Vol. 16 No. 4 (April, 2006), pp.282-284


CO-ACTORSHIP IN THE DEVELOPMENT OF EUROPEAN LAW: THE QUALITY OF EUROPEAN LEGISLATION AND ITS IMPLEMENTATION AND APPLICATION IN THE NATIONAL LEGAL ORDER, by Ernst M.H. Hirsch Ballin and Linda A.J. Senden. T.M.C. Asser Press, distributed by Cambridge University Press, 2005.  184pp. Hardcover. $55.00/£33.00 (includes CD-ROM of survey instrument and data). ISBN: 90-6704-184-X.


Reviewed by Gordon Silverstein, Assistant Professor of Political Science, the University of California, Berkeley. Gsilver [at] berkeley.edu


The European Union and its Court of Justice tantalizes students of public law and international relations alike. From the Treaty of Rome through Maastricht, from the Court’s announcement of judicial review to its assertion of supremacy and the direct effect of European rules and directives, the Court has been the engine that not only has propelled the Union into an ‘ever-closer’ relationship, but kept it on track for that goal. But the natural progression from Rome to Maastricht to Amsterdam and Nice, jumped the tracks last year when first France and then the Netherlands rejected the treaty in popular referenda.


The European Union is, of course, still very much with us. And most of the questions addressed in this book – which is actually a formal, General Report of the Association of the Councils of State and the Supreme Administrative Jurisdictions of the European Union – are still very much worth considering. Perhaps, even more in light of the failure (or at least significant delay) in the ratification of the European Constitution.


The key dilemma is how to govern a system of sovereign states that is far more than an international organization and yet, a good deal less than a single unified state. The trick, as Herman Tjeenk Willink (Vice President of the Dutch Council of State) notes, is “how to maintain the delicate balance between unity and diversity,” when accomplishing anything in the Union actually requires independent and yet interdependent efforts by the organs of the Union as well as by national legislatures – and when the implementation and interpretation of these efforts is developed by Member State courts as well as the central, European Court of Justice (p.v).


As Ernst Ballin notes in his reflections, which constitute a rather intriguing first part of this book, Holy Roman Emperor Henry VII tried and failed to assert “general legislative powers as ‘ruler of the world’” in 1313. But enforcement was the problem then, as it remains today. A Prince’s jurisdiction, Pope Clement V recognized in 1314, extends “no further than his power to enforce it” (p.11).  And that simple observation still plagues the ever-closer European Union.


The European Union has developed a number of techniques to combat this problem. One of them was the fairly neat trick pulled off by the European Court of Justice which built upon treaty provisions authorizing Member State courts to seek rulings from the central [*283] court in the course of their own interpretation and enforcement of laws and rules. Rather than forcing Member State courts to bow to their supreme rule, the system turned the tables, and offered some real incentives for Member State Courts to use the central court to enhance their own power and authority, a point that was early noted by Joseph Weiler (1991) and has been well developed and explored by Karen Alter (2001).


This relationship, this co-authorship, is one of the elements at the core of the project behind this report. What makes for better and worse legislation in the context of a complex system of sovereign states in an ever-closer union? The authors suggest that in Europe, unlike traditional nation states, the test of the quality of legislation is not the substance of that legislation necessarily, but rather its capacity to coordinate a large number of national political systems while simultaneously allowing those systems to maintain and enhance their diversity.


The report suggests that we think about this as something of a five-step process. European Legislation, it is suggested, is drafted with the participation of Member State experts and officials; it is sanctioned and put into force by the Council, which represents directly the Member States’ chief executives; it is implemented through separate Member State legislation in many cases, and then interpreted by Member State Courts, who apply EU law (which is shaped and determined by the European Court)  within their own national legal systems; and these experiences then ultimately feed back into the next round of legislation (p.20).


The diversity, Ballin and Linda A.J. Senden seem to suggest, comes largely in the implementing legislation, the coordination and reconciliation of which is largely a product of the judicial system. This allows Europe to maintain diversity and its commitment to subsidiarity (decision making at the most local-level possible given the objectives and demands on that legislation) and yet still maintain coherence and consistency across the ever-larger Union of independent nations.


Ballin’s part of this report is, as the title indicates, a set of “reflections on co-actorship.” Senden writes the actual report here, and develops a more formal consideration of the problems, working to pull together extensive data from a survey and questionnaire that she developed, and to which each country has responded. These questionnaires and the reports and responses to them are included in full form on a CD-ROM included with the book – a source of very valuable data for anyone with an interest in this field. These 17 responses include reactions from the Court of First Instance and the European Court of Justice, as well as from the Member States. For those linguistically challenged, however, only four of the country questionnaire responses are in English (England, Finland, Austria and Denmark); the rest are in French – as are the responses from the two courts.


Senden summarizes these responses, analyses the data and generates some general conclusions and prescriptions in [*284] her report. Her compilation of the data dealing with the nature and causes of the interpretation-of-legislation problem and the means that have been used to overcome these challenges, are of continuing interest despite the rejection of the European Constitution.


To illuminate the interpretive problem, Senden asked respondents to consider three case studies to help illuminate the nature and causes of interpretation difficulties. One deals with a 1977 directive on the harmonization of tax laws; another is from 1979 on the conservation of wild birds, and a third from 1992 on the conservation of national habitats and other environmental rules.


Senden’s conclusions focus less on the subjective quality of European legislation and far more on the techniques needed to encourage Member States to be genuine participants rather than mere consumers of European legislation. To do this, the report focuses on increasing transparency in the European legal process; techniques to minimize the implementation and interpretation problems stemming from institutional, linguistic and other barriers; a call to develop a better system for Member States to compare and share best practices and ways to help national courts use preliminary references to participate in developing and improving legislation.


This then opens up what may be of greatest interest to public law scholars – an extended discussion of how these preliminary reference systems should work, how they might be streamlined, and the consequences of formally introducing break-mechanisms, or greater screening of references to the ECJ, either by the national courts themselves, or through forms of docket-control for the ECJ, some of which might require treaty revision and others that might be developed more informally.


These are intriguing observations, and the report (along with the CD-ROM) provides useful reference material. While it would not likely find a place in very many courses, it should find a place in good research libraries.





Weiler, Joseph W.W. 1991. “The Transformation of Europe.” 100 YALE LAW JOURNAL 2403-2483.


© Copyright 2006 by the author, Gordon Silverstein.