Catherine
Barnard,
Trinity College, Cambridge*
You’ll love
studying EU Law if you like politics, if you are a visionary, if you are a
pragmatist. In other words, EU law has something in it for everyone – and even
if you are none of those things, you must study it because it’s compulsory. But
bear in mind EU law is unlike anything you'll have studied before: whatever
'types' of law you've liked before, EU law doesn't 'fit' into any single
category (e.g. public v. black-letter). Here are some words of advice.
1. Give
yourself a political health-check before starting out: it's helpful to
recognise any preconceptions you have about the EU politically before
starting to study the law. Every student comes at the law from a certain angle,
so it's good to think about where you sit in terms of the politics before you
start to engage in the debates around the law/what it should be.
2. Be
prepared to change what you think: law and politics are inextricably linked, so
studying EU law has the potential to change your views about the EU as a
political institution - some students undergo a complete volte-face.
3. Most
courses start with an introduction to the EU institutions. Most students don’t
find that the most exciting part of the course, at least not at the beginning,
but hang on in there. Think of it as learning the building blocks of the
system. These institutions are crucial to the functioning of the EU system.
It’s the Commission which comes up with the legislative proposals, it’s the
European Council where much of the real power now lies for big decisions, and
the European Parliament now has the joint final say on most legislation with
the Council of Ministers (comprised of ministers of the 28 Member States, all
accountable to their own national parliaments). And what the Court does, will
occupy much of your time.
4. If
you can, visit the institutions - it will bring some of this to life. If not,
look at their websites, the live streaming of parliamentary debates. Don’t
think of the institutions as dull buildings but as comprised of people
operating in an international environment trying to find ways of addressing
some of the most intractable problem of our times: the Eurozone crisis, the
refugee crisis, climate change, mass unemployment.
5. The
institutions become much more interesting when you start thinking about whether
they should be doing what they are doing and how they are doing it. The
European Parliament has a lot of power yet in the last European Parliament
elections in 2014 only 43% of the overall EU population bothered to vote (60%
in the UK, 13% in Slovakia). Why is that? Many people talk of the democratic
deficit in the EU. But is the EU worse than many of the Member States? Should
the EU be assessed by the standards applied to a sovereign state? Can the EU
even be considered a state? If not, should it be aiming to become one?
6. The
Foundation Treaties (EEC, ECSC [now abolished], Euratom) have been amended on a
number of occasions by further Treaties. Try to develop a sense of which Treaty
introduced which major change. This will provide you with some sort of
historical perspective and help you understand the context in which decisions
were made. The Treaties are often referred to by the place in which they were
signed. By far the most important changes were introduced by the Maastricht
Treaty in 1992. Most notably, that Treaty introduced the (flawed) provisions on
Economic and Monetary Union. Also important was the Lisbon Treaty which divided
up the existing provisions of the Treaty into two Treaties of equal value: the
more ‘constitutional’ provisions (eg guiding principles, allocation of powers)
were put in the Treaty on European Union (TEU), the other, more ‘operational’,
principles were put in the inelegantly named Treaty on the Functioning of the
European Union (TFEU) (eg the rules on free movement of goods, persons,
services and capital, how to access the Court of Justice).
7. The
bugbear of all students (and anyone involved in EU law) is that with the Treaty
amendments came new numbers. Originally, the change was indicated by calling
the new provision A, B etc. So the new legal basis giving the EU power to
regulate the Single Market was Article 100A, inserted after Article 100 giving
powers to the EU to adopt measures to establish the Common Market. This seemed
logical and straightforward. However, this approach was not considered
sufficiently transparent and so the EU decided to renumber every provision of
the Treaty not once, but twice, first in 1997 by the Amsterdam Treaty and again
in 2009 by the Lisbon Treaty. So what is now Article 34 TFEU on the free
movement of goods was originally Article 30 EEC and then Article 28 EC (the
term EEC was replaced by EC at Maastricht and then by the term ‘EU’ at Lisbon).
Extremely unhelpful, especially when reading older cases. There are destination
tables in the front of your statute books and the leading textbooks. The modern
practice is generally to use the Lisbon number even in discussing older cases
(ie use Article 34 TFEU rather than Article 30 EEC or Article 28 EC) .
8. Much
of your time will be spent looking at the Court of Justice, which in fact
comprises three courts: the Civil Service Tribunal (dealing with appeals from
cases brought by the staff of the EU [‘F’ cases]), the General Court (formerly
the Court of First Instance[‘T’ cases]), which hears a lot of competition cases
and so called direct actions on the validity of EU law, and the Court of
Justice of the EU which hears all other cases (‘C’ cases). The citation of
cases has recently changed. The changes are usefully summarised here. The Court of Justice sits in Chambers of three or five judges, or as the
Grand Chamber or, very occasionally, as the Full Court. As a rule of thumb, the
more important cases are decided by the Grand Chamber or the Full Court.
9. Judgments
of the Court of Justice look different to those of the common law courts. There
is a single judgment and no dissents or concurring opinions. Generally, cases
are shorter. There is a helpful summary of what the Court has decided at the
end of the judgment (the dispositif). If the case is a preliminary reference
(ie questions from the national court as to the meaning or validity of EU law),
look in the early part of the judgment for the key facts, often set out by the
Court just after it has set out the relevant provisions of EU law and national
law. The Court will then try to answer the national court’s questions.
Sometimes the final outcome of the case is not clear. This is as it
should be: under the division of powers between the national courts and the
Court of Justice, the Court of Justice interprets EU law, the national courts
apply that interpretation to the facts. Sometimes, in important or difficult
cases, the Court of Justice does what it should not and tells the national
court whether the national law is, for example, justified and proportionate.
Cases are then often settled prior to a final hearing in the national courts.
10. Try
to read the Advocate General’s (AG) ‘advisory’ Opinion too, especially if you
want to really understand what is going on. Essentially, the AG’s Opinion is
more like a common law judgment (but without being binding); it is essentially
one Judge’s view as to what the answer to the case should be. The Court is not
obliged to follow what the AG says but does so in, it is thought, about 70% of
cases. Some AG’s Opinions are considered classics (eg AG Jacobs’ Opinion in
Case C-50/00P UPA v. Council [2002] ECR I-6677)
11. The
Court of Justice is often considered an activist Court, giving surprising
rulings which push back the frontiers of the law. For some people the
‘activist’ label is intended as a criticism. But bear in mind that the Court is
often working against an incomplete canvas. The Treaty doesn’t lay down every
rule and it is up to the Court to shape the system against an understanding of
the broader aims of the EU, for example the creation of a functioning single
market. Ask yourself how you would have decided the case if you had been in the
Court’s shoes. Remember, too, that the Court’s working language is French but
that cases can be pleaded in anyone of the 24 official languages of the EU and
the Court has to interpret legislation in any of the 24 languages.
12. One
of the most difficult questions for the Court is how to operationalise the
relation between the centre (the EU) and the Member States (MS). In other
words, a number of the Court’s decisions affect what MS can do and what the EU
can do. So every time the EU finds a national rule breaches, say, Article 34
TFEU on the free movement of goods, it makes inroads into the States’ freedom
to regulate in that area and it gives the EU the power to (re)regulate those
matters. These are highly sensitive political matters. Think of the headlines:
‘Court of Justice tells UK/Scotland to stop minimum alcohol pricing’. The
Court’s decisions have a direct impact on decisions taken by democratically
elected governments.
13. One
of the main focuses now on an undergraduate course is the role of the EU
Charter of Fundamental Rights. Adopted in 2000 and with legal force since 2009,
the Charter has had a significant effect, not perhaps as much as it supporters
may have liked, but important nonetheless. The Charter has been used to declare
provisions of EU law invalid, and significantly steer the interpretation of EU
law (for better and worse). It has, however, major limitations, not just the
misnamed UK opt-out. Studying these limits will occupy much of your time.
14. The
Charter borrows a number of rights from the European Convention on Human Rights
(ECHR) but remember that the two documents belong to two different systems: the
ECHR is a product of the Council of Europe, it is adjudicated on by the Court
of Human Rights (sitting in Strasbourg) and applies to 47 States (including the
28 Member States of the EU, but also other states such as Russia). The Charter
applies to the EU institutions and to the Member States, but the latter only
when they are implementing EU law. It is applied and interpreted by the Court
of Justice (sitting in Luxembourg). A recent attempt for the EU itself to
accede to the ECHR has been rejected by the Court of Justice.
15. One
of the other major issues that you will consider is the role and function of EU
citizenship. Everyone holding the nationality of a Member State is also a
citizen of the EU. What does that mean in practice? Does it have merely
rhetorical value or does it, in fact, give substantive rights, particularly for
those on the margins of society? What implications does EU citizenship have on
the right to secure a job or claim benefits in another MS?
16. These
questions and many others will feed into the UK referendum campaign. Studying
EU law will make you feel more involved in the debates and enable you to
participate in them in a more informed way. It will also give you a more
nuanced understanding of what the EU is about and what problems it is up
against. The outcome of the referendum will affect you for the rest of your adult
life. It is something to engage with seriously. So read about the debates,
listen to speakers, attend seminars, speak, campaign. Get involved.
17. Reading
articles and opinion-based pieces is key to enjoyment of EU law, because there
is so much to debate and the parameters of that debate are always evolving.
There are, of course, a number of dedicated academic journals (e.g. Common
Market Law Review, Cambridge Yearbook of European Legal Studies, European Law
Review, European Law Journal, Yearbook of European Law). In addition, there are
many sources of information about EU law online. All the institutions have
websites and active twitter feeds. There are also a number of EU law blogs
(e.g. this blog [EU law
analysis], EUtopia, European law blog). The Financial Times is the best
source of news and comment on EU matters.
18. Remember,
too, that there is also a lot of misinformation out there too, and not just
about bendy bananas. Take, for example, the front page headline in the Daily Express ‘Teach Boys to Dust says EU: Barmy Brussels latest call for gender
equality’. The UK Rep of the European Commission does attempt to address these euromyths but it pays you to read all reports with a
healthy scepticism.
19. When
it comes to exams, please remember that the Advocate General is not the
Attorney General, Francovich is not Francovitch,
direct effect is different to direct concern, and the Court of Justice sits in
Luxembourg, not Strasbourg. Once you have mastered these basics you will be
well on your way.
20. Most
importantly, remember just how exciting and dynamic EU law is. It is a subject
constantly in flux. The destination of the EU project is by no means fixed.
There is so much still to decide. There is much uncertainty and much that is
unknown. As one former student put it: ‘At times this seems a bit overwhelming,
but reframing it as an opportunity for debate makes it a really rewarding
subject.’
Enjoy.
*Thanks to
George Apps, Alicia Hinarejos, Amy Ludlow, Steve Peers, and Emmeline Plews for
their thoughts and comments
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