*** DENIS MARTIN: Egalité et non-discrimination dans la jurisprudence communautaire. Etude critique à la lumière d'une approche comparatiste. Bruylant (67 rue de la Régence, B-1000 Brussels. Tel. (32-2) 5129842 - Fax: 5119477 - Internet: http://www.bruylant.be ). "Centre des droits de l'homme de l'Université catholique de Louvain" series. 2006, 669 pp, €90. ISBN 2-8027-2267-0.
Some books inspire humility in their readers. This masterly volume is a prime example, which puts a journalist trying to describe it in the difficult position of wanting to do it justice and worrying about not managing to do so, of writing too superficially and over-simplifying. It is true that doctorate theses are always troublesome to scan. This doctorate for the 'Université catholique de Louvain' in Belgium is particularly difficult to describe because it is extremely dense and embraces a subject of such huge complexity, whose sheer scale is not understood until one actually reads the book. Nothing is more fascinating and deceptive than equality - this sentence, culled from the conclusions presented by Advocate-General Lagrange in 1963 in the first Court of Justice ruling interpreting the concept of discrimination in the EEC Treaty, is found at the start of the book and makes it clear that readers should prepare to enter a shifting legal domain where apparent milestones can disappear like mirages and other optical illusions under the author's inquisitorial gaze…
It is still possible to give a clear definition of the concept of discrimination in EU law? What is the value of the principles of non-discrimination on the one hand and equality on the other? These two questions underlie the research carried out by Denis Martin in his … leisure time. Our author is in fact a respected member of the European Commission's Legal Service, which means he has excellent understanding of the Court of Justice where he has represented the Commission in more than 150 cases. An expert, in other words, who looks back at the history of the two principles in Court of Justice case law from 1954 to 2006 in all fields of EU law. He divides the time frame up into different periods and this chronological approach enables him, as his promoter, Marc Fallon, explains in a highly laudatory preface, to understand the positive and negative force lines of the case law and identify the challenges now facing the Court of Justice. He examines the positive side, but also the negative because the author makes what Marc Fallon rightly describes as a striking critique. From one ruling to the next, the author demonstrates that the statements formulated by the Court of Justice and the Court of First Instance on the principle of equality and how it meshes with particular expressions of it like banning discrimination of various types are at times very ambiguous, particularly when it comes to indirect discrimination. He observes a 'silent evolution (revolution)' of case law concerning the justifiable nature of discrimination when it comes to the free circulation of individuals and the freedom to supply services. In Denis Martin's view, differences in case law in different domains and the evolution of case law within domains, lead one to question the very concept of discrimination in EU law. Moreover, the Court of Justice reasoning is becoming more casuistic, giving rise to perplexity and questioning not only of doctrine but also of some of its Advocate-Generals . Whence the author's feeling that the concepts of equality and non-discrimination are now, more than ever, concepts in search of meaning and identity.
This setting of the European Court of Justice case law against a historical backdrop leads the author, and his readers, to note growing incoherence in both solutions and reasoning, resulting in a excessively casuistic method, which leads us to another fundamental issue - do supreme courts of other legal orders experience the same problems in interpreting the principles of equality and non-discrimination existing in their own legal order? The entire second part of the book takes an in-depth look at the evolution of these two principles in the case law of the European Court of Human Rights and the supreme courts of Australia, Canada and the United States. The author points out, for example, that the attitude of the European Court of Justice to direct sexual discrimination is 'clearly more rigorous' than that of the European Court of Human rights. To conclude, Denis Martin argues that the European Court of Justice is the supreme court which has set the fewest theoretical constraints on its intervention and its subjective interpretation, and that even through those who penned the Treaty (and the legislators) have not always helped it very much, its case law is constructed on a blow by blow basis at the cost of taking serious liberties with the concepts of direct and indirect discrimination. Among the several tools described in the third part of the book to correct the shape of concepts in search of meaning, the author argues forcefully that the Court of Justice should align itself with other supreme courts by allowing the drawing up of dissident opinions, which would undeniably help it form rulings based on clearer majority reasoning and therefore increase the persuasive power of many rulings.
Michel Theys
*** JACQUES FLOCH: La médiation: un nouvel espace de justice en Europe. Délégation pour l'Union européenne de l'Assemblée nationale (Boutique de l'Assemblée nationale, 7 rue Aristide Briand, F-75007 Paris. Tel: (33-1) 40630033 - Internet: http://www.assemblee-nationale.fr ). "Documents d'information" series, No. 3696. 2007, 186 pp, €5. ISBN 2-11-121881-9.
This newsletter compares and contrasts the way mediation has been developped as an effective way of settling disputes in European countries, whether in terms of family issues, trade disputes or in the social arena. French parliamentarian Jacques Floch supports the draft directive published by the Commission to structure 'this new areas of justice' in Europe, suggesting that it would benefit from being granted wide scope to ensure legal coherence and security.
(PBo)
*** ANNE WEYEMBERGH, SERGE DE BIOLLEY (Eds.): Comment évaluer le droit pénal européen? Editions de l'Université de Bruxelles (26 av. Paul Héger, B-1000 Brussels. Tel: (32-2) 6503799 - Fax: 6503794 - E-mail: editions@admin.ulb.ac.be - Internet: http: //http://www.editions-universite-bruxelles.be ). "Etudes européennes" series. 2006, 242 pp, €21. ISBN 2-8004-1379-4.
This is the first publication produced by the European academic criminal law network 'Eclan', the European Criminal Law Academic Network, launched by the 'Institut d'études européennes' at the 'Université libre de Bruxelles' and supported by the EU 'Agis' programme. Under Eclan, national researchers and experts study the European criminal area from a new angle, namely assessing action planned or actually carried out in police cooperation and criminal court cooperation at EU level. The latter is a relatively new area, which is why the first part of the study revolves around the experience of other legal bodies, like the Council of Europe and the United Nations. The second part of the book actually assesses instruments under the third pillar of the EU for EU member states and candidate countries alike. Based on their comparisons, the editors made recommendations in the conclusions and suggest further areas of study.
(PBo)
*** JAAP W. DE ZWAAN, FLORA A. N. J. GOUDAPPEL (Eds.): Freedom, Security and Justice in the European Union. Implementation of the Hague Programme. T.M.C. Asser Press (P.O. Box 16163, NL-2500 BD The Hague. Tel: (31-70) 3420300 - Fax: 3420359 - Internet: http://www.asserpress.nl ). 2006, 292 pp. ISBN 90-6704-225-0.
The concept of an 'area of freedom, security and justice' came into existence with the Amsterdam Treaty, which crystallised reinforcement and cooperation in these domains following the opening up of internal borders. Since then, the movement has been backed by the Tampere Programme, extended by The Hague Programme. The Hague Programme was the subject of a conference organised by Rotterdam Erasmus University's law faculty's European Law Department in 2005, which gave rise to this book. The conference was attended by members of national and European civil services (like Commissioner Frattini whose opening speech is reprinted in the book) and researchers and members of NGOs, with the aim of studying The Hague Programme (leaving aside civil law cooperation issues). The book addresses key areas of the area of freedom, security and justice in three sections - border control and visa policy; asylum and immigration; and police and criminal cooperation. These are subdivided into a dozen more specific areas which are then studied by experts, areas like managing external borders (Schengen, plan to have European border guards, etc). The book provides a detailed vision from various angles of the current situation and suggests possible changes, despite the risk of some inevitable redundancy in such a wide subject matter whose different areas - looked at from different viewpoints by different authors - inevitably impinge on one another at times.
(FRo)
*** HELMUT KOZIOL, BARBARA C. STEININGER (Eds.): European Tort Law 2005. Springer-Verlag (P.O Box 89, 4-6 Sachsenplatz, A-1201 Vienna. Tel: (43-1) 3302415 - Fax: 3302426 - E-mail: books@springer.at - Internet: http://www.springer.at ). "Tort and Insurance Law Yearbook", No. 5. 2006, 771 pp, €178. ISBN 3-211-31135-1.
This is the fifth book in which the Centre of Tort and Insurance Law and the Research Unit for European Tort Law of the Austrian Academy of Science make a re-cap of changes in tort law covering wrong action for which compensation can be demanded. The book is a compilation of national reports, a comparative study and various essays. The national reports present new developments in tort law and summaries of and commentaries on cases which have been ruled upon in court. The book covers the twenty-three EU member states when it was written (not including Cyprus or Malta), along with Switzerland, Norway and Bulgaria. The essays in this issue mainly cover public authority liability, particularly the question of the extent to which public authorities can be held liable for damages occurring due to a lack of legislation (or failure to apply existing legislation) when it comes to prevention and healthcare, the financial implications of member states' legal responsibility in times of budgetary crisis, and the way liability is decided by the European Court of Justice, which has huge powers in this field. Other essays compare public liability under UK, French and German law, and the impact of the judge and jury system in formulating tort law in the United States. (FRo)
*** MIQUEL MARTÍN-CASALS (Ed.): Children in Tort Law. Part II: Children as Victims. Springer-Verlag (see above). "Tort and Insurance Law" series, No. 18. 2007, 320 pp, €121. ISBN 3-211-31130-1.
The first volume of this book looked at children as causers of damages whereas the second part looks at legislation in European countries on children as victims in tort law, in other words in cases where compensation can be demanded, the important question being whether or no it can be demanded. In deciding whether compensation should be granted, and how much, it is important to know whether the child as victim is subject to the duty of self-protection and if so, whether he or she failed to do so. Recent trends consider children as not being subject to the duty of self-protection because, in situations like road accidents at least, by their very nature children are not always able to ensure their own preservation. The book includes national reports based on the same questionnaire and is illustrated by rulings from the following countries: Germany, Austria, Belgium, Spain, France, the UK, the Netherlands, Portugal, the Czech Republic, Sweden and Russia. Alongside a concluding essay by Gerhard Wagner gives an overview of children as victims in tort law at European level, the book also includes a comparison by Miguel Martín-Casal of the answers to the questionnaire. (FRo)
*** ALAN LITTLER, CYRILLE FIJNAUT (Eds.): The Regulation of Gambling: European and National Perspectives. Brill. (2 Plantijnstraat, P.O Box 9000, NL-2300 PA Leiden. Tel: (31-71) 5353500 - Fax: 5317532 - Internet: http://www.brill.nl ). 2007, 265 pp, €90. ISBN 90-04-15459-0.
The gambling industry is clearly a sector of the economy and should therefore respect the four freedoms of circulation of the European Union. It is, however, also an industry that is often seen as a case to itself. Stakeholders in the gambling industry will fight tooth and nail with European Commission and European Parliament over its legal framework and its inclusion in the Services Directive or operators wanting access to foreign markets at loggerheads with those wanting to preserve the dominance of national companies. There are many sources of conflict among different legal systems both because of the huge range of different types of betting and gambling and differences between national and EU legislation and because of technological advances (betting on the internet, for example). Pierre Larouche warns that it would be totally wrong to see the debate at the moment as a legal conflict concerning gambling regulations which would end in decisions being made at national level or by the European Community. This book arose from a conference in 2005 attended by representatives of the Commission, private gambling operators, national lotteries and four member states, to study interaction between national and European legislation (mainly primary regulation). To this end, it looks back over changes in EU rules affecting gambling from the viewpoint of the Commission, of private and national operators and of academics, before studying in more detail changes in national gambling rules in Belgium, the UK, France and the Netherlands. (FRo)