1. Treaty Establishing the
European Community, Mar. 25, 1957, 298 U.N.T.S. 11, as amended
by Treaty of Amsterdam, Oct. 2, 1997, 1997
O.J. (C 340) 1, as amended by Treaty of Nice, Feb.
26, 2001, 2001
O.J. (C 80) 1, consolidated version reprinted in 2002
O.J. (C 325) 33 [hereinafter E.C. Treaty].
2. See, e.g., Alf Ross, Towards a
Realistic Jurisprudence: A Criticism of the Dualism in Law
(E. Munksgaard 1946); Alf
Ross, "Tu-Tu, 70 Harv. L. Rev. 812 (Mar. 1957); Karl Olivecrona, Law as
Fact (Oxford University Press 1939).
3. E.C. Treaty, supra
note 1, art. 28 reads in its entirety: "Quantitative restrictions
on imports and all measures having equivalent effect shall be
prohibited between Member States."
4. E.C. Treaty, supra
note 1, art. 30 reads in its entirety:
The
provisions of Articles 28 and 29 shall not preclude prohibitions
or restrictions on imports, exports or goods in transit
justified on grounds of public morality, public policy or public
security; the protection of health and life of humans, animals
or plants; the protection of national treasures possessing
artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or
restrictions shall not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between
Member States.
5. Every State is a
community of some kind, and every community is established with a
view to some good; for mankind always act in order to obtain that
which they think good. But, if all communities aim at some good,
the state or political community, which is the highest of all, and
which embraces all the rest, aims at good in a greater degree than
any other, and at the highest good.
(*),
Book 1, § 1 (Benjamin Jowett trans., Clarendon Press 1926).
(I.e.,
the State is the means to the end of the good life.)
6. Joseph
Jenkins, Heavy Law/Light Law: Walter Benjamin, Friedrich
Nietzsche, Robert Bork, Duncan Kennedy, 17 Cardozo Stud. L. & Lit.
249, 261-62 (2005).
7. Case
C-240/83, Procureur de la Republique v. Ass'n de Defense des
Bruleurs d'Huiles Usagees, 1985 E.C.R. I-531 ("The principle
of free trade is not to be viewed in absolute terms.").
8. Richard
A. Posner, Legal Formalism, Legal Realism, and the
Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev.
179, 181 (1987) (defining legal formalism as "the use of
deductive logic to derive the outcome of a case from premises
accepted as authoritative").
9. See, e.g., Peter
Underwood, Statutory Interpretation, http:// www.law.uts.edu.au/~peteru/lph/f6931.htm
(last visited **
2004). The influence of Professor John Griesbach, who pointed this
out to me and encouraged my theoretical penchant, must also be
noted.
10. O.W.
Holmes, The Path of The Law, 10 Harv. L. Rev. 457
(1897). Holmes was, however, wrong. Law is not effective
because of fear of physical force. Social sanctions are much
stronger.
11. Karl
Llewellyn, Some Realism about Realism--Responding to
Dean Pound, 44 Harv.
L. Rev. 1222 (1931).
12. See, e.g., Robin
West, Symposium: Justice, Democracy, and Humanity: A
Celebration of the Work of Mark Tushnet: Reconstructing
the Rule of Law, 90 Geo. L.J. 215, 218 (2001) (stating that
law is the "mask of power").
13. See, e.g.,
Llewellyn, supra note 11.
14. Duncan
Kennedy, The Structure of Blackstone's Commentaries, 28
Buff. L. Rev.
205 (1979).
15. David Kennedy & William
Fisher, The Canon of American Legal Thought 656
(Princeton University Press 2006).
16. See Steven
G. Gey, Why is Religion Special?: Reconsidering the
Accommodation of Religion Under the Religion Clauses of the
First Amendment, 52 U. Pitt. L. Rev. 75, 129 (1990):
The ambiguity
and internal contradictions evident in the historical record do
not indicate that Justice Rehnquist's Jaffree dissent is
intellectually dishonest or intentionally misleading. The
indeterminacy of the historical record, however, does indicate
that Rehnquist's accommodationist interpretation of the
establishment clause must rest on something more than the
historical evidence alone; it is also based on the Chief
Justice's judgment about which historical materials should be
emphasized, which materials should be dismissed, and how
ambiguities should be interpreted and resolved. Chief Justice
Rehnquist's policy preferences lead him to make perfectly
reasonable observations about the substantial role of religion
in early American political society, but they also lead him to
assert the less reasonable proposition that James Madison was
not a strict separationist, and the even more untenable notion
that Thomas Jefferson's views on church and state have little if
any bearing on the meaning of the first amendment. At most,
Rehnquist's originalist arguments prove that history provides
support for two alternative traditions concerning the role of
religion in our political culture: one separationist and one
accommodationist. Although history helps to define the choices
between these alternative traditions, it cannot make this choice
for us.
17. A Hegelian would be
pleased: the formalist thesis and the realist antithesis must lead
to some synthesis. Note that a Marxist, strictly speaking, would
find this dialectical relation irrelevant: the
formalist/neo-formalist, realist/critical legalist debates concern
the superstructure of late capitalism--i.e., the relations
of production. The debate does not concern the base--i.e.,
the forces of production. As such, it is in Marxist terms
dialectically irrelevant. This debate is not a material fact but a
structural phenomenon, a reflection of the material facts.
18. Two preliminary
notes. First, the sections of the E.C. Treaty were renumbered.
Consequently, sometimes the Article will refer to "former" or "ex"
to indicate the earlier numeration. Otherwise, the citations refer
to current numbers. Second, there is no rule of stare decisis
in international law-- including E.U. law--case law is only
persuasive evidence: strictly speaking, cases only determine the
issues before the court between the actual parties. As a practical
matter, E.U. case law is important, but it is not "written in
stone." With these preliminary remarks, we can now look at the
substantive law.
19. E.C. Treaty, supra
note 1, arts. 28-29 read in their entirety: Article 28
Quantitative
restrictions on imports and all measures having equivalent
effect shall be prohibited between Member States. Article 29
Quantitative
restrictions on exports, and all measures having equivalent
effect, shall be prohibited between Member States.
20. E.C. Treaty, supra
note 1, arts. 28-29.
21. E.C. Treaty, supra
note 1, art. 30 reads in its entirety:
The
provisions of Articles 28 and 29 shall not preclude prohibitions
or restrictions on imports, exports or goods in transit
justified on grounds of public morality, public policy or public
security; the protection of health and life of humans, animals
or plants; the protection of national treasures possessing
artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or
restrictions shall not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between
Member States.
22. Case
C-120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung fuer
Branntwein, 1979
E.C.R. I-649:
[I]t is
clear from the foregoing that the requirements relating to the
minimum alcohol content of alcoholic beverages do not serve a
purpose which is in the general interest and such as to take
precedence over the requirements of the free movement of goods,
which constitutes one of the fundamental rules of the Community.
23. Ex-Art. 30 (now Art.
28) and ex-Art. 34 (now Art. 29) have an exception--ex-Art. 36
(now Art. 30). "Art. 30 (ex-Art. 36) is to be narrowly
interpreted." Andreas Ziegler, The Common
Market and the Environment: Striking a Balance 76
(Difo-Druck 1995) [hereinafter Ziegler, Common Market].
24. Case
C-104/74, Adriaan de Peijper, Managing Director of Centrafarm
BV, 1976
E.C.R. I-613:
National
rules or practices which do restrict imports of pharmaceutical
products or are capable of doing so are only compatible with the
Treaty to the extent to which they are necessary for the
effective protection of health and life of humans.
National
rules or practices do not fall within the exception specified in
Article 36 if the health and life of humans can be as
effectively protected by measures which do not restrict
intra-Community trade so much.
In
particular, Article 36 cannot be relied on to justify rules or
practices which, even though they are beneficial, contain
restrictions which are explained primarily by a concern to
lighten the administration's burden or reduce public
expenditure, unless, in the absence of the said rules or
practices, this burden or expenditure clearly would exceed the
limits of what can reasonably be required.
25. E.g., Case
C-302/86, Comm'n v. Kingdom of Denmark, 1988
E.C.R. I-4607 [hereinafter Danish Bottles].
26. E.g., Joined
Cases C-304/94, C-330/94, C-342/94, and C-224/95, Criminal
proceedings against Euro Tombesi, 1997
E.C.R. I-3561 [hereinafter Euro Tombesi].
27. E.g., Wickard
v. Fillburn, 317
U.S. 111 (1942).
28. Id.
29. This general
observation can be seen by comparing the rationales of Case
C-120/78, supra note 22, and Wickard, 317
U.S. 111.
30. See generally
Richard Posner, The
Economics of Justice (Harvard University Press
1981).
31. See id.
In The Economics of Justice, Posner argues that
inequalities in wealth are natural, good, and the inevitable
result of merit or lack thereof. Also, he posits that the common
law reflects market transactions. However, the economic results he
notes are not inevitable; they are the consequence of a certain
social organization of production. Moreover, I think that those
outcomes are often unfair.
32. Danish Bottles, supra
note 25.
33. Id. § 3.
34. Id. §§ 8-11.
35. Id. § 22.
36. Danish Bottles, supra
note 25; Ziegler, Common
Market, supra note 23, at 117.
37. Ziegler, Common Market,
supra note 23, at 114.
38. Danish Bottles, supra
note 25, § 6 ("If a Member State has a choice between various
measures for achieving the same aim, it should choose the means
which least restricts the free movement of goods.").
39. Id. § 10
("The Commission submits that the Danish rules are contrary to the
principle of proportionality in so far as the aim of the
protection of the environment may be achieved by means less
restrictive of intra-Community trade.").
40. Id. § 22.
41. Id. at § 8.
42. Id. at §§
20-21.
43. See, e.g.,
Blake D. Morant, The Teachings of Dr. Martin Luther
King, Jr. and Contract Theory: An Intriguing Comparison, 50
Ala. L. Rev. 63,
72 n.39 (1998).
44. Danish Bottles, supra
note 25, §§ 21-22.
45. Id. at § 21.
46. Id. at § 6.
47. Means-end testing is
a well known doctrinal element of U.S. constitutional law. E.g.,
M'Culloch v. Maryland, 17
U.S. 316, 421 (1819).
48. The words "realism"
or "realist" appear nowhere in Danish Bottles.
49. Danish Bottles, supra
note 25, §§ 8, 12, 13, and 21.
50.
Walter van Gerven, Bridging the Gap Between Community and
National Laws: Towards a Principle of Homogeneity in the Field
of Legal Remedies?, 32 Common Mkt. L. Rev. 679, 687-89 (1995).
51. E.C. Treaty, supra
note 1, art. 2 reads in its entirety:
The
Community shall have as its task, by establishing a common
market and an economic and monetary union and by implementing
common policies or activities referred to in Articles 3 and 4,
to promote throughout the Community a harmonious, balanced and
sustainable development of economic activities, a high level of
employment and of social protection, equality between men and
women, sustainable and non-inflationary growth, a high degree of
competitiveness and convergence of economic performance, a high
level of protection and improvement of the quality of the
environment, the raising of the standard of living and quality
of life, and economic and social cohesion and solidarity among
Member States.
52. Case C-2/90, Comm'n
v. Kingdom of Belgium, 1992
E.C.R. I-4431 [hereinafter Walloon Waste].
53. Andreas Ziegler, Trade and
Environmental Law in the European Community 33
(Oxford University Press 1997) [hereinafter Ziegler, Trade and
Environmetal Law].
54. Walter Frenz, EuropaEisches
Umweltrecht 222 (Verlag Beck 1997); Christian Zacker, Abfall Im
Gemeinschaftlichen Umweltrecht 170 (Duncker and Humboldt
1997).
55. Ziegler, Trade and
Environmental Law, supra note 53, at 33-35.
56. Zacker, supra
note 54, at 172 (citing Case C-155/91 Comm'n of the European
Communities v. Council of European Communities, 1993 E.C.R.
I-939).
57. Walloon Waste, supra
note 52, § 23.
58. Id. at § 21.
59. Wickard, 317
U.S. at 127-29.
60. Zieoler, Trade and
Environmental Law, supra note 53, at 35.
61. More accurately,
wastes are not goods but their disposal is a service. Thus, rather
than being subject to the provisions on free movement of goods
they should be considered a subject of free movement of services.
Zacker, supra
note 54, at 184.
62. "Einige Autoren sind
der Meinung, dass Abfaennen."
Zacker, supra
note 54, at 176.
63. Right of
establishment, E.C. Treaty, supra note 1, arts. 43-48;
Free movement of services, E.C. Treaty, supra note 1,
arts. 3(1)(c), 14(2), and 49-55.
64. Wickard, 317
U.S. 111.
65. The definition of
waste is ambiguous. Alke Schmidt, Transboundary movements of
waste under EC law: The Emerging Regulatory Framework, 4 J.
Env't L. 57, 59
(1992) (U.K.).
66. See the new codified
waste Framework Directive (Directive 2006/12/EC, 2006
O.J. (L 114) 9 (EU)).
67. Danish Bottles, supra
note 25.
68. Euro Tombesi, supra
note 26.
69. Id.
70. Notably, Council
Directive 84/631/EEC, 1984
O.J. (L 326) 31 (EC).
71. Ziegler, Common Market,
supra note 23; Walloon Waste, supra note 52.
72. Ziegler, Common Market,
supra note 23, at 44-45.
73. See Danish
Bottles, supra note 25.
74. Case
C-172/82, Syndicat National des Fabricants Raffineurs d'Huile de
Graissage v. Groupement d'Interet Economique Inter-Huiles,
1983 E.C.R. I-555, 567-68.
75. Case
C-240/83, Procureur de la Republique v. Association de Defense
des Bruleurs d'Huiles Usagees, 1985
E.C.R. I-531.
76. Id.
77. Id.
78. Danish Bottles, supra
note 25; Ziegler, Common
Market, supra note 23, at 117.
79. "The Directive must
be seen in the perspective of environmental protection, which is
one of the Community's essential objectives." Case
C-240/83, supra note 75, § 13. See also Craig/BurcA, EC Law
642-43 (Clarendon Press 1995).
80. See, e.g.,
Joined Cases T-366/03 & T-253/04, Land Oberoesterreich and
Republic of Austria v. Commission, 2005
E.C.R. I-4005.
81. E.C. Treaty, supra
note 1, art. 5 reads in its entirety:
Article 5
The
Community shall act within the limits of the powers conferred
upon it by this Treaty and of the objectives assigned to it
therein.
In areas
which do not fall within its exclusive competence, the Community
shall take action, in accordance with the principle of
subsidiarity, only if and in so far as the objectives of the
proposed action cannot be sufficiently achieved by the Member
States and can therefore, by reason of the scale or effects of
the proposed action, be better achieved by the Community.
Any action
by the Community shall not go beyond what is necessary to
achieve the objectives of this Treaty.
82. Danish Bottles, supra
note 25; Ziegler, Common
Market, supra note 23, at 117.
83. Craig/BurcA, supra
note 79, 642-43.
84. Aristotle, Nicomachen Ethics(*) Book 5
(Roger Crisp trans., Cambridge University Press 2000).
85. Case
C-47/88, Comm'n v. Denmark, 1990
E.C.R. I-4509.
86. Case
C-379/92, Criminal Proceedings against Matteo Peralta, 1994
E.C.R. I-3453.
87. Id.
88. Id. at § 6.
89. Id. at §§
2-3.
90. Id. at § 24.
91. Id.
92. Wickard, 317
U.S. at 124.
93. See Ziegler, Trade and
Environmental Law, supra note 53, at 35.
94. Euro Tombesi, supra
note 26.
95. Id. at §§
44-49.
96. E.C. Treaty, supra
note 1, art. 12 ("Within the scope of application of this Treaty,
and without prejudice to any special provisions contained therein,
any discrimination on grounds of nationality shall be
prohibited.").
97. Ziegler, Common Market,
supra note 23.
98. Walter Frenz,
Umweltschutz durch Zolle ist denkbar ("Environmental protection
through tolls is conceivable") Europaeisches Umweltrecht 222 (Verlag
Beck 1997).
99. Paul Farmer & Richard
Lyal, EC Tax Law 4 (F.G. Jacobs ed., Oxford
University Press 1994).
100. Case C-47/88, supra
note 85, § 25.
101. Id. at §
31.
102. Ludwig Kramer &
Pascale Kromak, Droit Communautaire de L'environnement,
2-3 Revue Juridique de
l'Environnement 221-23 (1994) (Fr.).
103. E.g.,
Walloon Waste, supra note 52, § 29.