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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
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