by Hugh Collins. Cambridge: Cambridge University Press, 2008. 288pp. Hardback. $110.00/£55.00. ISBN: 9780521885805. Paperback. $39.00/£19.99. ISBN: 9780521713375. eBook format. $32.00. ISBN: 9780511474255.Reviewed by Bogdan Iancu, Faculty of Political Science, University of Bucharest; Alexander von Humboldt Research Fellow, Faculty of Law, Humboldt University of Berlin. E-mail: bogdan.iancu [at] rewi.hu-berlin.de.
pp.751-758
One of the characters in Dostoyevsky’s THE POSSESSED, Stepan Trofimovich Verkhovensky, declaims incessantly throughout the narrative that he will never forswear “those noble ideals,” albeit no one ever asks him to renounce a thing. Moreover, one never comes any closer to understanding what more concretely, their nobility aside, those ideals were about. European Union constitutionalism has unfortunately offered, for quite some time now, a like spectacle of ridicule, irrelevance, exaltation, and obscurity.
Average voter turnouts to the European Parliament polls seem fated to be, by every new election, “the lowest ever,” and local campaigns are, at any rate, disputed on purely national issues. Whether the newest waves of Enlargement have managed to export constitutionalism eastward is still much in question (see Sadurski, Czarnota, and Krygier 2006). In the case of the two most recent enlargees, Romania and Bulgaria, several reports by the Commission (the two countries are under continued quasi-supervision, through the Cooperation and Verification Mechanism) note the slowing pace of meaningful reforms immediately upon EU accession in January 2007. The full measure of the dissatisfaction in Brussels has to be read between the lines of toneless Eurospeak. Appropriately so: since the Commission directed and monitored the Accession process, including the implementation of the so-called “political conditionality,” full honesty would mean admitting failure. But a November 2007 report by a Commission expert argued convincingly that Romanian reforms, in the crucial areas of fighting corruption and judicial organization, had by then already receded to the level of pre-accession year 2002 (De Pauw 2007). These matters are not ancillary or tangential to the operation of the common market, which depends on a modicum of cross-national legal predictability and homogeneity of foundational values and institutions to function properly. It relies, for instance, on independent, impartial, and competent national judiciaries. Yet, if the Union must export “democracy and rule of law” to its new outposts but proves structurally unable to do so, this bodes ill for the state of EU constitutionalism and of European integration more generally. An implication would be that Europe should have perhaps remained an exclusive business club, with membership restricted to the finest of gentlemen. [*752]
Most recently, the Reform Treaty, heir to the luckless “European Constitution,” suffered a heavy legitimacy blow. The Second Senate of the German Constitutional Court has declared unconstitutional, by unanimous decision, the “accompanying law” (Begleitgesetz) to the Act Approving the Treaty of Lisbon. Ostensibly, the Court demanded only that the domestic law be redrafted to strengthen the participative rights of the Parliament (Bundestag) and Federal Council (Bundesrat) with respect to several more dynamic-expansive European lawmaking and treaty amendment procedures. But the argument and general tenor of the reasoning are unusually sobering, even blunt, and reach much deeper. For the first time, the Court derives expressly from the “eternity clause” of Article 79 (3) in the German Basic Law a number of areas, concerning “the political configuration of essential economic, social, and cultural life relations,” whose determination is said to be constitutionally reserved to the nation state (use of military force and criminal law, fiscal and educational policy, and the like). The European Union level of democratization is described as insufficient to justify an extension of the Union attributions beyond the current state (as the court observes, the European Parliament does not instantiate the basic democratic principle of voter equality). At the same time, an attempt at further democratization would be unauthorized from the standpoint of German constitutional law. Europe seems thus relegated in perpetuity to a state of status quo limbo or trapped in a constitutional “double bind” (see Schönberger 2009; Halberstam and Möllers 2009). The paragraphs in which the court expresses doubt as to whether procedural innovations in the Treaty of Lisbon, such as involving “representative” associations and the “civil society” in the decision-making, can substitute for the current EU democracy deficit, seem charged with subdued irony. Such reservations and worries, perhaps even a measure of sarcasm, are fair and justified. Constitutional experiments with corporatist solutions in recent European history (in pre-WWII Italy, for example) did after all prove misguided. To be sure, since constitutionalist emotions and unquestioned attachments to “noble ideals” run high in matters European, the decision was also acrimoniously attacked (in the special issue of the GERMAN LAW JOURNAL, one can even read that the Court “moans” an argument). But the Lisbon Judgment has received, on the whole, balanced and mostly sympathetic coverage in the public and academic debate. Moreover, the Federal Constitutional Court enjoys almost unquestioned authority in Germany and sterling prestige in the rest of Europe. The ruling will certainly have an echo.
It is often argued that critics of European constitutionalism, bounded by their obsolete referential framework (i.e., classical democratic liberalism), simply fail to grasp this “sui generis,” sophisticated and progressive new kind of constitutional democracy (polycentric, non-hegemonic, experimental, network-based, and so on). There is a measure of truth in the assertion, since the evolution of the EC/EU has followed, at different times and often simultaneously, different evolutionary paths which cannot be reduced to any one dimension, be it federal constitutionalism, inter-governmentalism, or supranationalism [*753] (see Peterson and Shackleton 2006). Nonetheless, Union institutions adopt elements of classical liberal constitutionalism for purposes of self-legitimization (e.g., fundamental rights jurisprudence and increasing references to “the common constitutional traditions of the member states” by the European Court of Justice), and the Union undertakes to “constitutionalize” through “political conditionality” its new members. Inasmuch as these trends are relevant, it seems only fair to apply to the European Union processes and institutions the yardsticks they have chosen. One must then assess failure in the inherited conceptual frameworks of liberal constitutionalism and Enlightenment rationality, unsophisticated though they may be.
Yet, despite all mishaps and shortcomings, no critic in political society argues that the construction of a united Europe should be given up because the Union malfunctions. Nor should anyone, of course, but the essential problem remains: the European project suffers from an endemic lack of legitimacy, and yet a remedy is unapparent under the current circumstances.
The long parade of constitutional horribles was necessary not only to introduce our proper topic but also in order to clearly comprehend the stakes. In THE EUROPEAN CIVIL CODE: THE WAY FORWARD, Hugh Collins argues that the source of our current predicament lies in misdirected constitutionalization processes. He also seeks to offer an alternative legal solution, from the opposite direction of justification. This is a momentous task, which renders the book timely and highly relevant. It also recommends a volume written by a private law specialist to a broader academic audience. His book is, one could say, a defense of private law European constitutionalization. This is no easy feat, also since variations on the theme of “societal constitutionalism” still have, at least from the perspective of most public law academics, an oxymoronic ring to them (see Grimm 2009).
Professor Collins opines that, while the European project is in dire need of legitimization, elitist attempts to provide closer political union by imposing grand projects on a reluctant populace are bound to fail: “grand constitutional schemes for a federal union will be interrogated and found sorely lacking” (p. 3). Rather, it is by means of an Economic Constitution (the “constitution of everyday life,” as he calls it) that grassroots legitimacy would arise at the level of regular social and economic interactions between people. Instead of fraudulent grandstanding, he proposes more focus on the legally mundane and quotidian. He gives for instance the example of the package holiday, a humble practice which did much more to accommodate ordinary Europeans with difference than all the constitutional rhetoric from Brussels. This kind of social practice translates into purely private law relations with a trans- or supra-national legal dimension. Fostering and cementing such lower-level social and economic ties would lead in his view to a genuine transnational civil society by “open[ing] up the possibilities for transnational networks between citizens to become denser and form part of the routines of everyday life” (p.19). In time, he believes, this would provide a solid [*754] foundation for more fundamental political institutions.
Two chapters (2 and 3) consider the actual state of play, the evolution of European legal institutions towards a common private law framework. Current developments are found sorely wanting. On the one hand, EU law has a strong deregulatory bias, by virtue of the mutual recognition principle, as developed by the ECJ. In the 1979 CASSIS DE DIJON case, the Court held that a German restriction of the minimum amount of alcohol in spirits (25%, which prevented the importation of a French blackcurrant aperitif) constituted a “measure equivalent to a quantitative restriction” and was therefore in breach of Art. 30 in the EC Treaty. This is the European analogue of the so-called “Dormant Commerce Clause” in US constitutional law. On the other hand, whereas negative integration (removing national regulatory barriers to trade) is aggressively carried out, in Europe – unlike in the case of legislative powers of the US Congress under the Commerce Clause – there are serious institutional and legal hindrances to positive integration. Due to this imbalance, “race to the bottom” and social dumping worries are, in principle at least, more credible. Furthermore, sectoral harmonization regulatory measures at the European level proceed haphazardly and inconsistently. They produce therefore incoherent effects as they impact national legal systems. Collins shows (on a general note, the volume is at its best when it descends from abstract theorizing to concrete examples) how the collision of national private law and European regulatory measures has disruptive effects on national private law systems. He gives, for instance, the example (pp. 58-61) of an Austrian case, which concerned Simone Leitner, a ten-year old who went with her parents on holidays, with a package tour deal. She contracted food poisoning, thus ruining the family vacation; parents sued the tour operator upon return, trying to recover also for the pain and suffering caused by the food poisoning. But Austrian law does not provide compensation for non-material damages. The Austrian court referred the case to the ECJ, seeking a ruling as to whether the European Directive on Package travel, travel, package holidays, and package tours was relevant. The Court in Luxemburg held that Community law requires compensation for loss of enjoyment of the holiday as a form of non material damage. This conclusion rested on a comparison of Member State private law systems, most of which do accord non-material damages. Collins notes that a number of problems derive from the ruling, both in terms of methodology (since this comparative law exercise raises questions as to the limits of the ECJ competence) and effect (since it may level down to the European minimal standards potentially more generous national ones and introduces in Austrian private law an alien principle of uncertain scope, which sits uncomfortably in its new home).
The solution, it is argued, could only lie in the crystallization of a distinct European Economic Constitution, i.e., “the basic legal structure that shapes civil society . . . [and] comprises property entitlements, familial rights and obligations, and rules governing transfers of assets” (p.94). In this vein, [*755] the Treaty of Lisbon defines Europe as a “social market economy.” The structural balance implied by an “economic constitution” can be drawn in a number of ways. One can entrench a certain economic configuration in the political constitution; leaving aside the conspiratorial undertones, this is the basic analytical truth in Charles Beard’s famous tract. The permeation of fundamental rights-provisions into the realm of private relations can also be constitutionally mandated (the so-called “horizontal” or “third-party effect” of fundamental rights). At the sub-constitutional level, an equivalent function is served by regulation, taxation, and fiscal policy. Collins argues that the economic constitution can and should also be determined by means of the fundamental private law rules governing basic social relations; thus the need for a European Civil Code. He acknowledges that many would have reservations with respect to the idea of private law as an economic constitution, since “private law has the appearance of apolitical, or even pre-political, rules that have little bearing on the grand schemes of justice and power that provide a constitution for society” (p.101). However, it is argued, systemic transformations in modern law have led to the result that private law has departed from a purely “corrective justice” type of reasoning in terms of vindicating entitlements or rights and remedying private wrongs. Nowadays, “private law has been infected with the goal-oriented reasoning of regulation” (p.111). Collins believes that a “rights discourse” (as opposed to a purely instrumental, policy- and welfare-oriented pattern of justification) would be more appropriate for private law courts to tackle these new tasks and reason through the policy implications of their decisions.
Cultural and cultural-legal fears of codification are addressed and deflected in two chapters (5 and 6). One needs to take such fears seriously, as there is a basic tension or ambivalence in modern codification. Codification projects are creations of the Enlightenment and, while they bear the promise of unencumbered reason, they also suffer from the hegemonic tendencies of rationalistic hubris. Bentham’s hope, for instance, to produce a Pannomion, the code of all codes, in which there would be “no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for” has a chilling side. But Bentham himself meant no harm by it. Contrariwise, he thought he was only helping the English liberate themselves from the obscurantist pretensions of the common law – “Judge & Co.” – and live by the dictates of reason (namely, his). On a related note, a European Civil Code sounds very much like yet another technocratic-dystopian mega-project, bestowed by Brussels upon the reluctant masses and forced on the still very diverse private legal systems. According to Collins, we need not fear, as his proposed code would be a code of principles, not rules. The aim is not market harmonization but an Economic Constitution, “agreement on the general principles of the European Social Model in its application to social and economic relations in civil society” (p.134). This more limited or more foundational purview would consequently allow for justifiable qualifications and a measure of diversity in terms of actual application. The practice of the European Court of Human Rights of leaving national systems a “margin of appreciation” in terms of balancing and qualifying Convention rights is presented as a [*756] successful human rights counterpart. Collins argues persuasively that all national legal systems have, not only a “welfarist” side (i.e., oriented towards material welfare and the satisfaction of individual wants and preferences), but share also a strong commitment to “perfectionist” reasoning – i.e., the pursuit of “the good life” and a quest for the philosophical “Ought.” Since national private law systems and the tradition of private law reasoning are “embedded in the perfectionist idea that it is possible to discover what is right and good by means of a rational inquiry” (p.165), a code of principles could to a certain extent become the common denominator. A code of principles would resonate with, rather than displace the various national legal systems.
The last three chapters cover the mechanics and practical implications. The Code is to be implemented as a Directive. Since Directives are legislative acts that bind Member States to a result only and are not self-executing, this would allow the code to serve as a second-order rule of interpretation, rather than simply preempt national codes (much like a constitution, in that way too, ventures Collins at p.239).
In closing, I have a few bones to pick with this overall powerfully argued, well written, and instructive book. I suspect that Professor Collins’ version of private law European constitutionalism shares with Stepan Trofimovich and the European constitutional projects the downfalls of noble but undefined idealism. The proverbial devil is however always in the details.
True it is, that few now believe the rules of private law to be “apolitical” or “pre-political,” that is, “natural” and “objective,” “given.” Blackstone famously defined property as “an absolute and despotic dominion,” whose “true and solid foundation” was to be found in Genesis 1:28, “whatever airy metaphysical notions may have been started by fanciful writers upon this topic.” Since the turn of the last century we know better, and it has become impossible to read such passages without a certain respectful amusement and maybe melancholy, such as one experiences in front of an antique. It is also true that private law and private law adjudication have acquired a policy dimension. But to take this reality and turn it into an express policy prescription requires a big leap of faith (much like, to use the logic of Collins’ own vocabulary, acknowledging an “infection” should not lead to cheerfully spreading diseases).
Collins believes that regular courts deciding private law cases have the requisite aptitudes to balance (first-hand, non-referentially, and as a rule rather than the exception) rights, principles, and values (such as will compose his code). He places much faith, throughout his book, in the public law human rights jurisprudence of national constitutional courts and the European Court of Human Rights. If those courts do such a wonderful job on human rights, he reckons, then so will private law courts when navigating their own brand new, ready-made European kingdom of ends. But this does not follow. In the public law literature, the question of methodology in balancing is still very contentious. It does not form the object of general agreement, as the reader [*757] gleans from Collins’ presentation of the issue. Moreover, even if it were granted, purely for the sake of argument, that the methodology of human rights balancing meets with universal acclaim, in Europe at least it is systemically accepted that this task is more political in nature than “ordinary” adjudication. The acceptance results in distinct institutional mechanisms (explicitly politicized appointments, short terms of office, often non- renewable, organizational separation from the regular court system, and so on). It is not quite the same thing to grant ordinary judiciaries the power to juggle with imponderables and let them keep their tenures and current, relatively autonomous, systems of professional organization to boot.
The content of the proposed code is unapparent. The repeated suggestion that this is not the author’s attribution, since he only proffers the possibility of a project of a code founded on the common principles of European private law systems, is not fully convincing. If the aim were so modest, it would hardly justify the effort to the author and expense to the press. True, a few concrete examples and suggestions are cursorily given. For instance, it is proposed (pp.249-250) that the Code should deal with “externalities” by giving consumers protected expectations that the goods have not been produced under conditions of servitude or regarding the environmental qualities of purchased goods. A right of “affected” businesses (such as nearby shops or motels) is also suggested to “point out to damage,” in the case of plant relocations, even in the absence of a binding agreement. These are ambitious proposals and one would like to read more about how they would work in practice. Last but certainly not least, current codification projects and initiatives (such as the Common Frame of Reference) are heftily criticized throughout the volume, since they surreptitiously introduce a political agenda in the disguise of a technocratic exercise. Therefore, one wants to know in detail how Collins’ European Civil Code will be drafted. Collins has brought a heavy burden on himself. Namely, if one pursues a clearer task, such as harmonizing civil law so that the market would operate more efficiently (what he calls a “welfarist” project), leaving the drafting to the experts seems more justified. Whether the task as such is legitimate is another matter. But if one is a more of a “perfectionist” and wants to constitutionalize European civil law and write a “constitution for everyday life” with human rights, and principles, and justice for all, the reader is wont to know who should compose the convention and what the procedure should look like. All well-mannered people of sound intellect and good will can agree on a set of pertinent principles, goals, aims, and aspirations, especially if they are pitched at a high enough level of generality (this observation goes as well for the remarks above on the dearth of methodology). The problem is how we reconcile these principles into some kind of workable legal arrangement. But, insofar as any hints can be detached from the general discussion, they are not promising. Autonomous agreements with broad participation (alas, the discrete but resilient charm of corporatism) are advocated for drafting standard form contracts and the creation of a European Private Law Institute, modeled after ALI, is prompted (the lures of Eurocracy, perhaps). [*758]
This is an interesting and stimulating reflection on an important topic. It can be read with much benefit by all those interested in the subject of legitimizing through law the European Union. Collins has undoubtedly justified a general need for THE EUROPEAN CIVIL CODE, and reading such a passionate and eloquent defense of continental-style codification written by a Professor of English Law is already quite exciting. The reader awaits, however, a full vindication for the second part of his book title: THE WAY FORWARD.
REFERENCES:
Beard, Charles. 1913. AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES. New York: Macmillan.
De Pauw, Willem. 2007. EXPERT REPORT ON THE FIGHT AGAINST CORRUPTION/COOPERATION AND VERIFICATION MECHANISM, available at http://www.economist.com/media/pdf/romaniacorruption.pdf .
Grimm, Dieter. 2009. “Gesellschaftlicher Konstitutionalismus-Eine Kompensation für den Bedeutungsschwund der Staatsverfassung?” in FESTSCHRIFT FÜR ROMAN HERZOG ZUM 75. GEBURTSTAG 68-81. München: C.H. Beck.
Halberstam, Daniel and Christoph Möllers. 2009. “The German Constitutional Court says: ‘Ja zu Deutschland!’” 10 (8) GERMAN LAW JOURNAL 1241-1258.
Peterson, John. and Michael Shackleton. 2006. THE INSTITUTIONS OF THE EUROPEAN UNION. Oxford: Oxford University Press.
Sadurski, Wojciech, Adam Czarnota, and Martin Krygier (eds.). 2006. SPREADING DEMOCRACY AND THE RULE OF LAW?: THE IMPACT OF EU ENLARGEMENT ON THE RULE OF LAW, DEMOCRACY, AND CONSTITUTIONALISM IN POST-COMMUNIST LEGAL ORDERS. Berlin: Springer.
Schönberger, Christoph. 2009. “Lisbon in Karlsruhe: Maastricht’s Epigones at Sea.” 10 (8) GERMAN LAW JOURNAL 1201-1218.
CASE REFERENCES:
LISBON CASE, BVerfG, 2 BvE 2/08, from 30 June 2009, available at: http://www.bverfg.de/entscheidungen/es20090630 (German) and http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html (English).
REWE-ZENTRAL AG v. BUNDESMONOPOLVERWALTUNG FÜR BRANNTWEIN (CASSIS DE DIJON CASE), Case 120/78, [1979] ECR 649; [1979] 3 CMLR 494.
SIMONE LEITNER v. TUI DEUTSCHLAND GMBH & CO. KG, Case C-168/00 [2002] ECR I-2631.
© Copyright 2009 by the author, Bogdan Iancu.
