The article is based on the understanding that law is a fundamental aspect of a societys, a states or an organizations constitution. Also that jurisdictions may overlap in a single territory and also span across several without undermining each other, provided that their spheres of influence and competence are correctly delineated, separated or integrated where necessary.
The article seeks to show that the current debate on the constitutional treaty of the EU is, in a sense, beside the point in that the EU, as a regulatory complex of institutions interacting with member states through their laws and its own, is already constituted. The article attempts to underline that if the relationship between EC laws, domestic laws and the procedures in place to govern the jurisdictions of the various courts empowered to give effect to these laws is accorded its constitutional significance, the debate on the respective roles of the ECJ and domestic courts should acquire its appropriate constitutional weight. It is the contribution of a writer viewing the role of the ECJ from a common law, UK perspective, where the rule of law and the internal (jurisdictionally speaking) consistency of court procedure is more crucial in understanding a state entity as constituted, irrespective of its democratic qualities, than an ex post facto textual declaration of constitutive purpose.
The arguments are presented by means of an analysis of the ECJ and domestic courts roles in the Treaty, in practice and by an analysis of the conclusions that can be drawn from the difficulties encountered in their cooperation and interactions.
The article ends in a call to rationalise the roles of the ECJ and the domestic courts to enable them to work in unison to better promote the observance of the laws and lawmaking powers which it is argued already constitute the EU.
The extent to which community and English law can stand together is a matter for the English courts to evolve; but if there is a conflict community law prevails not only in the letter but in the spirit. It produces a result strange to English minds – a law which has a governmental purpose and an ideological element (1).
It has been observed that a constitution is any body of rules underpinning an organization, from the now proverbial golf club to the United States of America. It will be argued, however, that the notion is more usefully understood in reverse, that common rules are what constitute an organization. The importance of law as a constitutive force has certainly not been overlooked by the dynasts and empire builders of history, nor by the technocrats and intergovernmentalists of today. It was no accident that Justinian ordered the laborious codification of the scattered jumble of legal sources then in force in his newly re-conquered and reorganised Roman empire, nor that Mehmet II found time out from the business of fresh conquest to begin the codification of a criminal and constitutional law for his own even more extensive realm. Common laws tend to bind people together, whether by facilitating their internal commerce while hindering it externally, or by manifesting themselves as physical obstacles in the form of border controls and barriers, or by representing consensual shared morality and the limits of social behaviour in the form of crimes and misdemeanours(2). As such, determining which body of law will be given effect to in a given region and in answer to a particular question is a matter of considerable importance to those concerned with the possession and exercise of power, a matter of national constitutional importance. No better example of such importance could be presented than the current existence of the European Union. In the context of the European Union, and the current extensive debate on the relative merits of its formal constitution, the constitutive effects of Community law as applied in cooperation between the European Court of Justice and the national courts in the member states is an aspect too often ignored. Taking into account the constitutional backgrounds of the majority of member states, this omission is hardly surprising. Societies rooted in documented constitutions are likely to view a similar document as of the essence, and this view will no doubt persist despite the difficulties encountered in transferring the concept to the European level. However, what will be argued in this submission is that it is where the European Union has already manifested itself that the debate should centre. In other words, it is the relationship between the ECJ and the national courts in the context of the shared value of the rule of law that should be the focus of constitutional attention, as well as being the actual source of its constitution. Defining the respective roles of the courts will do more to define the nature of this constitution than any proposed document. This argument will be presented through a review of the Community and domestic courts and their interactions, then an analysis of the difficulties they thus encounter in the context of the law they apply and are subject to, leading to the conclusions that can be drawn from the effects of the roles they play and how these roles should be organised.
Constituting the EU out of law and its courts
The EU is an entity whose exact nature has been difficult to agree upon while undoubtedly there for all to see. It seems to have sprung into being and exerted itself on the lives of the people within its influence solely out of and by means of laws of various kinds. These laws, it has been argued, are intended to guarantee a European commonwealth through the actions of the institutions they constitute, within a supranational area of shared values and interests(3). They are, for better or worse, certainly the most apparent and discussed aspects of its existence. That said, it is also apparent that law is not the only force that binds people together, nor necessarily the strongest; hence for such an ambitiously overarching entity constituted of law and the respect for law alone, the management and application of this law is a task to be handled delicately and with forethought. The European Union seeks to straddle the nations and regions of its member states and constitute itself out of the laws they share in achieving its originally economic goals. It is an entity that has evolved out of single-purpose Communities through acting to influence member state legislation and having been empowered to make and enforce its own. Central to its existence and development has been its Court of Justice, a dispute settlement body empowered by the states who established the original Communities by treaty to interpret and apply the Communitys laws internally among the institutions and between them and the member states, and to interpret these laws as they directly and indirectly affect the member states themselves. Significantly, the member states found that they had created a system whereby Community legislation would be directly effective within their jurisdictions, effectively replacing parts of their legislation in the interests of attaining communal goals. Given the goal-oriented and initially strictly limited nature of this incursion into domestic legislation, as well as the limitations of the capacities of its creators against the size of the task at hand, there was no question of uprooting the existing rich and well-established legal systems and replacing them with a new Community order. The logical route taken was to establish a system that operated in tandem with those existing so that where Community law was found to be applicable domestically, it would be applied by the domestic courts and given effect to through domestic rules of procedure and existing remedies. Questions on the interpretation of provisions of Community law and the extent of the applicability of these provisions were to be referred to by the domestic courts to the Court of Justice for binding rulings preliminary to their own more comprehensive judgements. As such, the system installed did not imply the insertion of an extra route of appeal into the domestic jurisdictions as has been called for by commentators concerned with the attainment of the goal of consistency(4), but something broadly conservative of the existing state of autonomy more along the lines of a civil law court of cassation(5). This arrangement was referred to as one of cooperation between courts, but of supremacy of Community law, effectively recasting the domestic courts as community courts when handling community matters and under the expectation to defer to the Court of Justice when under its authority(6). For some this semi-exclusive overlap of sources of law and authority was a novelty, at least in recent history, and came as a shock to their established, variously constituted systems. However, as already acknowledged, the existence of the Union is a fact and this cooperative relationship between its own court and its members courts is one of the crucial points of interaction and balance in its current constitution. The following sections will discuss a number of areas where difficulties have been identified with regards to this relationship and will attempt to show by their means that not only does the interaction between the Court of Justice and the national courts truly represent a constituting force within the Union(7) but also that it must be the current focus of attention for reform in order to ameliorate the friction that hinders the smooth operation of Union governance. Perspectives on the problems identified will then be discussed, hopefully to convincingly suggest that a simple shift in attitude and perspective is all that is actually required to improve matters now and establish an effective developmental path into the future.
The trouble with a tribunal borne of a treaty
The general theme of the issues under discussion is the question of who decides what and under whose or what authority a decision is taken. At first blush the casual observer could be forgiven for concluding that neither of the above should ever be an issue, as the respective jurisdictions, rights and duties are clear, set out in duly signed and ratified treaties and sanctioned by long practice(8). However, that kind of wishful, harmonious thinking is soon lost the moment ones reading extends beyond preambles and the press releases announcing the concluded treaties. In reality there are considerable difficulties in this cooperative relationship as a result of the lacunae left in the treaties, the development of the rules by the European Court of Justice (ECJ), clashes with domestic rules, conflicts of jurisdiction(9), misunderstandings and the uneasy coexistence of Union and national constitutional laws(10). Some of the items mention might already require some clarification before continuing on to discussing the particular problems they engender. Firstly, it should be noted that as a consequence of its gradual and almost inadvertent development, the treaties making up the legal framework of the Union are sketchy to say the least. It goes beyond the scope of this work to go into much detail in this respect, suffice it to say that despite bringing it into existence intentionally incomplete, the member state originators sought to limit the extent to which the Union itself could plug the gaps in its legal capacities, effectively constituting it as a truncated, hamstrung entity of limited governance dependent on its creators for major adjustments to its structure(11). What this implies in our context is that the Union may not simply observe itself, identify a flaw and freely repair it, nor may it uproot many fresh areas of member state jurisdiction and plant its own laws to facilitate its activities, but must act within the strict confines of its express treaty powers, applying principles that have been subject to review by the court in their interpretation(12). Therefore, when confronted by difficulties in convincing two legal systems to coexist, the Union may coax and cajole but mostly it may not compel. The result is a curious lurching blend of centralisation and decentralisation where the ECJ has jealously guarded its ultimate interpretative competence with regards to Community law (as yet its major jurisdiction) while being forced by necessity through the sheer volume of work to farm out giving effect to the law to the domestic courts as much as possible(13), but without being able to supply anything local as support between itself and the thousands of bodies competent and often obligated to make reference to it. Secondly, because the ECJ is charged as the sole arbitrator of Community justice and exclusively empowered to decide where its jurisdiction lies but without having been given much guidance as to what principles it is to apply in achieving these aims, it has developed many of the principles to its judgements in a piecemeal and gradual fashion, often to the surprise and disgruntlement of the member state courts. The potential trouble this can cause is clearly evident in the case law concerning conflicts with constitutional courts(14), where their perceived existing and constitutionally guaranteed jurisdiction to rule on fundamental rights clashed with the ECJ when the interpretation and application of Community law involved such issues. However, it is suggested here that the perceived conflict of jurisdiction merely involves a misunderstanding of what the reception and application of Community law means in practice, in that Community law is better regarded as a parallel rather than a supplanting jurisdiction to be applied for specific purposes, leaving all other domestic points of law intact and unaffected. National constitutional courts do themselves an injustice to feel threatened by an encroachment of their previously uncircumscribed but nevertheless geographically localized powers by the ECJ, as their role in protecting domestic rights within domestic circumstances is not reduced by acknowledging that Community legislation adopted within it sphere of competence should be governed by a single Community court. Such coexistence is in fact the necessary corollary of the preservation of the autonomy of the national legal systems and their distinctive local rights, as according the ECJ its authority within its own space is to fortify the application of constitutional law at home.
However, recognising that need is not to answer the question of when the ECJ may intercede in the court hierarchy, nor with what effect. The rules defining the ECJs role in its wider context reflect the theory behind the role of the Union itself, and highlight a number of uncomfortable tensions awaiting resolution before the constitutional game can continue to be played.
A thumb in each pie or just a finger in the dam?
Interesting to note when discussing the hierarchy of the courts is the distinct purposes of the member state and community legislatures. Irrespective of whether principles of subsidiarity and proportionality are always correctly observed, Community legislation is overarching in its intent and, at the risk of over-labouring the point, communal. As such it cannot currently be regarded as representing the same class of lawmaking as that referred to by the German constitutional court, among others, as insufficiently democratic and potentially unconstitutional in their understanding of the term. However, as noted above, if given proper effect by the member state courts acting as community courts, community law should not run the risk of conflicting with domestic constitutions as much as merely requiring clarification as to its scope in disapplying such constitutions. It is not mere sophistry to admit strict supremacy of community law in such situations the domestic cannot be taken to apply where jurisdiction has been transferred to the Community. Within the scope of member state law however, there is no question as to the effect of the respective constitutions, each reigning supreme in its realm. Furthermore, while determining the limits of the application of Community law is matter for the ECJ alone and to be followed by the national courts, also observing the obligation to construe domestic provisions in keeping with community law, it should be borne in mind that once a decision as to scope has unequivocally been made, only further domestic democratic delegation of sovereignty should validly act to extend community competence and hence the scope of the law. Community law is to give effect to negotiated legislation, self interpreting, as Lenaerts and Gerard note, but also almost completely parasitical in gaining effect through other courts. This remains true whether provision is made for specific effects in the legislation or whether the domestic court needs to imply them from the text and employ its own instruments to do so. How this part of the system works is another vexed question.
The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the common market besides ourselves. The Treaty does not touch any of the matters which concern solely England and the people in it. These 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 into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law
On the matter of the precise division of powers between the member state courts and the Court of Justice, interesting debate has centred on the courts perceived need to adjudicate on matters of interpretation as authorised by the Treaty, and its supposed, indeed often self-avowed lack of competence to determine facts and apply Community law to a specific case. Definitely, in its cooperative capacity under Article 234, it resembles, as already noted, more a court of cassation than of appeal. Its main function is accordingly to determine whether questions of law have been correctly answered though, in the absence of existing principles of Community legal analysis, the nature of a legal question can be sufficiently indeterminate as to require it to be couched in sufficient facts upon which the court can base its pronouncements. This has led several commentators to call for a more principled approach to the delivery of preliminary rulings. Justifiable though such appeals are, given the habitual brevity of reasoning in Court judgements and the controversy arising from an apparent decision on facts misapprehended, it is perhaps too much to ask of the court to apply such elaborately planned principles of reasoning to the interpretation of often intentionally vague treaty provisions. For example, Article 28 prohibits quantitative restrictions on imports and all charges having equivalent effect and has done so since 1957. However, the interpretation of this phrase, which has itself changed through successive treaties, has developed broadly, extending itself under the judgements of the courts through ever more elaborate and detailed classification and sub-classification. Even the broad principles that the court has acknowledged as applicable to community law, such as giving teleological effect to Community provisions, had not been agreed upon to exist when the Treaties were signed and only came into being by necessity through incremental reinterpretation of court judgements delivered with the primary purpose of preserving the Treaty projects as described in Article 3 EC from being dismantled by member state activities. Therefore, the suggestion that the court could have employed more precise and abstract reasoning envisaged by common law based commentators in the absence of the sort of rich analytical framework such lawyers have as their legal heritage is tantamount to expecting modern day contract law from the medieval courts merchant. Irrespective of the strict legitimacy of the practice, the Court of Justice is obliged by the paucity of its background to get its hands dirty with matters of fact when delineating the terms of interpretation contained within the points of law a provision makes available to it. It is for this reason that the ECJ builds judgement upon judgement casuistically and organically, based as much on how it sees EC legislation could be explained through a given situation as on what is strictly in the legislation itself. It thus occasionally finds itself having gone down a legal taxonomic clade to the point where it has to stop itself and conclude that it has emerged into the world of the particular as, for example, when deciding whether rules on Sunday-trading are indeed obstacles to trade within the meaning of Article 28 EC or the endless gradations of excessive effect capable of preventing a measure from being justified as proportional. It should also be recognised that the facts are often employed by the court to implicitly reason by example, such as in the sports cases or those concerning the sale of pharmaceuticals by post, where reduction to precise abstraction on legal principles alone, though possible, would likely not achieve the same extent of harmonizing coordination that effectively forcing the domestic courts hand would do. This is particularly true where a Treaty provision appears to require the opening of a field traditionally jealously guarded by the member states, such as the provison and financing of healthcare services. Formalistically, it should be enough for the member states to be reminded of the implications of their commitments under the Treaties they agreed to and to pronounce on questions of purely legal content, but as the pattern of case law from Kohll and Decker through Peerbooms to Watts shows, the court has felt itself obliged to seemingly start from planning to achieve a desired result in the domestic case in question and fitting its reasoning to the facts such that this be achieved. In the context of decisions on the obligation to refer, it is almost as if the court interprets the meaning of its role in ensuring the observance of Community law in the context of the Treaty to be that where a domestic court is likely to hesitate when ruminating within a politically sensitive area from fear for its independence, the Court of Justice may step in and employ a Community scalpel to the available options for application, obliging the courage of a national courts supposed Community commitments where they may themselves falter. Though arguably going beyond its envisaged competence as impartial arbiter of the Treaty, within the legislative competence of a goal-oriented international community, Articles 2,3, 10, 220 and 234 taken together can be read as permitting what the ECJ does, even if the member states themselves would deny this in their acts of ratification where present. On the other hand, this is not to say that the ECJ can justify employing these methods indefinitely, and though expectations of thorough rationalisation of its process of reasoning might have been too much to ask for in the past, arguments for its adoption today have undoubted merits.
Remedies, the source and a step in the solution of the problem
These arguments become particularly relevant when considered from the perspective of remedies. The difficulty lies in two aspects of the same problem. Firstly, domestic courts need to know what remedies are available in the community contexts and the conditions under which they may be applied. Secondly, domestic courts need to be able to reliably decide how to classify Community rights when making domestic remedies available, so as to be able to preserve legal certainty for parties. In both respects, mere procedural autonomy is insufficient and hence, guidance solely from the court by reference may not be ideal. Though being the eventual aim of most litigation and surely of considerable importance when evaluating the actual effectiveness of any legal system, remedies are ill suited as subjects for treatment in preliminary references, which are by definition preliminary to a judgement by a national court. Pronouncements have been made on ensuring that access to effective remedies be provided and that such access is not made procedurally impossible or negated by a lack of interim protection, or through domestic rules of limitation not taking into account the additional legal costs entailed in satisfying the obligation to refer undecided points of interpretation of Community law to the EC, but little guidance is given beyond that which to the domestic court in the absence of certainty in determining the specifics of Community legal issues can only act to as discouragement from giving the full effect to Community law intended. Remedies need to be available, appropriate and effective, but these three exhortations raise questions that can be given as many different as there are factual situations, not to mention where more than one appropriate remedy may be available. Remedies need to be ascertainable as clearly as the rights and obligations that they enforce; however, the choppy state of case law in this area means that national courts must often cede discretion and their pre-established legal certainties to the ECJ. As a consequence, it is easily imaginable that where confronted by facts that may be construed to confine a case to domestic jurisdiction while the availability of remedies turns on the cases classification, which may in turn be subject to a contentious point of Community law, litigants will hesitate bringing such a point to the attention of their presiding judge and risk negotiating a costly and time-consuming morass. Furthermore, though the ECJ has its own views as to the obligation to refer, the respect to be accorded to the intentions of the parties and on courts raising points of Community law of their own motion, a domestic court lacking prescriptive guidance may understandably prefer to function in its own right rather than to see itself switch roles and subject itself to the purposive, sometimes erratic pseudo-legislative interpretations of the ECJ. This diffuse, extensive but not altogether systematic assault on the workings of the national courts by the ECJ, even where technically sanctioned may well do more to undermine than to further the object of consistency in Community law.
Clearing up conflicting cases
The jurisprudence of the Court and national courts on the conditions under which references are to be made and their intended effects has been elaborated to an extent that goes well beyond the scope here, however, it provides cases that usefully illustrate the tensions caused by the opposing centralizing/decentralizing tendencies already referred to. These tendencies result in decisions that seem uncoordinated in the intended end results, alternately attracting and repelling responsibility for passing judgement on the parameters of the relationship.
For example, the judgement in CILFIT on the conditions under which a national court may regard a Community legal point as acte clair and thus refrain from referring has been suggested as providing some grounds for courts not to refer, and indeed it has been remarked upon by commentators that there have been absolutely and relatively fewer cases referred by the United Kingdom courts than by other member state courts, possibly as a consequence, though arguably as a contributory reason among many others. In its reasoning the court strictly rules out the possibility that the right to refer be considered as a separate cause of action, effectively confirming the procedure under Article 234 EC as an auxiliary right within a system of legal protection to be invoked by national courts once they have determined that its conditions are satisfied. However, what CILFIT also represents is an example of where the Court of Justice, in deciding when domestic courts are to make reference, reached the point where it decisions met and subsumed the advice that those courts had already given to themselves. The danger is, of course, that by approaching cooperation from this angle, the court needs to pass judgement on increasingly specific sub-categorisations of points of law through having appropriate references made to it, retroactively having to clear away the thickets of domestic opinion that, where no reference is made, crop up by necessity and, though avowedly nonbinding, persist in their effects and allow for the development of possibly discordant member state case law. This in turn undermines effective Court supervision, the risk of which must have created the jurisdictional pressure resulting in the Kbler judgement referred to below. Particularly vulnerable in this regard are common law jurisdictions such as the English, whose reliance on binding precedent renders the establishment of case authority only later to be overruled by the ECJ particularly problematic. In this context it is interesting to resume Becks analysis here, as the development of divergent domestic and Community approaches to the same point can be witnessed in a comparison between the rulings in Three Rivers and Francovich respectively. Francovich is regarded as a standard case for the finding of state liability for breach of community law, setting out general conditions for the success of a claim, including the positive criterion that such rights be found unless excluded by lack of clarity as to the beneficiaries or the express exclusion of such rights. These final points, it should be noted, were not elaborated further as liability was found on the facts then in question. However, in Three Rivers, the English court system at its absolute last instance in the Lords applied Francovich, considering it sufficiently clear as to not make a reference, in excluding state liability, even though the directive in question was acting to harmonize existing UK legislation, in parallel to Francovich, for which the beneficiaries could have been ascertained. The conclusion to be drawn from this is not only that the House of Lords may have erred in not referring, but that it reveals a trend towards judicial solipsim with worrying implications as to the attitudes taken by national courts towards Community law, particularly on noting that they often do not even go as far as to declare a point acte clair expressly, preferring to brush the question under the carpet. This chimes with the commonly expressed (and Court-acknowledged) concerns to avoid delay and expense in litigation, but does not reflect effective supervision of a decentralised system. However, the effectiveness of one of the steps taken to address this problem by the Court in Kbler is also open to question.
Recognising the courts for what they are, and according them their Treaty rights
The extent to which Kbler serves to support or undermine the participation of national courts in the Community legal process depends considerably on the way in which this recognition of courts as organs of state for the purposes of damages claims against member states is used in future rulings. Certainly, strong arguments have been made criticising the finding of the ECJ that a decision to refer by a court of final instance could be subject to such a claim on the grounds of partiality and inequality, pointing to the difficulty of finding similar liability extended to judgements of the ECJ given that it could find itself being both defendant and the only competent arbitrator in such allegations. Moreover, despite the seemingly objective three-step approach to liability proposed in the case, such objectivity only serves to obscure the logical incongruity inherent in finding another court liable in damages caused by it’s unwittingly mistaking for settled law an open Community legal point whose status as undecided the ECJ feels itself to be the only authority competent to judge. Of course, confronted by this risk, final instance courts could simply opt always to refer at the merest whiff of a Community issue, thus reversing any trend there may have been to keep cases within the family, as it were. However, the Kbler judgement may achieve the reverse unless handled discretely, and could cause more harm than the good that would be expected from the acknowledgement of court liability (which may already exist for domestic cases in some member states) in Community cases. Despite being a clear attempt to strengthen the obligation to refer, it seems doubtful that such an aim is to be achieved by removing from the hands of the domestic court of last instance the right to decide whether a point of Community law is in question. Kbler, though on its facts not finding liability incurred, opened its possibility, required domestic courts to give it effect and stressed its criterion to be that a breach of Community law be manifest. The trouble with that is that whereas the strict application of the rule obliges the domestic court to refer only once it has concluded that a question of Community law must be answered before the case can be decided, the conditions for a route to liability in Kbler imply that they can also be satisfied when a national court concludes that Community law is not an issue, if the ECJ later decides that this was not the case, rendering the initial decision not to refer ex post facto manifestly not following ECJ case law. Of course, this is not to deny the problem of courts of last instance refusing to make references where such references are called for, but given the that centralising tendencies evidenced by extending the reach of ECJ supervision to such an early stage in the process of deciding whether a preliminary reference is necessary are exactly the opposite of what is called for from a court already struggling to control its workload, it seems against all logic to follow this precedent further. Described by commentators as a step towards creating a fundamental right out of the right to refer, which may or may not be appropriate for other reasons, it is at least clear that the Treaties do not create such a right, nor should the domestic courts countenance it. Even if the right to refer ought to eventually be so regarded, responsibility for its defence should remain at least initially within the jurisdiction of the domestic courts. Though these courts must recognise the judgements of the ECJ as binding on them within the Community legal sphere, there must be limits set to govern at which point the Court of Justice itself may rule to draw a court into its jurisdiction. To foster a spirit of cooperation, the core powers of independent action must be preserved.
Circling the squares
It has been suggested that a solution to the problem would be for the Court be allowed to recast itself as a court of appeal and thus become properly integrated but less intrusive within the complete domestic court hierarchy. However, the impact and effect of ECJ case law within the context of domestic court deliberations and the point at which they would be obliged to give effect to it would nonetheless remain problematic. Creating a route of appeal to the ECJ rather than referring to it would not improve the awkward parallel accommodation of Community legislation unless that was also strictly framed and expressly provided for, as under a federal system. However, were the Union to constitute itself as such, the issue of whether the ECJ more resembled a common law appeals court or a civil one of cassation would be reduced to a matter of preference, as the burning issue of where Community law begins and ends would have already necessarily been solved. Barring pipedreams of federation and working with the current system as we find it, a possible solution might be to simply insert a single early junction in the national hierarchy of courts, where appeals either tend to rise purely through the domestic appeals system, or opt to be governed by the Community courts by means of references as at presence. It is a matter of strictly defining the limits of reception of Community law into the domestic jurisdiction, rather than leaving it to incremental decisions by only one side. That is not to say that an exclusive choice would need be made on all points raised in a given case but simply that when confronted by a conflict between Community law and domestic arrangements, it should be clear that once the jurisdiction of the ECJ has been acknowledged, other jurisdiction on the same point of law is eliminated. It is a matter of installing a legislative barrier between the conflicting jurisdictions by reminding these judiciaries that their role is primarily to apply the law rather than to struggle to see who may legislate. Returning to the notion of the role of courts as forces of constitution, what is proposed is the mere realisation that constitutions need not be geographically exclusive nor stratified, provided that they recognise each others concurrent but exclusive operational domains. The separation of powers and the checks and balances to power that this entails are two constitutional principles over which much ink has been spilt. Here they will merely be employed as aspects of the enlightened republicanism referred to by Kumm in his analysis of the European constitution from within the context of the argument for the two-stream system proposed, in that while intended as ideas to be applied to the state as a whole, these two notions can also inform an approach to a system of judicial protection. Noting that where people govern themselves within the framework of a state and different sources of law can coexist without necessarily always trumping each other, there only need be a well-defined system whereby the respective Treaty-based, national or local jurisdictions are defined and segregated, and supervise their own turf. As such, the ECJ need not claim for itself such lofty titles as Supreme Court for the Union, nor need it feel threatened by their lack. It need only jealously protect its decision-making powers and their effect within the field of application and allow all the other courts available within the Union to cooperatively serve their respective purposes. This, more than anything else, will help constitute a Union under the law, acting in the common interests of its members, where those interests require it to act at all.
Lord Denning in H. P. Bulmer Ltd. and Another v. J. Bollinger S.A. and Others  3 W.L.R. 202, at 406
John Locke, On Civil Government
Neil MacCormick, Democracy, Subsidiarity, and Citizenship in the European Commonwealth, Law and Philosophy 16: 333-339
See Gareth Davies, The division of powers between the European Court of Justice and national courts, Constitutionalism Web-Papers, ConWEB No. 3/2004http://les1.man.ac.uk/conweb/, retrieved on 24/4/2006, for further arguments on the topic centring on inter-forum cooperation and the risk of domestic judicial infantilism; and below at p. 10
Anderson and Demetriou, p. 5
See for example, Christine Boch p. 21 et seq. and the case law on national courts acting as Community institutions, including Kbler, discussed below.
‘Inspired by the acquis jurisprudentiel of the European Court of Justice many acknowledge that the Union already has a constitution in the form of a conglomerate of Treaties forming the constitutional charter of a Community based on the rule of law’. Koen Lenaerts and Damien Gerard paraphrasing Opinion 1/91, in ‘The Structure of the Union According to the Constitution For Europe: The Emperor Is Getting Dressed’, EURLR 2004, 29(3), p. 291
Indeed, how could there be any difficulty in the face of Article 10 EC?
See Boch p. 24
See Lenaerts and Gerard at p. 302
See Boch p. 104 for a discussion on the balance between limiting ECJ gap filling for the sake of national procedural autonomy and minimizing the degree of variation in judicial protection available through the member state courts as a result.
Kieran Bradley The European Court and the Legal Basis Of Community Legislation, E.L. Rev. 1988, 13(6), p. 380, but also see Stephen Weatherill, Better Competence Monitoring E.L. Rev. 2005, 30(1), p. 23 for views on how even the system described has lost its coherence through too loose an interpretation of the principles intended to govern it
Note for example, the French conseil dEtats refusal to recognise the authority of the ECJ until 1989 and the Solange I and Solange II decisions of the German constitutional court (BVerfGE 37, 271 and BVerfGE 73, 339 respectively), where the court reviewed the compatibility of secondary Community legislation against the German constitution in contravention of the doctrine of supremacy, eventually delivering a generally face-saving decision that so long as the ECJ observed the its doctrine of protecting fundamental rights common to the member states, it would refrain from exercising its jurisdiction, but causing quite a stir in the process
See for example Massam Dzodzi v Belgian State, joined cases C-297/88 and C-197/89 at para 33 et seq.
Boch, pp. 93-95
Idem p. 303
Lord Denning in H. P. Bulmer Ltd. and Another v. J. Bollinger S.A. and Others  3 W.L.R. 202, at p. 418
See for example the cases where the court has attempted to define how much information it requires and in what terms references are to be made, such as Pasquale Foglia v Mariella Novello Case 244/80 at para. 17
et seq and Wienland Meilicke v ADV/ORGA F. A. Meyer AG. Case C-83/91 at para. 26 et seq.
Idem Davies, Idem Boch
Jochem Wiers, Trade and Environment in the EC and the WTO; A Legal Analysis, (Groningen 2002) p.44
arguably through court activism and frustration at lack of legislative progress by the member states
See the case law culminating in Case C-169/91 B & Q  ECR I-6635, where the exasperated court finally realised that they were not
Deautcher Apothekerverband Case C-322/01
Case C-158/96 Kohll
Case C-120/95 Decker  ECR I-1831
Case C-157/99 Geraets-Smits (Peerbooms)
Case C-372/04 R v Bedford Primary Care Trust and Secretary of State for Health, ex parte Yvonne Watts
Provided for courts of last instance by Article 234 EC and subject to considerable discussion, more on which below
See, for instance, the Factortame series of cases and the initial reluctance of the English courts to step outside their national rules when deciding a case with Community interest
Though the Court itself has never felt bound to honour the quirks of ratification legislation, seemingly regarding it as the disposable machinery for the reception of Community law
See Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirstschaftskammer fr das Saarland  ECR 1989 on giving access to effective remedies for directly effective Community measure in the absence of specific provision of remedies (though no new remedies are required to be created per case 158/80, Rewe-Handelsgesellschaft Nord mbH v Hauptzollamt Kiel  ECR 1805, thus emphasizing the dependence on national instrumental provisions inherent to Community legislation
Case C-87/90 A. Verhoolen e.a. v Sociale Verzekeringsbank  ECR I-3757
Case C-213/89, R. v Secretary of State for Transport, ex parte Factortame Ltd. And Others  ECR I-2433
Case C-271/91 Marshall v Southampton and South West Area Heath Authority (Marshall II) ECR I-4367
Case C-312/93 Peterbroek van Campenhout 2 Cie CSC v Belgium  ECR
European Community Law in the English Courts, eds. Mads Andenas and Francist Jacobs, (Clarendon 1998)
EC Law in the UK, Christine Boch, (Pearson Education 2000)
References to the European Court, David W.K. Anderson and Maria Demetriou, (Sweet & Maxwell 2002)
Procedural Law of the European Union, Koen Lenaerts and Dirk Arts, (Sweet & Maxwell 1999)
The Relationship between European Community Law and National Law, Andrew Oppenheimer (CUP 1995)
EU Law, Third Edition, Paul Craig and Grinne De Brca, (OUP 2003)