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European Law Journal, Vol. 16, No. 4, July 2010, pp. 501–510.

© 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA

BOOK REVIEWS
Droit Administratif Européen. Edited by Jean-Bernard Auby and Jacqueline Dutheil de
la Rochère. Brussels: Bruylant, 2007. 1136 pp. Pb. €145.00.

For many years, Jürgen Schwarze’s Europäisches Verwaltungsrecht (two volumes, 1988;
2nd edition in one volume, 2005) together with its English and French translations
(European Administrative Law, 1992; Droit Administratif Européen, 1994) has domi-
nated the advanced textbook literature on European administrative law. It was only in
2006 that Paul Craig’s EU Administrative Law was issued, followed by The Europeani-
sation of Public Law by Jan Henrik Jans, Roel de Lange, Sacha Prechal and Rob
Widdershoven in 2007, and another Europäisches Verwaltungsrecht has just been pub-
lished by the German ECJ judge Thomas von Danwitz—to mention just the most
voluminous works. Together with the equally voluminous Droit Administratif Européen
under review here, edited by Jean-Bernard Auby and Jacqueline Dutheil de la Rochère,
there is now a broad range of textbooks focusing on the subject from many different
perspectives. This concentration of large textbooks shows that the subject of European
administrative law is in a phase of consolidation where the outcome of the plethora of
monographs and single articles might be brought into a systematic shape.
In this respect, Auby and Dutheil de la Rochère’s Droit Administratif Européen sees
itself as a particular representative of the doctrine française, the belatedness of which in
the European administrative law debate the editors want to overcome (p 3). Indeed,
many of the articles do adopt a view which can only be understood having some idea
of the core notions of French law, it avoids just rethinking the existing knowledge on
the subject à la française, and the quite substantive contributions from foreign (ie
non-French) authors are proof of that approach.
Although we can today be sure to have such a subject as European administrative
law, its terminology is by no means definitely settled. Auby and Dutheil de la
Rochère have a comprehensive concept of what the subject is—all EU law related to
the execution of law (and not its legislative production) together with its links to the
national legal systems (pp 3 et seq). Although this definition is certainly not devoid
of problems (Where is the borderline between legislation and execution?—a very
French view; How far does the subject intrude into national legal systems?), it is a
starting point for an analysis of unquestionable quality. But problems of terminology
do not stop there. What is the intricate web of European and national sources, actors
and authorities to be called? Is it co-administration tout court (Jacques Ziller, p 242),
something like a ‘Verwaltungsverbund’ (a term coined in Germany mainly by Eber-
hard Schmidt-Aßmann)—maybe translated as ‘administration conjointe’ or ‘adminis-
tration commune’ (Claudio Franchini, p 268), is it ‘europeanisation’ or are we to deal
with an ‘espace administratif européen’ to be organised according to common prin-
ciples and rules (cf Siedentopf and Speer, pp 299 et seq, following the OECD/SIGMA
study of 1999)? These notions are used throughout the book, and as there is still no
consensus about a terminology at national level, its formation is a major task for
European scholars.

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Apart from the general introduction, the book is divided into seven parts (what
a sacrifice for French authors to deviate from the Cartesian model). The first part
(pp 25–231) sheds light on the institutions and rules of administration at EU level: the
Council, the Commission and the agencies as actors (with the interesting view of Jacqué
considering the Council as part of the executive, p 33) completed by the various
administrative activities (with a very valuable view on public contracts by Dominique
Ritleng, pp 147 et seq, which are often neglected) together with the liability of the
EC and its civil service (‘fonction publique’).
The second part takes Article 51 of the Charter of Fundamental Rights (2000/2007)
as a starting point and analyses the concepts of direct, indirect and co-administration
(pp 237–317) which appear to be related to the way those European fundamental rights
are to be respected (as opposed to national guarantees with similar content). Claudio
Franchini makes very clear that the dominance of indirect administration (ie the
execution of EC law by the Member States) goes back as far as to the times of Jean
Monnet and Robert Schuman (pp 245 et seq). Other actors in this respect are the
agencies (Edoardo Chiti, pp 267 et seq) and the famous networks (Jean-Luc Sauron,
pp 283 et seq).
The third part (pp 321–535) focuses upon the principles of European administrative
law which were at the core of Schwarze’s pioneer book (thus: pp 321 et seq by Jürgen
Schwarze). All principles are elaborated in great detail: proportionality, subsidiarity
(unfortunately without a look into the rich German literature), ‘légalité’ (a very inter-
esting French perspective), effective judicial protection, equality/non-discrimination,
precaution, legal security/protection of legitimate confidence, transparency—up to the
linking term of good administration. This notion might lead to what is even now
important once the principles have been accepted and established: an overall view on
the constitutional (correctly: Susana de la Sierra, p 341) sources of those principles, a
constitutional law of administration in Europe.
The fourth and fifth parts (pp 539–666 and 669–836) include the administrative law
systems of the Member States (or at least of a representative choice). Jacques Ziller
rightly and clearly explains the core problem (and its banality, p 542): in European
administrative law, every scholar detects his parochial principles and rules so familiar
to him and is puzzled at the same time about their modifications. It is therefore logical
to analyse what has gone into the ‘melting pot’ (‘creuset’) of European administrative
law from the different legal systems, and it is necessary to consider how these legal
systems are to be modified in various fields such as administrative procedural law, to
name just one of them. Methodologically, pluralism in legal systems and their schol-
arship (Mario P. Chiti, p 670) may be propitious for the symbiosis to be established,
perhaps more than stressing the institutional autonomy of the Member States (Rostane
Mehdi, pp 685 et seq), but who could master it?
In part six (pp 839–1061), at least the French contribution to this pluralism is
meticulously analysed and presented, from the ‘collectivités territoriales’ and the famous
(if not infamous) ‘service public’ (explained by one of the most renowned French scholars
on the public economic law, Martine Lombard) until the ‘fonction public’. Such a
country-oriented approach is useful to find one’s starting point—and to detect incon-
sistencies with general European trends. It is against this analysis that in the final part
(pp 1065–1110), convergences between the legal systems at national and European level
can be made out, considering transnational administrative acts (discovered enfin in
France—by Marie Gauthier, pp 1069 et seq) and—what is very interesting—a compari-
son with the other great federal system, the USA (by Catherine Donnelly, pp 1085 et seq).

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It goes without saying that we are dealing here with an opus magnum, not only of two
editors, but of the scientific community of a whole country. It also goes without saying
that every progress in the research on the European administrative account will be
obliged to build upon its result—and will largely profit from it. What should also go
without saying: as the French, the British, the German and other contributions and
perspectives on the subject gather—there is still a lot to be done to create a truly
transnational scholarship.

Matthias Ruffert,
Universität Jena, Germany

State Procedure and Union Rights. By Johan Lindholm. Uppsala: Iustus Förlag, 2007.
386pp. Pb. 535 Krona (approximately €58.00).

The author describes his book as a procedural study, focused on the second-tier courts’
attitude to the procedures used by the first-tier courts of two very different legal orders:
namely the EU and the USA. It is rather an extended and thorough study of the
relationships between two levels of court in the very different constitutional settings.
The centre of attention is, however, Community law, the author’s aim being to deter-
mine if ‘the European doctrine’ or ‘system of legal mechanisms in Community law
governing what procedural rules national courts shall apply to Community rights, can
be reformed to better balance involved interests’. ‘Interest’ is widely interpreted to cover
not only the customary ‘effectiveness’ of Community law but also the general institu-
tional balance and appropriate division of power in the Community legal order. Thus
the account of the US system, interesting and complete though it is, is included
primarily as a comparator.
The book falls into four discrete parts. The first part, which bears the hallmarks of
the book’s origins as a doctoral thesis, provides a leisurely introduction to the meth-
odology of comparative law. The choice of the USA as comparator is justified on the
grounds first, that many similar studies exist, which ‘indicates compatibility’. This is, of
course, not necessarily correct; there is much in the early studies to suggest that the
compatibility found by American commentators was in part an expression of their
hopes as to the path the Community would take. At first it seems that the author shares
these views, since he asserts that ‘the United States has faced the same challenge as the
European community trying to make states with a strong feeling of independence
accept central government’. His conclusions do not, however, bear this out and I make
the point not to cast doubt on the utility of his comparison but because the remarks
seem to pass over too lightly the very different constitutional structure that underpins
the legal orders of the two systems. Despite his proviso that comparisons between the
two are ‘not entirely correct’, I draw back from the author’s conclusion (p 85) that,
after the introduction of the doctrines of direct and indirect effect, ‘the Community
Treaties have become increasingly similar to the US in the respect that both the union,
the states and all individuals are bound by it’. As we all know, the EU is not a
federation and, at least at present, does not aspire to be one.
Part II of the study presents a very full overview of the European situation. As with
so much legal scholarship in EC law, the author has set his sights on the case-law of the
European Court of Justice (ECJ), its constitutional jurisprudence and its relationships
with national courts, though he does note an increasing tendency on the part of the
Community legislator towards procedural regulation. He notes the few measures taken

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under Art 81(2)(c) TFEU (ex Art 65(c) EC) in the interests of inter-state trade, such as
the Regulations establishing a European small claims procedure and procedure for
dealing with uncontested claims. No real explanation is, however, offered of why this
broadly-worded Article has been so little used compared with the proactive use of the
‘inter-state commerce’ clause of the US Constitution (Article 1, section 8). The
Tampere call for measures ‘to smooth judicial co-operation and to enhance access to
law’ also receives a brief mention but here again there is no discussion of the oppor-
tunities offered by the broad new Justice and Home Affairs mandate to work towards
the harmonisation of criminal procedure, nor of the progress already made in this field.
I shall return to this point.
Part III presents an overview of the American position to the extent to which it is
pertinent to the study. This is very well exposed. The author focuses on ‘the American
doctrine’, meaning ‘the mechanisms in Federal law governing what procedural rules
State courts shall apply to Federal rights’. This highlights a basic imbalance between
the two systems. Federal courts in the USA ‘exist parallel to but independently of each
other, for the most part performing different functions’, and the congressional power
granted by the Constitution to set up ‘inferior courts’ has in fact been exercised. There
is a sharp distinction with the EU where no such system exists (though it has been
advocated). Instead, the author asserts (p 88) that ‘when a national court applies a
Community law directly, that court forms part of the Community judiciary. The
national court then functions as a community court on the national level’. In short, in
the USA, the two legal orders are structurally independent; in the EU, they are not;
EC law is parasitic on the national legal orders. Commentators have not been slow to
point out that this is a situation fraught with danger but so far the danger (except
perhaps in the Maastricht-Urteil decision of the German Bundesverfassungsgericht)
has never materialised.
What are then are the author’s conclusions, as presented in Part IV? First, he
concludes that there has been more American intervention in state legal procedure than
has taken place in the EU. Discounting any effects of the vague and inchoate doctrine
of subsidiarity, he seeks to explain this in terms of the American doctrine of pre-
emption, according to which the states lose authority to legislate in areas covered by
federal legislation. The author’s conclusion is that US pre-emption theory has not been
applied in Community doctrine, where it is ‘unclear when and why states are pre-
empted from regulating’. This could I think be disputed; much the same is true, at least
according to American constitutional lawyers, of the USA.
Here we should recall the point I made earlier concerning the omission to probe
reasons for the under-use of Art 81(2)(c) TFEU (ex Art 65(c) EC) or to explore the
potential of the legal dimension of the Justice and Home Affairs mandate. These to me
cast a clearer light on the differences between the systems, which are historical, consti-
tutional and, above all, political. The institutional framework of the USA and is
founded in a much respected Constitution. It is several centuries older and its legal
orders have had far more time to participate in the process of state-making. The states
were never in fact ‘sovereign’ in the same sense as the Member States of the EU, many
of which had emerged as nation-states by the date of American independence. And
despite a healthy sense of state independence, there is in a long-term sense of ‘Ameri-
canness’ which is certainly not yet a feature of the European situation.
Unsurprisingly, the author concludes that his US comparison provides no ready-
made solutions and, realistically, that no ‘clear, workable, and permanent solution’ to
the problem of procedural conflict is likely. It is hard to disagree. He insists too that

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those concerned should work to ensure so far as possible that rules are ‘reasonable and
well-founded’ as well as clear fixed and certain. His preference is, I think wisely, for
greater regulatory intervention and less of the judicial ‘ad hocery’, which ‘may at first
sight appear as a smaller infringement of national procedural autonomy’ but is widely
criticised in the literature for its unevenness and uncertainty. In the long run, it is wise
in this sensitive area to bear in mind Lon Fuller’s famous warnings as to the limitations
of adjudication as a method for effectively resolving polycentric disputes.

Carol Harlow,
London School of Politics and Economics

The European Social Model and Transitional Labour Markets. Edited by Ralf
Rogowski. London: Ashgate, 2009. 374 pp. Hb. £65.00.

This book edited by Ralf Rogowski analyses ‘transitional labour markets’ (TLMs)
from various different angles—in particular employability and flexicurity—and at
global, EU and national levels. While labour force participation across the EU has
increased dramatically over the past two decade, policies for transitions into and out of
the labour market have been developed in line with general principles of solidarity that
underlie the European Social Model (ESM). The research topic is relevant for legal
scholars as it embodies European soft law, but it is addressed through approaches
developed in political science. Several chapters in the book are good self-standing
pieces, many of them written by renowned scholars, but due to very light editorial work
by Rogowski, the theoretical, policy and legal issues raised through the TLM approach
are not tackled systematically throughout the book.
Chapter 1 by Rogowski introduces the TLM theory and compares it to policy in the
European employment strategy (EES). He summarises the TLM approach and its five
combinations of transitions, each requiring particular policy responses to support
optimal entry and (temporary) exit from the labour market. These transitions are
family life, training and education, seeking a new job, confronting disability and
permanent job loss. The chapter covers recent EU employment policy, but does not
take account of the wealth of research on the EES, which shows interaction between
national and EU level actors in the development of policy. Rogowski also discusses the
ESM notion, which he broadly equates with the EES, although the ESM is much
broader, covering hard and soft law in different areas of social policy.1 Most unfortu-
nately, the chapter does not frame the research project or develop key research ques-
tions to address how European welfare states ensure transitions into and out of the
labour market.
Chapter 2 by Gunter Schmid pinpoints, both theoretically and empirically, the main
tensions in reforming work and welfare on the basis of his TLM approach, according
to which ‘transitional’ refers to labour market institutions in ‘modern society’, where
social risk2 has increasingly been individualised and where employment among all
categories of workers is increasing. The chapter draws upon statistical data to show

1
The ESM includes EU legislation for market-correction (equal opportunities, health and safety at work,
labour law) and market-making (eg the recent directive on the mobility of patients), structural funds for
developing labour markets in underdeveloped areas and the open method of coordination in anti-poverty
policy, pensions and health care.
2
See A. Giddens, The Consequences of Modernity (Polity Press, 1990).

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how policy has been developed in response to key transitional challenges in the EU
Member States. In doing so, he successfully frames the policy responses and remaining
challenges for different EU Member States, including the new Member States.
However, it does not integrate the policy solutions developed by the EES into the
analysis. This is partially resolved in Chapter 3 by Axel van den Berg and Erik de Gier
that highlights the extent to which the EES has developed policy with regard to
transitions faced by individuals. Chapter 4 by Bernard Gazier and Arnaud Lechevalier
summarises how worlds of welfare and labour markets are changing, with a brief
commentary about how the EU could respond to current challenges. However, instead
of building on the TLM approach or drawing upon the EES, like the chapter by van
den Berg and de Gier, it frames the challenges again, without added value for the book.
Chapter 5 by Patricia Leighton presents a clear and insightful analysis of Temporary
Agency Work. She notes the absence of policy related to Temporary Agency Work in
the EES, and the lack of impact of the Strategy on specific challenges related to work
organisation, due to its governmental embeddedness. Chapter 6 by Ton Korver and
Peter Oeij focuses on covenants, how they are used and why they are relevant, but
unfortunately, it also side-steps the main theme of the book—TLM and EU employ-
ment policy. Chapter 7 by Jean-Claude Barbier on social Europe and the limits of soft
law discusses the notion of the ESM, soft law in the EU and the major obstacles to
developing an EU-wide frame of reference, with a reference to flexicurity. It insists on
national embededness of labour market policy in the development of flexicurity, but is
unfortunately also rather detached from an analysis related to TLMs. Overall, some of
the transnational chapters could have been left out, which would have left more space
for in-depth national case studies.
Chapter 8 on the Danish model of flexicurity by Thomas Bredegaard, Flemming
Larsen and Per Konghøj Madsen is well-written and contextualised in the TLM theme
of the volume. It discusses the historical and policy and institutional features of the
welfare state in Denmark, within which Danish flexicurity developed. In that sense, it
is a warning against expectations of policy transfer from one country to another.
Chapter 9 by Nekkers, Roorda and den der Waart about policy development in the
Netherlands uses a TLM approach and focuses particularly on how reforms have been
developed to make work pay. It is a well-written chapter, but for the collective volume
it could have included more focus on other aspects of TLMs, such as childcare,
education and life-long learning policy. Chapter 10 by Lieve de Lathouwer on the
Belgian case, also focusing on policies to make work pay, is a very thorough and
in-depth analysis, including an interesting discussion about different types of make
work pay policies and their impacts. Chapter 11 on the French case by Jacques
Bouchoux, Yvette Houzel and Jean-Luc Outin focuses on the problems of a nationally
defined Basic Income with local governance structure, which is interesting, but makes
no genuine contribution to the book.
The penultimate transnational chapter by Ruud Muffles is outdated (the data series
ends in 2001), has been published elsewhere in other forms, and makes no effort to
integrate TLM analysis. The final chapter by Auer is excellent, highlighting tensions of
TLM in a globalised context—such as structural heterogeneity between jobs lost and
created, and the relationship between job quality, tenure and security. However, it
draws conclusions on the basis of his own work and not the work throughout the TLM
book, which is hardly surprising as the book is fragmented, lacking a backbone and
thorough analysis. The book would have benefited from fewer broad transnational
chapters, and more national case studies, around the five key areas of transitional

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labour markets. Overall, the book lacks clear editorial direction, with the result that the
individual chapters, varying in quality, are not integrated within the broad theme of
how Member States are tackling transitions and what, if any role, the EU level could
play in this regard.

Caroline de la Porte,
University of Southern Denmark

L’Europe sortir du doute. By Jean-Victor Louis. Brussels: Bruylant, 2007. 152pp.


Pb. €30.00.

Professor Jean-Victor Louis of the Université Libre de Bruxelles offers an impressive


analysis of the critical situation after the negative votes on the Constitutional Treaty in
France and the Netherlands, two founding members of the European Community. As
has been widely acknowledged the referenda indicated a fundamental political and
institutional crisis in the process of European integration.
The book was written and published after the Nicolas Sarkozy, then still Interior
Minister, had indicated in speeches in Berlin and Brussels in February and September
2006 that the Constitutional treaty would not come into force in its original form.
Rather he suggested the possibility to maintain specific elements of this treaty and
integrate them into a short or ‘mini-treaty’ of 10 or 15 articles, gathering what could be
considered as ‘the non-controversial elements’ of the text. Against this background the
book revisits and maintains the original interest in the essential issues which drove
the constitutional process, in particular different ways to pursue European integration,
the means to reinforce EU’s identity in the world, the different aspects of Union’s
enlargement and its consequences on the neighbourhood policy and the negotiations
with Turkey.
Chapter 1 reminds us of the core question: Why does the EU need a constitution?
After discussing and rejecting the different arguments which link the constitution to the
existence of a state, on the one part, and of the European demos or people, on the other
part, the author defends the necessity of the constitutional perspective. It follows a
synthetic presentation of the many advantages of the original Constitutional Treaty: a
unique organisation, a unification of the treaties, a step towards more democracy,
a more effective decision-making, a clarification of the distribution of competences
between the EU and the Member States and a new classification of norms, a more social
Union and a better identity of the Union in the world.
In Chapter 2 the author analyses in depth the problems raised by the successive
enlargements of the EU, including their conditionality and the application of the 1993
Copenhagen criteria to each candidate. The ‘big bang’ approach of admitting 10 new
members in 2004 is in particular criticised by Jean-Victor Louis. In his view the progress
that would have been necessary in the field of governance in order to ensure a correct
application of EU law have been neglected to the advantage of a formal or quantitative
adaptation of the acquis communautaire by the candidates. Why did this happen?
Jean-Victor Louis explains that at the beginning of 1990 the pressure exercised in
favour of enlargement was considered inevitable and appeared as a historical duty.
Unfortunately, the treaty reform needed in relation to the enlargement, which had
originally been asserted by the European Council of June 1992 in Lisbon, was only
realised in 2004 in the Constitutional Treaty, which the author still considers as an
incomplete undertaking to this regard.

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As for Turkey, the author recognises that the accession perspective played a crucial
role in the rejection of the Constitutional Treaty in France and the Netherlands—
despite a modification of the French Constitution which provided for a referendum for
each enlargement after Bulgaria and Romania. Also in other Member States the
opposition to enlargement increased. Jean-Victor Louis clearly states that the EU has
in his view no vocation to indefinite widening. Rather, the accent should be put today
on the ‘absorption capacity’ of the Union, or to use a better word as suggested by the
author Aufnahmefähigkeit (admission capacity) to which the negotiation framework
for further enlargements refers.
The final chapter is devoted to future perspectives. Jean-Victor Louis presents and
evaluates the options available to overcome the constitutional crisis. His first option
concerns the ‘reconquest’ of the European citizen by offering better communication
and transparency, a concentration on the delivery of results for Europe and on a better
regulation which should be more accessible and conform to the subsidiarity principle.
His second option deals with the possibility of reform on the basis of the then-existing
Treaty of Nice. Specific anticipations of the Constitution would have been possible but
limited; also a ‘pick and choose’ approach to different elements in the Constitution in
order to apply them separately presented certain risks: resorting to the ‘bridge’ clauses
(Articles 67 EC-Nice and 42 EU-Nice) in the area of freedom, security and justice
would have involved problems of political nature. Also, the enhanced cooperation
clauses are helpful but they do not allow for substantial progress; instead they may
rather serve as a pressure instrument. Finally, closer cooperation on the basis of
international agreements outside the frame of the treaties, such as the Prüm Conven-
tion, would entail the disadvantages of the intergovernmental system characterised
with a limited efficiency and the exclusion of the EU’s institutions.
Jean-Victor Louis instead proposes, among other things, to pursue European inte-
gration in a constitutional perspective with the introduction of a protocol on economic
governance and social policy. It turned out that history largely justified his standpoint.
The Lisbon Treaty which was signed on 13 December 2007 and entered into force on
1 December 2009 may have removed the constitutional symbols from the text, but gave
birth to institutional and substantial rules which resume most, if not all, parts of the
Constitutional Treaty which the author had identified as essential elements for the EU’s
future.

Christine Kaddous,
University of Geneva

Free Movement of Goods and Limits of Regulatory Autonomy in the EU and WTO. By
T. Perišin. The Hague: TMC Asser Press, 2008. xiii + 238pp. £50.00.

This book is a comparative study of the rules of the EU and the World Trade Orga-
nization (WTO) on the free movement of goods. The book is well structured. Chapter
1 serves as the introduction to the subject and explains the main concepts used through-
out the book. Chapter 2 on non-pecuniary restrictions on the free movement of goods
in the EU presents a thorough analysis of Art 34 TFEU (ex Art 28 EC) as well as the
interfaces between free movement and fundamental rights—with a legal analysis of
relevant case-law. Chapter 3 analyses the important concepts of conferred compe-
tences, subsidiarity, and proportionality. Chapter 4 deals with the non-fiscal restric-
tions on the free movement of goods in the WTO, analysing the main rules of the

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General Agreement on Tariffs and Trade in this respect and the interaction among
them. Chapter 4 also analyses other WTO Agreements such as the Agreement on
Technical Barriers to Trade and the Agreement on the Application of Sanitary and
Phytosanitary Measures in the context of non-fiscal restrictions on the free movement
of goods. The book concludes in Chapter 5 with two key questions: a) How should EU
and WTO rules on the free movement of goods be interpreted?; and b) What are the
effects of EU decision-making within the WTO? Both questions are already presented
in the introductory chapter.
The author argues that ‘trade liberalization is a highly positive development since it
contributes to the better allocation of resources, to economic prosperity, and to raising
the standard of living and the quality of life’ (p 1). Supporters of trade liberalisation—
the reduction of tariffs and removal or relaxation of non-tariff barriers—argue that it
is sensible to liberalise trade globally because: a) freer trade allows countries to specia-
lise in what they do best (theory of comparative advantage), creating thereby greater
economic efficiency, and allowing more goods and services to be produced and con-
sumed; b) if a market is open to imports, domestic producers are exposed to competi-
tion from overseas. Being successfully competitive at home vis-à-vis imports implies
greater chances to be competitive overseas; and c) competitive imports are beneficial for
the consumer from choice, price, and quality viewpoints. A sensu contrario, a policy of
maintaining trade obstacles to imports tends to raise the cost of living and reduce
consumer choice. That said, not everyone is convinced that trade liberalisation is
beneficial for every WTO member, especially the poor, based on the following grounds:
first, government transfers can shrink as liberalisation cuts the government’s receipts of
trade-related taxes; second, terms of trade can deteriorate as liberalisation affects world
prices; third, liberalisation can impose adjustment costs and raise short-run risk owing
to competition from imports and reallocation of productive factors.
Perišin is concerned about the fact that free-trade agreements today have a broad
implications on our daily life. In an era where international trade has a great incidence
in domestic politics (whether it concerns food safety, human rights, etc), trade policy
still suffers from a democratic deficit. This is quite ironic in the case of the EU since the
main purpose of the Convention on the Future of Europe was to make policies more
democratic and closer to European citizens. With the Lisbon Treaty, co-decision
between the European Parliament and the EU Council of Ministers will apply to
international trade agreements. That will bring more democratic legitimacy to the
process of decision-making. This is an important step forward in combating the demo-
cratic deficit in trade policy-making. The EU had to wait over 50 years to make this
happen. However, co-decision only partially solves the democratic deficit problem,
since the Lisbon Treaty, in my opinion, excluded national parliaments. Because the
Lisbon Treaty gives exclusive competence to the EU in the common commercial policy,
a solution to combat the democratic deficit in trade policy would be the empowerment
of national parliaments.
Ideally, trade policy should become more democratic, by not only involving parlia-
ments but also through citizens’ participation. People should be able to participate in
trade policy-making by voting on the agreements. Citizens should be informed before
voting so that they will vote with an understanding of the issues (deliberative democ-
racy). This is not an entirely unrealistic goal because today people are more informed
than ever, and are starting to realise that trade affects their daily lives.
Those members of civil society who benefit the most from trade liberalisation are
diffuse and have small gains, whereas those who lose from trade are concentrated and

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organised. Since the trade policy-making can be easily captured by protectionist inter-
ests (ie farmers or unions), the authority to make trade policy is often in the hands of
the executive power to bypass protectionist pressures. Nonetheless, the next question is
inevitable: accountable to whom? It should be noted that national governments do not
always consider the interest of all their citizens, but rather leave out those citizens who
do not live in the country and, thus, are not represented.
In Chapters 2 and 3, the author demonstrates very avidly that the EU internal
market rules have strong external effects that can be felt within the WTO. In this sense,
Perišin concludes that ‘the common market is nowadays at a much higher level of
integration than when mandatory requirements were first introduced’ (p 46). More-
over, the author concludes that because changes in the standard of review bear impor-
tant consequences for the division of powers between the European Community (EC)
and its Member States, as well as between the judiciary and the legislative/executive,
‘the principle of proportionality affects the core of the constitutional systems of the
Member States and the Community’ (p 56). Furthermore, it is concluded that, in the
context of EC rules on non-pecuniary restrictions on the free movement of goods, it is
difficult to strike a ‘balance between trade liberalization and the states’ regulatory
autonomy in protecting other values’ (p 78). In addition, the book shows that there
have been an increasing number of cases dealing with conferred competences, subsid-
iarity, and proportionality. These cases are ‘witness to the very dynamic dialogue
occurring in Europe on the need for better observance of these principles’ (p 124).
Chapter 4 illustrates that the problem with interpreting WTO rules on non-fiscal
trade restrictions is how to ensure Member States’ regulatory autonomy while at the
same time enhancing trade liberalisation (pp 192–193). It is argued that ‘the level of
regulatory autonomy which should be left to the states must correspond to the WTO’s
objectives and its relatively heterogeneous structure (and thus this level of national
regulatory autonomy must be higher than is the case in the EU)’ (p 193). The book
concludes in its final chapter that ‘trade rules inevitably exert a strong impact on the
protection of values, national regulatory autonomy, division of power between levels of
branches of government, and on sovereignty (p 197). This is particularly true in the case
of EU and WTO rules on the free movement of goods, which can force states to remove
measures which might have been adopted to achieve a valuable goal, but which present
obstacles to trade.

Rafael Leal-Arcas,
Queen Mary University of London

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© 2010 Blackwell Publishing Ltd.

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