Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice

Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice FRANCIS G. JACOBS SUMMARY I. INTRODUCTION... 547 II. III. JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS: THE EUROPEAN UNION... 548 JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS: THE EXTERNAL DIMENSION... 550 A. European Courts... 550 B. International Courts and Tribunals... 553 C. National Courts... 554 IV. COMPETITION AND ANTITRUST LAW... 555 V. CONCLUSION... 556 I. INTRODUCTION In view of the discussion, at this conference, of comparisons between the European Union and the United States, I should like to emphasize that there are great similarities, but also profound differences, between the two systems. These similarities, and some of the differences, will be illustrated by examples that I shall give, but it is useful to emphasize certain points at the outset. In the first place, the European Union (EU) is not a federal system, and the European Court of Justice (ECJ) is not a federal supreme court. However, the EU resembles a federal system in that it is based on a division of powers between the Union and the Member States. In instituting that division of powers, and in endowing the European Communities (later the EU) with certain legislative, executive, and judicial institutions, the founding treaties 1 bear some resemblance to an incipient federal constitution. However, they could also be regarded (perhaps more accurately) as an organization of states in which certain limited powers, mainly in the economic field, were conferred on common institutions in the expectation of increasing integration (hence the reference, in the preamble to the European Economic Community Treaty, to an ever closer union ). Advocate General, Court of Justice of the European Communities. This is a revised version of a presentation at a conference on Judicial Dialogue and the Cross-Fertilization of Legal Systems, held at the University of Texas School of Law in September 2002. 1. Treaty Establishing the European Coal and Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140 (as amended); Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 (as amended); Treaty Establishing the European Atomic Energy Community, Mar. 25, 1957, 298 U.N.T.S. 167 (as amended). 547

548 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:547 Second, the founding treaties contained few explicit constitutional principles. The main principles were developed by the ECJ itself: most importantly, the principles of primacy of Community law and the principle of direct effect as well as some fundamental general principles of law. The principle of primacy may suggest an analogy with a federal system but has an obvious independent justification in the EU: it would simply make no sense to have an EU in which the laws of the Member States could prevail over the laws of the Union. But this is one area where, as I shall suggest, judicial dialogue has been particularly important in delineating the principle and in securing its recognition. Third, judicial dialogue is a vital feature of the ECJ because of the unusual character of its jurisdiction. In contrast to the U.S. Supreme Court, and perhaps to supreme courts generally, the ECJ is not essentially an appellate court. It has had, since 1989, when the Court of First Instance was set up, jurisdiction to hear appeals from that Court. But that is not its main function, or its main caseload. It has two main heads of jurisdiction. First, there is an original jurisdiction to hear cases between Member States and Union Institutions (primarily the European Parliament, the Council of the Union, and the European Commission); in that respect, its cases are sometimes of an explicitly constitutional character, for example, on the division of powers between the Union and its Member States. Second, it has jurisdiction to rule on many, although not all, questions of Union law referred to it by the national courts i.e., the courts of the Member States, where a national court considers, in a case it is hearing, that a decision on the question is necessary to enable it to give judgment. Under this procedure by which any court or tribunal of a Member State may, and a final court must, refer such a question to the ECJ for a preliminary ruling before it gives judgment there is a sharing of jurisdiction between the national court and the ECJ which entails a special form of judicial dialogue. Moreover, such preliminary rulings, given by the ECJ on references by national courts, have not only been quantitatively the most significant part of the ECJ s caseload; they have also been the means by which the ECJ has fashioned with the help of this judicial dialogue many of the most important principles of the EU s constitutional and legal system. It may, therefore, be appropriate to look briefly at judicial dialogue and the cross-fertilization of legal systems within the EU, before turning to the external dimension. II. JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS: THE EUROPEAN UNION Although the Treaties provide a broad legal framework, and the Union legislature has enacted a vast body of generally very detailed legislation (at the end of 2002, apparently some 97,000 pages of the Official Journal). The EU hopes to reduce this volume substantially by a process of consolidation and simplification. Union law can nonetheless be described as essentially a case law system. In developing that system (very largely by preliminary rulings as described above), the ECJ has relied extensively on dialogue with the national courts. The nature of the procedure contributes to that dialogue in various ways. First, jurisdiction is shared between national courts and the ECJ. The national court, for example, is exclusively responsible for factfinding, deciding questions of national law, deciding whether it is appropriate to make a reference, and applying the ruling of the ECJ although it is bound by the ruling. Second, the reference is drawn up by the national court itself. The national court can therefore explain the difficulties that it may have and may also suggest possible solutions.

2003] JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS 549 A good illustration is provided by early references from German courts, which were concerned that European legislation might infringe fundamental rights entrenched in the German Basic Law. The European Treaties contained no corresponding provisions for the protection of fundamental rights. There could, therefore, have been a serious conflict between European law and national law. However, after some hesitation, the ECJ was encouraged by those references more than thirty years ago to develop the idea (for which no Treaty basis was, or could be, given) that fundamental human rights were enshrined in the general principles of Community law and protected by the Court. 2 Respect for fundamental rights is, however, only one example of the general principles of law, which the Court has recognized very often on the basis of ideas advanced in references from national courts. Fundamental principles of great importance and broad scope, such as the principle of proportionality, the principle of legal certainty, and principles related to the U.S. notion of the due process of law, have in this way been incorporated in European law under the influence of national legal systems. 3 The procedure has also facilitated this incorporation in that on every reference to the ECJ, both the parties to the national court proceedings and the governments of the Member States and the Union Institutions are entitled to present written observations and to take part in the hearing. Moreover, the Court itself is comprised of judges and advocates general from different Member States and with experience of diverse legal systems. The Court also has a research department that can, for example, provide a survey on the national laws of the Member States. Rulings given by the ECJ are applied not only by the court that made the reference, but also by all courts in the EU before which the same question arises. That of course is the rationale of the system, which is to enable the law to be applied uniformly throughout the Union. But such rulings may also influence the laws of the Member States outside the field of EU law. Many examples of this influence could be given. Let me mention just two examples, taken somewhat randomly, of the influence of EU law, by way of preliminary rulings, on English law. 4 First, there is the influence of the principle of proportionality, mentioned above, as a controlling principle guiding judicial review of administrative action. It is widely recognized that this principle provides more rational, more fully articulated, and in some respects more demanding, criteria of judicial review than the approach traditionally applied in English law, which is known as the Wednesbury 5 test of unreasonableness. In recent years, as the English courts have become familiar with the principle of proportionality through the impact of EU law and of the case law of the European Court of Human Rights (ECHR), they have shown themselves more receptive to applying that principle more widely. It would indeed be unsatisfactory to have different tests applied in different areas of judicial review, depending upon the area of law concerned. (By way of diversion, it may be added that the case law of the ECJ on the principle of proportionality has also had some influence on courts outside the EU, for example, on the High Court of Australia. 6 ) 2. Case 29/69, Stauder v. Ulm, 1969 E.C.R. 419, 419. 3. See generally TAKIS TRIDIMAS, THE GENERAL PRINCIPLES OF EC LAW (1999). 4. See Francis G. Jacobs, Public Law The Impact of Europe, PUB. L., Summer 1999, at 1232. 5. Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (Eng. C.A.). 6. This line of cases is regarded as having started with the judgment of Justice Deane in the Franklin Dam case. See Commonwealth v. Tasmania (1983) 158 C.L.R. 1 (Austl.).

550 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:547 A second example is the demise of the rule of English law that injunctions could not be granted against the Crown a relic of an earlier general immunity from suit of the Crown. On a reference from the House of Lords, in the Factortame litigation, the ECJ held, in effect, that such a rule could not be applied where rights granted by EU law were invoked. 7 The injunction sought was duly granted in those proceedings, and shortly afterwards, in M. v. Home Office, the House of Lords held that an injunction could be granted against the Crown in proceedings on which EU law had no bearing. Examples such as these show how the dialogue between the ECJ and the national courts can bring about a measure of convergence in their legal systems. Finally, it is worth mentioning in this context that the success of the system of references for preliminary rulings has led to calls for it to be extended to other regional and international courts and tribunals. First, the system has, in fact, been followed in several other courts established in other continents as part of systems of economic integration, as I shall mention later. That is perhaps in recognition of the contribution which, in the EU, the system has made to the process of integration itself so much so that some writers have referred to political integration by jurisprudence. It is probably true to say that, over the first thirty years of the EEC, the case law of the ECJ made a more significant contribution to European integration than any other development over that period. Second, there have been calls for the system to be borrowed more widely. In the International Court of Justice (ICJ), both the past president (from the United States, Mr. Schwebel) and the current president (from France, Mr. Guillaume) have called for that Court to be given jurisdiction to rule on references from other international courts. 8 In the ECHR, there have been suggestions that that Court should be given jurisdiction to rule on the interpretation of the European Convention on Human Rights on references from the courts of the Contracting States and from the ECJ. 9 Such proposals have not been universally approved, but they perhaps confirm the great value of the system as it has operated within the EU. III. JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS: THE EXTERNAL DIMENSION Let me turn now to the external dimension: judicial dialogue and the interaction of legal systems between the EU and the outside world. We might consider, first, European courts, in particular the ECHR and the European Free Trade Association (EFTA) Court; second, international courts and tribunals, in particular the ICJ and the WTO Appellate Body; and third, national courts, notably the U.S. Supreme Court. A. European Courts As regards the ECHR, the starting point must be that although all the EU Member States are parties to the European Convention on Human Rights and have accepted the 7. Case C-213/89, The Queen v. Secretary of State for Transport, Ex parte Factortame Ltd., 1990 E.C.R. I- 2433, [1990] 3 C.M.L.R. 1 (1990). Case 221/89, The Queen v. Secretary of State for Transport, Ex parte Factortame Ltd., 1991 E.C.R. I-3905. Joined Cases C-178 & 48/93, Brasserie du Pêcheur v. Federal Republic of Germany and The Queen v. Secretary of State for Transport, Ex parte Factortame and others, 1996 E.C.R. I-1029, [1996] 1 C.M.L.R. 889 (1996). 8. See Rosalyn Higgins, The ICJ, the ECJ, and the Integrity of International Law, INT L & COMP. L.Q. 1, 17 20 (2003). 9. One of the first to suggest the introduction of this jurisdiction was Advocate General Warner in a case before the ECJ. See Opinion of Advocate General Warner, Case 130/75, Prais v. Council, 1976 E.C.R. 1589.

2003] JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS 551 jurisdiction of that Court, the EU itself is not yet a party (though the ECJ has frequently referred to the Convention). Moreover, the Treaty on European Union, which entered into force on November 1, 1993, consolidated the ECJ s case law by incorporating it by reference. The result is that, although the Convention is not formally binding on the Union, its provisions are given effect as general principles of EU law. Although the ECJ for many years has cited the case law of the ECHR and seeks to follow it, the risk of divergent interpretations is inherent in the existence of two independent judicial systems. For example, in a case concerning the powers of European Commission officials to enter premises to obtain evidence of infringement of the competition rules, the ECJ held that the inviolability of the home could not be invoked to resist the exercise of those powers in regard to the business premises of undertakings. The ECHR, on the other hand, held that Article 8 of the Convention was wide enough to encompass both the home when used for business purposes and professional premises. However, the ECJ went on to rule that an intervention in a person s private activities must in any event have a legal basis, be justified on grounds laid down by law, and not be arbitrary or disproportionate in its application. 10 In general it may be said that there have been very few divergences between the two Courts in their approach to fundamental rights. Once again, it is a two-way process. As Judge Costa noted in this conference, the ECHR follows closely the decisions of the ECJ on questions of EU law. It has occasionally used the case law of the ECJ more widely to interpret the Convention, for example the case law on the notion of employment in the public service. I should mention also that the ECHR has sometimes followed the case law of the ECJ even outside the field of EU law. A particularly interesting example relates to the temporal effect of judgments. Courts in Europe have generally not followed the doctrine occasionally adopted in the United States of prospective overruling, whereby a judgment applies only for the future and not to the instant case. However, very exceptionally, courts in Europe have limited the temporal effects of their judgments in a different way so that they apply only to those who have already launched proceedings by the date of the judgment. This was done by the ECJ in the second Defrenne case. 11 In that judgment, delivered in 1976, the Court rejected the widely held view that the principle of equal pay for men and women set out in Article 119 of the Treaty required implementing measures before it could be given legal effect. Instead, the Court held that the Treaty provision had direct effect (in other words, was self-executing) so that victims of discrimination could claim damages by way of back pay on the basis of Article 119 alone. However, responding to arguments, in particular from governments of Member States, concerning claims for back pay dating to 1962 (when Article 119 became effective for the six founding Member States) or 1973 (for the three Member States which acceded then Denmark, Ireland, and the United Kingdom), the Court held that while plaintiffs who had already filed claims could recover, its ruling would not otherwise have retroactive effect. The Court, in imposing the limitation, relied upon important considerations of legal certainty affecting all the interests involved, both public and private, [which] make it impossible in principle to reopen the question as regards the past. 12 10. See generally CLARE OVEY & ROBIN C.A. WHITE, JACOBS AND WHITE: THE EUROPEAN CONVENTION ON HUMAN RIGHTS (3rd ed. 2002). 11. Case 43/75, Defrenne v. Sabena, 1976 E.C.R. 455. 12. Id. at 481.

552 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:547 In imposing that limitation, the Court was widely seen as innovating and certainly did not cite any basis for the new doctrine. It seems to have been unknown in most European systems, but the doctrine was recognized in Austria, which joined the EU nearly twenty years later. There it is said to have been introduced by the great Austrian jurist Hans Kelsen. What is of interest for our subject is that the doctrine was borrowed from Luxembourg by Strasbourg: from the ECJ by the ECHR. The Marckx 13 case before the latter Court concerned provisions of Belgian law which disadvantaged an unmarried mother in relation to the manner of establishing affiliation, the extent of the child s family relationships, and the property rights of the child and the mother. The Court considered that a distinction could no longer properly be drawn between the legitimate and the illegitimate family for the purposes of the protection of the right to respect for family life under Article 8 of the Convention. 14 The Court relied in part on the evolution of public opinion in this regard. Recognizing, however, that its judgment was an evolutionary interpretation of the Convention, it held that, in the interest of legal certainty, the effects of its judgment must be limited to events post-dating the judgment. On that point, itself without precedent in the case law on the Convention, it cited the Defrenne judgment of the ECJ. Although there are many examples of convergence in the approaches of these two European courts, there are also differences. Those differences, however, can often be explained by the different character of the legal context in question. A good example is provided by the concept of discrimination. Broadly speaking, under the Convention, the ECHR will accept a difference of treatment if it has an objective aim, derived from the public interest, and if the difference of treatment does not exceed what is reasonable in relation to achieving that aim. Under EU law, the ECJ often applies a far stricter standard, at least in relation to discrimination based on nationality (possibly the most fundamental principle of EU law) or on sex. That difference of approach, however, itself has an objective justification. It certainly does not represent any conflict between the two Courts. To turn finally to judicial dialogue between the two Courts, mention should be made of the regular meetings which take place between them, enabling them to discuss general questions of common interest. I turn next to the EFTA Court. Its functions and jurisdiction, and also its relationship with the ECJ, have already been discussed in this conference by Judge Baudenbacher. Once again, relations between the two Courts are close facilitated in this instance by both being located in Luxembourg. Generally, the two Courts will interpret the same provisions in the same way. The EFTA Court has regularly cited decisions of the ECJ, and more recently the ECJ has cited the case law of the EFTA Court. In exceptional cases, however, a different interpretation may be appropriate. A good illustration was the question of the international exhaustion of trademark rights. The question came first before the EFTA Court, which held that the Member States over which it has jurisdiction were free to form their own view, but pointed out that a different position might be taken within the EU itself. When the same question came before the ECJ in the Silhouette case, 15 the ECJ did indeed adopt a different position and recognized that a uniform solution was necessary within the EU. Moreover, if there was to be a uniform solution, it could only be that EU Member States were precluded from applying a doctrine 13. Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A) (1979). 14. Id. at 14 15. 15. Case C-355/96, Silhouette Int l Schmied GmbH v. Hartlauer Handelsgesellschaft, 1998 E.C.R. I-4799, [1998] 2 C.M.L.R. 953 (1998).

2003] JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS 553 of international exhaustion. 16 (As Advocate General, I had reached as I recognized, somewhat reluctantly the same conclusion.) So here, exceptionally, the ECJ and the EFTA Court reached different results. But again there was an objective justification for the different stance. Divergent solutions among the Member States of the EU could not be reconciled with the single market. The looser structure of the European Economic Area, in contrast, made a less stringent and in some ways more competitive solution possible in that different context. B. International Courts and Tribunals First, I will deal with the International Court of Justice. Its judgments have been cited only rarely by the ECJ, but the ECJ does not generally deal with the kinds of issues that have come before the International Court of Justice. Two examples of interest are the Poulsen and Diva Navigation Corporation 17 case on the status of the 1958 and 1982 Law of the Sea Conventions and the Racke case 18 on the question of the conditions imposed by international law on the termination of a treaty. 19 Next is the Appellate Body of the WTO. Not only is its field of activity rather close to that of the ECJ, but also the ECJ is from time to time called upon to interpret the WTO Agreement and associated instruments. Although the Agreement does not have direct effect in EU law, it may be necessary to interpret it and to try to ensure that EU law is consistent with it. For that purpose it may be useful, or indeed necessary, to refer to decisions of the WTO Appellate Body. So far, I think there has been only one such reference (an opinion of mine in a case on the common customs tariff), but it seems likely that there will be many such references in the future. We shall be monitoring the way in which WTO law is developed by its own organs, and indeed the way in which it is applied by the EU s major trading partners, notably the United States. Finally, I should mention certain other international tribunals, which have been established as part of a process of regional economic integration by multilateral treaty, notably in Africa and in Central and South America. Some of these treaties have taken the ECJ as a model for the tribunals that they establish and have conferred on them a similar range of jurisdiction, including references from national courts on the interpretation of the constituent treaty and of associated instruments. Some of these tribunals are of recent origin and have not yet handled many cases, so it is too early to look at possible cross-fertilization of legal systems. There has, however, been much judicial dialogue, as there have been regular and interesting visits of delegations from many of these tribunals to the ECJ. On a personal note, which illustrates the interaction with our own Court, I might mention that I was asked to advise one of these organizations, the Southern African Development Community, on the setting up of its Tribunal and the drafting of the Tribunal s Statute. I was also consulted on a project that did not see the light of day. I was asked to advise, in the last days of the Soviet Union, on a project, initiated by Mr. Gorbachev, that would have set up in place of the Soviet Union a community comprising its Republics and the Baltic States of Estonia, Latvia, and Lithuania. The Community would be modeled on the then-european Community and based on a 16. Id. paras. 25 27. 17. Case C-289/90, Anklagemyndigheden v. Peter Michael Poulsen & Diva Navigation Corp., 1992 E.C.R. I- 6019. 18. Case C-162/96, A. Racke GmbH v. Hauptzollamt Mainz, 1998 E.C.R. I-3655. 19. See Higgins, supra note 8, at 6 9.

554 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:547 system of law, with a Court of Justice modeled on the ECJ. After an initial meeting in the Kremlin of all the States concerned, subsequent developments were rapidly overtaken by events: The Soviet Union collapsed, Mr. Gorbachev resigned, and the ambitious proposal was taken no further. C. National Courts Let me turn last to connections between the ECJ and the national courts of third countries. Here I think there have been, overall, relatively few borrowings between different systems. The reasons are perhaps clear. Not only are the basic texts different for example, the Commerce Clause in the U.S. Constitution and the fundamental economic freedoms in the EU Treaty. Perhaps more significantly, the political, economic, and social contexts are also different. It is not possible to explore here the ramifications of this vast subject. Courts throughout the world, and certainly English courts, are increasingly turning to the experience of other jurisdictions, and this trend, although criticized by some, seems likely to continue. Courts are beginning to explain the circumstances in which such references to foreign jurisdictions are appropriate. An area of particular interest is that of human rights. 20 It may be thought that that area is particularly appropriate in that human rights may be supposed to be universal. However, it is clear that, even within the European family, the scope of protection varies between states, as is constantly illustrated by the case law of the ECHR which has the task of forging a common minimum standard. As between Europe and the United States, there are more fundamental differences, due in part to the fact that constitutional rights in the United States (the term itself is significant) are more closely tied to the specific context of the U.S. Constitution. These divergences are also perhaps more fundamentally explained by differences in the value systems of our societies as most dramatically illustrated by attitudes to the death penalty as well as in the different ambit given, for example, to freedom of expression. Another area of great potential interest is that of anti-discrimination legislation. To what extent, for example, should the U.S. approach to affirmative action (partly developed in the context of racial discrimination) be regarded as relevant in Europe to the prohibition of discrimination on grounds of sex, which has developed as a fundamental principle of EU law? There is one area, however, where the United States has unquestionably seemed influential, and where EU law has borrowed significantly from U.S. law namely competition or antitrust law, and I will therefore deal with it briefly. It will be covered in this conference in more depth by Dr. Ehlermann. In a broader perspective, however, there are some interesting points of contact between the EU and U.S. systems. In recent years there has happily been considerable judicial dialogue, especially between the ECJ and the U.S. Supreme Court. This started with an official visit to the ECJ by four justices of the U.S. Supreme Court in 1998, accompanied by other visitors including the Chief Justice of the Supreme Court of Texas. A return visit was paid by the ECJ in 2001, and a further visit from the U.S. Supreme Court is expected in 2003. 20. See Christopher McCrudden, A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights, 20 OXFORD J. LEGAL STUD. 499 (2000).

2003] JUDICIAL DIALOGUE AND THE CROSS-FERTILIZATION OF LEGAL SYSTEMS 555 IV. COMPETITION AND ANTITRUST LAW The area of competition or antitrust law is particularly interesting for the subject of this conference. Two aspects can be distinguished: an external dimension and an internal dimension. First, there is the influence of U.S. antitrust law on EU competition law. Second more recent in origin the influence of EU competition law on the national competition law regimes of the EU Member States. As regards U.S. antitrust law, some caution is necessary in drawing parallels. In the EEC Treaty the competition rules were originally perceived as having the function of removing barriers to national markets within Europe, complementing the requirement for governments to dismantle barriers in the form of tariffs, quotas, and non-tariff barriers to trade. That led the European competition authorities to take a different approach from their U.S. counterparts to, for example, vertical restraints. However, as the internal market is progressively achieved in Europe, the approach to competition policy seems more likely to converge on both sides of the Atlantic: Signs of convergence, or at least the desire for convergence, can increasingly be seen in terms of, for example, merger control and control of monopolies. Three examples illustrate the scope and limits of the influence of U.S. antitrust law. First, specific doctrines may be taken from U.S. law and applied in EU law. A good example is the essential facilities doctrine, which had been developed in the United States and also invoked in EU law in a variety of situations. The scope of the doctrine was unclear in the EU as indeed it had been in the United States 21 but its scope was clarified by the ECJ in the Oscar Bronner case. 22 The debt here to U.S. law is clear. Elsewhere, U.S. law may be invoked but not followed directly. A well-known example is extraterritorial jurisdiction: Some U.S. decisions base jurisdiction over conduct outside the United States on an effects doctrine, under which jurisdiction could be exercised when the conduct produced effects within the United States. Those decisions were invoked before the ECJ, but they were not followed directly. Perhaps recognizing the force of international law objections to extraterritorial jurisdiction, the ECJ has never explicitly based jurisdiction on the effects doctrine. In practical terms, however, the result may sometimes not be dissimilar. Both the above examples illustrate the possibilities and limits of judicial development of the law. But in order to understand the rules, it is necessary to understand the context in which the rules are developed, and here there are profound differences between the U.S. and EU systems. As is well known, U.S. law has relied far more heavily on private enforcement to secure compliance than EU law; although the emphasis on private enforcement is now rapidly growing in Europe, it still falls far short of the United States in this respect. A separate area of interest is the impact of EU competition law on the national competition law regimes of the EU Member States. This impact has grown in recent years, as several Member States have adopted new statutory frameworks directly modeled on the competition rules of the EC Treaty (Articles 81 and 82, formerly 85 and 86). A good illustration is the United Kingdom s Competition Act 1998, which swept away a mass of what was widely regarded as ineffective legislation and introduced in its place clear and 21. See, e.g., Phillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 ANTITRUST L.J. 841 (1989). 22. Case C-7/97, Oscar Bronner GmbH v. Mediaprint Zeitungs-und Zeitschriftenverlag GmbH, 1998 E.C.R. I-7791.

556 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 38:547 specific prohibitions based on the Treaty. For example, Article 82, prohibiting abuse of a dominant position, is reproduced in Section 18 of the Act, simply replacing a dominant position within the common market by a dominant position in a market, and the requirement that the abuse may affect trade between Member States by a requirement that the abuse may affect trade within the United Kingdom. Moreover, the Act expressly provides, in Section 60, that in applying those provisions the principles of Community law are, as far as possible, to be followed. The section expressly refers, in that connection, to the principles laid down by the Treaty and the European Court, and any relevant decision of that Court. The Act also established a new commission (the Competition Commission), whose powers partly reflect the powers in the competition field of the European Commission, and a specialized competition court (the Competition Commission Appeal Tribunal). That court s first president, Sir Christopher Bellamy, is a leading expert in EU competition law and was previously a judge at the Court of First Instance of the European Communities. The Tribunal itself in its organization, rules, and practice is closely modeled on the Court of First Instance and differs from the traditional practice and procedure of English courts and tribunals. Naturally enough, the Tribunal follows closely the European case law. 23 But the same is true now of the ordinary courts in England. 24 In some respects, however, the UK law now goes further than European law, in the direction of U.S. law; for example, in certain cases the new Enterprise Act provides for criminal penalties for infringement of the competition rules. V. CONCLUSION What conclusions can be drawn from this overview? It is clear, I think, that within the EU there has been a remarkable degree of judicial dialogue and cross-fertilization, all the more significant in view of the great differences in the legal systems of the Member States and in their historical foundations. The ECJ has also shown itself receptive to the case law of international courts and tribunals, notably the ECHR. To date, there has been relatively little impact of international courts and tribunals such as the International Court of Justice and the WTO Appellate Body, but that impact may increase in the future. As for national systems outside the EU, and especially the United States (since comparisons are increasingly made between the United States and the EU), my impression is that, with the exception of specific fields, such as antitrust, parallels should not be expected to be common. That does not deprive this aspect of the subject of its interest. On the contrary, it is precisely the differences in outcomes between the two systems which throw the most light on the nature of each system. Perhaps the most interesting question to explore is why the outcomes are different. In that perspective, differences may even be more significant than similarities. What seems certain is that the subject of judicial dialogue, and of cross-fertilization of legal systems, is a matter of the greatest interest and value, on which much remains to be explored. 23. See, e.g., Case No. 1006/2/1/01, Bettercare Group Ltd. v. Dir. Gen. of Fair Trading, Competition Comm n Appeal Tribunal Final Judgment, Aug. 1, 2002, available at http://www.catribunal.org.uk/documents/ jdgbcg010802.pdf (last visited Apr. 4, 2003). 24. See, e.g., Joined Cases HC 01 C 04135 & 04136, Intel Corp. v. Via Technologies, Inc., Final Judgment, June 14, 2002, [2002] E.W.H.C. 1159 (Ch), available at http://www.indek.kth.se/grundutbildning/grundkurser/ 2B1460/case11.pdf (last visited Apr. 6, 2003).