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National Courts as European Community Courts

Published online by Cambridge University Press:  02 January 2018

Imelda Maher
Imelda Maher*
Affiliation:
University of Warwick
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Extract

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?

Type
Research Article
Information
Legal Studies , Volume 14 , Issue 2 , July 1994 , pp. 226 - 243
Copyright
Copyright © Society of Legal Scholars 1994

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References

2 In case 26/62 Van Gend en Loos [1963] 1 the European Court established that the Community was a new legal order in which individuals had rights that were directly effective and did not require implementing legislation in order to be recognised by national courts. For a recent discussion of this doctrine see P Craig ‘Once Upon a Time in the West: Direct Effect and the Federalization of EEC Law’ (1992) 12 OJLS 453.

3 ‘In accordance with the principle of the precedence of Community law, the relationship between provisions of the EEC Treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures … by their entry into force render automatically inapplicable any conflicting provision of… national law.’ Case 106/77 Amministruzione delle Finanze v Simmenthal [1978] ECR 629 at para 17.

4 See generally, T. Hartley The Foundations of the European Community (Clarendon Press, ch 9), 2nd edn. 1988.

5 ‘Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in light of Community law.’ Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle fur Getreide [1970] ECR 1125 at 1134.

6 The Annual Report of the Commission contains statistics on the amount of litigation before the European Court of Justice (European Court) and the Court of First Instance eg Commission of the European Communities, (1992) Twenty- Sixth General Report of the Activities of the EC, 506–508.

7 Access by individuals under art 173 actions for the annulment of Community legislation has been made increasingly difficult. See H Rasmussen ‘Why is Article 173 Interpreted Against Private Plaintiffs?’ (1980) 5 ELRev 112.

8 Factortame v Secretary of State for Transport (No) [1990] 2 AC 85; (No 2) [1990] WLR 819.

9 [1989] 2 CMLR 353.

10 The impact of the case on the question of remedies will be discussed below, see Part 4.

11 E. McCaffrey ‘Parliamentary Sovereignty and the Primacy of European Law: A Matter of Construction’ (1991)42 NILQ 109.

12 See the judgment of the European Court in case C-213/89 R v Secretary of State for Transport, ex p Factortame [1990] WLR 819 at paras 20–22.

13 In the ensuing national debate on the sovereignty of Parliament, much of the criticism was directed at the Community and the nature of the obligations imposed by Community law. Thus the House deflected much of the political criticism from itself. See eg the headline in Independent, 20 June 1990: ‘EC Rewrites British Constitution’.

14 See Stoke-on-Trent City Council v B & Q [1991] 4 All ER 221 where the House made a reference to the European Court on the application of art 30 to the Sunday trading rules.

15 Case C-312/89 Union departmentale des syndicats CGT de l'Aisne v SIDEF Conforma [1991] ECR I-997; case C-332/89 Criminal Proceedings against Marchandise [1991] ECR I-1027 where the full European Court held that art 30 did not apply to a national legislation prohibiting the employment of staff on Sundays.

16 Kirklees BC v Wickes Building Supplies [1992] 3 All ER 717.

17 The reasons for the reference are not given in the report, simply the questions asked of the court.

18 The experience in the Irish courts has been different where in the fiercely contentious area of abortion the Supreme Court has consistently held that EC law was not relevant: thus denying that EC law might have a role to play in shaping the constitutional ban on abortion. In fact, it was a High Court judge who eventually made a reference in case 159/90 SPUC v Grogan [1991] 3 CMLR 849. See generally, G de Burca ‘Fundamental Human Rights and the Reach of EC Law’ (1993) 13 OJLS 283.

19 F. Snyder ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques.’ (1993) 56 MLR 19, see the chart at 29.

20 For example case 77/69 Commission v Belgium [1970] ECR 237 where a draft law to bring Belgium into line with its obligations under art 95 EEC had been delayed in the legislature. The government could do nothing about the delay and sought to use this as a defence. The European Court rejected the defence because the obligation to comply with Community law fell on the whole state and not just on the government.

21 T. Hartley, op cit at 289.

22 Case 283/81 CILFIT v Ministry of Health [1981] ECR 3415. The cooperative nature of the relationship between the European Court and national courts has been expounded under art 177 but it would be difficult to envisage a different approach being taken under art 169.

23 Case 90/82 Commission v France [1983] ECR 2011.

24 CE, Société International Sales and Import EV, 13 December 1985, conclusions M Laroque Rec 377. See J.D. de la Rochère ‘SA Rothmans International France and S.A. Philip Moms France; Société Arizona Tobacco Products and SA Philip Moms France, two decisions by the Conseil d'Etat, Assemblé of 28 February 1992’ (1993) 30 CML Rev 187 at 191.

25 Case 169/87 Commission v France [1988] ECR 4093.

26 The Conseil d'Etat later followed the interpretation of the European Court, see SA Rothmans International France and SA Philip Moms France; Société Arizona Tobacco Products and SA Philip Moms France [1993] 1 CMLR 253.

27 See generally, J Temple Lang, ‘Community Constitutional Law: Article 5 EEC (1990) CML Rev 645.

28 G de Burca ‘Giving Effects to European Community Directives’ (1992) 55 MLR 215 at 217.

29 Case 14/83 Von Colson v Land Nordrhein-Westfalen [1984] ECR 1891.

30 See case 80/86 Officier van Justitie v Kolpinghuis Nijmegen [1989] 2 CMLR 18.

31 Case C-106/89 Marleasing v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135. In fact, even if there is no national legislation, it seems that national law must be interpreted in light of the directive. See J Steiner Textbook on EEC Law (Blackstone 1992. 3rd edn, p 36).

32 See D. Curtin, ‘The Decentralised Enforcement of Community Law Rights. Judicial Snakes and Ladders’ in D. Curtin, & D. O.'Keeffe (ed), Constitutional Adjudication in European Community and National Law (Butterworth 1992, pp 33, 39–42).

33 Case C-6 & 9/90 Francovich v Italian State [1993] CMLR 66. For further discussion of this case see Part 4.

34 The national courts still have to reconcile their role within the national constitutional framework with their obligations, and those of the state, under Community law. See discussion in Part 3 and 4.

35 Case 45/76 Comet v Produktschup voor Siergewassen [1976] ECR 2034.

36 For criticism of the application of national procedures and remedies to Community issues in the national courts and the problems in this causes for uniformity see generally Curtin and O' Keefe, p 33 (above, n 32) and Garcia ‘Is Europe Ready for the Administrative Law Remedial Revolution?— Litigation Before National Courts of the EEC Member States and Interim Relief (1990) 42 Administrative L Rev 181. There has been some EC legislation which sets down particular procedures and remedies in specific areas such as public procurement see Commission Green Paper ‘Access of Consumers to Justice and the Settlement of Consumer Disputes in the Single Market’ COM(93) 576 final p 7I et seq.

37 Whether this actually happens in practice is another issue see for example the Irish case Doyle v An Taoiseach [1986] ILRM 693 where the rule of interpretation that constitutional issues are to be dealt with last was extended to Community law issues.

38 The non-interference of the European Court in procedural issues seems to be changing see the discussion later in Part 4.

39 Case C-234/89 Stergios Delimitis v Henninger Brau [1992] CMLR 210.

40 Notice on Cooperation between National Courts and the Commission in Applying Articles 85 and 86 of the EEC Treaty OJ [1993] C 39/6.

41 HB Ice Cream v Masterfoods [1993] II ILRM 145.

42 See H. Schemers & D. Waelbroeck Judicial Protection in the European Communities (Kluwer Deventer 1992. 5th edn) pp 395–396.

43 R. Cotterrell The Sociology of Law (Butterworths 1992, 2nd edn) pp 212, 216.

44 Only another art 169 action could have been brought. Now under the Treaty on European Union, member states who fail to comply with an art 169 judgment can be fined by the court on the recommendation of the Commission, see the amendment of art 171.

45 See case C-6 & 9/90 Francovich v Italian State [1993] CMLR 66 discussed in part 4.

46 P. Goodrich Reading The Law (Basil Blackwell 1986) ch 6.

47 M. Shapiro Courts: A Comparative and Political Analysis (University of Chicago Press 1981) ch 3.

48 This may change in time as can be seen in Britain where Lord Slynn, one of the Law Lords is a former member of the European Court. Other changes that will have an impact in time is the growing prominence of Community law in undergraduate law programmes see R Goode ‘The European Law School’ (1993) 13 L S 1, pp 13–14.

49 See J. Bridge ‘Procedural Aspects of Enforcement of EC Law’ (1984) 9 ELRev 28.

50 See L. Brinkhorst & H Schemers Judicial Remedies in the European Communities (Kluwer 1977, 2nd edn) for a brief description of the judicial systems of the then member states.

51 See J. Bell, French Constitutional Law (Clarendon Press 1992) pp 30–34, 48–51.

52 Section III(1) Magistrates' Courts Act 1980. See M Zander Cases and Materials on the English Legal System (Weidenfeld & Nicolson 1992. 6th edn) p 577.

53 The question is answered by the High Court and that answer is applied by the District Court in deciding the case. See s 52, Courts (Supplemental Provisions) Act 1961.

54 See eg T. Hartley, op cit at 45.

55 G. de Burca, (1992) 55 MLR 215 at 240.

56 See for example the problems encountered by the French Conseil d'Etat in recognising the supremacy of subsequent Community rules over national laws: P Roseren ‘Review by French Courts of the Conformity of National Provisions with Community Law’ in D. Curtin, & D. O.'Keeffe (ed), op cit, 257. The Italian Constitutional Court has also had difficulties accepting the supremacy of Community law see M Cartabia ‘The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community’ (1990) 12 Michigan Journal of International Law 173.

57 The initial reluctance of the German Constitutional Court to accept the supremacy of Community law in relation to human rights protected under the German constitution was predicated in part on the undeveloped nature of the Community institutional system and its ability to protect human rights. Thirty years later when the Court revised its opinion, those institutions in its view had developed to such an extent that these reservations no longer applied. See the Solange II judgment of October 22 1986, 73 B VerfGE 339 discussed in E. Lanier ‘Solange, Farewell: The Federal German Constitutional Court and the Recognition of the Court of Justice of the European Communities as Lawful Judge’ (1988) 11 Boston College International & Comparative Law Review 1.

58 R Cotterell op cit at 232.

59 Ibid at 229. The same characteristics apply to courts of other member states except that those courts with power to review legislation in light of their constitution are seen as protectors of the values contained in the constitution eg the Italian and German Constitutional courts are professed to be protectors against the return of dictatorial regimes and the consequent trampling of human rights, see M. Cappelletti & D. Golay ‘The Judicial Branch in the Federal and Transnational Union: Its Impact on Integration’ in M. Cappelletti, M. Seccombe & J. Weiler (eds) Integration Through Law: Methods, Tools and Institutions, vol 1, bk 2, 261 at 272.

60 See L. Brinkhorsts & H. Schermers Judicial Remedies in the European Communities (Kluwer 1977. 2nd edn).

61 Ibid at 235.

62 ‘…[w]hen the conflict is one between a rule of domestic law and a rule of international law having direct effects within the domestic legal order, the rule established by the treaty must prevail; its preeminence follows from the very nature. of international treaty law. This is all the more so when the conflict is one … between a rule of domestic law and a rule of Community law’, from Belgium v Fromagerie Franco-Suisse “Le Ski” Court de Cassation decision of 27 May 1971 (1972) CMLR 372–373 quoted in L Brinkhorsts & H Schermers op cit at 173.

63 See generally M. Cartabia ‘The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community’ (1990) 12 Michigan Journal of International Law 173.

64 See P. Manin ‘The Nicolo Case of the Conseil d'Etat: French Constitutional Law and the Supreme Administrative Court's Acceptance of the Primacy of Community Law over Subsequent National Statute Law’ (1991) 28 CML Rev 499; JD de la Rochère ‘SA Rothmans International France and SA Philip Moms France; Société Arizona Tobacco Products and SA Philip Moms France, two decisions by the Conseil d'Etat, Assemblé of 28 February 1992’ (1993) 30 CML Rev 187.

65 See generally A. Ward ‘Government Liability in the United Kingdom for Breach of Individual Rights in European Community Law’ (1990) 19 Anglo-American Law Review 1.

66 Case 45/76 Comet v Produktschap voor Siergeswassen [1976] ECR 2034.

67 Garden Cottage Foods v Milk Marketing Board [1984] AC 130.

68 For a discussion of this tort see generally S Arrowsmith Civil Liability and Public Authorities (Earlsgate Press 1992) ch 7.

69 Damages have never actually been awarded by an English court. Bourgoin was settled out of court and in Garden Cottage Foods the issue was whether damages was an adequate remedy so that an injunction would not be granted.

70 Bourgoin v Ministry of Agriculture, Fisheries and Food [1986] 1 QB 716.

71 Case 40/82 Commission v United Kingdom [1982] ECR 2793.

72 Oliver W in dissent rejected judicial review as an inadequate remedy for breach of art 30 because inter alia it would deny any remedy for breaches which occurred before the determination of illegality and damages would not be available, see [1986] 1 QB 716, 760–775.

73 For a discussion of this tort see S. Arrowsmith, op cit pp 226–234.

74 For a general discussion of remedies see M Brealey ‘Remedies in Domestic Courts for Breach of EC Law’ (1990) 87 LSG 42. For a discussion of an alternative basis for damages in light of the need for efficacy of Community law see M Hoskins ‘Garden Cottage Revisited: The Availability of Damages in the National Courts for Breaches of the EEC Competition Rules’ (1992) 6 ECL Rev 257.

75 See M v Home Office [1993] 3 All ER 537. ‘It would be most regrettable if an approach which is inconsistent with that which exists in Community law should be allowed to persist if this is not strictly necessary’ per Lord Woolf at 564.

76 Webb v EMO Air Cargo Ltd [1992] 4 All ER 929.

77 Case C-143/88 & C-92/89 Zuckerfabrik Suderdithmaschen [1991] TLR 160 also discussed in F Snyder, (1993) 56 MLR 19 at 46; case C-6 & 9/90 Francovich v Italian State [1993] CMLR 66.

78 See J. Algazy ‘The Crown, Interim Relief and EEC Law’ (1991) 141 NLJ 1303.

79 Another recent development was C-208/90 Emmott v Minister for Social Welfare [1991] 3 CMLR 894 where the European Court held that time does not begin to run against a litigant seeking to rely on a directive until that directive has been transposed into national law.

80 J. Maitland-Walker, ‘A Step Closer to a Definitive Ruling on a Right in Damages for Breach of the EC Competition Rules’ (1992) 1 ECLR 3.

81 Kirklees MBC v Wickes Building Supplies [1992] 3 All ER 717, 734–735. The fact the plaintiff's argument on art 30 was unlikely to succeed following the art 177 reference pending at the time in Stoke-on-Trent v B & Q [1993] 2 All ER 297 had some impact on the outcome of the case see Lord Goff at 732.

82 See generally, J. Steiner ‘From Direct Effect to Francovich: Shifting Means of Enforcement of Community Law’ (1993) 18 EL Rev 3.

83 A recent example is C-271/91 Marshall v Southampton & S W Hampshire Area Health Authority [1993] 4 All ER 586 where the European Court held that the Sex Discrimination Act 1975 did not adequately implement the Equal Treatment directive because the limit on damages recoverable meant the victim of discrimination could not be adequately compensated and the effectiveness of Community law was undermined.

84 See G. de Burca (1992) MLR 215,226–227. This change can be perceived in EOC v Secretary of state for Employment [1994] 1 All ER 910 where, in a landmark decision, the House of Lords extended the boundaries of judicial review by reviewing English legislation on part time work in the light of EC rules and concluding that the legislation was incompatible with EC law. It did so without first seeking a preliminary reference.

85 The European Court (ECJ) will not entertain what it sees as test cases: see S. Weatherill & P. Beaumont EC Law (Penguin 1993) p 249 et seq.

86 See Commission Green Paper ‘Access of Consumers to Justice and the Settlement of Consumer Disputes in the Single Market’ COM(93) 576 final p 71 et seq.