Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth
~ Robert Frost, The Road Not Taken
We often do not know, when travelling one road, what challenges and adventures another road would have brought. If we could travel both, we might learn about the similarities and differences between the two, and we might learn more about what makes the roads themselves special.
Sometimes it is possible to travel both roads. In law, a stellar example is the case where Dutch (or really any national) courts are called to enforce the European State aid rules. One legal norm – the standstill obligation laid down in Article 108(3) TFEU – must be applied uniformly in administrative, fiscal and civil proceedings. Along different roads, if you will. These proceedings each obey a different set of rules, having been designed (or developed over time) to suit different needs. For instance, at least in theory, the parties in civil proceedings are considered autonomous equals, whereas the administrative procedural law is tuned to take account of the powerful role of the administration that unilaterally and bindingly determines the legal position of individuals. On paper, it could be expected that this legal context will make a huge difference for the adjudication and outcome of State aid cases before the different courts.
Does it though?
For one, it shouldn’t, really. This is partly because of the European origin of the State aid rules. European law demands that State aid law is applied effectively, uniformly and in accordance with the European (case) law regardless of the competent court. Still, within the boundaries of the effectiveness and equivalence principles, EU law does not demand that all possible differences are smoothed over.
More importantly, the applicable legal system shouldn’t really matter because in typical State aid cases there is often no convincing reason that supports such a difference under Dutch law. Generally, the parties are alike: a competitor ‘sues’ an organ of the State for having granted illegal State aid. The legal and factual situation of the applicant is alike: a third party who had little or no influence over a State aid measure and is negatively affected by it. The intended outcome is alike (in theory): paid sums must be recovered and any further payments must be prevented or stopped.
Looking at over nine years of Dutch State aid case law, it becomes clear that in some respects, differences between courts applying State aid law remain small. The courts have different rules, instruments, cultures, expectations and precedents to work with, but they tend to find similar solutions to similar problems. And it seems that they do this relatively independently of each other. In other words: differences between the legal systems in the enforcement of State aid law are not so fundamental as they might have been.
Differences that do remain are noteworthy because they reveal what really defines the legal systems at the moment. For instance: tellingly, administrative courts are far more prone to provide legal protection against the State than the civil courts. This is not the result of a different applicable set of procedural rules, but presumably of a different culture or mindset, or perceived task of the court.
What does this mean? When we can travel several roads at once – or study the enforcement of a single legal norm in public law and private law – it becomes possible to study what really defines them and what really sets them apart. It becomes possible to dig to the essence of the legal systems themselves, and explain where differences must exist and where they are unnecessary. This is, of course, an ambition that extends well beyond a blog post. It will be open for discussion at one of the workshops on Wednesday, 21 January 2015 at Leiden University.