Vol. 21 No. 8 (August, 2011) pp.472-475
UNJUST ENRICHMENT AND PUBLIC LAW: A COMPARATIVE STUDY OF ENGLAND, FRANCE AND THE
EU, by Rebecca Williams.
Oxford: Hart Publishing, 2010. 304pp. Hardcover. £50.00/$100.00.
ISBN: 9781841134147.
Reviewed by Victoria A. Redd, The Journal Offices, University of Florida Levin
College of Law, Email: reddva [at] law.ufl.edu.
Many in the United States do not think about how cases are decided in
Europe;most Americans do not know what the English Unjust Enrichment Law is or
how it compares to the French or EU law. A comparison of these four “legal
systems” (including the U.S. courts) shows they are all different, which means
that the way that each decides cases is also different. One place this is
demonstrated is in determining the
role the public and private law have to play in deciding cases in each European
legal system.
In Europe there have been numerous discussions regarding the public and private
law issues involving cases (such as WOOLWICH EQUITABLE BUILDING SOCIETY v. IRC,
MINISTRE DE LA RECONSTRUCTION ET DU LOGEMENT C SOCIÉTÉ SUD-AVIATION, and
Mannesmann AG v. HIGH AUTHORITY), mainly questioning the differences in the
court systems and the claim amounts given out from their decisions.
Some experts, such as Peter Birks feel that public and private law issues
are difficult and want to stay in the private realm. This view is not always the
norm though, and can be considered pragmatic, because it does not consider
theoretically where the dividing line between public or private law is for a
given case (Mitchell and Oliver 2009), where public bodies may require public
laws putting them under a different set of rules.
Without a theoretically clear dividing line, it is unclear what actually
would prompt the use of public law; many times it can be just the litigants'
preference for a certain type of public law procedure.
Private law usually reflects property ownership or employment issues, cases that
involve an individual. Until recently, jurisdiction was clearer, and cases were
decided on ahead of time to be only private or only public. Now there are two
hybrid models being used to determine where to draw the public and private line.
These two models together are known as remedies jurisprudence (or
“natural procedural autonomy” (Galetta
2010) if most of the responsibility is given to the Members States). This
concept is mapped out by van Gerven in order to show the division of labor
between the European Court of Justice (ECJ) and the national courts (p.501). Van
Gerven further defined the concepts of the terms starting with rights being
legal positions, remedies being classes of action, and procedures being what
govern the classes of action and uphold the legal positions. Even a simple
definition like this is confusing. Birks defines van Gerven’s concept of
“remedy” even better as an “actionable story,” and many of Birks's conclusions
are similar to van Gerven’s. How do the hybrid models help us understand the
difference between public law and unjust enrichment? And, why is this important?
[*473] How does law work in England, France, and also the European Union (EU)
when looking at cases that involve both the private and public laws?
Individuals who have an interest in European Law and these questions would be
better informed if they examined Rebecca Williams’s book, UNJUST ENRICHMENT AND
PUBLIC LAW: A COMPARATIVE STUDY OF ENGLAND, FRANCE AND THE EU. At first glance
the reader may think that this is a complicated textbook, but it is actually a
Ph.D. thesis that has been transformed into a three-part book. It also includes
several tables at the front and an index at the back of the book. Williams,
currently a CUF Lecturer at the University of Oxford, has taken the laws of
England, France, and the EU and explained the interactions that take place when
deciding cases under these laws. Although scholarly in its effort (with its
three-point agenda) and at times an awkward read, the book clearly presents the
different types of law that involve unjust enrichment and public law. The book
is also an attempt for Williams to debate that the problem for most courts in
deciding a case is that they choose to go about it either from a solely public
or private stance, when both are relevant.
Williams metes out the discussion in three parts where unjust enrichment and
public law intersect going over representative cases. Part 1 “Unjust Enrichment
and Public Law in England and Wales” has an additional five points, with a
question and answer format that seems more detailed than Williams needs to make
it so much so that she starts out Part 2 calling Part 1 “too elaborate” and
giving an offhanded apology (p.167). Part 2, “Unjust Enrichment and Public Law
in France,” ends the question and answer format and simply explains that the way
that England decided a case was by Diceyan Orthodoxy, better defined by
“examin[ing] the rules concerning restitution and unjust enrichment and then
apply[ing] them to public bodies,” the complete opposite of how France does it
(pp.167-68). The Conseil d’Etat, put in place by Napoleon in 1799, has long
recognized a difference between public and private law by having two separate
branches of law — administrative courts or “ordre administratif” and ordinary
courts or “ordre judiciaire.”
The administrative courts were further split in the nineteenth century to create
the lower courts (where ordinary judges presided) for certain administrative
law; by 1872, the Tribunal des Conflits was created to interpret differences in
dealing with public and private issues. The conflict in these two jurisdictions
occurs when the Cour de cassation, the highest level ordinary court, and the
Conseil d’Etat cannot agree regarding whether the case fits public or private
law — which in turn requires an expert judge, who is trained in either public or
private law depending on what is needed. Williams quotes Charles Debbasch and
Jean-Claude Ricci, two experts who describe the public-private divide as
“oscillating” between “two poles” (p. 169). Finally, in Part 3, “Unjust
Enrichment and Public Law in the European Union” concludes by suggesting that “a
proper framework for analysis” involving unjust enrichment should be established
by the ECJ.
Williams’s main focus of unjust enrichment and public law remains consistent
throughout the book, each part giving a definition for the issues in relation to
the location it represents. [*474] Unjust enrichment, simply defined, means: a
benefit by chance, mistake or another’s misfortune for which the one enriched
has not paid or worked and morally and ethically should not keep (e.g.,
LAW.COM); in England it wasn’t until recently that there was even a means of
restitution (courts relied on “unjust factors” instead of “enrichment without
cause”); and in France the court actually is party to the dispute under the
“absence of basis” approach.
The problem here, however, is that those readers who are better informed will
benefit over others, because they are aware of the quasi-contract concept.
Readers would be better served by. Hunt who defines “unjust factor” as
essentially a list of reasons for reversing enrichments; and, the “absence of
basis” as basically a list of reasons for keeping enrichments. I am unsure why
Williams chose the order of the laws (i.e., first section England & Wales,
second section France, and third section EU) that she talks about in her book.
She concludes at the end of Part 2 that it is the EU law that has had the
greatest effect on the other two laws. This is so significant that I do not
understand why Williams did not start with the EU law and write from there. (Did
Williams start with England and Wales because this was her Ph.D. thesis? Were
the last two brief parts of her book just what she added to complete the book?).
The biggest protest that Williams has is “the division between public and
private law” (p.275), unfortunately this has been going on for almost 60 years
(p.283). Her chief problem is that it is unfair for a court to pick either
public or private law and not both to handle a case, especially when it is
usually relevant. Williams debates that even if you use the appeals system, this
just leads to a “wasted opportunity” as in Deutsche Morgan Grenfell (p.277). She
stresses that, obviously, this is due to a lack of understanding at how the
hierarchy should work. She clarifies that if the judges had looked at cases from
both the perspectives of public and private law they would have known that it
was an unjust error and possibly seen that following only the principles laid
out in previous cases, such as in O’REILLY v. MACKMAN or CLARK v. UNIVERSITY OF
LINCOLNSHIRE AND HUMBERSIDE, would be the answer to prevent a distortion of a
proper decision. Determining the reasons for restitution and knowing the urgency
of each will afford availability to both sides of the law to decide a claim and
will bypass the “absence of basis” approach (a conclusion that Birks stated was
the answer). The French showed us how to do this, and we need only to follow
their lead — first, move all cases to the public bodies and then accommodate
them in private law courts, taking
into account the reason for restitution. Finally Williams adds that the EU
handles cases that may involve questions of its own institutions and these need
to go through a “wrongs-based vehicle” via Article 340 as presented in her book
(pp.230, 281).
Williams’s final point is that “[w]e need a public law of unjust enrichment”
(p.283). This, she concludes, based on her previous discussion, would be “a
proper framework for analysis” and lead to a “cause of action” (p.283). These
statements are more directed at England and Wales and definitely not the EU
which is unlikely to change. International attorneys or judges who [*475] want
to update their knowledge of the current process of law should give Williams’s
book a once-over.
REFERENCES:
Article 340 Treaty on the Functioning of the European Union.
Birks, Peter. 2000. “Rights, Wrongs and Remedies,” OXFORD JOURNAL OF
LEGAL STUDIES
20 (Spring): 1-37.
Debbasch, Charles and Jean-Claude Ricci.
2001. CONTENTIEUX ADMINISTRATIF, Paris: Dalloz.
Facts about Conseil d’Etat: Role of Napoleon, as Discussed in France: The
Consulate,
http://www.britannica.com/facts/5/465271/Conseil-d-Etat-as-discussed-in-France.
Galetta, Diana-Urania. 2010. PROCEDURAL AUTONOMY OF EU MEMBER STATES: PARADISE
LOST?: A STUDY ON THE “FUNCTIONALIZED PROCEDURAL COMPETENCE” OF EU MEMBER
STATES. New York: Springer.
Hunt, Chris D.L. 2009. "Unjust Enrichment Understood as Absence of Basis: a
Critical Evaluation with Lessons from Canada," OXFORD UNIVERSITY COMPARATIVE LAW
FORUM 6,
Mitchell, Charles and Peter Oliver. 2009. “Unjust Enrichment and the Idea of
Public Law,” in PHILOSOPHICAL FOUNDATIONS OF THE LAW OF UNJUST ENRICHMENT Robert
Chambers, Charles Mitchell and James Penner eds. Oxford University Press.
Oxford Law: Profile of Rebecca Williams,
http://www.law.ox.ac.uk/people/profile.php?who=rebecca_a.williams.
Unjust Enrichment, LAW.COM, at
http://dictionary.law.com/Default.aspx?selected=2197.
Van Gerven, Walter. 2000. “Of Rights, Remedies and Procedures,” in COMMON MARKET
LAW REVIEW. 37: 501-36.
CASE REFERENCES:
CLARK v. UNIVERSITY OF LINCOLNSHIRE AND HUMBERSIDE, [2000] 1 WLR 1988.
DEUTSCHE MORGAN GRENFELL v. COMMISSIONERS OF INLAND REVENUE: First Instance:
[2003] EWHC 1779; [2003] 4 All ER 645; Court of Appeal: [2005] EWCA Civ 78;
[2006] Ch. 243; House of Lords: [2006] UKHL 49; [2007] 1 AC 558.
MINISTRE DE LA RECONSTRUCTION ET DU LOGEMENT C SOCIÉTÉ SUD-AVIATION, and
MANNESMANN AG v. HIGH AUTHORITY (1961) II JCP 12255 note J de Lanversin, (1961)
RDP 655.
O’REILLY v. MACKMAN, [1983] 2 AC 237.
WOOLWICH EQUITABLE BUILDING SOCIETY v. IRC [1993] AC (HL).
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© Copyright 2011 by the author, Victoria A. Redd.