive. Article 3(1) provides that a contractual term (which has not been individually negotiated) shall be regarded as unfair if, “contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer”. Although the test seems very simple, the differences in implementation between the Member States are enormous. The majority of the Member States have implemented the Directive without the “good faith” criterion. All Member States but one (Sweden) refer to the imbalance between the parties’ rights and obligations, but they have implemented this criterium in varying ways (see Schulte-Nölke, Twigg-Flesner, Ebers The EC Consumer Law Compendium. The Consumer
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Acquis and its transposition in the Member States). In addition the meaning of good faith in the Directive has given rise to questions. Is it procedural good faith or substantive good faith? Procedural good faith relates to the opportunity given to the consumer to influence the terms, to choose between alternatives and to understand them (but other provisions of the Directive take care of that). Substantive good faith involves an overall evaluation of the interests involved (see the interesting reflections on this by Nebbia at p. 148 et seq.). In her conclusion the author asks: is there a European tradition? According to the author, the method of adjudication based on the reasonable expectations system is the most suitable to ensure consumer confidence. On the other hand, Article 4 of the Directive requires that the unfairness of a term is assessed having regard to all the circumstances attending the conclusion of the contract, which is hinting at a contextual approach. In the following section of this chapter, the author examines whether the European Court of Justice is the engine of European integration. The author rightly observes that in Freiburger Kommunalbauten (Case C-237/02) the Court was reluctant to be such an engine. The jurisdiction of the Court to interpret Community law does not extend to the interpretation of contractual terms at issue in a specific case before a national Court. It will be remembered that Directive 93/13 is a minimum harmonization directive and that, apart from the general test, it only contains an indicative list of unfair terms in annex. If the proposal for a Directive on consumer rights, with its black and grey list is adopted, the question will be prompted what influence this change will have on the role of the ECJ. It may be recalled that the Court has already taken into account an item of the indicative list of Directive 93/13 in its judgments in Océano (Joined cases C-240/98 to C-244/98) and Mostaza Claro (Case C-168/05); these cases are discussed by Nebbia on pages 170-171. Rather unfortunately, most, if not all, of the interesting questions discussed in this book remain unresolved after the new proposal of the European Commission. Above all this book remains an excellent example for comparative studies in the field of European Consumer Law. Jules Stuyck Leuven Eniko Horvath, Mandating Identity: Citizenship, Kinship Laws and Plural Nationality in the European Union. Alphen aan den Rijn: Wolters Kluwer Law & Business, 2008. 396 pages: ISBN: 978-90-411-2662-7. EUR 125. In 1992 already, the Maastricht Treaty introduced “European Citizenship” into the EC Treaty. One can assume that Member States would probably have hesitated to introduce European Citizenship if they had foreseen all the legal consequences of Article 17 et seq. EC, especially as far as the implication of the right to free movement is concerned. The Court has not only admitted the direct application of Article 18 EC (in Baumbast) but deduced, in relation with Article 12 EC, a right of European citizens to equal treatment in a lot of areas presumed to be a sort of domestic reservation (Martinez Sala, d’Hoop, Grzelczyk and others). Even if there are many studies on the exact meaning of Article 18 EC (in relation to Art. 12 EC) and the implications of the rulings of the ECJ, a lot of questions in this area are still not very clear, e.g. the exact meaning of the domain of application in Article 12 EC, the possibilities of the Member States to justify discriminating measures, or the exact relationship between Article 18 and secondary legislation. So, there are enough questions to be analysed for a Ph.D. thesis concerning legal implications and legal questions around (European) Citizenship. However, the Ph.D. thesis of Eniko Horvath, presented in 2006 at the European University Institute in Florence, has a greater ambition The author focuses on three tendencies in European and national legislation: European citizenship and its implications, “kinship” legislation (national legislation in some
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countries privileging non-nationals with ties – of linguistic, cultural or ethnic character – to the State), and the increase of acceptance of plural nationality in several countries. The author analyses these phenomena not only in a legal perspective but also drawing on sociological and political science issues. The book contains an introduction, four chapters and a conclusion. The first chapter is dedicated to “basis concepts”, and the author presents essentially his understanding of the difference between “nationality” and “citizenship”. The main difference pointed out by the author seems to be that citizens participate in political life, whereas nationality seems to be understood rather as a sort of “formal” concept. In chapter II, the concept of European Union Citizenship is analysed, taking into account the role of culture in the European Union. In chapter III, the author deals with “kinship laws”, which are understood as legislation taking into account a certain “responsibility towards individuals belonging to the given cultural or ethnic nation and resident outside the given State” (p. 139). After pointing out the emergence of this phenomenon (taking account of the situation in Germany), the situation in Hungary is analysed in detail. Chapter IV is dedicated to plural nationality. The general legal development is first pointed out before the situation in Germany is dealt with in detail. In the conclusion, the author argues that the new tendencies identified in the book (especially the proliferation of legal statuses with claims about expressing or enforcing identity) demands new conceptions in international law in order to be sure that the rights and benefits that flow from these statuses can be effective. The book shows in a rather detailed way how different legal developments have in some sense “joined” the concept of nationality, which has for a long time been considered as the essential (and sometimes only) component of individual identity. In this perspective, political and sociological issues are also of great importance, so that the book gives an overview of the different aspects relevant for the development of “cultural identity” and its legal consequences. However, this strength of the book implies also some points which may disappoint the reader: thus, the very comprehensive approach of the book does not allow a discussion, at least as far as legal aspects are concerned, in depth of the rather complex legal questions related especially to European citizenship and mentioned partly above. Also, the author certainly mentions the relevant rulings of the ECJ, but limits himself to summarizing their content without, however, analysing the questions raised by the rulings of the ECJ (cf. e.g. p. 78 et seq., p. 99 et seq.). Similar remarks may be formulated for the rulings of the ECHR. All in all, the real strength of the book is its interdisciplinary approach towards the analysed developments, rather than a detailed legal analysis. Astrid Epiney Fribourg J.-B. Auby and J. Dutheil de la Rochère (Eds.), Droit Administratif Européen. Brussels: Bruylant, 2007. 1136 pages. ISBN 978-2-8027-2458-2. EUR 145. According to the general introduction penned by the two editors, European administrative law covers three closely interconnected areas, namely: the law ruling the activities of the European institutions, the rules applied by Member States when applying EU/EC law, which are increasingly subject to influence from EU/EC law, and the effects in terms of legal innovation that EU/EC law brings about in Member States because of its influence as a model for legal reform. Another area of possible interest, which however is not systematically covered by the book, could be the reciprocal exchanges between different Member States all faced with the same task of giving effect to EU/EC law but also vying for influence over the development of EU/ EC law. Auby and Dutheil de la Rochère recall that the administrative law rules applicable to the European institutions were originally very limited. This was for many reasons, among them
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the absence of a clear distinction between normative and executive organs and their acts. The limited executive functions assigned to these institutions in the first place could not but distract attention from administrative law questions. Paramount is however the limited relevance in the EU/EC legal order of backbone concepts such as general interest, service public and similar, which are fundamental aspects of the legality principle as understood in many Member States. Instead of the legality principle (which, according to the paper by Azoulai, pp 400 et seq., is paradoxically read by the ECJ in ways to buttress decisions taken by the Commission which do not have a strong basis in secondary law), we rather find the effectiveness principle. In the editors’ view, things started changing after the Maastricht Treaty, dramatically enhancing the executive function of Community institutions. The emergence of the good administration principle is both a consequence and a reinforcement of this development (pp. 9 et seq.). European law influences national administrative law in two ways, either by imposition or by example. As to the former, the principle of effectiveness, including effective judicial protection, imposes specific procedural and remedial rules at national level. In some Member States, the accommodation to European requirements is not unproblematic. In other cases, however, national institutions, including courts, thought fit to apply European rules and principles even to situations with no connection with EU/EC law simply because they thought them to be good. In many respects, the ECHR plays a similar role. The huge book is divided into seven parts of different length, totalling about sixty contributions beside the general introduction. Each part is opened by a specific introduction. The first part is devoted to the province and instruments of EU/EC administrative law. The introduction on legislative and executive powers by Jacqué is followed by contributions on the Council, the Commission, the agencies, legal acts, liability and public service. The second part, introduced by Ziller, focuses on indirect administration of European policies by national institutions and on shared administration between European and national institutions. This part is closed by a paper by Siedentopf and Speer wondering whether an éspace administratif européen is already in place. The third part, inevitably introduced by Schwarze, one of the fathers of European administrative law (see p. 3), analyses both the sources of the (general) principles of European administrative law, and nine of those principles, from proportionality to transparency. Some of the papers in this part do not confine themselves to the EU/EC part of the story as developed through the case law of the ECJ, but find the national models which either influenced or have been influenced by this case law. With part four the book moves to European administrative law as it manifests itself at national level. The focus is on the impact of EU/EC law on five jurisdictions (England, Germany, Italy, Spain and Poland), meant to be representative, as it is made clear in the introduction by Ziller, of the main administrative law traditions present in the European Union. While part four was vertical, dealing with specific Member States, part five, which is introduced by Mario Chiti, is horizontal, in that it examines specific aspects of the influence exerted by EU/ EC law on national administrative law. Classic topics, such as institutional and procedural autonomy, liability for breach of Community law, sanctions etc. are analysed in the chapters included in this part. The French reactions to European administrative law are analysed in detail in part six, which is introduced by Bonichot. The last part is composed of a short introduction by the editors and two chapter, one on the acte administratif with trans-boundary effects and one on US administrative law. Many of the papers end with a short bibliography. A short alphabetical index is to be found at the back of the book. In contrast with the common law tradition, no list of cases referred to is given (which is witness to some persistent difference in legal traditions, but on this more later). Auby and Dutheil de la Rochère lament the fact that the French were late – as compared to scholars from other Member States – in taking stock of the influence played by EU/EC law on domestic administrative law (p. 3). With this work, they have indeed “jump-started” the French contribution on European administrative law. However, it would be too narrow to describe the
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book as a French one. It differs from the seminal work by Schwarze and from the more recent book by Craig because it is a collective effort, not one person’s work. It is different again from another collection, the one directed by Mario Chiti and Greco in Italy, because the contributors come from many different corners of the European Union. This is by itself relevant, meaning that scholars from different jurisdiction can come together, and do often come together, to work out a shared – if not yet common – understanding of our common European administrative law. Indeed the Hauptprobleme underlying the whole project whose results are collected in the book is whether national administrative laws are to be superseded by a uniform set of rules, possibly in the forms of codification. The theme recurs often in the literature. In the past, the discussion was focused on remedies. These days, the question refers to a wider subject matter, administrative law in its entirety (and goes beyond, in the different spheres of influence of EU/ EC law). The evidence is mixed. Siedentopf and Speer quite rightly maintain that the accession criteria masked an exhaustive (and exhausting) administrative toil which could hardly be without the effect of bringing together different administrative cultures (see especially pp. 311 et seq.). The system seems indeed to be evolving towards closer integration. Mario Chiti quite aptly characterizes the old situation as one of great institutional and procedural autonomy, where national administration could give effect to EU/EC law provisions through their usual arrangements, provided that they abided to some general principles laid down at European level. The position was one of general principles effectively combined with jura particularia. This stance had the benefit of avoiding interference with divergent administrative traditions, ranging from legal systems with specific rules for administration (like in France and Italy) to systems where as a rule the administration is bound by the common law (like the UK), through mixed systems combining general and specific rules (like Germany and Spain), while at the same time allowing the effet utile of European law provisions (p. 670). The situation has necessarily changed with the ever closer combination of competences and procedures at European and national level, commanding a stricter coordination of the activities of European and national institutions and by implication a stronger convergence of the rules they apply (p. 672). On the other hand, and because of the subsidiarity principle, harmonization and convergence are deemed to be partial at best. Federal legal orders may accommodate a large measure of variance from one State to the other; a fortiori this should be the case with Europe (this is already remarked in the introduction, see p. 19; see also p. 1066). And the paper by Donnelly shows that federal administrative law tends to influence State administrative law as to the principles rather than as to the specific rules (pp. 1100 et seq.). In the end, these days the European legal order is a melting pot of legal ideas, and comparative European law has to play a major role (p. 9). The introduction to part four by Ziller provides a very good example of how comparative law may shed light on different perceptions and misunderstandings which are a constant danger on the road to a European administrative law which, if not uniform, needs at least to be coherent (see pp. 546 et seq. on the French notion of service public). This leaves the question of what is to be harmonized and what to be left to national choices. More than a few papers in the book are witnesses to a conflict worth some consideration. In the old days, specific substantive issues were harmonized. Concerning procedures, however, the autonomy of national legal orders prevailed. This latter proposition has been turned on its head by the case law on effective judicial protection starting with Factortame. In the process, that same axis of administrative law may be changing. European administrative law has some specific focuses, namely the bias for competition and liberalization on the one hand and the emphasis on procedures and control on the other, while some traditional concerns, such as the general interest, the service public, are less central. Even the idea of legality, pivotal in the more revered traditions of many Member States, may be less central, the main preoccupation being effectiveness (see again the general introduction). One could add to
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the list of the divergences between the traditional and European administrative law the notion of acte administratif (analysed by Noguellou in the book), which is essential in French, German, and Italian administrative law but of very minor relevance in EU/EC law (indeed, following Brasserie du Pêcheur and Factortame III, margins of discretion are more focal than the nature of the legal act involved). However, as Ziller shows, the notion of service public has assumed a very specific meaning in the French system because of historical reasons exclusive to it. An alternative position could be that the general interest is anyway quite a generic reference, and if it is translated into the no less generic idea of national interest it becomes clearly at odds with the philosophy of integration at continental level. The search for an appropriate balance between legality and efficiency is nothing new in administrative law (and the role of the French Conseil dEtat is an unmistakable witness to this), and if possible it has become more impelling in the competitive and globalized world we live in. The debate on the nature of European administrative law is indeed open, and this book may be saluted as one of the most potent opening salvos so far. Roberto Caranta Turin G. Oanta, La Politíca de Seguridad Alimentaria en la Unión Europea. Valencia: Tirant lo Blanch, 2007. 482 pages. ISBN 978-84-8456-881-0. EUR 44.90 This book is devoted to the Food Safety Policy of the European Union. It aims to introduce the current normative body recently crafted by the EU, and to assess whether it is well equipped to address the possibility of yet another food crisis within the Union. In order to do so, the author goes back to the legal and political background extant in the 1990s that allowed the initial development of such a policy, not yet written as such in the constitutional texts as a formal policy. Then, the different food crises that took place in the last twenty years in the EU – viz.: the mad cow disease, the dioxin crisis, foot and mouth disease, and avian influenza – are treated in turn. This is an important part of the analysis, as it reveals how initially this European policy was reactive rather than preventive. Legislative action was therefore necessary and, once adopted, these secondary norms led to the formation of key principles for food safety, such as the precautionary principle. Finally, the book makes an evaluation of the main institutional answer from the EU with the object of applying the new norms in this domain, i.e. the European Food Safety Authority (EFSA). Chapter One of this book starts by reminding us how initially there was an indirect approach to food safety in the EU. It was to be faced using the tools already existing, that is, within the framework of other policies. Public Health and the Protection of Consumers, themselves not formal policies until the Treaty of Maastricht, were then the recipients of the initiatives in this area, which is itself a consistent move, taking into account their transversal character. But the author rightly focuses on the Internal Market as the true and most powerful European Policy from which food safety was to be developed. Indeed, the free movement of goods and the food safety realm have strong connections which could not but help build up, even indirectly, this new policy in the EU. Making an effort to present the bulk of the Internal Market, the book highlights the principles that could be derived from the “protection of health and life of humans, animals or plants” offered by Article 30 EC. In addition, it examines in detail the application of Article 30 in the case law of the European Court of Justice with regard to fourteen types of problematic fields, such as additives and vitamins, pesticides, etc. Chapter Two makes a thorough analysis of the different food crises that have taken place within the EU during the last decade. This chapter helps the author affirm the existence of a true de facto European Policy regarding food safety, a new Policy characterized by its horizontality. The Bovine Spongiform Encephalopathy (BSE) or “mad cow disease” ; the
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Dioxins crisis; the foot-and-mouth disease; and the Avian Influenza are analysed in depth. For each of those crises, the book introduces the normative background extant in the EU before the crisis erupts; then it examines the crisis itself with all its ramifications for individual countries and for the European institutions – the situation regarding the mad cow disease in the United Kingdom is a case in point, as it hit this country economically and put to test the ability of the Union to address it through legal measures. Finally, it summarizes the political consequences of each crisis, in terms of what norms have been modified or what proposal has been advanced in order to improve – in this vein, the Avian Influenza crisis has shown the way forward to be taken within this policy. Chapter Three is devoted to the legislative activity carried out by the EU as a result of the different crises already mentioned. Framework Regulation 178/2002 stands as the main legal instrument making for the new European Food Safety Law. It establishes criteria to be followed by future legislative acts and advances the key general principles that will govern this field. Then, in the second main part of this chapter, the book focuses on principles such as risk analysis, transparency, traceability and, above all, the precautionary principle. The author embarks in a large analysis of the latter, going from its origins in the environmental field, through the first policy elaborations and its current formulation in Regulation 178/2002, until its blessing by the case law of the ECJ as an autonomous principle of EC law. Finally, Chapter Four of the book focuses on the institutional element of Food Safety Policy, i.e. the above-mentioned EFSA. As another example of the “European Agencies” phenomenon, this chapter makes a full evaluation of the EFSA. As was said above, its creation can be considered as the main institutional answer to the different crisis. The analysis covers the structure of the EFSA (there are four main organs, the Management Board, the Executive Director, Advisory Forum, and the Scientific Committee and Scientific Panels), its different functions, and the necessary coordination with the national bodies charged with food safety competences. This chapter also examines the three food safety procedures established in the Framework Regulation, namely, the rapid alert system, emergency situations, and crisis management. The book ends with a brief chapter of conclusions summarizing the analysis. This is a very interesting book. Apart from the effort undertaken by the author in order to write it in Spanish, being a native of Romania, this is a timely book. Food Safety Policy, disregarding whether it is yet a formal EU Policy or not, has recently been and will be at centre stage in the near future and, as the book demonstrates, the preventive approach has to prevail above a reactive one if the EU wishes not to fail again. Oanta’s book can not but help identifying the issues that need yet to be solved and addressing the legal problems that will emerge in this very complex area of Community Law. Antonio Segura Serrano Granada Bastiaan van Zelst, The Politics of European Sales Law. Alphen aan den Rijn: Wolters Kluwer, 2008. 266 pages. ISBN: 978-90-411-2752-5. EUR 90. In the field of Europeanization of Private Law, books on the topic of politics involved in the framing of the European Private Law are recently quite numerous (e.g. also M. Hesselink, The Politics of a European Civil Code, 2006). This book by van Zelst joins the line of respective titles. The author focuses on the politics framing the development of European contract law in general, and on the question whether contract law – and sales law in particular – can be drafted in an apolitical, value-free manner. To answer this question, the author analyses the drafting of rules on sales law in different legal systems. Thus, the book tries to asses the outcomes of four legislative processes in the area of sales law, i.e. the Uniform Commercial Code (UCC), the Vienna Sale Convention (CISG), the Dutch Civil Code and the Directive on Consumer Sales.
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Moreover, the book contains some hints on how the most important issues of the sales Directive are dealt with in the Draft Common Frame of Reference (von Bar, Clive and SchulteNölke, Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Interim Outline Edition, 2008). Nevertheless, taking into consideration the title of the book and the main aim of the author, which is to offer new perspectives on the political stakes involved in the Europeanization of sales law, there is a need for explanation with regard to the coverage of the book. After a brief historical overview regarding the development of European Contract Law, the vast majority of the analysis covers the legislative process of American, international or national rules on sales law, i.e. rules that do not qualify as “European” sales law. Certainly, the book discerns some relationship between the respective legal systems and the Europeanization of sales law, as well as additional general reasons for the choice of those specific legal systems. Furthermore, an examination of the drafting process of these systems of sales law can offer valuable general insights in the political stakes at hand in a drafting process and the interests involved in this process. For instance, the author names scholars, interest groups and constituency as the main actors in a drafting process. Such an analysis can also disclose the impact of political compromises on the adequacy of supposedly merely technical rules of sales law. Those general insights can definitely offer important perspectives with regard to the politics involved in the drafting process of a European Sales Law, too. Nevertheless, a thorough analysis of the political stakes at hand in the European legislative process requires the incorporation of the particularities of the European process. The EC is not a federal State, rather is there a unique relationship between the Member States and the EC. Due to this, the Member States have far-reaching influences on the European legislative process. Additionally, there are special kinds of EC legislation, such as directives, with different effects on Member State law (cf. minimum harmonization; maximum harmonization) and unique kinds of law-making processes, such as the so-called Lamfalussy process. Thus, the relationship between the EC and the Member States is crucial and decisive in the drafting process of European (sales) law. This special relationship is the reason for the complexity of balancing the different political interests in the drafting process and defines the scope of relevant political stakes at hand. Moreover, the possibility for a stakeholder to prevail with his political position is closely linked to this relationship. Therefore, the findings of a thorough analysis of the European drafting process qualify as a filter for the relevance of the political stakes discerned by the book’s analysis of other legislative processes, such as the ones mentioned above. Furthermore, there is already a widespread awareness in legal science of the fact that the legislator does not frame the law in a neutral sphere without any influences by interest groups. On the contrary, it is known that the legislator is subject to manifold influences, especially by powerful private interest groups. There is a sizeable impact of trade associations and interest groups on the government and the (European and national) parliament. Moreover, the selfinterest of the stakeholders in the legislative process has already attracted the interest of legal science, i.e. the self-interests of politicians as possible “vote maximizer” and the interests of the executive staffs, which influence the decision-making process, too. Both aspects taken together, the characteristics of the European legislative process and the awareness for the political stakes at hand, are the basis for the stipulation of a more transparent European legislative process, i.e. to find instruments to discover those impacts and to discern the impact of those interest groups. This is especially necessary at the European level because there is a sizeable risk of political compromises in the European legislative process, which may result in suboptimal rules which do not comply with the structure of the private law area affected. The main analytical methodological tool the book resorts to is largely based on the individualism/altruism-continuum of Kennedy (cf. D. Kennedy 89 Harv. L. Rev. (1976) 1685; id., 10 ERPL (2002), 7). This entails the idea that alternative solutions to a legal question can be placed on a continuum from individualism to altruism. According to this approach,
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individualism makes a sharp distinction between one’s own interests and those of others, and is combined with the respect for rules that allow self-interested persons to coexist. On the other hand, altruism is strongly related to the notions of mutual dependence and solidarity and thus starts with the presupposition that the well-being of others should have as much importance for us as that of ourselves. According to this approach, every solution to a legal question represents a preference for one side of the continuum if compared to another possible solution to the legal question concerned. Nevertheless, altruism in Kennedy’s continuum is not linked to a communitarian view of private law, the protection of the weaker party or distributive justice. The book claims a strong resemblance between the altruism/individualism-debate in American private law on the one hand and the discussion in European contract law, whether governed by the notion of party autonomy and freedom of contract rather than an approach more closely related to the ideal of solidarity on the other hand. Kennedy already noted that the European reference to concepts like solidarity relies much more on distributive justice, which is based on ethical arguments, than the American debate (cf. Kennedy, in Hesselink, The Politics of a European Civil Code, at p. 20 et seq.). Accordingly, the book identifies a close congruence between Kennedy’s continuum and the “principle of regard and fairness” (cf. Lurger, in Hartkamp et al., Towards a European Civil Code, 2004, p. 285), the latter resulting in a flexible interdependent system with two elements, a personal and a situational one. Serious doubts are raised by the use of this continuum as a methodological tool in the drafting of specific rules. The book makes use of the continuum, which may be a useful description of a private law legal system from an external view point, but is not apt to function as a methodological tool. This is even true with respect to the additional buyer/seller-continuum assessing the rule to favour one of the two parties in sales law, which supplements the analysis. The explanatory power of the continuum as used by the author is limited. It depends on the comparison of two solutions, i.e. on their relative position, examining which of the two is – compared to the other possible solution – more individualistic or altruistic. Even though the book shows that different rules may be drafted for questions of sales law, which qualifies as a technical matter, the continuum used as a methodological tool merely describes the relative position of rule proposals and of the outcome of the drafting process. The tool does not discern the reasons for the precise position of a rule or rule proposal on the continuum. Those reasons for a particular position which may prevail in the drafting process are, amongst others, the interests of the parties at hand, the structure of the regulated area, the fundamental principles of the legal system, specific political aims of the legislature or the impact of stakeholders in the process. In other words, the tool does not state a reason for the specific position of a rule in the continuum. The continuum used this way may show that there are different solutions to a question of sales law and that political interests of stakeholders in the legislative process contribute to the positioning of the final draft of a rule. The important question of how those interests transform during the drafting process is not addressed by the continuum as a methodological tool. The book shows that interest groups have an impact on regulatory and protective clauses and that the drafting of sales law is not merely technical or apolitical. Moreover, with regard to several sets of rules (remedial provisions, distribution of liability for non-performance) the analysis concludes that there is no consistent pattern in the different legal systems, i.e. there is no obvious development towards individualism or altruism. With regard to some areas of sales law (scope of the instruments, derogation) the author is of the opinion that in all systems analysed the rule alternatives have moved continuously towards individualism. If there is no consistent movement of a set of rules in terms of altruism and individualism like in the CISG, the Dutch Civil Code or the Sales Directive, no stakeholder dominated the drafting process. Finally, there is no symmetry with respect to the two continuums, i.e. according to the author if the rules move towards the end of individualism on the one continuum this is not necessarily accompanied by a movement of the rules towards a position in favour of the seller, which is especially true for remedial provisions.
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One can clearly agree with the book’s conclusion that drafting of (European sales) law implies policy choices and relates to a certain political approach, and that a Civil Code may not be drafted in an apolitical way. Nevertheless, it would be valuable to incorporate the normative starting point in EC law, freedom of contract. Freedom of contract has to be the lodestar of harmonization in European private law (cf. R. Zimmermann, in 20 EuZW (2007), 455, 462) due to the fundamental right of party autonomy in primary EC legislation and due to the fundamental concept of the internal market, which requires freedom of choice within the EC. Since the individualism/altruism continuum intends – according to van Zelst – to challenge the idea that contract law is essentially founded on the concept of party autonomy, and claims that party autonomy has to be related to the counter-concept of solidarity (altruism), the conclusion of the book should have taken the outstanding meaning of party autonomy as a fundamental right in European private law into account. Following from this, the position of a rule proposal on the continuum is not a merely arbitrary result of the impact of stakeholders in the drafting process, but the outcome of the balancing of possible justifications for the deviations of a rule from the principle of freedom of contract. Thus, the use of the continuum as methodological tool needs to include the normative surroundings of secondary EC legislation, especially fundamental rights in primary EC Law. Even though the particularities of the European legislative process need further consideration and the prominent position of party autonomy in (European) private law has to be taken into account, the book nevertheless discerns that different options to solve a legal problem or question may relate to a political point of view. Moreover, the book highlights the fact that the legislative process is not free from political concepts and political opinions, which is true even with regard to supposedly technical norms like sales law. Without any doubt, in the process of harmonization of European private law, the decision has to be taken whether a more liberal approach or more social approach is followed. The book raises the awareness of the political impact on European private law legislation and draws the attention to the stakeholders in the legislative process, the political issues at hand and the possible effects of the drafting process on the final content of the rules. In this way, it is a valuable contribution to the discussion about the harmonization of European private law. Carsten Herresthal Munich Bent Iversen, Pernille Wegener Jessen, Bent Ole Gram Mortensen, Michael Steinicke and Karsten Engsig Sørensen, Regulation competition in the EU. 5th edition. Copenhagen: DJØF Publishing, 2007. 466 pages. ISBN: 978-87-574-1707-4. EUR 101. Interest in the study of competition law has been growing steadily over the past ten years, among students as well as practitioners. The increasing popularity of the subject was accompanied by a number of important reforms in the area, ranging from the enactment of the Modernization Regulation in 2003 (Council Regulation 1/2003 of 16 December 2002) and of new Fining Guidelines (2006) in the field of antitrust, to the approval of a new Merger Regulation in 2004 (Council Regulation 139/2004) and, most recently, the adoption of a new action plan in the area of State Aid in 2005 (State Aid Action Plan 2005-2009, Consultation Document SEC(2005)795). In the light of this, Regulating Competition in Europe constitutes a welcome addition to the literature in the area, as it seeks to provide a comprehensive, up-to-date and critical overview of “traditional” areas of Competition law, i.e. classic antitrust and merger control together with an examination of the rules governing the role of public bodies in the European economy. In fact, the work examines the areas of State Aid, public procurement and also deals also with the process of liberalization of a number of industrial sectors. The book comprises twelve chapters. Chapters I to VI examine the general role of competition law as a tool to regulate the market forces in the modern European economy and in that
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context illustrate the historical development and the current trends characterizing the interpretation of Articles 81 and 82 EC in relation to private undertakings. Chapter VII addresses the procedural implications of the Commission’s powers under Council Regulation 1/2003. Chapter VIII examines the principal aspects of the Merger Control regime established by Council Regulation 139/2004. Chapters IX, X and XII focus on the action of public entities in the market by dealing, respectively, with State Aids, services of general economic interest and state monopolies and public procurement. Chapter XI analyses in detail the issues arising from the liberalization of previously monopolized sectors of the economy, such as telecommunications, energy and transport. Chapter I sets the scene of the whole work by discussing the general characteristics and objectives of the EC competition rules. The clear link drawn with the rules governing the free movement of goods is especially illuminating for the reader, who is led to appreciate the centrality of Articles 81 and 82 in the Founding Treaty. Thereafter, Chapter II provides a comprehensive introduction to Article 81 EC, by dealing with general concepts such as that of “agreement”, restrictions on competition “by object” and “by effect” and the interpretation of Article 81(3) in the general context of that provision. It therefore constitutes both an effective presentation of the European cartel prohibition and a useful background to Chapters III and IV, concerned with the application of Article 81 to, respectively, vertical and horizontal restraints on competition. Of particular interest is, in Chapter III, the analysis of the Block Exemption Regulation (Commission Regulation 2790/99), applicable to agreements between non-competitors in the light of the economic theories concerning the matter of distribution. Although it was somehow surprising not to find an account of the ECJ case law concerning “beer ties” and other exclusive supply arrangements, the chapter succeeded in providing an exhaustive and stimulating account of an important area of European antitrust law. Chapter IV contains a detailed and critical analysis from an economic and a legal perspective of the manner in which Article 81 has been applied to horizontal agreements. The integrated examination of the Commission 2001 Guidelines on Horizontal Restraints together with the relevant judgments of the ECJ and the CFI and the emphasis on particular types of restraints, including specialization agreements are particularly valuable. Chapter V instead deals with the subject matter of technology transfer by examining in detail the 2004 Block Exemption Regulation (Commission Regulation 772/2004 on the application of Article 81(3) to categories of technology transfers) as well as illustrating the more general topic of the interplay between the enforcement of Intellectual Property rights and both the general principles governing the free movement of goods and the rules contained in Article 81. It therefore results in a thorough discussion of several relevant legal and economic issues, which are undoubtedly at the forefront of the current debate. Chapter VI provides a concise account of the rules enshrined in Article 82 EC: after examining its basic elements, the author concentrates on the notion of “abuse” as objective concept and illustrates in considerable detail a good number of authorities. Although, due to its limited purvey (especially in terms of time), the chapter does not deal with recent developments, it nonetheless provides a critical account of a debated and still developing topic. Chapter VII concludes the examination of the European antitrust rules by examining the main aspects of the “centralized” framework for the enforcement of Articles 81 and 82 EC and especially concentrating on the investigative and decision-making powers of the European Commission Chapter VIII constitutes one of the most accomplished sections of the book. It provides a thorough and rigorous examination of the rules governing the control of mergers and acquisition having a “Community dimension” in the EU and concentrates on the principal aspects of the current 2004 Merger Regulation as well as the relevant concepts and rules laid down by the Amended 1989 Regulation. Of particular interest is the rather critical and courageous analysis of the implications of the transition from the old “dominance based” test to the new standard of “significant impediment to effective competition”.
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Another interesting and stimulating part of the work is Chapter IX, which illustrates the rules governing the system for the control of State aids and succeeds especially in putting them in the more general context of the principles and policies underlying the interpretation of the Founding Treaties. Although the author could have perhaps expanded its analysis of the possible impact of State aids on competition in individual cases, the Chapter is interesting, wellargued and rather insightful. Chapter X considers in detail the rules governing the action of public undertakings: it explores a number of key issues relating to the interpretation of Article 86 EC, ranging from the concept of “special rights” to the interplay between their exercise and the application of the rules governing the free movement of goods. It is ideally complemented by Chapter XII, which addresses the main issues and rules governing yet another area of growing importance, namely that of public procurement. Despite being somewhat unusual, its inclusion in a work on Competition law constitutes a welcome addition because it highlights the interplay between the intervention of public authorities in the economy ad the application of general EU law principles, such as that of genuine, undistorted competition, free movement of goods and nondiscrimination on grounds of nationality. Finally, Chapter XI constitutes perhaps the most interesting and original section of the book: this Chapter contains a thorough and critical account of the process leading to the liberalization of a number of key sectors in the European economy and addresses both the legislative rules and the administrative practice and policy statements of the European Commission in the area. Although an analysis of the case law concerning the application of Article 82 to these markets (e.g. Case T-271/03, Deutsche Telekom v. Commission) could have constituted a useful complement to the discussion, the author succeeds in providing an agile and critical examination of the existing legislation and of the relevant implementing measures. Regulating Competition in Europe covers a number of relevant topics in the area of competition law and analyses critically several issues arising from the interpretation and application not only of the general rules on competition but also of more specific rules devised for the dynamics of specific areas of the economy. Its strengths therefore lie in the wide coverage, in the choice of topics that are often “off the beaten track” for other works, and in the parallel examination of judicial decisions, of primary legislation and of secondary, implementing measures. Among its qualities is the possibility to reach each Chapter both as part of the wider work and on an individual basis; as a result, the book is very flexible and easy to navigate. Overall, this book provides a sharp and exhaustive examination of important questions and therefore contributes constructively to the current debate. In view of its breadth and style, it is likely to be of great interest to students and to academics as well as to practitioners, which will find it a helpful and updated source of information and critical advice. Due to its currency, this book is therefore expected to help shaping the directions of the ongoing discussion in the field of competition law and to highlight areas for further academic and policy debate. Arianna Andreangeli Liverpool Stefan Grundmann, European Company Law: Organization, Finance and Capital Markets. Antwerp: Intersentia, 2007. 807 pages. ISBN: 978-90-5095-641-3. EUR 175. The aim of this book is to provide an analysis of the European Union’s evolving legal framework in the area of company law. Company law has been at the centre of interest in EC law since the early stages of market integration. The internal market required among other things the harmonization of the rules relating to company law, as well as to accounting and auditing. The European Commission stresses that its harmonization programme aims at reducing red tape by assisting corporations in operating throughout the EU on the basis of a single set of rules and a unified management and reporting system, which endeavour to increase
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transparency and confidence in corporate governance and to enhance the protection of investors, employees and the public. The important role of case law in this process of market integration should also not been neglected. It is a real strength of this book that it analyses “the whole set of rules pertaining to companies and their operation” and that it does not adopt a restricted view. Apart from company law, the analysis is expanded into capital market law, insolvency law, and corporate taxation. These areas are closely connected to each other and their combined examination results in some more concrete conclusions. This approach will also assist the readers in understanding better the business environment where companies are set up and operate. The book is in seven parts. Part 1 provides an overview and deals with a few methodological issues. This introduction is quite helpful for the newcomer in the area of European Company Law. Moreover, this introductory overview helps the reader navigate through the rest of the book. Part 2 analyses the first, second and twelfth company law directives, which regulate validity and representation of companies, disclosure at the time of formation, limited liability and capital of public limited companies. It also discusses the proposed fifth company law directive (which is now considered to be abandoned) dealing with company’s structure and with members’ participation rights. There is also quite interesting comparative research on these latter matters opening up and stimulating the academic debate. Furthermore, the authors focus on accounting and auditing (fourth, seventh and eighth company law directives). In the areas of accounting and auditing, the European legislature tries to promote a competitive audit market, to provide standards against financial malpractice, to ensure transparency of the financial information provided by companies and to strengthen the compatibility between the accounting directives and International Financial Reporting Standards (IFRS). Part 3 is devoted to securities regulation and is divided into two pivotal chapters. One of these chapters analyses regulatory instruments of primary capital markets such as the general prospectus directive, the stock exchange law directive and the transparency directive. The other chapter approaches the law on secondary markets and focuses on the very famous Directive on markets in financial instruments (“MiFID”) and the market abuse Directive. This part shows clearly the close relationship between company law and capital market law, which constitutes a very popular theme in the literature. The next part of the book is dedicated to corporate restructuring on EU level, which entails an effective exercise of the freedom of establishment of companies. The authors discuss the branches directive (eleventh company law directive) and the proposed directive on the crossborder transfer of registered office (fourteenth company law directive). Nevertheless, the European Commission has conducted an impact assessment on a possible Directive on the cross-border transfer of registered office and decided not to proceed to harmonization. This development should also be viewed in the context of Case C-210/06, Cartesio, examining the cross-border transfer of companies’ seat. In a future update, the authors should definitely consider those developments. Moreover, the domestic mergers Directive (third company law directive) and the Directive on divisions (sixth company law directive) are examined. Furthermore, the cross-border mergers Directive (tenth company law directive) is also scrutinized. This part invites the reader to examine the takeover Directive, which is another very important instrument for corporate restructuring. The book discharges a useful function in throwing considerable light onto that part of the new regulatory regime which deals with the conduct of bids designed to lead to a takeover or a merger. Additionally, the law on groups of companies is discussed. This area of EU company law remains still non-harmonized as the proposed ninth company law directive on groups of companies has not yet been adopted. At the end of this part, some tax law measures relevant to corporate restructuring are also highlighted (the merger tax Directive, the parent-subsidiary taxation Directive, etc). The structure followed in this part contributes to a comprehensive analysis of the various aspects of EU corporate restructuring regime. Part 5 focuses on supranational types of company. First, the European Company (the “Societas Europeae” (SE)) is examined. Secondly, the authors proceed to examine the European
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Economic Interest Grouping (EEIG). This part also refers to the plans for a European Private Company. In a future update, the authors ought to discuss the European Commission’s proposal for a European Private Company (“Societas Privata Europaea” (SPE)). The following part is dedicated to winding-up and insolvency of companies. The last part (Part 7) contains a useful summary and some interesting conclusions. The authors do not hesitate to approach critically both harmonized and non-harmonized areas of EU company law. It is obvious that the coverage of issues is broad. A short review like this could not do it justice, let alone critically develop the matters raised. These topics are scrutinized in the light of EU law, of law and economics, and of comparative law. Thus, EU lawyers, comparative lawyers and corporate lawyers will find this book quite intriguing. The book is rich in bibliography, especially in German. The book also includes a chronological table of ECJ cases and a general bibliography (general bibliography on EU company law and selected company law contributions in important Member States), which makes it a good starting point for further research. Company law, capital market law, insolvency law and corporate taxation are evolving areas of EU law and this book should be updated regularly, in order to keep up with the new developments such as the judgments in Case C-112/05, Commission v. Germany (Volkswagen) and Case C-210/06, Cartesio, and the European Commission’s decision not to take any further regulatory steps with respect to proportionality between capital and control in listed companies (“one share, one vote”). Both the general reader in matters of Community law, and those interested more specifically in company law and corporate finance will benefit from this book. It makes valuable reading for academics, practitioners and regulators/policy makers, and is very stimulating and welcome. Thomas Papadopoulos Oxford
Book notices Malcolm D. Evans, Blackstone’s international Law Documents 8th Edition. Oxford: OUP, 2007. 584 pages. ISBN: 978-0-19-921184-5. EUR 65. Jean-Yves Carlier, The Status of persons in the European Union: Casebook. Brussels: Bruylant, 2008, 812 pages. ISBN: 978-2-8027-2636-4. EUR 50. This book presents the major ECJ cases relating to the status of persons, in English and French, going back to Van Gend & Loos, and up to Metock; it also includes some decisions of the ECtHR. Gilles Charbonnier and Orla Sheehy, Panorama of Judicial Systems in the European Union. Brussels: Bruylant, 2008. 518 pages. ISBN: 978-2-8027-2585-5. EUR 60. The book includes a short chapter (varying from 6 to 20 pages) on the judicial system of each of the 27 Member States, in the framework of the European Judicial Training Network. Each chapter has a page-long overview of the political and legal system of the country, and then a section on the judicial system. Thereafter, a section on the judiciary covers their status and career. M. Bulterman, L. Hancher, A. McDonnell, H. Sevenster, Views of European Law from the Mountai: Liber Amicorum Piet Jan Slot. Alphen aan de Rijn: Kluwer Law International, 2009. ISBN 978-90-411-2862. EUR 130. The separate chapters will be listed in the CML Rev. Survey of Literature, August 2009.
