8. The Pervasive Influence of European Community Law in the United Kingdom

NICHOLAS GRIEF1

MUCH has been written about the uniqueness of Community law and the significance of the fact that the European Community is a supranational system, its hallmark being the creation of rights and duties for individuals and the supremacy of Community law over national law in the event of a conflict.2 It is clear that Community law reaches parts of the domestic legal system which other kinds of international law3 cannot reach. Lord Denning once stated:

'The treaty does not touch any of the matters which concern solely the mainland of England and the people in it. They are still governed by English law. They are not affected by the treaty. But when we come to matters with a European element, the treaty is like an incoming tide. It flows up the estuaries and up the rivers. It cannot be held back'.4

More than twenty years on, however, it is apparent that the domestic impact of Community law is not confined to cases with a European element. Already there are several examples of what might be called the pervasive influence of Community law in the United Kingdom, particularly in the sphere of public law.


1. Statutory interpretation and drafting

Ever since the entry into force of the European Communities Act 1972,5 British judges have been required (in the absence of a reference to the European Court of justice under Article 177 EC) to determine 'any questions as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument..in accordance with the principles laid down by and any relevant decision of the European Court'.6 A similar requirement is laid down by s 3(1) of the Civil jurisdiction and Judgments Act 19827 in respect of the 1968 Brussels Convention on jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which the European Court regards as part of the Community legal order.8

Above all, this means adopting a schematic and purposive (teleological) approach to interpretation rather than a literal and historical approach.9 As David Pannick QC has put it:

'To examine where the commas have been placed in the relevant provisions of the treaty in an effort to identify their precise meaning is to misunderstand the way in which Community law operates. The role of the European Court is to add spirit to the words of Community texts. When interpreting those provisions of the treaty from which the United Kingdom has not opted out, the court will consider itself entitled..to assess what the concept of a community requires having regard to the social, economic and political realities of the day'.10

Not surprisingly, judicial adjustment to purposive interpretation was not without its difficulties.11 The Court of Appeal's approach to the construction of Article 30 EEC in R v Henn and Darby12 remains one of the best examples of how not to interpret Community law. When that case came before the House of

____________________
1
University of Exeter. This essay is based upon a paper given at the United Kingdom National Committee of Comparative Law colloquium, Cardiff, in September 1995. It will also appear in the colloquium volume to be published by the UKNCCL.
10
David Pannick QC, "'An alien legal tradition'", The Times, October 8th 1992.
11
See Layton above n 8 at 36: 'The unfamiliarity of English courts and English practitioners with purposive interpretation has proved something of an initial stumbling block in the assimilation of the Brussels Convention into our procedural law'.
12
[ 1978] 3 All ER 1190.
2
See John Usher, Plender and Usher's Cases and Matezials on the Law of the European Communities ( 3rd ed, 1993) 3.
3
In Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [ 1963] ECR 1 at 12, the European Court of justice observed that 'the Community constitutes a new legal order of international law'.
4
HP Bulmer Ltd v J Bollinger SA [ 1974] 2 All ER 1226 at 1231hj.
5
1972 c 68. The Act (which was amended in 1993 in order to pave the way for ratification of the Maastricht Treaty) gives the force of law to those provisions of Community law which are intended to have direct effect. Under British constitutional law a treaty cannot of itself be a source of domestically enforceable rights and obligations.
6
s 3(1) of the European Communities Act (as amended). This obligation would exist as a matter of Community law even without the statutory provision. See Rt. Hon. Lord Slynn of Hadley , "'Looking at Community Texts'" ( 1993) 14 Statute Law Review 12 at 23.
7
1982 c 27. The 1982 Act was amended by the Civil Jurisdiction and Judgments Act 1991 ( 1991 c 12), which gives effect to the 1988 Lugano Convention.
8
The Convention was concluded pursuant to Art 220 EEC. See A. Layton, "'The Interpretaoon of the Brussels Convention by the European Court and the English Courts'" ( 1992) 11 Civil Justice Quarterly 28, 32; R. H.H. White, "'The Government Role--Negotiation, Legislation and Litigation'", ( 1992) 11 Civil Justice Quarterly 52, 60-61.
9
Slynn above n 6 at 23. See e.g. Case 283/81 CILFIT v Ministry of Health [ 1982] ECR 3415.

-97-

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