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Book Review: Judicial Protection in the European Union , by Henry G. Schermers and Denis F. Waelbroeck. (Kluwer Law International, The Hague, 2001)

Book Review: Judicial Protection in the European Union , by Henry G. Schermers and Denis F.... BOOK REVIEWS Henry G. Schermers and Denis F. Waelbroeck, Judicial Protection in the European Union (6th edn, Kluwer Law International, The Hague, 2001) xxix + 889 pp., ISBN 9041116311, hb £118 The latest edition of this book continues to impress, indeed to amaze, for its comprehensive and reliable coverage. It is an enormously valuable resource and the book constitutes a major contribution to scholarship. The fifth edition was published as long ago as 1992, and therefore much has changed in the interim on all levels of European law-making, and the authors have completed an onerous task in producing this sixth edition. Moreover, it is vast ± there are 889 pages and the text is divided into 1,539 paragraphs. Seek, and ye shall find. After a brief Introduction (four pages), there are seven chapters. These cover, first, the Community Legal Order (191 pages), which includes examination of the modes of interpretation preferred by the Court, an extended examination of the general principles of Community law and the incorporation of Community law into the national legal order. Chapter 2 deals with the Application of Community Law by National Courts (111 pages). This investigates the ebb and flow of the principle of national procedural autonomy before embarking on an in-depth treatment of the preliminary reference procedure. The subject of Chapter 3 is Judicial Protection Against Acts of the Institutions. This weighs in at a thumping 279 pages. Chapter 4 deals with Judicial Protection against Acts of Member States (sixty-three pages) and is principally concerned with the Article 226 infringement procedure. Chapter 5 covers `other tasks' of the Court of Justice (a light snack at seven pages), while, on a more technical though certainly important level, Chapters 6 and 7 deal with the Structure and Operation of the Court of Justice (eighty-nine pages) and the Court of First Instance (twenty-one pages) respectively. Tables and an index conclude the book. The hallmark of the book is the depth and breadth of knowledge and expertise on offer. One is able to sense the ability of the authors to look back over decades in which the EC, now the EU, legal order has evolved and to place recent developments in their true historical context. But they do not make the mistake of forgetting that what is now in the past was once in the future. So profound is the depth of learning exhibited by the authors that my only mild disappointment on reading this book is that they do not offer even more food for thought. I would have greatly appreciated more reference to, discussion of and perhaps criticism of some of the academic writing that has in recent years sought to examine more closely just why the European Court's vision of the nature and purpose of EC law has been absorbed so deeply into everyday judicial practice in the Member States, while also attracting negligible criticism from national political elites. Joseph Weiler famously and influentially opened up the possibilities for debate in this vein more than twenty years ago1 and only last year Karen Alter published an `The Community system: The dual character of supranationalism' (1981) 1 Yearbook of European Law 273. EUROPEAN PUBLIC LAW intriguing study2 of incentives and interaction in the domain of judicial collaboration in the EC. Dialogue between political scientists and lawyers is one of the richest growth areas in EU studies and work of this interdisciplinary nature promises to reveal much about just how the newly established European Court could proclaim the EC Treaty as founding a `new legal order' some forty years ago, and insist on its supremacy over national law ± and, more remarkable still, how national judges, whose siting within national legal tradition might have been thought likely to make them vigorously resistant to such pretensions, collaborated with the Court in Luxembourg in making real the vision of a stable and respected set of legal rules at European level to which all Member States would (by and large) adhere. This is the story of how EC law began as international (Treaty) law and is still international (Treaty) law but has also come to constitute a framework for a quasi-federal system of governance in the European Union. It is a story of how the European Court's power in practice was enormously enhanced by the readiness of national courts to sign up to its mission, but it is also a story of the capacity of national courts to damage the European Court, were they ever to rebel against its rulings. In short, the European Court's status is heavily dependent on persuading national courts to comply with its chosen line. It cannot use coercion. This suggests a potentially fascinating interaction between the judges of Europe, as the constitutional rule of supremacy is in fact underpinned by a rather sophisticated process of indirect judicial dialogue, in which national courts are able to make the European Court aware of their anxieties and to expect it to evaluate their strengths in shaping its case law. Both sets of judges, national judges and those of the European Court, are in this (potentially fruitful) sense bound together in the construction of the European legal order. There are ± of course! ± hints that the authors of this book are fully aware of this constraint on the European Court. For example, paragraph 52 refers to the Court's need to consider whether to run the risk that its decisions would not be followed. But the increasingly rich academic literature is not cited. And the Bunderverfassungsgericht's 1993 ruling in the Maastricht case, one of the most prominent recent examples of a national court expressing doubts and sounding warnings about the path of European (judicial, but not only judicial) integration, is here cited only as confirmation of the 1986 Solange II case which dealt with the appropriate location of judicial protection of fundamental rights recognized by EC law (paragraph 337). It deserves more, and I would have enjoyed reading more in this vein from distinguished jurists of the stature of the authors of this book. In conclusion, however, this book represents high-level scholarly work, and the community of EC lawyers is once again, and more deeply still, in debt to Professors Schermers and Waelbroeck for their devotion to duty. Stephen Weatherill Somerville College, Oxford Establishing the Supremacy of European Law, Oxford University Press, Oxford, 2001. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Public Law Kluwer Law International

Book Review: Judicial Protection in the European Union , by Henry G. Schermers and Denis F. Waelbroeck. (Kluwer Law International, The Hague, 2001)

European Public Law , Volume 9 (1) – Feb 1, 2003

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Abstract

BOOK REVIEWS Henry G. Schermers and Denis F. Waelbroeck, Judicial Protection in the European Union (6th edn, Kluwer Law International, The Hague, 2001) xxix + 889 pp., ISBN 9041116311, hb £118 The latest edition of this book continues to impress, indeed to amaze, for its comprehensive and reliable coverage. It is an enormously valuable resource and the book constitutes a major contribution to scholarship. The fifth edition was published as long ago as 1992, and therefore much has changed in the interim on all levels of European law-making, and the authors have completed an onerous task in producing this sixth edition. Moreover, it is vast ± there are 889 pages and the text is divided into 1,539 paragraphs. Seek, and ye shall find. After a brief Introduction (four pages), there are seven chapters. These cover, first, the Community Legal Order (191 pages), which includes examination of the modes of interpretation preferred by the Court, an extended examination of the general principles of Community law and the incorporation of Community law into the national legal order. Chapter 2 deals with the Application of Community Law by National Courts (111 pages). This investigates the ebb and flow of the principle of national procedural autonomy before embarking on an in-depth treatment of the preliminary reference procedure. The subject of Chapter 3 is Judicial Protection Against Acts of the Institutions. This weighs in at a thumping 279 pages. Chapter 4 deals with Judicial Protection against Acts of Member States (sixty-three pages) and is principally concerned with the Article 226 infringement procedure. Chapter 5 covers `other tasks' of the Court of Justice (a light snack at seven pages), while, on a more technical though certainly important level, Chapters 6 and 7 deal with the Structure and Operation of the Court of Justice (eighty-nine pages) and the Court of First Instance (twenty-one pages) respectively. Tables and an index conclude the book. The hallmark of the book is the depth and breadth of knowledge and expertise on offer. One is able to sense the ability of the authors to look back over decades in which the EC, now the EU, legal order has evolved and to place recent developments in their true historical context. But they do not make the mistake of forgetting that what is now in the past was once in the future. So profound is the depth of learning exhibited by the authors that my only mild disappointment on reading this book is that they do not offer even more food for thought. I would have greatly appreciated more reference to, discussion of and perhaps criticism of some of the academic writing that has in recent years sought to examine more closely just why the European Court's vision of the nature and purpose of EC law has been absorbed so deeply into everyday judicial practice in the Member States, while also attracting negligible criticism from national political elites. Joseph Weiler famously and influentially opened up the possibilities for debate in this vein more than twenty years ago1 and only last year Karen Alter published an `The Community system: The dual character of supranationalism' (1981) 1 Yearbook of European Law 273. EUROPEAN PUBLIC LAW intriguing study2 of incentives and interaction in the domain of judicial collaboration in the EC. Dialogue between political scientists and lawyers is one of the richest growth areas in EU studies and work of this interdisciplinary nature promises to reveal much about just how the newly established European Court could proclaim the EC Treaty as founding a `new legal order' some forty years ago, and insist on its supremacy over national law ± and, more remarkable still, how national judges, whose siting within national legal tradition might have been thought likely to make them vigorously resistant to such pretensions, collaborated with the Court in Luxembourg in making real the vision of a stable and respected set of legal rules at European level to which all Member States would (by and large) adhere. This is the story of how EC law began as international (Treaty) law and is still international (Treaty) law but has also come to constitute a framework for a quasi-federal system of governance in the European Union. It is a story of how the European Court's power in practice was enormously enhanced by the readiness of national courts to sign up to its mission, but it is also a story of the capacity of national courts to damage the European Court, were they ever to rebel against its rulings. In short, the European Court's status is heavily dependent on persuading national courts to comply with its chosen line. It cannot use coercion. This suggests a potentially fascinating interaction between the judges of Europe, as the constitutional rule of supremacy is in fact underpinned by a rather sophisticated process of indirect judicial dialogue, in which national courts are able to make the European Court aware of their anxieties and to expect it to evaluate their strengths in shaping its case law. Both sets of judges, national judges and those of the European Court, are in this (potentially fruitful) sense bound together in the construction of the European legal order. There are ± of course! ± hints that the authors of this book are fully aware of this constraint on the European Court. For example, paragraph 52 refers to the Court's need to consider whether to run the risk that its decisions would not be followed. But the increasingly rich academic literature is not cited. And the Bunderverfassungsgericht's 1993 ruling in the Maastricht case, one of the most prominent recent examples of a national court expressing doubts and sounding warnings about the path of European (judicial, but not only judicial) integration, is here cited only as confirmation of the 1986 Solange II case which dealt with the appropriate location of judicial protection of fundamental rights recognized by EC law (paragraph 337). It deserves more, and I would have enjoyed reading more in this vein from distinguished jurists of the stature of the authors of this book. In conclusion, however, this book represents high-level scholarly work, and the community of EC lawyers is once again, and more deeply still, in debt to Professors Schermers and Waelbroeck for their devotion to duty. Stephen Weatherill Somerville College, Oxford Establishing the Supremacy of European Law, Oxford University Press, Oxford, 2001.

Journal

European Public LawKluwer Law International

Published: Feb 1, 2003

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