International and Regional Trade Law : The Law of the European Union

International and Regional Trade Law:
The Law of the European Union
(L05.3048)

Professor Joseph Weiler

Introduction

General Orientation

Most law schools, both in Europe and the United States, continue to teach the law of the European Union as a single course, the way one teaches, say, contracts, torts or enterprise organization. And yet, the law of the Union has grown to dimensions which are in the same order of magnitude as any national system. European Competition law (Anti-trust) is as broad and important a subject as, say, American Anti-Trust law. European Constitutional law (which exists despite the absence of a formal Constitution) is as extensive as its American counterpart and so it is with most other topics. Imagine, then, the task of giving, say in a European or Asian law faculty, a three or four credit course entitled: "Trading In and With the United States" and trying to cover the basics of American law….

Also gone are the days where any one person could claim to be an "expert" in European Community law let alone the law of the European Union. Anyone making such a claim is more likely to be a 'Jack of all trades and Master of none.' In fact, most professors and practitioners focus these days on only parts of the subject. My interests are in the Institutional, Constitutional and Administrative dimensions of EU law as well as the theory of European Integration, its "civil procedure" and system of judicial remedies, the substantive law of intra-community trade in goods and services, and the Common Commercial Policy of the Community vis. all legal aspects touching on international trading with the Community. Of course I know something about many other aspects of Community law, but am also totally ignorant of quite a few others!

In designing the course I have attempted -- both in substance and methodology -- to overcome, so far as possible, the pitfalls inherent in the above. The motives of students in taking this course also vary. In conversation with students over the years two motives (not necessarily mutually exclusive) predominate. Some have an interest in transnational law and wish to study EU law as a component in a broader expertise alongside International litigation, International trade et cetera. For others it is more a matter of intellectual curiosity - getting to know a unique, increasingly important and highly interesting legal system - the kind of interest that pushes people to study comparative law and legal theory.

I try to cater to both interests.

My principal objective is to make the subject, in many of its aspects hugely technical and dry, interesting and rewarding -- worth the effort of serious study. European Union law encapsulates after all the story of European Integration whereby a Europe ravished by the horrors of World War II has emerged in one generation as the largest trading bloc in the world and increasingly as a political entity with an importance which reflects its economic might. It is a polity based principally on the 1951 Treaty of Paris constituting the European Coal and Steel Community (ECSC), the 1958 Treaties of Rome constituting the European (Economic) Community (EC) and the European Atomic Energy Community (EAEC). The European Community Treaty (TEC) has been amended in various occasions. The above-mentioned Communities since 1993 come under the general umbrella of the Treaty of European Union - Maastricht Together, these Treaties constitute, in the language of the European Court of Justice, the Constitutional Charter of the Community. On October 2, 1997 the governments of the Member States signed another Treaty revision encapsulated in the Treaty of Amsterdam which is now the controlling text and which we shall use in class. Please note that the Treaty of Amsterdam has changed the numbering of the articles.

The official "dream" (in class, with a straight face, we will not talk of dreams but of 'meta-political objectives') of European Integration is to achieve "An ever closer Union among the peoples of Europe." This dream is not without its rude awakenings in the form of persistent and often fierce and ugly nationalism and xenophobia. The Union is not without other contradictions. Thus, to give but one example, while a condition for admission to the "Club" is internal democracy of the applicant states, the Community itself suffers from a democratic deficit of some proportion.
Indeed, the Community raises interesting -- and at times troubling -- questions of modern social and political organization. Likewise, though we increasingly use the appellation Europe when referring to the European Union and its Member States (much in the same way that we say America when referring to one State in North America) the relationship of the Union to East European States is an issue of considerable delicacy.

The course will pay a lot of attention to the political, social and economic context in which EC law evolves.

At the same time, the selection of material and class room topics is designed to ensure a professional proficiency which would enable those of you who so wish to enter directly into the practice of EC law. You will, I hope, receive a very good grounding in the way the European legal system works and in some of the principal areas of its substantive law.

As an added "bonus", what we shall cover in class should enable you to read and understand with relative ease the provisions of the NAFTA and important dimensions of the GATT 94 and The WTO.

Substance of the Course

In the choice of material to cover I fall back on the old cliché of trying to teach you to fish rather than feeding you a ready made meal.

Thus, I shall spend the first phase of the course teaching the operation of the EC legal system (law making, the critical issue of the relationship between Community law and Member State law, the system of judicial remedies and the way it may be used by individual litigants, methods of interpretation of Community law et cetera). All this, which hardly touches on the substantive law of trading, is immensely important since it will provide you with tools to understand and work within any area of substantive Community law. It will also clarify in one's mind the nature of this tricky entity called the European Community.

In its second phase, the course will focus on one area of substantive law -- the rules (the main ones at least) governing free movement of goods and services within the Community. This is the heart of the Common Market, or, as it is called today, the Internal Market. It is an aspect of EC law which is as important to non-European enterprises as it is to Europeans. It answers one question which faces all undertakings: To what extent, once goods have entered the Community, or have been produced in one of the Member States of the Community, may they circulate freely -- without legal impediment -- within all 15 Member States. Topics covered will, for example, include discriminatory taxation, Community and Member State regulatory regimes (All motor cars must have a seat belt with specification X. What if an imported American motor car has a seat belt with specification Y which, nonetheless, is equally safe?) and the ability to use and abuse intellectual property rules (patents, trademarks etc.) to impede free movement.

I shall not cover other aspects of the internal market such as the movement of labor or capital nor several of the "policies" of the Community (Transport, Environment etc.) except as these impact trade. But the principles underlying the free movement of goods and services are, in large measure, similar to those which underlie all other aspects of Community law regarding the Internal Market. Should the need arise, you will be able to study these on your own with great facility.

I shall be giving you a brief survey, by way of lecture, of other aspects of the Community so that you know what is out there and can identify a potential issue of Community law even if we have not covered it in depth in the course.

Method of Instruction and Materials

This course is an elective! No one is required to take it. My commitment as your teacher is to aim at the highest possible intellectual, didactic and educational experience. If you elect to take this course please be mindful of the course conditions which have been set in order to facilitate attainment of these goals: Attendance in class is obligatory as is serious preparation and engaged participation.

Please do not enroll in this course if you cannot guarantee regular attendance, a commitment to reading the class materials with care before class and a willingness to participate actively in class discussion.

If you need to miss class, kindly let me know in advance if possible, otherwise after the fact.

The Course materials will be available on the course site and you may pick up a printed version as well. Please make sure you come to class with the materials we will be studying. It is essential since we will be doing very close readings of cases.

The course is divided into Units of Study corresponding to the structure of the Course. There is a lot of stuff but Fear Not: there is more in the package than we shall cover in class and you will not be expected to read every page. I use these materials for instruction in different institutions with slightly different course contents. I also thought in some cases that I would include materials simply to let you have the complete dossier of a topic for those interested.

The Course Materials also contain a set of Primary Sources including the EU and the EC Treaty in the post-Amsterdam version, which has now become the governing law.
Remember, since so much of the case-law of the Court relates the pre-Maastricht and, in any case, pre-Amsterdam versions, you should always be careful about what is the Treaty version in force at the time a case was decided.

Please bring your Primary Sources to all classes.

The Course Pack and the Primary Sources are also available on the Web: www.jeanmonnetprogram.org and you may download them onto your computer for your convenience.