Abstract
Of all ideas that scholars of institutional matters cherish most, none has spawned more interest than judges’ impartiality. The demonstration that the judges’ behavior cannot be fully insulated from political influence is a household item for several books and articles. Yet, conventional analysis gives almost exclusive attention to custodianship per se. Also, one of us has already provided theoretical analyses on the guardian’s guardian problem (Eusepi 2006). However, works on how a guardian behaves in a supranational setting without a Constitution are rather scant. In the enlarged EU, sorting out the link between the member states’ courts and the European Court of Justice (henceforth ECJ) is becoming challenging. A study of the judges’ behavior in that sorting is critical for understanding what is unfolding within the EU legal system.
Preliminary versions of this chapter were presented at the Eighth Corsica Law and Economics Workshop in Reims, France, April 13–14, 2007 and at the Public Choice meeting in Monterey, USA, March 11–14, 2010. We wish to thank the participants in the workshop for their suggestions and comments. Sincere thanks are also due to Dennis C. Mueller and Richard E. Wagner, who served as discussants at the Public Choice meeting, for their constructive comments. Finally, we appreciate the insightful suggestions we have received from Philip Jones.
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Notes
- 1.
The approval of the Lisbon Treaty that has just come into force does not change things much.
- 2.
Judgment of 15 July 1964, case 6/64 (1964) e. c. r. p. 594.
- 3.
It is worth evaluating the role played by the ECJ in the light of the so-called principle of subsidiarity as stated by Paragraph 2 of Article 3b of the EC Treaty. De Burca (1998) questions whether the ECJ should be influenced, in exercising its power, by some of the subsidiarity requirements which constrain the other institutions. On the one hand, it is argued that the Amsterdam protocol on subsidiarity requires that each European Institution has to operate in full observance of the principle of subsidiarity. On the other hand, the protocol itself seems to release the ECJ from the application of subsidiarity as far as the role of interpreting the community law is concerned.
- 4.
The provisions of the Rome Treaty on free movement and competition, far from being an end in themselves, are only a means for obtaining those objectives.
- 5.
“From former Prime Minister John Major to former Austrian Chancellor Wolfgang Schüssel there has been no shortage of political critics of the ECJ throughout its years of judicial activism. Schüssel in particular has suggested that in recent years the ECJ has acted beyond the scope of the treaties,” Walsh (2007), p. 1160.
- 6.
“Lawyers working for National revenue authorities have complained that the ECJ cannot pursue the implementation of abstract principles by drilling holes in the tax systems in a random fashion.” Radaelli and Kraemer (2006a), p. 4.
- 7.
Case C-446/03 The ECJ found that the UK’s law that did not allow a UK parent to set off the losses of its foreign EU subsidiaries against the UK parent’s profits infringed the freedom of establishment.
- 8.
- 9.
A general view hinges on the idea that harmonization or coordination can work only if it is possible “to form a coalition that is large enough to benefit from cooperation even if everybody else defects, but small enough to keep interest heterogeneity within manageable limits (Genschel and Plümper 1996; Keohane 1990).” At the European level it is hardly possible to recreate this status “the number of cooperators grows in a hypothetical instance of tax coordination, the incentive for outsiders to join will decrease” Genschel and Plümper (1997).
- 10.
- 11.
Article 28 (Import and Transit).Quantitative restrictions on imports and measures having equivalent effect are to be prohibited between Member States.
- 12.
Article 30 (ex Article 36). The provision[s] of Article[s] 28 … shall not preclude prohibitions or restrictions on imports, … justified on grounds of … 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.
- 13.
“The trade mark shall not entitle the proprietor to prohibit its use in relation to goods which have been put on the market in the Community under that trade mark by the proprietor or with his consent.”
- 14.
“For trademarks the initial case was Consten and Grundig v Commission (C-56/64), for patents it was Merck v Stephar (C-187/80) and for copyrights it was Deutsche Grammophon v Metro (C-78/70),” Maskus (2000), p. 1274 and for impeding parallel imports from outside EEA Silhouette International Schmied GmbH & CoKG v. Hartlauer Handelsgesgesellschaft GmbH(Case C – 355/96).
- 15.
Other forms of exhaustion regime are: national regime (USA) – where rights end upon first sale within a country but parallel imports from other countries may be excluded – and international regime (Japan) – where rights are exhausted upon first sale anywhere and parallel imports cannot be excluded.
- 16.
In the words of Advocate General Jacobs, “Article 7(1) of the Directive precludes Member States from adopting the principle of international exhaustion” (Opinion of Advocate General Jacobs, 29/01/98, Case C-355/96, paragraph 62). The ECJ says in the Silhouette case: “national rules providing for exhaustion of trade-mark rights in respect of products put on the market outside the EEA under that mark by the proprietor or with its consent are contrary to Article 7(1) of the (Trade Mark Directive).”
- 17.
“The EU comprises the most significant block of countries in the world where an established system of regional exhaustion applies. Because a number of its 27 member states are also among the wealthiest in the world, and have relatively high price structures for consumer and healthcare goods, the EU is a particularly attractive target for parallel importers.” (International Trademark Association 2007, p. 5).
“With unilateral exhaustion the main source of parallel imports would tend to be from the countries of South East Asia and from the USA,….the scope of parallel exports is generally likely to be small whatever regimes are in place in other countries; parallel exports to South East Asia or the US are unlikely since prices there tend to be lower; there is in principle potential of parallel exports to Japan, but other factors are likely to mitigate against this…international exhaustion would tend to approximate to Scenario 1-unilateral exhaustion-in its broad economic impact,” (NERA, S.J. Berwin and Co and IFF Research 1999, p. 123).
- 18.
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Eusepi, G., Cepparulo, A., Intartaglia, M. (2011). Parallelisms and Paralogisms in the European Court of Justice. In: Marciano, A. (eds) Constitutional Mythologies. Studies in Public Choice, vol 23. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6784-8_9
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