Magazine article Renewal

Eurolegalism: The Transformation of Law and Regulation in the European Union

Magazine article Renewal

Eurolegalism: The Transformation of Law and Regulation in the European Union

Article excerpt

Lord Denning, one of Britain's most famous jurists, once stated 'when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back' (Denning in Bulmer v Bollinger). What R. Daniel Kelemen shows in Eurolegalism is that this legal tide is both qualitatively different from the law-making which went before and, paradoxically, given the expressed intent of most European policy-makers to avoid US-style litigation practices, can be described as distinctly American in style (p. 92).

Traditionally, statutory law in European states, including the United Kingdom, created discretion for the executive, subject to very limited overview by courts. As a consequence, implementation relied less on courts, lawyers and private enforcement and more on opaque networks of bureaucrats and other interests that developed and implemented regulatory policies in concert (p. 15).

Conversely, the American way of law could be described as 'adversarial legalism'. Its defining feature was the adoption of detailed prescriptive statutory rules which were subject to frequent private litigation and active judicial review (p. 13). Kelemen argues that the style of EU-law is similar and that the EU's modus operandus for dealing with an issue is to legislate--'it seems that nearly everything the European Union touches turns into law' (p. 19).

Why has the EU become the propagator of a style of law different from that which originated in many of its constituent members? The author argues that the cause is the fragmented structure of governance in the EU (p. 26). He notes that the weakness and fragmentation of the EU's federal institutions parallels that of the federal institutions of the early years of the United States. The lack of resources available to the latter led them to promote litigation-based governance (p. 27).

Similarly, EU institutions have an incentive to promote strict rule-based legislation enforced by private actors and national courts. They do not have a bureaucracy of the requisite scale to direct or to monitor national actors (the total number of European civil servants approximates that typically employed by a mid-size European town (p. 27)). For example, one of the European Commission's existing administrative tasks is to pursue member states which fail to adopt agreed EU legislation. Recent research has found that they are only able to bring about a tenth of such processes to a conclusion (Smith, 2008, 778).

At national level, the overlap in identity in many member states between the legislature and the executive means that lawmakers can use their command and control powers to ensure that those implementing generally-worded laws do so in a way that meets lawmakers' intentions. Conversely, the legislators in the EU--the Commission, Parliament, and indeed other member states in the Council--cannot be sure how an individual member state will apply an ambiguous law.

The desire on the part of member states to obtain the benefits of a single market in particular has led them to support the development of 'Eurolegalism'. Reducing discretion and empowering private actors by giving them legally-enforceable rights reduces the chances of 'cheating' to protect national firms. A member state which breaches the collective legislative position, illegitimately favouring its own national actors, can then be sued by the private actors harmed by such 'cheating'. These private actors enforce the collective agreement between states.

The book examines three sectors in detail: competition law, securities law, and disability rights. In each, the author shows a movement in European rules from bureaucratic discretion to a rights-based approach. These sector-studies are backed by an overview of the legal industry in Europe, where developments appear consistent with a more litigious environment. He notes a sharp increase in the number of lawyers during the last decade, an increase in the number of cross-border mega-legal firms, and sharp rises in the volume of cases heard by the European courts (p. …

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