Europe's courts of justice

The European Union is a legal order and like every legal order it needs an adjudicating body to settle disputes and develop law. The European court of justice (ECJ) in Luxembourg is that body. It is the least well known of the four core institutions of the EU (alongside the European commission, the council of ministers and the European parliament) and, until recently, the ECJ was regarded by the British government as a quiet ally in imposing justice on slippery continentals. At Maastricht in 1991, John Major successfully fought for the right of the ECJ to impose fines on governments found guilty of breaking EU law. The court, he argued, needed more power to make sure that EU law is applied in a fair and uniform manner throughout the union.

How things have changed. At the current intergovernmental conference (IGC), set to run for the next 18 months, Britain will argue that the ECJ has become far too big for its boots. British ministers have been angered by several recent decisions and Euro-sceptics believe that the court is abandoning its role of dispensing justice on the basis of existing laws so as to pursue federalist objectives.

Alongside the high-profile political arguments about reducing or extending the powers of the Luxembourg court, there are a number of more technical issues relating to the structure of the ECJ, the appointment of judges, and so on, which will also have to be addressed at the IGC. In the long run, these arguments about the nature of the EU's legal tradition may prove even more significant.



The Long honeymoon

When Britain joined the European Community in 1973, it (like all member countries) accepted that European law took precedence over national law and that the ECJ was at the centre of the system. The court handles several types of cases: disputes between member states, disputes between EU institutions and member states, disputes between the institutions themselves and disputes between individuals or companies and national courts where EU law is involved. The European court is often compared to the Supreme Court of the United States. Each has proved vital for the consolidation of their respective political systems. Each provides the needed degree of legal certainty for individuals, companies and other bodies throughout the territory for which they are responsible. As with the US Supreme Court, there is no appeal against decisions of the European court of justice.

Without the Luxembourg court, the EU could not force individual governments or EU institutions to stop cheating on EU rules. There would also be no forum to decide whether EU decisions, such as the ban on British beef, are a misuse of power under the treaty of Rome. The European single market in particular-the EU's greatest achievement to date-could not function.

But the court does more than just keep EU frontiers open. Its powers extend to other areas of union policy which are increasingly seen by Euro-sceptics as interference in British national sovereignty.

One of the principal functions of the Luxembourg court is to provide preliminary rulings in cases concerning the interpretation of EU laws that are referred to it by national courts. In this way, the court has built up a vast body of case law to which national courts and European and national lawmakers can refer. European court rulings may require national law to be changed if it is found to be in contradiction with EU law.

For example, a ruling in December last year involving an Irishman deported from Britain concluded that the UK's Prevention of Terrorism Act is in breach of EU law. The verdict marked the end of a long legal battle by John Gallagher, an Irish citizen, against his deportation from Britain. After unsuccessfully challenging the deportation order in British courts, Gallagher took his case to the court of appeal in London which then referred it to the ECJ. In its judgement, the ECJ ruled that the British government acted unlawfully when it deported Gal-lagher from Britain without giving him a chance to lodge an appeal before an independent authority. Under European law, EU citizens have the right to free movement within all member states-although governments can suspend this right where national security is at risk.

By chance, a few weeks later the other European court-the European court of human rights in Strasbourg, which is entirely separate from the ECJ-came to an equally controversial decision. Lawyers acting for two men detained "at Her Majesty's pleasure" for murder while juveniles in the 1970s, took their case direct to the Strasbourg court. On 21st February it ruled that detaining young offenders at Her Majesty's pleasure-leaving the duration of their detention in the hands of the Home Secretary-violated prisoners' rights to have their sentences reviewed by a court.

The Strasbourg court's judgements are based on the European convention of human rights, which Britain supports. Britain could end the irritation caused by the supranational jurisdiction of the Strasbourg court by incorporating the convention into national law. If it were to do so, cases of alleged violations would be dealt with by British courts.

No such solution exists to stop the sovereignty-sapping powers of the ECJ. Various other apparently intrusive rulings by the court-especially in the area of social and labour policy-have helped turn the British government against it. One in particular (the 1990 case of Barber v. The Royal Guardian Exchange Assurance Scheme) established the principle of equal pay for men and women in occupational pension schemes. The ruling could have involved the payment by British companies of considerable sums in backdated liabilities.

Britain is not the only country to have shown reluctance to accept the supremacy of EU law. Members of the German constitutional court have argued on occasion that there could be instances where European law might not be binding in Germany. Such an affirmation has never been tested in practice.

Italy has also found itself in an uncomfortable position following the so-called Francovich ruling. Here, the court ruled that the Italian government-which had failed to implement an EU directive providing for worker compensation when companies collapse-was itself liable to pay damages to firms or workers concerned because it was in breach of EU law.

Reforming the ECJ

Britain has several proposals for reforming the ECJ which it wants to negotiate at the IGC. One is to restrict the retroactive impact of court rulings by imposing time limits on their applicability. This will prevent a ruling such as the one on Britain's occupational pension schemes arising again. Britain also wants to make sure that rulings such as the one in the Francovich case apply only to cases where governments are clearly acting in bad faith. It argues that there is a clear difference between cases where members believe in good faith that they are implementing EU legislation correctly and those where there is a "grave and manifest disregard of their obligations." The Francovich principle of damages should apply only to the latter category.

However, the most sweeping call for reform made by the British government is for the establishment of a right of appeal against rulings by the court. Who the appeal body might be is not clear, but it would be a political entity-emanating from the council of ministers or other representatives of EU governments. This is consistent with Britain's goal of moving the centre of gravity of EU authority away from such supranational bodies as the ECJ and the European commission and towards more intergovernmental ones such as the council of ministers.

Britain's newfound distrust of the court is already having an impact on one sensitive area of EU policy: crime busting. As modern criminals benefit from state-of-the-art communications and frontier-free mobility within Europe, EU governments have tried to respond. One of their instruments is a Europe-wide intelligence gathering centre called Europol, which is potentially the embryo for a European police force with its own investigative and operational powers. Britain is preventing Europol-which will be based in The Hague-from becoming operational because it is vetoing the pro-posal that any legal disputes involving Europol should be handled by the ECJ.

But in contrast to Britain, almost all other EU members want to see the powers of the ECJ strengthened, especially in the field of justice and police affairs. EU institutions are at present excluded from these areas of the Maastricht treaty (they are dealt with on an intergovernmental basis). Those in favour of extending court powers argue that it is ne-cessary on the ground of legal certainty to ensure the protection of individual rights in this field of justice and police affairs. They are backed by the court itself, in a carefully worded submission to the IGC presented by the court president, the Spanish judge Gil Carlos Rodriguez Iglesias. He stresses the risk of laws not being applied uniformly in these areas. Meanwhile, a robust defence of the court's powers has come from Carl Otto Lenz, one of its advocates general, who has warned member governments against the temptation to cut the court's power. He said the court should not "let itself be impressed by unjustified criticism." Lenz also dismissed accusations of judicial activism by the court.

Judicial activism

There was a period of activism, in the early 1980s, when the ECJ was tempted into a more interpretative role to fill gaps in EU legislation. But most lawyers believe that it came to an end with a landmark ruling in 1988 involving a dispute between the council of ministers and the European parliament over who should have the final say in adopting the EU's annual budget. The rules agreed by the council and the parliament for adopting the annual budget had given each equal powers of co-decision. But as they could never agree on the size of the budget-the high-spending parliament wanting more and the finance ministers of member states keen to pay less-they asked the court to decide who should have the final say.

In its judgement, the court said that the rules as they stood were perfectly clear: both sides had equal power and they had to sit down together for as long as necessary until they had set a budget figure they could both agree on. The court, it said, was there to implement laws rather than to make new ones. If new rules were needed then the European council and parliament had to make them, not the court.

In addition to the proposals from Britain to reduce the powers of the court and the counter-proposals from others to extend them, the IGC will have to deal with some important housekeeping issues. The first will be to decide how many judges the court should have in a union enlarged to 20 or more members.

At present there are 15 judges, each appointed directly by the 15 EU governments, assisted by nine advocates general. Since 1989, there has been a junior court, the court of first instance, created to ease the workload of the main court. It too consists of 15 judges directly appointed by member governments. Between them, the two courts (and their 800 staff) deal with more than 400 cases a year. At the beginning of 1996, nearly 1,300 cases were pending, split almost evenly between the main court and the court of first instance.

To continue with one representative per country, even after enlargement, would ensure that all national legal systems are represented; this would help legitimise union justice in the eyes of public opinion. But too many members would make the court unwieldy, preventing it from acting as a college. The alternative of splitting the court into specialist chambers would create the risk of undermining the uniformity of its rulings. One solution being discussed at present would be to have fewer judges than member states while ensuring that each country had either one judge or one advocate general.

There is also the question of how judges should be appointed. At present, each is directly nominated by his or her government. There is no EU equivalent to the Senate hearings when nominee justices to the US Supreme Court are vetted. But the European parliament, which under the Maastricht treaty now holds hearings to interview government nominees to the post of European commissioners, wants to have the same right to vet nominee judges to the European court. The idea is resisted by EU governments and the court itself.

Whose legal tradition?

The IGC will also have to decide on the terms each judge can serve. At present, they are appointed for renewable terms of six years. One idea is to limit judges to one non-renewable term of nine or possibly twelve years. Questions of citizens' access to the court and transparency of its activities will also have to be raised. At present, court decisions are taken by a majority vote among judges. Details of how the judges vote are not published and there are no provisions for dissenting opinions to be issued by judges who vote against a decision.

These rather secretive and even authoritarian practices of the ECJ seem at odds with many of the traditions of British law. The structure of European justice-the role of the judge rapporteur, the advocate general-derives substantially from the Conseil d'Etat, the French state court. In the longer run, as the ECJ plays a more important, overlapping role in the legal system of member states, it is to these questions of legal form that critical eyes will be turned.