Brittan attacks UK’s bid to curb ECJ

Date: 11/07/1996

By Michael Mann

TRADE Commissioner Sir Leon Brittan has warned the beleaguered British government against pressing its demands for new limits on the powers of the European Court of Justice (ECJ).

Brittan, himself a barrister and former member of the Conservative government, told a group of Tory parliamentarians that attempts to curb the powers of the Luxembourg Court “would greatly damage the UK's long-term strategic interest in building a European Union based on open markets, sound money and the rule of law”.

Following a series of ECJ judgements against the UK which sparked an outcry amongst Tory backbenchers and in British newspapers, London called for limits on the competence of the Court in its initial submission to the Intergovernmental Conference,

“There is concern that the ECJ's interpretation of laws sometimes seems to go beyond what the participating governments intended in framing these laws,” the UK claimed in its White Paper A Partnership of Nations.

But in a strongly-worded attack, Brittan has accused the UK government of “playing to the gallery” in the run-up to the next British general election, which must be held by May next year.

“No court is perfect ... but there is no chance of getting any legitimate improvements if, when asking for them, you give the impression that your real aim is to undermine the Court's whole purpose and role,” said Brittan, adding that the UK had to choose between “knocking copy and constructive proposals that stand a chance of convincing our partners”.

The Commissioner told his audience that the Court was a vital tool in efforts to enforce EU legislation to ensure the free movement of goods and services within the single market, and denied that it was a force for “Euro-centralisation”.

Recent judgements which have sparked anger in the UK include the ECJ's verdict in the Factortame case, when the government was ordered to pay compensation to a group of Spanish fishing companies it had prevented from fishing under UK quotas.

A further crisis is looming over the forthcoming judgement on the British challenge to the Working Time Directive, which imposes a maximum 48-hour working week. Most observers expect the Court to follow the advice of Advocate-General Philippe Léger and find against the UK.

London's calls for reform include a proposal for the introduction of a right of appeal to the Council of Ministers against judgements with which member states are unhappy.

It has also called for moves to limit the retroactive effect of ECJ rulings, but has won little support for this idea among other member states.

While the UK has concentrated its efforts on attacking the Court, other Union countries have put forward a range of ideas for developing the institution's working practices.

These include the creation of regional or special courts to handle specific areas of the Maastricht Treaty, a speedier turnover of cases, greater opportunities for individuals to take cases to the Court and making better use of the ECJ's theoretical power - enshrined in the treaty during the Maastricht negotiations at the UK's insistence - to fine member states which ignore its rulings.

This has sparked a wide-ranging debate about the Court's future within the legal profession as well as among diplomats.

EU lawyer Gerrit Schohe believes there has been far too little discussion about the rights of an individual before the Court and says his profession feels the ECJ puts Community interests before those of the Union's citizens.

“We are very fond of the Court of First Instance, a fully-fledged court which takes facts and the rights of individuals seriously,” says Schohe.

He admits that national laws are themselves often driven by the rulings of judges, but brands the ECJ “the pacemaker and engine for European integration”, adding: “It takes an academic, friendly approach to the Community and often we do not know on what facts a judgement has been based.”

Increasingly, Schohe believes, the Court of First Instance will become the Union's citizens' court, while the ECJ develops into a form of constitutional court.