Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 60-79)




  60. Ms Sharpston, can you address those?

  (Ms Sharpston) My Lord Chairman, yes. I find Lord Lester's elegant paradigm a very helpful one. Certainly, I would say that it falls within the concept of the mission entrusted to the Court of Justice, under what is, in the draft Constitution, Article 28(1). Whether one says "ensuring respect for the law" or "ensuring that the law is observed," essentially, that is the function of the Supreme Constitutional Court within the structure that is envisaged. It would be, in my view, rather at odds with that structure if a different court, such as a national court, took upon itself to decide what fell within the competence of the Union and what lay outwith it. In relation to the second point that Lord Lester raised, my Lord Chairman, certainly, again, I would agree with him as to the international norm. I would venture to say it might suffice to go back to the judgments of the Court of Justice, in particular the Van Gend case and in Costa v ENEL, where one finds precisely these arguments being deployed, certainly in Costa, in relation to the possibility of giving precedence to a subsequent act by a national legislature, that would run counter to Community law. The European Court held that the Community's special legal system could not be established if the obligations that were undertaken at the international level were merely contingent obligations, as it were, rather than obligations that were signed up to and that had to be respected. Within the Community law environment, one finds a specific illustration of the point that Lord Lester has just made.

  61. Are there any other views on it?
  (Dr Berrisch) My Lord Chairman, I think the only thing that I would add here is that I find the analogy well founded, because it is based on the same principle as the jurisprudence or the case law of the Court of Justice. Which is that, if you have different national courts deciding, or, in Germany, different courts of the states deciding—some states also have a constitutional court about whether something is a federal competence or, in the case of the Union, a Union competence, you can come up with divergent decisions, and then you have a divergent application of Community law in different Member States. Therefore, I find the analogy well founded.

  62. We have been looking at the problem at the moment mainly from the point of view of the competence of the European Court of Justice to make declarations, decisions, on these sorts of competence issues that would be regarded as binding across the European Union, and I suppose, is it, 10(1), which says that European Union law and its Constitution has primacy, comes into play in that connection. The other side of the coin relates to the competence of the national courts, in relation to legislative instruments which the national institutions may produce. We are accustomed in this country to the courts having full ability to strike down secondary legislation, on various grounds, but we are not accustomed to the courts of this country having jurisdiction to strike down primary legislation, and I suppose there is a competence issue in that regard. Do national courts have competence? Let us suppose the case has not reached the ECJ, is there any problem about national courts ruling on the competence of their own legislatures to deal with particular matters and produce particular items of legislation?
  (Mr Flynn) My Lord Chairman, I would have thought the orthodox Community law answer to that would be, if what the national legislature has done is in implementation of Community law, it is open to the national court to say, "Yes, that is fine". That is in the Foto-Frost judgment. The only problem comes if the national court takes the view that it is not fine. The national court will be able to say, consistently, I think, with existing case law, "Yes, that is within Union competence," or, to the applicant, "No, you have no claim here that it is outside Union competence". I think they can confirm it, so they can pronounce on it to that extent, but they cannot strike it down.
  (Ms Sharpston) My Lord Chairman, I would suggest that, according to the orthodoxy, indeed that would be the position. There are two cases. Foto-Frost has been mentioned. There is another case, called Granaria, and the structure seems to be fairly clear, that where the national court is nodding and saying, "Yes, this is all right", then the national court has power to do that. If what is involved is saying to the Community institutions, or now to the Union institutions, "This measure is invalid, this lies outwith the competence that you thought you had," then, in accordance with the supremacy principle, but also the point that was being made a moment ago by the CCBE, because of the need to avoid disparate interpretations of Union law, the task of declaring a Union measure invalid, or saying that it goes beyond the competence that is conferred, would be for the ECJ.

  63. Of course, European Union law is said to have primacy, or under the new Constitution is said to have primacy. Let us stay with this country for a minute. The courts of this country, from time to time, have to implement European Union law as part of the domestic law of this country. Therefore, is it appropriate that the courts of this country should be in a position, where necessary, to declare invalid primary Acts of the legislature?
  (Mr Moser) My Lord Chairman, if that question were put to the ECJ, I hesitate to speak for them, but my view of what their answer would be, their answer would be, "Yes, it would be appropriate." Of course, in the second Factortame speech by Lord Bridge, which I am sure has come up in this connection in this Committee, he made it clear that it is the duty of any national court to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. To that extent, the Community institutions would expect the national courts, regardless of how unused to it they might be, to strike down national laws conflicting with Community law, in certain circumstances, at least. If I have understood my Lord Lester's question correctly, as far as the other way round is concerned, the question of the Community courts making a finding that perhaps is considered outwith Community competence by the national courts, that is a far more difficult question. The position appears to be that, even in the more restrictive view that the fundamental, top rule of constitutional law is still with the United Kingdom Parliament and courts, even in that case, it is not clear what the national courts should or could do, because, in the end, the rationale of that view is always that, well, if Parliament chose, it could withdraw from the European Union, it could withdraw that consent of having given away that part of its sovereignty. So it is a very draconian emergency brake.

Lord Neill of Bladen

  64. I want to ask Dr Berrisch if he could help us a little bit with the Brunner case. As I read it, what the Court was saying there was that, under Article 38 of the German Constitution, the Court could not uphold a Treaty provision which said, for example, "all legislative power is hereby transferred to the EU," and that would contravene Article 38. Also, they expressed doubts where the transfer of power is written in terms which are unclear in their meaning. I think the interesting point is, if ever there were to be a case where there was an argument about what was the competence conferred in a particular part of the present Constitution, the EU Treaty, and a ruling had been given on that in the ECJ, and somehow a law suit is brought in front of the Constitutional Court in Germany and the same question is put to that Court, where the argument is that it can be demonstrated that they were giving judgment on a law regulation which is outside what was agreed in the Constitution and which the German Parliament assented to, let us assume it has gone through Government, that is the clash, which seems to be recognised as a possibility in the Brunner judgment. Are you saying that is now outmoded and it is no longer in accordance with the thinking of experts in German law?

  (Dr Berrisch) My Lord Chairman, I should admit with some shame that Lord Neill is much more familiar with the Brunner case than I am, but, nevertheless, probably a few thoughts on the question. I understand that there are two questions to distinguish here. One question is, if Germany has agreed to the Constitution, the Treaty which becomes the new EU Constitution, they agree implicitly also that the European Court of Justice will have the competence to decide on the competence of the Community, or the Union, whatever it will be called. The other debate that can come up is whether by agreeing to that, Germany has violated the German Constitution and gave more power to the Union than permissible under the Constitution. That would be a question not to be decided by the European Court of Justice but to be decided by the German Constitutional Court. That is how I would view the question. For a number of reasons, I find it very unlikely that, if I look at the new Treaty here, the outcome would be that Germany has given more power to the Community than allowed under the German Constitution.

  65. Part of your answer involves saying that the Treaty confers power on the ECJ, or the Constitution confers power on the ECJ, to decide that competence. There is no express provision to that effect, is that right, or am I wrong about that? What would you point to in the Constitution as saying that power is expressly conferred?

   (Dr Berrisch) My Lord Chairman, I am afraid that would also not be able to point to an express provision in the Treaty. Nevertheless, I would read the Treaty that way.

  66. It is inherent in it? You reply would have to be, "It is inherent"?
  (Dr Berrisch) Yes.


  67. I suppose that the principle of conferral comes into play here, it is one of the cornerstones of the Treaty, that the European Union institutions only have the powers conferred on them, and the ECJ is one of the institutions. That would be a reason, I take it, why you could not have, as it were, a developing jurisprudence in the ECJ, the effect of which was a creep, a creeping expansion of competences. That would be quite inconsistent with the principle of conferral. If that were to happen, would not the national courts, at any rate, the national courts of countries with constitutional courts, be entitled to say, "We're not bound by this. We don't agree with it"?

  (Dr Berrisch) Yes. I would agree with that interpretation. It is a bit along the lines of the Solange case law of the German Constitutional Court, which means, "As long as the Court of Justice observes fundamental rights, we are not going to interfere with the Court of Justice on this issue here." The same proviso as you would have on the competence issue here.

  68. I think most people would say there has been some degree of competence creep in some of the judgments of the ECJ, in relation to direct effect particularly, quite often it is direct effect arising out of Directives. You will not find it dealt with anywhere in the Treaties that that is the product of judgments in the ECJ. If you had that in the competence field, would you still say that national courts must accept the result?
  (Dr Berrisch) My answer would be, from a Community point of view, yes, but it raises the constitutional question that we have just identified under a national constitution. If I may add one point here. It is not like in 1957, when you started afresh, without an existing body of case law of the European Court of Justice. This Treaty will be adopted in one form or another. It will be adopted also by taking into account what has happened over the past years, and the case law of the Court of Justice as it stands. Therefore, I would say, as long as you do not find anything in the Treaty that points that the case law should be changed and that there should be a different rule than has been developed by the Court, there is a presumption that, if that Treaty is adopted by national parliaments, they also agree to the existing interpretation.
  (Ms Sharpston) My Lord Chairman, I wonder if I might add just one observation to that. For my part, I see a distinction between the illustrations of the development of the doctrine of direct effect, or, for example, the development of the doctrine of damages in Community law, both of which might be described as judicial creep but are in areas where quite clearly the prime subject matter lay within the competence of the European Court and the Union, and true issues of competence. Directives are meant to be binding as to their result, and what the Court then was concerned to do was find a way of making this a more effective statement of law. Likewise with the development of damages, these are the ultimate sanction against a Member State. To my mind, there is quite a clean distinction that one can draw between that, on the one hand, where matters fall within competence and the Court is concerned then with effectiveness, and, on the other hand, a matter where, under the conferral rules laid out in the first part of the draft EU Constitution, one ought to be able to point and say, "This competence has been conferred; that competence has not been."

  69. Where shared competence is concerned, that may be more difficult, because the issues of subsidiarity and proportionality are going to come into play with the shared competence. Would you apply that reasoning to disputes as to whether, in an area of shared competence, it was a legitimate objection to European Union intervention that the principle of subsidiarity was being offended?
  (Ms Sharpston) My Lord Chairman, in a sense, the Court has had little experience of trying to deal with this. Subsidiarity came up first, if my memory serves me well, in the Working Time case. So far as one can tell, if the Member States, acting together, have said, in the preamble of a Community measure, "this is something that can best be achieved at Community level", then the ECJ is very unlikely to second-guess that on the application of one Member State, and say, "Notwithstanding that everyone else said this should be done at Community level, actually, the applicant is right and that was an incorrect assessment," because the political judgment clearly was that it should be a Community measure. So far as the proportionality issue is concerned, again, clearly it is not an easy point, but the Court has had the experience of trying to deal, time after time, in different areas of Community law, with whether a particular national measure, which was acceptable in principle, was nevertheless, for example, disproportionate to the aim that was sought to be achieved. On the whole, one would say, it has tried to reach a conclusion. As Dr Berrisch has just been saying, we are not starting with a clean piece of paper now, as one was in 1957.

Lord Lester of Herne Hill

  70. Could I come back to the question of validity of national laws, and I apologise if this is a pedantic point. The way that the question was framed in the written question set, submitted in advance, was, should the ECJ be able to declare invalid national laws, or should this remain a matter for national courts? Is not that, with respect, a false dichotomy? Is not the true position, and I am in the presence of an expert, that neither the ECJ nor national courts declares national laws invalid? What they do actually is grant, what we would call, declaratory relief, that a piece of national legislation either has to have something read into it, to make it compatible, or has to be read down, or that there is a declaration of incompatibility that then has got to be followed. If I can give just a couple of examples of what I am trying to say. If you take a case like the early one of Macarthys and Smith (Lord Denning), there the woman could not compare her pay with a man who had worked previously in the job, so the Court of Appeal, when it comes back from Luxembourg, says, "From now on, whatever the statute may say, the woman can compare her work with the previous man." To take another example of a case I did once, the Part-Timers case, you had a statute which hit disproportionately at women, it is not declared invalid by the House of Lords, but what they say is "It discriminates indirectly against women, and, therefore, that condition of full-time work," or whatever it was, "from now on, has got to be interpreted differently." I am just worried that the question makes it look as though the ECJ, or the national court, is declaring a law to be invalid. Am I not right in saying that really is not the method either the European Court or the national court uses?

  (Ms Sharpston) My Lord Chairman, again I am very grateful to Lord Lester for his illustrations. Certainly, my understanding of what happens under the present system is that the Court in Luxembourg indicates, for example, in the context of infringement proceedings, that by maintaining in force a particular law the United Kingdom is in breach of its Treaty obligations; or when the Court interprets under a reference, it says that a Community measure must be interpreted in such a way as to preclude a particular result under the national law. It does not go further than that. It is then a matter for the national court, faced with that authoritative statement from the ECJ as to the meaning of Community law, to find within its own national legal system the appropriate route forward, in order to give effect to the interpretative ruling which has been obtained.

Lord Plant of Highfield

  71. I would like to ask you a question sort of on the borderline between law and politics, I suppose, and it could have been asked about virtually any of the issues that we have raised with you, but let me raise it now, just in case the opportunity does not arise again. Mr Moser mentioned the Thoburn case, about which Ms Sharpston knows far more than I shall ever know. Sir John Laws made the point, as was said, that the 1972 Act is an Act of sort of basic constitutional significance, and therefore it could not be impliedly repealed, and all that kind of thing, but, nevertheless, the constitutional status of that Act, the legitimacy of it, was to be found, I think as you said, in English law. It is argued by the politicians that either this Constitution will or that it will not alter fundamentally our constitutional relationship with the European Union. What is your view about that? How would the sorts of things that you have been saying so far shift us from the Sir John Laws view, which seems to imply that there has not been a fundamental constitutional change because, ultimately, Parliament can decide, as it were? Is it just we have got the capacity to secede from the European Union, if push comes to shove, as it were, and therefore our relationships have not altered because that power of Parliament is still there, or what? What is the answer to this conundrum, as it were, from a lawyer's point of view?

  (Ms Sharpston) My Lord Chairman, I am conscious, in seeking to answer Lord Plant's question, that I was told very firmly by Lord Justice Laws that the line I developed before him, based on a very straightforward reading of a number of cases of the European Court, was as wrong as my opponent's line. Therefore, I am perhaps very bold in submitting, as I do, that one can arrive at the same place by either route. Either one looks at the line of cases that starts with Van Gend en Loos, goes through Costa v. ENEL, Simmenthal and Factortame, and says, "those are the rules. They are only the rules within this country because of the European Communities Act 1972. We are not a monist-state, we are a dualist state. Therefore, those rules were imported into English law by the free will of Parliament; and so long as that statute is maintained then they have the place within national law that the ECJ says they have, because we accepted the case law that went with the rules". Yes, in those circumstances, the nuclear weapon, is, indeed, that, if you do not like it sufficiently badly then you secede. The alternative is Lord Justice Laws's reading, to which, of course, I must defer, in terms of what he held in that case and the statements that he put forward on constitutional law. Under the particular model that he gave, similarly it follows that, because he classified the European Communities Act as a constitutional statute, again, that would continue to serve as the foundation for the draft Constitution. I would answer the conundrum by saying that, actually, in my view, not much would change. There is clarity, there is codification, but, in terms of this basic element, I myself do not see a fundamental shift that arises from writing down EU law in a single constitutional document. Obviously, a constitution has a different significance that is ultra legal, that goes beyond the mere words, but, in terms of that relationship, I do not think there has been a shift.


  72. Is it rather like the arguments there used to be preceding the Statutes of Westminster in the 1930s? The ex-colonies were given dominion and independent status by an Act of the Westminster Parliament, and people in those dominions used to say, "Well, we're not properly independent if you can repeal the Statute which granted us independence," and so the Statute of Westminster was passed purporting to put that out of reach. Is that the sort of point that you are making?

  (Mr Flynn) I think so, my Lord Chairman. It seems to me, and I am not an expert in these matters at all, that one is just simply never going to resolve this tension. The European Court is going to have its view, and ultimately a national constitutional court may have another. Another German word that has not yet been used in this connection today is Realpolitik, and I think it comes into play.
  (Mr Moser) My Lord Chairman, if I may. I think that the consensus view probably of most of us is that, whatever primacy of Community law means, the fact that it has now been written down is not going to change it. Unfortunately, it also does not give an answer. My Lord Chairman, if I may turn, very briefly, to Lord Lester's question earlier. I just wanted to add that, although that characterisation of what a court does is absolutely right, as far as the English national courts are concerned, it is not wrong to say, as far as continental constitutional courts are concerned, that what they do is declare national laws invalid. By way of illustration, I have got a case involving an Austrian radio company, and what happened to them was that the Austrian Constitutional Court did declare the law on which they had been given their licence invalid, and that is a far more straightforward approach.

  Lord Neill of Bladen: Would you not agree that, if it is a case like Factortame, the effect of the decision of the ECJ is to strike down and declare invalid two bits of legislation, the primary legislation and then some regulation, if I remember it correctly, which were a wheeze to try to get round a difficulty, and you just simply cannot do that. Maybe I am dancing on the point of a needle, but the effect is, the UK effort to legislate in that way so as to make life difficult for Spanish ships is not on, it strikes down the legislation, that is the effect of it?

  Lord Lester of Herne Hill: Is not this a position that we have to respect the dogma of the British constitution, which is parliamentary sovereignty, even though the reality is otherwise?

Lord Neill of Bladen

  73. That is the whole point. The Factortame case, when it came back to the House of Lords, they recognise, they say, there has been a change?

  (Mr Moser) In fact, my Lord Chairman, Factortame case never had a final Act, because when it came back to the House of Lords everybody waited for the crunch and said, "Now is the House of Lords going to have to say the 1988 Merchant Shipping Act is invalid?" What Parliament did was it repealed it of its own accord.


  74. Can I move on to a related topic and also a point arising out of the primacy provision. I want to ask you about the relationship between the primacy doctrine and the provisions of the Constitution about the Common Foreign and Security Policy. The primacy Article says that the European Constitution and the European law have primacy. Now it is a question of how extensive that description of European matters is. Would it be regarded, in your opinion, as covering Common Foreign and Security Policy, and if, in due time, the ECJ attains jurisdiction over CFSP matters, as some think it should, what will be the effect of that on the ability of Member States in this area to formulate their own policies?

  (Mr Flynn) My Lord Chairman, on the CFSP, I do not think the CCBE has a detailed view beyond its general view that the Court of Justice, in general, should be competent for all areas of Union activity. The way we would put it is really that it is for the Member States drafting the Treaty to ensure that they are happy with the substance of what is entrusted to the Union, even if that is on a very limited and step-by-step basis, rather than by excluding the Court from review. If primacy is to be the guiding principle, it is primacy of what is in the Constitution and that must be carefully circumscribed in an area like CFSP.

  75. The Constitution expresses the obligation on Member States on solidarity, where CFSP is concerned. Would that be justiciable in the ECJ, would you say, complaints about breaches of that obligation?
  (Mr Flynn) Depending on what you meant by justiciable, we would argue against excluding the Court en bloc from competence, as it were. We think the issue should be capable of being reviewed by the Court, like any other area of activity. When you get to the question, has there been a breach of the principle of solidarity, how far that can be reviewed and at whose suit, that, we would say, would be a matter for the Court to develop in accordance with ordinary principles, and it is very unlikely that anyone, and particularly an individual, would get very far in seeking a review of that. We are troubled by the exclusion of the Court from particular areas of Community or Union competence.
  (Ms Sharpston) My Lord Chairman, I think that, for once, and this is very much a personal view, probably I would be a bit more cautious. I would say that, this being a very delicate area, one would expect the Court to become involved only if it were expressly invited in. Therefore, as regards to the review of the obligation of solidarity under Article I-15(2), absent specific provisions in a future measure, giving competence to the Court on a particular point of Common Foreign and Security Policy, I would tend to think the Court would decline jurisdiction on it. I express that view, subject to one caveat. It is very easy to conceive of situations where a possible development of Common Foreign and Security Policy might have the effect of impinging on individual rights, under some area where there was an existing Union competence. In those circumstances, I would imagine the Court would be in a difficulty, because it would be obliged, exercising its ordinary jurisdiction, to seek to protect the individual rights, and, of course, there are further potential issues that arise under both the European Convention on Human Rights and under the Charter of Rights. Were the CFSP issue to come up, as it were, "piggy-back" on an individual rights issue then it might well be the case that the Court would feel that it ought to assume jurisdiction to the extent necessary to deal with that very circumscribed point.

  76. That would be a very good example of the creep that we were referring to earlier. What did you have in mind? You said, unless invited to do so. I was not quite sure what you were contemplating?
  (Ms Sharpston) My Lord Chairman, I had in mind the fact that as far back as the TEU, as the Maastricht Treaty, when the Pillars were first constructed, although the Court's jurisdiction was generally excluded from the Second and Third Pillars under Article L, nevertheless there was the possibility that under Article K.3(2)(c) Member States could agree to confer jurisdiction upon the Court in relation to a particular convention. That was the sort of precedent that I had in mind. Like Mr Flynn, I am troubled by the idea of, in a sense, a legal vacuum: by powers being there, being exercised, without control, by the ECJ. The other illustration, of course, is the Zwartfeld case, where, in fact, the Court constructed jurisdiction to deal with the claim by the Commission that it was entitled not to disclose certain documents to a national court that had asked for them. It is the furthest example that I know of the ECJ wrestling with the problem and deciding that, in the end, respect for the rule of law meant that there had to be a degree of judicial control over that Community institution.

  77. Thank you. Can I move on now to criminal law and procedure and the jurisdiction of the ECJ in that area. Do you, or any of you, have a view as to whether the jurisdiction of the ECJ should be extended, in relation to criminal law and procedure? There is a rather odd proposed Article, 283, as I expect you know.
  (Dr Berrisch) My Lord Chairman, if I may say just a few words for the CCBE here. The position of the CCBE, that ties in with the previous question, is that there should be a single system of judicial control covering all three Pillars, as they came to be known. That would cover criminal matters, in so far as it concerns the application of Community law. You have already now at least implicit jurisdiction of the European Court of Justice in a number of criminal matters. You can refer to fraud in agricultural matters, or customs matters, where questions are referred to the European Court of Justice. We would think there is great merit in having this extended to measures under the Justice and Home Affairs, because that would avoid a complicated division of jurisdiction, which may raise a host of questions and may make it very difficult for individuals to decide to which court to go. If you have experience, for example, with the Community's Anti-Fraud Unit, as I have had, in some investigations there, you see that there is a need for having a strict system of judicial control for these bodies that are set up, and that probably are likely to be set up more under the Justice and Home Affairs powers, because otherwise you have a vacuum. Personally, I am afraid that, if you take certain areas out of judicial control that are within judicial control, actually this could creep into other areas where the Court now has and can exercise judicial control.

  78. The reverse of creep?
  (Dr Berrisch) Exactly, yes.

  79. Ms Sharpston, I know we are getting near to the point where you are going to have to go. This is a slightly haphazard way of dealing with the agenda, perhaps. I wonder if you would like to say anything about the standing rule, before you leave, because that is a highly important matter, and then I can come back to invite any further comments on the criminal law and procedure issue, as well as on the standing rule, after you have done that?
  (Ms Sharpston) My Lord Chairman, I am most grateful. That would be a most convenient way to proceed. May I say, very shortly, in relation to the standing rule, that there has been for a long time a tension between the rather restrictive standing rule and the need of individuals, but also, for example, of non-governmental organisations, of representative bodies, to be able to bring before the ECJ challenges to regulatory matters. I know that Professor Takis Tridimas has made a suggestion that the Article as it stands should be amended. I would support that amendment. I might even wonder whether the amendment that he suggests goes quite far enough. Of course, were it to be amended then that would deal to a considerable extent with the problem that question nine in the written questions identifies, as to whether there is a problem here with the Charter of Fundamental Rights and/or with Article 6 of the ECHR. I was wondering whether it might be possible perhaps for us to reflect and to write to you if necessary, in relation to the criminal law and procedure question and to pick up any loose ends. I do so in no way to undermine Mr Moser. I have had the pleasure of leading him on Thoburn and on a number of other cases, and I know that I leave a very competent sweeper-up behind me. Might I conclude, My Lord Chairman, by apologising to the Committee for the fact that I do have to go. I am very sorry. It is a function of having to catch flights to Luxembourg at the time when airlines see fit to run them.

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