Teaching the EU: SYLLABI

TEACHING RESOURCES

Teaching the EU

SYLLABI - LAW

European Union Law
by Prof. Roger Goebel

EC-US Constitutional Law
by Prof. Roger Goebel

EC Corporate, Finance & Trade Law
by Prof. Roger Goebel

European Union Law

Prof. Goebel

Fall 1996

Assignment I

EU Institutional Structure and

Basic Constitutional Law

Text: Bermann, Goebel, Davey & Fox, European Community Law, with Selected Documents supplement (West 1993), and 1995 Supplement

N.B. Assignments to the casebook are made by "Pp." Assignments to Selected Documents are indicated as "Sel. D. pp." and "Supp. pp." refers to the Supplement. The European Economic Community Treaty (1957) is referred to as the "EEC Treaty," the Maastricht Treaty on European Union (1993) as the "TEU Treaty," and the European Community Treaty (1993, amended in 1995) as the "EC Treaty."

When an assignment is not finished in one class, the remaining material will be covered at the start of the next class unless otherwise indicated. "Recom." means recommended reading, not required, but usually briefly covered in class.

Class 1; Aug. 27
A. History, basic structure and purposes

Ch.1,pp.1-21
Ch. 2, pp. 22-27, 29-30
Supp. pp. 2-6 (Sel. D. pp. 104-06)
TEU Treaty Preamble, Arts. A, B, C
EC Treaty arts. 1-4 (Supp. pp. 247-49)
Recom. Goebel, The European Union Grows, 18 Ford. ILJ 1092-1117 (on reserve)
Recom. Goebel, Maastricht Treaty Modifications, 200-13 (excerpt from Cardozo New Europe Law Review article) (on reserve)

B. The Commission: composition and role

Ch. 3, pp. 50, 57-60, Recom.pp. 60-63, Supp. pp. 18-31
EC Treaty arts. 155-163 after 1995 (Supp. pp. 332-34)
Recom. Goebel, The European Union Grows, pp. 1129-30, 1135-40

C. The Heads of Government Summits and the European Council

Pp. 55-57
TEU art. D (Sel. D. p. 106)

Class 2; Sept 3
A. The Council of Ministers: powers and role, voting rights and the Luxembourg Compromise

Ch. 3,pp.51-55, Supp. pp. 15-18
EC Treaty arts. 145-154 after 1995; (Supp. pp. 330-32)
Recom. Goebel, The European Union Grows, pp. 1117-29

B. The Court of Justice: composition, procedure, role

Ch. 3, pp. 69-74; Supp. Pp.23-26
EC Treaty arts. 164-168a after 1995 (Supp. p. 335)
Recom. Goebel, The European Union Grows, pp. 1131-35
Court of Justice Protocol, arts. 15-37 (Sel. D. p. 215)
Legal Sources and Citation Forms, p. xiii

C. Actions against Member States for failure to comply with the Treaty or Community rules: Articles 169 to 171

Ch. 8, pp. 276-78, 292-314, esp.

Com'n v. Luxembourg (Milk products)
Com'n v. France (Mutton and lamb)
Com'n v. France (Merchant seamen)
Com'n v. Italy (Road haulage)
Com'n v. Italy (Slaughtered cows II)
Com'n v. Italy (Second art treasures)

Supp. pp. 78-80
EEC Treaty arts. 169-71 (Sel. D. p. 73)
EC Treaty art. 171 (Supp. p. 337)

Class 3 Sept. 10
A. Appeals of Community acts: Article 173

Ch. 4, pp. 96-101, 120-24, 127-28, 149-51, esp.
Germany v. Commission, (Brennwein), Giuffrida v. Council, IBM v. Commission
Supp. pp. 42-43 EEC Treaty arts. 173-74, 176, 179, & 185-86 (Sel. D. p. 74)
EC Treaty arts. 173, 176 (Supp. p. 337)

B. Private party standing to seek judicial review under Article 173, Complaint for failure to act: Article 175

Ch. 4, pp. 106, 111-117, Metro v. Commission, Lord Bethell v. Commission. EEC Treaty arts. 173 ¶ 2 and 175 (Sel. D. p. 74)
EC Treaty arts. 173 ¶ 3 and 175; (Supp. p. 338)
Recom. pp. 107-11 (Confederation Nationale)
Recom. Supp. pp. 39-41, (Codorniu)

C. National court questions on Community law referred to the Court of Justice: Article 177

Ch. 7, pp. 245-53, 257-72, esp
Pretore di Salo, Nordsee Deutsche Hochseefischerei, Bulmer v. Bollinger, CILFIT
Supp. pp. 69-71
EEC Treaty art. 177 (Sel. D. p. 75)
EC Treaty art. 177 (Supp. p. 339)
Recom. pp. 253-57 (Foglia), 272-75

Class 4; Sept 17
Guest lecture by Bernhard Schloh, formerly Council Legal Service; Visiting Professor,
Columbia and St. Louis Law Schools

A. The role of Parliament and its quest for power: the "democratic deficit"

Ch. 3, pp. 63-68, Supp. pp. 21-22 EC Treaty arts. 137, 138, 139-44 after 1995; (Supp. p. 327)

B. Community budget and finances

Ch. 3, pp. 91-92
Supp. p. 34

C. The increase in Parliament's powers over the Commission produced by the Maastricht Treaty on European Union

Ch. 3, p.58, Supp. pp. 22-23, 26-27
EC Treaty arts. 138b-e, 158; (Supp. pp. 328, 333)

D. Parliamentary Assent to accession and certain international agreements

P. 894 TEU Art. 0 (Sel. D. p. 185)
EC Treaty art. 228 (Supp. p. 362)

E. Consultation, cooperation and co-decision: the legislative procedures created by the
EEC Treaty, the SEA and the TEU

Ch. 3 pp. 79-85, EEC treaty arts. 149, 189 (Sel. D. p. 67)
Roquette Freres EC Treaty arts. 189a-c (Supp. p. 344)
Supp. pp. 28-30
Pp. 89-90
Supp. pp. 33-36

F. Disputes over the legal basis of legislation: a constitutional balance of power issue

Pp. 85-89 Titanium Dioxide
Supp. pp. 30-33 Waste Directive

G. Institutional balance: Parliament's power to challenge Council acts or failure to act

P. 114 Transport Policy
Supp. p. 41
Pp. 101-06 Post-Chernobyl
EEC Treaty arts. 173, 175 (Sel. D. p. 74)
EC Treaty arts. 173, 175 (Supp. p. 337)

Class 5; Sept 24

A. EEC law and national law: the direct effect in national law of certain Treaty articles

Ch. 5, pp. 166-76, esp.

Van Gend en Loos
Van Duyn
Defrenne

Recom. pp. 180-82

B. The Treaty as a new legal order: Treaty primacy over national law

The confrontation with the Italian Constitutional Court
Ch. 5, pp. 192-197, Ch. 6, pp. 228-30, esp.
Costa v. ENEL
Simmenthal II

C. Preemption of national rules by EC Treaty articles or EC rules

Ch. 2, pp. 40-44, esp.
Walt Wilhelm
Pigs Marketing Board

D. Gradual acceptance of the primacy doctrine by most national courts, facilitated by constitutional amendments

Ch. 6, pp. 204-06

Recom. pp. 206-11, Supp. pp. 54-57 (France)
Recom. pp. 213-16, 231-3, 242-43 (Belgium, Netherlands, Denmark, Ireland)
Recom. Supp. pp. 57-58, 63-65, 66-68 (Greece, Portugal, Spain)

E. Community law in the UK: adaptation of the UK unwritten constitution

PP. 236-41, 197-200, 241-42, esp.
European Communities Act of 1972
Factortame I (Court of Justice)
Factortame I (House of Lords)
Supp. pp. 65-66

F. Limitation of a Member State court's ability to question the validity
of Community legislation or administrative acts

Pp. 200-03 Foto-Frost

Class 6, Oct 1, 1st half of class only
A. The origin of the doctrine of Community basic rights
The confrontation with the German Constitutional Court

Ch. 4, pp. 142-45, 127-33
Ch. 6, pp. 216-21, esp.

Stauder v. Ulm
Nold v. Commission
IHG (Court of Justice)
IHG (German Constitutional Court)

B. The Maastricht Treaty's provision for basic rights protection

1977 Declaration of Basic Rights (Sel. D. p. 214)
Recom. European Convention for the Protection of Human Rights, (Sel. D. p. 204)
TEU Treaty Art. F (Sel. D. p. 107)
Supp. pp. 45-47

C. Further German Constitutional Court Judgments on Treaty Primacy

Recom. Pp. 222-28 Wunsche (Solange II), Kloppenburg
Recom. Supp. pp. 60-63 Maastricht

D. The doctrines of proportionality, equal treatment, legal certainty and legitimate expectations

Community liability in damages

Ch. 4, pp. 133-37, Supp. p. 44
Recom. pp. 137-42, 1093-94 (Mulder)
Recom. pp. 152-60, 1087-92, esp.
Skimmed milk powder cases
Walter Rau (Christmas butter)
EC Treaty arts. 178 and 215; (Supp. pp. 339, 358)

Tentative Schedule of Further Class Topics

Oct. 1(second half)
Free movement of goods: disguised customs duties,discriminatory or protectionist taxes (Arts. 9 -15, 95)

Oct. 8
Free movement of goods: quotas and regulations limiting the importation of goods (Arts.30, 36, Dassonville, Cassis de Dijon and Keck)

Oct. 15
Free movement of goods: industrial and commercial property rights (Art. 36)
Early harmonization of laws programs
The 1985 White Paper and the 1992 internal market program

Oct. 22
Free movement of workers, their spouses and dependents
(Arts. 48-49, Regulation 1612/68)
The People's Europe Program and European Citizenship
(Maastricht Art. 8a)

Oct. 29
Guest lecture by Advocate General Francis Jacobs:
Court of Justice case law on the protection of basic rights, especially personal rights and property rights
The issue of Community accession to the 1950 Convention for the Protection of Human Rights

Nov. 5
Election holiday

Nov. 12
Basic EC competition (anti-trust) principles (Arts. 85-89)
Cartels and other horizontal restrictions on competition

Nov. 19
Restrictions on parallel imports and vertical distribution
External relations, the Common Commercial Policy, the EC and GATT (now WTO)

Nov. 26
Guest lecture by Christian Timmermans, Deputy Director-General of the Commission Legal Service
Application of the principle of subsidiarity (Maastricht Art. 3b)
Doctrine of preemption of Member State rules by Community legislation and rules
Application of Community rules in the Member States: the direct effect of directives and liability of States for non-implementation of Community law

Dec. 3
The European Economic Area, Europe Agreements, and the Lome Convention
The Accession process and prospects for enlargement to add Central European and Mediterranean states
EC-US trade and current trade issues
The Common Foreign and Security Policy (Maastricht Art. J)

or else

Treaty provisions on social policy and employee rights (Arts. 117-119)
Equal employment rights for men and women: equal pay and equal employment conditions.

EC-US Constitutional Law

Prof. Goebel

Fall 1996

Assignment I

Basic Comparative Concepts:

Federalism, Supremacy, Preemption

Texts: Bermann, Goebel, Davey & Fox, European Community Law, with Selected Documents (West 1993) and the 1995 Supplement

Stone, Seidman, Sunstein, Tushnet, Constitutional Law -- either West 3d ed. 1996, or 2d ed. 1991 with its1995 Supplement

When an assignment is not finished in one class, the remaining material will be covered at the start of the next class, unless otherwise indicated. "Recom" indicates cases or materials that are recommended, not required, usually briefly covered in class.

Class 1, Aug 28

A. Basic concepts of federalism: to what extent can the European Community be accurately described as a federal system?

The role of the Supreme Court and of the Court of Justice in constructing the respective constitutional systems

US Constitution (at start of Stone, Seidman)
TEU Treaty Preamble and Articles A-C (Sel.D.p.104)
EC Treaty Arts. 2-4 and 164 (Sel.D.pp.108-10, 71)
1996 Stone, pp. 1-7, 15-23
(1991 Stone, pp. 1-7, 14-21)

Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 Am. J. Comp. L. 205 (1990)(on reserve)
Koopmans, Federalism: The Wrong Debate, 29 Common Mkt L. Rev. 1047 (1992) (handout)
Recom. Goebel, The EC and Eastern Europe, 1 New Europe L. Rev. 163-213 (1993)(on reserve)
Recom. Pinder, The Community after Maastricht: How Federal?, 5 NewEuropean Quarterly
&nbsb;&nbsb;Review 5 (1992)(on reserve)

Questions for reflection:

1)What are the essential characteristics of a federal system of government as opposed to a unitary system? Give examples of nations that are clearly federal, or clearly unitary. Are some constitutional systems either intermediary, or moving toward a federal system?

2)How would you describe the constitutional, or legal, nature of the European Community (or European Union, if you prefer)? Even though the EC is not a state, do you think it is proper to describe it as a federal system? Do you think Judge Lenaerts is right in describing it as "integrative federalism," or that "economic federalism" is an appropriate term for it?

3)Generally speaking, what is the role of a supreme court or a supreme constitutional court in developing the structure of a constitutional system? In this context, what is "judicial activism"? How has the US Supreme Court tended to conceive its role in interpreting and applying the Constitution?

4)What has been the role of the Court of Justice in shaping the constitutional structure of the European Community? What does Article 164 mean, and how has the Court made use of it in developing constitutional doctrine?

B.Basic concepts of judicial review: the ability of a supreme court to invalidate federal legislative and executive acts. Basic concepts of supremacy: the ability to invalidate state legislative and executive acts.

1996 Stone, pp. 23-37 Marbury v. Madison; recom pp. 37-46
1991 Stone, pp. 21-35; recom. pp. 35-44
EC Treaty Arts. 164, 173 (Sel. D. p. 71)
Recom., Bermann pp. 322-24 esp. n.2 Commissionaires Reunis
Bermann, pp. 192-95, 297-98, 934-36 (Costa v. ENEL, Belgian Milk Products, EEA Opinion)
Bermann, pp. 895-98, 900-904 ERTA

Questions for reflection:

1)What is the role of the Supremacy Clause in the US Constitution and of Article 173 in the EC Treaty? What issues do they resolve (at least in principle), and what do they not address at all?

2)Why is Marbury v. Madison so important in our constitutional theory? Do you think that the idea of judicial review of legislative or executive acts was easy to accept in the early nineteenth century? Why is it essentially beyond challenge today?

3)How did the court of Justice justify its conclusion of Treaty primacy over subsequent Member State law in Costa v. ENEL? What is the importance of the Court's refusal to apply only public international law concepts in that judgment and Belgian Milk Products?

4)Do you agree with the use of the term, "constitutional charter," in describing the EC Treaty in the EEA Opinion? What is its significance? The Parliament has proposed that the Maastricht Treaty be replaced by a better structured and shorter constitution. Do you think this would be sensible, or counter-productive?

5)One of the prime examples of judicial activism in the EC is ERTA, where the Court held that the Community had implied powers in external relations, rather than limiting it to express powers as the Advocate General had argued. What is his "attributed powers" theory trying to express? Is the Court's "whole scheme of the Treaty" an attempt to follow "original intent" or a rejection of it? Does the judgment reflect the strong influence of US constitutional jurisprudence (which the Advocate General contends is inappropriate in the EC)?

The following articles relate to the material covered in the initial classes, but are worth reading at any time later in the course, especially by students writing a term paper.

Recom. Brest, The Misconceived Quest for the Original Understanding, 60 Boston U. L. Rev. 204 (1980)
Recom. Gibbons, Judicial Review of the Constitution, 48 U. Pitt. L. Rev. 963 (1987)
Recom. Hartley, Federalism, Courts and Legal Systems, 34 Am. J.Comp. L. 229 (1986)
Recom. Lenaerts, Some Thoughts about the Interaction between Judges and Politicians, 1992 U. Chi. L. Forum 93 (1992)
Recom. Mancini, The Making of a Constitution for Europe, 26 Common Mkt. L. Rev. 595 (1989)
Recom. Temple Lang, The Development of EC Constitutional Law, 25 Intl Law, 455 (1991)
Recom. Weiler, The Transformation of Europe, 100 Yale L.J. 2403 (1991)

Class 2, Sept 4

A.Progressive evolution of the doctrines of judicial review and federal supremacy in US and EC law

1996 Stone pp. 46-71, Martin v. Hunter's Lessee; McCulloch v. Maryland; recom. pp. 75-88
1991 Stone pp. 41-68; recom. pp. 71-84
EC Treaty arts. 5, 177 (Supp. pp. 249, 339)
Bermann, pp. 195-200, 268-71 Simmenthal II, Factortame I; CILFIT
Recom. pp. 200-03, Foto-Frost, 288-90 Francovich
Recom. Bermann, 1995 Supp. pp. 226-30 Com'n v. UK (Collective redundancies)

Questions for reflection:

1)In the US, as Hunter's Lessee shows, the right to appeal constitutional and federal questions from the highest state court to the Supreme Court is a powerful means of exerting federal supremacy. In the EC, despite proposals from the Parliament and commentators, no similar right of appeal from Member State courts to the Court of Justice exists. Should such appellate review be created? How has the CILFIT judgment at least partially helped this situation?

2)Do you see similarities in judicial thinking between McCulloch and Simmenthal and Factortame? How has the Court of Justice used Article 5 to further its doctrine of Treaty primacy? Observe the most recent expansion of the doctrine in cases like Francovich and UK Collective Redundancies. Do you agree with these judgments, or do you think they go too far?

3)In the recommended Stone reading, legislative, executive and general political restraints on the Supreme Court are described. Before the current Intergovernmental Conference, Germany informally suggested that Article 177 be amended to permit only supreme courts to refer questions to the Court of Justice, and the UK suggested that the Council of Ministers be given the power to overturn court judgments. Why do you think these suggestions were made? If adopted, what impact would they have?

B.The preemption doctrine as an aspect of supremacy

Bermann, pp. 40-45 Walt Wilhelm, Pigs Marketing Board

1996 Stone, pp. 380-84
1991 Stone, pp. 348-356 Pacific Gas & Electric
(Students with 1996 Stone should borrow this case from those with the 1991 edition)

Questions for reflection:

1.Walt Wilhelm is an unusual case in that it deals with the demarcation of EC-Member State powers based on a Treaty article itself, in this case, the regulation of competition under Article 85. Do you agree with the reasoningand result? Can you think of another Treaty sector where the issue of exclusive EC powers versus shared EC-MS powers is particularly acute? In the US, there are certain fields where the Constitution grants exclusive powers to the federal government. What are some examples?

2.Most preemption issues arise in the context of an apparent conflict between federal legislation or rules, and state legislation or rules. How is the preemption doctrine articulated in Pacific Gas & Electric? How does it compare with the doctrine expressed in Pigs Marketing Board?

Class 3, Sept 11

Issues in determining whether or not state rules are preempted:
express or implied authorization, direct or indirect incompatibility, frustration of federal purpose

Bermann, pp. 454-64, 1082-84, esp. Ratti, Buet, Apple & Pear Case 369/89, Piageme (handout)
Bermann Supp. pp. 1095-110 Meyhui, Gallaher
EC Treaty arts. 118a(3), 129a(3), 130t (Supp. pp. 310, 315, 323)
1996 Stone pp. 373-80 Gade v. National Solid Waste Mgmt.
1995 Stone Supp. pp. 97-108 Gade
Morales v. Trans-World Airlines, 112 S. Ct. 2031 (1992) (handout)
Cipollone v. Liggett Group, 505 US 504 (1992) (on reserve)
Greenwood Trust Co. v. Massachusetts, 971 F.2d 818 (1st Cir. 1992) (cert. den.) (on reserve)
Recom. Wisconsin Public Intervenor v. Mortier, 501 US 597 (1991)
Recom. Cross, Preemption of Member State Law in the EEC, 29 Common Mkt. L. Rev. 447 (1992)

Questions for reflection:

1)In addition to the questions in the Bermann casebook and supplement, consider whether the usual US analytic framework helps to understand the result in the EC cases. Thus, how would you categorize Ratti, Buet and Apple & Pear?

2)Note the recent approach of express Treaty authorization for more protective Member State rules in worker health and safety, environmental protection and consumer protection. Is this helpful, or would it be preferable to require specific legislation to contain such authorization? What is the possible adverse effect of this approach on the internal market ?

3)It is often said that the Burger and Rehnquist courts have been more deferential toward states rights than the Warren court. Do you think this seems to be true in the preemption case law? Is Justice Scalia's opinion in Morales consistent with his usual restrictive philosophy on federal powers? Why do you think the Court was so split in Morales and Gade?

4)It is often instructive to see how circuit courts try to construct a doctrinal analysis based on Supreme Court rulings. Do you agree with the result in Greenwood Trust? Do you think it is consistent with Morales and Gade?

5)It is interesting to compare Gallaher and Cipollone. If each had come up in the other system, would the result have been the same?

Tentative List of Further Topics

As a rule, each topic will be covered in two classes, giving roughly the same time to EC and US cases. It is possible that one topic will be covered in only one class, or in three classes. The sequence among the topics can only be set after Advocate General Jacobs and Mr. Timmermans have chosen the topic they prefer.

1.The development of basic rights protection in the EC, with special emphasis on property and economic rights, compared with the US protection of property and economic rights under the due process and takings clauses.

2.The right to travel and the right of residence as aspects of fundamental rights of citizens.

3.Personal rights: the right of religious observance and the right to privacy in the context of AIDS testing.

4.Equal workplace rights for men and women, especially the concepts of comparable worth in achieving equal pay, and that of affirmative action in achieving equal treatment in hiring and promotion.

5.General comparison of the balancing test in the Dormant Commerce clause caselaw with the Cassis de Dijon and Keck caselaw in the free movement of goods sector.

6.Comparison of Dormant Commerce Clause and free movement of goods caselaw in the evaluation of state health and safety protection regulation, and environmental protection and pollution control rules.

EC Corporate, Finance & Trade Law

Prof. Goebel - Spring 1997 - Room 430

Assignment I

The Internal Market, Commercial and Professional Services
and Establishment

Text: Bermann, Goebel, Davey & Fox, European Community Law

(West 1993), with Selected Documents and 1995 Supplement.

Class 1 Jan. 8

A. Review: Completion of the internal market: the 1985 Commission White Paper, the Single European Act and the success of the program

Ch. 12, pp. 428-42
EC Treaty arts. 8a (now 7a), 100a and b (Supp. pp. 251, 287)
Supp. pp. 100-02
Recom. Supp. pp. 103-05
France v. Commission (PCP)

B. Review: The roles of the Commission, Council and Parliament in the internal market legislative process: co-decision

EC Treaty art. 189a and b (Supp. p. 344)
Ch. 3, pp. 79-84, 89-90, esp. Roquette Freres
Supp. pp. 28, 33-34
Parliament v. Council, Case C-65/93, [1995] ECR I-643 (general tariff preference extension) (on reserve)

C. Access to information and transparency in the legislative process
Lawyer's role in information gathering and lobbying

Supp. pp. 35-36
Interinstitutional Declaration on Democracy, Transparency and Subsidiarity, Oct. 25, 1993 (handout)
Carvel v. Council, Case T-194/94, [1995] ECR II-2765 (on reserve)

D. Treaty provisions and the General Programs on the freedom to provide services and the right of establishment

Ch. 15, pp. 542-47
EC Treaty arts. 52-66 (Supp. pp. 270-75)
General program on abolition of restrictions on freedom of establishment (Sel. D. p.332)

Class 2 Jan. 15

A. Case law on
1) non-discriminatory treatment and
2) elimination of barriers that are not justified by the general good

Pp. 585-86, 549-58, 569-71, esp.

Reyners
van Binsbergen
Webb
Com'n v. Germany (Insurance)
Com'n v. Italy (Housing loans)

Supp. pp. 124-28, esp. Schindler
INASTI v. Kemmler, Case C-53/95, [1996] ECR I-703 (handout)
Commission Communication on Free Movement of Services, O.J.C. 334/3 (Dec. 9, 1993) (handout)

B. The 1986 Commercial Agents Directive as an example of harmonization to achieve the internal market

Directive 86/653 on Self-employed Commercial Agents (Sel. D. p. 336)
Pp. 548-49, esp. questions in notes

C. Review: the vertical direct effect of certain directives and the absence of
horizontal direct effect of directives

Ch. 5, pp. 182-90, esp.
- Van Duyn v. Home Office
- Pubblico Ministero v. Ratti
- Marshall I
Supp. Pp. 50-53 Faccini Dori

D. Possibility of state liability in damages for failure to implement directions

p. 288-90 Francovich v. Italy

Class 3 Jan. 22

A. Impact of Maastricht principle of subsidiarity

EC Treaty art. 3b (Supp. p. 248)
Ch. 2, pp. 46-47
Supp. pp. 11-14, 101-02
Interinstitutional Agreement on Procedures for Implementing the Principle of Subsidiarity, Oct. 25, 1993 (handout)
Edinburgh Dec. 1992 European Council Statement on Subsidiarity (on reserve)
Commission Oct. 1992 Report on Subsidiarity (on reserve)
Recom. Bermann, Taking Subsidiarity Seriously: Federalism in the EC and the US, 94 Colum. L. Rev. 331 (1994)

B. Right to receive services in other States

Pp. 558-63, esp.

Cowan
SPUC v. Grogan
Com'n v. France (Tour guides) (handout)

C. Cross-border services provided by technological means

Pp. 563-68, esp. Debauve
Directive 89/552 on television broadcasting activities (Sel. D. p. 344)
P. 568, questions
Supp. p. 128 Vereningen Veronica
Leclerc-Siplec v. TFI Publicite, Case C-412/93, [1995]
ECR I-179 (handout)
Advocate General Jacobs' Opinion in Leclerc-Siplec (on reserve)
Supp. p. 71 Continental Television
Alpine Investments v. Ministry of Finances, Case C-384/93
[1995] ECR I-1141 (handout)

Class 4 Feb. 5

A. Promoting the right of professional establishment
&npsb;The 1989 Diploma Recognition Directive

Ch. 16, pp. 584-90
Directive 89/48 on recognition of three-year higher education diplomas (Sel. D. p. 397)
Vlassopoulou v. Minster of Justice, Case C-340/89, [1991] ECR I-2357 (on reserve)
Supp. pp. 133-36, esp. Kraus
Recom. Goebel, Lawyers in the EC, 15 Fordham Intl. L. J. pp. 595-601, 612-14 (1991-92) (on reserve)

B. Lawyers' right to provide transborder services: the 1977 Directive and interpretative case law

Pp. 550-51 Van Binsbergen
Directive 77/249 on Lawyers' freedom to provide services (Sel. D. p. 407) and questions on p. 598
Pp. 598-603, esp. Com'n v. Germany (lawyers' services)
Gullung
Gebhard v. Milan Bar Association, Case C-55/94, [1995] ECR 4165 (handout)
Recom: Goebel, Lawyers in the EC, pp. 576-85 (on reserve)

Questions for reflection:

1.Gebhard's argument that his practice in Milan was justified under the 1977 Directive even though he was a full-time resident is one that has also been advanced by the large UK solicitor firms with offices in Paris, Brussels, Frankfurt, etc. The argument is essentially that giving advice on the Home State law or international law and giving assistance in international transactions is permitted without restriction by the 1977 Directive, so it can be engaged in on a constant basis, while court litigation is engaged in only occasionally (if at all) under the rules set in the 1977 Directive. Has the Court definitively rejected this argument? Where does the Court draw a line between activities covered (if at all) by the right of establishment and those covered by the right to provide services? Do you agree?

C.Lawyers' right of establishment and the extent of limitations on the right warranted by public interest principles.

The 1994 draft directive on lawyers' establishment rights

Pp. 590-97, esp.

Reyners
Thieffry
Klopp

Gebhard v. Milan Bar Association (handout)
Draft directive of Dec. 21, 1994 on lawyers' practice on a permanent basis in a Host State (handout)
Recom. Goebel, Lawyers in the EC, pp. 556-75, 585-95, 603-06, 615-25, 634-46 (on reserve)

Questions for reflection:

1.Gebhard provides the latest Court doctrine on the extent of the right of professional establishment and appropriate limits on it. What does the Court recognize as "general good" considerations in 35? How does the Court limit Host State interests in 37? Do the two paragraphs fit together very well? Do these principles require any re-thinking of the text of the draft directive? Specifically, does Gebhard's language provide support to some extent both for the French and for the UK-German views on Q. 5 hereafter?

2.How important is the role of the CCBE in obtaining consideration of a draft in this field? Would the Commission have initiated a draft if the CCBE had not pressed for one? If the CCBE is not able to get quasi-unanimous support of its members for the draft text, are the Council and Parliament likely to adopt it?

3.Why do the CCBE and most large European law firms feel that this draft directive is necessary even after implementation of the Diploma Directive? Why in particular are law firms interested in the joint practice provisions of Art. 11? Do you think the rights described in Art. 11 are already implicit in Klopp or do they go beyond any suggestion in case law to date? As a policy matter, do you think the joint practice rights are highly beneficial, of only marginal benefit, or conceivably disadvantageous for most Host State firms?

4.The idea that foreign lawyers and law firms should be able to conduct certain types of practice without qualifying for the Host State bar is derived originally from the international legal advisor status created by French law in 1971 (and recently eliminated in the merger of avocats and legal advisers in 1991). This is essentially the approach of the Legal Consultant rules in effect in 18 US states, the 1986 Japanese Legal Consultant rules, and the NAFTA practice provisions. What is the extent of practice permitted in Arts. 1-8 of the draft directive and what limits or restrictions are placed upon it? Do you agree with the policy approach taken here? Do you agree with all the practice limitations?

5.The most controversial issue in the draft is the proposal in Art. 10 that established lawyers must integrate into the Host State bar after three years, an approach strongly advocated by France. Do you agree with this approach, or do you think that the establishment practice rights should be made indefinite in term, as the UK and Germany advocate? If you feel integration in the Host bar is the better policy, do you agree with the facilitating procedure set in Art. 10 for this purpose, or do you think that it poses new problems? Would you advocate a similar sort of integration of foreign Legal Consultants into the New York Bar?

Recommended only:

D.Ensuring appropriate professional rules and rules of ethics for trans-border law practice

Articles 6, 7, 9 and 13 of the 1994 draft directive
Article 4 of the 1977 Directive
Pp. 603-04, esp. questions on 604
1988 CCBE Code of Conduct (on reserve)
Recom. Goebel, Lawyers in the EC, pp. 601-03, 625-34 (on reserve)
Recom. Terry, Introduction to the EC's Legal Ethics Code, 7 Georgetown J. Leg. Ethics 1 (1993)

Questions for reflection:

1.The obligation of established lawyers to respect in general the professional rules of conduct and ethics of the Host State was first enunciated in Van Binsbergen and repeated, with some amplification, in Auer, Gullung, Gebhard and other cases. This is also the approach in the US Legal Consultant laws. Do you agree with the categorical exclusivity of all Host State rules in Art. 6 of the draft directive? The earlier CCBE draft required the Host State rules to be "objectively justified" and also applied the CCBE Code of Conduct which sometimes gives priority to Home State rules. What is your view on this issue?

2.Host State insurance costs or guarantee fund contributions can be very substantial. How is this dealt with in Art. 6(3)? What should be done about mandatory host State contributions to a retirement fund, which can also be substantial?

3.Art. 7 of the draft directive provides exclusively for Host State disciplinary proceedings. The CCBE draft stated that the disciplinary panel should contain a minority representation from the Home State bar. Do you think that would be sensible, or not very functional in practice? To what extent is Art. 9 helpful? Could either the initial disciplinary panel or the tribunal in Art. 9 refer questions to the court under Article 177?

Tentative Schedule of Further Classes

Class 5, Feb. 12
Guest lecturer: Richard Lyal, Commission Legal Service
Topic: Direct tax (income tax) harmonization and cooperation between tax
authorities; Court case law on non-discrimination in direct taxation

Class 6, Feb. 19
Company law harmonization program; the French public (SA) and private (SARL) corporate forms; the First Directive (corporate records and registers); the Second Directive (capital, acquisition of own shares, preemptive rights)

Class 7, Feb. 26
Case law on establishment rights of companies and shareholders; the Third Directive (mergers); the Fourth, Eighth and related directives (accounting standards and auditors)

March 5, Spring break

Class 8, March 12
The German stock corporation (AG) divided board model, with employee representatives; the draft Fifth Company Directive.
Treaty provisions on social policy; the 1975 collective redundancies directive; the 1977 transfer of undertakings directive

Class 9, March 19
The 1980 employee protection in insolvencies directive and the Francovich case; Article 118a on worker health and safety; the Social Charter of 1989; the Maastricht Social Protocol; the 1993 Working Time Directive. Equal workplace rights for men and women; Article 119 and equal pay; the comparable worth doctrine; the 1976 equal treatment directive.

Class 10, March 26
EC external relations and trade law; the EC, GATT and the WTO; the Anti-dumping Regulation and procedural and substantive rules in its application

Class 11, April 2
Guest lecturer: Judge Bo Vesterdorf, Court of First Instance
Development of a right of judicial review of anti-dumping decisions; procedural rights; recent substantive case law

Class 12, April 9
The European Economic Area and the Europe Agreements; EC-US trade relations and notable disputes; EC customs rules and the CCT. The importance of capital movements and the attainment of free movement of capital

Class 13, April 16
The European Monetary System; the proposed structure and goals of an Economic and Monetary Union; the single European currency and practical issues in its creation; the First Banking Directive and its definitions

Class 14, April 23
The Second Banking Directive: structural analysis, the single license, universal banking, status of US banks; consolidated banking, bank deposit guarantees, money laundering and others key accessory or flanking directives.