Table Of Contenti
TOWARDS A EUROPEAN PUBLIC LAW
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Towards a
European
Public Law
BERNARD STIRN
Translated and edited by
EIRIK BJORGE
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© Bernard Stirn 2017
© This Translation Eirik Bjorge 2017
Vers un droit public européen 2e édition
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v
The genius of Vienna, a specifically musical genius, had always
been that it harmonised all national and linguistic opposites in
itself; its culture was a synthesis of all Western cultures. Anyone
who lived and worked there felt free of narrow- minded preju-
dice. Nowhere was it easier to be a European.
—S tefan Zweig, The World of Yesterday (1943)
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Foreword
In his Introduction to the Law of the Constitution, first published in
1885, the English constitutional scholar A V Dicey described French
droit administratif as utterly unlike any branch of modern English
law: even the term, he wrote, had no proper equivalent in English
legal phraseology. That view was greatly exaggerated: Dicey appears to
have misunderstood the French system of administrative law, and to
have overlooked the existence of a substantial body of English law on
the same subject. In fairness, he later came to adopt a more nuanced
view. His earlier writings were, however, highly influential in forming
British attitudes towards continental systems of public law. And some
significant differences did exist. Whereas administrative law became
increasingly important in France and Germany as the activities of the
state developed during the first half of the twentieth century, and a
constant stream of judgments was analysed and systematized by legal
scholars, there was, for quite a prolonged period, comparatively little
activity in that area of the law in the United Kingdom. Furthermore,
the establishment of judicial institutions to apply administrative law
which were wholly separate from the ordinary courts, such as the
French Conseil d’État, had no parallel in the United Kingdom. Even
the concept of the state had no equivalent in English law, and no clear
distinction was drawn between private and public law.
These differences between Britain and continental Europe had deep
roots. Constitutional developments in seventeenth century England,
themselves with roots in a more distant past, had prevented the Crown
from establishing a degree of control over the country equivalent to
that exercised from Versailles or Potsdam. The range of functions per-
formed by government remained comparatively limited until mod-
ern times, and government departments were surprisingly small. The
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absence of any rupture with constitutional tradition, equivalent to
that resulting from the revolutions of French and German history,
allowed the law to evolve incrementally, without any fundamental
re- consideration of its approach to the exercise of public functions,
or of the institutions responsible for the administration of justice in
that field.
The second half of the twentieth century witnessed major changes,
as the law in the United Kingdom responded to the growth of the
state and the expansion of its functions. A renaissance of administra-
tive law began in the 1960s, building on the older body of case law.
Remedies in public law became more readily available, with the intro-
duction in the 1970s of the application for judicial review. New institu-
tional arrangements were established, with the creation of numerous
administrative tribunals and, eventually, their closer integration into
the framework and culture of the courts and the judiciary.
But the most significant changes in this area of the law, influencing
those already discussed but having a broader impact, have occurred
over the last forty years or so as a result of the UK’s membership of the
European Union and its adherence to the European Convention on
Human Rights and Fundamental Freedoms, as given domestic effect
by the Human Rights Act 1998. These changes have also affected, to
a greater or lesser degree, the other European countries that belong
to the European Union and adhere to the European Convention, and
have resulted in a growing convergence of some aspects of the differ-
ent European legal traditions. Although the differences between those
traditions in some respects remain profound, they have diminished
considerably in the field of public law.
The European Union is based on law: not only in the formal
sense that it has been established by international treaties entered
into by the Member States, but also in the more fundamental
sense that it is a system founded on law, in which the courts play
a central role in supervising legislative and governmental insti-
tutions, and in which the Court of Justice ensures the consistent
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Foreword ix
interpretation of EU law by the national courts by means of the
preliminary reference procedure. In exercising its interpretative
function, the Court of Justice has consciously furthered the goal
of integration by adopting a robustly purposive approach, and
the national courts have then become the agents of integration
by giving effect to that purposive interpretation. There is, how-
ever, scope for dialogue between the Court of Justice and national
courts, both literally in meetings between their respective judges,
and more figuratively in their respective judgments.
The European Convention is also an international treaty, whose
interpretation is the task of another international court—the European
Court of Human Rights. National courts in turn generally give effect
to its interpretation of the Convention, at least when it has become
the settled view. The scope for dialogue in this context is more firmly
established: through their respective judgments, national courts such
as the Supreme Court of the United Kingdom, and the European
Court of Human Rights, can conduct a prolonged and fruitful dia-
logue. The scope for national courts to influence the European Court
is widened by the Court’s doctrine of the national margin of appreci-
ation, which enables it, within limits, to respect national differences
and sensitivities.
These developments have challenged some older attitudes to
the role of the courts in public affairs in the United Kingdom. The
European Union is a system in which the courts play a more promi-
nent role than was traditional in this country. As the ambit of EU law
has progressively widened, so as to cover not only matters directly
relating to trade, but also broader and more sensitive issues, such as
immigration, data protection, and the environment, an increasing
range of aspects of public administration have become subject to EU
law, and therefore to adjudication by the courts. At the same time, the
European Convention has required domestic courts to make judg-
ments on an even wider range of issues, sometimes relating to contro-
versial issues of social or economic policy.
