Jean Monnet Center at NYU School of Law


I. Introduction

The statement of intention by the European Council at Tampere to promote greater cooperation in the domain of Justice and Home Affairs placed "co-ordination" of our national criminal justice systems squarely on the EU agenda 1. Work was also authorised, and is now well advanced, on the drafting of an EU Charter of Rights 2. Both are steps in the direction of legal unity. In addition, many civil lawyers would agree with Heinz Kotz that 3

a serious effort must be made to develop a common core of European legal principles and rules, to engage in the construction of a European legal lingua franca... and thus to lay the basis for what will be needed when the time is ripe to undertake the project of a European Civil Code.

This common core of principles, popular with comparative lawyers, is coming to be called the ius commune 4. Many EC lawyers 5 see the European Union as the forum conveniens for the ius commune. They believe that it is already emerging and should be encouraged to emerge through the convergence of national legal systems inside the framework of the European Union.

In contrast, this chapter draws support from the contrary signals given by the concept of subsidiarity introduced by the TEU and reiterated at Amsterdam 6. It sets out to present the counter-argument for diversity and legal pluralism within the EU, the emphasis throughout being on public and procedural law. The argument rests on the belief that a pluralist Europe is not inconsistent with a commitment to internationalism. Cultural diversity is valuable in its own right and is a basic strength of the European enterprise, providing a valuable genetic store of cultural experience, essential as a foundation for constitutional and legal experiment and as a yardstick against which to measure the infant institutions of the EU. The need for diversity is indirectly recognised in the Preamble to the TEU, which confirms the desire of the Masters of the Treaties "to deepen the solidarity between their peoples while respecting their history, their culture and their traditions". This commitment is reflected in the Draft Charter of Human Rights, which proclaims respect for "cultural, religious and linguistic diversity" 7. In the Treaty of Amsterdam we find a specific reference to legal culture, requiring "care [to] be taken to respect well established national arrangements and the organisation and working of Member States' legal systems" 8.

In modern liberal democracies which acknowledge the need for limited government, the authority of the judiciary is traditionally justified in terms of the rule of law, a principle with which lawyers tend naturally to empathise strongly. This inclines them to read arguments for democracy as an argument for legislative sovereignty in its narrowest and least reflective sense. The rule of law clearly forms an essential element of liberal democracy and plays its part in providing the theoretical basis for an independent judiciary but it forms only one side of a balanced constitution or debate about a balanced constitution. This chapter is premissed on the ideal of pluralist democracy, seen as the best, though also the most demanding, form of government that contemporary society has to offer. For the purposes of the argument, a simple but robust definition of democracy has been adopted as a form of popular political self-government with "the people of a country deciding for themselves the contents of the laws that organize and regulate their political association 9". In this chapter, the political components of democracy have been stressed, though the author accepts that the balance of power in modern constitutions is typically more complex. The true position is reflected in the Preamble to the TEU, where the Member States confirm their "attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law", a formulation not changed at Amsterdam. It should be noted that liberty and democracy here take precedence over respect for human rights and fundamental freedoms and of the rule of law.

Underlying the argument of this paper are two further assumptions. First, law is seen not merely as a toolkit of autonomous concepts readily transferable in time and space, but as a cultural artifact embedded in the society in which it functions. This conception of law is discussed in Section II.2. Secondly, the paper maintains that a legal system is part of the governmental arrangements of a given state or society. A legal system is not and never can be "autonomous" in the sense of lying outside the system of governance, though this is not to deny the judicial independence demanded in modern European constitutions, which often finds expression through the doctrine of separation of powers. (In any society whose constitution is written, the distinction will be self-evident).

Neither "harmonisation" nor "convergence", which bear broadly the same meaning, are terms of art and in this paper they are distinguished. The term "harmonisation" is here reserved for a conscious and negotiated process of harmonisation, culminating in a rulemaking procedure or legislative act. The European Commission has in the past sponsored several efforts at legal harmonisation, notably in the area of consumer protection law and products liability 10. Latterly, however, the Commission - perhaps more sensitive to the problems of harmonisation in a wider and more divergent Community - has been more selective; rather than attempt broad, general harmonisation, it has sought agreement on specific action in limited areas: a common law of remedies inside the public procurement directives, for example 11. Attempts made to arrive at a codification of European civil law 12 and the law of judicial procedure have so far had negative outcomes. Indeed, the Storme Commission, the semi-official body set up under the sponsorship of the European Parliament to harmonise procedural law and to draw up a "European Judicial Code", ultimately concluded that the basic distinction in European legal systems between adversarial and inquisitorial procedures was "so deeply enshrined in the respective legal cultures as to make harmonisation practically unfeasible" 13.

The term "convergence" can be used in several senses. It may simply denote the coming together of legal systems through mutual interest and common development, often perceived as an inevitable part of the process of "globalisation". The cumbersome phrase "cross-fertilisation" 14, is really a better way of expressing this process. But in the context of the EU, convergence may also denote the process of harmonisation of national legal principle and procedure brought about by the jurisprudence of the European Court of Justice. In this paper, the term "vertical convergence" is used to convey judicial intervention of this type. "Vertical convergence", which draws on the doctrine of precedent to impose common principles or common rules of interpretation through the rulings of superior courts, has been seen by the ECJ as lying very much at the centre of its role. The boldest example to date of this type of judicial harmonisation is perhaps the case of Member State liability, imposed by the ECJ in Francovich 15 for failure correctly to transpose EC Directives. While many EC lawyers accept vertical convergence as unexceptional and well within the remit of a superior court 16, others would certainly question its legitimacy 17.

To the ECJ, "horizontal divergence" in the sense of variance between the legal principles and procedures of the Member States, is often problematic. But in ironing out discrepancies, an equally difficult problem of horizontal divergence may be passed to national courts. This occurs when rules applicable in different areas of domestic law diverge because of the introduction of a principle of EC law which is out of synchronisation with the existing rules of the domestic legal system. This gap creates a quandary for a national judiciary charged with maintaining so far as possible the integrity of the domestic legal system. The standard reaction of EC lawyers to problems of horizontal convergence is to treat them simply as a question of "levelling up" to a common EC standard, generally assumed to be "higher law" in both senses of the phrase. The fallacy of the "levelling up" concept is discussed in Section IV.

1      Conclusions of the Finnish Presidency, Tampere, Doc 200/99 (15-16 June 1999).

2      Authorised by a decision of the European Council at Cologne, 3-4 June 1999, activated by the Tampere European Council, 15-16 June 1999.

3      H. Kotz, "Towards a European Civil Code", in P. Cane and J. Stapleton (eds) The Law of Obligations, Essays in Celebration of John Fleming, Clarendon, 1998, pp. 243-4.

4      For discussion and explanation of the ius commune, see B. Jackson, "Legal Visions of the New Europe: Ius Gentium, Ius Commune, European Law", in B. Jackson and D. McGoldrick (eds), Legal Visions of the New Europe, Graham and Trotman, 1993.

5      Notably W. van Gerven, "Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?" (1995) 32 CML Rev 679 and "Bridging the unbridgeable: Community and national tort laws after Francovich and Brasserie" (1996) 45 ICLQ 507. See also R. Caranta, "Judicial Protection Against Member States: A New Jus Commune Takes Shape" (1995) 32 CML Rev 703.

6      Treaty of Amsterdam, Protocol on the Application of the Pinciples of Subsidiarity and Proportionality. On the history of differentiation, see C-D. Ehlermann, "Differentiation, Flexibility, Closer Co-operation: The New Provisions of the Amsterdam Treaty" (1998) 4 European Law Journal 246.

7      Article 22 of the Draft Charter of Fundamental Rights of the European Union, Charter 4487/1/00 Rev 1 (10 October 2000).

8      Treaty of Amsterdam, Protocol on the Application of the Principle of Subsidiarity and Proportionality, para. 7.

9      F. Michelman, "Brennan and Democracy: the 1996-97 Brennan Centre Symposium Lecture" (1998) 86 California Law Review 399, 400.

10      EEC 93/13 Directive on unfair terms in consumer contracts and EEC 85/374 Directive concerning liability for defective products.

11      EEC 89/665 Directive on Remedies.

12      A. Hartkamp et al (eds), Towards a European Civil Code 1994.

13      M. Storme, "General Introductory Report", in M. Storme (ed), Rapprochement du Droit Judiciare de l'Union Europeenne, Martinus Nijhoff, 1994, p.63.

14      See J. Beatson and T. Tridimas (eds), New Directions in European Public Law, Hart Publishing, 1998.

15      Joined Cases 6, 9/90 Francovich and Bonafaci v Italy [1991] ECR I-5357. And see Joined Cases C 46/93 and C 48/93 Brasserie du Pecheur SA v Germany R v Transport Secretary ex p. Factortame (No 4) [1996] ECR I-1029.

16      A. Toth, "The Authority of Judgements of the European Court of Justice: Binding Force and Legal Effects", in N. MacCormick and R. Summers, Interpreting precedents: a comparative study, Dartmouth, 1997.

17      T. Hartley, "The European Court, Judicial Objectivity and the Constitution of the European Union" (1996) 112 Law Quarterly Review 95. The classic attack is by H. Rasmussen, On Law and Policy in the Court of Justice, Martinus Nijhoff, 1986.



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