Cases and Materials on European Union Law
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Description
The study of European Community law, always of interest, since the Community’s creation, has taken on special importance in recent years. As the Community perfects its goal of a true internal market and monetary union, while contemplating an unprecedented enlargement to the east and profound constitutional reform, American Lawyers and law students naturally seek to learn more about the Community and its law. With the advent of the European Union in 1993, following the Maastricht Treaty, the European-level legal framework has become still more complex. Each of the Union’s three “pillars” (Community law, common foreign and security policy, and police and judicial cooperation in criminal matters) has generated its own “law.” We may truly speak today about both European Community law and European Union law, though the former predominates in this casebook and in the legal literature more generally. This casebook is intended to provide a basic understanding of the Community and Union, their structures, goals, fields of action, achievements and aspirations, as well as to lay a foundation for further research, analysis and legal writing. There are many valid reasons to study Community and Union law. We present here three of the most important ones. The most pragmatic of them is that the Community has become the largest trading partner of the US, constitutes the largest overseas single market in the world, and represents a major site of investment for US firms. US lawyers, both international house counsel and outside counsel, can no longer afford to possess only a limited knowledge of Community structure, law-making processes and substantive law. Community competition and trade law have long been staples of international practice. Today, the European Community’s harmonization of health, safety and technical standards, banking, securities and company law, environmental and consumer protection measures, and actions in the field of agricultural and social concern to US interests and their lawyers. The Community’s achievement of an economic and monetary union, with a single currency and a single monetary policy, is also of evident importance to the international business and legal world. Second, Community and Union law are rewarding fields for comparative law study. This has long been true in competition and trade law, where academics and practitioners have found provocative points of comparison and contrast. Today a rich source of comparative study is to be found in the Community programs for harmonization of laws. In some fields, as in environmental and securities law, the Community has been significantly influenced by US models, but still strikes certain different notes. In other fields, such as banking, company law, consumer protection and social policy, the Community has taken quite a different path from the US, and its law has had its echoes in American law. Constitutional comparisons and contrasts between the US and EU have acquired unprecedented interest among comparatists. The divergences between US and Community law have provoked thoughtful reflection on the context and underlying values of each system. They should continue to do so. Third, Community law provide a laboratory for study of law formation: the development of an entire legal system in modern times. The study includes the Community’s constitutional framework, its institutions, substantive legislation and judicial law, and the constant interplay of policy and politics in an evolving federal-type system, one comprised of fifteen (and soon more) nations having many commonalities but also divergent systems, demographics and interests. The casebook rewards the student who has come to the course for any or all of these reasons. The book covers virtually all major fields of Community law. (We regret that, despite the book’s increase in size over the first edition, space considerations prevented coverage of certain important topics, such as public procurement, transport, agriculture and telecommunications law.) The notes and questions have been crafted to facilitate reflection on how and why the Community and Union institutions, and especially the Court of Justice and Court of First Instance, have reached their legal and policy conclusions. The text and notes make frequent comparisons with US law. The authors hope that the reader will thereby achieve not only a good comprehension of Community and Union law, but also a critical one. The casebook is intended of use in US law schools, but it may also be suitable for faculties in Europe and elsewhere. Our casebook follows traditional US teaching methods which give central attention to primary materials, such as legislation and court judgments, inviting students to examine these materials critically though focused questions. Accordingly, Court of Justice and Court of First Instance judgments and Community legislation are subjected to the same kind of analytic review as US laws and Supreme Court opinions would be in a standard constitutional law casebook. We hope that European professors and students will find that the process of analytic examination of judgments and legislation through questions will assist in a more reflective comprehension of Community rules and judicial doctrines. The preparation of this edition and the teaching of the subject in general has been complicated by the decision implemented in the 1998 Treaty of Amsterdam (effective 19990 to renumber the articles of the treaties establishing both the European Community (EC Treaty) and the European Union (TEU). For instance, generations of Community law scholars have written and discussed the impact of Article 30’s ban on quantitative restrictions and measures with equivalent effect and the exceptions thereto in Article 36, only not to be faced with a numbering system that has the exception in Article 30 and the ban in Article 28. Likewise, probably the most familiar EC Treaty articles to American lawyers—the competition provisions in Articles 85 and 86—have become Articles 81 and 82. We have, of course, used the new numbering system in our text, with indications in parentheses of the old numbers. Similarly, in cases where we have kept the old article numbers, we have indicated the new numbers in brackets. While this new edition was in preparation, new amendments to bot the EC Treaty and the TEU were agreed to in the Treaty of Nice, signed in December 2000. (The proposed amendments will already undermine the purity of the new numbering system by adding, for example, new Articles 11a and 181a.) Where significant, we have indicated in the text and notes the changes that will be made if and when the Treaty of Nice is ratified. As of November 2001, only Denmark, France and Luxembourg had deposited their ratifications, although the process of ratification was at an advanced stage in several other Member States. Unfortunately, in June 2001, Irish voters rejected the Treaty, reflecting the now longstanding complaints that there is too great a distance between leadership and the people and, notwithstanding impressive institutional reform in recent years, still something of a “democratic deficit.” The Selected Documents, which accompanies the casebook, contains the EC Treaty (as last amended by the Treaty of Amsterdam in 1999), the TEU (likewise as amended at Amsterdam), followed by (a) a convention table of article numbers for both treaties showing the pre- and post-Amsterdam numbering and (b) the 2000 Treaty of Nice which, as of this writing, remains to be ratified. The Nice Treaty consists primarily of amendments to the EC Treaty and TEU, and users are strongly encouraged when considering any treaty article to turn to the Nice Treaty (Document 4) for an indication of how, if at all, that particular provision would be altered upon the Nice Treaty’s entry into force. (Where highly significant, the projected changes will in any event be brought to the reader’s attention in text and notes throughout the book.) Because the treaties constitute the foundation of the Community legal system, they should in any case be read in tandem with the casebook as and when reference to treaty articles is mad. Editors’ note in the Selected Documents try to make the interplay between these texts as clear as possible. The Selected Documents volume also contains a large sample of important secondary legislation, excerpted lightly and with care. Students will profit from working with these complex legislative texts. The accessibility of these important Community law documents should also be helpful in research.
Publication Date
2002
Edition
2
Recommended Citation
Bermann, George A.; Goebel, Roger J.; Davey, William J.; and Fox, Eleanor M., "Cases and Materials on European Union Law" (2002). Faculty Books & Edited Works. 247.
https://gretchen.law.nyu.edu/fac-books-edited-works/247
