Europa - quo vadis?
I suppose that everybody takes something different from an academic presentation. A spin-off discussion from yesterday’s lecture and seminar by AG Sharpston concerned the functioning of the EC’s legal system. On this somewhat hazy Saturday morning, I’ve been thinking about how the legal system could be made both efficient and coherent. The following are some Saturday morning thoughts (which means that they might only make as much sense as Friday night was sober – you may be the judge of that).It seems to me that the time has come for the Community to rethink its legal system completely. The legislative process is not entirely fit for purpose. A system of regulations and directives makes sense in the context of a Community whose competences are limited. However, Europe is fast-approaching a time when it will need to think in terms of Codes and Acts. Piecemeal legislation cannot be sustainable in the long-run.
To my mind, the debate regarding the possible adoption of a European Contract Code illustrates the inevitability of rethinking European law – we are faced with a choice between piecemeal legislation that is internally incoherent and that corrupts national laws of longstanding, or a codification of private law in a manner that has never before been performed. Neither option is risk-free, but it does seem that a thoughtful and calculated approach to codification would be preferable to the current practice (see the Principles of European Contract Law).
If we are to have European Codes and Acts, we will also need our courts to come up to speed. The ECJ cannot cope with a bigger volume of legislation if it does not become the apex of a more federal judicial system. We would need national courts to be complemented by European circuit courts, or we would need to allow national courts to adopt a truly European role, including the obligation to address new matters of interpretation. In any event the ECJ would then take on an appellate role, rather than a complementary role in reference procedures.
Any thoughts in the comments section would be much appreciated.
Comments
I guess, you have opened quite a can of worms here that to some might even seem pandora's box opening which reveals medusa's head (ie that of the EU). (Apologies to everyone who feels offended by this mix of Greek mythology.)
As much as I am convinced you are right, and the EU should start thinking in less piecemeal terms, I am afraid this time has not come just yet.
Maybe I am thinking too much in fundamental terms but once more I think the structure and nature of the EU does not lend itself easily to a systematic approach. Being a Union of states and citizens the Union will have to serve not only the citizens but equally the Member States. Therefore it will have to support the Member States in serving the citizens. This may just be significant on two levels - a practical (political) and a legal one.
Practically, it means that states would only want to act where they consider it necessary to tackle problems that arise on domestic level. With some states being more wary of their potential loss of sovereignty than others, broad legislation will be a rather inconsistent compromise at best (as can indeed be seen in each new Treaty). These arguments merely explain why, in fact, it takes the EU so long to adopt codes, should they manage at all.
Legally, this might just be enshrined in Art 5 EC with its principles of conferral of powers, subsidiarity and proportionality. The latter, in particular, demands the use of the least intrusive measure available (Paragraph 6 Protocol on the application of the principles of subsidiarity and proportionality). The EU would thus have a complementary role only, even where it may have exclusive jurisdiction. Such complementary role is probably not easily reconciled with codification.