The Gazette 1973

BOOK REVIEWS Goldman (Berthold)—European Commercial Law. Translated by Philip Hawkes and Christopher Mitchell Heggs. 8vo; pp. xxiv, 452; London, Stevens, 1973; £7.80. The learned author is Professor of European Commer- cial Law in the Faculties of Law and Economics in the University of Paris, and this is a translation of his magnum opus which first appeared in 1971. As Dr. Simmonds has stressed in his Foreword, this book is by now very firmly established in the juristic literature of the Six original Member States. There is an invaluable Introduction of ten pages which is required reading. It is stressed that the establishment of a Common Market requires foremost the abolition of customs duties and of quantitative restrictions on imports and exports, and the setting up of a common customs tariff. Equal access to the Common Market also requires that nationals of Member States can establish themselves, work and offer their professional services all over the territory without discrimination based on nationality; this also presupposes equal and effective competition between enterprises—which also involves co-ordination of company law. This new European Law will have to be subdivided into European fiscal and financial law. European Social Law covering the free movement of workers, and European Commercial Law comprising the rules relating to freedom of establishment, compe- tition and integration of European Laws relating to these. Community Law is quite distinct from the nati- onal laws of the Member States, and, according to the European Court supplants them. European Commercial Law stems initially from the three original Treaties of Rome of 1957 and from subsequent international conventions, applied by the Council of Ministers and the Commission under the control of the European Court, which ensures uniform interpretation of Community Law. By virtue of Article 220, two conventions have been negotiated—namely (1) the Brussels Convention of February 1968, on mutual recognition of companies and juridical persons; and (2) the Brussels Convention of September 1968 concerning the execution of civil and commercial judg- ments. Whereas the function of decisions and regula- tions, which are immediately effective, is to create a Community Law of inter-State relationships, the pur- pose of recommendations and directives is merely to modify national legislation in order to harmonise and co-ordinate it, or to remove harmful discriminations. On the other hand, the rules governing competition are largely left to the discretion of the Commission, whose decisions are published in the Official Journal. Through its jurisdiction to hear appeals under the Treaty, the Court is able to control the legality of the acts of the Council and of the Commission and thus becomes truly the protector of Community Law. The main work is divided into three parts as follows; Part one deals in detail very clearly with rules regulating access to the Common Market, and the progressive suppression of restrictions on the right of establishment and to supply services. As suppression of discrimination under Community Law is founded on nationality, it follows

that it is necessary to study in detail the nationality laws of the Member States in order to verify the legal position. Whereas the notion of "establishment" in- cluded the acquisition of a business in another Member State, "the supply of services" includes the notion that a professional in one Member State will, independently and for remuneration, undertake tasks related to his profession at the request of a client in another Com- munity country. Questions such as the entry and resi- dence of foreigners are then considered in detail in relation to each of the Six Member States; and any particular discriminations are noted. The various bi- lateral and multi-lateral Conventions are then de- scribed. The persons benefiting from the free- dom of establishment and the right to supply services, are the nationals of the Member States. An effective and continuous economic tie exists by virtue of a pre-existing establishment within the Community. The scope of those who benefit from the right of free establishment and to supply services is very wide; and they include activities of an industrial, commercial, craft or professional character. The difficulties regarding supply of services of lawyers have already been noted in the Gazette; and the Com- mission have apparently also put forward proposals relating to medicine, dentistry and architecture. Part Two covering 180 pages, deals with the law governing Competition in the Common Market. The Treaty envisages the adoption of common commercial relations with non-member States in transport and agriculture. Essentially the signatories relied upon a free market economy as a guide towards the objectives of the Market. The rules in the Treaty define the actions which prevent, restrain or distort competition, and generally prohibit them. Enforcement of competi- tion is undertaken by the Council subject to the ulti- mate control of the Court. Much of the material in previous works on Compe- tition Law is then fully considered. Part Three, covering 120 pages, considers the inter- esting problem of the creation of European Commercial Law and its relationship with national legal systems. The rules relating to harmonisation of laws, which apply uniformly to all Member States are strictly the only rules which genuinely form Community legislation; the Council has also prepared multi-lateral Conven- tions, and finally the harmonisation of legislation of Member States must also be undertaken. These are all the necessary Constitutive Components of European Commercial Law. Yet the most striking example is that of Company Law. The broad effect of Articles 100 to 102 of the Treaty as to approximation of laws is fully considered, and the two previously mentioned Conven- tions of 1968 are dealt with. While Community Law binds the Member States, and, in case of conflict, overrules internal law, it must be applied in a uniform way throughout the Member States. This applies particularly to freedom of estab- lishment and supply of services, as well as to the compe- tition rules. The criterion for applying competition law is whether the anti-competitive object or effect is felt on Community territory, and therefore does not a D D lv 213