*** LEONARD BESSELINK, FRANS PENNINGS, SACHA PRECHAL (editors): The Eclipse of the Legality Principle in the European Union. Kluwer Law International (PO Box 316,
2400 AH Alphen aan de Rijn, Netherlands. Email: kluwerlaw@turpin-distribution.com -
Internet: http://www.kluwerlaw.com ). “European Monographs” series, No. 75. 2011, 312 pp. 105€.
ISBN 978-90-411-3262-8.
Is the principle of legality under a state of siege in the European Union? This question is of crucial importance. For legal experts, the standardising concept guarantees in democratic countries the protection of citizens against the arbitrary use of power by the authorities, “by demanding a legal basis (which must also be of a certain level) to underpin the legitimacy of action taken by the state”. This concept of consubstantiality needs to be checked to see whether it is being respected in democratic regimes in these times of multilevel governance, of which the Union is perhaps the most developed example. Twenty-one legal experts mainly working in close collaboration with the University of Utrecht researched the subject for three years and held a conference on it two years ago. The research developed in this book is indeed of an excellent intellectual level.
The key question is one of establishing whether the main functions of legality - the endorsement, allocation and regulation of the exercise of public authority - are still being fulfilled in the context of interconnectedness, interaction and mutual dependency between the different judicial orders of the Union and the European Court of Human Rights and the member states, which are all examined in the different contributions made in this book. Nonetheless, the authors are also aware that in order to survive, the principle of legality requires a rigorous re-examination of its scope and application. These authors are not simply content to tackle fundamental democratic questions such as who ultimately enjoys legitimate power in order to be able to lay down legislative acts through this power and who exercises public power over citizens. In an effort to provide comprehensive answers that gel with the era in which we live, the authors also look at the urgent European problems that undoubtedly have an impact on democracy prevailing in the Union and its member states. They therefore locate legality in the context of the exercising of the precautionary principle and the current scope in which the public authority exercises this principle on the basis of Parliamentary approval. In the same connection, the authors examine to what extent the European Union can provide a legal basis for the action taken by member state authorities, in the absence of such a basis, within the national legal order. It also seeks to analyse the constitutional position of the independent regulators and requirements stipulated in the jurisprudence of the European Court of Justice and the European Court of Human Rights, in the context of the exercising of public authority. Other themes are also tackled such as the question of whether legislative results can be coherent in an area as sensitive as equal opportunities. It also explores the question of whether the directives on involving workers are implemented transparently, with legal security and efficiency. Other questions involve social partners in the decision-making processes when new instruments are used such as the open method of coordination. These questions also bring to the fore the “ de facto harmonisation” of the national criminal legal systems and the pre-eminent role played by the Union in the sphere of data protection.
In his general conclusions, Leonard Besselink, a professor of European constitutional law at the University of Utrecht begins by pointing out that it is clear that, “the principle of legality does not share the same scope or status in all the different member states”. Democratic legitimacy obviously draws from Parliamentary legality to a greater or lesser extent as defined by the member states, with discretionary power exercised by the respective executives. According to Besselink, the current era is also characterised by “the appropriation” of the principle of legality as illustrated by the jurisprudence of the European Court of Justice, which emphasises that, “ the question of competency in Community law is not merely aimed at providing a legitimate democratic basis to the exercise of authority over citizens but rather towards operating the division of power between the Union and its member states”. Professor Besselink draws a number of other conclusions regarding the quality of legislation (particularly in light of domains that are not within the scope of the European Parliament) and alternatives to democracy, such as expertise and society. He confirms that the principle of legality can effectively be eclipsed and that the legislative process on a number of different levels in the Union is confiscated by the respective national executives. This raises the following question, which would indeed in itself provide enough food for thought for an entire book, “are European citizens in member states prepared to provide the appropriate European mandate when leaders apply Community law, without a national mandate and possibly in confrontation with the preferences expressed by representative national bodies?
Michel Theys
*** ANTHONY ARNULL, CATHERINE BARNARD, MICHAEL DOUGAN, ELEANOR SPAVENTA: A constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood. Hart Publishing (16c Worcester Place, Oxford, OX1 2JW, UK. Tel: (44-1865) 517530 -
fax: 510710 - Email: mail@hartpub.co.uk - Internet: http://www.hartpub.co.uk ). 2011, 634 pp., £75.
ISBN 978-1-84946-046-0.
In this collection of essays, twenty-seven of Professor Dashwood's legal colleagues pay homage to him. He recently combined a brilliant academic career with that of a European civil servant. He had at different times taught at the universities of Glasgow, Leicester and Cambridge, where he is now teaching at Sidney Sussex College. Dashwood has also been a legal adviser and first Attorney General of British nationality for many years and was also director of the Legal Service at the Council. In his role he worked from the very first “Delors package”, in the Maastricht Treaty, the Uruguay Round and the World Trade Organisation, in addition to the accession treaties of Austria, Finland and Sweden. Professor Dashwood also found the time to work as a lawyer at the end of the 1990s, in which he defended the British point of view in a number of different cases at the Court in Luxembourg. He was the founder of the prestigious European Law Review and wrote many authoritative books. Therefore it is not that astonishing that his colleagues and friends considered it opportune to pay homage to his professional achievements that have been quite extraordinary. All of these contributions are more or less written on the scientific basis of his perception of the Union as a, “constitutional order of states”. On this basis, some of the contributions focus on the “constitutional fabric”. His former colleague at the Secretariat General of the Council, Jean-Claude Piris, looks at where the Lisbon Treaty might take us. The “legal fabric” is then analysed, with a focus on Luxembourg and reflections made by judges such as Koen Lenaerts and Antonio Tizzano. In the third part of the book, different aspects of European law are reviewed, such as the European citizenship, the role of national judges in implementation of standard legal rules, in addition to social solidarity, criminal law, competition policy and law in the energy arena. The final part of the book looks at Europe's place in the world and its participation in international agreements, its relations with its neighbours and the action it takes in fighting against terrorism.
(PBo)
*** OSWALD JANSEN, BETTINA SCHONDORF-HAUBOLD (Editors): The European Composite Administration. Intersentia (31 Groenstraat, B-2640 Mortsel. Tel: (32-3) 6801550 - fax: 6587121 - Email: mail@intersentia.be - Internet: http://www.intersentia.be ). 2011, 582 pp €99. ISBN 978-94-000-0098-8.
This book is the result of extensive co-operation between legal experts from the Dutch University of Utrecht and the German University of Heidelberg. It helps provide clarification of the concept of European Composite Administration, which is of German origin. This concept is presented first of all by Eberhard Schmidt-Assmann, Emeritus Professor are the University of Heidelberg, where he heads the Institute for German and European Administrative Law. The book is then structured into three different parts. In the first part of the book, the authors examine ten fields of European administrative law: Structural Funds, European Environmental Law, the law on Plan Protection Products, financial services in light of insider dealing, European Veterinary and Food Law, European Aviation Law, the law on Police and Customs cooperation, as well as the laws on Product Safety, Transnational Water Management and Public Access to Documents. The second part of the book focuses on acts and procedures, with contributions analysing the Transnational Administrative Act, the procedure of Mutual Administrative Assistance in the European Union, the Administrative Decision as a means of normative law making, the role of inspections and finally EC Grant Management. Finally, the third part of the book looks at administrative structures and legal protection, with contributions focusing on the Voidable Decision as a Form of Legal Protection, the system of Legal Protection and Liability in EU Law, the role of Human Rights in the Transnational Cooperation in Criminal Matters trans-national principle of Ne bis in idem.
(PBo)
*** DANIELE CARAMANI, OLIVER STRIJBIS: Discrepant Electorates: The Inclusiveness of Electorates and Its Impact on the Representation of Citizens. Institute for Advanced Studies (Library, 56 Stumpergasse, A-1060 Vienna. Tel: (43-1) 59991-237 - fax: 59991-555 - Email: library@ihs.ac.at - Internet: http://www.ihs.ac.at ). “ Reihe Politikwissenschaft - Political Science Series”, No. 124. 2011, 22 pp. €8.
In this brief study, two political scientists from the University of Saint-Gall examine the fundamental question for democracy, that of electoral inclusion and its impact on the representation of citizens, which should not necessarily be confused with the people who actually vote. Electoral laws vary in their inclusion or exclusion of expatriates or émigrés and the right to vote granted to residents that do not have the nationality of the country in which they live. Laws on nationality vary with regard to the right to vote for expatriates and the inclusion of non-national residents in elections. The authors illustrate the rate of discordance between laws on voting and nationality in light of the prevailing situation in twenty-two OECD countries. This enables the authors to argue that the differences between the political and national communities are essentially down to laws on naturalisation, which electoral laws have until now been unable to correct the situation.
(MT)
*** NICOLÒ CONTI: The Radical Right in Europe, Between Slogans and Voting Behaviour. Institute for Advanced Studies (Library, 56 Stumpergasse, A-1060 Vienna. Tel: (43-1) 59991-237 - fax: 59991-555 - e-mail: library@ihs.ac.at - Internet: http://www.ihs.ac.at ). "Reihe Politikwissenschaft - Political Science Series", No. 123. 2011, 20 pp. €8.
Nicolò Conti is an assistant professor at the faculty of Law at the University of Sapienza in Rome. In this brief publication he analyses the attitudes of the far right with regard to the Union. He focuses on the level of congruence between programmed declarations of the parties and the way in which their MEPs behave during elections. He demonstrates that although extreme right parties represent a source of opposition to European integration, they express their dissent at the European Parliament by using the normal rules laid down, to the extent that, according to the author, they are much more complicit with other political formations, such as both the left and right, than all the rhetoric and the Eurosceptic declarations their leaders would like the public to believe.
(MT)
*** NACIMA BARON-YELLES: L'Espagne aujourd'hui. De la prospérité à la crise. Groupe De Boeck (39 rue des Minimes, B-1000 Brussels. Tel: (32-2) 5480713 - fax: 5480714 - E-mail: commande@deboeckservices.com - Internet: http://www.deboeck.be ). "Le point sur… Politique" series. 2010, 168 pp. €12. ISBN 978-2-8041-6052-4.
Is Spain now condemned to live at least “a lost decade”? It is to this question that this geographer specialising in town and country planning attempts to provide an answer. This university lecturer at the Université Paris-Est, uses a broad range of different information (economic, political, social and environmental data, etc.) to shed light on the, “generally systemic contemporary collapse” that is currently occurring. The seven major thematic chapters (demographic transformation, social dynamics, an economy in shock, a shaken up political system, a new urban mobility, the sustainable development dimension and the affirmation of international power) facilitate the analysis of recent transformation processes. Different tools, graphics, maps and an index facilitate reading of this book, which is interspersed by an analysis of the major stakes play.
(MT)
*** La lettre des fédéralistes Rhônalpins. UEF-Rhône-Alpes (c/o Europe direct, 13 rue de l'Arbre-Sec, F-69001 Lyon. Email: uef.fr@gamail.com - Internet: http://www.uef.fr ). 2011, 24 pp, €5.
This special edition of La lettre des fédéralistes Rhônalpins (newsletter) contains the records of the Autonomous University organised by these federalist activists last year. The themes tackled at this event include the role played by local authorities in European construction, the different autonomy represented by Europe's regions and the question of whether regional, cultural and linguistic identities can help towards creating a closer union between the people of Europe. The choice of this theme, explains Jean-Francis Billion, president of the European Federalist Association section was to, “deepen the debate between European federalists and those active in more autonomous communities".
(MT)