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URL: http://www.bailii.org/uk/other/journals/WebJCLI/1995/issue5/bernard5.html
Cite as: Josephine Steiner, <I>Enforcing EC Law

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Josephine Steiner, Enforcing EC Law

Blackstone Press, London, 1995
ISBN 1-85431-320-7 stlg.18.95

Reviewed by Nicolas Bernard

Lecturer in Law, University of Essex
< [email protected]>

Copyright © 1995 Nicholas Bernard.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Web JCLI | [1995] 5 Web JCLI | Download this file.
Bibliography

A few years ago, a monograph on enforcement of Community law would have seemed a surprising addition to a publisher's catalogue primarily oriented towards the undergraduate student market. It is a sign of the increasing visibility and practical importance of the subject that Steiner's Enforcing Community Law is, alongside Brealey & Hoskins' Remedies in EC Law (Brealey & Hoskins 1994) and Rose M DéSa's European Community Law and Civil Remedies in England and Wales (D'Sa 1994), one of a number of books which have recently been published on this topic. We all know since Van Gend en Loos (26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, [1963] CMLR 105) that one of the central tenet of Community constitutional law is the doctrine of direct effect, according to which Community law creates rights in favour of individuals, which the national courts are under a duty to protect. The interest in the mechanisms for enforcement of those rights is more recent. As noted by W Van Gerven, the accession of common law countries to the EC may have contributed to a shift from a civil law approach in terms of 'rights' ('droits subjectifs') to a common law emphasis on 'remedies' (Van Gerven 1994, Vol. II, p 341): whereas Civil lawyers tend to place the emphasis on the normative character of law and treat enforcement as a secondary issue, Common lawyers are much more likely to approach the matter from the commercial and judicial reality of remedies (see Nicholas 1992).

It is undoubtedly with Factortame (C-213/89 R v Secretary of State for Transport, ex parte Factortame (No 2) [1990] ECR 1-2433, [1990] 3 CMLR 1) and Francovich (C-6 & 9/90 Francovich and others v Italian Republic [1991] ECR I-5357, [1993] 2 CMLR 66) that the topic gained the attention it now commands. As Steiner's book shows, however, there is a much richer and older caselaw on remedies in the national courts for breaches of Community law, developed by the European Court of Justice from the mid-seventies onwards and organised primarily around two principles:

(i) the principle of national treatment and non-discrimination, according to which remedies available under national law in purely domestic situations which have no Community law element should be made available on the same terms for the enforcement of comparable Community law rights, and

(ii) the principle of effectiveness, according to which national law must provide for each Community law right an effective remedy which does not make it impossible in practice for an individual to exercise that right.

Steiner does not attempt to retrace the evolution of the case-law of the Court on those issues, but instead she gives an account of what the law is, and sketches some of the directions it might take in the foreseeable future. The perspective adopted in the book is centred on individuals. As a result, despite its title, the primary focus of the book is not so much enforcement of Community law per se as the enforcement of Community law rights. A consequence of this position is that Article 169 is relegated to a chapter on informal (!) routes to enforcement. This practical approach from the point of view of the 'end-user' of the legal system is defensible. Besides, involving individuals has been at the centre of the Court's strategy to ensure observance of Community law. One cannot help thinking, however, that this perspective might give at times a somewhat incomplete picture of the law: the different standards applied by the Court in relation to the non-contractual liability of the Community on the one hand and that of Member States under Francovich on the other, the differentiated treatment of questions of validity and of interpretations under Article 177, the different formulae used for interim relief in Zuckerfabrik (C-143/88 & C-92/89 Zuckerfabrik S'fderdithMarschen AG v HZA Itzehoe [1991] ECR I-415, [1993] 3 CMLR 1) and Factortame or the limited standing of individuals under Article 173 all seem to suggest a concern by the Court to avoid excessive interference in the activity of Community institutions in stark contrast to the vigilance displayed over the observance of Community law by Member States. Arguably, the current trend in the caselaw of the Court is towards giving priority to the protection of individual rights rather than maximising the effectiveness of Community law. It would be incautious, however, to ignore the latter altogether.

Overall Structure of the Book

The book is divided into four parts of unequal length. Part One consists of two introductory chapters which provide a brief description of the EC institutions and the sources and scope of Community law (chapter 1), as well as an overview of the fundamental constitutional principles relating to the relationship between Community and national law (chapter 2). Part Four consists of a single chapter and is entitled informal routes to enforcement. It covers such diverse issues as complaints to the Commission or a Member State with a view to enforcement proceedings against a Member State under Article 169 or 170, enforcement of competition law by the Commission, the right to petition the European Parliament and the Parliamentary ombudsman as well as interventions in cases before the Court of Justice. Strictly speaking, these are not 'informal' means of enforcement, but rather means of enforcement in which individuals rely on an institution to follow their complaint through. The chapter is not a practical guide to lobbying or convincing an institution to take action, but rather a series of pointers for alternative avenues of enforcement. The analysis is brief, although the Commission's notice on co-operation between National Courts and the Commission in applying Articles 85 and 86 EC (EC Commission 1993) is studied in some detail.

The core of the book is Parts Two (chapters 3 to 7) and Three (chapters 8 to 10), which are concerned respectively with enforcement at national level on the one hand and judicial review and non-contractual liability of the Community on the other. Here, the chapters on the role of Article 177 in the interpretation of EC Law (chapter 4), judicial review of Community acts before the Court of Justice (chapter 9) and the liability of the Community in damages (chapter 10) are competently written but will add little to what can be found in a standard textbook on Community law. The treatment of preliminary rulings on validity is more original: in most EC Law texts this topic is lumped together with preliminary rulings on the interpretation of Community law. Steiner has chosen to devote a separate chapter to preliminary rulings on validity (chapter 8), just before her discussion of direct actions before the Court of Justice in judicial review of Community acts. In many respects, her approach is preferable. Not only do preliminary rulings in interpretation and preliminary rulings on validity raise different questions but, since the decision in Foto-Frost (case 314/85 Foto-Frost v HZA L'beck-Ost [1987] ECR 4199, [1988] 3 CMLR 57) not to allow national courts to declare a Community Act invalid, it is clear that, despite the wording of Article 177, the Court of Justice wishes to keep a tighter control on questions of validity. This tighter rein is, indeed, further evidenced by the stricter standard applied by the Court in suspension of Community legislation by way of interim relief (Zuckerfabrik case) as opposed to interim suspension of national legislation (Factortame case). More importantly, the approach adopted by the author has the advantage of stressing the relationship between Articles 173 and 177 as regards challenges to validity. In particular, the rather limited standing of individuals under Article 173 has to be seen in the context of the availability of an alternative action in the national courts and the use of Article 177 to refer a question of validity. Indeed, the link between Article 173 and Article 177 was clearly shown, albeit in a manner detrimental to individuals, in the recent TWD case (C-188/92 TWD Textiel Deggendorf GmbH v Bundesrepublik Deutschland [1994] ECR I-833).

Impact on domestic remedies

Perhaps the most interesting aspect of Steiner's book is the study of the impact of EC Law on judicial review and private law remedies in the UK. Chapter 5 introduces the topic by presenting the general principles regarding the enforcement of Community law rights in the national courts. These principles have been abundantly discussed in legal periodicals and the chapter does not seek to add to the existing iterature, including the author's own excellent articles (Steiner 1987 and 1989). Instead, it provides a concise statement of the legal framework in an easily accessible form for students and practitioners. It is in the application of those principles to the domestic law of remedies, which is addressed in chapters 6 and 7, that lies much of the more original material. Although the author states in the preface that her analysis of the impact of Community law on the domestic laws relating to remedies will by no means be confined to the UK, she barely ventures outside English law except for stating, without elaborating, that the legal systems of other Member States face similar problems or have comparable rules to those encountered in Britain. The only non-UK domestic case cited in the whole book is the decision of the French Conseil d'Etat in Cohn-Bendit (Minist're de l'Int'erieur v Cohn-Bendit, (1978) Rec 524, [1980] 1 CMLR 543). Although her focus is, therefore, on English law, her approach is, however, resolutely that of an EC lawyer. Her concern is to establish the extent to which the remedies provided under English law are suitable for the protection of Community law rights. The chapter on judicial review covers themes which are familiar to public lawyers. Many of the issues she raises reflect the concerns expressed by the 1994 Law Commission's report on Judicial Review and Statutory Appeals (Law Com No 226 - HC 669 (1994-95) ), not least the difficulties created by the so-called principle of procedural exclusivity in O'Reilly v Mackman ([1983] 2 AC 237). She points out that not only the unavailability of judicial review against certain bodies, as in the Jockey Club case (R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853), or certain decisions, under a statutory immunity for instance, may well be unacceptable when Community law rights are at stake, but also that, even where a decision is in principle amenable to judicial review, restrictions on standing, cross-examination and discovery or remedies available may hamper in certain circumstances the effective protection of Community law rights. The author does not fall into the trap of treating any procedural obstacle that an applicant may face in judicial review proceedings as prima facie incompatible with Community law. She recognises that many procedural hurdles may be perfectly acceptable from an EC law point of view. A factor she notes, but perhaps does not emphasise enough, is the double-edged nature of judicial discretion which pervades English judicial review: while it facilitates the adaptation of judicial review to Community law demands, it may also be used injudiciously to deny protection if the judge does not perceive the relevance of Community law. The empirical study carried out by the Public Law Project on access to judicial review (Sunkin, Bridges and Mészáros 1993), which found considerable variations between individual judges in granting leave to move for judicial review, are, in this respect, not reassuring. One should bear in mind, in this respect, that a British judge may feel less at ease and less receptive with a body of law which has developed under principles which do not belong to his legal tradition and may not always fully appreciate the validity and strength of a Community law argument. Another minor criticism that could be levelled at the book in general, and this chapter in particular, is that requirements of openness and transparency are not given the prominence that they deserve. It is true that, although substantive aspects are not ignored as is shown by the inclusion of a section on the relevance of general principles of law, the book is primarily concerned with judicial procedure, whereas openness and transparency concern the administrative decision-making process rather than the judicial process and remedies. Nevertheless, they are essential to enable individuals to conduct useful judicial challenges. Indeed, the Court of Justice used that argument in Heylens (222/86 UNECTEF v Heylens [1987] ECR 4097) to impose a duty on administrative bodies to state reasons on which their decisions are based when they prejudice the exercise of a Community law right.

Chapter 7 provides a thorough review of private law remedies, considering not only the availability of specific types of remedies but also various limitations and procedural hurdles that can stand in the way of an individual seeking to vindicate his/her Community law rights. The exclusivity rule in O'Reilly v Mackman is revisited from, as it were, the other (private) side of the fence. Here again, she considers not only the availability of specific remedies, such as damages, restitution or injunctions, but also the effectiveness of those remedies when they are in principle available. She highlights, for instance, how the difficulties of establishing a claim in damages for loss of a chance might createsignificant difficulties in some areas of EC Law such as public procurement. As regards damages against public authorities, the author maintains the restrictive approach that she had adopted in her previous writings (see Steiner 1993 and Steiner 1994, p 42). She is right to point out that a strict liability test for all breaches of Community law by a State, however 'innocent', would lead to serious difficulties. However, adopting, as she suggests, as restrictive an approach as the Court of Appeal in Bourgoin (Bourgoin SA v Ministry for Agriculture, Fisheries and Food [1986] QB 716) would be tantamount to denying individuals in the great majority of cases compensation for the deprivation by the State of their Community law rights, whereas the principle of State liability in damages has been recognised by the Court of Justice in Francovich as 'inherent in the scheme of the Treaty'. It is worth noting that Advocate-General L'eger, in his recent Opinion in case C-5/94 Hedley Lomas (C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd, Opinion delivered June 20, 1995; decision of the Court still pending) explicitly rejected a test of liability based on misfeasance in public office. The middle course he suggested in his Opinion, linking the degree of fault required to the degree of discretion enjoyed by the State, may be more acceptable, although the open- endedness of the test may be in itself a source of further difficulties. As in the preceding chapter on judicial review, the author concludes her study by noting that EC law has not required radical overhaul of the English system of remedies and has provided the catalyst for a much needed review of some deficiencies of the English system of remedies in general, as in Woolwich Building Society v IRC (No 2) ([1992] 3 WLR 66) regarding claims in restitution. She is undoubtedly right. Specialisation in one area tends to generate a microcosmic point of view, in which changes tend to be magnified. Her global perspective shows that the evolution of the English system of remedies is more in the nature of an aggiornamento than a revolution.

Overall approach

As with her textbook on EC Law, the style adopted by Steiner in Enforcing Community law is clear and reads very well. Academics may at times feel frustrated by the limited discussion of the finer points or of the conceptual framework underpinning some of the decisions of national and Community courts. The no-footnotes and no-endnotes policy also limits the possibility of references to further analysis, for which the bibliography provided at the end of the book can hardly be a substitute. The book is therefore, like many Blackstone Press publications, directed primarily at students, and possibly practitioners, wishing to gain an overall picture of this area of the law. At times, however, the concern to keep the text clear, concise and reasonably simple can lead to some misleading statements. Thus, suggesting that it is not clear whether the recipient of State aid has standing to challenge a Commission decision requiring the State to recover the aid appears somewhat questionable. Similarly, maintaining, as J .Steiner does at pp 49 and 72 of her book, that the conditions for disapplication of national law by way of interim relief should mirror conditions set by the Court in Zuckerfabrik for interim relief from the application of Community legislation is a perfectly defensible point of view but it would require further discussion than is provided in the book: Steiner defends her point of view by referring to a passage in Zuckerfabrik, at para 20, suggesting that the same interim protection should be awarded, irrespective of whether compatibility of national legal provisions with Community law or the validity of secondary Community law is at issue. Yet, one could cite other passages, such as paragraph 26, suggesting that interim disapplication of Community legislation is particularly problematic, in that one has to balance the need for uniform application of presumptively valid Community law with the right to interim protection, a consideration which is much less at issue in interim disapplication of national law. These, however, are minor points in an overall convincing interpretation of the law, and probably the price to pay to avoid confusing the reader with a luxury of non-essential details. Practitioners may find the book at times rather open-ended, particularly on the issue of damages, but this is unavoidable in an area of the law under constant and rapid change. Enforcing Community Law will be welcomed by those wishing to understand how to use Community law effectively.

Bibliography

Brealey, M & Hoskins, M (1994) Remedies in EC Law: Law and Practice in the English and EC Courts (London: Longman)

D'Sa, R (1994) European Community Law and Civil Remedies in England and Wales (London: Sweet & Maxwell)

EC Commission (1993) 'Notice on co-operation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty', OJ 1993 No C39/5

Nicholas, B (1992) The French Law of Contract, 2nd ed (Oxford: Clarendon Press)

Steiner, J (1987) 'How to make the Action Fit the Case: Domestic remedies for Breach of EEC Law', 12 European Law Review 102

Steiner, J (1989), 'From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law', 18 European Law Review 3

Sunkin, M, Bridges, L & Mészáros, G (1993) Judicial Review in Perspective (London: The Public Law Project)

Steiner, J (1994) Textbook on EC Law, 4th ed (London: Blackstone Press)

Van Gerven, W (1994) 'The Horizontal Effect of Directive Provisions Revisited: The Reality of Catchwords' in Curtin and Heukels (eds), Institutional Dynamics of European Integration, Essays in Honour of Henry G Schermers, Vol. II, p335 at 341

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