Book Reviews Mulert, Martin. Die deutschen Bundesländer vor dem Europäischen Gerichtshof. Berlin: Duncker & Humblot, 1996. Pp. 318. DM 92; ÖS 718; sFr 92. This monograph focuses on a highly delicate problem, which is located between European and German constitutional law: How can standing of the German Länder be improved in proceedings before the European Court of Justice (ECJ) if the litigation before it directly or indirectly affects their competences and prerogatives? The question was already the subject of discussion when the Land Bavaria sued the German government before the German Federal Constitutional Court (BVerfG ), alleging that the quota regulations in the `Télevision sans frontières' Directive 89/552/EEC violated EC law and that, therefore, the directive should not be applied in Germany as being contrary to principles of federalism (pp. 144-148). The BVerfG avoided going into the merits of the case by rejecting the claim as being inadmissible at the time, given that the federal government had not yet taken action to implement it. It, however, hinted that it may grant protection once the interests of the Länder were directly impaired. Fortunately, the litigation was discontinued. The author is correct in saying that this and similar conflicts could be avoided if the Länder had standing before the ECJ on their own, without being dependent on the privileged position of the Federal Republic under Art. 173 (1) EC Treaty which may or may not support their claim. However, as the author observes, standing and intervention conditions for non-privileged plaintiffs have been handled extremely restrictively by EC law and Court practice. This not only concerns the position of the Länder, but any type of public interest action, as has been shown elsewhere (cf. the papers in Micklitz and Reich (eds.), Public Interest Litigation before European Courts, 1996, including a paper by Dauses on the position of the Länder before the ECJ). Art. 173 (4) EC Treaty makes locus standi dependent on direct and individual concern. This may be the case in state aid matters where funds are paid out in violation of Art. 93 (3) EC Treaty by a Land. If the Commission orders the federal government to ensure repayment, the Land may sue the Commission because in this case it is directly and individually concerned (cf. joined cases 62 72/87, Ecécutif Wallon and SA Glaverbel v. Commission [1988] ECR 1573). Standing will, however, not be assured in litigation where legislative or administrative competences of the Länder under German constitutional law are concerned, as in the television case (pp. 60-63). The author rightly asks whether standing under Art. 173 (4) should be extended to allow the Länder to attack Community regulations or directives violating their prerogatives, similar to the case law in anti-dumping proceedings (cf. case C-358/89, Extramet v. Council, [1991] ECR 1-2501), but rejects this approach as being somewhat too far-fetched (pp. 57-58). A more fruitful approach, in the opinion of the author, would be to extend standing of the Länder under Art. 173 (3) in analogy to the Tchernobyl case (C-70/88, Parliament v. Council, [1990] ECR I-2041) where the European Parliament (EP) was granted standing to defend rights and prerogatives of its own. The Maastricht Treaty expressly confirmed this case law, but only for the EP and the European Bank. The author argues for a parallel treatment of the position of the EP and the German Länder. I think his approach is flawed. Although the Maastricht Treaty (Art. F [1]; 198a EC Treaty as amended) has become more `Länder-friendly' (pp. 98-106), and effective judicial protection may be a necessary corollary to compensate the still weak position of the Länder (pp. 107-112), this does not justify drawing an analogy to the EP. The latter is, after all, an institution with its own rights and prerogatives under the Treaty, which it must be able to protect against institutional imbalances. In contrast, the Länder only have a very limited `constitutional' position in the regional council. Other rather general pronouncements on subsidiarity, mutual cooperation and regionalism cannot be used to upgrade the Länder (and similar regional bodies in other countries, such as the Spanish Comunidades autónomas, the Belgian Régions/Communautés, etc.) into semi-privileged plaintiffs under Art. 173 (3) (contra pp. 112-137). The author is, however, correct in criticizing the hostility of Community law as far as participation of the Länder in other proceedings is concerned. Examples here include infringement proceedings under Art. 169 (pp. 159-173), interventions under Art. 37 Statute of the ECJ (pp. 174-186), with useful suggestions for amendment. The Länder position is much better when a case in which they participate as plaintiffs or defendants is referred to the ECJ under Art. 177 because then they must be heard according to Art. 20 (2) of the Statute of the ECJ (pp. 188-193). The author, however, does not draw correct and realistic conclusions from his own analysis. Improved participation of the Länder before the European Court can only be achieved within the preliminary reference procedure. If a Land is convinced that a Community act has violated its prerogatives and may be challenged under EC law, it has to take its case first to a German court (eventually the BVerfG) which then, under the Foto-Frost doctrine of the ECJ (case 314/89, [1997] ECR 4199) has to refer the case to the ECJ if questions of legality under EC law are in dispute. German constitutional lawyers, including the author, seem to `forget', as the Maastricht judgment of the BVerfG has done, that every court (whether constitutional or not) of last resort is under an obligation to refer questions of validity of EC law to the ECJ, Art. 177 (3)! Dr. Norbert Reich University of Bremen
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