 Fy fawr, amser, a fawr gweithio i'r Llyfrgell MacKenzie. Felly mae'r Llyfrgell MacKenzie yn ymddiol â'r ysgol Llyfrgell MacKenzie, y cyfnodd cyfnodd y Llyfrgell Scotiaeth, sy'n cyd-ddof yn ysgrifennu yw'r ysgrifennu yn ysgrifennu a ddim y blynyddau ar gyfer y lluniau mewn Ysgrifiad, a Ysgrifiad a'r Ysgrifiad yn yn ôl i'r Llyfrgell ar y Llyfrgell Dynol. Rydym yn gweld yn fflaenio'r adnodd yma yma am Ymwneud Ymwneud Fryd. I should mention that this lecture, as the previous ones, was sponsored by German and Sterling, most generously to whom we are grateful. It is particularly appropriate that this year's lecture is going to be given by Alan Dashwood because the creation of these lectures was actually a Dashwood initiative, one of many when he was Professor. I'm now going to welcome Alan Dashwood, whom you know probably rather better than I do, although I have known him for rather longer, I imagine than any of you have, pretty well. He really has been around and he is a European. He's worked, as some of you will know, in Brussels for years. He's been a professor in Leicester, a professor here, and I come across him at the law court, where he appears on behalf of the British government and others, and endeavours to persuade me, which of course he always succeeds in doing, and my colleagues, which he occasionally persuades in doing of the virtues of whoever happens to be his client at the time. But when he appears, he is always greeted in that traditional friendly fashion, which we have at the court, with visiting advocates by saying, by inviting them to meet the judges beforehand, and you think, well, this is rather nice of them, and you turn up, and the one thing they say to you is, you're not going to be more than 20 minutes. On this particular occasion, you'll be delighted to hear that that particular rule is not in play, and Alan is allowed to talk for more than 20 minutes, which will delight us all. Alan Dashwood. Thank you, Conrad, for the very kind introduction. It's an enormous privilege to have been invited to contribute to this lecture series, which honours Lord MacKenzie Stewart, and a great pleasure that I echo John Spencer in this, that Amadrid Dudi MacKenzie Stewart, his daughters, and Marianna, his granddaughter, are in the audience this evening. I got to know Jack in the late 1970s when I went to the Court of Justice in Luxembourg as the legal secretary of his colleague Jean-Pierre Warner. He was advocate general. Then, as always, Jack was generous with his time, his knowledge, and his friendship. He was one of those men of immense distinction who not only don't assert their superiority over others, but are simply unaware of it. On the bench, he had the robust judicial manners that counsel from this country expect. Off it, he was the soul of courtesy. He was that relative rarity, a practical lawyer, and a practicing intellectual. When I came to Cambridge, I had a special cause to be grateful to him, because as a graduate and honorary fellow of Sydney Sussex, he persuaded the master to offer me a fellowship at a time when professorial fellows coming from outside Cambridge were not a highly sought-after commodity. As long as he remained well enough, he'd loyally supported my activities as the then director of cells and the activities of other colleagues in EU law. This is also an occasion to remember Anne, Lady MacKenzie Stewart, a formidable EU lawyer in her own right, who was in every sense a partner to Jack in his public and private life and who carried on his work after his death. This lecture, as you can see, has two different titles. The title that I originally proposed was 40 Years an EU Lawyer, Apologia Pro Vita Syrra. However, I was persuaded to give it something more demotic. So, until last week when I received the notice advertising this event, I had thought that I was writing a lecture on the topic EU law, a 40-year journey and still motoring. So, from the blessed Cardinal Newman to Jeremy Clarkson, though I prefer the former association, I'm happy with either title because they both convey the essence of what I'm proposing to do this evening. This is not going to be an account of my picker-esque career in EU law. I offer it rather as an apologia, a justification of a career choice made in relative ignorance, but with great good fortune. My first year of teaching EU law at the University of Wales, Aberystwyth, was the academic year 1970-71, hence my 40-year perspective. I'm going to address a series of themes, which I shall announce as I reach them. They are themes that I hope will bring out the challenge and the fascination that I found in EU law. My first theme is the ideological perspective within which EU law functions. Most of the substance of EU law is black-letter law of the deepest hue, and it's applied with all the rigour of the municipal legal system, which in a sense it is. But at the same time the legal order has a wider perspective of political aims and values, which are clear and persistent. The combination of hard law and political aspiration is what first engaged me and has held me ever since. The first of the European Community is the European Code and Steel Community, or ECSC, had a limited scope but breathtaking ambition. In the words of the final recital of the preamble to the Treaty of Paris, on which the community was founded, this was to create by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts, and to lay the foundations for institutions which will give direction to a destiny hence forward shared. As I've often said, it was a wonderfully intelligent idea to bring together the warrior nations of Europe and their habitual victims. Under a set of constitution-like arrangements that would make it unthinkable for them ever to go to war with each other again. The project has been so comprehensively successful that at this time of day it's hard to appreciate the enormity of the achievement and the imagination and generosity of the politicians who brought it about. Men like Jack Mackenzie Stewart, who was soldiers in the Second World War, needed no reminding. In the speech that he made when accepting the Charlemagne Prize, he spoke movingly of having been inspired in his career as an EU lawyer by his memory as a young engineering officer of the ruins to which the roar had been reduced by Allied bombing. My inspiration they were to further remove was similar. I was still a small child when the Second World War ended, but I grew up under a shadow. And although this was in South Africa, my father's family had been closely touched by European wars, as were many others in far-flung places. The eldest son was killed in the First World War, and the youngest, who was my father, was killed in the Second. If the EU was part of the solution to geopolitical challenge in the earlier 20th century, so it again proved to be at the end of the century when the Soviet Union collapsed. Events in former Yugoslavia showed what a threat this radical change in the security situation might pose to stability in Europe. I was in no doubt that the countries of Central and Eastern Europe had to be welcomed into the Union with any minimal preparation in spite of the problems that was bound to cause. I was and remain confident that membership at the Union will strengthen the commitment to democratic institutions and the rule of law in those countries, as it did in member states that had earlier acceded to the Union. Indeed, I would go further and suggest that peer group pressures within the EU institutions has tended to promote best practice in social policy and in the protection of human rights, which has brought improvements even in old established democracies like the United Kingdom. I doubt whether anti-discrimination legislation and employment legislation in this country would be anywhere near as advanced if it weren't for measures like the directive on equal treatment of men and women in employment or the working time directive. All of this is not to suggest that I'm a starry-eyed urophile, though I can test that back in 1975 I was. A Belgian MEP, who is a strong euro-federalist, once called me injurist illustre mé perfide. Being taught illustrious but perfidious is perhaps the best compliment that's ever been paid me. What I like so much about the EU is how well it is designed to cater for a political reality which my MEP critic would wish to deny. That is, the inescapable fact that the member states have refused to accept the dictates of euro-federalism as they did those of Marxism and quietly wither away. If anything, with the possible exception of Belgium, they are more self-conscious and more self-assertive than they were in 1971. The genius of the legal order of the union is that it preserves the national identities of the member states and their essential state functions while enabling them to pursue more effectively objectives that they have in common by accepting the discipline of acting together through common institutions on the basis of binding rules and under the control of the court of justice. As many of you know, my answer to the question what kind of political animal is the European Union is that it's a new species which I describe as a constitutional order of states or in moments when I feel bold enough to use the F word, a federation of sovereign states. Though I'm on record as being critical of some aspects of the Lisbon Treaty and of the recent case law, my admiration for this most ingeniously paradoxical of legal orders remains undimmed. And I intend to go on studying it and trying in the small ways an individual can to make it work better as long as I'm able. Moving on from ideology to the treaty and union structure. Back in 1971 there were three European communities but no European Union. The ECSC had been established in 1952 while the European Economic Community or EEC and European Atomic Energy Community or URATM followed in 1958. As their names imply, the ECSC and URATM had a specifically sectoral remit respectively production and marketing of carbon steel and the peaceful use of nuclear energy. The EEC was given the much wider objective of the creation of a general common market based on a customs union and the pre-movement of goods, persons, services and capital between the member states. As you know, the EEC would provide the framework for the great bulk of community activity extending well beyond the economic sphere which led to its change of name in 1993 to the European Community or EC. Each of the three communities was based on its own treaty, the ECSC on the Treaty of Paris and the EC, as I shall call it from now on, and URATM on the two treaties of Rome which were freestanding international agreements and each had its own legal personality. So in principle they were legally distinct entities but they were served by a common set of institutions, one European Parliament or Assembly as it was then called, one council, one commission and one court to do the business of all three communities. The structure of today's European union looks very different. The ECSC no longer exists. It died from natural causes in 2002. The Treaty of Paris had been concluded for a fixed period of 50 years and by 2002 there was a consensus that carbon steel matters could be managed conveniently within the EC framework. More dramatic is the disappearance in a formal sense of the EC which has been replaced and succeeded by the union. URATM continues as itself in a puzzling relationship of semi-detachment from the union. The intermediate step between then and now was the creation of the European Union by the Treaty on the European Union or TEU which came into force in November 1993. For many of the time the union was, to borrow from WV8, a rough beast that slouched towards Maastricht to be born. So dissatisfied with the authors of the TEU with their handiwork that they fixed to rendezvous in 1997 to try and do better. The union was the child of necessity. The Member States were agreed that two policy areas, those relating to foreign and security policy and to justice and home affairs, which had previously been a subject of quite intensive intergovernmental cooperation, should be brought within the single institutional framework. Most Member States, however, weren't willing that the decision making procedures of the EC Treaty should apply to those policy areas in the normal way, and neither should the constitutional principles of the community legal order, which had been elaborated by the Court of Justice, in its case rule. Indeed, so strong was the suspicion that the Court would find a way of communitarising these new areas of common action that it was decided to exclude its jurisdiction completely. How was this to be achieved in treaty terms? One possible solution would have been for the common foreign security policy, or CFSP, and cooperation in the fields of justice and home affairs of JHA, I'm sorry about all these acronyms, for those to be incorporated into the EC Treaty, subject to special institutional and procedural arrangements, which would be spelt out in the amending provisions. The Dutch government, which oversaw the final phase of the negotiations when it took over the rotating presidency in the second half of 1991, made a last ditch effort to salvage that approach, but in vain. Other Member States wanted the exclusion of the new areas of competence from the community legal order. They wanted that to be given formal expression in the treaty structure. The alternative solution, which I believe was dreamed up by advisors of the Luxembourg presidency in the first half of 1991, involved conferring competence with CFSP and JHA upon a new entity, the European Union, which would have direct responsibility for action in these areas, organised on the basis of provisions contained respectively in Titles 5 and Titles 6 of the TEU. The union's relationship with the European communities was less clearly defined. The communities retained their distinct legal identities, but were linked more firmly to each other and at the same time to the union, not only by the single institutional framework, but also by common procedures for the amendment of their founding treaties and for the accession of new Member States. And by an express commitment in the then article 6 of the TEU to a common set of basic values under the protection of fundamental rights. There were broadly two approaches to understanding that relationship, both of which may be illustrated by an architectural image. One approach was to regard the union simply as a mechanism to enable institutions belonging to the communities to be borrowed for the purpose of pursuing the limited objectives of Titles 5 and Titles 6 of the TEU. Taking that approach, it wouldn't have been correct to refer to EU institutions or to use the term EU law as a general description of the whole range of legal provisions contained in or derived from the treaties. The image to illustrate that understanding of the relationship would be of the union as a kind of lean to propped up by the solid structure of the community, which had been constructed in order to accommodate the CFSP and JHA on a temporary basis. The other approach was to regard the union as an overarching, if lightly structured legal order, incorporating the communities together with the CFSP and JHA as sub-orders. The image to illustrate this approach is the familiar one of a Greek portico with three pillars linked by a pediment, though I've always thought a truer image would be a Byzantine portico with pillars of different sizes, a solid thick one in the middle representing the communities as the first pillar, and thin wiggly ones on either side representing the CFSP and JHA as respectively the second and third pillars. I'm in no doubt that the latter understanding of the pre-Lispan union structure was the right one. This seems to me to follow ineluctably from the fact that community objectives such as the creation of an area without internal frontiers, the strengthening of economic and social cohesion, and the establishment of economic and monetary union were mentioned in article 2 of the TEU as being objectives of the union. And also from the statement in article 3, first paragraph, that the union shall be served by a single institutional framework. I'm sure that was the correct way of looking at the union, though I suspect the commission always had a hankering for the former conception of the union as a ramshackle lean too. They have certainly risen to the bait in legal proceedings when I've teased them by referring to the union in its community persona. Future generations of law teachers will be thankful that they no longer have to explain the difference between the union and the community to their students, though the treaty and union structure in the post-Lispan era have their complexities. I should just mention the abortive treaty establishing a constitution for Europe. In drafting the treaty, the Convention on the Future of Europe opted for the model of a single foundational instrument incorporating all of the union's primary law, both institutional and substantive. The TEU and the EC Treaty would have been repealed along with all amending and accession treaties. This was one of the fundamental errors made by the Convention because it meant the great bock of the substantive law contained in the EC Treaty, including on the internal market, would have to be re-ratified. The other error was to call the text they were drafting a constitution, making it easy for those of a urophobic disposition to present the union as an entity with statehood in its DNA. Such political foolishness can only be explained by the frenzy of enthusiasm that sometimes grips the European elite when they gather inside their bubble. I've been gripped by it myself. I remember how shocked we were in Brussels by the problems encountered in securing the ratification of the TEU. The treaty negotiations had been carried along by the euphoria of the successful implementation of the single market programme. We failed to notice that this was a purely bureaucratic euphoria. Back to Lisbon. Under the new dispensation, the TEU and the EC Treaty, renamed Treaty on the Functioning of the European Union, or TFEU, remain as separate legal instruments, though the relationship between them and hence the union structure has been radically altered. The European Union is explicitly recognised by Article 1 3 paragraph of the TEU as being founded on the present treaty and on the TFEU, which are stated to have the same legal value. And there's a parallel provision in Article 1 paragraph 2 of the TFEU. It's further provided by Article 1 3 paragraph of the TFEU that the union shall replace and succeed the community, and all references to the community throughout the TFEU have been replaced by references to the union. While the various indications of the TEU as to the primacy of the first pillar have similarly been eliminated. So unlike the former EC Treaty, the TFEU will no longer in itself amount to the constitutional charter of a legally distinct entity. That charter is now to be found in the two treaties redesigned as complementary instruments of equal status, fulfilling different functions in setting forth the primary law of the union. The evident intention is to bring together in the TEU the core constitutional principles that define the essential nature of the EU. While consigning to the TFEU the legal basis for concrete policies as well as more detailed institutional procedural and financial provisions. And at this end there has been an extensive reallocation of subject matter between treaties. However, the symmetry of a new treaty design is somewhat compromised by the retention in the TEU of a Title 5 containing in its Chapter 1 general provisions on the union's external action and in its Chapter 2 specific provisions relating to the CFSP, including a section on the common security defence policy. The explanation for keeping the CFSP within the TEU isolated from the legal basis for action by the union in other areas of substantive policy lies presumably in the desire to emphasise that the competence of the union in this domain is different in kind from the competences defined by Title 1 of the TFEU. The continuing specificity of the CFSP is given expression moreover in institutional and procedural arrangements that will remain strongly differentiated from those applicable under the treaties generally. On the other hand, police and judicial cooperation in criminal matters which would be left in the third pillar when other matters were transferred to the first pillar by the Treaty of Amsterdam were incorporated into the title of the TFEU relating to the area of freedom, security and justice. How should we characterise this new structure? A case could be made for the view that the three pillars have become two. That used to be my view but I'm now convinced that we should abandon pillar talk. The language of the Lisbon Treaty indicates that its authors intended to establish an integral union but one within which the particularity of the CFSP would be preserved. The question that's interesting legally rather than architecturally is to what extent the constitutional principles that were developed by the Court of Justice in cases arising under the community treaties now apply across the board including to the CFSP. That's a question on which I could give a whole lecture and maybe a series. Surprise it to say that I'm very clear that there's no room for any principle that isn't fully consistent with the particular character of the CFSP and more especially with the sole responsibility of each member state for its national security, which is now explicitly acknowledged by article 4 paragraph 2 of the TFEU. That would apply for instance to the rules that give rise to exclusive union competence in certain circumstances. I agree with Paul Craig where he writes in his book on the Lisbon Treaty that the substance of the CFSP simply does not accord with exclusive EU competence. I could go on but I mustn't because there are other important matters I'd like to address. The next one is the enlargement of the union's membership. In 1971 there was still the original six member states. Spain and Portugal were in the grip of slurotic dictatorships. Greece had recently succumbed to the colonels coup. Half of continental Europe were still client states of the Soviet Union. The story of how and why the six became nine, then 10, then 12, then 15, then 25 and finally 27 is for another occasion. As I indicated earlier the enlargement process seemed to me the inevitable and right reaction to a series of global economic and political challenges. And it isn't complete. I once described the EU as an antidote to European history. There's history still being made in the Balkans and the antidote will be needed there. I felt I had to refer to enlargement because it's such an enormous change since 1971, though its legal relevance may not seem obvious. Of course enlargement has vastly increased the range of legal traditions that interact with EU law. But the new arrivals seem to me to have had little discernible impact on the development of the legal order. I suspect that it's because the growth of the legal order in its early years was so prodigious. French and German public law had a great influence in those formative years. In particular they provided the source for the principles that shaped the system of legal accountability of the European institutions, including many of the most familiar general principles of law such as proportionality and the protection of legitimate expectations. Community law, as we then thought of it, already had its own well-formed character at the time of the United Kingdom's accession in 1973. I remember that JP Warner was proud of having seized the opportunity in the metric case, which was about commission procedure in competition matters, to feed in the principle or die outer end partain, the right to adhere it, though of course the rights of the defence is also a familiar doctrine across the channel. Perhaps the clearest example of common law influence was the change in the style of European court judgments, from the synergistic style of the French courts to the more discursive common law style. By the time of the latest arrivals the legal order was relatively mature that it was hard for any individual tradition to make a similar impact. Though if anyone in the audience has examples I'd be most interested. Another issue is how judges and practitioners, law teachers and law students in exceeding countries learn to navigate in the new world of EU law. There always has to be a process of education but I think this has become easier over the years because EU law has been more studied and more written about how people are eager to lay on courses and conferences. When I started teaching EU law there were no textbooks in English, no European court reports of course, though we did have the commercial series, the common market law reports and were very grateful for them. And there was the London Lighting Conference which still continues. I remember there was considerable anxiety in 1971 and throughout the pre-accession period as to how courts and legal practitioners and university teachers who'd grown up in the common law tradition would cope with a system which it was said rested upon civil law concepts and principles. In the event we didn't have worried the London bar and London solicitors firms were soon and have remained in the forefront of European legal practice. Even before accession they were specialised courted on community law in several British universities and after accession many of these became compulsory. They would have to be said that the grander the institution the later this development tended to happen. As for the courts, Lord Denning may have used dramatic language to describe the incoming tide of EU law that unlike in France and in Germany there has never been an explicit refusal by one of the higher courts in this country to acknowledge the primacy of EU law and to accept the authority of rulings of the court of justice. There's a variety of reasons for this smooth transition. Not least among them was the educational effort made by Jack McKenzie Stewart and Jean-Pierre Warner and continued by their successes at the ECJ, hosting judicial visits to Luxembourg, attending conferences, lecturing and publishing. But the main reason I believe was an unexpected cultural affinity. Our common law tradition turned out to be more of a help than a hindrance. So much of EU law, especially in the early period before the union began churning out legislation, was judge made. The judges and advocates general in Luxembourg were compelled by the need to create a fully functional legal order to behave very much like common law judges. Like Monsieur Jardin, they spoke prose, or I should prefer to call it poetry, without knowing it. EU law, EU cases may have peculiar names and these are becoming more polysylabic as the union expands, but EU lawyers use them in very much the same way as common lawyers use the decisions of our superior courts. If there's a difference, it would perhaps lie in a tendency to read passages in ECJ judgments as if they were legislative texts rather than as steps in reasoning towards a decision on a particular set of facts. But essentially, those who have mastered the techniques of the common law are likely to flourish as EU lawyers. Next, the scope of EU law. Over the past 40 years, there has been huge expansion of the range of matters governed directly or indirectly by the law derived from the European treaties. When I started, it was still possible to know the whole of EU law, it certainly isn't now. In 1971, the essential task of the then community was the establishment of the common market, comprising a customs union supplemented by liberalisation of the factors of production, hence the classic for freedoms, free movement of goods, persons, services and capital. There was machinery to prevent free competition from being restricted or distorted and there was special provision for the organisation of the agricultural sector where it was believed a free market wasn't practicable. So how did the law of the common market appear in 1971? Great strides had already been made in establishing an effective competition policy. This was the area of substantive EC law that seemed to me the most interesting at the time and it was the subject of my earliest publications in common market law review. Another well-developed field was the common agricultural policy on which I also published. A massive legislation had been adopted during the later 1960s, establishing common organisations of the market in the main agricultural products. There had also been important legislation to facilitate the free movement of workers, including elaborate rules to protect their social security entitlements when they took a job in another member state. However, as to the other freedoms, the picture looked less rosy. In theory, the common market should have been completed by 1970 when the 12 year transitional period provided for by the EC Treaty came to an end. The most direct and blatant obstacles to free movement, customs duties and quotas in trade between member states had indeed been abolished, but there remained a massive indirect obstacles resulting from disparities between member states legislation which had the effect sometimes deliberate of protecting domestic businesses and their workers against competition. The treaty provided a legal basis, now Article 115 of the TFP view, with the harmonisation or approximation, to use the technical term, of member states law regulations or administrative practices affecting the establishment or functioning of the common market. But the legislation could only be adopted by the council acting unanimously. That provided too great an opportunity for member states to resist change, often in the genuine though misguided belief that their national standards were the best and only way of protecting consumers of goods and services. The Court of Justice came to the rescue. Already in the 1960s, there had been cases in which charges having the equivalent effect to customs duties, such as the Belgian Levy on imported diamonds that was used to finance a social fund for workers in the diamond industry, had been held to infringe the directly effective prohibition imposed by the treaty. Through the 1970s and early 1980s, a major focus of interest for EC lawyers was the steady accumulation of case law on the direct effect of the treaty prohibition against national measures having equivalent effect to quantitative restrictions or operating as impediments to the free movement of workers, of the self-employed and of service providers. There isn't time to mention the leading cases individually, but I shall make an exception for Cassie Stedigial, decided in 1979 in which a German requirement that fruit liqueurs have a minimum alcohol content was found to be incompatible with the treaty. The justification the German authorities put forward for this rule amounted to claiming that strong drinks are less dangerous than weak drinks. This met with unsurprising scepticism. Cassie established that member states couldn't insist upon compliance with their own product standards by imported products which had been manufactured and marketed in compliance with the standards of the member state of origin. Not that is unless the member state of importation could demonstrate to the satisfaction of the court that its domestic standards were necessary and proportional to the objective of protecting certain non-economic public interests. I can't overemphasise the importance of Cassie's and all the rest of the case law on freedom of movement which showed that without solid justification the game was up for national measures having a protectionist object or effect. It's hard to believe that if the court hadn't shown such determined boldness the internal market project which has proved the catalyst for so many other developments could have been launched let alone completed successfully. I attribute the expansion of EU competences from the 1980s onwards to far beyond the central mechanism of the common market mainly to three things. First, the subtleness of the common market concept itself. This was understood as covering not merely free movement and competition but also the so-called flanking policies that were liable to interact with the market such as policies on regional assistance research and the environment as well as social policy. Embryonic developments, often based on subsidiary powers created by the council under the provision that has become Article 352 TFEU, were later consolidated by treaty amendments creating specific legal bases for action by the union in these areas. Second factor is the separation of EU competences, sorry, a second factor in the expansion of EU competences was one I've just mentioned, the detailed legislative programme for the unification of the market which was launched by a commission of white paper in March 1985 under the presidency of Jacques Delors and was piloted until he was sacked as a UK commissioner. By Margaret Thatcher for having gone too thoroughly native in Brussels by Lord Cofield. The programme focused on the removal through harmonising legislation of the remaining barriers to free movement which had survived the course onslaught because they were thought capable of being justified in some way. And it was completed more or less and to pretty general though not universal satisfaction by the deadline of the 31st December 2002 which had been set by the white paper. The influence of the programme has been broadly of two kinds. In the first place it brought about a profound change in the legislative practice of the council which got into the habit of taking decisions by qualified majority vote or QMV. The council had been empowered to act by QMV thanks to a new legal basis for internal market approximation measures now found in article 114 of the TFU. This had been inserted into the EC Treaty by the oddly named single European Act, an amending treaty which came into force in July 1987. The surprise was that the council actually took advantage of this power because up until then its habit had been nearly always to seek consensus even where QMV was permitted by the treaty. When I first joined the legal service the majority decisions were such a novelty that we used to keep a tally. By the time I lept at the end of 1994 we had given up because voting had become routine. This change of practice had an effect across the board and helped to explain the proliferation of legislation in the past couple of decades. Maybe some might think it wasn't such a good thing after all. The other consequence of the internal market programme, no less momentous and more directly related to its subject matter was the revival of the project for economic and monetary union. The mechanism for the introduction of a single currency was inserted into the EC Treaty by the TEU and as everyone knows this led to a surprisingly short time to the introduction of the euro in 12 member states on 1 January 1999. We may now be on the verge of the next phase in this development with the introduction of some form of economic government for the member states participating in the euro. The third factor in the expansion of the European Union competence was events in the wider world. These explain what would have been unimaginable in 1971 and indeed in 1981 namely that the union should acquire competence and become active in the spheres of foreign and security policy and criminal law and police powers. The uncertainties of the post-Soviet era underlined the importance for the union to play a more effective role in international relations, more particularly with the view to creating a new and stable security structure in Europe and with its near neighbors. The member states were also persuaded that they needed to act together to cope more adequately with the growing threats posed by drug trafficking and other serious forms of international crime and with illegal immigration. And the more recent menace from terrorists with access to global finance and failed states as safe havens attest to the wisdom of those decisions. It's very important to stress, however, that thanks to the checks and balances of the legal order, the expansion of union competence and hence of EU law doesn't entail an equal and opposite contraction of national competence and law. This is partly because member states play a central role in decision making through their membership of the council. It's moreover the European council composed of heads of state or government together with their full-time president and the commission president that sets the political agenda for the union. Even if QMV now applies to most matters, so there is ultimately the risk of being outvoted, the practice allows ample opportunity for compromise and the accommodation of serious national issues. A second consideration is that the effect upon member states' competences depends upon the nature of the union competence in question, as defined by the categories now listed in article 2 of the TFEU and further clarified by article 6. Where union competence is exclusive, member states are precluded from acting autonomously, but the categories of a priori exclusivity are limited in number and uncontroversial, covering matters such as the common commercial policy or monetary policy for member states using the euro. Where competence is shared, which is the case with most matters, the member states retain the right of autonomous action except to the extent that the union may itself have acted in respect of a certain matter, and that preemptive effect does not apply at all in some areas, for instance research and development cooperation. In areas where the union is competent merely to support, co-ordinate and complement the action of member states such as health, industry and education, action by the union has no preemptive effect. As I noted earlier, union competence for the CFSP is soigenerous and always subject to member states' responsibility for their national security, which is inalienable. So in my view there is no reason for alarm and despondency. I don't want to end without saying a word about the union's functional constitution, which is the Shea Dervr of the Court of Justice and which initially drew me to the study of EU law. Some of those present will have heard a talk I gave a little while ago, entitled Falling out of Love with the Court of Justice, in which I criticised some recent court decisions. And you may be wondering why I haven't launched a fferocious attack upon the court since I remain critical of those decisions and I could add a couple of new ones to the list. It's not so much my respect for the chairman, great though that is, but rather a sense of proportion that explains my reticence. In a 40-year perspective any appreciation of the court's achievements can only be overwhelmingly positive. I've fit much of my academic career defending the court against misplaced accusations of activism. I don't regard the case law on freedom of movement as activist at all. As Jack McKenzie Stewart used to say, the court was simply reminding the Member States of what they had explicitly undertaken in the treaty. On the other hand the court's invention of the functional constitution, completing and systematising the primary positive law contained in the treaties, strikes me as judicial activism at its most beneficent. What's also remarkable is that the main features that characterise the mature union constitution were already in place in 1971. As early as 1963 in the Ffancantolos case, the community was held to have created a new legal order whose subjects included private individuals as well as the Member States. The principle of direct effect, as it came to be known, meant that rights derived from the EC Treaty could be enforced by individuals in national courts. A year later, in Costa and Enel, the court spelt out the companion principle of the primacy of community law that, in the event of conflict between a national provision and a community provision, the latter must prevail. The great international handles gazelle shaft case was decided in 1970, just as I was beginning to get to grips with community law that I can't pretend to have understood its implications fully at the time. As many of you will know, the case concerned a challenge to the legality of a forfeiture mechanism under the common agricultural policy on the ground that it conflicted with economic rights protected by the German basic law. The Court of Justice held that the validity of measures adopted by the community institutions cannot be determined on the basis of rules or concepts of national law, including fundamental rights that are constitutionally protected. That had to be so, because the unity and efficacy of community law would otherwise be put in jeopardy. So it's from this very early case that we learn that the EU is a self-referential legal order. What counts as a valid rule of EU law depends exclusively on the criteria of that order. That was strong stuff, but the ruling was mitigated by the declaration also of constitutional significance that respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. This confirmed indications given in earlier cases as to the rationale underpinning the Court's human rights jurisdiction in matters falling within the scope of application of EU law. Those constitutionalising concepts and principles have been refined and developed over the years. The great lesson of international hundreds gazelle shaft about the relationship between national legal orders and the union order has been completed surprisingly not until 1998 by the judgement in the INCOJ case. The Court of Justice was asked whether the primacy principle means that a national provision which is incompatible with an EU provision must be considered a complete nullity. The Court said no, it was sufficient merely that the national court disapply the provision. This confirms that the primacy principle is essentially designed to resolve conflicts of law between legal systems in a co-ordinate relationship. The EU makes no hierarchical claim of the power to disable national legislatures. Other post 1971 developments have been inspired by the principle of ensuring effective judicial protection which underlies the case law on the enforcement of union rights through remedies available in national courts, natively the state liability doctrine. Of course there are a few developments of which I'm critical. However this isn't an occasion for carping but rather for celebration of an intellectual construction, the functional constitution, whose elegant profile caught my attention all those years ago and fired my determination to get to know it better. That brings me to my conclusion which is really just an announcement that I intend to stop speaking. The only thesis I hope I may have established is that the European Union and its legal order is worth a lifetime of serious legal study of teaching and a practice. For my part, vele le voyage and I intend to keep military. Alan thank you very much for sharing with us this overarching view which those of us who've been around for a few years tend to get once one gets to grips with this subject matter. I'm particularly grateful for your a persu about the combination in the courtswork of hard laws, as far as I'm concerned, very hard laws, and political vision, and drawing our attention to the fact that the political vision was put there by the duly elected legislators and by the duly elected ministers. And the court tries to put together those things and you stood on top of the mountains and guided us to all the surrounding countryside in a lovely way. Thank you very much for your enthusiasm. I'm not sure whether you deserve the atification but you certainly deserve our thanks and you have it in abundance. I think Professor Tony Arnold has a bonbon. Good evening everybody. The perceptive and witty lecture which Alan has just delivered helps explain the sense of shock that many of us felt when we heard that he was retiring. It was difficult for his many disciples to believe that he was withdrawing from the field of play. And of course he wasn't. The clearest evidence of this came when he was made a QC the year after he retired and he in fact represented the UK government in a recent case before the ECJ concerning patent litigation which was decided only a few days ago. Be that as it may two independent projects were launched to celebrate Alan's distinction not to mention his perfidy and the great influence he has had over the course of his long career. Now there was much overlap between the two projects and they were merged when those involved found out what each other was up to and the merged project has had two outcomes. The first outcome was a seminar held here in Cambridge in December of 2009 amid heavy snow and ice on the theme of a constitutional order of states. Participants at the seminar described how they had first met Alan. For some he had been their doctoral supervisor. He had offered some their first job, some had had their first article published by him. I fell into all those categories and also an additional one because Alan offered me a place at the University of Sussex while I was still a Calo grammar school boy. And it therefore gives me enormous pleasure to present to Alan the second outcome of the project which is a collection of essays in his honour handsomly published by Richard Hart. Now I have two copies of the volume in question. The first is a copy, a unique copy bound in largely unmarked leather which Alan will be able to read without embarrassment in the company of his friends. The second is the copy which you will soon be seeing at airport bookstores throughout Europe. They will be displayed outside where they can be bought at a very generous discount to anyone who may wish to purchase one. The cover is significant. It's a painting by an artist called Eve Reiser Roberts and it's called Hockney's Cat. Now Alan and Julie I believe are both cat lovers and it depicts a cat sitting in a tree looking out over the countryside that Sir Conrad has just referred to. And you don't have to be a perceptive art critic and indeed I'm no sort of art critic to see as Alan as the cat perched pie up from a vantage point with a weather eye over Europe's legal landscape. So we very much hope Alan that you will enjoy reading this book and of course criticising it. Tony and all of you thank you very much indeed. It's very quite moving. There's a wonderful, I can't remember his name, but one of the Victorian diarists recorded that he'd been through his book of common prayer scratching out the excessive praise of the Almighty on the ground that no gentleman likes to be praised over much. And he was certain that God must be a gentleman. Well I'm afraid it's official, I'm not. So I'm immensely grateful to you and I shall enormously enjoy what you've written. Thank you.