Using examples to illustrate what Cicero means. I have in the past cited in my editorials Cicero's maxim, "summum jus, summa injuria", meaning that application of Community law that neglects the intentions of the legislator and the spirit of the principles of the common market could, at the end of the day, lead to decisions that are unjust. Some readers have asked me to clarify this concept. The literal meaning is obvious: maximum justice may lead to maximum injustice. It is not, however, an easy task to explain that application of the law may lead to injustice.
I have no legal training and, what is still more to the point, I am not Cicero. Nonetheless, I believe examples may be used to illustrate what Cicero's concept means. An example given by Cicero himself speaks for itself. A Spartan king had concluded a 30-day truce with his enemy, but at night he devastated the other's territory saying the agreement was on days, not nights. Summum jus, summa injuria. Apart from dialectical shrewdness, I was marked, as everyone is, by events in my youth, and I began to understand Cicero's maxim with the story of a judge who was successful in getting members of the Mafia off from conviction by using minimum technical irregularities of procedure. After a long and sensational trial, one of the first maxi-trials involving hundreds of Mafiosi, he had overturned the Court's decision because, on some of the official papers, the stamps used were not quite as they should have been. Dozens of murderers and drug traffickers were set free, ready to begin again, just because the wrong rubber stamps were used or because of other minor technicalities. And, even today, that judge continues to defend the impeccable legality of his decisions. Summum jus, summar injuria.
All in the past, all that? Not really. Just a few weeks ago, a court in Milan released 59 people accused of belonging to the "organised crime" network, because one of the 1,600 pages of the arrest warrant had not been printed in the text forwarded to the Court. The examining magistrate immediately took the missing page to the court (as well as the floppy disk proving that the page did exist in the original document, and that it was simply missing due to a technical printing error), but the court reamined inflexible. The warrant for arrest was cancelled, and its cancellation could not be overturned a posteriori. So that is how an investigation that began in 1997 and which had resulted in the dismantling of a group responsible for murder and arms and drugs trafficking, was cancelled. Summum jus, summa injuria.
Priority to the Union's general aims. One would be quite right to ask: What has all this got to do with Community legal affairs? Nothing at all, that's obvious. But if the concept is clear, then Cicero's maxim can also be a subject of reflection for the EU. The evolution of case law at the EU's Court of Justice appears significant and particularly instructive. After having lain the indispensable foundations for Community legal order with fundamental rulings, the Court has been able to evolve towards an application that increasingly takes into consideration the spirit of the texts. With strong pillars in place, it interprets certain essential principles, like that of the free movement of goods, at the same time taking into account the Union's general objectives. A few examples may prove useful at this point:
The Court had first of all ruled that certain sales arrangements for goods could be an obstacle to the free trade in goods - for example, Saturday closing. The judgement was obviously wrong. Shop closing times in any EU town or region was in response to reasons that have nothing to do with the intention of hampering "free movement": - traditions, religious norms, social rules … Well, the Court recognised this and had the political courage to correct its initial interpretation. In its Keck/Mithouard decision of 24 November 1993, the Court said it should be considered that, contrary to what has been ruled so far, the application to products from other Member States of national provisions that restrict or ban certain sales arrangements is not apt to directly or indirectly hamper the trade between Member States, either at the present time or in the future, provided that they affect in the same way, in law and de facto, the marketing of national products or of products from other Member States. These regulations therefore escape the field of application of Article 30 of the Treaty.
Non-economic factors. From this, a growing number of rulings show that the Court considers the fundamental rule of free movement of goods is not necessarily an absolute principle but may be the subject of some derogation. Professor Thiébaut Flory (University Paris XII) presented a study, during a Jean Monnet colloquium, on the non economic factors in the case law of the Court of Justice.
He recalls that the "Cassis de Dijon" ruling in 1979 already laid down the principle whereby certain obstacles to the free movement of goods are lawful in so far as they appear necessary "to meet the imperative requirements relating above all to the effectiveness of tax controls, the protection of public health, the fairness of commercial transactions and the defence of consumers". Later case law proved that this list of imperative requirements "is not restrictive", as the Court has extended it to other non-economic areas, mainly social policy, cultural policy and the environment. Professor Flory above all points out that, after the "Danish bottles" and the "Wallon Waste" rulings, "environmental protection takes preference over the principle of the free movement of goods".
Other successive decisions by the Court authorise some straying from other fundamental rules of the Treaty. For example: a) the Finnish monopoly for management of vending machines is lawful because of its objectives; b) some restrictions to the free provision of services, practised by social security bodies in several Member States, are justified for imperious general interest reasons; c) Sweden was entitled to apply restriction on the free movement of a chemical product in order to protect public health and safety, even in the absence of a Community regulation. The principle is clear: - it is not enough to note that a measure hampers the application of any common market principle to condemn it. There must also be an assessment made of whether the obstacle fulfils a general and justified requirement. It seems obvious that the European Commission should take such a guideline into account.
Sport cannot be excluded. In some cases, the new guideline has not yet been implemented. For example, the Court of Justice has not had the opportunity to apply to sport the principle whereby considerations of general interest may take primacy over the inflexible application of any common market rule, which (given the principles affirmed by the Heads of Government) appears logical. In the Bosman ruling, the Court judged that the transfer fees paid when one footballer is transferred from a Member State club to that of another Member State represented … an obstacle to the free movement of persons! It thus ignored the meaning and the aim of such transfer indemnities which in no way aimed to hinder the free movement of workers (such indemnities also exist for national transfers, and no-one has ever dared to suggest that, for this reason, the free movement of workers does not exist in our Member States) but rather to safeguard a number of fundamental principles relating to the "specific nature of the sport": to encourage the training of young players, protect the regularity of matches, and restrict the power of money. Transfer fees may be criticised or challenged under the rules of competition or other Treaty provisions, but considering them as a hindrance to the free movement of persons does not seem conform to the way in which the Court's case law has evolved. Since the Bosman ruling, the world of football has been forced - under the watchful eye of the European Commission's services - to define a system that replaces the one dismantled, in order to re-establish in some way the respect of sporting and social requirements that have taken a blow: to encourage the training of young players and guarantee their protection, restore as far as possible the stability of contracts in order to safeguard the regularity of matches, and so on.
Exaggeration by officials? The European Commission has made considerable progress in the directive on the specific nature of sport and the interests of our youth. We no longer read today the absurd statements that were so fashionable in the period just after the Bosman ruling, and one can only hope that, after being so harrowing, the discussions under way on football transfers will have results that are acceptable for both sport and for Community law. But the Commission's determination to impose technical details for application still give rise to astonishment. For example, it admitted that "training indemnities" are lawful when a club wants to conclude a contract with a young player trained by another club, specifying that such payments must be calculated according to objective and transparent criteria. That's all very well. Then why should officials want to determine the way such a calculation is made themselves? Here again: it is acknowledged that, if a contract is broken unilaterally, a footballer must pay compensation or undergo "a sports sanction". Is it really the role of the Commission to fix the duration of the sporting penalty? It is difficult to understand how an ordinary official could consider he or she is able to truly assess the correct amount to be paid as a training indemnity and the duration of a sports sanction. Pernickety rules mean clubs have to give way to blackmail by the stars. They strengthen the demands made by football agents (the interests of the game and of the young players being their last concern; their first concern being to swell the percentage due to them) and disproportionately increase the power that money has to the detriment of the small and average-sized clubs and of sporting values, and to the profit of around fifty super-stars, their money-grabbing agents and the other rich and over-powerful clubs.
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