Analysis of Procedures of the European Court of Justice - Assignment Example

European Law “(T)he European Court (of Justice) … has had a great effect upon the powers that we have relinquished. It has by its decisions greatly extended the powers of the centralised institutions against the nation state. Its methods of interpreting the law are totally different from those of our courts and nothing like so exact or so good. The court draws upon the objective of European integration to inform all its rulings by which over a period of time it has therefore furthered decisions towards a unitary European state. The court has also overruled specific legislation. (The Merchant Shipping Act 1988) went overboard because by some strange device the court said that Community law overrode it. That court (the European Court of Justice) does not have constitutional checks and balances to temper its power. What was tolerable in a few cases is not bearable on the scale it is happening now, and it will accelerate ….” – Baroness Thatcher, House of Lords Debates, June 1993. While analyzing this statement made by Dame Thatcher, various case laws and procedures of the ECJ have been discussed. In a debate in the House of Lords, Baroness Thatcher conducted an acrimonious attack on the European Union. The cause for her anguish was that the European Court of Justice had made the national institutions subservient to the centralized institutions. Inter Alia she also expressed her doubts regarding the competency and bona fides of the decisions taken by the ECJ. Her contention was that the ECJ pursues its single minded objective of implementing a unitary European state without any respite or consideration for the interests of the member states1. As an example she cited the example of the overruling of the Merchant Shipping Act 1988, which was promulgated in order to restrain Spanish fishing vessels from appropriating a portion of the UK’s fishing quota under the common fisheries policy. Further, she stated that “That Act went overboard because by same strange device the court said that Community law overrode it. Even though it was recent, we did not prevail. The court has also reinterpreted the derivative rights directive. It is busy reinterpreting so many things to give itself and the Community more powers at our expense2.” Furthermore, she opined that the ECJ does not have any constitutional restrictions to control its power. The result has been that the ECJ is interfering with national laws in a major way. Further, the Maastricht Treaty has empowered in a major fashion. In UK obedience to the law had been due to the fact that either the law had been sanctified by time and custom or that the law had been made by those who had been elected by the people. All this is being done away with due to the ECJ’s interference with domestic laws and due to the implementation of EU laws that are at variance with the interests of the people of UK3. Another very important fact that Dame Thatcher pointed out was that as few as three of the thirteen judges of the ECJ had previously been judges the rest had been Ministers and senior bureaucrats. Moreover, a single judgement is issued and there is no disclosure regarding any dissenting opinions. The United Kingdom with its very old court traditions and rule of justice has to bear a greater loss in this context, in comparison to any other country4. Continuing in this vein, she stated that if she had been at the helm of affairs, she would have abstained from becoming a signatory to this treaty. The Maastricht Treaty’s intention was to transfer further powers to the EU and “by extending majority voting, will undermine our age-old parliamentary and legal institutions, both far older than those in the Community. We have so much more to lose by this Maastricht Treaty than any other state in the European Community. It will diminish democracy and increase bureaucracy5.” Significantly, a serious challenge was posed to British Constitutional Law, in as much as that the sovereignty of the Crown in parliament was threatened due to The Factortame Case6 , which questioned the right of parliament to “enact whatever it likes, and the courts have no power to ignore, forbid or object to it7.” Moreover, in this case the House of Lords decided that the facts of the Factortame case warranted the granting of relief and as a result the fishing activity has not ceased. The constitutional importance of the decision is that “It is a fundamental rule of British constitutional law that the Crown in parliament is sovereign. That is to say, in effect, parliament can enact whatever it likes and the courts have no power to ignore/forbid/injunct or object to it8.” The importance of the Factortame case is that it the English courts were able to scrutinize a duly passed Act of Parliament and subsequently suspend its operation till such time as the details of the case were being deliberated upon by the European Court of Justice. This was tantamount to restraining parliaments sovereignty with impunity. The essential issue of the variance or conformity of the Merchant Shipping Act with respect to the Treaty of Rome has remained unresolved9. Subsequent to the enlargement of the European Union of 2004, the national law courts of the newly joined Member States have to apply national as well as European law and this constitutes a dual role. Further, the judicial authorities of these member states have to take such measures as are required, in order to interpret domestic law in such a manner that it conforms to the European law. If it is not possible to do so then these judges have to permit the European Union Law to supersede the domestic law10. As a result, it can be construed that the advances of the future will prove to be a testing time for domestic court judges, who will have to apply European law in a competent and unbiased manner. It has been anticipated that this process will undoubtedly be an expression of an almost insurmountable act of defiance to the Central European judicial systems11. The decisions given by the ECJ encompass a broad segment of subjects in the fields of law and public policy. In the 1991 Factortame case, the ECJ brought to an end an infringement of the European Commission’s Single European Act by the United Kingdom and in this manner provided additional proof of the fact that in matters of contested judicial precedence the E.C. law was to prevail rather than the domestic law. The monetary loss to the United Kingdom, due to this violation, was a hundred million pounds sterling12 In the 1986 Marshall13 case, the court held that requiring women to retire from service prior to men was in violation of the European Commissions Equal Treatment Directive. In the 1991 Foster14 case, the court stretched out the meaning of the term public to include privatized utilities, and in this manner extended the compass of E.C. Directives. Further, in this case the ECJ ruled that the duty of the Member States’ domestic courts was to apply their national law in such a manner as would not violate the European Union law15. In the cases of Francovich16, von Colson17, and Marleasing18, the court held that if the Member States did not implement the EC directives then the affected individuals could claim damages from these Member States. The most glaring example is that of the judgement by the European Court of Human Rights in P v S and Cornwall County Council 199619. In this case the European Court of Justice held that the dismissal of an employee who had undergone a gender change operation constituted a breach of the Equal Treatment Directive20. With regard to the issues of rights to parental leave, and job-security for pregnant women, the U.K. will be significantly affected by the enforceability of E.U. law in the context of public policy and anti-discrimination law. The EU, subsequent to the Amsterdam Treaty of 1997, has commenced to extend its cooperation to the protection of the biosphere and to oppose a wide array of discriminations and the misuse of vast amounts of personal data available with its institutions21. Although the ECJ contributes to the enlargement of the European Union, it sees to it that the regional identities against the unification of the free market are protected. In Bollinger22, this was clearly established where the court had held that the term champagne be only attached to the sparkling wines produced in the Champagne region of France. The remaining products of sparkling wines from other than Champagne region could be labeled as sparkling wines only and were not to be termed as champagne23. The member states treat the EU law differently and similarly their responses to the ECJ also vary the views and attitudes of the people of the member states also differ in respect of the ECJ and the EU law. The French farmers were much annoyed not when the ECJ temporarily banned the sale of French cattle but because of perception that they were being accorded treatment that segregated them from the farmers of other EU states24. In the event of a clash the EU law takes precedence over English law under the doctrine of supremacy. It has long been contended that in any dispute EC law prevails over English law. The question that it raises is whether the court can deem the English law to be void in cases of contradiction with EC law25.   The conflict regarding the constitutional discrepancies arising in the cases cited above is however lessened by virtue of the mutual cooperation between the House of Lords and the ECJ. To overcome the setbacks between the national law and the EC law, the English courts have prepared to use the devise of the preliminary reference system. This was established in the cases of Factortame wherein the willingness of the English courts’ attempts of using the preliminary reference system as a device in order to deal with the national law against the EC law26. The applicants in Factortame27 had failed to follow the conditions to acquire licences for fishing as laid down in the Merchant Shipping Act 1988. It was argued by the applicants that the function of this act contravened the EC law and hence they sought an interim injunction to either abolish the act or to make it inapplicable. This injunction was granted by the ECJ on the strength of the Article 17728. The Court of Appeal held that the application of any statute can not be discontinued because the court does not have the jurisdiction. This issue was raised before the ECJ by the House of Lords for clarification with regard to supremacy of EC law against the statute in dispute. Based on the doctrine of supremacy, the ECJ upheld the EC law and stated that the injunction should be granted29. With regard to providing new dimensions to the EC law, the ECJ held that the national courts were not competent. The House of Lords was unable to temporarily suspend the application of an act as English law had no such jurisdiction in this regard. In Factortame, the House of Lords referred to the ECJ for clarification in respect of a dispute that had arisen between constitutional rule and EC Law. Due to this referral the House of Lords received guidelines pertaining to its duties in respect of the Treaty. This resulted in the amendment of constitutional rules which had previously been left untouched because Parliament was considered to be sovereign. This directive of the ECJ resulted in a lot of criticism being levelled against the ECJ. The procedure of preliminary reference proved to be of immense assistance to national courts, which had to transform from their conventional constitutional position to the new standpoint as required by the Community30. In the EOC case31, the appellant, namely, the Equal Opportunities Commission claimed that the Secretary of State had breached his obligations under EC law. The Secretary had failed to implement properly two EC directives in respect of the unfair dismissal of part-time workers. The High Court held that the national legislation had not infringed EC law. Further, even if the EOC had locus standi, the court can not direct the Secretary of State to implement directives as the court lacks a jurisdiction in this regard. The Court of Appeal held that the EOC lacked locus standi to seek remedial action32. The EOC approached the House of Lords in a famous case expanding the limits of English Judicial Review and accepted the fact that English Law was deviating from the EC Law in respect of part time workers. According to Lord Keith, the EOC posed a challenge to the underlying legislation. As Spanish fishermen in the Factortame case questioned the validity of the 1988 Merchant Shipping Act, the EOC could also pose a challenge to the 1978 Employment Protection Act. The House of Lords declared that the act was inconsistent with the EC Law. The House of Lords accepted that though Article 169 can check the compatibility between the English and the EC rules, it did not restrict an action to be filed in the High Court33.   In the case of R v. Secretary of State for Employment34, the House of Lords exhibited a much more egalitarian approach, obviously emboldened by the turn of events in the Factortame case, wherein the ECJ had clarified the extent of the supremacy doctrine so that the House of Lords was in a position to engender an impressive constitutional change35. The House of Lords was highly circumspect in its actions and neither did it direct the Secretary of State with regard to the action that he was to undertake nor did it convey to him that he had infringed the European Commission’s law. All that it did was that it held the Act to be violative of the EC law and it commenced a judicial review, without a prior reference, in order to change the legislation in such a manner as to make it comply with the EC law36. The EOC and the Factortame cases evidenced the development of EC Law. Such an outlook will be in disagreement with the principle of supremacy and is not adaptable into the array of responsibilities, which were imposed on the national courts. It helps a lot in joining the two systems, in such a way that it is adjusted into the legal system37. The court’s view is clear regarding the extension of the constitutional boundaries and the time for enforcing these changes. The court of appeal is well known for its reluctance to adopt EC Law, whereas the House of Lords is much better in this regard. The enforcement of EC Law is vested with the lower courts, which is troublesome. In the past, the Sunday Trading Litigation emphasised the problems faced by the English Judicial System, where the lower court had been directed to apply the concept of proportionality38. There was only one judgment in which the High Court considered it to be similar to the English Test of Reasonableness. This was the case of Torfaen39 that is generally considered to have resulted in an ambiguous decision. This reveals that the lower courts are less capable of adopting a community approach. Therefore not much can be expected in this context40. If any problem with EC arises, one can refer it to the ECJ, however this procedure is complicated by the latter’s requirement that such necessity has to be assessed by the national courts.41 The lower courts with inadequate training in EC law; cannot satisfactorily analyze the decisions of the higher courts. This results in the slow adaptation process of the EC Judicial System. If the adaptation process is restricted to the higher courts, access will be restricted to the wealthy people. This would not only curtail the development of People’s Europe but the objective of the EC Law, which introduced the issues of direct effect and the supremacy into the system of national courts, would end in a fiasco42. The approach of the EC Law by the English Judges has been in stages. There is a reduction in parliamentary supremacy and whenever a constitutional change is inevitable, the judges will refer the same to the ECJ and thus ensure that any blame what so ever falls squarely on the latter’s shoulders. This shows the ineffectiveness of Article 177 and the extended scope of judicial review without endangering the position of the English Judges43. The EC law was integrated into national law by the European Communities Act 1972. This act incorporated the doctrine of supremacy and the doctrine of direct effect into the English laws and the judicial principles into the legal order. This act played a key role during the adoption of EC law by the national courts due to the fact that it permitted the rapprochement of British constitutional doctrine with EC law. However the British doctrine of sovereignty of Parliament was acknowledged. Thus the Parliament has once again proved to have the power to enact any measure that it likes and the European Union cannot compel Parliaments of the future44. The hierarchy of laws cannot be maintained because of the fact that no statute has a superior status. In practice, the Parliament has the power to rescind any statute it feels to be unfair. Nevertheless, at the EU level, Britain cannot stay outside of the Community because it is uneconomical for it to do so. At this juncture, it is to be believed that the political and economic situations do not permit the Parliament to set aside the European Communities Act and the membership of Britain from the EU45. Subsequent to this analysis, it becomes evident that in the process of achieving its objective of a single European Union, the ECJ will not accord much importance to the sovereignty of the member states. The supremacy of EC law was brought home tellingly by the cases of Factortame and R v Secretary of State for Employment. Bibliography 1 Bulmer v Bollinger (1974). 2 WLR 202. 2 Case 213/89, R. v. Secretary of State for Transport, ex p. Factortame Ltd. [1990] 3 CMLR 867. 3 Case 152/84 Marshall v Southampton and SW Hants Health (No1) 1986 ECR 723. 4 C-188/89 Foster v British Gas Plc. (1991) ICR 84. 5 C 14/83 von Colson (1984) ECR 1891. 6 C-106/89 Marleasing SA v La Comercial Internacional 1992. 7 Fishing case tests parliament’s power - Factortame puts at stake fundamental rule of British law. (23 July 1991). Lloyds List International (c) 1991 of Lloyds of London Press Limited. 8 German Law Journal No. 3 (1 March 2005) The Application of European Law in the New Member States: Several (Early) Predictions. Retrieved from http://www.germanlawjournal.com/article.php?id=577 9 Imelda Maher, The English Courts as Community Courts. Retrieved January 19, 2007 from http://www.ecsanet.org/conferences/ecsaworld2/maher.htm 10 Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic (1991) ECR I-5357. 11 Legal View - Recent case shows Lords reluctance to endorse the supremacy of European law. (1 of 2) 386 words 6 March 1991 Review 27 English (c) 1991 Trend Agency. 12 R v Secretary of State for Employment, ex p. Equal Opportunities Commission (1994) 1 All ER 910. 13 Sivaramakrishnan, Arvind. The European Court of Justice & the E.U. Online edition of India’s National Newspaper Friday, March 30, 2001. 14 Thatcher, Margaret. (June 7, 1993). HL S [European Communities (Amendment) Bill]. Hansard HL [546/560-66]. © Margaret Thatcher Foundation 2007. Read More