ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 479-482.

LABOUR LAW IN THE COURTS: NATIONAL JUDGES AND THE EUROPEAN COURT OF JUSTICE by Silvana Sciarra (Editor). Oxford: Hart Publishing, 2001. 316 pp. Cloth $52.00. ISBN: 1-84113-024-9.

TRADE, FOREIGN POLICY AND DEFENCE IN EU CONSTITUTIONAL LAW by Panos Koutrakos. Oxford: Hart Publishing, 2001. 243 pp. Cloth $70.00. ISBN: 1-84113-166-0.

Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University.

The role of the courts and judges in the construction and maintenance of the European Union (EU) continues to receive increasing scholarly attention as its institutions take shape and mature. This scholarship, still primarily European-based, often concentrates upon several issues including judicial interpretation and enforcement of the various EU provisions, the relationship between the European Court of Justice (ECJ) and other parallel EU institutions such as the Council, Commission, the European Parliament and Council, and the national judiciaries of the member countries. For European and now, an increasing number of North American public law scholars, the questions examined range from those seeking to explore the emergence of judicial review along the lines established in the United States or in the
European constitutional courts, federalism concerns affecting interpretation, and the political posturing and role definition the ECJ and its judges occupy as they articulate a place for themselves vis-…-vis the other institutional and individual actors in the EU. The EU and the ECJ potentially present to scholars in the United States a wonderful opportunity to test judicial behavior and assumptions other than in their own country.

Several agreements support what is often described as the three pillars of EU. The first pillar is the creation of the European Community (EC), built from the 1951 European Steel and Coal Community, the 1955 European Atomic Energy Community, and finally, in 1993, the Treaty on European Union (TEU) of Maastricht. This treaty, as amended by the 1997 Treaty of Amsterdam (TOA), created the basic structure of the EC. Together, the TEU and the TOA forged the second pillar-Common Foreign and Security Policy (CFSP)-and the third pillar-Justice and Home Affairs. These three pillars constitute the heart of the EU.

The EU Commission approximates an executive branch of career civil servants and is composed of twenty members, including its president, who oversee the bureaucracy, which is organized into numerous Directorates General. The Council of the European Union consists of more political members and has a representative from each member state, along with a president who holds office for six months, with the office rotated among all the member states over a six-year period. The European Council consists of a head of state or government from each of the member states, and the 626 members of the European Parliament are allocated among

Page 480 begins here

the different member states and citizens of the states directly elect them.

Finally, in addition to there being a variety of special EU boards or institutions, there is the Court of First Instance and the European Court of Justice( ECJ) available to adjudicate legal disputes between member states and communities, disputes over EU treaty interpretation, and employee/employer disputes, among other issues. This court is composed of one judge selected by each member state, appointed for six years. In deciding cases the ECJ is assisted by the Office of Advocate General who writes an opinion for the Court, setting out how the office views the case. This opinion is not binding but is very influential upon the panel selected to
hear the case.

Together, all of these institutions are responsible for EU governance. Yet critical to understanding EU structure and law is to disband with notions that the different institutions neatly correspond to executive, legislative, and judicial branches structured according to a separation of powers logic. The powers are more shared and mixed, as in a parliamentary system, yet this model does not adequately describe the complexity of EU governance either. The point here is that public law scholars who wish to study the ECJ and it judges need to recognize that comparisons to the United States Supreme Court or other national judiciaries are probably not accurate or appropriate in many cases.

Given the above, what role has the ECJ really played in the EU? Both Panos Koutrakos' TRADE, FOREIGN POLICY AND DEFENCE and Silvana Sciarra's
LABOUR LAW IN THE COURTS approach EU issues differently, yet converge in their assessment on the role of the ECJ in driving integration.

Koutrakos offers a detailed study of the relationship between the first two pillars of the EU-the EC and the CFSP. Specifically, to what extent do trade issues governed by the EU interact with the foreign policy provisions of the EU. Among the questions asked are how well the different pillars work together to achieve common objectives; do these pillars give the Community exclusive authority over commercial policy; what role is left to sovereign member states to conduct their own foreign policy; what types of goods and articles are subject to Community versus member state control; and what authority do the various EU institutions have in defining all of these issues. As its case studies, it examines the imposition of sanctions on third countries, legal regulation of dual-use items, i.e., those that have
military and non-military uses, and regulation of military armaments. The choice of subjects here provides ample opportunity to explore the interrelationship between the two pillars, as well as between the member states and the EU institutions. Defining how these power relations are resolved often falls to the ECJ as it interprets the TEU and TOA.

Successive chapters of the book describe the CFSP provisions, the authority of member states and the EU to impose economic sanctions, how the EC addresses dual-use products and the role of the ECJ in regulating these products, and finally how defense products are handled. Four overall conclusions flow from the study. First, the ECJ has been central to resolving pillar and state-EU disputes. Second, the Court has developed a functional approach to pillar disputes, thereby allowing it to use a case-by-case approach to demarcate lines of state versus EU competence in security and trade affairs. Third, that there is a growing link between the EC and CFSP pillars that seems destined to expand EU powers in both areas

Page 481 begins here

vis-a-vis member states. Finally, because of the merging of the EC and CFSP, the entire pillar structure of the EU is becoming meaningless as further integration takes place. Stated succinctly, the ECJ may be affecting a stronger transnational union government with independent authority in ways reminiscent of Chief Justice John Marshall's efforts to build a national union and federal judicial power in the United States in the early part of the nineteenth century.

Sciarra's book, as the title suggests, does examine labor law, including various provisions of the TEU or TOA that mandate gender equality in the workplace, the transfer of undertakings or the sale business operations, as well as other labor laws. Examination of the substantive law in these different areas of course is fascinating in itself, but what makes the book even more compelling is how the various authors wish to examine the relationship between the EU and member state courts in this area. Specifically, the authors look at how state courts cite or use EU precedent in their own opinions, what procedural posture or cues member courts give to
the ECJ regarding how they think the case should be decided, and, in general, what type of "dialogue" there is among the justices at the EU and member state level.

According to the authors, this type of study makes it possible to see judges as political actors in the articulation of EU integration policy, with some judges and state courts more active in forging integration than others. Hence, as Sciarra concludes, EU integration is occurring not just as a result of ECJ activity, but in various ways by national judiciaries as the adjudicate their own cases or refer cases up to the ECJ.

The corpus of the book includes detailed studies of how the ECJ and national courts use their own and EU law to address specific legal and policy disputes. Emerging from the analysis one finds first that the ECJ has become the final word on what the TOA and TEU mean. Second, there is national variance in the use of ECJ precedent in the area of gender equality-TEU Article 141- with Germany and the United Kingdom taking a more aggressive role in citing ECJ decisions than countries such as Spain and Italy that have yet to cite any ECJ opinions. Judicial manipulation of precedent influences how member state courts interpret their own national laws, demonstrating different patterns of reading them to conform to ECJ rulings. It also signifies the attitude these courts and judges take towards the ECJ.
One can see both the ECJ often accommodating its interpretations to domestic law but, more importantly, many state courts have learned how to use ECJ precedent to affect the latter's interpretations. As a result, through a dialogue and cuing system among the ECJ and domestic courts, some national judiciaries are more successful than others in setting the interpretative agenda. However, the most important conclusion here is that the accommodation of the domestic law to conform to EU law, referred to as the approximation of laws in Article III of TEU, is occurring through the efforts of judges at both the state and ECJ level.

Both the Koutrakos and Sciarra books are solid accounts examining the ECJ. From contrasting points they reach similar observations regarding the central role of the courts, both domestic and the ECJ, in federalizing or forging a central body of EU law that applies across the member states. There is no question that judges are often acting in a policymaking role, yet such a behavior may not be inappropriate for these

Page 482 begins here

courts. There is a clear sense that, although there is some rivalry among the domestic and EU courts and other political institutions, neither book argues or indicates there is antipathy towards the ECJ taking a prominent interpretative and policy posture.

American public law scholars will read these books looking for parallels in the United States. Comparing the ECJ's recent role to the Supreme Court under John Marshall, or drawing contrasts to federalism and Commerce Clause jurisprudence are also unavoidable. Perhaps such analogies are necessary if only to make EU politics and the ECJ's role in it more comprehensible. But understanding that ECJ might have been given a different institutional role than the Supreme Court, or that the institutional constraints of dealing with sovereign states versus individual American states merits a word of caution before rushing across the Atlantic Ocean to
crunch numbers or draw conclusions.

Overall, Sciarra's LABOUR LAW IN THE COURTS and Koutrakos' TRADE, FOREIGN POLICY AND DEFENCE IN EU CONSTITUTIONAL LAW are fine examples of the new EC scholarship that ought to be read by those interested in comparative legal studies or in the politics of Europe.

****************************************************************

Copyright 2001 by the author, David Schultz.