Review Notes

• DOI: http://doi.org/10.1111/1468-0386.00078
• Date: 01 June 1999
• Published date: 01 June 1999

Review Notes

John Usher, General Principles of EC Law (Longman, Harlow 1998): 192pp, 216mm3

138mm, ISBN 0-582-27749-3

Professor Usher’s book is part of a new European Law Series, recently launched by

Longman, which seeks to address specif‌ic topics of European Law, such as consumer

law, public procurement, external relations, tax law, social policy, and human rights.

This is a series to be welcomed in a context of EU law publications which was once

dominated, either by the general textbooks and treatises (which tended to be too

broad and extensive while no longer able to cover all the relevant f‌ields of EC or EU

law), or by monographs which, with some exceptions, tended to focus on more narrow

topics and be aimed at a primarily academic audience. As a consequence, this new

series f‌ills a gap in EU law publications being, as the editor states in the preface, ‘the

f‌irst comprehensive series of topic-based books on EC law aimed primarily at a

student readership’. The authors chosen for the different titles are a guarantee of

quality and expertise in the f‌ields covered. This is the notably the case with regard to

Professor Usher and his book on the General Principles of EC Law. As with the other

books, this is a concise presentation and review of this topic of EC law.

It must f‌irst be noted that the book does not address classic principles of EC law,

such as direct effect, supremacy or the principles derived from fundamental rights.

These principles are addressed in other volumes of the series and the author makes

this clear from the outset, stating that this book:

is concerned [instead] with the way in which the European Court has developed general

principles of law derived from the national legal systems of the Member States, from the EC

Treaty itself, or from international agreements to which the Member States are parties, as a

method of interpreting or determining the validity of Community acts, as a control mechanism

over the acts of national authorities when they are acting within the scope of Community law,

and quite simply to f‌ill the gaps in the Community legal order’ (p2).

This is still a very vague def‌inition (but are not principles always vague?…), one in

which fundamental rights and the principles of direct effect and supremacy could be

included. One of the most important questions which the books raises, but leaves

unanswered, is precisely the relation between fundamental rights and general

principles of law: are all fundamental rights to be understood as general principles? If

not, why not? What is the difference relevant to? And, why does the book include

some fundamental rights (such as property rights) as general principles of EC law

while disregarding others?

The book covers principles of constitutional law, private law, criminal law,

procedural law and administrative law, but the organisation of the different sections is

not very clear and might have been better explained and argued. Of particular interest

is a well conceived chapter on the status and use of general principles of Community

law in which, in a brief but clear and comprehensive manner, the author reviews the

different uses of the general principles of EC law either as an aid to interpretation, or

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© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

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as a criterion for the validity of Community and national legislation, or as a basis for

liability (p121 et seq). The emphasis of the book is upon the general principles of EC

law, developed by the ECJ and derived from national or international sources, and not

upon the treaties of the Communities (p12). The most interesting aspect in Professor

Usher’s approach is the stress which he lays upon the interaction between Community

and national laws as a key element in explaining the existence of these principles.

Thus, the book highlights the cross-fertilisation of legal concepts between national

legal orders through general principles of European law, or the indirect impact of EC

law concepts on the areas of these national legal orders which are not directly related

to Community law (see, notably, the last chapter and, in particular, pp140 et seq).

However, Professor Usher also pays close attention to another less visible aspect of the

relationship between national courts and the ECJ, which has been developed through

the Article 177 mechanism: throughout the book, he notes how this same mechanism

has served to put the European Court of Justice in contact with the general principles

of law of the different national legal systems, and additionally makes constant

reference to the national legal principles that have served as sources for the

development of the general legal principles of the Community (for example, pp41, 74

and 148). This constant interaction between national and Community sources, in a bi-

directional sense, is, perhaps, the most interesting broader point arising from a book

which, otherwise, seeks to provide a basic, but undeniably useful, overview of some of

the general principles of EC law.

Miguel Poiares Maduro

Nigel Foster, Blackstone’s EC Legislation Handbook (Blackstone Press, London 1997):

1589 pp, 222mm3152mm, ISBN 1-854-31623-0

What you get is what you see. . . . Here is a comprehensive collection of EC legislation

covering the main areas of Community competence. One must always to be selective in

a work of this kind and, consequently, certain risks and subjectivity are inherent to the

process. Overall, however, Nigel Foster has managed to supply us with a good

selection of the most relevant legislation in the core areas of Community action;

legislation that is of use to the practitioner, student and (why not?) the academic.

Some important areas (notably, agriculture), do not appear within the collection, but

the author clearly states his preferences and it would clearly be impossible to cover the

entire scope of Community legislation in a single volume. The collection includes the

text of the Treaties (EC, EU and Amsterdam) and, among others areas, relevant

secondary legislation on social policy, free movement of goods, free movement of

persons, competition, intellectual property, environmental law, consumer protection,

f‌inancial services, and insurance sector directives. However, there are still some

omissions which are diff‌icult to understand, such as the absence of the relevant

legislation and soft law documents on access to information and transparency, or,

indeed, on comitology (absent from a section dealing with ‘Legislation and

Agreements Affecting the Institutions’). For the future, it may also be worth

considering whether to extend the collection of materials beyond the EC and to

include certain of the quasi-legal actions taken in the context of the other pillars of the

European Union (even if not legislation strictu sensu). Finally, having been completed

and printed after the signing of the Amsterdam Treaty, which is included within the

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170 © Blackwell Publishers Ltd. 1999

collection, it is also a pity that no reference is made to the new numbering of treaty

articles is made in either the EC Treaty or the TEU. It makes perfect sense to maintain

the text of these Treaties without the changes introduced by the Amsterdam Treaty,

which is not yet in force, but a cross-reference system might have been deployed to

some effect.

Legislation handbooks have been the usual ‘medicine’ for the legislative ‘diarrhoea’

of the modern world. But their relevance is increasingly being called into question by

CD-ROMs and web sites. To the question of why a legislation handbook is still useful

in a world of internet and electronic databases, the author replies, in the preface, that

there are still many diff‌iculties in accessing and working with those databases (even in

printing and downloading) and that, thus, ‘a portable version of Community law will

be an invaluable tool for the practising lawyer who requires a practical and accessible

form of the most popular and necessary EC legislation’ This he promises and this he

delivers, even if the portable nature of a book with 1589 pages can be disputed . . .

Miguel Poiares Maduro

Trevor C. Hartley, Constitutional Problems of the European Union (Hart Publishing,

Oxford, 1999): 195pp1index, ISBN 1 903162-46-9

Hartley’s The Foundations of European Community Law is a beacon for law students.

Constitutional Problems of the European Union is a lighthouse for European lawyers

and others interested in the transforming constitutional shape of Europe. Light is the

key description: Hartley’s writing shines.

Some explanation for this brilliance lies in the reluctance, identif‌ied by Hartley, of

European Community lawyers to criticise the process of the formation of the

Community legal order, perhaps (Hartley does not quite say this) because such

criticism would, in their view, jeopardise the attainment of the political goals to which

they owe allegiance (Hartley states, for example, the concern that ‘one could sow the

seeds of suspicion and distrust towards the Union in the minds of ordinary citizens’).

Hartley, however, is not reluctant to engage in critical analysis. Many would agree that

this is of the essence of a lawyer and a legal academic.

Not that his analysis is simple: it is simply clear. This book is based, in part, on

reworked articles and lectures, but loses none of its cohesiveness for this. Hartley

begins with the background to the European Union and the community of different

interests which sustain it. He then considers the subjective interpretation of the Court

of Justice of the European Communities, establishing that this Court, on occasion,

deliberately judges contrary to the Treaty, and considers why this matters. This ‘why’,

a more political than legal question, is not treated in great depth although the author

does consider, inter alia, the non-applicability of the doctrine of constitutional

necessity and the development of the principle of the liability of Member States in

damages to individuals for breaches of Community law directly occasioning loss.

Hartley next considers the uncertainty problem in Community law, a matter

insuff‌iciently referred to in academic writing, which is nonetheless crucial to the

practising lawyer. This is not just a matter of inconvenience to lawyers: it is actually

impossible betimes to advise, with reasonable security, legal persons who are

concerned to obey the law. This is not a good state for law-respecting societies to f‌ind

themselves in (nor, indeed, for the profession). Nor is it good for the Community,

June 1999 Review Notes

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