Why directives need not be set in stone

Date: 05/09/1996

By Ian S. Forrester QC

AMERICAN politicians and officials are often accused of over-simplifying complex issues: by dividing the world into goodies and baddies a sound-bite-conscious spokesman can demonise not just the adversary but all who disagree with the measures to be taken against the adversary.

For example, the Helms-Burton law, penalising foreign companies which “traffic” in assets “confiscated” by the Cuban authorities, merely penalises those who have profited from state-sponsored theft; critics of the law, such as Sir Leon Brittan, are obviously in favour of Communism, expropriation without compensation, and other gross infringements of private property rights.

The European Commission is now preparing anti-boycott legislation in some ways comparable to US legislation prohibiting cooperation with the former Arab boycott of Israel. A major European objection to the Helms-Burton law is that it imposes its notions of how international relations should be conducted upon EU countries and companies based there.

President Reagan was once reckless enough to enrage Mrs Thatcher by imposing trade sanctions on companies which were assisting in the construction of a Soviet pipeline: she frostily rejected the idea that because the US government disapproved of the building of the pipeline, the US was entitled to prohibit the world's engineering firms from participating.

Part of the concern was economic. Part was emotional, aroused by encroachment upon sovereignty: another country does not have the right to order the rest of the world to do its bidding.

But American commentators and officials have no monopoly on misleading over-simplification. British participants in the great Euroscepticism debate could teach their cousins something on the subject of oversimplifying a complex issue and misleading the public in the process.

The Europhobes claim the Commission and European Court are encroaching on UK sovereignty when they assert that the UK has not acted in accordance with its obligations under the EC Treaty. Thus the UK is being pushed around in the Community in a manner that would not occur if it were a genuinely sovereign nation. This equates accepting a legislative obligation with loss of sovereignty. Lord Cockfield, father of the 1992 programme, used to say that sovereignty, like matter, could never be destroyed, but could change its form.

When two countries agree to a treaty, or when 15 member states agree to a directive on road vehicle noise, that text constitutes, indeed, a limit upon national freedom of action.

A weakness of international treaties is that they are usually not self-enforcing: if a country chooses to ignore its obligations, even a citizen may not be able to rely on the treaty before the courts of that country. And even if the breach is flagrant, co-signatories have only a limited range of available responses.

What makes the Community different is that mechanisms are established to remedy alleged failures to respect treaty-based obligations.

Among the judge-made mechanisms are the concept of direct effect (giving the citizen the right to invoke specific articles of the EC Treaty before member state courts) and primacy (whereby Community law overrides inconsistent national law). Among the treaty-made mechanisms, Article 169 permits a member state to be “prosecuted” by the Commission before the ECJ, and Article 177 allows national courts hearing cases involving alleged infringements of Community law to request the ruling of the ECJ thereon. Financial penalties are contemplated but as yet remain no more than a threat.

The most common defence offered by member states accused of failing to implement directives is administrative delays, problems in managing the legislative timetable, local problems of implementation and the like.

However, the sharpest controversies relate not to the refusal or failure of a member state to implement a directive, but to the unforeseen consequence of the terms of a directive. Is it discriminatory to fire the temporary worker hired to take the place of a worker on maternity leave, when the temporary worker herself becomes unavailable for work due to pregnancy?

The European Court may get it wrong and has done so in one or two cases.

Yet the judgements of supreme courts are not set in stone. The legislature can change the law as enunciated by the Court.

Discussing whether a given judgement is unsatisfactory and should be legislatively departed from should not be a matter for embarrassment.

Doubtless it would not happen often. But let us not confuse the rewriting of a complex piece of legislation to remedy an unexpected and unwelcome interpretation with beating off alien assaults upon the sovereignty of the nation. Sovereignty can be exercised collectively; and there is no evident merit in being opposed to the settlement of disputes by the decision of a neutral, fallible court.

This article reflects the personal views of the author.