Towards a European public law PDF
Preview Towards a European public law
i TOWARDS A EUROPEAN PUBLIC LAW ii iii Towards a European Public Law BERNARD STIRN Translated and edited by EIRIK BJORGE 1 iv 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Bernard Stirn 2017 © This Translation Eirik Bjorge 2017 Vers un droit public européen 2e édition © 2015, LGDJ, Lextenso éditions 70, rue du Gouverneur Général Éboué 92131 Issy-les-Moulineaux Cedex The moral rights of the authors have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017931338 ISBN 978– 0– 19– 878950– 5 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. v The genius of Vienna, a specifically musical genius, had always been that it harmonised all national and linguistic opposites in itself; its culture was a synthesis of all Western cultures. Anyone who lived and worked there felt free of narrow- minded preju- dice. Nowhere was it easier to be a European. —S tefan Zweig, The World of Yesterday (1943) vi vii Foreword In his Introduction to the Law of the Constitution, first published in 1885, the English constitutional scholar A V Dicey described French droit administratif as utterly unlike any branch of modern English law: even the term, he wrote, had no proper equivalent in English legal phraseology. That view was greatly exaggerated: Dicey appears to have misunderstood the French system of administrative law, and to have overlooked the existence of a substantial body of English law on the same subject. In fairness, he later came to adopt a more nuanced view. His earlier writings were, however, highly influential in forming British attitudes towards continental systems of public law. And some significant differences did exist. Whereas administrative law became increasingly important in France and Germany as the activities of the state developed during the first half of the twentieth century, and a constant stream of judgments was analysed and systematized by legal scholars, there was, for quite a prolonged period, comparatively little activity in that area of the law in the United Kingdom. Furthermore, the establishment of judicial institutions to apply administrative law which were wholly separate from the ordinary courts, such as the French Conseil d’État, had no parallel in the United Kingdom. Even the concept of the state had no equivalent in English law, and no clear distinction was drawn between private and public law. These differences between Britain and continental Europe had deep roots. Constitutional developments in seventeenth century England, themselves with roots in a more distant past, had prevented the Crown from establishing a degree of control over the country equivalent to that exercised from Versailles or Potsdam. The range of functions per- formed by government remained comparatively limited until mod- ern times, and government departments were surprisingly small. The viii viii Foreword absence of any rupture with constitutional tradition, equivalent to that resulting from the revolutions of French and German history, allowed the law to evolve incrementally, without any fundamental re- consideration of its approach to the exercise of public functions, or of the institutions responsible for the administration of justice in that field. The second half of the twentieth century witnessed major changes, as the law in the United Kingdom responded to the growth of the state and the expansion of its functions. A renaissance of administra- tive law began in the 1960s, building on the older body of case law. Remedies in public law became more readily available, with the intro- duction in the 1970s of the application for judicial review. New institu- tional arrangements were established, with the creation of numerous administrative tribunals and, eventually, their closer integration into the framework and culture of the courts and the judiciary. But the most significant changes in this area of the law, influencing those already discussed but having a broader impact, have occurred over the last forty years or so as a result of the UK’s membership of the European Union and its adherence to the European Convention on Human Rights and Fundamental Freedoms, as given domestic effect by the Human Rights Act 1998. These changes have also affected, to a greater or lesser degree, the other European countries that belong to the European Union and adhere to the European Convention, and have resulted in a growing convergence of some aspects of the differ- ent European legal traditions. Although the differences between those traditions in some respects remain profound, they have diminished considerably in the field of public law. The European Union is based on law: not only in the formal sense that it has been established by international treaties entered into by the Member States, but also in the more fundamental sense that it is a system founded on law, in which the courts play a central role in supervising legislative and governmental insti- tutions, and in which the Court of Justice ensures the consistent ix Foreword ix interpretation of EU law by the national courts by means of the preliminary reference procedure. In exercising its interpretative function, the Court of Justice has consciously furthered the goal of integration by adopting a robustly purposive approach, and the national courts have then become the agents of integration by giving effect to that purposive interpretation. There is, how- ever, scope for dialogue between the Court of Justice and national courts, both literally in meetings between their respective judges, and more figuratively in their respective judgments. The European Convention is also an international treaty, whose interpretation is the task of another international court—the European Court of Human Rights. National courts in turn generally give effect to its interpretation of the Convention, at least when it has become the settled view. The scope for dialogue in this context is more firmly established: through their respective judgments, national courts such as the Supreme Court of the United Kingdom, and the European Court of Human Rights, can conduct a prolonged and fruitful dia- logue. The scope for national courts to influence the European Court is widened by the Court’s doctrine of the national margin of appreci- ation, which enables it, within limits, to respect national differences and sensitivities. These developments have challenged some older attitudes to the role of the courts in public affairs in the United Kingdom. The European Union is a system in which the courts play a more promi- nent role than was traditional in this country. As the ambit of EU law has progressively widened, so as to cover not only matters directly relating to trade, but also broader and more sensitive issues, such as immigration, data protection, and the environment, an increasing range of aspects of public administration have become subject to EU law, and therefore to adjudication by the courts. At the same time, the European Convention has required domestic courts to make judg- ments on an even wider range of issues, sometimes relating to contro- versial issues of social or economic policy.
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