1.  A ‘NEW LEGAL ORDER’ IN A COMPARATIVE COMMON LAW PERSPECTIVE Nika Bačić Selanec, LL.M. (UMich) Department of European Public Law University of Zagreb - Faculty of Law nika.bacic@pravo.hr

2. CIVIL LAWCOMMON LAW WHAT IS LAW BLACK LETTER LAW Dennis: “ Law is a complete and perfect system of rules which may be deduced for the resolution of all controversies” Mehren & Gordley: “Codified and legislatively given law is a perfect, complete and self- contained system.” -LEGISLATION IS THE SOURCE OF LAW SYSTEM OF PRECEDENTS Levi: “Common law system is a process in which a proposition descriptive of the first case is made into the rule of law and then applied to a similar situation. ” - MORE THAN ONE ACCEPTABLE FORMULATION OF A GENERAL PRINCIPLE OF LAW WHAT IS THE ROLE OF JUDICIARY MECHANICAL JUDICIAL PROCESS Heck: “What our law needs is a judge who stands by the legislator’s side as an intelligent helpmate, who considers the word and the commands of the law and applies the value judgments embodied in the law.” -JUDGES APPLY THE LAW -DEDUCTIVE METHODOLOGY Portalis: “A code, however complete it may seem, is hardly finished before a thousand unexpected issues come to face the judge. For laws, once drafted, remain as they were written. Men, on the contrary, are never at rest. New facts create new results.” INTERPRETATIVE JUDICIAL PROCESS Levi: Three steps of judicial reasoning 1)announce a rule designed from material facts of the first case 2) recognize similarity between cases 3) apply the rule to the second case Dennis: “Common law allows a judge to be the primary lawmaker, and previously decided case to be his primary source of law.” -JUDGES INTERPRET THE LAW -JUDGES SAY WHAT THE LAW IS -DEDUCTIVE & INDUCTIVE METHODOLOGY

3. JUDICIAL AUTHORITY and JUDICAL ACTIVISM IN COMMON LAW SYSTEMS UNITED STATES - Marbury v Madison  US Constitution, Article III Section 2 In all cases affecting public officials, the Supreme Court shall have original jurisdiction. In all other cases and controversies arising under this Constitution, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. It is the duty of the judicial branch to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

4. JUDICIAL AUTHORITY and JUDICAL ACTIVISM IN COMMON LAW SYSTEMS UNITED STATES - Marbury v Madison  IF AN ACT OF CONGRESS CONTRAVENS THE CONSTITUTION, IT IS VOID  AND THE SUPREME COURT IS THE ONE TO SAY WHAT THE LAW IS – TO INTERPRET THE CONSTITUTION.  THUS, SUPREME COURT CONTROLS THE CONSTITUTIONALITY OF ACTIONS OF CONGRESS AND ACTIONS OF EXECUTIVE.  Judiciary Act was unconstitutional, and thus did not have to be applied  Did not have to direct executive to appoint Marbury  But left open the possibility that, if the Judicial Act was constitutional, they could mandate the executive to appoint Marbury  POLITICALLY SMART DECISION, FINAL RESULT WAS IN FAVOR OF THE EXECUTIVE, BUT ESTABLISHED A PRECEDENT FOR JUDICIAL REVIEW

5. JUDICIAL AUTHORITY and JUDICAL ACTIVISM IN COMMON LAW SYSTEMS UNITED STATES – McCulloch v Marryland  US Constitution, Article I Section 8 – ENUMERATED POWERS The Congress shall have power to regulate interstate commerce, collect taxes, and borrow money on the credit of the United States.  US Constitution, Article I Section 8 – NECESSARY & PROPER CLAUSE The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the powers of the Government of the US vested by this Constitution (enumerated powers of the federal government).  US Constitution, Article VI Section 2 – SUPREMACY CLAUSE This Constitution, and the laws of the United States which shall be made in Pursuance thereof, shall be the SUPREME LAW OF THE LAND; any thing in the constitution or laws of any State to the contrary notwithstanding. TWO QUESTIONS: 1. Is federal law establishing a bank within their constitutional powers? 2. Is state law proscribing a tax unconstitutional?

6. JUDICIAL AUTHORITY and JUDICAL ACTIVISM IN COMMON LAW SYSTEMS UNITED STATES – McCulloch v Marryland TWO CONSTITUTIONAL PRINCIPLES: 1. the Constitution grants to Congress IMPLIED POWERS for implementing the Constitution's express powers, in order to create a functional national government  „Let the ends be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the LETTER and SPIRIT of the constitution, are CONSTITUTIONAL."  creation of the Bank was appropriately related to Congress's legitimate power to tax, borrow, and regulate interstate commerce - the Bank was constitutional under the Necessary and Proper Clause 2. state action may not impede valid constitutional exercises of power by the Federal government  „The US government, though limited in its powers, is supreme within its sphere of action, and its laws made in pursuance of the constitution, form the SUPREME LAW OF THE LAND.„  Marryland tax was unconstitutional because it undermined the superior laws of federal US government

7. JUDICIAL AUTHORITY and JUDICAL ACTIVISM IN COMMON LAW SYSTEMS US SUPREME COURT - Marbury v Madison  JUDICIAL REVIEW The SUPREME COURT has the power to INTERPRET THE CONSTITUTION. The SUPREME COURT CONTROLS THE CONSTITUTIONALITY of actions of CONGRESS and actions of EXECUTIVE US SUPREME COURT - McCulloch v Marryland  ENUMERATED + IMPLIED POWERS (letter + sprit of Constitution)  SUPREMACY Supreme Court says what the federal powers are SUPREMACY OF FEDERAL LAW OVER STATE LAW Supreme Court controls the constitutionality of State laws COURT INTERPRETS THE CONSTITUTION (POWERS OF FEDERAL GOVERNMENT), CONSTITUTION & COURT INTERPRETATIONS ARE SUPREME? EU EQUIVALENT??

8. EU METHODOLOGY OF LEGAL INTERPRETATION Gunnar Beck  TEXTUAL (precondition)  CONTEXTUAL (systematic)  Preamble  Other provisions of the same legal act  Related secondary and primary EU legislation  Common definitions  General principles of EU law  TELEOLOGICAL (purpose, aim, objective)  Teleological criteria  Functional criteria  Effectiveness criteris INDUCTIVE & DECUCTIVE METHODOLOGY? ‘LETTER & SPIRIT’ OF THE CONSTITUTION?

9. 26/62 Van Gend en Loos  Article 12 EEC Treaty Member States shall refrain from introducing between themselves any new customs duties on importation or exportation or charges with equivalent effect and from increasing such duties or charges as they apply in their commercial relations with each other.  Article 177 EEC Treaty The Court of Justice shall be competent to make a preliminary decision concerning the interpretation of this Treaty. QUESTIONS? 1. Does Article 12 EEC have direct application within the territory of a Member State? In other words, can nationals of such a state on the basis of this article lay claim to individual rights which the courts must protect? 2. Does applying an import duty of 8% represented an unlawful increase within the meaning of Article 12 EEC or does this article allow the change of the duty applicable, although amounting to an arithmetical increase?

10. 26/62 Van Gend en Loos PRELIMINARY ISSUE – JURISDICTION OF THE COURT Dutch and belgian governments CHALLENGE THE JURISDICTION of the Court on the ground that the reference relates not to the interpretation but to the application of the Treaty in the context of the constitutional law of the member states, and that in particular the Court has no jurisdiction to decide whether the provisions of the EEC Treaty prevail over Dutch legislation or over other agreements entered into by the Netherlands and incorporated into Dutch national law. the solution of such a problem, it is claimed, falls within the exclusive jurisdiction of the national courts.  CLAIM: APPLICATION OF INTERNATIONAL LAW IS A MATTER OF NATIONAL CONSTITUTIONAL LAW HOWEVER in this case the Court is not asked to adjudicate upon the application of the Treaty according to the principles of the national law of the Netherlands, which remains the concern of the national courts, but is asked, in conformity with Article 177.1(a) of the Treaty, only to interpret the scope of article 12 of the said Treaty within the CONTEXT of Community law and with reference to its effect on individuals. This argument has therefore no legal foundation. In order for the Court to have jurisdiction in the present case, it is necessary only that the question raised should clearly be concerned with the interpretation of the treaty. It appears from the WORDING OF THE QUESTIONS referred that they relate to the interpretation of the treaty. The Court therefore has the jurisdiction to answer them.  ANSWER: THIS IS NOT APPLICATION OF INTERNATIONAL LAW IN MEMBER STATES, THIS IS INTERPRETATION OF THE TREATIES – ECJ’s JUDICIAL REVIEW

11. 26/62 Van Gend en Loos – Q1 RIGHTS OF INDIVIDUALS – Direct Effect  To ascertain whether the provisions of an international treaty extend their effects to create rights of individuals, it is necessary to consider the spirit, the general scheme and the wording of those provisions.  The OBJECTIVE of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the community, implies that this treaty is more than an agreement which merely creates mutual obligations between the contracting states.  This view is confirmed by the PREAMBLE to the Treaty which refers not only to governments but to peoples.  It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects member states and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the community are called upon to cooperate in the functioning of this Community through the European Parliament and the Economic and Social Committee. - CONTEXT

12. 26/62 Van Gend en Loos – Q1 RIGHTS OF INDIVIDUALS – Direct Effect  The TASK assigned to the Court of Justice under Article 177, the PURPOSE of which is to secure UNIFORM INTERPRETATION of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. - ECJ’s JUDICIAL REVIEW  The CONCLUSION to be drawn from this is that the Community constitutes a NEW LEGAL ORDER of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. – INDUCTIVE METHODOLOGY – SUPRANATIONALITY (nowhere in the text)

13. 26/62 Van Gend en Loos – Q1 RIGHTS OF INDIVIDUALS – Direct Effect  Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them RIGHTS which become part of their legal heritage. - PURPOSE  These RIGHTS ARISE not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the Community. MS OBLIGATIONS = INDIVIDUAL RIGHTS  With regard to the GENERAL SCHEME of the Treaty as it relates to customs duties, it must be emphasized that Article 9, which bases the Community upon a customs union, includes as an essential provision the prohibition of these customs duties and charges. This provision is found at the beginning of the part of the Treaty which defines the 'foundations of the Community '. It is applied and explained by Article 12. – CONTEXT and IMPORTANCE

14. 26/62 Van Gend en Loos – Q1 RIGHTS OF INDIVIDUALS – Direct Effect  The WORDING of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation.  The very NATURE of this prohibition makes it ideally adapted to produce DIRECT EFFECTS in the legal relationship between member states and their subjects.  The implementation of Article 12 does not require any legislative intervention on the part of the states. The fact that under this Article it is the member states who are made the subject of the negative obligation does not imply that their nationals cannot benefit from this obligation.  It FOLLOWS FROM THE FOREGOING considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as PRODUCING DIRECT EFFECTS AND CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT. INDUCTIVE / DEDUCTIVE?

15. 26/62 Van Gend en Loos – Q2 CHANGE OF DUTIES for the SAME PRODUCT  Considerng Article 12 EEC prohibition to increase import duties, such an illegal increase may arise  from a re-arrangement of the tariff resulting in the classification of the product under a more highly taxed heading and  from an actual increase in the rate of customs duty.  It is of little importance how the increase in customs duties occurred when, after the treaty entered into force, the same product in the same member state was subjected to a higher rate of duty. - EFFECT  National court must enquire whether the product, in this case ureaformaldehyde originating in Germany, is charged in Netherlands with an import duty higher than before the Treaty entered into force.

16. 26/62 Van Gend en Loos THREE CONSTITUTIONAL PRINCIPLES:  JUDICIAL REVIEW OF ECJ – ECJ INTERPRETS THE TREATY AND SAYS WHAT THE LAW IS, WHAT ARE THE POWERS OF THE EEC  SUPRANATIONALITY – ‘NEW LEGAL ORDER’  DIRECT EFFECT – EU LAW CREATES RIGHTS FOR INIDIVIDUALS THAT NATIONAL COURTS MUST PROTECT – EU LAW DIRECTS MEMBER STATES WHAT TO DO, regardless of their national law All interpreted by the Court to be in accordance with the spirit, the general scheme and the wording of those provisions – although NOT IN THE TEXT.

17. 6/64 Costa v E.N.E.L. RELATIONSHIPS between NATIONAL and INTERNATIONAL LAW MONISM (naturalism, Hans Kelsen) IL part of NL (no need for domestic implementation) automatic legal effect - lower than constitution, higher than laws primacy of international law derivative of natural law DUALISM separation of IL & NL IL part of NL only if implemented in NL legal effect - lex posterior derogat legi priori  NETHERLANDS monist – in Van Gend, no problem to accept that international law is supreme over national law  ITALY dualist

18. 6/64 Costa v E.N.E.L. PROBLEM:  Treaty of Rome incorporated into Italian law in 1958  could not prevail over the Italian law on electricity nationalisation law enacted in 1962  ITALIAN CONSTITUTIONAL COURT: lex posterior derogat legi priori  Article 7 EEC Treaty Within the field of application of this Treaty and without prejudice to the special provisions mentioned therein, any discrimination on the grounds of nationality shall hereby be prohibited.  Article 37.2 EEC Treaty Member States are under an obligation to refrain from introducing any new measures on state monopolies of a commercial character to prevent discrimination on the grounds of nationality. ITALIAN LAW v. EU LAW

19. 6/64 Costa v E.N.E.L.  By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply. – PRECEDENT!! RELYING ON VAN GEND, NO MORE 'INTERNATIONAL' LEGAL SYSTEM  By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. – CONTEXT & PURPOSE  The integration into the laws of each member state of provisions which derive from the community, and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the treaty. - PURPOSE

20. 6/64 Costa v E.N.E.L.  The transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the Treaty carries with it a PERMANENT LIMITATION OF THEIR SOVEREIGN RIGHTS, against which a SUBSEQUENT UNILATERAL ACT INCOMPATIBLE WITH THE CONCEPT OF THE COMMUNITY CANNOT PREVAIL. Consequently the Treaty is to be applied regardless of any domestic law, whenever questions relating to the interpretation of the treaty arise. CONSTITUTIONAL PRINCIPLE  SUPREMACY OF EU LAW OVER NATIONAL LAW!  confirmed supranationality & direct effect

21. US CONSTITUTIONAL LAW EU CONSTITUTIONAL LAW Marbury v Madison JUDICIAL REVIEW SC power to interpret the Constitution and say what law is SC says what federal powers are Van Gend en Loos JUDICIAL REVIEW ECJ power to interpret the Treaties and say what law is ECJ says what EU powers are – NEW LEGAL ORDER ‘of international law’ – DIRECT EFFECT – creating rights for individuals which courts must protect McCulloch v Marryland EXPRESS and IMPLIED POWER letter and spirit of the constitution SUPREMACY of federal law (Constitution as interpred by SC) over state law Costa v ENEL SUPREMACY of EU LAW Confirmed judicial review SUPRANATIONALITY - NO MORE ‘INTERNATIONAL LAW in the ’NEW LEGAL ORDER’

22. Thank you for your attention!