VOL.6 NO.11 (November, 1996) pp. 162-164.

THE CONSTITUTIONAL LAW OF THE EUROPEAN UNION by James D. Dinnage and John F. Murphy. Cincinnati: Anderson Publishing Company, 1996. 731 pp. Reviewed by Mary L. Volcansek (Florida International University).

To review an American constitutional law textbook would be a bit superfluous, since most follow one consistent outline and include the same landmark decisions of the U.S. Supreme Court. The review of a continental case law book would be almost impossible since the concept is virtually unknown there. THE CONSTITUTIONAL LAW OF THE EUROPEAN UNION is, however, a startling and innovative work. It represents an attempt, the only one to my knowledge, to take decisions of the European Court of Justice (ECJ) and the documents that constitute the law of the European Union/European Community and wedge them into the format of a typical U.S.-style casebook. The effort is admirable, though not without some potentially controversial elements. I cannot but applaud Dinnage and Murphy for their remarkable work and also for their audacity in going against an established trend in European law studies.

Even the title that Dinnage and Murphy have selected is not without some controversy. First, not all would concur that there is a "constitution" of the European experiment. Judge Federico Mancini made a compelling argument that the ECJ had "constitutionalized" the treaties in his famous 1989 article in COMMON MARKET LAW REVIEW, but that theory has not been universally accepted, particularly in French legal circles. Be that as it may, the Court has persistently acted as though the treaties did constitute a constitution and have interpreted them with that presumed authority. Dinnage and Murphy bolster that argument in Chapter 3, in which they lay out the elements of the "Constitution" [their quotation marks, in this case]. That portion of the title is, in my view, an apt one and will perhaps set a precedent for other future collections.

The second potentially contentious element of the title is "the European Union." Much confusion has followed the signing of the Maastricht Treaty on European Unity (TEU) in 1992. That treaty is hardly a model of craftsmanship and, as a consequence, left unclear whether the "Community" was now a "Union," or whether selected portions of the former Community were now transformed into a Union. Most organs of the organization have chosen to adopt the noun "Union," and the old Council of Ministers is now officially the Council of the European Union; other institutions chose, however, not to alter their identification to lean in one direction or the other. Dinnage and Murphy's choice of "European Union" will satisfy all but the most fastidious of European legal scholars, but even they hedge at times and rely on the double usage of "Union/Community" (EU/EC) that so dogs all of us who write on the subject.

The text that Dinnage and Murphy have compiled makes the topic accessible to those more familiar with traditional constitutions, governments and courts by beginning with a definition of the EU/EC and providing a historical overview of its evolution. The inclusion in these sections of both a glossary of terms and a chronology of events is particularly useful. After the introductory materials, the book follows a traditional U.S. constitutional law casebook format and deviates significantly from more standard treatments of European law, such as Paul Craig and Grainne de Burca's EC LAW: TEXT, CASES AND MATERIALS. What follows is immediately recognizable to the U.S. student of constitutional law: the legislative, executive, and judicial functions, together with what amounts to the European version of federalism or division of powers between the central authority and the Member States.

The regulation of commerce, so crucial to both the U.S. and the European forms of integration, is given pride of place after the institutional powers and limitations have been discussed. Variations on what might appropriately be labeled "commerce," labor regulation, competition, intellectual property, state intervention and fiscal and budgetary matters are then treated. Since these features of EU/EC law are clearly the most prominent under a system of economic integration, they deserve the space that Dinnage and Murphy accord them. The concluding chapter relates to foreign and defense policies, which are only slowly evolving aspects of the Union. The only area that gets short shrift is that of human rights (a mere six pages). Granted, the original treaties did not address such rights, but the Court has created a few of the procedural variety to govern behavior of EU institutions and agents. Nonetheless, more than one example of ECJ decisions would seem in order, along with some specific provisions from the TEU that aim to remedy the deficiency.

Explanatory material by the authors is most thorough in the early chapters, but becomes simply terse introductions to cases or other documents thereafter. What may be lacking before the actual documents is, however, somewhat balanced by the very good "notes and questions" section that follows each case. Further, not only cases are reprinted for the reader. There are also liberal excerpts from regulations and directives (legislation) and from scholarly commentary in books and law reviews to aid in understanding the development of the case law.

Considering the enormity of the task and limitations of space, coverage of cases is quite good. In a mere 731 pages, short in comparison to the average American constitutional law text, not only are ECJ and Court of First Instance cases presented, but also a few relevant decisions from national courts. Most useful to a U.S. reader is the excellent cross-referencing of cases, including ones from the Supreme Court. Of course, inclusion of some materials necessitates the omission of others. In this case, some of those one would like to see in such a text are missing: CINÈTHÉQUE, SGARLATA, FRONTINI, and NOLD, for example. The fundamental rights element is, in other words, largely ignored. My objection to that exclusion comes from my view that there is no better group of decisions to demonstrate the creativity or, more bluntly, activism of the ECJ that contrasts sharply with what the Anglo-American student of law would expect.

This book represents, despite the few small imperfections, a stunning departure from the ordinary treatment of European law and the European Court of Justice, and I welcome it. Were I able to muster a constituency for a course in European law among political students at an American university, I would certainly use it. Dinnage and Murphy have made EU/EC law accessible to the non-European, in a way that it has not been previously. I am certain that I will find it to be a most useful reference, as will others. The European experiment is among the most important of the postwar era, and its development with future enlargements should be of interest to several fields of political science beyond those of public law and European politics. This text has the potential to serve as a relatively painless introduction for students and scholars alike to the importance of law in shaping politics.