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III. EC Law and the Constitutional Resettlement of Administrative rather than Judicial Power

The study found 1,088 cases reported in which a question of EU law or British accession to the European Union was addressed by a British judge.⁶² These concerned 1,205 areas of EC law (see Table 2). As would be expected, the bias in reporting led to the majority of reported cases involving the higher courts. In addition to the higher courts set out - the High Court and Court of Appeal of England of Wales, and the House of Lords - the senior courts of Northern Ireland and Scotland accounted for 17⁶³ and 34⁶⁴ cases respectively. It is also worth noting that there were 6 judgments, which concerned none of these jurisdictions - 2 from the Isle of Man, 2 from the Channel Islands and 2 involving the Privy Council.⁶⁵ In addition to the two lower courts mentioned, the Employment Appeal Tribunal and the VAT and Duties Tribunals, other courts or judicial bodies who figured prominently were the Crown Court (15 cases), the Immigration Appeals Tribunal (12), Employment Tribunals (19), Magistrates (27) and the Social Security Commissioner (26). The provisions invoked most frequently were EC Treaty provisions, 880 times.⁶⁶ Directives were invoked 581 times and Regulations 214 times. In addition, international agreements signed by the EC were invoked 12 times before British courts.

The most striking feature of these statistics was the narrow focus of litigation. It was narrow, first, in the sectors it covered. 659/1,205 areas fell within just 5 bands - taxation, sex discrimination, free movement of goods, free movement of persons (excluding issues of service provision and establishment) and intellectual property. This narrowness was exacerbated by 68 of the free movement of goods cases being centered exclusively around Articles 28-30 EC. If one includes the Social Security cases within this group, as these centered exclusively either upon Regulation 1408/71 EEC and its amending legislation, which deals with the social security entitlements of migrant workers, or Directive 79/7/EEC, which curbs the sex discriminatory effects of social security schemes, one arrives at a situation in which 61% of the litigation falls within these narrow areas of EC law. Similarly, in the case of Directives - so pivotal to central domains of EC law such as the single market, environment, labour and consumer law - five Directives alone account for 426 instances, 73.32% of the total, in which Directives are reported to have been invoked before British courts.⁷⁰ Conversely, in the field of the environment, in which there are over 200 pieces of EC legislation, one finds only 39 cases, of which 31 were in the period 1995-1998. EC consumer guarantees, another area of British law substantially remodelled by EC intervention, have only been invoked 6 times. Perhaps, most interesting, however is that of the single market, the field of law that is both seen to have regenerated the EC and contributed significantly to centrifugal pressures. Although 59 judgments can be attributed to legislation adopted as part of or ancillary to the 1988-1993 Single Market Programme,⁷¹ 29 of these judgments concerned Directive 89/104/EEC, on the harmonisation of trademarks; 8 concerned public procurement and 8 concerned Directive 92/12/EC on the harmonisation of excise duties. Aside from these 3 areas, one is left with only 14 judgments. In the period 1994-1998, they accounted for only 2.51% of all recorded judgments.⁷²

EC judicial involvement is also narrow in another sense. Direct intervention in private disputes is very limited. The majority of cases involve litigation against the State's exercise of its administrative or fiscal powers or criminal cases. 647 cases involve litigation is against the State in this former capacity and a further 76 cases which center around a criminal prosecution. Of the remaining 355 cases, which involve either private disputes or actions against public bodies where the latter are acting in a transactional capacity, 229, 64.45%, concern two discrete areas, sex discrimination legislation and protection of workers in the case of transfer of ownership of undertakings (TUPE). The above does not necessarily mean that EC law has not had an effect on these other spheres of social interaction. It does suggest that these, most notably the market place, have an autonomy relatively unperturbed by the traditional apparatus of legal enforcement, the judiciary. Certainly less so than in purely domestic contexts where one finds private law actions making up the overwhelming majority of non-criminal actions. If this is right, then where EC law is used to govern private transactions, its centre of gravity is absorbed into the `global law beyond the nation-State', that a number of commentators have observed.⁷³ This consists of the panoply of norms generated through standard form contracts, codes of conduct, systems of arbitration, and participation in organisations such as UNIDROIT and UNICITRAL in which the transnational, mega-law firm has become both the central laboratory and player for both the enactment and elaboration of these norms.⁷⁴

The third manner in which judical involvement has been limited is that it has not led, directly at least, to any constitutional resettlement around constitutive liberal freedoms. This manifests itself most clearly in the limited impact of the `economic freedoms'on judicial practice. If there are any constitutive principles which anchor the EC polity, these provisions on free movement of goods, capital, services, establishment and persons are surely those.⁷⁵ All have been interpreted, albeit to varying degrees, to prohibit not merely protectionist measures, but also to act as constitutive 'economic due process' provisions, which put limits on the level of administrative intervention in the market place.⁷⁶ Yet, for all this, there has been no liberal resettlement within the United Kingdom. There are only 169 instances of these being invoked in British cases. Taken as a whole, their rate of successful invocation is below average and they account for only 39/506 instances, 7.71%, in which EC law has been successfully invoked by litigants.

62 Litigation involving the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 (Brussels Convention) and subsequent Judgments Conventions were not included in this study. Although the United Kingdom acceded to the Brussels Convention in 1982 and this does allow for references to the Court of Justice, the legal structures for these conventions is different from that of the TEU.

63 Of these 5 were decided by the High Court and 12 by the Court of Appeal. 1 of the cases decided by the House of Lords came from Northern Ireland.

64 12 were decided by the High Court of the Justiciary and 22 by the Court of Session. 2 of the cases decided by the House of Lords were appealed from Scottish courts.

65 Some Commonwealth countries elect to use this body, whose members are made up of House of Lords judges, as a court of final appeal.

66 More than one provision could be invoked in the same case.

67 These are High Court (HC), Court of Appeal (CA), House of Lords (HL), Employment Appeals Tribunal (EAT), VAT and Duties Tribunal (VAT).

68 The central headings are Taxation (Tax), Sex Discrimination (SexD), Safeguarding of Employee Rights in the Event of Transfer of Undertakings (TUPE), Free Movement of Goods (FMG), Free Movement of Persons (FMP), Environment (Environment), Intellectual Property (IP), Social Security (SS), Competition (Comp), Agriculture (Agric), Fisheries (Fish), Transport (Tran), External Relations, (E.Rel), Pharmaceuticals (Pharm), Freedom of Establishment (FoE), Freedom to Provide Services (FPS), Public Procurement (PP), Immigration cases concerning third country nationals in which Article 39 EC was not invoked (Imm). Other headings invoked not included on the table were:- Company law 7; Redundancies and Rights of Employees in case of Insolvency -8; Privileges of the European Parliament -2; Education -2; Budget -2; State Aids-5; Consumer Law -6; Public Undertakings -1; Public Procurement-11; Insurance-6; Broadcasting-1; Banking-1; Structural Funds -1; Social Fund -1; Health and Safety in the Workplace -3; Commercial Agents-8; Justice and Home Affairs-1; Free Movement of Capital and Monetary Policy-3. In some cases it was artificial to state that a dispute revolved around one area rather than other. In such cases, 127, the case were treated as falling in two areas. Also included in the survey were 8 judgments, which concerned issue of accession or ratification of the Treaty. There were also 1 that dwelt with the ECJ rulings on fundamental rights and 1 with those on legitimate expectations. Neither concerned any substantive provision of EC law. Purists might object to these 10 judgments being included in the survey, but they were included as all centered upon judicial attitudes to the EC integration process. Finally, although not in a heading in its own right, cases that involved criminal sanctions are posted.

69 The first three columns indicate the central provisions- EC Treaty articles, Regulations, Directives -invoked in British courts. The next two indicate whether the party claiming the EC legal right was able to assert that right successfully or not (Success/Failure). In many cases this was difficult to tell, notably in the case of references back to British courts from the Court of Justice or in interlocutory hearings. This is the reason for this figure being less than 1,088. The next column details the number of cases in which a Court of Justice ruling was central to the ratio decidendi of the British court (Apply ECJ). There are next two columns which consider whether positive or negative comments about EC law were made by the British court (Positive/Restrictive). The final two columns give the number of Preliminary References given and refused (P'Refs/P'Refs Refused). The 'Positive', 'Apply ECJ' and 'P'Ref' columns are all, for obvious reasons, mutually exclusive.
The figure of 258 references differs from the 269 given by the Court of Justice. 9 of those reported by the ECJ involved the Judgments Conventions which were outside this study. Despite exhaustive studies, the other 2 could not be found. Certainly, neither of them led to judgment by the ECJ. In addition, the year given differs from those given by the ECJ. This is because this study took the date as that when the order was made by the British court and not when it is marked as received by the ECJ.

70 These are Directive 76/207/EEC - 75; Directive 77/187/EEC - 65; Directive 77/388/EEC -228; Directive 79/7 -29, and Directive 89/104/EEC - 29.

71 This was treated broadly in terms of the subject-matter and legislation adopted in 1993 was considered because of the lag in the legislative programme.

72 The judgments in question were Case C-1/96 R v MAFF exparte Compassion in World Farming [1995](Directive 91/129/EEC); Credit Lyonnais v New Hampshire Insurance Company [1997] 2 Lloyds Rep 1 (Directive 88/357); Allen v Redbridge BC [1994] 1 WLR 139 (Directive 88/310); Wong Mee Wan v Kwa Kin [1995] 4 All ER 745 (Directive 90/314); Woodspring DC v Bakers of Nailsea [1995] European Food Law Review 201 (Directive 91/497) Optident v Secretary of State for Trade and Industry [1999] 1 CMLR 782 (Directive 93/42/EC); R v Bridgeman [1996] FSR 538 (Directive 89/552); Scotch Whisky Association, Justerini and Brooks Ltd and William Grant & Sons Ltd v JD Vintners Ltd [1997] EuR 446 (Regulation 1576/89); British Sky Broadcasting Ltd v The Performing Right Society Ltd (1997) (Directive 93/83); Scotch Whisky Association v Glen Kella Distillers Ltd [1996-1998] Manx Law Reports 193 (Regulation 1576/89) Gloag v Walsh Distillers [1998] 2 CMLR 203 (Regulation 1576/89); Case C-82/96 R v Secretary of State for Trade and Industry, ex parte Consumers Association, Judgment of 28 February 1996 (Directive 93/13)(information provided by ECJ). In addition there were 2 judgments prior to 1994 that involved single market legislation, Case C-11/92 R v Secretary of State for Health ex parte Gallaher (Directive 89/662); R v Secretary of State for the National Heritage exp Continental TV [1993] 3 CMLR 387 (Directive 89/552/EC).

73 B. de Sousa Santos, Toward a new Common Sense: Law, Science and Politics in the Paradigmatic Transition (1995, Routledge, London-New York) Chapter 5; G. Teubner, `Breaking Frames: The Global Interplay of Legal and Social Systems' (1997) 45 American Journal of Comparative Law 149.

74 On this `lex mercatoria' see C. Schmitthoff, Export Trade: The Law and Practice of International Trade (1990, 9^th Edition, Stevens, London); H-J. Mertens, 'Lex Mercatoria: A Self-Applying System Beyond Law' in G. Teubner (ed) Global Law without a State (1997, Dartmouth, Aldershot). On the role of the law-firm see Y. Dezalay & G. Garth, Dealing in virtue : international commercial arbitration and the construction of a transnational legal order (1996, University of Chicago Press, Chicago).

75 E. Mestm_cker, 'On the Legitimacy of European Law' (1994) 56 Rabels Zeitschift 615; E. Streit & W. Mussler, 'The Economic Constitution of the European Community: From "Rome" to "Maastricht"' (1995) 1 European Law Journal 5; C. Ball, 'The Making of a Transnational Capitalist Society: The Court of Justice, Social Policy and Individual Rights under the Community's Legal Order' (1996) 37 Harvard International Law Journal 307.

76 M. Poiares Maduro, We the Court: The European Court of Justice and the European Economic Constitution (1998, Hart, Oxford) 61-88

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