Describe the Composition and Role of the European Court of Justice and Evaluate the Importance of European Union Law for the English Legal System.

Sharon Jeffrey

The aim of this essay is, firstly‚ to illustrate the composition and role of the European Court of Justice (ECJ) and secondly, to assess the significance of European Law for the English Legal System.

The ECJ has been based from the outset in Luxembourg. The ECJ comprises 15 judges, 8 advocates general and a registrar. (1). Judges are appointed under Article 221 of the EC Treaty from those whose independence is beyond doubt and are eligible for the highest judicial posts in their own country or, who are leading academic lawyers. Although no provision exists in the EC Treaty as to the nationality of the judges, there is one judge for each Member State. It has been deemed political for each Member State to be represented. They are appointed by the governments of the Member States and their appointment is for a period of six years initially, although reappointment is permissible. The court has a president, who is appointed from among themselves by the judges. The presidency is held for three years (art. 223). The current president is Gil Carlos Rodriguez Iglesias; he has been president since 07/10/94. Care has always been taken to ensure that the ECJ consists of an uneven number of judges. Thus if there were six or ten members, the Court consists of seven or eleven members respectively. The ‘odd’ judge was known as the ‘floating judge’. The reasons for this were to avoid a tie when the full Court was in session. Practicing judges and academics account for the greater part of these appointments. The Court is renewed on a staggering basis to promote stability. Judges are subject to partial replacement every three years, alternatively by eight and seven judges (Article 223(2) EC Treaty). Equally, Advocates-General are also partially replaced, by four members on each occasion (Article 223(3) EC Treaty).

The court is assisted in its work by the Advocates-General. They must have the same qualifications for appointment as the judges. The Advocate-General assigned to a particular case delivers an opinion in which he indicates the issues raised and the reasoned conclusions he has reached. This decision is not binding on the court, although it will be taken into account when the court is considering its decision. The Advocates-General must do this in open court, and in the spirit of complete independence and impartiality (Article 222(2) EC Treaty). These submissions are always dispensed before the court delivers judgement. Generally the ECJ will go along with this opinion, although, there have been renowned instances where this has not been the case, Van Gend en Loos v Nederlandse Adminstratie der Belastingen (1963). (2).

Cases of the ECJ are heard in plenary sessions, where all judges sit together, or it may sit in chambers of three or five judges. The ECJ sits in plenary session when a Member State or a Community institution that is a party to the proceedings requests, or in particularly complex or important cases. Other cases are heard by a chamber. Only one judgement will be delivered so there is no indication to the degree of agreement between judges. These often comprise of concise propositions and it can be difficult to determine any ratio decidendi. Accordingly, lawyers seeking precedents turn to the submissions of the Advocate-General. The Single European Act (signed February 1986, Amendments to Treaties) added a new article 225 (ex Art. 168A) to EC Treaty. Article 225 provided for a Court of First Instance (CFI) of European Communities to be added to the ECJ with jurisdiction to decide at first instance certain cases brought by natural or legal persons. However, as a result of Article 225 inserted by Treaty of Nice, (signed in Nice 2001), the CFI is a separate entity and is to have judicial panels attached to it in an effort to alleviate the burden on the CFI and ECJ. Judges are appointed as per Art 225(3) (EC Treaty) and are essentially the same as the ECJ. The CFI fundamentally deals with disputes between Community Institutions and its staff, competition cases and ECSC disputes, actions brought by individuals under Art. 230(2) (action for annulment) and Art. 232(3) (action for failure to act), as well as anti dumping and intellectual property rights brought by individuals. Decisions made at the CFI are capable of appeal to full ECJ, but only on a point of law, (Art. 225(1) EC Treaty).

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The procedures of the court resembles the civil law system as there is an emphasis on the written part of the procedure and there maybe a preliminary investigation into the case. Cases commence with a written application to the registrar. It contains various details, including the names and addresses of the applicant and defendant, the subject matter of the dispute and the applicant’s proposals. Where applicable it must include documentary evidence which is pertinent to a particular action. In preliminary rulings it is the referring court that makes the formal application. Within a month of the defendant being served with the application they must respond by providing particulars, including a statement of the argument of fact and law which they base their defence. The President then fixes the date which the Judge-Rapporteur, (one of the judges involved), will present a preliminary report to the Court which contains a recommendation as to whether a preparatory investigation or any other form of preparatory measure is necessary before moving onto the oral part. If no investigation is necessary a date for the oral hearing is fixed. Preliminary investigations are the exception and not the norm. Oral proceedings begin with reading of the report presented by the Judge-Rapporteur. Court hears Counsel for both sides including any witnesses/experts. Finally the Advocate-General’s opinion is read out. The judges retire to consider the verdict after oral proceedings have concluded. This is done in concealment as no one is to know the language they deliberate in. (It is common knowledge that French is used throughout). Judgement is a highly formal affair and must follow particulars of Article 63 of the Rules of Procedure. The Court decides as a collegiate body, therefore decisions are considered to embody the will of all judges. Any dissenting judges are not known.

The cases heard at the ECJ are mainly brought by Member States and Institutions of the Community, or are referred to it by national courts. The ECJ has limited power to deal with cases brought by individual citizens, thus such cases are seldom heard. The cases of dispute between parties the ECJ hears, fall into two classes: proceedings against Member States, (to establish if they have failed to meet their obligations under the Treaties), and proceedings against EC Institutions, (to clarify the scope and meaning of European law). Proceedings against Member States can be brought by the Commission, or by other Member States, and concern alleged breaches of Community Law by the country in question. An example is in Re Tachographs: EC Commission v UK (1979). (3). The EC Commission usually gives the Member State the opportunity to put things right before going to the ECJ. Proceedings against EC Institutions can be brought by Member States, other EC Institutions and in some situations, by individual citizens or organisations. They involve referrals from national courts for a preliminary ruling to explain the extent and significance of European Law. Decisions made in these circumstances are binding on all Member States courts. Requests for preliminary rulings are made under Article 234 of the Treaty of Rome. (4). Article 234 creates both a discretionary and a mandatory referral for any court or tribunal. Mandatory referrals are made when there is no further appeal possible in the Member States judicial system. With relevance to the English and Welsh court structure, this means that the HOL would refer questions of EU Law as it is the highest appeal court within the system. The appellant court can choose to refer a question, it is not compulsory. This is applicable to all courts within the hierarchy. Courts at the bottom of the hierarchy can refer question of law under Article 234, if they deem this necessary, as was the case in Torfaen Borough Council v B & Q (1990). (5). When national courts make reference under Article 234, the national proceedings will be deferred pending receipt of the preliminary ruling from the ECJ. If circumstances require, it is the responsibility of the national court to protect the parties’ Community Law rights by granting interim relief. This was the occurrence in Factortame Ltd v Secretary of State for Transport. (1996), (6). If the national court was unable to do this until after the ECJ ruling was returned it would destabilize the effectiveness of the reference system created by Art. 234. The ECJ is not an appellant court as it does not decide the cases referred under Art. 234, but explains the law so that the national court can do so. As a result of Art. 234 the Government has had to change statute law, as was the case with Marshall v South West Hampshire Health Authority.

European sources of law are divided into two components; primary and secondary. Primary sources are predominately Treaties, the Treaty of Rome, (ToR), being the most important. Secondary sources include regulations and directives. Treaties, which are signed by our head of government, automatically become part of English law. This allows individuals to rely on Community law in addition to it becoming part of English law, as was evident in the case of Van Duyn v Home Office. (7). British citizens are entitled to rely on the rights in the ToR and other treaties even if those rights may not have been specifically enacted in English law. A clear illustration of this is Macarthys Ltd v Smith (1980). (8). British courts are now prepared to apply European Treaty law without waiting for the rulings of the ECJ. This illustrates the growing influence of European law. Diocese of Hallam Trustee v Connaughton (1996). (9), illustrates this. European Treaty law is directly applicable both horizontally and vertically.

Article 234 of the ToR gives the EU the power to issue regulations which are ‘binding in every respect and directly applicable in each Member State’. Article 234 makes it clear that regulations automatically become law in each Member State so do not have to be adopted. Wording in Art. 234 is precise, Member States can not pick and choose which to implement. Regulations ensure that laws are uniform across all Member States and that Treaty law is successful.

Directives synchronize the laws within Member States. They are of direct effect vertically and said to be hard law. Parameters of time exist in which directives must be implemented. It is the role of the state to implement directives, if an individual suffers damages due to failure to implement, the state maybe liable to the individual. Francovich v Italy (1991) (10) demonstrates this. The ECJ developed the concept of direct effect, (Francovich principle), where Member States had not implemented directives in time. Adversely effected individuals by failure to implement directives only have rights against the state. This is due to vertical and horizontal effect. Vertical direct effect gives the right to use a European law against the state or an arm of the state. This is substantiated in the case of Marshall v South West Hampshire Health Authority (1986) (11). Horizontal direct effect means that an individual can use European law against another individual. Directives which have not been implemented do not give an individual any rights against other people. In Duke v GEC Reliance Ltd (1988), Mrs Duke was unable to rely on Equal Treatment Directive as her employer was a private company. Directives can not produce direct effect before the implementation deadline had expired and they do not acknowledge horizontal direct effect. This signifies possible limitations on the effectiveness of directives. The ECJ endeavoured to conquer this by enforcing national courts under an obligation to interpret national legislation in the light of directives. This obligation is referred to as ‘indirect effect principle’ and was laid down for the first time in the Von Colson decision. (12).

The conflicting doctrine of vertical and horizontal effect, giving rights to some individuals in some cases and not in others, is categorically unjust. The ECJ developed another approach, making it possible to take action to claim damages against the Member State that has failed to implement the European directive. As mentioned above, this was first brought about in the Francovich case and was accentuated in Paula Faccini Dori v Recreb Srl. (1995), (13). The Francovich principle has been enhanced. The ECJ has verified that compensation is due from a State, not only on failure of implementation but, also when directives have negligently been implemented. Nevertheless, a number of criteria must be met in order to receive compensation: the Community rule in question must have the object of conferring rights on individuals; the infringement must be adequately serious and there must be direct causation between the infringement of the Member State and the damage experienced by the individual.

English courts originally used a 'literal approach' when interpreting legislation, meaning the words in a law were taken exactly as they appeared, however ridiculous the effect. The purposive approach to interpretation, paying more attention to the spirit of the legislation, is the one favoured by most European Countries and is the approach undertaken by the ECJ in interpreting European law. Lord Denning believed that when interpreting European law, English courts should take the same approach as the European Court would. Consequently, rather than using the literal rule, the Courts should apply a broadly-interpreted mischief rule. EU guidelines say that 'the wording of an Act should be clear, simple, concise and unambiguous; unnecessary abbreviations, "community jargon" and excessively long sentences should be avoided'. Given that English courts take into account the intention behind an Act, the purpose clause would be an extremely useful way for the drafter to give guidance for future disputes. The purpose clause would give a clear explanation of what a law should achieve, overriding any interpretation of its contents that appeared to contradict this aim. The purpose clause would also help the drafter, as a writer who starts with a clear outline of his message is far more likely to write that message clearly. As judges must use the purposive approach for European law they are more accustomed to it. Therefore they are more likely to use it when applying English law as was illustrated in the case of Pepper v Hart, (1993). (14).

It is apparent that all Member States, including Britain, have transferred sovereignty to a Community created by them. Principles of the ToR indicate that no Member State may question the status of Community law as a system of consistently and generally applicable law throughout the Community. Therefore Community law, enacted in accordance with the power laid down by the Treaties, has precedence over conflicting law of any Member States. This is noticeably demonstrated with cases, such as the Marshall case, which brought about changes in statute law.

To conclude, as with all things, there are advantages and disadvantages to being part of the EU. Some advantages are: it provides legal rather than military disputes; it allows all EU citizens protection throughout the EU and no dissenting judgements mean no judge can be seen to be bias in favour of nationality of any party. Disadvantages include: the time factors involved before a ruling is made could cause injustice in an urgent case, (it can take eighteen months to get a ruling); the overloading of the ECJ, which leads to more delays and the expense involved could restrict some individuals. Effects of UK membership have been extensive and practical. For example, preventing unlawful restrictions on imports of certain goods, discriminatory taxation on wine and the requirement to fir tachographs to lorries. In the future we can expect the EU to have a considerable impact on English law. Britain can not afford to be insular in its approach.