Alfred Denning, one of Britain’s most famous jurists, once stated “when we come to matters with a European element, the [EU] Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.”
What Daniel Kelemen shows is that this legal tide is both qualitatively different from previous law-making and, paradoxically, given the expressed intent of most European policymakers to avoid US-style litigation practices, is distinctly American in style.
Traditionally, statutory law in European states 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 networks of bureaucrats and other interests that developed and implemented regulatory policies in concert.
Conversely, the American way of law could be described as ‘adversarial legalism’. Its defining feature is the adoption of detailed, prescriptive statutory rules that are subject to frequent private litigation and active judicial review. The author 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,” he writes.
Why has the EU become the propagator of a style of law different from that in most of its member states? Kelemen, the director of the Center for European Studies at Rutgers University in the US, argues that the cause is the fragmented structure of governance in the EU. He notes that the weakness and fragmentation of the EU’s institutions are in parallel to characteristics of the federal institutions in the early years of the US. The lack of resources available to US federal institutions led to the promotion of litigation-based governance.
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 size needed to direct or to monitor national actors (the total number of European civil servants is approximately that employed by a typical mid-size European town). One of the European Commission’s administrative tasks is to pursue member states that fail to adopt agreed EU legislation: research has found that it is only able to bring about one-tenth of such processes to conclusion.
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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, conversely, meets lawmakers’ intentions. The legislators in the EU – the Commission, European Parliament and other member states in the Council – cannot be sure how an individual member state will apply an ambiguous law.
Eurolegalism: the transformation of law and regulation in the European Union
By R. Daniel Kelemen (366 pages)
Harvard University Press €39
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 member states ‘cheating’ to protect national firms.
This 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 studies are backed by an overview of the legal industry in Europe, where developments appear consistent with a more litigious environment. Kelemen notes a sharp increase in the number of lawyers during the past decade, an increase in the number of large, cross-border legal firms, and a sharp rise in the number of cases heard by the European courts.
Nonetheless, he does also find that ‘Eurolegalism’ remains a less adversarial system than its US counterpart. This is because policymakers wish to temper some of the factors that facilitate litigation in the US, such as punitive damages and the ease of bringing class actions. However, he doubts that the system has reached stasis. He finds that many actors, including the Commission, the European Court of Justice, the European Parliament and law firms, are pushing for the system to become ever more adversarial – a trend that tends to be supported by countries such as the UK that have a comparative advantage in the provision of legal services.
Binding or not?
In recent years, the EU has promoted the virtues of non-binding soft law as a guiding model. If this had become the dominant norm, it could be argued that ‘Eurolegalism’ described a process that was waning. The author meets the criticism head-on. He argues that the ‘open method of co-ordination’ is largely a rhetorical diversion, intended to downplay the role of the European institutions. He notes that the bulk of legal norms produced at the EU level in areas such as environmental policy are binding.
While the general argument is convincing, a caveat should be made. Collectively, member states dominate the legislative process and they can be quite sophisticated in deciding when they want binding legal norms.
Directives continue to be the main form of legal norm that they choose. This form of legislation can be drafted in ways that ensure that private actors do not obtain individual enforceable rights. They can also be drafted to ensure that member-state bureaucracies have wide discretion as to both means and outcomes. Directives that deal with issues such as regulating utility industries, for example, where many member states have ownership interests, tend to preserve the autonomy of national bureaucracies.
The ‘open method of co-ordination’ is arguably also an example of selectivity on the part of member states. It is member states, rather than the Commission, that have promoted this approach in politically sensitive domains, such as economic and employment policy. These are areas in which they are interested in sharing experiences but which, in general, they have no intention of subordinating national policy to a collective position.
In Kelemen’s view, the consequences of ‘Eurolegalism’ are neither wholly good nor bad. The important point is that it is restructuring the way things are done in European countries. On the negative side, this entails increased legal expenses, slower regulatory processes, increasingly adversarial relations in policymaking, and forms of judicial activism that bypass the political sphere.
More positively, it is likely to make governments more accountable, increase transparency, increase legal certainty and improve access to justice for previously marginalised groups, including economic actors that are not insiders in a particular member state.
At a systemic level, the effect may be to weaken national styles of economic management that rely on co-ordination. The author’s view is that ‘Eurolegalism’ is more likely to suit Anglo-Saxon than Rhenish capitalism.
There is little evidence from Germany that Eurolegalism has yet directly undermined any of the major institutions of Rhenish capitalism. This may be because Germany’s form of governance is very legalistic, arising from its own federal nature, and its legal culture is highly litigious. Its tradition of industrial relations may be protected by this very legal culture.
What may be more difficult is enhancing or protecting social democracy in other nation states, such as the UK, where historically the recognition of labour was not based on positive rights.
EU laws are currently pretty neutral on the rights of labour, due to the varied nature of national legal regimes. But there are knock-on effects for German social democracy. Eurolegalism facilitates foreign competition based on reduced labour rights and eases the exit of capital. It may thus indirectly weaken Rhenish capitalism.
Andy Tarrant is a senior parliamentary assistant to Gregg McClymont, a Labour member of the British parliament.