POMFR: José Luís Da Cruz Vilaça, EU Law and Integration: Twenty Years of Judicial Application of EU Law
By Tim Corthaut
Sometimes a book wins you over, and José Luís Da Cruz Vilaça’s EU Law and Integration: Twenty Years of Judicial Application of EU Law (Oxford/Portland, Hart 2014), is such a book.
I must admit that I had some reservations at first over the concept of the book, which is in essence an overview of the legal career – both as a legal scholar and a judge – of José Luís Da Cruz Vilaça, on the basis of a series of articles on different topics written over the course of two decades. Books like this only stand out if they can avoid three traps.
First, the author must indeed have had something meaningful to say during the period concerned. While Mr. Da Cruz Vilaça’s name may perhaps not be the first to spring to mind when thinking of EU scholars whose collected works may be worth republishing, both the breadth and the depth of the various articles demonstrate the true scholarship of the author, and for those not familiar with his writings a very pleasant discovery awaits.
Second, there is an obvious risk that the materials may be outdated, with the result that the book will in the end only be of interest to dubious lawyers who need a 2014 cite, to hide from the court that the world really has changed in the past decade, or lazy PhD students who actually do want a correct representation of the state of the debate, say at the end of the nineties, but cannot be bothered to go seek the original materials. In my experience, these are real audiences, but they are probably best left unserved. However, the selected articles in this book, as will be discussed below, are still quite appealing today. Even though most of them have hardly been updated (not even to insert for instance the post-Lisbon numbering, which would have been quite helpful), for those who follow the case law of the European courts closely, constant parallels with recent cases come to mind, forcing the reader to reconsider the novelty of some striking recent judgments, or better grasp the subtlety of the evolution of the Court’s case law.
Third, the selection and presentation of the articles in a book with collected materials is not evident. How are articles about constitutional law, competition law, the precautionary principle or the application of Article 6 ECHR to staff cases really to be reconciled, so that they will neither disappoint those interested in one particular field, nor those who seek to find some deeper coherence? But here, too, the book is surprisingly well-balanced. The articles are collected in five parts that, at least to some extent, however, also appear to link up to each other. Accordingly the book opens with a part on EU Constitutional Law, which ends however with a short chapter on judicial review of the constitutionality of EU legislation, that almost naturally launches the series of articles on the EU Judicial Architecture in Part II, which in turn leads to Part III on Judicial Protection of Individuals. Part IV on Competition and State Aid more or less stands on its own, even though the three state aid chapters are nicely complementary. The final chapter is the odd one out, though. The Title is promising enough – Studies on EU Law and Economic Integration – but the three chapters, though each quite interesting in and of themselves, are beyond a common theme. The Andean Community, the Keck case law and the precautionary principle simply do not really fit together in any coherent narrative.
Yet, overall the selection appears well considered, and as indicated above still very much relevant for the current legal debate. Moreover, several chapters are derived from prior contributions to a number of Festschriften, which are often even in well-stocked university law libraries difficult to obtain or consult. Finally, the various chapters are introduced and put in a broader perspective in an engaging Foreword by Koen Lenaerts, the current vice-president of the Court, who is not only the author’s current colleague on the bench, but also stood together with judge José Luís Da Cruz Vilaça at the creation of the CFI,
Part I on EU Constitutional Law opens with a 1991 article on the relation between Constitutional Law and Community law in the author’s native Portugal. All too often the academic debate tends to focus on the most vociferous constitutional courts and their legal orders, and most notably Germany and some of the Eastern European countries. Against that background it is refreshing to be reminded about the often more subdued, but equally fundamental impact the EU legal order has had on a country such as Portugal. The second chapter is the translation of a 1993 Cahiers de droit européen article which ask the question “Are there Substantive Limits to the Amendment of the Treaties?”. Here I have to admit that at the start of the analysis, which annoyingly uses pre-Amsterdam numbering of the Treaties, made me fear for its continuing relevance. However, as I started reading the relevance of the analysis for understanding current cases as the Kadi judgment or Opinion 2/13 on the accession to the ECHR immediately came to mind. And while it would of course have been most interesting to see also these cases fully discussed, the confrontation between the 1993 analysis and the current debate is in itself quite refreshing, even though it requires that the reader himself is knowledgeable enough to draw the parallels. The same goes for the short 2004 piece entertaining the idea of a separate constitutional court of the Union to review acts of the EU legislator, though here some hindsight would have been most welcome – one can only wonder whether the author would still favour such a body after the entry into force of the Lisbon Treaty.
A similar criticism could be leveled at some of the contributions of Part II on the Judicial Architecture of the Union, where the reader may at times be frustrated that more recent evolutions, often meant to at least partially answer some of the issues raised, are left untouched. Yet, here too, there are many little gems that help to better understand the origin and coherence of the EU judicial architecture as we now know it. The 1991 article on the setting up of the Court of First Instance, remains a powerful first-hand witness account of the birth of a new court. The three 1996 articles on the changes brought by the Maastricht Treaty ahead of the Amsterdam IGC are a bit more dated, but is fascinating to discover how they foreshadow debates that are still not settled, such as the added value of specialized courts of the Union.
Part III relates to the ‘Judicial Protection of Individuals’. While the Lisbon Treaty has undoubtedly further refined the relevant legal framework the selected articles still remain most noteworthy. The 1998 translation of a text initially included in the Scritti in Onore di Giuseppe Federico Mancini on interim measures offers a very straight-forward insight in the balancing act the EU judge is confronted with when interim relief is sought. The second article is the translation of another Festschrift contribution, this time from 2010, tackling the sometimes difficult to understand case law on who is directly concerned by a decision addressed to a Member State relating to Community Funds, which have given rise to the various Regione Siciliana judgments of both the CFI and the ECJ. The third contribution, a translation of a contribution to the Mélanges en homage à Georges Vandersanden of 2008, is the odd one out. It deals with the application of Article 6 ECHR to ‘Posts in the Civil Service’. While the contribution is perhaps a bit too thin on EU law to be included in a book on EU Law and Integration, it nevertheless is a quite interesting article on a rarely studied topic.
The fourth Part deals with competition and state aid law. The Part opens with three articles previously published in the European State Aid Law Quarterly. The first one deals with the scope of the obligation resting on the national court to order recovery on the basis of Article 108(3) TFEU. Again the article has the merit of giving context to what is still a very controversial subject of EU law, but precisely because of the ever-evolving case law of the Court in this field the article no longer appears very useful for practitioners. The 2006 contribution on regional selectivity, in light of the Azores case, however, is a very delicate analysis of the positions taken by the various actors in that case, and still a very useful starting point for anyone seeking deeper understanding of that landmark judgment. The final state aid article dates from 2009, and deals with the concepts of material selectivity and distortion of competition in state aid cases. In particular the latter issue is often underdeveloped, both in legal literature and in the Commission’s practice – so that the article serves as a refreshing antidote. It makes one wonder, though, what the author thinks of the very recent judgment in Eventech rejecting AG Wahl’s suggestion to rethink the condition of effect on interstate trade. The final contribution of the chapter, a translation of an article included in the Mélanges en hommage à Panayotis Soldatos, deals with a very important, but highly specific issue of competition law: the duration of non-compete obligation in full-function joint ventures.
The final part V – perhaps overly ambitiously – labeled ‘Studies on EU Law and Economic Integration’ offers three final gems of the scholarly diversity of José Luís Da Cruz Vilaça. The first contribution offers a very interesting insight in the inner workings of the Andean Community, the EU-inspired regional integration organisation set up by Bolivia, Colombia, Ecuador and Peru. The only major drawback, however, is the fact that developments after 1998 are not taken on board, whereas the various predictions and speculations could very much benefit from a reality-check more than fifteen years on. The second contribution is a short, but highly insightful article on the application, or lack thereof, of the Keck case law in the field of the free provision of services. A mere 14 pages long, it makes me want to revisit everything I know on the relation between the free movement of goods and the free movement of services. Finally, the last contribution of the book is – as also noted in the foreword – a ‘classic’ of European legal literature. The chapter republishes the in-depth analysis of the precautionary principle in EC law, in particular in the light of the landmark judgment in the Pfizer case, which I still consider as one of the most important judgments made by the CFI. As Koen Lenaerts and I have argued elsewhere the case lays the groundwork for a democratic legal order where the assessments of scientists are given their due weight, without, however, displacing the primacy of the democratic political process.
A book with the collected works of one author inevitably runs the risk of being piecemeal and out-of-sync with the latest developments. However, in this case these drawbacks are more than cancelled out by the often still very astute argumentation by the author, whose historic predictions – with the benefit of hindsight – more often than not get an aura of wisdom. Anyone with a broad interest in EU law should consider reading the book as a way of embarking on a trip down memory lane, only to come out of it full of renewed insights to better understand the never-ending barrage of new cases.