The Gazette 1974

Community law can be taught as a separate subject: preferably as two separate, but related, subjects. There is a great deal to be said for this approach, for wh» 1 I have termed the Community constitutional law reflect the nature of public international law and constitution^' and administrative law together with elements of th f philosophy of law and the techniques of public law What I have termed the Community law of the econ- omy is a different thing altogether as far as its nature and content are concerned. The exigencies of these tw° areas of the law may even call for two different typ eS of instructor. By now it may be thought that I have been blinder 1 by a kind of messianic zeal and have forgotten alto* gether the alternative method—the teaching by injec- tion of the appropriate topics into cognate, alread) existing, courses in law. Frankly I do not like th' 5 method and here an analogy to the teaching of confl' ct of laws conies to mind. It has been suggested frofl 1 time to time, I dare say by amateurs, that Conflict being a hybrid subject, can best be taught in sma" doses as an appendix to each particular subject. In tin- way the Law Society has effectively killed conflict ot laws as part of the basic training of the solicitor. Apart from the question of balance between th e established courses of English law and the correspond- ing portion of the Community law, there is the questio' 1 of the sources and nature of the two disciplines. * healthy respect can best be maintained for both if the* are treated separately. Disregarding the problem bulk, the mixing of disciplines leads in practice to a superficial treatment of one, if not of both. However, the teaching of Community law as a separ- ate subject will not absolve the subject instructors frofl 1 noting the impact of Community law in their respective fields and injecting its elements into their courses. 11 11 ] is particularly vital for courses in constitutional ana company law. The latter has to be considered as both domestic and community law until a uniform system emerges within the Community. One should not o e afraid of overlaps. Turning now to materials, the primary source of th e Community law are the Treaties, the secondary soured are the administrative and judicial acts of the institu- tions as well as the relevant state legislation. Subsidiary materials are those which enable us to study the Com- munity law in its international and national setting: i.e. the texts of public international law, state constitu- tions and the relevant portions of municipal laws Basically, therefore, the texts of the Treaties and Com- munity legislation form the backbone of the course- Commentaries and learned treatises, as well as the reports of the judgments of the Community Court, pro- vide the supporting materials. The cost of the library should also be borne in mind. Since most of the com- mentaries and monographs are written in foreign lan- guages, the knowledge of at least one major West Euro- pean language would be a considerable asset to a stu- dent. I assume, as a matter of course, that the instructor has an adequate linguistic background as he must be able to handle original texts. I imagine that instruction would be carried out i) 1 the well-tried manner by lectures and tutorials/semi- nars. The latter, in particular, would acquaint the student with the variety of materials and test his ability of assimilating source knowledge against the back- ground of the taught course. Finally, the personnel. In the absence of specialists there is this great opportunity of embarking on an 100

there are linguistic and conceptual problems, that un- familiar doctrines and legal techniques have to be understood in order to master the subject. All this, in my view, is sufficient to make a respectable course of forty to forty-five teaching hours. This, it will be appre- ciated, is only one side of the picture. The Law of the Economy The other side is the economic side, for the EEC is not in vain called the European Economic Com- munity. Here we start with the concept of the law of the economy—so un-English, so unfamiliar and so, it seems, non-legal. But this is the clue to the commercial, as distinguished from the constitutional, law. The EEC is the result of interaction between politics, economics and law. The function of the law is quite clear: to define the economic policies, in terms of rules of law and legal obligations, in accordance with the Continen- tal legislative techniques, and to provide machinery for their implementation, policing and enforcement. Some of the provisions of the EEC Treaty are directly en- forceable while others are not, and so we have a system which is partly controlled by the Community and partly by the member States under the guidance of the Community. One has to understand the relationship between law and economics, and especially the role of the state in dirigist concept of market economy. Here we can either follow the EEC Treaty or simply select areas for special treatment. I favour a combined opera- tion which gives the student a complete picture of the Community setting up the Common Market and oper- ating it across national frontiers. Certain areas of funda- mental practical importance for the lawyer in com- merce and practice have to be singled out. These in- clude the concept of economic freedom so fundamental to the Common Market resulting in the freedom of movement of persons, goods, services and capital coupled with the right of establishment and the principle of non-discrimination; the approximation and harmonisa- tion of laws; transport; the rules of competition involv- ing the law of restrictive practices and monopolies so important to commercial enterprise agriculture so para- mo ;unt in the economy of the Community and the member States; the state involvement in industry through subsidies and aids; company law, and one could add for good measure conflict of laws and recent developments in international bankruptcy and indus- trial property, as well as the social aspects of the law of the economy. Quite a formidable task, especially if you link economics with law. Even if executed selectively it will occupy forty to forty-five teaching hours. By now it will be appreciated that starting with an idea of a course I have, by false pretences, devised two courses. The two can, of course, be compressed into one, but only at the expense of either principle or detail. If you sacrifice principle, you will diminish the student's understanding of the subject and his appreciation of the law in its political, economic and social setting. You will make the subject rather dull. If you sacrifice the detail, you will be accused of being a hot-air mer- chant. As in everything else, one has to strike a happy medium. Where should the subject be placed in the curriculum of an undergraduate course? Clearly in the third year, as a sound background of English law is necessary to understand Community law and its relation to our domestic law.

Methods, Material and Personnel Turning now to methods, materials and personnel.