[ Pobierz całość w formacie PDF ]
18 19
URBSF v. Bosman [1995] ECR I-4921. Simutenkov, n. 17 above.
59
the sovereignty of law
is not a party: the European Convention on Human Rights.
The Court in recent years has adopted a very positive approach
to the Convention. Over the past ten years, in particular, it has
regularly cited, and has sought to follow, the case-law of the
Strasbourg Court. That is particularly striking when it is
remembered that the ECJ does not generally cite the case-law
of any other court. Exceptionally, there are occasional refer-
ences to, for example, a decision of the International Court of
Justice; but these are exceptions which seem to serve only to
prove the rule .
For practical purposes, it can even be suggested (as I
mentioned in my Opinion in the Bosphorus Airways case in
1996) that the position is as if the Community were a party to
the Convention, and that the Convention can be regarded as
part of Community law and can be relied on as such both in the
ECJ and in the national courts where Community law is in issue.
The Strasbourg Court in effect accepted this when it
came in turn to decide the Bosphorus case in 2005.20 Here
the issue was whether the seizure of a Serbian aircraft by
the Irish authorities, under UN sanctions against the former
Yugoslavia, violated the property rights of an apparently inno-
cent third party, the Turkish company which had chartered the
plane. As the sanctions were implemented in the European
Union by an EC regulation, the Irish Supreme Court had
referred the case to the ECJ, which had found that the Irish
authorities had acted lawfully. But the Irish decision could still
be, and was, challenged by the airline in Strasbourg.
20
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland
[2005] ECHR 45036/98.
60
the eu and the rule of law
There the European Court of Human Rights reached
what may be seen as a remarkable decision of a general char-
acter. It examined the overall case-law of the ECJ in the field of
observance of fundamental rights, and then set out in detail
the judgment of the Court (and the Opinion of the Advocate
General) in the Luxembourg proceedings in the Bosphorus
case.21 On that basis, it held in effect that, given the standard of
scrutiny by the ECJ of Community measures for compliance
with human rights, where such scrutiny had taken place it was,
and would remain, unnecessary for the Strasbourg Court to
conduct its own review.
There are, of course, important qualifications in the
Strasbourg judgment. Nevertheless, it provides extraordinary
testimony on two points: first, the care which the ECJ has taken
to accommodate human rights concerns; second, the willing-
ness of the Strasbourg Court, for its part, to recognize the
special features of the EU legal order. There could be few better
illustrations of my theme in this chapter.
Conclusions
In this chapter we have been concerned with the fun-
damental values of a legal system itself: values which are some-
times collectively expressed in the notion the rule of law . This
notion of the rule of law also conveys the idea that the ultimate
source of authority is no longer the sovereign in the shape of a
monarch, or even in the shape of a Parliament; but rather
21
Bosphorus Hava Yollari Turizm Ticaret AS v. Minister for Transport,
Energy and Communications, Ireland [1996] ECR I-3953.
61
the sovereignty of law
certain values, or certain fundamental principles, which form
an inherent part of a well-functioning legal system.
These basic requirements include the idea of the right of
access to a court, the right to a fair trial, the availability of
effective remedies; and also the idea that all exercise of power is,
with the narrowest exceptions, subject to review by the courts.
Even in the United Kingdom, where the tradition of parliamen-
tary sovereignty is so strong, there are developments in this
direction, and indeed there are now calls from leading politi-
cians for a written constitution. In that constitution, the notion
of the rule of law would no doubt play an important part.
It is of interest that a recent Act of Parliament which
itself has an intriguing title, the Constitutional Reform Act 2005,
contains an express reference to the constitutional principle of
the rule of law ; indeed Part 1 is entitled The rule of law ,
although its content is perhaps disappointing. Part 1 consists of a
singlesection, section1, also entitled The rule of law , which says:
This Act does not adversely affect
(a) the existing constitutional principle of the rule of
law, or
(b) the Lord Chancellor s existing constitutional role in
relation to that principle.
There is, unsurprisingly, no attempt to define what is meant by
the rule of law.
To what extent in a future written constitution
would the courts have jurisdiction to review legislation for
compatibility with the constitution? It seems to me that the
rule of law, properly understood in a modern constitutional
context, in some respects would and in some respects would
62
the eu and the rule of law
not require the courts to exercise that jurisdiction, and that it
is not too difficult to work out the answer. But this is not the
place to attempt a full response.
The values I have mentioned form part of the heritage
of the common law. But their place has been strengthened by
the impact of European law: both by the European Convention
on Human Rights and by EC law. For example, the right of
access to the courts was held by the Strasbourg Court, contrary
to the UK s submissions in the Golder case,22 to be guaranteed
by the Convention, so that a convicted prisoner who had been
refused permission to bring civil proceedings in the English
courts was held to have been treated unlawfully.
As for EC law, there are good examples where that has
strengthened English law. Perhaps surprisingly, for example,
in the area of judicial remedies. English law has been tradi-
tionally very strong on remedies: but essentially private law
remedies, for example, injunctions. Some of these remedies,
such as anti-suit injunctions , have caused great problems
under European rules on jurisdiction in civil and commercial
cases. Others, such as freezing injunctions (formerly
Mareva injunctions ) have been regarded as valuable. Indeed
remedies developed by the English courts have sometimes
been taken over in EC legislation, for example, the
Intellectual Property Remedies Directive,23 and in the WTO s
Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs).
22
See above, p. 15
23
Directive 2004/48/EC and Regulation 1383/2003/EC relating to the
enforcement of intellectual property law.
63
the sovereignty of law
But in England, remedies in public law have until
recently been weak, as was graphically demonstrated by Harry
Street in his 1968 Hamlyn Lectures Justice in the Welfare State .
Here Dicey s account of the rule of law simply did not work:
officials were not in the same state as the private citizen, and the
public authorities benefited from substantial privileges
Crown immunities, Crown privilege, royal prerogative, etc.
and from the lack of will on the part of the courts, the Law
Commission and the legislature to intervene. What progress
there was in recent years may even have led to some compla-
cency, and it was exposure to European law that provoked some
necessary reforms.
One example is the availability of injunctions against
Ministers of the Crown. The English courts had taken the view
that such enforcement remedies were not allowed under
English law. In the Factortame litigation already referred to,24
the House of Lords held, after a reference to the ECJ, that an
injunction should be granted.
Lord Bridge said that, under the terms of the
European Communities Act 1972, it had always been clear that
it was the duty of a UK court to override any rule of national
law found to be in conflict with any directly enforceable rule of
Community law. There was therefore nothing novel in accord-
ing supremacy to rules of Community law. Thus to insist that,
in the protection of rights under Community law, national [ Pobierz całość w formacie PDF ]
zanotowane.pl doc.pisz.pl pdf.pisz.pl fopke.keep.pl
18 19
URBSF v. Bosman [1995] ECR I-4921. Simutenkov, n. 17 above.
59
the sovereignty of law
is not a party: the European Convention on Human Rights.
The Court in recent years has adopted a very positive approach
to the Convention. Over the past ten years, in particular, it has
regularly cited, and has sought to follow, the case-law of the
Strasbourg Court. That is particularly striking when it is
remembered that the ECJ does not generally cite the case-law
of any other court. Exceptionally, there are occasional refer-
ences to, for example, a decision of the International Court of
Justice; but these are exceptions which seem to serve only to
prove the rule .
For practical purposes, it can even be suggested (as I
mentioned in my Opinion in the Bosphorus Airways case in
1996) that the position is as if the Community were a party to
the Convention, and that the Convention can be regarded as
part of Community law and can be relied on as such both in the
ECJ and in the national courts where Community law is in issue.
The Strasbourg Court in effect accepted this when it
came in turn to decide the Bosphorus case in 2005.20 Here
the issue was whether the seizure of a Serbian aircraft by
the Irish authorities, under UN sanctions against the former
Yugoslavia, violated the property rights of an apparently inno-
cent third party, the Turkish company which had chartered the
plane. As the sanctions were implemented in the European
Union by an EC regulation, the Irish Supreme Court had
referred the case to the ECJ, which had found that the Irish
authorities had acted lawfully. But the Irish decision could still
be, and was, challenged by the airline in Strasbourg.
20
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland
[2005] ECHR 45036/98.
60
the eu and the rule of law
There the European Court of Human Rights reached
what may be seen as a remarkable decision of a general char-
acter. It examined the overall case-law of the ECJ in the field of
observance of fundamental rights, and then set out in detail
the judgment of the Court (and the Opinion of the Advocate
General) in the Luxembourg proceedings in the Bosphorus
case.21 On that basis, it held in effect that, given the standard of
scrutiny by the ECJ of Community measures for compliance
with human rights, where such scrutiny had taken place it was,
and would remain, unnecessary for the Strasbourg Court to
conduct its own review.
There are, of course, important qualifications in the
Strasbourg judgment. Nevertheless, it provides extraordinary
testimony on two points: first, the care which the ECJ has taken
to accommodate human rights concerns; second, the willing-
ness of the Strasbourg Court, for its part, to recognize the
special features of the EU legal order. There could be few better
illustrations of my theme in this chapter.
Conclusions
In this chapter we have been concerned with the fun-
damental values of a legal system itself: values which are some-
times collectively expressed in the notion the rule of law . This
notion of the rule of law also conveys the idea that the ultimate
source of authority is no longer the sovereign in the shape of a
monarch, or even in the shape of a Parliament; but rather
21
Bosphorus Hava Yollari Turizm Ticaret AS v. Minister for Transport,
Energy and Communications, Ireland [1996] ECR I-3953.
61
the sovereignty of law
certain values, or certain fundamental principles, which form
an inherent part of a well-functioning legal system.
These basic requirements include the idea of the right of
access to a court, the right to a fair trial, the availability of
effective remedies; and also the idea that all exercise of power is,
with the narrowest exceptions, subject to review by the courts.
Even in the United Kingdom, where the tradition of parliamen-
tary sovereignty is so strong, there are developments in this
direction, and indeed there are now calls from leading politi-
cians for a written constitution. In that constitution, the notion
of the rule of law would no doubt play an important part.
It is of interest that a recent Act of Parliament which
itself has an intriguing title, the Constitutional Reform Act 2005,
contains an express reference to the constitutional principle of
the rule of law ; indeed Part 1 is entitled The rule of law ,
although its content is perhaps disappointing. Part 1 consists of a
singlesection, section1, also entitled The rule of law , which says:
This Act does not adversely affect
(a) the existing constitutional principle of the rule of
law, or
(b) the Lord Chancellor s existing constitutional role in
relation to that principle.
There is, unsurprisingly, no attempt to define what is meant by
the rule of law.
To what extent in a future written constitution
would the courts have jurisdiction to review legislation for
compatibility with the constitution? It seems to me that the
rule of law, properly understood in a modern constitutional
context, in some respects would and in some respects would
62
the eu and the rule of law
not require the courts to exercise that jurisdiction, and that it
is not too difficult to work out the answer. But this is not the
place to attempt a full response.
The values I have mentioned form part of the heritage
of the common law. But their place has been strengthened by
the impact of European law: both by the European Convention
on Human Rights and by EC law. For example, the right of
access to the courts was held by the Strasbourg Court, contrary
to the UK s submissions in the Golder case,22 to be guaranteed
by the Convention, so that a convicted prisoner who had been
refused permission to bring civil proceedings in the English
courts was held to have been treated unlawfully.
As for EC law, there are good examples where that has
strengthened English law. Perhaps surprisingly, for example,
in the area of judicial remedies. English law has been tradi-
tionally very strong on remedies: but essentially private law
remedies, for example, injunctions. Some of these remedies,
such as anti-suit injunctions , have caused great problems
under European rules on jurisdiction in civil and commercial
cases. Others, such as freezing injunctions (formerly
Mareva injunctions ) have been regarded as valuable. Indeed
remedies developed by the English courts have sometimes
been taken over in EC legislation, for example, the
Intellectual Property Remedies Directive,23 and in the WTO s
Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs).
22
See above, p. 15
23
Directive 2004/48/EC and Regulation 1383/2003/EC relating to the
enforcement of intellectual property law.
63
the sovereignty of law
But in England, remedies in public law have until
recently been weak, as was graphically demonstrated by Harry
Street in his 1968 Hamlyn Lectures Justice in the Welfare State .
Here Dicey s account of the rule of law simply did not work:
officials were not in the same state as the private citizen, and the
public authorities benefited from substantial privileges
Crown immunities, Crown privilege, royal prerogative, etc.
and from the lack of will on the part of the courts, the Law
Commission and the legislature to intervene. What progress
there was in recent years may even have led to some compla-
cency, and it was exposure to European law that provoked some
necessary reforms.
One example is the availability of injunctions against
Ministers of the Crown. The English courts had taken the view
that such enforcement remedies were not allowed under
English law. In the Factortame litigation already referred to,24
the House of Lords held, after a reference to the ECJ, that an
injunction should be granted.
Lord Bridge said that, under the terms of the
European Communities Act 1972, it had always been clear that
it was the duty of a UK court to override any rule of national
law found to be in conflict with any directly enforceable rule of
Community law. There was therefore nothing novel in accord-
ing supremacy to rules of Community law. Thus to insist that,
in the protection of rights under Community law, national [ Pobierz całość w formacie PDF ]