Never use one word where ten will do.
Never use a small word where a big one will do...suffice.
Never use a simple statement where it appears that one substantially greater complexity will achieve similar goals.
Never use plain English where Latin 'mutatis mutandis' will do.
Qualify virtually everything.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Worry about the difference between 'which' and 'that'.
Never refer to one's opponent's 'argument'. He make's 'assertions' and they are always 'bold'.
If a layperson can read a document from beginning to end without falling asleep...it needs work.
Today I was working on an employment dispute case that I am going to present tomorrow. I was really surprised by the fact that I made my own coffee and I was drinking it while scribbling my defense for the next day hearing. I used to shun the thoughts of big, fat, lawyers drinking coffee as a totally unhealthy mix-up. But now im a convert, I started liking my coffee while working on my computer. Hmmm very bad indeed.
Friday, 28 November 2008
Saturday, 1 November 2008
General Principles of EU Law
Critical Evaluation of the Role of the European Court of Justice under Article 220 to Draw on General Principles of Law from the Legal System of the Member States
Article 220 European Community (EC) charges the European Court of Justice (ECJ) with the duty of ensuring that in the interpretation and application of the Treaty the law is observed. Other Treaty articles make specific reference to general principles, for example, subsidiarity, proportionality and equality, and Article 230 provides that one ground of review of illegality is the infringement of "any rule of law" relating to the application of the Treaty. Moreover, Article 6 of the Treaty of the European Union (TEU) provides that the European Union (EU) is founded upon principless of liberty, democracy, respect for human rights and fundamental freedom and the rule of law, principles that are common to the Member States. These provisions added together may supply some (or complete) justification for the development of general principles within the ECJ's jurisprudence. Whether it has always been clear that the ECJ would have to do so is debatable. It should be noted that the TEU did not come into force until 1993 and in the absence of travaux preparatoires, it is not known what the draftsmen of the EEC Treaty (as it then was) originally intended.
Over time a significant number of general principles has been adopted by the ECJ, principles which are in turn binding upon the national courts. The ECJ has relied upon general principles as an aid to interpretation in or determining the validity of acts of the institutions of the EC, as a way of controlling the acts of national authorities when they are carrying out Community tasks and generally in order to fill the gaps in the law. There is no space here to do more than mention a few of the principles themselves.
It could be argued that judges in all courts sometimes have to call in aid unwritten rules or norms in order to fill gaps so as to be able to decide the cases before them. Early in the history of the ECJ, when the court was dealing with questions under the ECSC, it was realised by the Advocate General (AG) that the rules laid down for the implementation of that Treaty were not necessarily sufficiently comprehensive to resolve all disputes. AG Roemer said in Netherlands v High Authority (1954) that the ECJ must take account of the law of the different Member States in order to interpret Community law and AG Lagrange pointed out in 1955 (Federation Charbonniere de Belgigues v High Authority) that the ECJ could not refuse to give a ruling because of a lacuna in Community law. In 1957 (Algera & Others v Assembly) the ECJ itself made specific reference to the provisions of French, German and Italian law because it appeared necessary to reach a decision.
With hindsight, it could indeed be argued that the ECJ did 'have to accept' that the principles of fundamental rights are part of Community law as is evident from a series of cases involving a dialogue, in effect, with the German Constitutional Court. This took place long before the TEU. At first the ECJ was not sympathetic to the argument that Community law should comply with fundamentl rights guaranteed by the German Basic law but fairly soon the ECJ changed tack and declared that fundamental rights were part of Community law. The ECJ to be at odds with any Constitutional court on matters of Community law. The ECJ could not allow Community law to be subject to national norms. Stauder was the first case in which the ECJ was prepared to accept that the applicant's argument based on the fundamental right of respect for human diginity was relevant. The new approach was developed and further explained in the Handelgessellschaft case. The court ruled, in response to an argument that the EC measure at issue should be held against national (constitutional) norms, that, on the contrary, it had to be judged in the light of Community law because any other answer would damage the effectiveness of Community law -each Member State could produce a different answer. The ECJ went on to state that the respect for human rights "forms an integral part of the general principles of Community law" which the court would protect. Such protection of general principles was "inspired" by the constitutional traditions common to the Member States, the court said. It is not strictly relevant to this essay to note that wehn the ECJ's answer was sent to the German Court, that court decided, contrary to the ruling, that the national principle of proportionality had indeed been violated by the system of deposits under the EC measure.
The ECJ continued to justify and further clarify its embracing of fundamental right in Hauer. The court repeated what it had already said in Nold that it would not only draw inspiration from national constitutional norms but also from international treaties of which the Member States were signatories. Such norms supplied guidelines which had to be followed in interpreting Community law. In Hauer the European Convention of Human Rights and Fundamental Freedoms is expressly mentioned, specifically, the first protocol, which was relevant to Hauer's claim. Since 1993, the principles listed in the ECHR appear in Community legislation and Convention rights have been regularly relied upon in argument.
The principle of non-discrimination, unlike fundamental human rights, had a textual basis in the EC Treaty from the beginning. After amendments of the Treaty, it now appears in articles 12 and 13, all the free movement provisions and the equal treatment of men and women in Article 141 and others. Nevertheless the ECJ has itself developed the scope or reach of the principle, sometimes contentiously, as in P v S. There are Treaty provisions which allow a Member State to derogate from the equal treatment principle. The difficult situations for the court to resolve have tended to be those that involved indirect discrimination, for example, a language requirement of national law whose purposes is valid and recognized, as in Groener and Angonese. The ECJ developed the approach of requiring objective justification for the derogation-to show that it was not disguised protectionism or discrimination-but such justification was only acceptable if it was not disproportionate.
Proportionality itself as a general principle has been explained and applied by the ECJ although initially there was no textual basis for it. There is now a textual basis for it both in Article 5 EC and also in an additional protocol under the Treaty of Amsterdam. According to Craig and de Burca the concept was most fully developed by the German courts. Proportionality means, in this context, that a Community measure, whether it is legislation or a decision of the institutions, or national measure with a Community aspect, must not go beyond what is necessary to achieve the aim of the measure. The application of the principles of proportionality requires a court to perform a balancing act between competing interests, for example, when an individual asserts that her right has been unduly restricted by a Community measure. This was the position in Hauer where a wine producer challenged a Community limitation on the planting of new vines of particular type. The correct balance had to be achieved between the wine producer's right to property as against the general scheme of the Common Agricultural Policy. It was a temporary measure designed to deal with the problem of the 'wine lake' and the ECJ ruled that whilst Community law protects fundament rights, on the facts, the claimant's right was not disproportionately infringed.
The FEDESA case provides an example fo a challenged to a more general Community policy to reduce the use of growth hormones in animal feed. The ECJ has often had to examine closely the arguments in such cases in order to decide whether a Community measure is disproportionate within the general policy. This has been on order to give proper guidance to a national referring court which has to apply the principles to the facts.
It is arguable that the most crucial step taken by the ECJ was in accepting jurisdiction to answer questions referred to it by national court at the beginning. Given the strong arguments of the Member States on this admissibility issue at that time it seems likely that the creation of the "new legal order" , what it has become, was not foreseen. Once the ECJ accepted that it had a duty to transfer questions referred to it, then it could be said that the development of general principles became necessary in order to deal with disputes before that court. It is the Advocates General who have provided fuller accounts of those principles and their provenance in their opinions.
Over time a significant number of general principles has been adopted by the ECJ, principles which are in turn binding upon the national courts. The ECJ has relied upon general principles as an aid to interpretation in or determining the validity of acts of the institutions of the EC, as a way of controlling the acts of national authorities when they are carrying out Community tasks and generally in order to fill the gaps in the law. There is no space here to do more than mention a few of the principles themselves.
It could be argued that judges in all courts sometimes have to call in aid unwritten rules or norms in order to fill gaps so as to be able to decide the cases before them. Early in the history of the ECJ, when the court was dealing with questions under the ECSC, it was realised by the Advocate General (AG) that the rules laid down for the implementation of that Treaty were not necessarily sufficiently comprehensive to resolve all disputes. AG Roemer said in Netherlands v High Authority (1954) that the ECJ must take account of the law of the different Member States in order to interpret Community law and AG Lagrange pointed out in 1955 (Federation Charbonniere de Belgigues v High Authority) that the ECJ could not refuse to give a ruling because of a lacuna in Community law. In 1957 (Algera & Others v Assembly) the ECJ itself made specific reference to the provisions of French, German and Italian law because it appeared necessary to reach a decision.
With hindsight, it could indeed be argued that the ECJ did 'have to accept' that the principles of fundamental rights are part of Community law as is evident from a series of cases involving a dialogue, in effect, with the German Constitutional Court. This took place long before the TEU. At first the ECJ was not sympathetic to the argument that Community law should comply with fundamentl rights guaranteed by the German Basic law but fairly soon the ECJ changed tack and declared that fundamental rights were part of Community law. The ECJ to be at odds with any Constitutional court on matters of Community law. The ECJ could not allow Community law to be subject to national norms. Stauder was the first case in which the ECJ was prepared to accept that the applicant's argument based on the fundamental right of respect for human diginity was relevant. The new approach was developed and further explained in the Handelgessellschaft case. The court ruled, in response to an argument that the EC measure at issue should be held against national (constitutional) norms, that, on the contrary, it had to be judged in the light of Community law because any other answer would damage the effectiveness of Community law -each Member State could produce a different answer. The ECJ went on to state that the respect for human rights "forms an integral part of the general principles of Community law" which the court would protect. Such protection of general principles was "inspired" by the constitutional traditions common to the Member States, the court said. It is not strictly relevant to this essay to note that wehn the ECJ's answer was sent to the German Court, that court decided, contrary to the ruling, that the national principle of proportionality had indeed been violated by the system of deposits under the EC measure.
The ECJ continued to justify and further clarify its embracing of fundamental right in Hauer. The court repeated what it had already said in Nold that it would not only draw inspiration from national constitutional norms but also from international treaties of which the Member States were signatories. Such norms supplied guidelines which had to be followed in interpreting Community law. In Hauer the European Convention of Human Rights and Fundamental Freedoms is expressly mentioned, specifically, the first protocol, which was relevant to Hauer's claim. Since 1993, the principles listed in the ECHR appear in Community legislation and Convention rights have been regularly relied upon in argument.
The principle of non-discrimination, unlike fundamental human rights, had a textual basis in the EC Treaty from the beginning. After amendments of the Treaty, it now appears in articles 12 and 13, all the free movement provisions and the equal treatment of men and women in Article 141 and others. Nevertheless the ECJ has itself developed the scope or reach of the principle, sometimes contentiously, as in P v S. There are Treaty provisions which allow a Member State to derogate from the equal treatment principle. The difficult situations for the court to resolve have tended to be those that involved indirect discrimination, for example, a language requirement of national law whose purposes is valid and recognized, as in Groener and Angonese. The ECJ developed the approach of requiring objective justification for the derogation-to show that it was not disguised protectionism or discrimination-but such justification was only acceptable if it was not disproportionate.
Proportionality itself as a general principle has been explained and applied by the ECJ although initially there was no textual basis for it. There is now a textual basis for it both in Article 5 EC and also in an additional protocol under the Treaty of Amsterdam. According to Craig and de Burca the concept was most fully developed by the German courts. Proportionality means, in this context, that a Community measure, whether it is legislation or a decision of the institutions, or national measure with a Community aspect, must not go beyond what is necessary to achieve the aim of the measure. The application of the principles of proportionality requires a court to perform a balancing act between competing interests, for example, when an individual asserts that her right has been unduly restricted by a Community measure. This was the position in Hauer where a wine producer challenged a Community limitation on the planting of new vines of particular type. The correct balance had to be achieved between the wine producer's right to property as against the general scheme of the Common Agricultural Policy. It was a temporary measure designed to deal with the problem of the 'wine lake' and the ECJ ruled that whilst Community law protects fundament rights, on the facts, the claimant's right was not disproportionately infringed.
The FEDESA case provides an example fo a challenged to a more general Community policy to reduce the use of growth hormones in animal feed. The ECJ has often had to examine closely the arguments in such cases in order to decide whether a Community measure is disproportionate within the general policy. This has been on order to give proper guidance to a national referring court which has to apply the principles to the facts.
It is arguable that the most crucial step taken by the ECJ was in accepting jurisdiction to answer questions referred to it by national court at the beginning. Given the strong arguments of the Member States on this admissibility issue at that time it seems likely that the creation of the "new legal order" , what it has become, was not foreseen. Once the ECJ accepted that it had a duty to transfer questions referred to it, then it could be said that the development of general principles became necessary in order to deal with disputes before that court. It is the Advocates General who have provided fuller accounts of those principles and their provenance in their opinions.
Friday, 31 October 2008
Parliamentary sovereignty versus Community law supremacy
Outline the change in attitude of English courts since 1973 on the issue of the interpretation and status of national legislative provisions that are in conflict with EC law.
The European Community Act 1972 (ECA) came into force in 1973. Section 2 provides that UK courts are to give effect to the acquis communautaire, to enforce Community rights and remedies, etc. It was widely accepted at the time when the Bill was debated in Parliament that ss2 and 3 did not exclude the possibility that the ECA could be repealed at some future date and so in this way it could be said that the doctrine of parliamentary sovereignty was not affected. The judicial explanation of the interaction between Community and national law and the issue of supremacy of Community law has evolved over time in the English court and will be described in this essay.
The essential point with which the judges have had to grapple is contained in s2(1) ECA where it is provided that all Community law, whenever enacted, is to be given effect in English law and further in s2(2) which states that all enactments of Parliament "passed or to be passed" are to be given effect in accordance with s2.
Initially the approach of the English judges, when having to deal with inconsistencies between Community law and domestic legislation, was to rely on statutory interpretation, thus avoiding the issue of sovereignty. Thus, for example, Lord Denning in the Bulmer v Bollinger (1974) case said that the EEC Treaty (as it was then) is now "part of our law. It is equal in force to any statute". But the real question that the English court has had to come to term with is the question of the supremacy, not equality, of Community law over English law in cases of conflict. In 1979 in Macarthy's v Smith Lord Denning, who failed on this occassion to persuade his fellow judges sitting with him in the Court of Appeal, said that Community law was an "overriding force" with the result that precedence had to be given to it whenver there was inconsistency. The conflict in that case was between Article 119 EEC (now 141 EC) and the Equal Pay Act. Eventually when the answer came back from the ECJ to the questions referred to it, the Court of Appeal felt able to 'construe' the statute to comply with the Treaty obligation.
A constitutional problem is to do with the separation of powers doctrine, in particular, the traditional role of the judiciary which is/was to do no more than interpret the will of Parliament. The traditional methods employed by the English judiciary in order to perform this function proved to be unequal to the task once the UK became a Member State of the European Community leading to the development of purposive interpretation and it is this development that exercised the judges at the beginning. Another early example of the judicial reluctance to address directly the sovereignty point is provided by Lord Diplock's words in Garland (1982) where he said that it was a principle of statutory interpretation (that did not any longer need a citation of authority as it was so well established) that an English scourt will always construe a relevant statute so as to comply with the UK's international obligations. But the point is that many cases ended up in the House of Lords during a period of uncertainty.
By 1989 the House of Lords was able to construe legislative provisions without the need for a reference of the ECJ in the case of Litster v Forth Dry Dock. Admittedly the provisions in question were contained in a statutory instrument (rather than a statute) that was put in place pursuant to a Directive but nevertheless it seemed to mark a significant change in the judicial attitude that the House was willing to stray as far as it did from the wordings of the legislation. The effect of deciding that the Regulations (TUPE) had to be interpreted so that they are in conformity with the UK's obligations under the Treaty was to read into that legislation the words "or would have been so employed had they not been unfairly dismissed". The assumption was that the UK intended to comply with its obligations under the Directive.
The statutory interpretation approach became untenable in the course of the Factortame litigation, however. The main procedural question initially was whether an English court could grant interim relief (to suspend the operation of a statute until the issue of the substantive inconsistency between the Merchang Shipping Act of 1988 and EEC Treaty articles was settled by the ECJ on a preliminary reference) to the Spanish claimants. The House of Lords on appeal from the Court of Appeal agreed with that court that it was not possible to grant an injunction against the Crown (sovereign Parliament). The ECJ's answer on the interim relief point was that the Community rights must be protected by the national court to ensure the effectiveness of the Treaty and so the English national court had to set aside any national law that prevented it from enforcing Community rights. Thus English rules about whether an injunction will lie against the Crown had to be abandoned when there was a Community issue before the court.
When the ECJ's answer was received by the House of Lords, Lord Bridge was able to say with considerable confidence and contrary to what he had said earlier, before the question was referred, that if the supremacy of Community was not always inherent in the Treaty, it was certainly well established by the time the UK joined the Community in 1973.
The English court had to do the constitutionally unthinkable in Factortame: not only grant interim relief where had never been granted previously but also to disapply a Parliamentary Act. As there is no constitutional court in the UK there had never before existed a power for the judiciary, in effect, to hold invalid an Act of Parliament. In terms of status, therefore, it could be said that EC law takes precedence over national legislation.
Lord Bridge was right in what he said in Factortame. The cases of Van Gend and Costa in the 1960's made clear that to some extent, that is, within the scope of the Treaty, Member States had limited their sovereignty when they created a new legal order of unlimited duration with its own autonomous institutions. The new legal order, said the ECJ, allowed individuals to rely upon their Treaty rights within their national courts and therefore if national provisions were enacted in breach of that Member State's obligations then it was the duty of the national court to accord precedence to Community law. This was the legal order that the UK joined in 1973 but it took the judiciary some time before it could be so clearly articulated.
A more recent illustration of the change in attitude in the English court is to be found in the Equal Opportunities case (R v Secretary of State for Employment ex p Equal Opportunities Commission, 1995). The case was a challenge by the EOC to provisions of the Employment Protection (Consolidation) Act 1978, as amended, under which part-time workers were disadvantaged compared to full time workers contrary to the equal treatment directives. Such disadvantages had been held by the ECJ numerous times to be indirect discrimination. The House of Lords, without referring a questions to the ECJ and relying on the authority of Factortame, declared that the provisions of the statute were discriminatory and so contrary to Community law and also stated that the Divisional Court, which hears applications for judicial review, is the appropriate court to make such a declaration in future cases of this nature.
Laws LJ, in the Metric Martyrs case (2003) gave primacy to the common law however, in that it is the judges who examine and describe the relationship between the EU and the UK. He held that the ECA is a constitutional statute which cannot impliedly repealed.
The European Community Act 1972 (ECA) came into force in 1973. Section 2 provides that UK courts are to give effect to the acquis communautaire, to enforce Community rights and remedies, etc. It was widely accepted at the time when the Bill was debated in Parliament that ss2 and 3 did not exclude the possibility that the ECA could be repealed at some future date and so in this way it could be said that the doctrine of parliamentary sovereignty was not affected. The judicial explanation of the interaction between Community and national law and the issue of supremacy of Community law has evolved over time in the English court and will be described in this essay.
The essential point with which the judges have had to grapple is contained in s2(1) ECA where it is provided that all Community law, whenever enacted, is to be given effect in English law and further in s2(2) which states that all enactments of Parliament "passed or to be passed" are to be given effect in accordance with s2.
Initially the approach of the English judges, when having to deal with inconsistencies between Community law and domestic legislation, was to rely on statutory interpretation, thus avoiding the issue of sovereignty. Thus, for example, Lord Denning in the Bulmer v Bollinger (1974) case said that the EEC Treaty (as it was then) is now "part of our law. It is equal in force to any statute". But the real question that the English court has had to come to term with is the question of the supremacy, not equality, of Community law over English law in cases of conflict. In 1979 in Macarthy's v Smith Lord Denning, who failed on this occassion to persuade his fellow judges sitting with him in the Court of Appeal, said that Community law was an "overriding force" with the result that precedence had to be given to it whenver there was inconsistency. The conflict in that case was between Article 119 EEC (now 141 EC) and the Equal Pay Act. Eventually when the answer came back from the ECJ to the questions referred to it, the Court of Appeal felt able to 'construe' the statute to comply with the Treaty obligation.
A constitutional problem is to do with the separation of powers doctrine, in particular, the traditional role of the judiciary which is/was to do no more than interpret the will of Parliament. The traditional methods employed by the English judiciary in order to perform this function proved to be unequal to the task once the UK became a Member State of the European Community leading to the development of purposive interpretation and it is this development that exercised the judges at the beginning. Another early example of the judicial reluctance to address directly the sovereignty point is provided by Lord Diplock's words in Garland (1982) where he said that it was a principle of statutory interpretation (that did not any longer need a citation of authority as it was so well established) that an English scourt will always construe a relevant statute so as to comply with the UK's international obligations. But the point is that many cases ended up in the House of Lords during a period of uncertainty.
By 1989 the House of Lords was able to construe legislative provisions without the need for a reference of the ECJ in the case of Litster v Forth Dry Dock. Admittedly the provisions in question were contained in a statutory instrument (rather than a statute) that was put in place pursuant to a Directive but nevertheless it seemed to mark a significant change in the judicial attitude that the House was willing to stray as far as it did from the wordings of the legislation. The effect of deciding that the Regulations (TUPE) had to be interpreted so that they are in conformity with the UK's obligations under the Treaty was to read into that legislation the words "or would have been so employed had they not been unfairly dismissed". The assumption was that the UK intended to comply with its obligations under the Directive.
The statutory interpretation approach became untenable in the course of the Factortame litigation, however. The main procedural question initially was whether an English court could grant interim relief (to suspend the operation of a statute until the issue of the substantive inconsistency between the Merchang Shipping Act of 1988 and EEC Treaty articles was settled by the ECJ on a preliminary reference) to the Spanish claimants. The House of Lords on appeal from the Court of Appeal agreed with that court that it was not possible to grant an injunction against the Crown (sovereign Parliament). The ECJ's answer on the interim relief point was that the Community rights must be protected by the national court to ensure the effectiveness of the Treaty and so the English national court had to set aside any national law that prevented it from enforcing Community rights. Thus English rules about whether an injunction will lie against the Crown had to be abandoned when there was a Community issue before the court.
When the ECJ's answer was received by the House of Lords, Lord Bridge was able to say with considerable confidence and contrary to what he had said earlier, before the question was referred, that if the supremacy of Community was not always inherent in the Treaty, it was certainly well established by the time the UK joined the Community in 1973.
The English court had to do the constitutionally unthinkable in Factortame: not only grant interim relief where had never been granted previously but also to disapply a Parliamentary Act. As there is no constitutional court in the UK there had never before existed a power for the judiciary, in effect, to hold invalid an Act of Parliament. In terms of status, therefore, it could be said that EC law takes precedence over national legislation.
Lord Bridge was right in what he said in Factortame. The cases of Van Gend and Costa in the 1960's made clear that to some extent, that is, within the scope of the Treaty, Member States had limited their sovereignty when they created a new legal order of unlimited duration with its own autonomous institutions. The new legal order, said the ECJ, allowed individuals to rely upon their Treaty rights within their national courts and therefore if national provisions were enacted in breach of that Member State's obligations then it was the duty of the national court to accord precedence to Community law. This was the legal order that the UK joined in 1973 but it took the judiciary some time before it could be so clearly articulated.
A more recent illustration of the change in attitude in the English court is to be found in the Equal Opportunities case (R v Secretary of State for Employment ex p Equal Opportunities Commission, 1995). The case was a challenge by the EOC to provisions of the Employment Protection (Consolidation) Act 1978, as amended, under which part-time workers were disadvantaged compared to full time workers contrary to the equal treatment directives. Such disadvantages had been held by the ECJ numerous times to be indirect discrimination. The House of Lords, without referring a questions to the ECJ and relying on the authority of Factortame, declared that the provisions of the statute were discriminatory and so contrary to Community law and also stated that the Divisional Court, which hears applications for judicial review, is the appropriate court to make such a declaration in future cases of this nature.
Laws LJ, in the Metric Martyrs case (2003) gave primacy to the common law however, in that it is the judges who examine and describe the relationship between the EU and the UK. He held that the ECA is a constitutional statute which cannot impliedly repealed.
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