Discretion, Sovereignty and Multilateral Trust in European Civil Jurisdiction Law

Recent ECJ judgments on the Brussels-I Regulation on jurisdiction in civil and commercial matters have provoked comments on the Court's treatment of the fundamental interests involved in jurisdiction law generally and on the EC's position in this field in particular. Especially important in this respect have been the Court's pronouncements in the cases of Gasser v. MISAT (2003), Turner v. Grovit (2004) and Owusu v. Jackson (2005) on the nature and scope of the Community system of conflicts of jurisdiction. These cases have profound implications for (a) the balance between legal certainty and substantive justice in individual cases and (b) the balance between Community authority and national competence in the area.

Professor Adrian Briggs in his casenote of Owusu in the October 2005 issue of the Law Quarterly Review ("The Death of Harrods") pays special attention to the second point mentioned. In Owusu, the Court forbade the application by the English courts of the (English) docrtine of forum non conveniens, in cases that had no jurisdictional links with any other Member State than the United Kingdom. Proponents of such application had argued that these cases were did not involve the EC Internal Market to a degree sufficient to warrant application of the Regulation. The Court gave this argument short shrift and professor Briggs writes:

"This marking out of territory by the court was deadly serious. It was intended to warn off those who might advance similar arguments about lack of connection to the internal market to trim or undermine the scope of the Judgments Regulation. It will also serve to prevent those who may advance similar arguments to cast doubt on the treaty basis of Regulations, present and to come, governing choice of law in contract, tort and unjust enrichment, family law, etc. Disparities in any of these areas of national law may, just as speciously, be said to obstruct the internal market. Careful and precise legal arguments about the legal basis for such legislation will be impotent against a boilerplate paragraph, bolted into every judgment, which will say that any disparities between national legislation will impede the functioning of the internal market, and that legislation to eradicate such disparities is therefore within the competence of the organs of the European Union."

Professor Ronald A. Brand makes similar points in a University of Pittsburgh School of Law Working Paper (no. 25/2005, available on SSRN). He interestingly connects the issues involved to broader questions of party autonomy and state sovereignty, labeling the Court's recent judgments a "regression" with regard to the balance between these concerns. Professor Brand writes:

"Recent cases of the ECJ interpreting the Brussels Convention [now the Regulation, JB] demonstrate a federalization of Community law, with the Court clearly trying to unify private international law principles within the Community structure. It is important, however, that this maturation of a multilateral system into a central regime not bring with it the absolutist approach to private international law rules that has otherwise been rejected in efforts to enhance multilateral cooperation and elevate party autonomy."

One central argument raised over and over again by the Court in decisions like the ones cited is the importance of mutual or multilateral trust between the courts of the Member States. This hitherto fairly elusive concept of trust has now been analysed by Felix Blobel and Patrick Spath in their recent European Law Review article "The Tale of Multilateral Trust and the European Law of Civil Procedure". From the article's abstract:

"Critics assert that such a postulate is mere fiction, and question how it can work in the parties' interests. This article explores the nature and function of mutual trust in transeuropean civil litigation, argues that its simulation is generally justified for establishing a single European judicial space, but also uncovers its possible pitfalls and limits."

Readers interested in these topics could finally also have a look at the book I published last month with SDU publishers in The Hague in the Allen & Overy Legal Research Series, called "Judicial Discretion in European Law on Conflicts of Jurisdiction", which tries to deal with these and related issues. The book argues that the Court's rigid interpretation of the Convention/Regulation, granting overriding weight to the values of legal certainty and predictability, has been insufficiently sensitive to the particular national settings in which the rules are to be applied. This lack of attention the informal and contextual dimensions of jurisdiction regimes, the book asserts, is an important cause of significant divergent applications of European rules at the national level.

Surviving Law School and Getting Published: Inside Views from the US

Here's some surprising info from insiders on how to survive law school in the US and on how to get material published in US Law Reviews.

The anonymous Listless Lawyer has advice for first year law students on "how to a) get high grades b) with a minimum of effort", with the important caveat that "free advice is usually worth exactly what you paid for it". Focus on the grades, the grades and the grades (and on friends and fun to stay sane) is what he says, even at certain costs:

"If preparing for class every day isn’t helpful for you, then don’t do it. This will be hard, and probably scary at first, because you won’t want to look stupid in front of the entire class when you’re called upon. So just remember: your goal is not to impress your friends, but to get the highest grade that you can. And grading is blind. Your reputation buys you nothing on exam day."

The website of Columbia University's Law School has this piece on how to get articles published in Law Reviews. The picture is of a system utterly different from European practice. Lots of useful advice such as "submitting an article in December is the functional equivalent of dropping it off a bridge". Just so you know.

The University of Washington's School of Law Marian Gould Gallagher Library also has a good site with tips on how to publish in the States, including rankings of law reviews according to various measures. Have a look here.

Finally: The Keck approach outside free movement of goods (by Christa Tobler)

Many thanks to professor dr. Christa Tobler LLM of the University of Basel (Switzerland) and the Europa Institute here in Leiden for this guest post on the ECJ's recent judgments in the Mobistar and Belgacom cases.

In a judgment handed down on 8 September 2005 (Joined Cases C-544/03 and C-545/03 Mobistar SA v Commune de Fléron, and Belgacom Mobile SA v Commune de Schaerbeek) the Court of Justice of the European Communities for the first time applied the “Keck approach” in a context different from Art. 28 EC. The decision is noteworthy because the Keck argument had made on several occasions before the Court, which, however, was not willing to accept it outside Art. 28 EC. The Mobistar & Belgacom cases concerned taxation in the telecom sector, and more specifically fiscal charges imposed on mobile telephony operators holding an authorisation or individual licence. At issue was Belgian municipal legislation imposing an annual tax on transmission antennae, masts and pylons for GSM (‘Global system for mobile communications’). The lawfulness of these taxes was challenged by telephony operators established in Belgium who argued that they constitute restrictions contrary to EC law on the development of their telecommunications network and on the freedom to provide mobile telephony services. The national court seized with the matter turned to the Court of Justice for a preliminary ruling on this matter. One of the questions referred to the Court concerned Art. 49 EC on free movement of services. It is in this context that the Court applied what can be called a “Keck approach” and – what is more important – in effect found that this is a Keck type of case.

As is well known, Keck is the last of three landmark decisions of the Court of Justice concerning the interpretation of the concept of “measures having equivalent effect to a quantitative restriction to imports” under Art. 28 EC. In Dassonville (Case 8/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837), the Court has held that this concept related to “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”. In Cassis de Dijon (Case 168/78 Commission v France [1980] ECR 347), the Court added that this also included so-called indistinctly applicable measures (that is, measures applying both to domestically and to imported goods), if they could not be explained by mandatory requirements. In Keck (Joined Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097) the Court found it necessary to limit this broad approach by stating that “certain selling arrangements” (that is, measures concerning the circumstances of selling the goods) are not covered by Art. 28 EC to begin with (that is, irrespective of the existence of mandatory requirements). The Keck formula thus established by Court covered measures that “apply to all relevant traders operating within the national territory […] so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”.

After Keck, it was sometimes argued before the Court of Justice that the same approach should also apply in other areas of free movement law. After all, there, too – the argument went - the Court had recognised that “indistinctly applicable measures” could constitute prohibited restrictions. The same view was taken by some academic writers (apparently in particularly in Germany). However, in none of the cases from areas other than Art. 28 EC did the Court agree that the facts could be compared to those of Keck (e.g. Case 384/93 Alpine Investments [1994] ECR I-1141; Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman [1995] ECR I-4921; Joined Cases C-34/95, C-35/95 and C-36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and Konsumentombudsmannen (KO) v TV-Shop i Sverige AB [1997] ECR I-3843). Against this background, the Mobistar & Belgacom judgment presents itself as the long awaited case where a Keck type of case is indeed found to exist by the Court of Justice in a field outside that of Art. 28 EC.

In Mobistar, the question posed to the Court was whether Art. 49 EC (at the time when the facts of the case occurred still Art. 59 of the EC Treaty) must be interpreted as precluding the introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations. As the case concerned taxation, the Court first recalled that at present direct taxation does not as such fall within the scope of the Community’s competence, but that Member States must nevertheless exercise their retained powers consistently with Community law. The Court then repeated its often-made statement that Art. 49 EC “requires not only the elimination of all discrimination on grounds of nationality, against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services” and that this includes “national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State”. The Court now added the following, decisive sentence: “By contrast, measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State, do not fall within the scope of Article 59 of the Treaty.” In relation to facts such as those at issue in the case before it, the Court stated that the disputed “taxes apply without distinction to all owners of mobile telephone installations within the [Belgian] commune in question, and that foreign operators are not, either in fact or in law, more adversely affected by those measures than national operators. Nor do the tax measures in question make cross-border service provision more difficult than national service provision. According to the Court, "there is nothing in the file to suggest that the cumulative effect of the local taxes compromises freedom to provide mobile telephony services between other Member States and the Kingdom of Belgium".

From this seems clear that Mobistar & Belgacom is a Keck type of case in an area outside Art. 28 EC. In fact, the Court’s judgment was not heralded in any way but comes quietly and without loud fanfares. Not only does the Court itself make no reference to Keck, there is also no such suggestion by Advocate General Léger (he thought that Art. 49 EC was not relevant in the case hand because the Belgian rule in question is prohibited under secondary law). With hindsight, the Court’s approach is perhaps not surprising. After all, the Court bases its finding on the general statement – made in many earlier judgments – that Art. 49 EC precludes the application of any national rules “which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State”. This in itself implies that rules that do not make it more difficult - that is, rules with the same effect both in law and in fact – do not constitute prohibited restrictions. This is now explicitly confirmed by the Court in the context of a case that, at the same time, provides an actual example for this approach. Thus: We now know for sure that the Keck approach also applies outside the field of application of Art. 28 EC, at least in relation to services. Whilst we still have to wait for corresponding cases in other areas of free movement (establishment, workers, capital), there is no conceivable reason why they should not follow with time.

(All cited judgments can be found on the ECJ's website)

Private Law Harmonization and Human Rights Law (Dubinsky)

The Winter 2005 issue of the Yale Journal of International Law has "Human rights law meets private law harmonization: The coming conflict" by Paul R. Dubinsky. The article "examines efforts to deploy domestic courts around the world to implement the human rights policies not only of their own countries but of the international community as a whole. It argues that this development has run into a stumbling block not foreseen by human rights advocates who, during the formative years of the human rights movement, all but ignored the field of private international law." Private law scholars similarly ignored human rights law victories in national courts, with the result that "no one was especially alert to the likelihood that advances in human rights enforcement would become a perceived threat to the priorities of global business and others with vested interests in the existing principles of private international law." The result: "two movements at the heart of liberal internationalism in the twentieth century are poised for conflict in the twenty-first." The solution identified by Dubinsky is a new unification effort in a very narrow category of extreme cases labelled "atrocity cases". Have a look in Westlaw or Lexis for the full-text.

Cross-posts and comments

Thanks to EU Law Weblog for listing ComparativeLawBlog in his (her?) sidebar. A good opportunity to inform you that this blog has moved to a new address and is now called The EU Law Blog. Well worth checking regularly, most recently for a discussion of the Commission v Council judgment of September 13th (on which some more later). Thanks also to Transblawg, a weblog dedicated to issues of legal translation, for their listing. Transblawg can be found here. Finally, the comparative law website of the Instituto Politecnico de Beja (Portugal) has listed ComparativeLawBlog among their internet resources; thanks for that!

Some time ago, professor Kenneth Anderson very kindly posted a comment on a notification of his paper on the use of foreign sources by the US Supreme Court. He recommended an article by Roger P. Alford, "In Search of a Theory for Constitutional Comparativism," in 52 UCLA Law Review 639 (February 2005). More information on this and related topics can be found on his weblog Law of Nations. I'll add a link to the sidebar.

Dutch legal action against men-only christian party (Clara Wichmann Foundation a.o. v. State & SGP)

Some legal ‘world news’ from the Netherlands. The District Court in the Hague has ruled on Wednesday in actions against the Dutch State and the SGP Political Party with regard to the party’s objection against full participation of women in political affairs. Background: the SGP party, founded in the Netherlands in 1918 and nowadays consistently holding 2 seats in the country’s 150 seat parliament, allows women to be “extra-ordinary” members, but withholds them a say in the party’s internal organization and is against women standing in elections. Like other political parties in the Netherlands, the SGP receives a government subsidy (ca. 800.000 Euro annually) and free air-time on national tv.

In the action against the State, several organizations that strive for equal treatment of men and women argued that the toleration and active support (through subsidies) by the State of the SGP party amounted to a violation of art. 7 of the Treaty banning all forms of discrimination against women. The action, in the form of a collective claim in tort (art. 3:305 Dutch Civil Code, in force since 1994) was held admissible by the District Court, since the various organizations could be said to represent a valid collective interest, as required by the provision of the Civil Code. This collective interest consisted of “the interest of all, especially of women, to live in a democratic society in which discrimination based on gender – with the result of exclusion from the right to stand in elections – will not be tolerated and in which the State actively protects this interest”. In a telling aside, the Court added: “this interest receives additional weight in view of the fact that it is not at all illusory that other parties will be founded in the (near) future, that will also discriminate against women on the basis of religion. The State should fulfill a guiding role in this field”. Art. 7 of the Treaty being accorded direct effect in the (monistic) Dutch legal order, the Court held that the government committed a tort by not sufficiently fulfilling its requirements. There could be no balancing of the right of women not be discriminated against rights of freedom of association and expression, as the State had acceded to the Treaty without reservations and the Treaty did not allow for any derogations based on competing fundamental rights. The Court was vague about what the State should do precisely to end the situation of conflict (just as it was vague about the exact content of the State’s tortuous conduct and inaction) but held that at a minimum, future subsidy requests should be denied.

A parallel action against the SGP itself was dismissed for lack of interest. The collective interest identified in the case against the State was held not present here because the claim was about the specific right for women to become full-members of the party. The claimant organizations did not represent any such women in individual claims, because no women could be found that wanted to press for membership (in fact, women involved in the SGP had indicated prefering to solve the issues within the party).

The judgments can be found here (in Dutch; summaries and full-text). These are very difficult cases. Courts should, in my view, be reluctant before intervening in the political process, especially when conditions to be placed on political parties are concerned. In this case, parliament and government had long been aware of the SGP’s policy and had never intervened. Context seems to have been all important here, and the Court was clearly afraid that, although at present the SGP is somewhat of a lone curiosity in the Dutch political system, the party could be joined in the near future by new political organizations advocating the exclusion of women on the basis of Islam. As far as the legal treatment of the issues is concerned, the Court’s vague description of the content of the norm actually transgressed by the State, and thus also of the actions required to mend this violation, is remarkable. The Court explicitly agreed with the claimants that ending subsidies might not be sufficient to legalize the situation (see par. 3.42 of the judgment). There are obvious and serious problems with courts telling defendants “you’ve acted in violation of the law, but we can’t exactly tell you how to stop doing so”.

Thanks Mom! Barbara Bush on Katrina's Victims

Have a look at what The Guardian writes:

"Mr Bush, already under pressure for the impression that he has been unable to empathise with the poor, mainly black victims of the disaster, was not helped by remarks made by his mother, Barbara, after touring a relief centre in Texas. "What I'm hearing which is sort of scary is they all want to stay in Texas. Everyone is so overwhelmed by the hospitality," Mrs Bush told the Public Broadcasting Service. "And so many of the people in the arena here, you know, were underprivileged anyway, so this is working very well for them."

Sounds distinctly Marie-Antoinette ("why don't they eat cookies?") to me.

More or Less Together (Waaldijk et. al.)

Kees Waaldijk (Leiden University) has edited a comparative survey of legal consequences attached to marriage, cohabitation and registered partnerships for different-sex and same-sex partners. It's a comprehensive study of nine European countries, that brings to light lots of interesting and sometimes unexpected patterns. One fascinating conclusion: even 'traditional' marriage (if you'll forgive the expression) means lots of different things in different countries. The entire report is available online here.

ICLQ joins SSRN abstracting service

As of today, you can receive abstracts of articles in the International and Comparative Law Quarterly via SSRN-LSN, for free. You'll have to pay for full-text downloads, however (newer articles can also, since recently, be found on WESTLAW). Look here for more info.

Rehnquist Court Interactive Feature on NYTimes.com

The NY Times has a fun interactive feature on the US Supreme Court here. Lots of dynamic charts on, for example, varying court majorities on the Rehnquist Court. Difficult/ impossible to print, unfortunately.

New Books

Some recently published books. Most of these were reviewed in the June, July and August 2005 issues of The Law & Politics Book Review or notified on OUP’s website. I loved the LPBR site and will be adopting a permanent link in the sidebar as well as informing you regularly of their reviews in the field of comparative law.


A few books in the broad category of General Comparative Law & Methodology:

COMPARATIVE CONSTITUTIONAL REVIEW: CASES AND MATERIALS, by Michael Louis Corrado. Durham, NC: Carolina Academic Press, 2004. ISBN: 0-89089-710-7. (Recommended as a good selection of materials by Reviewer Hootan Shambayati)

CORE QUESTIONS OF COMPARATIVE LAW, by Bernhard Grossfeld (translated by Vivian Grosswald Curran). Durham, NC: Carolina Academic Press, 2004. ISBN 0-89089-737-9. (Reviewed by Susan M. Sterett)

JUDICIAL DELIBERATIONS. A COMPARATIVE ANALYSIS OF JUDICIAL TRANSPARENCY AND LEGITIMACY, by Mitchel Lasser. Oxford: Oxford University Press, 2004. ISBN 0199274126 (For which the August 2005 issue of the Common Market Law Review has a witty, clever and inspiring review by ... me. Seriously now: it - the book, that is - is very impressive. Go read.)

MIXED LEGAL SYSTEMS IN COMPARATIVE PERSPECTIVE. Property and Obligations in Scotland and South Africa, Edited by Reinhard Zimmermann, Kenneth Reid and Daniel Visser. Oxford: Oxford University Press, 2005 (From the OUP website)


Two recommended introductions / overviews of individual systems:

AMERICAN LAW IN A GLOBAL CONTEXT, by George P. Fletcher and Steve Sheppard. New York: Oxford University Press, 2005. ISBN 0-19-516723-6. (Recommended and reviewed by Kirk A. Randazzo)

THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY, by Vernon Bogdanor (ed.). Oxford: Oxford University Press, 2003. ISBN: 0197263194 (Strongly recommended by Thom Brooks, University of Newcastle)


And a few books that I thought could be grouped together under the heading of law, courts and contexts of wider (post)-conflict political and institutional stress:

RIGHTS BEFORE COURTS: A STUDY OF CONSTITUTIONAL COURTS IN POSTCOMMUNIST STATES OF CENTRAL AND EASTERN EUROPE, by Wojciech Sadurski. Dordrecht, The Netherlands: Kluwer Academic Publishers, 2005. ISBN: 1-4020-3006-1 (Reviewed enthusiastically by Lynn M. Maurer)

COURTS UNDER CONSTRAINTS. JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA, by Gretchen Helmke. New York: Cambridge University Press, 2004. ISBN: 0521820596 (Defending a notion of ‘strategic defection’, purporting to explain why it would be rational for non-independent judges to occasionally rule against their governments. Insightfully reviewed by Javier A. Couso)

ADDED 7/9, 10:30 am: LAW AFTER AUSCHWITZ: TOWARDS A JURISPRUDENCE OF THE HOLOCAUST, by David Fraser. Durham: Carolina Academic Press, 2005. ISBN: 0-89089-243-1 (Reviewed by Thérèse O’Donnell)

DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS, by Christian Joerges and Navraj Singh Ghaleigh (eds). Oxford: Hart Publishing, 2003. ISBN: 1-84113-310-8.

With regard to this last book, Shannon Smithey (Westminster College) in her Review calls attention to a stimulating chapter by Vivian Curran on “Formalism and Anti-formalism in French and German Judicial Methodology”. She writes: “Fascist judges’ tendency to apply positive law formalistically, despite manifest injustices, has left judicial positivism with a negative reputation. But, Curran argues, legal formalism was not to blame for the actions of fascist judges in Germany and France. Curran documents differences in French and German judicial “methodology,” and contends that, “we will not be able to identify the responsible culprit for fascist-era injustice in France or Germany in the methodological distinctions that separate positivism from anti-positivism, or formalism from anti-formalism. The driving force behind court decisions in both Germany and France was political ideology” (p.225)". I liked Curran’s paper on “Re-membering Law” (see an earlier post); looking forward to reading this!