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R EVUE JURIDIQUE POLYNÉSIENNE VOLUME 14 2008

Sommaire

Présentation de la RJP iii

The European Union – What's Next? George Cunningham 1

What Role does Competition Law Play in the Genesis of a HarmonisedEuropean Private Law? Francesco A Schurr 7

Legal Education Reform in Australia and the Impact of Globalisation:A Comparative Perspective Martin Vranken 21

Recognition and Implementation of the Right to Health in SomeSmall Island Countries Alison Quentin-Baxter 29

Forgiveness is Melanesian for Individualism – And Other Bad Translations Ian Fraser 43

Violences et Discriminations dans les États Insulaires du Pacifique Sud:État des Lieux au Vanuatu Laurent Chassot 59

EU and World Trade Law – Economic Partnership Agreements and

Considerations for New Caledonia R C Plachecki 71Traditional Knowledge and Intellectual Property Protection

– The Endeavour of Niue Ping Xiong 123

"Wrestling with the Taniwha": An Analysis of Two Maori LanguageTexts and their Engagement with Western Legal Concepts M āmari Stephens 135

«Remarques sur l'Acte de Québec» d'Alexander Hamilton (écrites en 1775) – Une Traduction et son Commentaire Dominique Gaurier 157

Chronique de Jurisprudence Fiscale Relative à la Polynésie française Xavier Cabannes 199

Chronique de Droit Social Alain Chirez 231


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(2008) 14 R EVUE JURIDIQUE POLYNÉSIENNE

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REVUE JURIDIQUE POLYNESIENNE

Direction scientifique

M Xavier Blanc-Jouvan, Professeur Emérite de la faculté de droit de Paris I Panthéon-Sorbonne

M le Doyen Paul Le Cannu, Professeur à l'Université de Paris I Panthéon-Sorbonne

Sir Ivor Richardson, Distinguished Fellow à Victoria University of Wellington

Mme le Professeur Horatia Muir Watt, Professeur à l'Université de Paris I Panthéon-Sorbonne

Comité scientifique

Mme le Professeur Sylvie André, Professeur à l'Université de la Polynésie française

M Michel De Villiers, Professeur à l'Université de Nantes

M le Doyen Yves Brard, Professeur à l'Université du Maine

M le Doyen Gérard Chianéa, Professeur à l'Université P Mendès France Grenoble

M Alain Chirez, Professeur à l'Université de la Polynésie française

M Marc Debene, Professeur à l'Université de la Polynésie française

M Olivier Gohin, Professeur à l'Université de Paris II Panthéon Assas

M Jérôme Huet, Professeur à l'Université de Paris II Panthéon Assas

M Pascal Jan, Professeur à l'Institut d'Etudes Politiques de Bordeaux

M Ichiro Kitamura, Professeur à l'Université de Tokyo

M Christian Montet, Professeur à l'Université de la Polynésie française

M le Vice-Doyen Pierre Murat, Professeur à l'Université P. Mendès France Grenoble

M Mario Patrono, Professeur à l'Université de Rome I, La Sapienza

M Norbert Rouland, membre de l'Institut Universitaire de France, Professeur à l'Université

d'Aix- Marseille

Le Comité scientifique de Victoria University of Wellington Law Review et de la New Zealand

Association for Comparative Law (association affiliée à l'UNESCO) Directeur de publication

Dr Yves-Louis Sage, Maître de Conférences à l'Université de la Polynésie Française, Teaching

Fellow à Massey University

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Comité de direction

A Angelo, Professeur à l'Université Victoria University of Wellington

Dr Xavier Cabannes, Maître de Conférences à l'Université Paris V

Mr Alberto Costi, Senior Lecturer à l'Université Victoria University of Wellington.

Dr Marc Joyau, Maître de Conférences à l'Université de Nantes

Professeur Jean-Paul Pastorel, Maître de Conférences à l'Université de la Polynésie Française

Créée en 1994, la "Revue Juridique Polynésienne" (R.J.P) est publiée, une fois par an, hors

numéros spéciaux, sous l'égide l'Association de Législation Comparée des Pays du Pacifique(ALCPP) en collaboration avec Victoria University Law Review (VUWLR), la New Zealand

Association for Comparative Law (NZACL) et l'Université de la Polynésie française (UPF). Revue

pluridisciplinaire, elle accueille des articles en langue française ou anglaise, relatifs à différents

aspects des sciences sociales et humaines intéressant principalement, mais pas exclusivement, les

pays de la zone Pacifique. Les articles publiés sont également consultables et téléchargeables

gratuitement à partir du site Internet: http://www.upf.pf (Recherche; RJP). Les auteurs qui

souhaitent soumettrent leurs manuscrits peuvent le faire en les envoyant, à Monsieur Y-L Sage,

Université de la Polynésie Française, Campus Universitaire de Punaauia, BP 6570, Faaa Aéroport,

Tahiti, Polynésie Française ou à l'une des adresses électroniques suivantes: [email protected] ;

[email protected], [email protected], [email protected]

Le comité de rédaction remercie le laboratoire EA 4240 (Gouvernance et DévelopementInsulaire) de l'Université de la Polynésie Française et l'Office des postes et télécommunications de

Polynésie (OPT) pour leurs contributions au financement de ce numéro.

En couverture: JDS: "Sharp Cut Edges I" (2006); piecing of embroidery of dyed violet.

Ils remercient également Denise Blackett pour la mise en page de cet ouvrage.

Numéro/Number: /100

ISSN 1772-1644

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REVUE JURIDIQUE POLYNESIENNE

Created in 1994, the "Revue Juridique Polynésienne" (RJP) is peer-reviewed and is published

once a year, in addition to its special issues, under the auspices of the Association de Legislation

Comparée de Pays du Pacifique (ALCPP) [Association of Comparative Legislation of the Countries

of the Pacific], in collaboration with the Victoria University Law Review (VUWLR), the New

Zealand Association for Comparative Law (NZACL) and the University of French Polynesia (UFP).

Articles published are accessible on and can be freely downloaded from the following internet site:

http://www.upf.pf (Recherche; RJP)

Scientific Directors

Mr Xavier Blanc-Jouvan, Professor Emeritus at the Law Faculty of the University of Paris I

Panthéon-Sorbonne

Dean Paul Le Cannu, Professor at the University of Paris I Panthéon-Sorbonne

Sir Ivor Richardson, Distinguished Fellow at Victoria University of Wellington

Mrs Horatia Muir Watt, Professor at the University of Paris I Panthéon-Sorbonne

Scientific Committee

Mrs Sylvie André, Professor at the University of French Polynesia

Mr Michel De Villiers, Professor at the University of Nantes

Dean Yves Brard, Professor at the University of Maine

Dean Gérard Chianéa, Professor at the University P Mendés France, Grenoble

Mr Alain Chirez, Professor at the University of French Polynesia

Mr Marc Debene, Professor at the University of French Polynesia

Mr Olivier Gohin, Professor at the University of Paris II, Panthéon-Assas

Mr Jérôme Huet, Professor at the University of Paris II, Panthéon-Assas

Mr Pascal Jan, Professor at the Institute of Political Sciences of Bordeaux

Mr Ichiro Kitamura, Professor at Tokyo University

Mr Christian Montet, Professor at the University of French Polynesia

Deputy-Dean Pierre Murat, Professor at the University P. Mendés France, Grenoble

Mr Mario Patrono, Professor at the University of Rome I, La Sapienza

Mr Norbert Rouland, of the Institut Universitaire de France, Professor at the Law Faculty of the

University of Aix-Marseille

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Editor-in-Chief

Dr Yves-Louis Sage, Maître de Conférences at the University of French Polynesia, Teaching

Fellow at Massey University

EDITORIAL COMMITTEE

Professor Anthony Angelo, Professor at Victoria University of Wellington Faculty of Law

Dr Xavier Cabannes, Maître de Conférences at the University of Paris V

Mr Alberto Costi, Senior Lecturer at Victoria University of Wellington

Dr Marc Joyau, Maître de Conférences at the University of Nantes

Prof Jean-Paul Pastorel, Maître de Conférences à l'Université de la Polynésie Française

The Editors wish to express their gratitude and appreciation to Laboratoire EA4240

(Governance et Développement Insulaire) (University of French Polynesia) and the OPT of

Polynesia for their valuable financial contributions.

They also wish to thank Denise Blackett for the typesetting and formatting of this book.

Cover credit: JDC: JDS: "Sharp Cut Edges I" (2006); piecing of embroidery of dyed violet.


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1

THE EUROPEAN U NION – WHAT'S NEXT?

George Cunningham*

This talk was delivered in the Victoria University of Wellington Law School on 1 November 2007under the joint auspices of the New Zealand Centre for Public Law and of the New Zealand

Association for Comparative Law. It is a fitting way to mark the end of the EU jubilee year.

Cet article représente le texte d’une conférence donnée à la faculté de droit de Victoria University

of Wellington, le 1e novembre 2007 par M. George Cunningham, Chargé d’Affaires à la

Commission Européenne en Nouvelle-Zélande.

Cette conférence a été organisée sous les auspices du New Zealand Centre for Public Law et de la

New Zealand Association for Comparative Law. L’auteur y a exposé les grandes lignes des futurs

développements que devrait connaître l’Union Européenne.

Many thanks to the Faculty of Law at Victoria University and the NZ Association forComparative Law for having invited me.

It is really wonderful to be here. This is a happy occasion as it is my first talk here in New

Zealand, having only arrived in your pleasant land just over a month ago.

Oftentimes, I like to give talks which stimulate debate and add a bit of my personal analysis.

This occasion will be no different. I hope that will make it interesting.

We have just had the European Union's 50th anniversary celebrated with many events

worldwide, including in New Zealand. In our discussions about what to call this talk, someone

suggested "European Union: the next 50 years". Although that was a very visionary suggestion, I

believe it does not easily fit in with the realities of our modern times right now.

In a speech in Cape Town, South Africa in June 1966, Robert F Kennedy said, "There is aChinese curse which says, "May he live in interesting times". The popularity of this "Chinese curse"

* Chargé d'Affaires ai, European Commission Delegation to New Zealand. Mr Cunningham has been an ECofficial for many years. He took up his New Zealand post in September 2007 having previously served inBrussels, New York and Nicosia. He was coordinator for the EU's bilateral trade relations with the USA2005-2007.


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has puzzled Chinese scholars, who have in fact – as it turns out – only heard it from Americans. The

origin of this phrase might be related to the Chinese proverb, "It's better to be a dog in a peaceful

time than be a man in a chaotic period". Whatever the origin, it is certainly true we live in

interesting times right now.

In a previous guise, as coordinator for EU-US bilateral trade relations, I had on many occasions

delivered talks to both EU and US audiences, explaining (and surprising) them that – although the

US is perhaps unique in the world in terms of hard power – the EU and US economies were of the

same magnitude. By working together, with the multilateral interest also at heart, I used to say, we

could make a constructive, positive difference in the world.

However a change is occurring. The EU is growing in terms of member countries. The euro ison the rise. There is an economic slowdown in particular in the US economy because of the

subprime mortgage crisis. The outcome is that – based on current exchange rates – the size of the

EU economy has out-stripped that of the US economy. And this may continue for some time.

When I was serving the European Commission in New York in 2000, the euro had only just

been launched. The exchange rate had drifted downwards below parity rate against the US dollar,

bumping along at merely US$0.84: 1 Euro. By contrast, now it has reached the giddy heights of

almost US$ 1.45: 1 Euro.

Attending a New York party at a time the euro had reached rock bottom, a billionaire asked me

if I believed it was the right time to invest in euros. I said absolutely. He took my advice and did it.

He died around the time the two currencies reached back to parity again. He did not live long

enough to see the real fortune that he would have made.

There are many other global trends of note that are changing the way the world is functioning,

not least the rise of the so-called BRICs (Brazil, Russia, India and China), as well as other emerging

economies. Now that the relative certainties of the second half of the 20th century are well-behind

us, we need to adapt and face this brave new world together.

We are indeed living in interesting times. And New Zealand - despite geographic distance from

other countries – is by no means isolated from what is happening in this globalised, shrinking world.

And that is why it is particularly important for New Zealanders – like the rest of us – to work

together to try to harness as much as possible this ongoing, unstoppable globalisation for our

benefit.

In these turbulent times, it is difficult perhaps to predict too far ahead what may happen – and

certainly not 50 years ahead. Nevertheless the European Union is evolving and has a clear

programme about what it wishes to achieve.

First of all, it is important to remember the EU's global soft power is quite substantial. Just three

quick facts:


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THE EUROPEAN U NION – WHAT'S NEXT? 3

• As mentioned previously, the EU is now the world's biggest economy with a GDP of

NZ$ 22 trillion.

• It is the world's biggest trader, accounting for 20% of global imports and exports.

• It is also the world's largest donor, providing around 55% of the world's development

assistance.

There are many themes that one can pick about the EU and its future, but let me concentrate

briefly on four: enlargement, climate change, freedom of movement of people within the EU and

changes to the way the EU is run.

Concerning enlargement,

the EU is certainly very popular among its neighbours. Manycountries want to join it. We have now 27 Member States. Almost a half billion people.

Negotiations are in progress for Turkey and Croatia to join. Other countries of former Yugoslavia

have agreed a roadmap towards a European destiny. There are no geographic limits set for

enlargements.

However we have to be a bit more careful. EU citizens have become more cautious about the

current enterprise. Polls show, for instance, some resistance from the public in some countries to

Turkey's becoming a member. Nevertheless, the EU has given a clear undertaking to Turkey that it

should be a member once it has fulfilled all the criteria to join.

The success of the 2004 big bang enlargement of 10 new Member States can now be more

clearly seen. The influx of over half a million Poles into the UK since their country joined the EU in

2004 has not led to tensions there. Indeed a recent Home Office study has reportedly said Polish

workers have produced a benefit to the UK economy of an estimated 9 billion euros in the past year

alone.

And for those in the regions most immediately around us, we have a special European

Neighbourhood Policy which embraces countries further to the east in Europe and the

Mediterranean in a comprehensive programme to create more stability and prosperity.

Concerning the free movement of people, we are making advances there as well. Membership of

the so-called Schengen countries now stands at 15, including even Iceland and Norway which are

not members of the EU.

Just next month, there will be a another great leap forward as a further nine new EU Member

States (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia)

will abolish their internal land and sea borders between them and the current 15 members of

Schengen. The same will happen for air borders by March 2008. This will lead to the expansion of

the Schengen area to 3,600 million km2 and should certainly make it easier for New Zealanders

traveling to Europe for their Overseas Experience to cross borders.


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On climate change, the UN Bali Conference is coming fast upon us. The EU hopes that

international climate talks in Bali during the first half of December will establish a roadmap that

will lead to commitments from all developed countries to cut their greenhouse gas emissions by

30% by 2020, compared to 1990 levels. The EU has unilaterally already agreed to cut its gas

emissions by 20% during this period, agreement or not.

The recent announcement of an International Climate Action Partnership which aims to

coordinate and share information on existing regional cap-and-trade initiatives within Europe, New

Zealand, various US states and Canada is very welcome. Such a forum could act as a driver for

increased compatibility and potential linkage of regional carbon markets, which could ultimately

lead to the creation of a wider, international carbon market.

In 2008, the EU will assess the adaptation of its public policies to the new realities of climate

change. A wide range of EU policies – such as agriculture, fisheries, biodiversity, energy, industry

and tourism – will need to be adjusted. Particular attention will be given to the greening of the

transport sector. There will also be a strategic energy review.

Final among my four themes is changes to the way the EU is run . A new reform treaty has been

agreed. Those reforms are expected to start taking shape in 2009 if all goes well with the ratification

process in the 27 Member States, all of whom must ratify the Treaty. Some of the key changes are

as follows:

• The creation of an EU Presidency (of the Council) for a two-and-a-half year term. This

replaces the rather short six-monthly Presidency rotation among Member States that happens

now, and will allow for better continuity;

• the creation of the post of High Representative of the EU for Foreign Affairs and Security

Policy – effectively a Foreign Minister for Europe;

• a single legal personality for the EU;

•

an exit clause, which will – for the first time – permit members to leave the EU;

• a stronger role for national parliaments;

• A double majority rule for decision-making based on the votes of 55% of member states

combined with a total of 65% of the EU's population to pass legislation by qualified majority

from 2014;

• extending qualified majority voting to another 40 policy areas, thereby easing decision-

making within an enlarged EU.

The creation of an EU High Representative for Foreign Affairs and Security Policy is expected

to impact on the diplomatic functions of the EU worldwide and lead to the formation of an European

External Action Service.


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THE EUROPEAN U NION – WHAT'S NEXT? 5

This is just a flavour of what is going on. There are many other developments in the pipeline.

For instance, the increasing number of countries that are readying themselves to join an expanding

eurozone. Or our forthcoming summit with African Heads of State and Government this December

to move that relationship forward even further.

One of the fun things about working for the European Union is that there is continuous

evolution. Setbacks, when they do happen, usually, eventually, get resolved.

Finally, how about New Zealand's relations with the EU? Well, first of all, they've never been

better. There are currently no trade disputes between us – a clean slate in the only area of potential

friction. And let us not exaggerate the importance of this area, given how we have so much in

common on all other fronts.

New Zealand is valuable and valued by the EU. It punches above its weight in the international

arena, particularly on trade matters. It assumes significant leadership in the Doha Round. Its position

in the Asia-Pacific region gives the EU a close friend in the region which is the engine of economic

growth for the whole world. And its lamb and other important food products grace the tables of

Europeans across the whole EU and not just in the UK.

The new Joint Declaration on relations and cooperation between the EU and NZ signed on 21

September this year has taken the relationship further. The aim there is to negotiate and conclude a

full air services agreement by the end of 2008; a new Science and Technology Cooperation

Agreement which we hope will be ready in the first half of 2008; and continued work towards a

Wine Agreement and a Customs Cooperation Agreement.

We will also enhance our cooperation on climate change, including support for the post-2012

international framework and carbon market; have new annual trade talks (back-to-back with more

traditional agricultural talks); look for practical cooperation in the areas of investment promotion,

regulatory and competition policy approaches; more educational cooperation; increased

coordination in the Pacific region; and closer cooperation on counter-terrorism.

This year alone has seen Prime Minister Helen Clark and Foreign Minister Winston Peters

engage actively Europe through extensive visits there. And in return, our External Affairs

Commissioner Benita Ferrero-Waldner and other senior officials have also made their journeys this

year to New Zealand.

It is through partnerships such as these that the European Union is creating a web of friends

throughout the world. And none does it feel closer to in terms of shared values than New Zealand.

Thank you for having me here, both in your country, and as my audience this evening.

http://www.delaus.ec.europa.eu/newzealand/JointDeclaration2007/index.htmhttp://www.delaus.ec.europa.eu/newzealand/Whats_New/PMClarkvisitOct07.htmhttp://www.delaus.ec.europa.eu/newzealand/JointDeclaration2007/PressReleaseWellington.htmhttp://www.delaus.ec.europa.eu/newzealand/JointDeclaration2007/PressReleaseWellington.htmhttp://www.delaus.ec.europa.eu/newzealand/Whats_New/PMClarkvisitOct07.htmhttp://www.delaus.ec.europa.eu/newzealand/JointDeclaration2007/index.htm


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WHAT R OLE DOES COMPETITION LAWPLAY IN THE GENESIS OF AHARMONISED EUROPEAN PRIVATELAW? Francesco A Schurr*

The goal of this article is to assess the relevance of competition law for the development of

European private law in general and for European contract law in particular. In the current debate

on the harmonisation of European private law the role of competition law has been either

completely neglected or at least underrated. The case law proves that the provisions of competition

law contained in the Treaty establishing the European Community and in various pieces of

secondary Community legislation have had a strong impact on the legal relationship between

private persons and thus on the reality of contract law in Europe. In the interpretation of the current

competition law provisions the European Court of Justice and the Court of First Instance have

employed the principle of direct application of EC law on private persons. This paper points out

how this case law serves as a catalyst for the harmonisation of private law. The topic covered by

this paper can be used as a guide to determine whether EC law is part of the civil law tradition or of

the common law tradition.

La fin de cet article est d'évaluer la pertinence du droit de la concurrence pour l'évolution du droit

privé européen en général et en particulier le droit européen des contrats. Dans la discussion

actuelle relatif à l'harmonisation du droit privé européen le rôle de la loi sur la concurrence a été

complètement négligé, ou au moins sous-estimé. La jurisprudence manifeste que les dispositions du

droit de la concurrence contenues dans le Traité instituant la Communauté Européenne et dans de

diverses parties de la législation communautaire secondaire ont eu un fort impact sur la relation

juridique entre personnes privées, et donc sur la réalité du droit des contrats en Europe. Pour

l'interprétation de la législation communautaire actuelle sur la concurrence les jugements de la

Cour de Justice et du Tribunal de Première Instance ont suivi le principe de l'application directe du

* Associate Professor for Private Law and Comparative Law at the University of Innsbruck/Austria. VisitingLecturer, Victoria University of Wellington.


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droit communautaire sur les personnes privées. Cet article souligne comment cette jurisprudence

sert comme un catalyseur pour l'harmonisation du droit privé. Le sujet de cet article peut être utilisé

comme paramètre fondamental pour connaître si le droit communautaire est plutôt de la tradition

de droit civil ou de la tradition du common law.

I INTRODUCTION

Competition law deals with the relationship between private persons. Therefore it needs to be

appreciated as a fundamental driving force in the process of Europeanisation of private law. It is

surprising that in the current discussion regarding the harmonisation of private law1 – and especially

of contract law – little attention has been paid to the enormous influence of competition law,

whereas other fields, such as consumer law 2 or comparative law3 have been at the centre of the

debate.4

From the very beginning of the European integration process, therefore already in the post-war

era, the European economic constitution was build on the idea of creating an area of free

competition between undertakings headquartered in different member states. 5 Easy access to the

market and especially the equal opportunities to participate in the game of the market are considered

as a cornerstone of the European economic constitution. The protection of free competition is based

on the existence and the enforcement of legal rules that are applicable between private persons and

public authorities (public law approach) as well as between two or more private persons (private law

approach).6 Hence these rules of competition law have been essential for the Europeanisation of

private law.

1 On the process of private law harmonisation in general see eg Walter van Gerven "Bringing (Private) Lawscloser to each other at European Level" in Fabrizio Cafaggi (ed) The Institutional Framework of EuropeanPrivate Law (University Press, Oxford, 2006) 37.

2 This topic has been discussed by the author previously, see Francesco A Schurr "The relevance of theEuropean consumer protection law for the development of the European contract law" in Tony Angelo (ed)The Pacific and Europe: The 50th Jubilee of the European Communities (RJP Hors série 2007) 131.

3 On this topic see eg Klaus Peter Berger "Harmonisation of European Contract Law –The Influence ofComparative Law" (2001) 50 ICLQ 877.

4 The joint influence of consumer law and competition law has been addressed by Albertina Albors-Llorens

"Consumer Law, Competition Law and the Europeanization of Private Law" in Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford, 2006) 245, 260.

5 On this topic see Armin Hatje "The Economic Constitution" in Armin von Bogdandy and Jürgen Bast (eds)Principles of European Constitutional Law (Hart Publishing, Portland, 2006) 587 ss.

6 The distinction between private law and public law plays a major role in the European legal tradition: Onthis issue in comparison to the US legal system see Ralf Michaels and Nils Jansen "Private Law beyond theState? Europeanization, Globalisation, Privatization" 54 Am J Comp L 843.


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EUROPEAN COMPETITION LAW AND PRIVATE LAW HARMONISATION 9

There are various other policy fields contained in the Treaties and in various pieces of secondary

EC legislation that contribute indirectly to the functioning of competition in the common market and

thus fall into the category of "peripheral parts" of competition law. Those fields of law (such as

consumer protection law7) have an enormous relevance for the process of private law

approximation. However it needs to be noted that most of these fields of EC policy have developed

at a much later stage,8 whereas the "central part" of competition law has been from the very

beginning a prerequisite for the realisation of the fundamental freedoms: the free movement of

goods, the free movement of services as well as the freedom of establishment, the free movement of

persons including the free movement of workers, and the free movement of capital.

This "central part" is composed of the provisions of articles 81 and following of the European

Community Treaty (ECT) and of a set of rules contained in various pieces of secondary legislation

focusing on procedural and substantive issues of competition law.9 The statutory law belonging to

this category not only regulates the behaviour of the private market players, but also focuses directly

on the public interest by promoting and preserving the functioning of the game of competition.

According to our definition the "peripheral parts" of competition law embrace all those fields of

the acquis communautaire that – without addressing directly the competition between undertakings

– create equal market conditions through harmonisation, approximation or unification of law and

thus contribute to eliminating the distortion of competition. Especially those pieces of legislation

created to protect the weaker party to the contract, such as consumer law directives, directives that

protect the commercial agent, belong to this category.

This article intends to explain some essential aspects of the "central part" of EC competition lawand to outline their impact on the process of harmonisation of private law through the decision

making of the European Court of Justice (ECJ) and the Court of First Instance (CFI). When these

courts had to give an interpretation of pieces of legislation belonging to the "central part" of EC

competition law, they often set new standards that are vital for the private law harmonisation.10

7 On the various methodologies of consumer protection in the present acquis communautaire, see HannesUnberath and Angus Johnston "The double-headed approach of the ECJ concerning consumer protection"(2007) 44 CML Rev 1237.

8 See Albertina Albors-Llorens "Consumer Law, Competition Law and the Europeanization of Private Law"

in Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford,2006) 245.

9 For example, Regulation 139/2004, OJ 2004 L 24/1; Regulation 1/2003 OJ 2004 L 1/1.

10 On the ECJ's role in the harmonisation of private law in general see Angus Johnston and Hannes Unberath"Law at, to or from the Centre? The European Court of Justice and the Harmonisation of Private Law in theEuropean Union" in Fabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford, 2006) 149.


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Furthermore the article will expose a cross-influence between the "central part" and the "peripheral

parts" of competition law and identify situations of overlap.

II DIRECT RESTRICTION OF CONTRACTUAL FREEDOM

A Banned Relationships between Undertakings

Article 81 (1) ECT addresses collusive behaviour of businesses: all agreements between

undertakings which affect the trade between member states and which have as their object or effect

the prevention, restriction or distortion of competition within the common market, are prohibited.

Decisions by associations of undertakings and concerted practices are also prohibited if they have

the abovementioned impact on the common market. 11

Apart from this general provision, article 81 (1) ECT mentions some circumstances where the

behaviour of businesses has a particularly negative impact on the common market, eg when

businesses fix directly or indirectly purchase or selling prices or any other trading conditions or

when they limit or control production, markets, technical development, or investment. The

European legislation emphasises that undertakings should refrain particularly from these forms of

behaviour.

Article 81 (1) ECT refers as well to the practices of sharing markets or sources of supply and of

applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing

them at a competitive disadvantage. In addition to that the European legislator made it clear that it is

prohibited to make the conclusion of contracts subject to acceptance by the other parties of

supplementary obligations which, by their nature or according to commercial usage, have noconnection with the subject of such contracts.

Horizontal agreements between competing undertakings are always at risk of being void under

article 81 (1) ECT.12 This is less obvious when undertakings conclude agreements vertically; at a

first glance article 81 (1) ECT does not seem to be applicable to vertical relationships and leaves this

form of collusive behaviour uncovered. The ECJ started filling this normative gap in the early days

of its competition law related case law13 and has emphasised on various occasions that article 81 (1)

11 Rotbero Nazzini "Article 81 EC between time present and time past: a normative critique of "restriction ofcompetition" in EU law" (2006) 43 CML Rev 497.

12 See Francisco Enrique González Díaz "Horizontal Co-operation Agreements" in Jonathan Faull and Ali Nikpay (ed) The EC Law of Competition (2 ed, University Press, Oxford, 2007) 659.

13 Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299.


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ECT is applicable to relationships between various members in the chain of marketing of goods and

services.14

B Consequences of the Direct Nullity Principle in Competition Law and in General Contract

Law

According to article 81 (2) ECT all these prohibited agreements or decisions are automatically

void. In Société Technique Minière (LTM) v Maschinenbau Ulm GmbH (MBU)15 the ECJ made it

clear that the automatic nullity of an agreement within the meaning of article 81 (2) ECT applies

only to those parts of the agreement affected by the prohibition. Only when it appears that those

parts cannot be separated from the agreement itself, can the whole agreement be regarded as void.

The ECJ tried to reduce the impact of competition law on the contractual freedom of the parties

by stating that other contractual provisions which are not affected by the prohibition of article 81 (1)

ECT should not be void. In this decision related to the "central part" of competition law, the ECJ has

strongly influenced the general private law of all the member states. The decision dealt with the

nullity of the whole contract as compared to the partial nullity of single contract terms and has given

a guideline for the general treatment of contract terms that are contrary to mandatory legal

provisions.

Thus article 81 ECT restricts the contractual freedom of the parties in a way similar to various

pieces of secondary legislation belonging to the "peripheral part".16 According to article 6 of this

Directive unfair terms in a contract concluded with a consumer by a seller or supplier are not

binding on the consumer; apart from that, the contract continues to bind the parties if it is capable of

continuing in existence without the unfair terms.

Therefore it is evident that the above sources belonging to the "central part" of competition law

as well as to its "peripheral part" are a major contribution to the harmonisation of contract law in

Europe.

III INDIRECT RESTRICTION OF CONTRACTUAL FREEDOM – THE

PROTECTION OF THE WEAKER PARTY TO THE CONTRACT

At first glance the impact of article 82 ECT on contractual relationships between businesses

seems harder to prove as this provision focuses mostly on unilateral behaviour that hinders

competition between businesses in the common market.

14 On the history of the application of art 81 ECT to vertical agreements, see Mario Filipponi and LucPeeperkorn and Donncadh Woods "Vertical Agreements" in Jonathan Faull and Ali Nikpay (ed) The EC Law of Competition (2 ed, University Press, Oxford, 2007) 1129, 1132.

15 Case 56/65 Société Technique Minière (LTM) v Maschinenbau Ulm GmbH (MBU) [1966] ECR 235.

16 An example would be unfair terms in consumer contracts. Directive 93/13, OJ 1993 L 095/29.


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A The Concept of Abuse of a Dominant Position

Article 82 (1) ECT is one of the essential pillars within the "central part" of European

competition law. According to this provision any abuse of a dominant position within the common

market or in a substantial part of it is prohibited as incompatible with the common market in so far

as it may affect trade between member states. In the last five years an intense political and scholarly

debate relating to the burden of proof has taken place; it has been discussed whether it should be

sufficient for the Commission, the main executive body for EC competition law, to prove that the

behaviour under review is likely to distort market competition. Under this circumstance the

dominant undertaking should have a chance to prove that its conduct is objectively necessary or

justified.17

In article 82 (1) ECT the European legislator has further specified some crucial cases of abuse

(eg when an undertaking imposes directly or indirectly unfair purchase or selling prices or other

unfair trading conditions, or when it limits production, markets or technical development to the

prejudice of customers and users).

Article 82 (1) ECT has a strong impact on the development of harmonisation of European

contract law: for example abusive clauses are often included in contracts between dominant

companies and economically weaker parties (such as consumers or distributors). Therefore it is vital

for this research to take into account the protection of the weaker contract party as an essential way

for the "central part" of competition law to penetrate into the development of private law

harmonisation.

B Trends in European Statutory Law and Overlaps with Competition Case Law

The architecture of article 82 (1) ECT resembles various provisions of secondary EC law that

belong to the category of "peripheral parts" of competition law. In this area there are various

provisions that are focused on the protection of the weaker party in the contract from abuse of power

through the stronger party. EU law considers persons belonging to this target group (eg the

consumer, the commercial agent) as persons that are extremely vulnerable in the conclusion and in

the performance of contracts.

In the EC legislation of recent decades and in the legislation of EU member states a strong

emphasis has been put on the protection of the weaker parties to the contract. This trend can be

explained not only by the legislator's intention to promote the social role of private law in Europe,18

17 See DG Competition discussion paper on the application of Article 82, www.ec.europa.eu/comm/competition/antitrust/art82/discpaper2005.pdf; for a summary of the scholarly debate, see Roberto Nazzini "The wood began to move: an essay on consumer welfare, evidence and burden of proof in Article82 EC cases" (2006) 31 E L Rev 518.

18 On this topic see eg Ugo Mattei and Fernanda Nicola "A social dimension in European Private Law? TheCall for Setting a Progressive Agenda" (2006) 41 New Eng L Rev 1.


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but also by the need to avoid situations where competition between undertakings is distorted

because those headquartered in member states with a low level of protection are privileged, since

they have to fear little or no sanction when dealing with the weaker party of the contract. Therefore

the provisions protecting vulnerable market players can be defined clearly as "peripheral parts" of

competition law.

The idea of preventing a business from abusing its power is present in article 82 (1) ECT as well

as in the "peripheral parts" that are designed to protect the weaker party of the contract. This article

will now focus on two essential examples of cross-influence and legal overlap between the "central

part" and "peripheral parts" of competition law.

1 Overlap in the field of pricing

Price fixing has been addressed by the European legislator in provisions belonging to the

"peripheral parts" of competition law.19 According to article 6 of the Directive on commercial

agents, a commercial agent is entitled to the remuneration that commercial agents are customarily

allowed in the place where the activities are carried on.20 If there is no such customary practice, a

commercial agent is entitled to reasonable remuneration taking into account all the aspects of the

transaction. Article 6 is focused primarily on the protection of the weaker party to the contract, and

therefore on the legal standing of the commercial agent. One of the means of protection is by

granting the commercial agent an adequate remuneration.

Thus the system of protection contained in article 6 of the Directive on commercial agents is

similar to that established by article 82 (1) ECT. The latter provision states that an undertaking

abuses its market power if, directly or indirectly, it fixes unfair prices. Article 6 of the Directive is

intended to prevent undertakings abusing the bargaining power that they have vis-à-vis the

commercial agents they cooperate with. Both provisions heavily restrict the bargaining freedom of

undertakings in a very similar way. Hence future case law will be able to rely on the possibility of

cross-influences between the "central part" and "peripheral parts" of competition law whenever

there is a need to evaluate the necessity to restrict contractual freedom related to price fixing.

2 Overlap in the field of contract terms

The "central part" of competition law has had a strong impact on the freedom to negotiate and to

use certain conditions in a contract. The case law has based the restriction of various contract terms

on article 82 (2) ECT and thus addressed only the target group of undertakings which have a

19 Directive 86/653, OJ 1986 L 382/17.

20 This provision is applicable only in the absence of any agreement on this matter between the parties, andwithout prejudice to the application of the compulsory provisions of the member states concerning the levelof remuneration.


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dominant position. In United Brands21 the ECJ had to decide on the (un)fairness of several clauses

used by the applicant in contractual relations with its distributors.

Certain market players, such as small distributors and consumers, are particularly vulnerable

when entering into contractual relationships with large undertakings, as these are normally dominant

in relation to their counterpart in the conclusion of the contract. 22 The establishment of standards of

fairness in the legal context of the "central part" of competition law followed similar patterns of

legal thinking to that applied by the European legislator in the field of "peripheral parts" of

competition law, such as consumer law.

One example is the Directive on unfair terms in consumer contracts 23. According to article 3 of

this Directive a contractual term which has not been individually negotiated is unfair if, contrary tothe requirement of good faith, it causes a significant imbalance in the parties' rights and obligations

arising under the contract.

The restriction on contractual freedom is justified in the "central part" of competition law by the

objective fact of a dominant market position, and therefore has an absolute parameter. In contrast to

that the statutory provisions belonging to the "peripheral parts" of competition law, such as article 3

of the Directive on unfair terms in consumer contracts, restrict contractual freedom because of the

relatively unequal relation between the parties. Here the restriction can be justified by subjective

qualities of the parties, and the fact that large undertakings have a high level of experience and

therefore the counterpart is in a relatively weaker position and needs to be protected.

IV THE RIGHT TO CLAIM DAMAGES

Generally speaking EC law is effective directly on individuals. Therefore it has been a main

focus of the EC legislator and of the ECJ to make sure that individuals can enforce their rights under

EC law before the national courts. This idea of decentralisation has been the motivation for

facilitating direct enforcement in the "central part" of competition law.

The direct enforceability of essential provisions belonging to the "central part" of competition

law has led to the EU-wide approximation of an issue of contract law that traditionally is extremely

controversial: Among the legal systems of the EU member states there are traditionally different

approaches towards the right of a contract party to claim damages from the other party to the

contract.

21 Case 27/76 United Brands v Commission [1978] ECR 207.

22 Albertina Albors-Llorens "Consumer Law, Competition Law and the Europeanization of Private Law" inFabrizio Cafaggi (ed) The Institutional Framework of European Private Law (University Press, Oxford,2006) 245, 262.

23 Directive 93/13, OJ 1993 L 095/29.


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The House of Lords considered private litigation for breaches of competition law in Garden

Cottage Foods v The Milk Marketing Board. 24 The defendant in this case had excluded the plaintiff

from the number of distributors of butter. Even though the House of Lords denied injunctive relief,

the majority of the House of Lords affirmed that there would be the possibility of bringing a claim

alleging the infringement of article 81 or 82 ECT.25

In Gibbs Mew plc v Gemmell the Court of Appeal held that, as a party to an illegal contract

prohibited by article 81 ECT, the claimant was not entitled to a remedy in damages.26 In this case

the Court of Appeal unfortunately did not refer the case to the ECJ, as it recognised just the public

law approach of protecting competitors and consumers – the traditional goal of the rules belonging

to the "central part" of competition law. The Court of Appeal did not take into consideration the

protection of the weaker party of an agreement that infringes mandatory EC competition law.

According to this argumentation the parties to an agreement are the cause of the restriction on

competition and therefore cannot be regarded as victims entitled to claim damages.

In the landmark decision Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd

and Others27 the ECJ restricted the power of the national legislators in the field of damages.

According to the ECJ any national rule under which a party to an agreement which is in breach of

article 81(1) ECT is barred from claiming damages for loss caused by performance of that contract

on the sole ground that the claimant is a party to that contract, is contrary to article 81 (1) ECT. This

judgment is one example of the enormous contribution of the ECJ to the Europeanisation of the

general private law. The background of this case was that under English law a party to an illegal

agreement generally cannot claim damages from the other contracting party.

28

This principle had to be overridden in order to allow the private enforcement of the "central part" of competition law.

Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others approximated

English contract law to other legal systems in Europe.29 The ECJ applied the principle of direct

effect of EC law consistently and thus came to the conclusion that article 81 or 82 ECT and the

24 Case Garden Cottage Foods v The Milk Marketing Board [1984] AC 130.

25 On this case see eg Barry J Rodger and Angus MacCulloch Competition Law and Policy in the EC and UK(3 ed, Cavendish, London, 2004) 56.

26 Case Gibbs Mew plc v Gemmell [1998] EuLR 588; [1998] EWCA Civ 1262; [1999] 1 EGLR 43.

27 Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001] ECR

I-6297.

28 Case Gibbs Mew plc v Gemmell [1998] EuLR 588; see also Tinsley v Milligan [1994] 1 AC 340; see Barry JRodger and Angus MacCulloch Competition Law and Policy in the EC and UK (3 ed, Cavendish, London,2004) 57.

29 On the impact of this case on German law, see Wolfgang Weiss "Verbot wettbewerbsbeschränkenderMaßnahmen" in Christan Callies and Matthias Ruffert (eds) Das Verfassungsrecht der Europäischen Union (3 ed, Beck, München, 2007) § 81 EGV, No 149.


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provisions of secondary law can be used in national litigation between parties to an agreement.

These provisions can be used to claim damages based on the infringement of these provisions or as a

defence to a breach of contract claim.30 This decision of the ECJ has had a harmonising effect

within the member states as well as between the EU and the US. The interpretation of article 81

ECT contained in Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others

brought EC competition law in line with US anti-trust law. In fact the US Supreme Court had

previously held in Perma Life Mufflers Inc v International Parts Corporation31 that the

economically weaker party to an illegal anti-competitive agreement can claim damages from the

economically stronger party.

The application of the provisions belonging to the "central part" of competition law on the

relationship between private parties is significantly influencing the current private law of EU

member states and thus contributes to the Europeanisation of private law. This influence is

particularly strong due to the fact that the ECJ and the CFI have consistently followed the principle

of direct application.

V CONCLUSION: EUROPEANISATION OF PRIVATE LAW THROUGH CASE

LAW RATHER THAN STATUTORY LAW?

Generally speaking a very large amount of the statutory law contained in the acquis

communautaire is somehow focused on the establishment of equal market conditions for all market

players. Thus the avoidance of distortion of competition is the rationale behind almost all pieces of

EC legislation, no matter whether they address competition law directly ("central part" of

competition law) or they influence competition indirectly ("peripheral parts" of competition law).

Typical questions of contract law (such as price fixing, unfair contract terms, the right to claim

damages between parties of the contract) have been regulated by a large amount of statutory law

falling into the category of the "peripheral parts" of competition law (especially by consumer law).

The ECJ significantly contributed to the establishment of a common European standard within

these fields of contract law. This happened not only in the case law where statutory rules of contract

law, consumer law, and labour law had to be interpreted by the court. On various occasions where

the ECJ had to apply provisions of statutory law belonging to the "central part" of competition law,

it created new legal standards applicable beyond the limits of this "central part". The legal findings

contained in the latter case law are not always in line with the substance of the contract law

provisions belonging to the "peripheral part". The difference depends on the fact that the "central

30 Barry J Rodger and Angus MacCulloch Competition Law and Policy in the EC and UK (3 ed, Cavendish,London, 2004) 55.

31 Perma Life Mufflers Inc v International Parts Corporation (1968) 392 US 134.


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part" of competition law is focused primarily on the protection of public interest objectives

(especially the promotion and preservation of free competition).

In the political and scholarly discussion regarding the necessity of a faster and more effective

Europeanisation of European private law, in particular of the law of contracts, the question needs to

be raised whether it is useful to rely on the technique of harmonisation through statutory law.

As mentioned in this paper the European legislator has been very active recently, enacting a

large number of pieces of statutory law which address directly the harmonisation of central issues of

contract law. These pieces of legislation can be criticised as being too far from the reality of the

market. In fact many of these provisions have been imposed artificially by the EC legislator without

having been tested in any jurisdiction.

In the constitutional system of the EU it is possible to enact law that harmonises contract law

only if there is a legal basis in the ECT enabling the legislator to do so. If there is no legal basis, the

European legislator has no power to act and thus cannot set any measure of harmonisation of private

law. In contrast the ECJ has the legal capacity to contribute to the Europeanisation of private law

without any restrictions imposed by the constitutional framework of the EU, whenever there are

cases that need to be decided.

This difference between the statutory law approach and the case law approach is vital for the

scholarly and political debate on how the process of Europeanisation of private law should continue.

The pieces of statutory legislation dealing with contract law and other fields of private law often

lack the systematic approach necessary for the creation of a properly harmonised contract law. This

results from the fact that the legal basis contained in the treaty does not allow the legislator to

address issues not absolutely necessary for the economic and political goals defined in the ECT. At

the moment there is no legal basis in the ECT that could enable the European legislator to enact a

piece of legislation covering all fields of contract law systematically. This will change little even

after the entry into force of the Treaty of Lisbon.32

Should the constitutional framework of the EU enable the European legislator at some stage to

enact a code that systematically rules all parts of private law, many pieces of statutory law

belonging to the category of "peripheral part" of competition law will serve as tools for the

realisation of this project.33 In the debate related to the legal nature of EC law this fact is often used

as a strong argument: The existence of those pieces of legislation rather proves the setting of EC law

within the civil law than the common law tradition.

32 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the EuropeanCommunity, signed at Lisbon, 13 December 2007, OJ 2007 C 306/1; at the end of March of 2008 France,Slovenia, Hungary, Romania and Bulgaria had ratified the Treaty of Lisbon.

33 On the Common Frame of Reference (CFR) and the toolbox principle, see Tony Ridge "Contract Law –Will a Euro-Code oust English Law?" 31 Commw L Bull 53, 55 ss.


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As mentioned, the rules of the "peripheral parts" of contract law have been created with the goal

of protecting the weaker party of the contract such as the consumer. From the perspective of

competition law these "peripheral parts" are intended to harmonise the legal standing of the weaker

party of the contract in order to create equal market conditions. Therefore all EC provisions

harmonising the protection standards of weak market players (such as eg commercial agents) are

merely a by-product of the internal market.34 Harmonisation is necessary since different standards

of protection of the weaker party hinder the free movement of goods, the free movement of services

as well as the freedom of establishment, the free movement of persons including the free movement

of workers and the free movement of capital.

On the other hand the pieces of legislation that directly approach the various problems of

competition between businesses and that belong to the "central part" of competition law, offer fertile

soil for the cultivation of a harmonised private law, and especially contract law, through case law.

This phenomenon is definitely proof of the fact that EC law as such is not only part of the civil law

tradition, but also part of the common law world.

The strategy applied by the ECJ and the CFI of harmonising private law when interpreting

existing statutory law is preferable to harmonisation through legislation. The law is harmonised only

in the fields that are crucial from the perspective of the market players and thus require measures of

approximation. A superfluous harmonisation, such as the creation of an overall codification of

contract law, could therefore be avoided.35 In addition to these arguments it needs to be considered

that the ECJ has the ability to establish a systematic construction of contract law, as the court is not

restricted in its law making capacities by any legal basis contained in the ECT.A last question that needs to be raised is whether "regulatory competition" is really undesirable

for the process of Europeanisation of private law. During recent decades economic circumstances

and the lack of a full harmonisation of essential legal standards in the EU have forced member states

to compete with each other in the creation of legislation to attract and retain economic resources.

This phenomenon is widely known as "competition between jurisdictions" or "regulatory

competition".36 For instance the existing unequal standards of protection of particularly vulnerable

contract parties have lead to competitive advantages for member states with low protection

standards. Those member states generally attract and retain more economic resources than those

with a high level of protection. This phenomenon automatically forces the member states' legislators

to adjust their national legislation to the standards of those member states whose legislation is more

34 See Hannes Unberath and Angus Johnston "The double-headed approach of the ECJ concerning consumer protection" (2007) 44 CML Rev 1237, 1242.

35 On this issue see the critical analysis of the current attempts of harmonisation through statutory law, TonyRidge "Contract Law – Will a Euro-Code oust English Law?" 31 Comm L Bull 53, 56.

36 On this topic see eg Catherine Barnard and Simon Deakin "Market Access and Regulatory Competition" inJHH Weiler (ed) Jean Monnet Working Paper 9/01 www.jeanmonnetprogram.org/papers/01/012701.rtf.


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successful in the free competition between jurisdictions. The reason why regulatory competition can

be regarded as undesirable is the inherent risk of a race to the bottom of standards, a phenomenon

that is known from the law governing the incorporation of US companies, the so called "Delaware

effect".37

There is one essential positive side effect of regulatory competition that needs to be mentioned.

Regulatory competition helps to generate a large amount of case law necessary for the

Europeanisation of private law through the courts. Members of the business community that

compete with each other in the market often use the courtroom as a battlefield. In the proceedings

the parties often argue about legal divergences in the member states' jurisdictions that lead to

competitive disadvantages. If the Europeanisation of contract law proceeds predominantly on the

above mentioned "Common Law road" then regulatory competition will help to generate a sufficient

body of case law that will give the ECJ the chance to build up a European private law.

Through case law it will be possible to obtain a set of rules that has previously been tested by

market players and that were not imposed artificially on them by the Brussels legislator. This is the

key advantage of the "Common Law approach" in the Europeanisation of private law. It is therefore

arguable that the "civil law strategy" will lose much of its current relevance in the near future if the

ECJ continues its strong activity of private law harmonisation.

37 On this issue see for example Simon Deakin "Legal Diversity and Regulatory Competition: Which Modelfor Europe?" (2006) 12 European L J 440, 444.


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21

LEGAL EDUCATION R EFORM INAUSTRALIA AND THE IMPACT OFGLOBALISATION: A COMPARATIVEPERSPECTIVE Martin Vranken*

The emphasis on internationalisation of the Australian economy shows no signs of abating. This

state of affairs is not without repercussions for its legal system. Internationalisation has now also

started to affect legal education in Australia. This short article focuses on the proclaimed European

dimension of the Australian globalisation debate. Special attention is paid to the introduction of the

so-called "Melbourne model" in the aftermath of the Bologna Declaration. It would seem that policy

makers in both the northern and southern hemispheres have entered a brave new world the contours

of which remain imprecise.

Le processus d’internationalisation de l’économie australienne est en constante progression et nemanque pas d’influencer le système légal australien ainsi que la manière dont le droit est

aujourd’hui enseigné dans ce pays. Ce bref article s’intéresse aux conséquences inférées par la

mise en oeuvre en Australie de méthodes d’enseignement qui empruntent largement à celles qui sont

en vigueur en Europe. L’auteur analyse la portée de la méthode dite de « Melbourne », qui

directement inspirée des préceptes posés par la Déclaration de Bologne, a pour objectif affiché de

permettre une uniformisation des enseignements universitaires y compris celui du droit, afin de

permettre une plus grande mobilité des juristes australiens.

Au terme de son analyse, l’auteur sans remettre totalement en cause le bien-fondé de pareille

méthode, reste néanmoins réservé sur ses bénéfices à court terme dans la mesure où selon lui, elle

n’a pour seul objectif que de tendre vers une harmonisation des méthodes d’enseignement et non

pas vers leur véritable unification.

* PhD (Leuven), LLM (Yale), Associate Professor and Reader, Faculty of Law, University of Melbourne.This paper was completed in 2007. I would like to express my gratitude to Professors Othmar Vanachterand Danny Pieters for their insightful observations during my visit at the Catholic University of Leuven(Belgium) in July 2007.


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I INTRODUCTION

Comparativists face an uphill battle. The practical relevance of their discipline is not always

apparent. The need to proceed with such caution as to avoid stepping on culturally sensitive toes can

be demoralising at times. 1 Even so, legal systems may benefit greatly from the occasional

comparison with one another. This is particularly true when grappling with domestic law reform.

How else can one find out about international trends? How better to establish whether any proposed

reforms domestically go with or against the grain internationally? Knowledge of foreign law then is

an invaluable guide in assisting domestic law reform without, of course, ever dictating or controlling

it.2

The benefits of the comparative approach need not be restricted to substantive law. Rather theycan extend to the process of legal education itself. On 19 June 1999 representatives of (initially 29)

European governments signed a joint statement that has since become known as the Bologna

declaration. The stated objectives of the signatories are the establishment of "a European area of

higher education" and the promotion of "the European system of higher education" world-wide by

2010. 3 To this effect the various education ministers have committed to co-ordinate existing

national policies and, in particular, to adopt a system of easily readable and comparable degrees

based on two main cycles, undergraduate (bachelor) and graduate (master and/or doctorate).

Completion of the first cycle requires study for three years or more and is meant to provide an

appropriate level of qualification relevant to the European labour market. Access to the second cycle

is dependent on the successful completion of first cycle studies. Student mobility is to be promoted

further by the establishment of transferable credits for subjects undertaken.

In April 2006 the Australian federal government released its response to the Bologna declaration

by way of a discussion paper entitled The Bologna Process and Australia: Next Steps. The stated

purpose of the paper is to reflect on the significance of Bologna for Australia, including any possible

Australian responses to the creation of an integrated European higher education area. The paper

postulates that the Bologna process presents both opportunities and challenges for Australia's

relationship with Europe as well as with Asia. In particular, it expresses concern about the risk of

losing some of the current 32,000 enrolments by European students at Australian institutions to

"more attractive" destinations elsewhere. In this regard, the paper stresses the importance of

1 Most outspoken about the limits of the comparative method is Pierre Legrand "The Impossibility of LegalTransplants" (1997) 4 Maastricht Journal of European and Comparative Law 111; see also "European LegalSystems are not Converging" (1996) 45 ICLQ 52.

2 That is also what Otto Kahn Freund meant when he warned about the dangers of "transplantability" in hisclassic "On Uses and Misuses of Comparative Law" (1974) 37 MLR 1.

3 The full text of the Bologna declaration can be found at http://www.bologna-berlin2003.de.

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LEGAL EDUCATION R EFORM IN AUSTRALIA 23

developing an "effective multilateral dialogue with Australia's key Asian education partners about

future directions in higher education".4

In May 2006 the council of Australia's university presidents, the Australian Vice-Chancellors'

Committee (AVCC), published its own response to the government's discussion paper. 5The AVCC

acknowledges the importance of understanding the changes occurring in Europe and the need to

consider the implications for Australia. But the paper warns against assuming too readily that "full

compatibility with the Bologna Process is the only option". The Australian government then is

urged not to throw out the proverbial baby with the bathwater in that:6

Any engagement by Australia with Europe through the Bologna Process must not result in a diminution

of the diversity of the Australian university system … its collaboration and cooperation with countriesaround the world especially those in the Asia-Pacific region, nor in any approximation to a one-size fits

all approach.

The discussion below looks at the experience to date as regards legal education reform in both

Europe and Australia with special reference to the Catholic University of Leuven (Belgium) and the

University of Melbourne. Both tertiary institutions represent the author's former and current alma

mater . Both claim to have adopted a pro-active stance to legal education reform for purposes of the

twenty-first century.

II LEGAL EDUCATION REFORM IN EUROPE

Implementation of the Bologna "model" for higher education in Europe has started to affect

curriculum development in some 45 participating countries. Not surprisingly perhaps, especiallygiven the non-legally binding nature of the Bologna declaration itself, no uniform scheme has

emerged so far. In fact, some variations can be expected to continue to exist between countries and

even between individual universities within countries. Rather than adopting a tabula rasa approach,

which would have meant starting afresh completely, it appears that each educational institution is

making an attempt at revamping its pre-existing modus operandi as best as possible. A case in point

is the Catholic University of Leuven in Belgium.

Leuven is one of the traditional, established centres for higher education in continental Europe.

Founded in 1425, the roots of its University are squarely in medieval times. In the pre-Bologna era a

law degree at Leuven typically consisted of five years' study over two cycles. During a first period

of two years, the focus was on acquiring general background skills deemed necessary to succeed as

4 Australian Government, Department of Education, Science and Training, (2006) The Bologna Process and Australia: Next Steps (text available on http://www.dest.gov.au).

5 Australian Vice-Chancellors' Committee, (2006) AVCC Response to Discussion Paper on The BolognaProcess and Australia: Next Steps (text available on http://www.avcc.edu.au).

6 Ibid.

http://www.dest.gov.au/http://www.avcc.edu.au/http://www.avcc.edu.au/http://www.dest.gov.au/


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a law student. Subjects compulsorily undertaken during the first cycle ranged from philosophy,

psychology and sociology to logics and even economics. This broad focus on, in essence, non-law

subjects made perfect sense in the Belgian context. University entrance in that country is generally

open to anyone with high school qualifications. No special law-school admission test applies. In

these circumstances the early years of university study were meant to be more in the nature of

acclimatisation and intellectual leveling among students. At the end of this first cycle, a non-

professional degree of Candidate in Law (Kandidaat in de rechten/Candidat en droit ) was awarded.

It gave access to the second cycle, comprising three years of law study proper and dominated by

compulsory subjects but with some scope for studying electives towards the end of the degree. Upon

completion of this second cycle, the degree of Licentiate in Law ( Licentiaat in de rechten/ Licence

en droit ) was awarded.

At Leuven only a handful of students traditionally were encouraged to undertake further post-

graduate studies for a Master, let alone a Doctorate in law. Typically, students tended to go abroad

(usually to the UK or USA) for their Master's degree whereas doctoral studies were undertaken at

the home university under the direct supervision, effectively a form of tutelage, of a full professor in

the chosen area of specialisation.

Restructuring of the law degree in the wake of the Bologna declaration prima facie has resulted

in a reduction of the time required to obtain a professional law degree. The new Bachelor degree

( Bachelor in de rechten/ Bachelier en droit ) is henceforth obtained after only three years' study. That

may be one year longer than the old (non-professional) Candidate in Law degree, but it also is a full

year shorter than study for the old Licentiate in Law. A further two years of study now leads to thenew Master degree ( Meester in de rechten/Mâitre en droit ) being awarded.

In principle, a Bachelor degree suffices to enter the labour market for all but the traditional

"gown" professions at the bar or the bench. It can be speculated, though, that on-going competition

among law graduates will result in a Master degree de facto becoming the new professional

requirement. In any event, the contents of the new "Ba-Ma" programme continues to be fairly

prescriptive, especially in the Bachelor degree where only six out of 180 study points have been set

aside for electives - to be undertaken during the second year of study. The situation changes

somewhat in the Master degree where students must choose their subjects by reference to one out of

six majors. The first Bachelor-in-law degrees at Leuven were awarded in July 2007.

There exists a remarkable similarity between the list of actual subjects offered before and after

Bologna. In terms of their contents, however, a careful restructuring of all subjects on offer mayvery well result in the European dimension of each subject obtaining greater prominence henceforth.

Query, though, how the Leuven "translation" of the Bologna model is likely to fit with the situation

in neighbouring Holland where a Master degree can be obtained after just one additional year of

study. If, as some Belgian commentators suggest, the new degree structure fosters international

student mobility especially at the Master level, Leuven students may be tempted to undertake their

Master study in the Netherlands. These students thus effectively end up graduating one year ahead


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of their fellow students who elect to undertake all of their law study in Belgium! Only time can tell

how Belgian employers will respond.

III LEGAL EDUCATION REFORM IN AUSTRALIA

A Antecedents in Asia

The focus on a multi-cycle, undergraduate-graduate approach to education in the Bologna

declaration resembles somewhat the educational system in the USA where undergraduate college

attendance is followed by graduate professional training at university. The American JD programme

has become a direct source of reference for the efforts at legal education reform by several countries

in Asia.

Japan was the first Asian nation to move towards a graduate law school model. Under

discussion since 1999, enabling legislation was passed by the Diet in December 2002 and took

effect in 2004. The Japanese graduate model is non-exclusive: it co-exists with undergraduate legal

education based on European models in place for over a century. 7

A US style law school system is expected to commence in South Korea from 2008 onwards.

Another country contemplating the move to a JD system along American lines is Taiwan.8

B The "Melbourne Model"

The higher education environment in Australia is in a state of flux. Changes in the domestic

environment include a steady decline in public funding for student places, greater reliance on

student fees and more intense competition for the best students. Internationally, the emergence of aglobal market for higher education, in particular, has been identified as a further trigger for change. 9

In response to these evolving environmental factors, the University of Melbourne developed a

strategy known as "Growing Esteem".10 The so-called "Melbourne model" arguably constitutes its

most pivotal component.

The "Melbourne model" stands for curriculum reform aimed at aligning teaching at the

University of Melbourne with "the best of European and Asian practice and North American

7 Masahiko Omura, Satoru Osanai, Malcolm Smith "Japan's New Legal Education System: TowardsInternational Legal Education? (2006) 20 Journal of Japanese Law 39, 44.

8 Chang-fa Lo "Possible Reform for Legal Education in Taiwan: A Refined 'JD System'?" (2006) 1 AsianJournal of Comparative Law 1 art 7.

9 Peter McPhee The Melbourne Model: New Generation Undergraduate Degrees. Summary Statement ofPresentation at AAGE Graduate Recruitment Conference 2006 (text available on http://www.aage.com.au).Professor McPhee is vice-chancellor (academic) at the University of Melbourne.

10 See the University of Melbourne's own "Growing Esteem" website at http://growingesteem.unimelb.edu.au/index.html.

http://www.aage.com.au/http://growingesteem.unimelb.edu.au/index.htmlhttp://growingesteem.unimelb.edu.au/index.htmlhttp://growingesteem.unimelb.edu.au/index.htmlhttp://growingesteem.unimelb.edu.au/index.htmlhttp://www.aage.com.au/


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traditions".11 From 2008 onwards six "new generation" undergraduate ("bachelor") degrees, each

three years in duration, are created in the fields of arts, bioscience, commerce, environments, music

and science. Completion of an undergraduate degree at a sufficiently high level of distinction

becomes the stepping stone for a further three year period of professional study at the graduate

("master") level. Nine "new generation" degrees cover such wide-ranging yet hands-on fields as

Master of Animal Science, Master of Architecture, Master of Forest Science, Master of Nursing,

Master of Property and Construction, Master of Public Policy and Management, Master of Social

Work, Master of Teaching, and Master of Urban Horticulture. The tenth "new generation"

professional graduate degree is the Juris Doctor in law.

1 Access to law study under the Melbourne model

From 2008 the new JD becomes the sole option for students wishing to study towards a law

degree at the University of Melbourne. Admission depends on the applicant's results in a newly

established law school admission test. In the past, access to university study – including law –

depended primarily on exam results achieved during the final years of high school. While

interpretation of the test scores is a matter for the Melbourne law school itself, the new admission

test is the same LSAT (Law School Admission Test) required for those seeking to be admitted to

law study in North America. It may be recalled that the LSAT is administered by the LSAC (Law

School Admission Council), a non-profit organisation whose members comprise some 200 law

schools in the U S and Canada. Aspiring JD students at the University of Melbourne are referred to

the web site of the LSAC.12 They are expected to register for the LSAT (an application fee applies)

and sit the test, in Melbourne or elsewhere, before they lodge their application for admission to theMelbourne JD. In addition to LSAT scores, a newly established Melbourne law school admission

committee will take into account each applicant's grade point average on the basis of all tertiary

study undertaken, whether at the University of Melbourne or elsewhere, with all subjects weighted

independently of year level or discipline. Finally, as the new type of law student is no longer simply

a high school leaver, all applicants are required to provide a statement about their personal

circumstances, including any work and life experience.

For the time being, the University of Melbourne is the only academic institution in the country

to go down the above road. Other universities within the Melbourne region and elsewhere in the

country have adopted a wait-and-see approach. As a result high school graduates wishing to study

law continue to have plenty of opportunities in the immediate future. Of course, that in turn means

that Melbourne risks losing out, unless it somehow can persuade 18-year olds to postpone their lawstudies by a minimum of three years. To this end the brightest school leavers are being offered a

11 This quote has been taken from the web site of the University of Melbourne at http://www.futurestudents.unimelb.edu.au/courses/melbmodel/.

12 LSAC.org Homepage.

http://www.futurestudents.unimelb.edu.au/courses/melbmodel/http://www.futurestudents.unimelb.edu.au/courses/melbmodel/http://www.futurestudents.unimelb.edu.au/courses/melbmodel/http://www.futurestudents.unimelb.edu.au/courses/melbmodel/


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guaranteed place of sorts in the JD programme early, provided they do well – required is a minimum

average of Second Class Honours or H2A – in their undergraduate university degree.

2 Structure of the new JD degree

The structure of the new law degree requires students to undertake 24 subjects comprising 17

compulsory and seven optional subjects. The list of compulsory subjects reflects the results of an

earlier review followed by a decision to semesterise the LLB curriculum so as to bring the LLB in

line with a former, small-scale (in term of student numbers) graduate law degree (also known, with

the benefit of hindsight somewhat confusingly, as JD) that briefly operated side-by-side with the

undergraduate law degree at Melbourne.

The new JD programme starts with the introductory subject of Legal Method and Reasoning and

this is followed by Principles of Public Law (taught separately from the later year subjects of

Constitutional Law and Administrative Law), Obligations (taught separately from Torts and

Contracts), Dispute Resolution (again, taught separately from Remedies), Criminal Law and

Procedure, Property, Corporations Law, Legal Theory, Trusts, Evidence and Proof, Legal Ethics and

Legal Research. All, except for Legal Method and Reasoning which is to be taught intensively at the

start of the JD degree, continue to be one semester in length. The benefits of semesterisation, in

allowing for flexibility in international exchanges for both incoming and outbound students, are thus

preserved.

The optional programme has been organised around a series of subject groupings that are meant

to assist students in deciding whether to pursue depth and/or breadth in their study of electives. The

official grouping headings are Asian law, corporate and commercial law, criminal law and justice,

dispute resolution, indigenous issues in law, intellectual property, media and information technology

law, interdisciplinary law, international and comparative law, labour law, law and the family, legal

theory, land and resources law, public law and taxation law. None are meant to be mutually

exclusive.

IV IN CONCLUSION

Australian students love to travel overseas and law students are no exception. International

exchanges with academic institutions in Asia, Europe and the USA are increasingly popular

opportunities to spend a semester or so away. Once graduated and having entered the workforce,

there may be less occasion for this to occur. Some of the larger law firms (Mallesons Stephen

Jaques or Minter Ellison, for instance) have offices outside of Australia, and self-proclaimed globallaw firms such as Clifford Chance or Linklaters, while they may have no offices in

revue juridique polynesienne volume 14

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