Courts and states in imperfect harmony

Date: 05/10/1995

By Ian S Forrester QC

'European' courts have never been very popular with national governments except if they render a favourable ruling. It was no surprise that the judgement of the European Court of Human Rights on the issues presented by the killings of IRA members in Gibraltar was so unwelcome in the UK.

That a British minister briefly contemplated ignoring the judgement was, however, most unusual.

The UK is generally regarded in Brussels as the most punctilious member state in observing the letter of Euro-law (though its ministers are often the most cantankerous in doing so). Both the European Court of Human Rights in Strasbourg and the Court of Justice of the European Communities (ECJ) in Luxembourg are responsible for supervising the domestic implementation of international treaty obligations. The UK attaches a very high importance to not being found at fault in either forum.

One domestic political problem for all member states is being dictated to by 'foreign' judges. Another is the fact that these judges apply abstract constitution-like principles, which in particular cases can be controversial. The sensitivity of losing in Strasbourg is greater, since the aggrieved individual has direct access to the international court, accusing a government of violating his or her fundamental rights. In Luxembourg the issue is almost always presented in a less confrontational way. No matter that hundreds of human rights complaints are rejected as manifestly unfounded, there is irritation or outrage at being found wanting in any case.

Heresy

International courts are not good at assessing sharply-contested facts. So Article 177 of the EC Treaty provides that the road to Luxembourg for private litigants normally begins at home. If the national judge believes you have a good case under EC law, he can refer the questions presented by the set of facts to the European Court. If your claim is clearly well-founded, you can win without the need for a reference; if your claim is clearly bad, things will go no further.

Thus the concept (heresy in traditional national law terms) of allowing private parties to invoke an international treaty is present in both EC and human rights cases. In the former, though, local judges determine the facts and separate the wheat from the chaff. So the changes wrought by EC law are accomplished more smoothly. This does not prevent the ECJ from unleashing revolutions. The Barber case turned pension law upside down by indicating that women (who live longer and retire earlier than men) were entitled to equal benefits with men, even though actuarially their entitlements should have been unequal.

Critics sometimes complain that the ECJ has a political agenda and that its competence be trimmed or judgements reversed. The accusation is that the Court is the ally of the Commission, taking the Euro-radical line too readily in sensitive cases. It is certainly true that the judgements of the Court, like other constitutional courts, reflect cycles of change and evolution and opinion.

Revolution

During the 1970s, the Court helped bring about a revolution in trademark and patent law. Prior to its Centrafarm judgements, a manufacturer could sell identical drugs under the same trademark in two member states, while preventing importation and sale from one country to the other. It does not surprise us today that trademark or patent rights can no longer be used to block such trade, but it is unsure how the law would have changed without the Court's intervention. The 1970s were a fallow period for Community integration and in some ways the Court was a more powerful engine for integration than the Commission or the Council.

Today, like other courts, it can be difficult to predict. It is interesting to record some of the recent occasions where the Court was widely expected to take a bold line, but instead found in favour of the member state concerned. It initially declined to take sides in the dispute between Greece and its partners over “Macedonia”. In the Keck and Mithouard judgements, it astonishingly abandoned its previous over-elaborate case law on free movement of goods, leaving it to local regulations to decide how goods may be marketed locally, even if these may have an effect on trade between member states.

In the Bachmann case, it endorsed a Belgian tax rule which discriminated against holders of foreign insurance policies. In Schindler, it rejected the Commission's line, finding that lottery tickets (issued in Germany and offered for sale in the UK) were ineligible for the freedoms of movement guaranteed by the EC Treaty.

At a time when parliamentary control of the executive is weakening, when more rules are being made and being made by civil servants rather than by parliaments, the role of the constitutional courts is becoming more important. But unless governments occasionally lose, these courts have little value.

This is the first in an occasional column where lawyers offer their personal views on trends and developments in European law.