In what ways does the new European Union legal order differ from the common law jurisdiction? To what extent do you think the machinery of the new legal order is effective in achieving its objectives?

The EU approach to interpretation is entirely different to the UK approach, this point is best illustrated by the quote of Lord Denning in Bulmer v. Bollinger (1974).  

In its simplest form the common law adopts a restrictive approach to interpretation whilst the EU adopts a broader approach.  In the EU the tools of interpretation have been developed in the context of mainly French, German and International law.  Judges in the ECJ have a lot of power to interpret the law to give effect to the underlying principles of the EU.  It must be remembered that the courts do not only use one method when interpreting legislation, they may use several methods, Neville, Brown and Jacobs put this clearly.  There are four main types of statutory interpretation used in the EU; literal, historical, teleological, and contextual, I will discuss each of these in turn.

Literal interpretation is seldom used by the ECJ, because a lack of interpretation sections in legislation may make it difficult to apply.  Other problems with the literal approach include;

• In drafting EU law is broadly phased.
• Multilingual Treaties, each language has different nuances of meaning.
• Legal concepts may have different meanings in different jurisdictions.

The ECJ often prefers to look beyond the plain meaning of the words, and give preference to the aims and objectives of the treaty.  I.e. give the teleological or contextual (discussed below) approaches priority.  The bast case to illustrate this point is Commission v. Council (Re ERTA)(1971).

Historical interpretation is associated with the attempt to determine the subjective intention of the author of the legislation placed before the court.  For this reason it is often compared to the UK’s mischief rule.  The reason for the courts reluctance to use the historical approach frequently is due to the lack of documentation available to the court.  Meetings of the council and commission, and so negotiations relating to the purpose of original treaties, are shrouded in secrecy, therefore, no travaux

preparatories are available.  However, it is fair to say that all legislative proposals are published in the Official Journal.  Article 253 also requires that it be stated in the preamble of legislative acts the reasons on which they are based and to refer to any proposals or opinions that were required by the act.  These preambles often give guidance to the court, this happened in Markus v. Hauptzollamt Hamburg-Jonas (1969).

Contextual interpretation involves placing the legislation in its context and then interpreting it in relation to other pieces of EU legislation.  Certain paragraphs in pieces of secondary legislation must not be considered in seclusion, but within context of the whole instrument.  There is said to be a lack of precision in some EU provisions and references to the ‘framework of community law’ as in Costa v. ENEL (1964)  are not uncommon.  This is in obvious contrast to the common law system where courts look to the meaning of the words before them, in their immediate context.

        The main teleological approach requires the judge to look to the purpose or object of the text before him.  This approach gives the judges the most leniency in their interpretation, as they can even look to the aims of the treaties and the community as a whole.  The main purposes of teleological interpretation are as follows;

• To promote the objective for which the provision was made.
• To prevent unacceptable consequences flowing from a literal interpretation of the wording.
• To fill gaps in the legal order.

The statement of the court in CILFIT (1982) illustrates clearly how the courts look to EU law as a whole. A statement from Bosch v. De Geus (1962) is also

noteworthy.  Using teleological interpretation the Court’s often make decisions, ignoring express words of EU legislation.  This is done to;

• Strengthen the EU’s structure.
• Increase scope and effectiveness of EU law.
• Enhance powers of EU institutions.

These so called policy decisions are more apparent in the legal order than they are in the common law system.  Interpreting in a teleological manner enables the court to put flesh on the bones of the treaty provisions.

        I shall now move on to consider the effectiveness of the machinery of the legal order in achieving its objectives.  

One of the main objectives of the legal order must have been to establish supremacy, this has clearly been achieved by the ECJ, through the line of cases mentioned in page one of this essay.

However not all agree that the ECJ has been a complete success, the introduction of a further court was deemed necessary to reduce the workload of the ECJ which couldn’t cope with the volume of cases.  Thirty-two years after the ECJ was created by the by the Treaty of Rome 1957 (EEC Treaty) a Court of First Instance was established in 1989 by the Single European Act of 1986.  The main reasons for establishing the Court of First Instance are as follows;

• Reduce backlog of ECJ work outstanding.

• Review cases of complex fact.

• Allow ECJ to concentrate on fundamental task of ensuring uniformity and maintenance of quality of judicial review.

A major success of the ECJ has been providing preliminary references using the procedure detailed in Article 234. The ECJ uses this procedure to develop the concept of the new legal order and to provide authoritative rulings, which apply uniformly

throughout all of the Member States.  This point best clarified by a statement from Rhein-Muhlen (1974).  The ECJ can give preliminary rulings concerning;

• Interpretation of EC Treaty.
• Validity and interpretation of acts of the institutions of the community.
• Interpretation of the statutes of bodies established by an act of the council, where those statutes so provide.

It is fair to say that uniformity of interpretation by member states must be an objective of the legal order and Article 234 achieves this competently.  It is interesting to note that guidance regarding preliminary references has been incorporated in the Practice Direction for the Court of Appeal, 19 April 1999.

Direct effect denotes whether a specific provision of EU law creates rights that an individual can enforce in the courts, either against governments (vertical direct effect) or against other citizens and organisations (horizontal direct effect). The case of Van Gend en Loos (1963) established that for direct effect to be established certain conditions must be present;

• The provision must be clear and unambiguous.
• It must be unconditional.
• Its operation must not be dependent on further action being taken by community or national authorities.

Direct applicability is the mode of reception of EU law into the legal order of the member states.  If a provision is directly applicable it requires no further enactment and it may be relied upon in national courts.

Treaty provisions are directly applicable, and so require no further implementation by member states.  In Van Gend en Loos (1963) the ECJ established that treaty articles that impose upon member states an obligation to abstain from doing something, such as levying duties, have direct effect.  Treaty provisions have been invoked vertically and horizontally; Macarthys Ltd v. Smith (1980).

Under Article 249 regulations take effect without the need for any implementation; Commission v. UK (Re Tachographs) (1979).  Because they are of general application, they will have direct effect (vertically or horizontally) if the three criteria (above) for direct effect are fulfilled.  Regulations can bind individuals.

        Decisions are binding upon those to whom (Member State, individual, organisation) they are addressed.  They are considered to be a lesser form of secondary legislation.  Decisions are a formal manner by which the Council or Commission can initiate action, or policy.

Article 249 also dictates the manner in which directives are to be binding upon Member States.  Directives are not directly applicable, they set out an objective that must be achieved, and it is left to Member States to decide how.  Directives only have vertical direct effect (i.e. against the state or emanations of the state); Marshall v. South West Area Health Authority (1986). In the UK directives are normally implemented by an Act of Parliament or Statutory Instrument. It has been held by the ECJ in some cases that a directive can have direct effect.  Some argue this should not be so, as directives are incapable of satisfying the three stage test set out in Van Gend en Loos (1963).  This does not matter, as the ECJ keep in the general ambit by following criteria one and tow, but sometimes ignoring three.  The ECJ are not bound by their previous decisions.  The reason the ECJ have done this is to confer upon individuals in Member States the

ability to enforce EU law.  Failure to implement a directive will not deprive an individual of their right to enforce EU law either; Pubblico Ministero v. Ratti (1979).  The effectiveness (l’effet utile) of a directive would be weakened if the citizens of a Member State which had failed to implement a directive were denied rights contained in the directive by the national courts.

        It is through the mechanisms set out above that the legal order aims to achieve its objectives detailed in articles 1-16 of the EC Treaty.  

Article two has regard to economic activities and harmonious development, obviously the mechanism of direct effect is plays a role in ensuring this.  As I have shown the ECJ are willing to expand the law here to ensure development of the law is harmonious in all Member States.

Article ten is the solidarity principle, this contains a positive burden to support EU law, and a negative burden to not adopt law opposed to the development of EU law.  The principle of state liability as first mentioned in Francovich, Bonifaci and others v. Italy (1991) acts as an incentive to states to implement and comply with EU law.

Articles twelve and thirteen have regard to discrimination in a number of forms.  Article 12 has direct effect, whilst Article 13 does not.  A successful claim under Article requires a unanimous decision from the Council of Ministers, it is clear to see the potential of this Article is limited.

Due to the mechanisms of direct effect and direct applicability and some creative interpretation by the ECJ, both in preliminary rulings and case judgements all the basic principles relating to;

• Free movement of goods and persons.
• Sex and nationality discrimination.
• Competition policy.

May now be invoked by individuals before their national courts.  The legal order is still developing and thus so is the body of legislation surrounding it.  So far there have not been any horrendous mistakes or problems on the road to achieving the objectives of the legal order.

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• Craig, P & Deburca, G.  EU Law – Text, Cases & Materials.  Second Edition.  Oxford University Press.
• Cuthbert, Mike.  Nutshells European Union Law. Third Edition.  Sweet & Maxwell.
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• Web sites.

• Lawtel.                                                
• Court Of First Instance.                                
• European Court Of Justice                        

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