The Identity of European Law: Mapping Out the European Legal Space

• DOI: http://doi.org/10.1111/1468-0386.00101
• Author: Christopher Harding
• Date: 01 June 2000
• Published date: 01 June 2000

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The Identity of European Law: Mapping

Out the European Legal Space

Christopher Harding*

Abstract: The main purpose of this discussion is to supply some content to the concept of

the `European legal space' at the turn of the twentieth century. The term `legal space' is

used in preference to `legal system' or `systems' in order to convey a sense of the complex,

non-hierarchical, overlapping, interlocking and evolutionary character of contemporary

European legal phenomena. A number of evident legal orders may be identi®ed within the

overall European space: those of the EC, the EU, the EEA, the Council of Europe and the

OSCE, although to refer to some of these as `orders' may be misleading, by implying too

much in terms of a centrally determined structure. It is also possible to point to less

evident legal ordering, such as the process of norm exportation contained in the Europe

Agreements concluded between the EU and individual non-Member States, or the kind of

order resulting from transatlantic co-operation in ®elds such as criminal justice (which

also challenges the description of `European'). In juristic terms, the argument here

confronts the primacy traditionally accorded to the sovereign state in the ®eld of law-

making, and draws upon two non-juridical models of analysis: that of multi-level

governance, as used by political scientists to indicate a shift away from the exclusive

authority and legitimacy claimed by sovereign states; and the biological model of

catalytic closure, used to indicate evolution through a process of spontaneous reactions

within a body. Both models may be usefully employed to probe the dynamics of European

legal ordering at the close of the Twentieth Century.

I Introduction: `What is in the Name?'

What do we mean by the term `European law' as we use it at the close of the 1990s?

It is dicult to give a clear answer to this question, although, doubtless, most writers

in the ®eld would have the general sense of a bundle of legal phenomena which are

signi®cantly related to each other and might even be collectively identi®ed as a legal

`system' or `order', or, at least, an emergent system or order. Yet, it is surely indicative

of a lack of sure-footedness on this question that, for instance, textbook writers and

their publishers are slipping about on the terminology of European `Community' and

`Union', while those who are not expert in European legal matters continue ( perhaps

forgivably) to confuse the rules and institutions of the EC, the EU and the Council of

Europe (to go no further than these three `orders').

It is, in fact, dicult to proceed further without pausing to consider brie¯y the

vocabulary of political and legal integration comprised in the terms `Community' and

`Union'. A careful reading of the Maastricht and Amsterdam Treaties will, surely

European Law Journal, Vol. 6, No. 2, June 2000, pp. 128±147.

#Blackwell Publishers Ltd. 2000, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* University of Wales at Aberystwyth

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enough, reveal that there are de®ned political and legal competences and processes

which delineate the respective roles of the earlier Communities and the more recent

Union. The three pillar structure of the Union is suciently clear in principle, even if

its longer term evolution is likely to give rise to increasingly complex interrelationships

within the Union as a whole, as is already evident from some provisions in the

Amsterdam Treaty.

1

Yet, in another, less legalistic sense, the interlocking identities of

the Community and Union are already in a slippery state. It might be asked, for

instance, why the Ocial Journal is still the `Ocial Journal of the European

Communities' rather than the `Ocial Journal of the European Union', when some

of the material published there emanates from the second and third pillars;

2

or, to use

another example, whether it is merely pedantic to insist on referring to the EC, rather

than the EU, rules on competition. Nor have the institutions themselves been entirely

clear in their use of termsÐwith, for instance, the Council of Ministers re-styling itself

as the Council of the Union in 1993.

3

Few writers appear to have ventured far into this

terminological quagmire, although, in the last edition of Lasok and Bridge's Law and

Institutions of the European Union,

4

Lasok proves the exception by posing the question

`what is in the name?'

5

and describes the Community/Union structure as `a unique

creature of mixed pedigree' and (in suggestive language to which the discussion will

later return ) as `a bizarre creature unlikely to have been designed by the Almighty but

rather by a committee'. Lasok's conclusion is that `Union' and `Community' are

synonymous and that the terms may be used interchangeably. This view is based on

Article C of the Treaty on European Union (TEU), which provides for a single

institutional framework for the Union while also respecting and building up the acquis

communautaire. But, while it is clear that the Union includes the Community, it is also

clear that the Union is more than the Community, so that, after all, there is much in

the name. Otherwise, there would be little need for `pillar talk' about dierent

competences, passerelles and such like matters. It is the common institutional structure

which, in particular, obfuscates the picture and tends to disguise distinct legal and

political identities.

To return to the main theme: a close examination of European-wide legal and

political history over the last ®fty years reveals the emergence of a rich and inter-

related patchwork of legal `regimes', `orders' or `spaces'. Superimposed on the existing

national legal orders of forty or more sovereign states, we can point to the successive

appearance of the legal regimes of the Benelux Customs Union (1948), the Council of

Europe (1949), the European Coal and Steel Community (1951), the European

Economic Community and Euratom (1958)Ðthese last three later merging into the

European CommunityÐthe Schengen frontiers `community' (1985), the Organisation

for Security and Co-operation in Europe (OSCE) (1990), the European Economic

Area (EEA) (1992) and the European Union (1992). The term `regime' is used

advisedly to describe the resulting normative ®elds of these various institutions,

since they clearly dier from each other as regard their regulatory competence, in

terms of the kinds of rule they may produce and the methods of enforcement to which

they may have resort. To talk of them all in terms of being legal `systems' may imply

June 2000 The Identity of European Law

#Blackwell Publishers Ltd. 2000 129

1

See, for example, Jo Shaw, `The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy', (1998)

4European Law Journal 63.

2

On the other hand, the Bulletin is the Bulletin of the European Union.

3

Decision 93/591, OJ 1993, L281/18.

4

6

th

edition, Butterworths, 1994. The title of this edition replaces `Communities' with `Union'.

5

To be found at pp. 24±5.