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Lecturer in Law,
The Queen’s University of Belfast.

Email: [email protected]

Copyright © 2000 Gordon Anthony
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

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A problem that is common to all legal orders is how to ensure that individuals enjoy full and effective protection of their rights. In the European Union legal order the problem has long been compounded by the fact that the supranational order co-exists with national legal orders that have separately constituted procedural rules and remedies. Although the European Court of Justice was, for many years, content to allow national rules to govern the protection of EU law rights, the existence of variable remedial standards inevitably gave rise to the perception that EU law rights may be better protected in some Member States than in others. This understanding led the European Court of Justice to introduce into the EU legal order a series of obligations that were intended to supplement national provisions and to create a more uniform standard for the protection of EU law rights (obligations which now famously include the provision of interim protection to EU law rights and the award of damages for a breach of EU law by the State). However, while it is undeniable that these obligations have had a far-reaching impact in some domestic orders (see, for example, the Factortame saga in the UK), it is less clear how far they have actually achieved the core objective of harmonising national standards for the protection of EU law rights. Has the uniform protection of EU law rights in national courts been realised?

In A Legal and Political Analysis of Article 215(2) [new Article 288(2)] of the Treaty of Rome: the individual strikes back, Stefanou and Xanthaki argue that the answer to the above question is no and that the uniform protection of the individual can never realistically be expected to occur through national courts. Instead, Stefanou and Xanthaki argue that the standardised protection of the individual will only be realised when the European Court of Justice develops a willingness to hear for itself actions initiated by individuals. Focusing on the issue of damages for breach of EU law, the authors argue that there is scope within the Treaty of Rome for the development of an elaborate doctrine of concurrent liability under which the European Union would be jointly liable in damages when it fails to act upon a breach of EU law (actual or potential) by a Member State (the possibility that EU institutions and Member State governments may be jointly liable in damages is well-established in EU law, hence the argument of the book is that there should emerge a new, more vigorous, aspect to concurrent liability – see p 131). Although their argument in this regard is sometimes constructed around sweeping generalisations about the ability of domestic courts to protect an individual’s EU law interests, it is an argument that is not only innovative, but also provocative. Thus, while there may be little in the European Court of Justice’s jurisprudence to suggest that legal developments of the kind urged are imminent, Stefanou and Xanthaki’s book forces the reader to look beyond accepted understandings about the workings of courts in the European Union and to reassess how far the European Court of Justice should further engage in judicial activism.

The book adopts an interdisciplinary approach (legal and political science) and proceeds from the starting point that there are two main theoretical paradigms within which legal developments may be situated. These paradigms are cast in terms of a “supranational versus intergovernmental dialectic” (p 3) and the authors argue that the supranational paradigm provides the required intellectual justification for the development of concurrent liability. Although the authors recognise that there have been some remarkable developments at the national level (through the medium of the Article 177 (234) EC reference procedure), they argue that different national legal practices render the ideal of uniform protection at the national level illusory. Stated alternatively, the authors contend that intergovernmental (or statecentric) approaches to integration and the protection of the individual focus discourse around institutional actors which ultimately have individual rather than unitary preferences. It is by virtue of the fact that the need for uniform protection of EU law rights is a common problem, therefore, that they suggest that the problem can only be resolved by adopting a European perspective. “The concurrent liability scenario is, of course, a pro-integrationist solution ... its underlying logic is that a ‘European’ solution which transfers yet another national competence to the EU should be seen as a positive development” (p 191).

The book’s argument is developed over seven chapters (chapter 1 is the introduction; chapter 7 the conclusion). Chapter 2 develops some of the book’s wider theoretical considerations and establishes a framework for later analysis. Here, the authors focus in particular on classic integration theories (functionalism; federalism; neofunctionalism; intergovernmentalism; interdependence) and highlight how the theories have traditionally failed to incorporate full consideration of the individual’s role in the integration process. This failure is then compared with the practical difficulties that individuals have had in the context of Article 215(2) [288(2)] EC damages actions against the EU institutions. Chapter 3 begins by surveying all existing Article 215(2) [288(2)] EC case law and chapter 4 scrutinises in detail the substantive and procedural conditions that govern damages actions. Although the book sometimes becomes a little turgid in these chapters, it demonstrates a strong understanding and knowledge of a complex area of law. Perhaps even more significantly, the authors use these chapters to deconstruct the European Court of Justice’s judgments and to highlight areas that may be open to future development.

The key chapters are 5 & 6. Chapter 5 considers in more detail legal aspects of the argument for concurrent liability. Emphasising from the outset that the doctrine of State liability is ill-equipped to guarantee full and equal protection of individual rights (the doctrine was introduced in Case C-6/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 and developed in a line of case law that culminated in Joined Cases C-178-179 & 188-190/94 Dillenkofer v Germany [1996] 3 CMLR 469), the chapter argues that the European Court of Justice must reinvent the function of Article 215(2) [288(2)] EC. It is while making this argument that the book simultaneously is at its weakest and strongest. As stated above, the book constructs part of its arguments around sweeping assumptions about the protection of EU law rights in domestic courts, and this is particularly true of chapter 5 (at pp 120-129). Although it is axiomatic that there are remedial and procedural differences between the Member States’ legal orders, chapter 5 does not provide enough empirical evidence to convince the reader that any disparities are so far-reaching that the only way to protect the individual is at the European level. This is not to suggest, of course, that the authors needed to present a detailed comparative analysis of national procedures and practices. But given the book’s contention that the operation of the doctrine of State liability will be frustrated by national procedural disparities, it would have been pleasing to see the argument developed more rigorously.

Chapter 5’s strengths, meanwhile, are found in its arguments about how the European Court of Justice might develop a more far-reaching concurrent liability doctrine. Having identified a legal basis for concurrent liability (Article 5 [10] EC and Article 155 [211] EC), the chapter examines the admissibility and substantive requirements that should govern damages actions. In this context, the chapter demonstrates an awareness of the broader political and financial implications of the doctrine and it argues that liability should continue to depend upon the established EU law concepts of fault, damage and causation (the chapter also considers ways in which the European Commission’s liability may be determined by reference to the nature of its enforcement powers under Article 169 [226] EC). But beyond finding ways of affording EU and domestic institutions some degree of protection, the chapter emphasises how a concurrent liability doctrine would counter the remedial imbalance associated with proceedings in national courts. Thus, addressing again the imperative of uniform protection for EU law rights, chapter 5 concludes by reiterating the need for the European Court of Justice to interpret Article 215(2) [288(2)] EC expansively.

There are, of course, problems with Stefanou and Xanthaki’s arguments, and some of these are considered in chapter 6. Issues of national sovereignty and judicial activism are identified, and the authors also note that the current agenda in the European Union is dominated by the Euro rather than the “less significant” issue of individual access to justice (p 181). Nevertheless, Stefanou and Xanthaki argue that it is only through the development of more aggressive supranational doctrines that the EU legal order will start to command the support of Europe’s citizens. Returning to the earlier argument that individuals as political actors have traditionally been absent from integration discourse, the authors suggest that concurrent liability would not only ensure uniform protection of the individual, but also greatly enhance the role that individuals play relative to controlling the EU institutions. Indeed, they go further, arguing that the doctrine would facilitate the development of:

“participatory democracy, openness and transparency. It can transform ‘citizenship’ from an abstract and – according to some authors – meaningless gimmick into a concrete and substantial set of rules with practical application. If anything, the concurrent liability scenario is a citizen enabling process that offers individuals a degree of control over procedure, legal basis, substantiation of claims etc., involving the citizen in an almost supervisory role for the institutions such as the Commission. The latter is particularly important because it requires central Community institutions to go beyond rhetoric and accept democratic checks and balances that have been absent from the Community system ... Concurrent liability empowers the citizen and, at a psychological level, creates a friendly relationship with the central Community institutions ... Through concurrent liability the individual is treating the Commission as an organic part of everyday life in the same manner as his/her state” (pp 177-178).

As with any book, Stefanou and Xanthaki’s contribution leaves some issues unresolved. One issue concerns the lessons that their argument holds for issues of individual access to judicial review proceedings under Article 173 [230] EC. The European Court of Justice (and Court of First Instance) has long adopted a narrow approach to applications from individuals who have only a “direct and individual concern” in the EU decision challenged. Although Stefanou and Xanthaki note that standing would not present difficulties in relation to concurrent liability actions, their argument that cases should be heard at the European level raises questions about how far the European Courts should be willing to adopt a generous approach to other forms of individual actions as well. It is a common held belief that the European Court of Justice’s restrictive approach in applications for judicial review has been prompted in part by a concern to limit the case-load of the Courts. However, if the European Court of Justice was to reinvent the reach of Article 215(2) [288(2)] EC, would it similarly have to reinvent the reach of Article 173 [230] EC? The need to ensure uniform protection of individual rights surely goes beyond damages actions and, given that individuals cannot challenge EU measures directly before national courts (Article 177 [234] EC providing the indirect means), should there be increased rights of access to the courts in review proceedings as well? If so, would the European Courts still be able to function effectively and in a manner that best protects individual rights?

A second unresolved issue concerns the precise fate of the State liability doctrine. Stefanou and Xanthaki’s approach to the doctrine is, at best, ambivalent. On the one hand, they describe it as a “revolutionary” development while, on the other hand, viewing it as an “incomplete” tool for the protection of the individual (a point illustrated by their insistence that individuals should be permitted to initiate proceedings immediately before the Court of First Instance i.e. without exhausting domestic remedies – see pp 141-2). Although the book accepts that the State liability doctrine will still have a role to play in the wider EU process, it does not specify in clear terms what that role will be. This is regrettable and, in truth, the argument that the State liability doctrine is “incomplete” might have been presented in terms that are more positive than negative. The understanding that debate about the protection of the individual can be reduced to the “either/or” language of supranationalism versus intergovernmentalism has the potential to become a little misleading. Responsibility for the protection of the individual will, as a matter of functional and political necessity, likely continue to be divided between European and domestic courts. For that reason, the relationship between the State liability and concurrent liability doctrines might have been reconceived and made more inclusive. Is it realistic to have a system of judicial protection that allows individuals to by-pass in their entirety domestic structures? Stefanou and Xanthaki think yes. Others may disagree.

Despite these comments, Stefanou and Xanthaki’s contribution should be read by anyone who is interested in remedies in EU law. The argument of the book is innovative, and the authors’ determination to write from an interdisciplinary perspective is to be welcomed. The tendency for legal scholarship to see law as a self-contained discipline thankfully has passed, and Stefanou and Xanthaki’s work offers the benefit of a dual perspective on a particularly difficult area of law. Consequently, while the argument of the book occasionally becomes difficult to follow, it is one that is well worth considering.