By Joxerramon Bengoetxea. Oxford: Clarendon Press. 1993. Pp. xvi, 294. $49.95.
In the context of the abundant literature on European Community (EC) law -- which is mainly devoted to describing, often uncritically, the decisions of the European Court of Justice (ECJ) -- Joxerramon Bengoetxea's(1) book provides a welcome contribution. It attempts to answer some of the fundamental questions concerning the role that the ECJ plays in the development of EC law.
No doubt the ECJ has added significantly to many areas of EC law. It has also been regarded as authoritative by the other EC institutions and has successfully imposed its views on Member States' courts, which in most cases are entrusted with the application of EC law and the solution of conflicts between EC law and Member States' legislation. Although article 177 of the EC Treaty established the ECJ as the ultimate interpreter of EC law, this Treaty mandate did not necessarily provide a guarantee that the ECJ's rulings would generally be accepted in practice. It seems fair to state that widespread acceptance has in fact occurred, despite the ECJ's strong profederalist line on issues such as (i) the competence of EC institutions over areas -- like the protection of the environment -- about which the Treaty was originally silent; (ii) the supremacy of EC law over Member States' legislation; and (iii) the ability of private parties to invoke Treaty provisions and acts by EC institutions that apparently require implementing legislation.
How did the ECJ achieve all this? Joseph Weiler provided one ingenious explanation about ten years ago(2) when he linked the judicial development of EC law with the EC decisional framework: the fact that EC institutions had been unable, for political reasons, to adopt major legislative measures without the consent of the governments of
all the Member States made it possible for the latter to accept the supremacy of EC law and other innovations that the ECJ masterminded. In other words, had EC legislation progressed by majority decisions as the Treaty provided, the Court's caselaw would have come under political challenge. This explanation would now require some adjustment if one intended to confirm it with regard to the present circumstances, because significant developments have taken place in the normative process, mostly through the Single European Act (SEA) and the Treaty on the European Union -- treaties which have come into force after their unanimous acceptance on the part of all the Member States. A series of important decisions have been adopted by the EC Council by majority vote. Nevertheless, while the pace of development of EC law by the judiciary has slowed, the earlier achievements have not been undermined and still remain unchallenged.
Bengoetxea defines his method as follows:
Most of the judgments analysed give a picture of the ECJ as actively
engaging in the European Community project and the aim of this book is
partly to explain how this is possible and to reconstruct the work of the
Court. But the questions framed and addressed are primarily those of a
legal philosopher or legal theoretician and not so much those of a political
scientist or a legal sociologist. My main interest has been to analyse
how the Court has reconstructed EC law and to reconstruct or represent
the work of the Court itself. [p. viii] This approach clearly restricts the author's ability to give an explanation of the Court's role within the EC system. It also limits the scope of his analysis of individual decisions. However, Bengoetxea does not intend to consider only the legal justifications given by the ECJ, which is the main object of Part II of the book; he refers in Part I also to "discovery," which he defines as those
factors that, put together, actually led to the decision as it was reached at
a given point in space and time and to the real process whereby the decision
was reached.... These factors can be of a psychological [nature]
(hence the expression "psychological process"), of a sociological nature
(factors relevant to the explanation of social action), or they can be idiosyncratic
factors: related to the situation and context, or special characteristics
of the institution such as resources, time, working conditions
etc. [p. 114]
Bengoetxea does not go far in the direction of "discovery." He makes one attempt with regard to the Polydor(3) case:
Sometimes the Court does not echo those justifying grounds although one could postulate tbat they figured prominently in its deliberations. For instance, comparative-law arguments or, as in Polydor, arguments from economic consequences: the Commission argued that if the Court's interpretation of articles 30 and 36 of the EEC Treaty were extended to the similar provisions (articles 14 and 23) contained in the
Community's Free Trade Agreement with Portugal, that would lead to a
situation where non-member States might obtain an the rights of Community
membership (in the present case, the doctrine of the exhaustion
of industrial property rights: no trade restrictions justified on the ground
of the protection of industrial and commercial property when the holder
of those rights has already consented to their marketing) without having
to assume the corresponding obligations. [p. 124; citation omitted] Bengoetxea further mentions the same judgment when he notes that "at other times the Court does refer in its justification to substantive and consequentialist arguments of the sort which featured prominently but sotto voce in Polydor" (P. 125).
In Polydor, the Court was requested to determine whether some provisions in the Free Trade Agreement between the EC and Portugal(4) required the same wide meaning as the identically worded articles in the EC Treaty.(5) Another issue was whether private parties could invoke the provisions in the Agreement in judicial proceedings.(6) Several Member States, and to some extent the Commission, took a negative attitude on both issues before the Court. The alleged lack of reciprocity on Portugal's part was one of the arguments supporting their stance; Advocate General Rozes stressed it in her opinion.(7) The ECJ did not rely on the lack-of-reciprocity argument in Polydor, however, and even rejected it shortly afterwards in Kupferberg,(8) another case involving the same Free Trade Agreement. Although the Free Trade Agreement was widely regarded as more beneficial to the EC than to Portugal, it may be true that in Polydor, as Bengoetxea suggests...