The Role of the European Court of Justice - Coursework Example

Draft Parliamentary Sovereignty: The United Kingdom is a Constitutional monarchy, with executive power purportedly vested in the Crown. However, in reality, the business of Government is carried out by the Ministers of State in the name of the Crown. The Government of the United Kingdom has a bicameral Parliament, comprised of the Houses of Commons and Lords. While the United Kingdom does not have a formal written and codified Constitution, there is an unwritten set of rules comprised of the Acts of Parliament, judicial decisions as well as political practices that form the basis of Constitutional practice within the U.K. Therefore, the Constitutional status quo that exists in the country has produced a very flexible system wherein governance is dependant upon political and democratic principles rather than a rigid system that relies upon written rules. Parliament is sovereign, as articulated by Oxford Professor A.V. Dicey who stated that “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority. Judges are appointed by the Lord Chancellor, thus their functions cannot be judicially impartial, while the Chancellor and Judges also sit in the House of Lords, therefore their decisions cannot be seen to be politically impartial either. Subsidiarity: The core of the principle of subsidiarity is to be found within Article 5 (formerly 3B) of the EC Treaty, that is intended to effectively define the relevant competencies of both the individual member States as well as the entire European Community of member states. Title III (Articles 8-16) deals with the division of competencies between the Union and Member States. Article IA (TEU) sets out the objectives of the community: “The Community shall act within the limits of the powers conferred upon it by this treaty and of the objectives assigned to it therein.” However, Article specifies three kinds of competencies - exclusive, shared and supporting action. It does not classify competences into those that belong to the State vis a vis those that will fall under the jurisdiction of the Community. Article 5 states: “In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States.” Therefore, according to the provisions specified above, the Community is to act only with the scope of the powers that have been conferred upon it. In areas that do not fall within its exclusive jurisdiction, the Community will act to the extent that is required, according to the principles of subsidiarity, to achieve the stated aims. There are two aspects to this article (a) subsidiarity will prevail only when the achieved objective cannot be achieved by the Member State; therefore there is a preference for power to be allocated to the smaller unit, i.e, the member States (b)Subsidiarity also denotes an efficiency test, i.e, when a desired goal can be achieved with better efficiency by the Community. Moreover, the issue of subsidiarity will not arise in areas that are the exclusive competence of the Community, because there is no issue of conflict with competence, since Community law will be supreme in those areas where there is exclusive competence. The question of subsidiarity arises in areas where the Community shares powers with those of the Member States. The principle of subsidiarity deals with the allocation of powers to pre existing institutions and therefore is meant to shape democratic structures. For example Article I TEU states that decisions will be taken “as closely as possible to the citizen.” the reason why the principle of subsidiarity was first included within the Maastricht Treaty was mainly to placate the Memebr States who felt that power from shifting from national level to European levels. Therefore, on the basis of subsidiarity, the EC does not enjoy unlimited competence to act, rather it must work within the constraint of the powers attributed to it through the Treaty. However, in practice, what has emerged is that there are no areas that may be designated as off limits to the EC and exclusive to the Member States. Hence, in many instances, the principle of subsidiarity is increasingly giving way to conferring of powers upon the EC. (important cases – Van gend en loos, Sabrenna, Costa v Enel, Francovich) It is in view of the conflicts that arose between Community and State powers that the doctrine of pre emption was mooted. The problem that arises is the maintenance of the validity of the Community legal order vis a vis the maintenance of the regulatory powers of member States. Rather than invoking the supremacy of EC law and subordinating national law, it is better to introduce pre emption, which is based upon the premise that the EC has wide room for judicial discretion when considering the issue of regulation of Community vs State powers. When there is a conflict that may arise between the rules of member States and those of the Community, the doctrine of pre-emption enables the RC to intervene and establish a uniform code that will be applicable to all member states in order to achieve the desired Community objectives. This may often be achieved by the preclusion of Member State powers. However, this pre-emption occurs only when there is a conflict of state powers and rules with the desired objectives of the Community, therefore preemption provides the modality for the adjudication of powers between the member States and the European Community. Article 234 – relevant cases: CIFLIT, Rheinmuhlen, Foto Frost) While subsidiarity is aimed to prevent the centralizing force of Community law, preemption on the other hand involves the preclusion of Member State powers. While these may appear to be opposing forces, preemption in fact has developed in order to ensure that the objectives of the EC are met. It is not in the interest of the community as a whole to allow subsidiarity to preclude Community action, since this would impact negatively upon the common goals of the European community. Rather preemption ensures that the diversity and independence of member states is preserved through Community interference only when it is deemed to be necessary in Community interest. The role of ECJ The formal role of the European Court of Justice, as set out in the Treaty, is merely to “ensure that in the interpretation and application of this Treaty, the law is observed.” According to George Bermann, the “EEC Treaty.....was conceived as an international agreement, and only later came to be viewed as a constitutional document.” The judicial rulings of the ECJ in the 1960s and 1970s have in effect resulted in a constitutionalization of the treaties establishing the European Union through its jurisprudence. In fact, according to D. Anderson, the judicial activism of the European Court of Justice has been one of the most intriguing aspects of the evolving legal and judicial framework in Europe, because it “appoints the European Court as meeting place between the legal order of the Community and those of its member states.” It has in fact, represented the driving force of European integration through the fashioning of a constitutional framework for a federal type of structure within the European Union. The legislative process within the European Union has often been characterized by inertia, as a result of which the ECJ has had to exercise judicial creativity, to address the gap between voter wishes and political decisions which is not well defined in the European Community as it is in a democracy. In the context of Article 234 of the EC Treaty that places the European Court of Justice in the role of interpreter of the aims and objectives of the Treaty, creative European jurisprudence has often required that the ECJ not send away an individual litigant or a national Judge without an answer, in order to avoid denial of justice. As a result, this has often required creative judicial interpretation that has caused it to be accused of judicial activism. The Rheinmuhlen case also established the principle that ECJ rulings are very powerful because they are not bound by national precedents or by Court structure. Moreover, national Courts do not have the authority to declare that a Community Act is invalid and it was stated in the case of Foto-Frost that when the issue of validity of a community Act is challenged, uniformity and legal certainty are imperative across all the member States, without which the Act itself would be challenged and jeopardize Community unity. Supremacy of EU law: The European Communities Act of 1972 was a significant development and through this Act, the UK has in effect, agreed to be bound by the Treaty of Ascension and to acknowledge EU supremacy in law. Further more the Human Rights Act of 1988 incorporated the goals of the European Convention of Human Rights within the framework of national law, by including a provision that Parliament legislation is to be interpreted and read in such a manner as to give effect to the goals of the Convention,(Section 3 of HRA) while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights (Section 4). Within the UK, the European Convention was not directly relevant to statutory interpretation until the introduction of the Human Rights Act of 1998. Parliamentary sovereignty means that UK law can override international law, however, the Communities Act of 1972 and the Human Rights Act have raised the question of supremacy of EU law over national law and its application within the country. As opposed to a centralized form of Government within the UK where Parliament is supreme, the incorporation of EU law has now transformed the UK into one of the Member states of the Federation of the European Union, subordinating its own constitutional traditions to conform to the common order spelt out by the European Union under the EC Treaty. However, it must be noted that the declaration of incompatibility is a limited judicial function, it does not override the supremacy of UK parliament legislation, judicial prerogative extends only up to a declaration of incompatibility and it is up to Parliament to reform or modify the incompatible national law to conform to the European Convention. Moreover, no Parliament can bind its successors, therefore, a future UK Parliament could repeal or amend the Human Rights Act. In the balance of division of powers within the UK, Parliament emerges supreme and therefore this leads to a centralized form of Government. Parliamentary Sovereignty in the UK has therefore posed the urgent need for Constitutional reform within the country. European Communities Act of 1972. According to the European Communities Act, “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures…..provided for …. are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly….” Thus in effect, through the incorporation of the Communities Act of 1972, the UK has handed over its power to the European Community, so that EU law will take precedence over UK law, as was also established in the case of Factorame. In the case of United Kingdom of Great Britain v the Council of the European Union the UK Government brought an action for annulment of Article 1(2) of the Council regulation (EC) no: 519/94, according to which rules were specified for imports from some third countries. According to the Directive, certain exceptions were made for some countries in terms of quotas and surveillance measures that were applicable at community levels. The Government of the UK contended that in the interest of uniformity within the European Union in imports, it was arbitrary on the part of the EU to set out any kind of restrictions on some states. But the EU established the overriding nature of EU law which would be governed by the discretion of the European Courts in an application of the law in order to ensure uniformity among member states. Conclusion: According to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities. However, the division between executive and Parliamentary power is ambiguous in Britain, with members of the House of Lords also exercising a judicial function, thereby exerting indirect control over Parliament in their judicial capacity. This executive function of the judiciary may therefore be viewed as potentially compromising of their role as the upholders of individual rights of the public. European law may be transposed into UK law through direct means, which is referred to as the copyout method and is achieved through Directives, preemption and the application of the vertical and horizontal direct effects of EU law into national law. When Community law is indirectly transposed into national law however, as for example with the Human Rights Act of 1998, the resulting impact on judicial interpretation is that legislation must be interpreted in accordance with European Community law rather than according to the common law principles that are operational under the system of parliamentary sovereignty. UK Judges are therefore subject to persuasive authority in interpretation, which is not binding in the sense they strictly adhere to the law, but allows them some judicial latitude, in order to ensure that universal human rights principles are to be given added weight in adjudication. But, as Lord Browne Wilkinson has pointed out, British judges have used their judicial power in several cases to protect what they consider as fundamental rights indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”. In cases involving such rights, the Courts have adopted a common law perspective and have implied that the courts have the right to independently assess Government actions in the areas impacting upon fundamental rights and where necessary, invalidate such infringing Government actions. In the case of R v Secretary of State, Lord Bridge clarified that in cases involving fundamental rights, the Courts are “perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.” But the concept advocated by Dicey does not visualize any separation of powers between the legislature and the judiciary, thereby presenting an acute need for reform within the evolving British judicial system. Moreover, UK conformity with Community law has been established through the incorporation of the Human Rights Act of 1998 into national law, therefore this poses a direct challenge to the system of Parliamentary sovereignty that has been in existence for so many years. References: - Lord Bridge (House of Lords) , in R v Secretary of State for the Home Department ex parte Bugdaycay (1987) AC 514 at 531 - Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 at - Lord Bridge (HL) in R v Secretary of State for the Home Department, ex parte Brind (1991) 1 AC 696 at 748-49 - Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press - Wade, Sir William and Forsyth, Christopher, 1994. (7th edn) Administrative Law at 29 - For a detailed discussion of the copyout method – its advantages and disadvantages, see Ramsey, Lynn E, 1996. The cop out technique: more of a cop out than a solution? Stat. Law Review 218 - See Case 26/62, Van Gend en Loos  v. Nederlandse Admistratie der Belastingen,1963 E.C.R. 1 and Case 43/75, Defrenne v Sabena, 1976 E.C.R. 455 - Lord Browne Wilkinson, 1992. The infiltration of a Bill of Rights. Public Law 397, at 409 - European Communities Act 1972. [online] available at: http://sixthformlaw.info/06_misc/europe/European%20Communities%20Act%201972.htm - R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769 - Case C-84/94 UK v Council - Cheney v Conn [1958] 1 WLR 242 - DaCosta en Schaake NV v Nederlandse Belastingadminstratie Case 28-30/62 - Ellen Street Estates Ltd v Minister of Health [1934] AC 526 - Lord Bingham, Dicey Revisited (2002) Public Law 39 - Weiler, JHH, 1981. The Court of Justice on trial. 24 Common Market law review 555 - Case No: 314/85 of Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199 - European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm - Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm - R v Secretary of the State for the Home Department, ex parte Brind (1991) AC 696 - Bermann, George A , 1994. "Taking Subsidiarity Seriously: Federalism in the European Community and the United States," Columbia Law Review 94 : 355 - Anderson D, 1995. References to the European Court, London, Sweet and Maxwell, p. ix - Rasmussen, Hjalte, 1988. Between self restraint and Activism: A judicial policy for the European Court 13, European Law review , 28 - T. Koopmans, T, 1988. The Roots of Judicial Activism, in Protecting Human Rights: The European Dimension, Studies in Honour of Gerard J. Wiarda 327. Mather & H. Petzold eds Case Notes: Grogan: Cross border provision of information about abortion, led to conferring of power on the EU although it is a state subject. (establish supremacy?) Van Gend en Loos: Landmark case Individual bringing action against state Was held that EC provisions were applicable in member states and could have a direct vertical effect States not acceding are liable to face action (very important case – individuals can bring suit against states) Andrea Francovich et al v The Italian republic Application of direct effect (vertical) the issue was the implementing of a Directive that required employers to pay compensation to workers suffering damage due to the employer’s insolvency Important aspect – states liable to incorporate provisions of directive Established the fact that individuals can approach Courts against states (Good case – establishes supremacy of EU law) Sabrenna: Application of direct effect of Directive Differs from Van gend en Loos because it was horizontal – among organizations within member state Superiority of EU law (also similar to Francovich) United Kingdom of Great Britain v Council of the European Union Rules were specified for imports from certain world countries Existence of EC Directive specifying rules Government of the UK contended that in the interest of uniformity within the European Union in imports, it was arbitrary on the part of the EU to set out any kind of restrictions on some states EU stated that “certain sectors of community industry were sensitive to imports from China” and that it was under no obligation to explain its decisions on the basis of uniform application of the Law because its actions represented the exercise of its discretion in the interest of achieving a desired objective. "Where a measure is taken to prohibit or restrict economic activity, it must be appropriate and necessary in order to attain the objective.” (Supremacy of EU law in commercial aspects?) Cassis de Dijon: Issue at stake – import of wine into Germany from France Restrictions imposed by Germany Court held that what was good in one member state was equally valid in another (Relevant case? Trade between countries within EU? ) CIFLIT: demonstrates teleological approach to judicial interpretation – interpreting rules according to their purpose “every provision of Community law must be placed in its context and interpreted in the light of the provisions of E.C. law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.” (relevant – for judicial activism of ECJ –establishing supremacy of EU law) A reference to the ECJ by member state courts not necessary when: when the subject matter of the question is identical to another A234 reference which the Court has already answered. However in the case of DaCosta the Court held that reference could be made even if Court has answered a materially identical question. When the interpretation of community law has no bearing upon the adjudication of the case in question Where the doctrine of acte clair is applicable, i.e, in a case where the correct application of EU community law as spelt out in the Treaty is so obvious “as to leave no scope for any reasonable doubt as to how the question raised is to be resolved.” Costa v ENEL Most important case for establishing supremacy of EU law? “The transfer by the states from their domestic legal systems to the Community Legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.” (CLEAR INDICATION OF SUPREMACY OF EU LAW) Read More