It is an honour to be invited to give this year’s Mackenzie Stuart Lecture. Jack Mackenzie Stuart was a distinguished graduate of this University and of ours in Edinburgh. As a member, and subsequently the President, of the Court of Justice of the European Communities he made a great contribution to the cause of European integration through implementing the laws of the Communities, subsequently the ‘European Union’. As well as performing the ordinary tasks of judging and also latterly of presiding over the Court’s business, he was an apparently tireless publicist for that cause throughout Europe, but most particularly at home in the UK. By seeking to make the work of his Court and the law it administered less mystifying to the ordinary citizen and to the lawyerly public, he made it also less threatening.

The creation of an economically integrated Europe, based on free circulation across open borders, has probably facilitated an increase in transnational crime. One response to this phenomenon has been to try to create an integrated European criminal law. But legal integration will not magically solve all the problems related to transnational crime. Indeed, it may create problems of its own. By favouring efficiency (that is, repression) over legitimacy (the protection of fundamental rights), it favours a criminal justice policy oriented towards ‘security’. By imposing the same rules throughout Europe, it disturbs the internal consistency of national legal systems. Nevertheless, the phenomenon of legal integration, facilitated by new legal instruments such as framework decisions, continues to develop. We might therefore ask ourselves, as an introduction, why this is so.

So much disinformation about the Treaty establishing a Constitution for Europe—‘the Constitutional Treaty’, as I shall call it—has been disseminated by the media in this country (and not only here) that there is an urgent need to put the record straight. I am going to tackle the problem in two ways: first, by trying to assuage some false and exaggerated fears of changes that are either fictional or minor; and, secondly, by evaluating what seem to me to be the main changes the Constitutional Treaty is designed genuinely to bring about.

A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.

Proposals from the European Commission to work towards greater harmonisation of contract law, and indeed private law more generally, have been described in terms that apparently distance these plans from the introduction of a code civil europa. Nevertheless, the programme for developing ‘non-sector-specific measures’ into a ‘common frame of reference’ constitutes in its fundamentals and aspirations the ambition to create a European law of contract. And the method for the construction of this code replicates the process devising the great European codes of the nineteenth century: a painstaking scholarly endeavour to find consistency and coherence in the divergent national private law systems, except that no legislative process is foreseen.

The constitution of Bosnia and Herzegovina (henceforth ‘BiH’) was born out of conflict. The country, like much of the Balkan region, had been subject to waves of invasion, nationalist tension and foreign domination for many centuries. The Ottoman Empire, with a complex system of public and private law influenced by Islamic law, had been followed by the Austro-Hungarian Empire, overlaying the legal system with the tradition of the Code Civil. Before the Ottoman period the Slav population had divided between adherents to the Church of Rome and followers of the Eastern Orthodox Church. Under the Ottomans a group of Slavs had converted to Islam, further fracturing the religious coherence of the region. During the nineteenth and early twentieth centuries the pan-Slavist movement had sought to establish a Serb national homeland for its people. When Princip assassinated the Archduke Ferdinand of Austria in Sarajevo in 1914, the aim was to establish a Serb state free of imperial domination.

The movement towards common principles of European contract law has been described as inevitable. In the words of one of its foremost proponents, ‘it is a historic law that this unification is going to happen sooner or later’. It has been difficult to ignore in recent years the volume of work discussing developments in this area of law. One might note, in particular, the Private Law in European Context series published by Kluwer Law International and the Cambridge University Press Common Core of European Private Law project. Further, the publication of Communications by the EC Commission in 2001, 2003 and 2004 has served to promote an ongoing discussion on the nature and quality of the acquis communautaire and the ‘opportuneness’ of any form of non-sector-specific instrument in the area of European contract law. Such intervention, it has been said, forms ‘the riggings of a ship which is about to set sail’.

The european integration programme is a unique and ambitious attempt on the part of numerous nations, with a long history of armed conflicts and diverse cultural, linguistic, legal and economic traditions, to become integrated under a ‘new legal order’. Indeed, the European Union (‘EU’) can look back with much satisfaction on its record of transforming a large part of Europe, once afflicted by wars, nationalist divisions, Nazism and Fascism, into a region where peace, political moderation and protection of human rights prevail. Now, the EU wishes to externalise its success. As Robert Kagan has argued in Power and Weakness, ‘the transmission of the European miracle to the rest of the world has become Europe’s new mission civilisatrice. Just as Americans have always believed that they had discovered the secret to human happiness and wished to export it to the rest of the world, so the Europeans have a new mission born of their own discovery of perpetual peace’.

This article uses the issue of compulsory licensing of copyright to explore the relationship between intellectual property law (specifically copyright law) and competition law in the EU. It takes as its starting position the proposition that competition law is the ultimate restraint on the monopoly potential of intellectual property with intellectual property rights (IPR) located in competition law. However, it argues that it is too simplistic to cast the approach of the European Court of Justice (ECJ) in the IMS case purely as one of competition law being allowed to trump copyright. Instead, it sees the judgment as an example of doctrinal compromise for both legal subsystems with competition law placing limits on the invocation of copyright as the basis for a refusal to deal, while suggesting a remedy in the form of compulsory licensing which runs contrary to its conceptual roots in private law and notions of freedom of contract.

Who is bound by the competition rules in the EC Treaty? Article 81 EC applies to agreements and concerted practices between undertakings and to decisions of associations of undertakings; two addressees are specified: (a) undertakings and (b) associations of undertakings. This paper is mainly concerned with the meaning of (a) undertaking. As noted by Advocate General Jacobs, ‘the concept of “undertaking” serves a dual purpose in the system of Article [81]. On the one hand—and this function is more obvious—it makes it possible to determine the categories of actors to which the competition rules apply. . . . On the other hand, it serves to establish the entity to which a certain behaviour is attributable’.