UK stands alone on reform of ECJ

Date: 14/11/1996

By Rory Watson

ATTEMPTS led by the UK to use the Intergovernmental Conference to review the powers and operation of the European Court of Justice have so far found few takers.

IGC negotiators confirm that the issue is not a policy priority and acknowledge that, apart from the UK, no government has tabled a submission detailing proposals for specific reforms of the Union's highest legal body.

“The ECJ is under discussion, but a lot more work needs to be done and the IGC will probably come back to this issue, but it is unlikely to be during the Irish presidency. There is also a widespread view that the Court should not be weakened,” said a senior EU diplomat.

British Foreign Secretary Malcolm Rifkind has repeatedly insisted that his government's proposals are a positive attempt to improve the way the Court operates.

In a detailed memorandum, London has argued that clear limits should be placed on the retrospective effect of ECJ rulings and on the damages payable by member states. It is also pressing for new procedures to allow governments to appeal against Court judgements and to demand a ruling on the proposed legal base of draft EU legislation before it is approved by the Council of Ministers.

“Although some governments might be sympathetic to some of these points, there is certainly suspicion about the UK's motives. There is equally a general reluctance to interfere with the independence of the judiciary,” said one senior official, explaining the lack of attention paid so far to the Court in the IGC negotiations.

Yet, despite this reluctance to tackle the issue, it appears inevitable that some changes to the Court's role will be ushered in by the revised treaty.

One trigger will be the concept of flexibility or of 'enhanced cooperation' among a group of member states, which the French and German governments in particular are promoting as a way to prevent the Union continuously developing at the pace of the slowest.

Paris and Bonn believe that the Court should vet such forms of enhanced cooperation to ensure they comply with the EU's treaties. Its involvement could be requested either by a member state standing outside the arrangement or by one participating in the scheme which believed that the terms of the agreement were not being honoured.

But as they begin to examine in detail how this new flexibility might work, member states are becoming distinctly nervous about its possible implications.

“When IGC representatives had their first discussion on this over dinner, they directed a series of sharp questions at the authors. Basically, there is a fear it could lead to two separate legal systems,” explained one senior EU official.

A second trigger could come from the changes being considered by member states to strengthen key areas of judicial and police cooperation. Growing support for the transfer of responsibility for action on visas, asylum and management of the Union's external frontiers from the current intergovernmental arrangements into the mainstream of EU business would automatically give the Court a legal input into these areas for the first time.

Perhaps the biggest stimulus for changes in the ECJ's operations, however, comes from a series of more practical considerations.

The first is the purely arithmetical consequences of enlargement, which could mean up to 60 judges sitting in the two Luxembourg courts.

But balancing the conflicting requirements of ensuring different legal systems are represented while preventing the collegiate Court from turning into a deliberative assembly is a conundrum

EU governments may decide to postpone tackling until the enlargement negotiations themselves.

Greater pressure for change is coming from the sheer volume of business now being handled by the two courts.

But efforts to improve their internal procedures run up against the major hurdle that every single change must be agreed unanimously by all Union governments.

“This takes time and no matter what the subject is there always appears to be one country which has difficulties with the idea. A major improvement in the way the courts work would be to give them control over their own rules of procedure,” said one EU lawyer.