Nationalisation of European law

Date: 26/10/1995

By Ian S. Forrester QC

WHAT do Portugal, Scotland, Ireland and Greece have in common legally? Answer: their courts are rarely confronted by EC law questions difficult enough to merit being referred to the European Court.

Article 177 of the EC Treaty permits any court in a member state to refer a question to the European Court. A supreme court must do so if the question is necessary for the resolution of the case before it.

In theory, the incidence of Euro-law problems should be consistent across the EU; in reality, there are big discrepancies. From 1990 to 1994, there were ten references from Portugal and nine from Ireland, but more from other small countries closer to Europe's heart: 95 from Belgium and 89 from the Netherlands. Scotland has referred only seven questions on all EU subjects to Luxembourg in 22 years. By contrast, in 1994 alone there were 44 references from German courts.

The number of references should broadly reflect the frequency with which EC law arguments are made before national courts. One implication is that lawyers in some member states are not noting the presence of EC problems and not raising them on behalf of clients. EC law has thus permeated the marrow of national legal consciousness to differing degrees. Generally, more 'recent' member states adopt EC law more slowly than the others. It seems most unlikely that Scottish or Portuguese firms encounter EC competition law problems as rarely as the incidence of references from those countries suggests.

How hierarchical the legal system is can also make a difference: German local district courts frequently make references, English magistrates only rarely. The British judicial approach has usually been cautious: judges feel that the European Court is busy; making a reference condemns the parties to a 20-month delay; it is better to make a reference only where it is plain that the Court will be involved sooner or later. On the other hand, some German and Italian courts have been ready to send a wide variety of cases to Luxembourg, some of them simple disputes on customs classification, some of them not really ripe for the European Court's analysis.

The amount of detail furnished by the national court to explain why guidance from the European Court is necessary may vary from one page to over 100. The Court will tactfully adapt questions which are inept. (“Is Royal Decree 123 valid?” will not be answered with a yes or a no, but with an indication of the relevant principles by which national judges can decide the case), and will, on rare occasions, decline to answer questions which seem to be artificial devices to allow the parties to bring a spurious dispute before the Court (Foglia v. Novello), or if the questions are truly incomprehensible (Telemarsicabruzzo).

The Commission does not always make life easier for national judges, particularly in competition matters where it shares competence to enforce the law with national judges, but has the sole power to grant exemptions from the scope of Article 85 (1) of the treaty. The judge may be confronted with one party saying the contract is prohibited by Article 85 (1) and the other saying the Commission is considering it sympathetically and may grant an exemption.

There is an inconsistency between encouraging firms to use national courts to complain of EC law infringements while refusing to allow those courts to grant exemptions. The Commission announced recently that it was ready to assist national judges confronted by such problems, but so far, only a handful of requests for its assistance have been made.

A number of specialists in EC law regularly appear before the European Court of First Instance or the European Court of Justice and have a knack of discovering points of EC law in their daily practice. One avocat in Liège has been involved in a string of cases on free movement of workers; a Dutch advokaat has changed the rights of trademark holders in a series of carefully planned litigations in the field of pharmaceuticals; and one English QC has participated in a string of gender discrimination cases.

As European law becomes more familiar, more routinely invoked, the use of specialists may diminish. Similarly, in the 1920s and 1930s, there was a small Supreme Court bar in the United States. John W. Davis was regarded as an expert on Supreme Court argument and was retained by lawyers from all over America. He argued more cases before that court than anyone in history. But today, a Wyoming lawyer with a case before the Supreme Court would be likely to argue it himself, not look for an 'expert'.

Currently, the European Court of Justice hears from a mixture of specialists who appear regularly and national practitioners making an exceptional trip. When the specialists die out, European law will have been successfully 'nationalised'.

This article reflects the personal views of the author.