Following on from yesterday’s blogpost on the UK Government’s new position paper on enforcement and dispute-resolution beyond the “direct jurisdiction” of the Court of Justice, today, I publish an extract from Brexit Time: Leaving the EU – Why, How and When? (Cambridge University Press) that looks at why the Court became a focal point of the referendum debate.

 

Control over law is also about having control over who interprets the law. The role of the Court of Justice as the authoritative interpreter of EU law was at the fore of criticisms about a loss of control over law. The Court’s interpretation of the primary law of the treaties is crucial because the treaties contains fundamental rules on inter alia the reach of EU free movement rules, citizenship, aspects of equality law and competition law, together with the fundamental rights protected by the EU Charter of Fundamental Rights. Given that primary law can only be changed by national governments through a treaty revision process requiring the unanimous consent of national governments as well as ratification by all Member States, it is clearly extremely difficult for an individual state to try and reverse a Court of Justice ruling with which it disagrees.

The Court’s extension of gender equality protection in respect of pay to include occupational pensions schemes can be cited as an example where the preferences of the Court and national governments diverged. It is also a rare example of a situation where Member States sought to regain control by agreeing the Barber Protocol to the treaties to limit the temporal effects of the Court’s judgment in the occupational pension sphere thereby minimising its financial repercussions.

The Court of Justice’s interpretation of EU legislation is also significant. As with the interpretation of the primary law of the treaties, there are examples where the Court gives binding interpretations that are out of step with the preferences of governments, employers and sometimes also employees. The example of the Working Time Directive is again a case in point. Clarifications given by the Court on what constitutes working time – to include the time that a person is required to be available for work (even if the person may rest while ‘on call’) – have been criticised for their impact on the organisation of emergency and health services. Legislative acts are not burdened by the same constitutional impediments to their alteration but it may, nonetheless, be difficult to find majority support for legislative change. Indeed, following controversial interpretations of the Posted Workers Directive by the Court of Justice, the Commission found it extremely difficult to come up with substantive legislative proposals that would meet the very different interests of workers from ‘old’ and ‘new’ Member States. The Member States are also not free to amend EU legislation in a way that would conflict with the primary law of the treaty as interpreted by the Court of Justice.

In an earlier time when the sorts of cases coming before the Court concerned prosaic issues such as the imposition of customs duties on the import of urea formaldehyde or the requirement that imports of Scotch whisky be accompanied by a certificate of origin, it was possible for the Court to cloak its institutional role in the guise of terse, abstract legalism. With national courts also willing to supply the Court of Justice with a steady stream of new cases, the domain of legal integration could continue to expand. But in more modern times when the issues before the Court are more controversial, the Court, as an institution, is more socially and politically exposed, and its apparent ‘activism’ scrutinised.

Yet for all this, it is difficult to pinpoint clear examples of judgments of the Court of Justice which generated the sort of level of political or social controversy that might lead voters to consider that the UK should leave the EU. Indeed, the complaints were more typically about the judgments of the European Court of Human Rights – an organ of the Council of Europe and not of the European Union.

The EU courts were also useful to the UK in two ways. Firstly, a strong compliance machinery increases the functional capacity of the EU to achieve its aims by ensuring that Member States comply with their obligations. Secondly, governments are also litigators before the EU courts. Member States may litigate before the EU courts for a number of reasons but one of those reasons concerns the adoption of EU rules by Qualified Majority votes. It is one thing for a Member State to accept the primacy of EU rules when those rules require all national governments to agree to them: the power of veto gives each state control over what it will or will not accept. Where primacy doesn’t just bite, but hurts, is when EU rules are adopted by a Qualified Majority of EU states. With successive treaty revisions – and following successive enlargements of the EU –majority voting has become the norm. To be sure, institutional practice is such that where possible, a consensus is sought without the need for a vote. But, there are instances where EU rules are adopted in the face of opposition by a state and this is where a state may wish to instil the help of the Court of Justice in striking down the offending rule.

An example of the UK Government challenging an EU legislative measure before the Court of Justice concerns the controversial Working Time Directive that set down limits on the number of hours that a worker could legally work. In fact, the UK had not voted against the measure but merely abstained. The Commission had also agreed to water down the directive by allowing derogations to allow individual workers to contract out of the time limits. The Court of Justice rejected the UK’s claims that the legislation had an incorrect legal basis in the treaties and was an employment policy measure, rather than one correctly relating to health and safety. But it became a totemic example of claimed EU interference in a sphere of social and employment relations that British Conservative governments sought to insulate from EU control.

In the years leading up to the referendum, the UK Government became a more frequent litigator before the Court of Justice in its challenge to EU rules on ‘short-selling’, the proposal for a Financial Transaction Tax and caps on bankers’ bonuses. The UK lost in the first two cases and abandoned the third. Outside the legislative context, the UK did win an important case before the EU’s General Court challenging a policy of the European Central Bank that would require institutions clearing Euro-denominated securities to be based in a Eurozone Member State. But these examples illustrate not just how much post-crisis regulatory responses have heightened tensions between the UK and the EU but also how even sceptical governments in practice rely on EU courts to try and regain what they have lost in the political arena.

Nonetheless, it is misleading to evaluate the impact of EU law on the UK legal order simply through examples of situations of conflict or controversy. Day-to-day, national courts have simply got on with the task of interpreting and applying EU law. If the political task of doing EU business is a routine aspect of national administrative life, then enforcing EU law in national courts may also be regarded as unexceptional. Indeed, discontents with EU law may not be a function of conflict, but on the contrary, the willingness of the judiciary to carry out its responsibilities to ensure the effective enforcement of EU law in the UK.  Much like complaints about the application of the European Convention on Human Rights by UK courts, it is a sense of the empowerment of unelected judges that seems to drive antipathy towards ‘European’ law and which, in part, motivates Brexit.

British workers and citizens have, of course, been the beneficiaries of a capacity to apply and enforce EU law in national courts and tribunals. But, it is not obvious that this capacity has engendered a wider social affinity between the EU and citizens and indeed, litigating EU rights may seem like the preserve of the few not the many.