30 years of Practicing EU Law
The 25th of March marked the 60th anniversary of the signing of the 1957 Treaty of Rome creating the European Economic Community. The EEC entered into effect in 1958 and has changed all our lives since. I was five at the time and spent the next 25 years fairly ignorant of the organisation despite the fact that my father drafted many of the tax laws necessary for Irish membership in 1973 and I qualified as a lawyer in Ireland in 1980.
It was only after a couple of years practicing Irish law in Dublin that I began taking EEC law seriously. I completed specialist post graduate degrees in EEC law in Amsterdam and at the European University Institute in Fiesole and in 1986 I moved to Brussels to practice what for me was the new world of EEC law. I moved to Brussels not out of love of the city but because it was the only place, at that time, where a lawyer could practice EEC law full time. It was then considered a marginal speciality. In fact, a number of my lawyer friends advised against it. They argued that EEC law was not real law and it was not the basis for a successful career. And they were right. At first. There was not that much law work around.
The EU in the mid 1980s was very different from today. There were still borders and border posts between the Member States. Products crossing the borders still had to go through customs procedures, get back and pay taxes, show compliance with health and safety requirements and many of the other procedures now carried out at the external frontiers of the Union. It is true that actual customs duties had been removed but non-tariff barriers to trade were very present. The EU was sufficiently divided and broken up that individual Member States were still able to keep their individual trade relations with third countries for certain products.
Legal work in Brussels at that time broke down into three broad areas: competition, anti-dumping and free movement. The biggest problems on free movement were in relation to food standards and product safety. What is now Article 26 TFEU prohibited quantitative restrictions on movement and measures having an equivalent effect. Article 36 set out the exceptions on the basis of the protection of the health and life of humans, animals and plants. The questions before the courts were whether an Irish government campaign to ‘Buy Irish’ was a restriction on free movement or whether France could be held liable for not preventing farmers stopping Spanish goods crossing the border. In practice this meant that there was little free movement of foodstuffs as each Member State set their own standards.
And then came Cassis de Dijon in 1979. This changed everything (even if it too a bit of time to sink in). The Court of Justice ruled that as most standards had the same objective of protecting health and safety they could be considered equivalent. Member States should mutually recognise the validity of each others standards. The formula handed down by the judges was that if a good was legally produced and marketed in one Member State then it should be able to move freely into a second state.
Member States with high standards were concerned that products would be legally placed on the market in low standard Member States and then undermine the higher standard. In addition, manufacturing could move from high standard to low standard states. The EU’s reaction was comprehensive and all encompassing. The decision was taken to change the approach to standards and to move away from product specific standards in the food sector and move to minimum health and safety standards. And it was decided to change the decision-making rules and reintroduce majority voting in the Council.
The 1992 programme was designed to complete the single market. This programme foresaw the adoption more than 300 laws in a five-year period that would allow the removal of the physical, economic and technical borders between the Member States and the completion of the external frontier of the Community. Work is still going on to complete the single market particularly for services but for the most part it is complete for goods.
In Competition, the work was two fold. One main strand of work was in relation to distribution and agency agreement. To what extent could manufacturers tie-in their agents and distributors and restrict their ability to sell outside the zones for which they had an agreement. These were the exclusive rights to sell in one Member State and not in another. What was an exclusive distributor for Germany to do if a French customer asked for goods. Could they sell or not? And could manufacturers use intellectual property to maintain divisions in the single market.
The second strand of work in competition law was the break-up of national monopolies. To what extent could it be considered that national and most often state owned energy or transport or telecommunication companies be considered to be in abuse of their dominant or exclusive positions in different Member States? Slowly competition law was applied to break down the monopolies and introduce competition.
The liberalisation of certain sectors at the Member State level automatically resulted in the need to regulate these sectors at the EU level. This implied the granting of greater competence to the Union to undertake the regulatory functions inherent in the management of the single market. So over the 1990s and into the 2000s the Member States slowly increased the competence of the Union and slowly improved the way in which decisions were to be made in Brussels. In a series of changes to the Treaty of Rome leading to the Lisbon Agreement (the failed constitution agreement) we changed the Community to the Union, we gave greater power to the Parliament, we gave more competence to the Union.
As all this happened the nature of law work changed. As the Union got more competence and became the regulator of the single market for more and more sectors, decisions of the institutions had a greater and greater impact on industry and there was a notable increase in litigation to annul Commission and Council decisions. The Commission as the executive of the Union became stronger. This in turn allowed the Commission to implement the competences it had in a more robust manner. This can be seen in relation to competition law. The focus shifted from distribution and dominance so as to complete the single market to attacking collusion between enterprises across the single market.
Lawyers also become more involved in the formulation and the quality of laws. In other words, lobbying. The idea that lawyers were lobbyists was, and for many still is, problematical. But why should this be? Lobbying is in fact advocacy. But rather than trying to persuade a judge as to the correctness of your arguments you are trying to persuade the legislator of the correctness of your analysis. The more lobbing there is the better the law is.
The last 30 years have been eventful and fun to have been part of. One case, bananas, lasted from 1988 to 2010. The hormones case lasted 10 years. Today we are working on the EU’s relationship with China and the US which will last for many years to come. The EU has built competence on the environment, on health and safety and the welfare of consumers. We have built and protected the common values of the EU. It has been fun, yes, but important too. We need another sixty years and more to continue the great European project.