This article appeared in the Volume 18, 2003 issue of Tulane European & Civil Law Forum, published by Tulane Law School in New Orleans. It may be cited as M. R. Franks, On Studying European Law, 18 Tulane European & Civil Law Forum 61 (2003).
*M R Franks is Associate Professor of Law, Southern University, Baton Rouge, Louisiana. Formerly associate professor of law, l'Université de Cergy-Pontoise, Paris, France. The author holds his Bachelor of Science and Juris
Doctor degrees from the University of Memphis.
The author is grateful to his daughter Dominique Franks, a law student at the University of Greenwich in England, for her helpful material and suggestions.
The term "European Law" refers to the law of the European Union, not to the internal, municipal law of the presently fifteen member states1 - soon to enlarge with the anticipated accession of ten of the thirteen additional countries that have applied for membership.2
Before settling on the best book to use to study or teach this subject in the United States, one first must ask, "Why even bother with European Law in America?" There are many good reasons to bother, including broadening minds and fields of view and better enabling the United States to participate in the global economy.
First, from a comparative law standpoint, it is a good thing for lawyers and future lawyers to master the principle that Judge Cardozo articulated so eloquently in Loucks v. Standard Oil Co.: "We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home."3 One can ignite the reader's yearning for betterment at home by showing, for example, that there are places on earth where fundamental human rights4 and, yes, family values5 are protected in many cases far better than in the United States.
Second, from a world-trade viewpoint, American lawyers need to be equipped to advise clients on trade with America's largest customer, the European Union. Sales of American goods and services to the European Union rival or exceed sales to our so-called "best trading partner," Canada. See Appendix A. American companies seeking to market their goods or services abroad typically start in Canada and Mexico and then move on to Europe. With 377 million people6, the European Union, arguably the largest "federal" democracy in the industrialized world, clearly is the next logical market to penetrate and the best hope for solving America's trade deficit.
But there are pitfalls. The American lawyer who would advise his client to sign a document giving a wholesaler in, say, Italy the exclusive Italian distributorship for an American product does a disservice to his client and commits malpractice! The Italian distributor is now perfectly free to market the product throughout the entire European Economic Area,7 and the American manufacturer most likely has violated European legislation prohibiting anticompetitive behavior.8
Unfamiliar rules on franchising, patents, trademarks, and copyrights stand ready to snare the unwary American practitioner.
I. The Challenge of Studying European Law in the United States
Practicing lawyers wishing to study European Law independently face a dearth of suitable material published in the United States, while law students studying the subject in the United States face additional challenges.
Law students in Europe typically take fewer courses at any one time than law students in the United States. However, law students in Europe study each subject in much greater depth. A typical syllabus on European Union law as taught in law schools in the United Kingdom will require reading five, six or seven books totaling perhaps 3800 pages.9 See Appendix B for a typical student's selection of books to study this subject in the United Kingdom. When taking their essay-style final examinations, law students in the United Kingdom are expected to cite specific cases or authorities by name from memory for each point they make!
While the American Constitution can be printed in a pamphlet that easily fits into one's shirt pocket, the European Union's "constitution" consists of several long documents: the Treaty of Paris (establishing the recently expired European Coal and Steel Community), the Treaty of Rome (establishing both Euratom and the European Economic Community), the Merger Treaty, the Single European Act, the Treaty of Maastricht, the Treaty of Amsterdam, and the Treaty of Nice.10 The Treaty of Rome alone, as amended, contains 314 articles and numerous appended protocols and declarations.
The sheer complexity of the subject must seem overwhelming both to American law students and to practitioners. There are three quasi-legislative bodies in the European Union: the Commission, the Council, and the European Parliament. There are at least nine different routes that proposed legislation may take through the maze, depending on the subject matter. Some legislation may be enacted by the Council acting alone, and some by the Commission acting alone (using the Consultative Committee Procedure, the Management Committee Procedure, or the Regulatory Committee Procedure). Other legislation requires the concurrence of both the Council and the Commission. Still other legislation requires participation of the European Parliament through either the Consultation Procedure, the Co-operation Procedure, the Co-decision Procedure, or the Assent procedure.11 Each of these procedures has its own labyrinthine flow chart. The subject matter of the legislation determines which procedure must be used. Use of the wrong procedure is absolutely fatal to the validity of the legislation.12
European Union acts can take any of several forms: Regulations, Directives, Decisions, Recommendations and Opinions.13 To these forms of legislation and quasi-legislation, add treaties between the European Union and nonmember countries, which may take at least three forms: Association Agreements,14 Commercial Agreements,15 and Mixed Agreements.16 And then there is the separate matter of the European Community budgetary process.17
To add to the confusion, the articles of both the Treaty of Rome and the Treaty of Maastricht were renumbered by the Treaty of Amsterdam.18 One must therefore read pre-1998 cases with a table of equivalences in hand.
So far, this overview has considered primarily the European Community, which is only the first of the "Three Pillars" of the European Union. The Second Pillar is Common Foreign and Security Policy; the Third Pillar is Provisions for Police and Judicial Cooperation in Criminal Matters.
All of this can give nightmares even to the best American lawyer or law student.19 European Law is daunting. And for the teacher, just how does one compress all of this into three American credit hours?
II. Criteria for Comparison
In evaluating books on European Union Law, one must ask several questions:
|(1)||Is the book so intimidating that before book's end the reader's interest in the subject will wane and perish?||(2)||If for law school use, can the contents of the book realistically be taught in three credit hours?||(3)||Is the scope of the material covered appropriate? Does the book include what American lawyers need to know, both to broaden their horizons and to serve their clients contemplating doing business in Europe?|
A fourth consideration is whether European Law can better be learned by the European method or the American method. Is exposure to the European approach an integral part of the experience of learning European Law? Is the reader or student deprived of some of the European flavor, of learning how European lawyers think, by not being presented with this material via the European method?
III. The Comparison: Scope of Material Covered
Authors George A. Bermann, Roger J. Goebel, William J. Davey and Eleanor M. Fox are all respected American law professors educated in the United States. They have generated a typical American casebook, long on cases and "notes and questions." Professor Bermann told the present writer that his goal in writing Cases and Materials on European Union Law was "to give American and other non-EU-trained students a thorough and stimulating introduction to European Union law, both institutional and substantive."20
At 1420 teaching pages,21 plus an additional 847 pages of selected documents, it would be ambitious indeed for any law professor to try to cover all 2267 pages of Professor Bermann's Cases and Materials on European Union Law in one semester, much less to expect the student taking an American law-school courseload to be able to read and digest the material in that time. The lawyer in practice reading the book may find the material tedious.
Author Alain Levasseur, on the other hand, is a Frenchman who received both his primary law degree and a postgraduate degree in law (D.E.S.) in France and holds a doctorate in law (honoris causa) from Aix-en-Provence University. He is a chaired professor of long and distinguished standing on the law faculty of Louisiana State University. Professor Levasseur also holds a Chaire Jean Monnet in European Community Law from the European Commission. His co-author, Richard Scott, is Professor of Law Emeritus at American University of Paris, presently teaching at Thomas Jefferson School of Law in San Diego, California. He received his J.D. from the University of Chicago and his J.S.D. (Dr. en Droit) from the University of Paris. The authors were assisted by Artemis Togoussidou-Meletis, an attorney in Athens.
Professor Levasseur told the present writer that his goal in writing The Law of the European Union - A New Constitutional Order was "to teach the subject more in the European method, consistent with the American case method.22" The Levasseur-Scott book succeeds in this goal. The book can readily be taught in three credit hours, and the practicing lawyer will find the material both comprehensible and intriguing. The book, written in a very readable style, runs 1079 teaching pages,23 with an additional 430 pages of separate supplementary material.
The Levasseur main volume consists of approximately 517 words per page, for a total of about 554,000 words.24 Approximately 34% of the 1071 teaching pages is case material, 26% per cent original material written by the authors, 19% reprinted commentary of others, 19% official documents (treaty, legislative and official material found in the main volume rather than in the separate documents supplement), and 2% footnote and endnote matter.25 Most legislative and official materials and treaties, however, are to be found primarily in the separate documents supplement, not the main volume.
The Bermann main volume consists of approximately 490 words per page, for a total of about 696,000 words.26 Approximately 41% of the 1420 teaching pages is case material, 49% original material written by the authors (mainly in the form of "Notes and Questions"), 0% reprinted commentary of others, 6% official documents (treaty, legislative and official material as found in the main volume rather than in the separate documents supplement), and 4% footnote and endnote matter.27 Most legislative and official materials and treaties, however, are to be found primarily in the separate selected documents supplement.
On scope of material covered, the Bermann book includes more material than the Levasseur book on the subjects of intellectual property, regulation of anticompetitive behavior, and trade in general. Such material is useful from the practical standpoint of enabling American lawyers better to advise their American clients contemplating entering the European market. Professor Levasseur's response is that these matters are soon to be covered in a forthcoming, second volume.28
The Levasseur work, however, does the far superior job of conveying the constitutional and institutional structure of the European Union and the very complex jurisdiction of its courts. The book's coverage is adequate on the "Four Freedoms"29 of the European Community: freedom of movement of goods,30 persons,31 services,32 and capital33 - including sexual equality in the workplace34 - this despite the smaller quantity of material on lawyer mobility.35
Professor Bermann's 847 pages of separate supplementary material are highly excerpted, while Professor Levasseur's 430-page separate documents supplement presents the basic documents of the European Union in their entirety - just as European students would study them.
The title of the first edition of Professor Bermann's book was Cases and Materials on European Community Law.36 (Emphasis added.) The title was changed with the second edition and now claims a broader scope, European Union Law.37 But the contents of the book are largely unchanged and still primarily limited to the First Pillar, European Community Law. Six scant pages pertaining to the Second Pillar have been tacked on to the original Bermann work, with two pages devoted to the Third Pillar. In contrast, the Levasseur work, being a first edition, was written post-Maastricht with all three pillars of the European Union clearly in mind from the outset and all three well covered. The Levasseur book lives up to its title.
Of interest in both the Bermann main volume and supplementary material, and in the Levasseur documents supplement, is the Lawyers Services Directive.38 Also relevant, but neither covered by Levasseur nor adequately covered by Bermann, is the Lawyers Establishment Directive.39 The two directives permit any EU citizen licensed to practice law in any member state to move to and open an office in any other member state. The lawyer need only present his credentials to the licensing authority of the host state. Registration is automatic, and the foreign lawyer may then practice in the host state using his home-state title (barrister, solicitor, advocate, et cetera). The foreign lawyer's right to render services includes advising local clients (regardless of their nationality) on host-state law as well as home-state law. This includes the right of audience in the courts of the host state.40
After three years in the host state, the lawyer is entitled to be admitted to full membership in the host state's national bar without sitting any examination.
This means a lawyer from, say, Greece may move to, say, London, open an office, and immediately begin to advise on British law. It seems ironic that a Greek lawyer may practice more readily in England than an Illinois lawyer may practice in Texas. It should be obvious to the American lawyer or law student that the differences between Greek and British law are much greater than the differences between, say, Illinois and Texas law, to say nothing of the language barrier that exists in Europe but is only nascent in Texas. Yet it is the United States that remains the more geographically restrictive country.
At a time when the world is marching toward globalization, what a mistake it would be for the United States to retreat to provincialism. American lawyers need to know of the tremendous mobility Europe accords its lawyers and law firms. Would that we were equally broad minded.
America's lawyers also need to be aware that the United States will not survive in the global economy unless we facilitate the right of Americans to sit for law examinations in other countries. Every barrier we erect will come back in mirror image to haunt us. The difficulties Americans experience in being allowed to practice in China and India are legendary. The present writer has often heard it said in Europe, "We allow you Americans to practice here far more liberally than you allow us to practice in the states." An article in the English Law Society's Gazette recently stated:
The US, which prides itself on commercial freedom and opportunity, makes things notoriously hard not just for foreign lawyers but for its own lawyers wanting to move from state to state.41
Protectionism is provincialism, and provincialism leads inexorably to poverty. Europe has had the good restraint not to retaliate - yet.
Though this one topic is not necessarily the sine qua non of European Law studies, the Bermann book does an excellent job of covering the Lawyers Services Directive, but says little about the Lawyers Establishment Directive. Bermann furnishes excerpts in his supplementary material from only the Lawyers Services Directive. Professor Levasseur discusses neither directive in his main text, but does include in his separate documents supplement the full text, sufficient for study or classroom discussion, of the Lawyers Services Directive. Neither Bermann nor Levasseur includes the text of the Lawyers Establishment Directive.
IV. How Far to Go in Using the "Case Method"
The "case method" is ideally suited to studying the common law, which essentially is a body of law hidden in case decisions and waiting to be discovered by the reader. The case method also is suitable for studying American Constitutional Law, which of course consists almost entirely of a voluminous body of case law interpreting a rather skeletal constitution.
Making case law less important in Europe is the fact that there is no doctrine of stare decisis in most European countries. All European countries except for England, Wales, Northern Ireland, and the Republic of Ireland follow the civil-law tradition, not the common-law tradition. The European Court of Justice does not recognize the doctrine of stare decisis,42 though its decisions do carry considerable weight.43
In a civil-law system cases, while still meaningful, are not as important as codes.44 The European lawyer views the abstract philosophy and history underlying legislation as critical to its understanding. Despite membership of the United Kingdom and the Republic of Ireland in the European Union, the EU's basic legal traditions are largely those of the civil law in general and of France in particular.45
Law has been taught successfully in Europe since 120846 - without using the case method. One problem is familiar to law teachers in Louisiana - the only state of the United States that truly follows the civil-law tradition: Law professors in Louisiana often are criticized by their out-of-state colleagues for not making more use of the "case method" when teaching Civil Code courses. The feeling is akin to what must be felt by the electrician whose work is being judged by a panel of plumbers. The plumbers criticize the electrician for not using a pipe wrench to tighten his connections. The tool they insist that he use, suitable though it may be for connecting pipes, is highly inappropriate for connecting electrical wires.
Six hundred twenty-six pages47 of treaties and legislation cannot effectively be assimilated solely by the case method.
Both books are excellent. The Bermann book presents a more "commerce-oriented" approach, while the Levasseur book, while adequate on commerce, seems more oriented to constitutional law, comparative law and international law.
To cover Professor Bermann's entire book and supplement, the student would have to read 2267 pages. To cover Professor Levasseur's entire book and supplement, the figure is 1509 pages.
The Bermann book is better suited to a six-hour (two-semester) course. It suffers, however, from excessive pandering to the "case method" on things better taught simply by reading selected scholarly commentaries and unabridged legislation. The Bermann book contains roughly sixty per cent more case material than the Levasseur book.48 Lawyers in practice may find the Bermann book excessive and soporific.
What the Levasseur book lacks in quantity, it makes up for in quality. The Levasseur book is absolutely the better suited to a three-hour (one-semester) course or to independent study by practitioners in the field. This much more understandable work uses a European approach to a European subject, while still including an appropriate number of cases as part of the overall presentation.
Professor Levasseur's second volume when published should also be a welcome addition - for a second round of this intriguing and vital subject, or for a second semester of it.
|Country||GDP||Exports to U.S.||Imports from U.S.|
|Canada||$727.5 billion||$239.6 billion||$171.3 billion|
|China (People's Rep.)||$1160.0 billion||$107.2 billion||$19.5 billion|
|European Union||$8280.7 billion||$301.9 billion*||$251.7 billion*|
|Japan||$4129.0 billion||$126.0 billion||$68.0 billion|
|Mexico||$590.0 billion||$142.4 billion||$120.2 billion|
*Asterisked items are shown as "N/A" in State Department Country Reports. The asterisked figures are from the European Union Web site, available at http://www.eurunion.org/profile/EUUSStats.htm.
Typical reading selection for law students in the United Kingdom studying European Law (For each specific book listed, there are of course competing books or compilations of comparable length and scope that may be substituted.)
|Type of book||Publication data||Number of pages|
|Overview||Margot Horspool, European Union Law (2d ed., Butterworths, 2000).||470 pp.|
|Commentary||Paul Craig and Gráinne deBúrca, EU Law (3d ed., Oxford University Press, 2002).||1392 pp.|
|Casebook||Stephen Weatherill, Cases & Materials on EC Law (5th ed., London: Blackstone Press, 2000).||763 pp.|
|Historical overview||T.C. Hartley, The Foundations of European Community Law (4th ed., Oxford University Press, 1998).||495 pp.|
|Constitutional and legislative materials||Nigel Foster, Blackstone's EC Legislation (13th ed., London: Blackstone Press, 2002).||626 pp.|
|Supplementary legislative materials||Charter of Fundamental Rights of the European Union||77 pp.|
|TOTAL PAGES||3823 pp.|
1 Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and United Kingdom.
2Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic, and Slovenia have been tentatively approved for membership. Applications are pending from Bulgaria, Romania, and Turkey. European Commission, Enlargement, available at http://europa.eu.int/comm/enlargement. See also Rory Watson, EU is poised for huge expansion to the East, Times (London), Oct. 10, 2002, at 16.
3224 N.Y. 99, 111, 120 N.E. 198, 201 (1918).
4See the European Convention for the Protection of Human Rights and Fundamental Freedoms. See also the Charter of Fundamental Rights of the European Union.
5See the very recent Case C-60/00, Carpenter v. Secretary of State for the Home Department (11 July 2002), and Case C-459/99, Mouvement Contre le Racisme v. État Belge (25 July 2002).
6European Commission, Eurostat Yearbook 2002, available at http://www.europa.eu.int/comm/eurostat. Cf. Delegation of the European Commission to the United States, Facts and Figures on the European Union and the United States, available at http://www.eurunion.org/profile/facts.htm.
7See, eg., Cases 56 & 58/64, Consten SARL & Grundig-Verkaufs GmbH v. Commission,  E.C.R. 299,  C.M.L.R. 418.
8See, e.g., Case 258/78, Nungesser v. Commission,  E.C.R. 2015,  1 C.M.L.R. 278.
9Law students at the University of Greenwich in England are given a list of some 64 books, none mandatory. From this list, each student is expected to select one or more textbooks, one or more casebooks, and one or more statutory compilations. The choice of books is up to each individual student, as lectures do not plod page by page through a mandatory casebook. A typical student's book selection is given in Appendix B. Students will be tested very rigorously and in great depth.
10These documents are collected in their entirety or in part in various compilations, such as Nigel Foster, Blackstone's EC Legislation (13th ed., London: Blackstone Press, 2002). 626 pp.
11See, e.g., EC Treaty arts. 39(3)(d), 86(3), 94, 202, 211, 249-252, 308.
12Case C-300/89, Commission v. Council (Titanium Dioxide),  E.C.R. I-2687,  3 C.M.L.R. 359; Case 138/79, Roquette Frères S.A. v. Council,  E.C.R. 3333.
13See Case C-322/88, Grimaldi v. Fonds des Maladies Professionnelles,  E.C.R. 4407,  2 C.M.L.R. 265.
14EC Treaty art. 310.
15Id. art. 133.
16See generally T. C. Hartley, The Foundations of European Community Law 155-182 (4th ed., Oxford University Press, 1998).
17EC Treaty arts. 268-280. See also T. C. Hartley, supra note 16, at 44-48. Each of these procedures has its own labyrinthine flow chart.
18Treaty of Amsterdam art. 12.
19There is hope for eventual simplification. A Convention on the Future of Europe, established at Nice in December 2001, may ultimately produce a draft constitution for Europe. See Gareth Harding, Analysis: US Constitution May be EU Model, United Press International dispatch, Sept. 14, 2002.
20Telephone Interview with Professor George A. Bermann (Sept. 30, 2002).
21Numbered pages 1-1420. Excludes title pages, dedication, preface, foreword, acknowledgments, legal sources and citation forms, summary of contents, table of contents, tables of cases and decisions, and index, as well as the separate selected documents supplement.
22Telephone Interview with Professor Alain Levasseur (Sept. 6, 2002).
23Numbered pages 1-1071. Excludes title pages, dedication, summary table of contents, preface, acknowledgments, tables of cases, list of abbreviations, bibliography, and index, as well as the documents supplement.
24517.30 words per teaching page x 1071 teaching pages = 554,028 total teaching words. The word count was accomplished by the present writer using a computer program for generating random numbers to select a sample of 20 pages. Words on each selected page were then counted and the mean page length was then multiplied by the number of "teaching pages" in the book. Excluded were the title pages, dedication, summary table of contents, preface, acknowledgments, tables of cases, list of abbreviations, bibliography and index, as well as the documents supplement.
25These percentages were derived by selecting a sample of 100 positions in the book, using a computer program for generating random numbers to identify 100 teaching pages and a manual random-number generator (a die) to assign a position on each page so identified (topmost sixth of page, middle third of upper half of page, lower third of upper half of page, upper third of lower half of page, middle third of lower half of page, bottom-most sixth of page). The selected portion of the randomly-chosen page segment was then characterized as case material, original material written by the authors, reprinted commentary of others, official documents (treaty, legislative and official material found in the main volume, but not in the separate documents supplement), and footnote and endnote matter within the teaching pages. The percentages obtained over the 100 sample pages are assumed to be representative of the entire book. Excluded were the title pages, dedication, summary table of contents, preface, acknowledgments, tables of cases, list of abbreviations, bibliography and index, as well as the documents supplement.
26490.25 words per teaching page x 1420 teaching pages = 696,155 total teaching words. See methodology described supra note 24.
27See methodology described supra note 25.
28Telephone Interview with Professor Alain Levasseur, supra note 22.
29Margot Horspool, European Union Law (2d. ed., Butterworths, 2000), ¶¶ 12.4, 16.1.
30EC Treaty arts. 23-31.
31Id. arts. 18-22, 39-48.
32Id. arts. 49-55.
33Id. arts. 56-60.
34Two cases on sexual equality are presented, Case 80/70, Defrenne v. Sabena,  E.C.R. 445,  1 C.M.L.R. 494, and Case 14/830, Von Colson & Kamann v. Land Nordrhein-Westfalen,  E.C.R. 1891,  2 C.M.L.R. 430. This is sufficient to give the flavor of the decisions of the European Court of Justice on sexual equality. Other cases could have been cited (and indeed were in the weighty Bermann tome): e.g., Case 170/84, Bilka-Kaufhaus GmbH v. von Hartz,  E.C.R. 1607,  2 C.M.L.R. 701; Case 96/80, Jenkins v. Kingsgate (Clothing Productions) Ltd.,  E.C.R. 911,  2 C.M.L.R. 24. Still other cases, e.g., Case 129/79, Macarthys Ltd. v. Smith,  E.C.R. 1275,  2 C.M.L.R. 205, could have been cited by both authors, but at the price of making the books even weightier yet.
35In all fairness to Professor Levasseur, the extent to which American standards should be liberalized has been a matter of disagreement between the present writer and Professor Levasseur for some years. The present writer takes the French view and favors liberalization. The good professor from France, however - perhaps jaded by too many years of teaching in the United States - takes the more conservative, typically American viewpoint.
37The European Community, formerly the European Economic Community, is but one part of the European Union. There are three "pillars" to the European Union. The First Pillar is the European Community; the Second Pillar is Common Foreign and Security Policy; the Third Pillar is Provisions for Police and Judicial Cooperation in Criminal Matters.
38EEC Council Directive 77/249.
39EC Council Directive 98/5.
40See Case 55/94, Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano,  ECR I-4165; Case 107/83, Ordre des Avocats v. Klopp,  E.C.R 2971,  1 C.M.L.R. 99.
41Bibi Berki, Neil Rose & John Robins, To the Ends of the Earth, 97 L. Society's Gazette 22 (May 11, 2000).
42Hartley, supra note 16, at 75.
43See, e.g., Great Britain's European Communities Act 1972, Art. 3, as amended by the European Communities (Amendment) Act 1986, giving force of precedent in the United Kingdom to decisions of the European Court of Justice and the Court of First Instance.
44See the excellent discussion of the difference between the common-law doctrine of stare decisis and the civil-law doctrine of jurisprudence constante in Canfield v. Orso, 283 F.3d 686 (5th Cir. 2002).
45Hartley, supra note 16, at 130-132.
46The year 1208 marks the founding both of the Sorbonne in Paris and of the University of Bologna in Italy. Harvard Law School was not founded until 1817.
47E.g., Foster, supra note 10.
4859.88 per cent, more or less. 34% x 1071 = 364.14. 41% x 1420 = 582.20. 582.20 ÷ 364.14 = 1.5988.
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