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VI Judicial Tensions In the Application of EC Law

i. The Patterning of Judicial Behaviour by the Institutional Environment

The generalistic, reductivistic assumptions of statistics within which each case is given an equal value and treated as possessing (or not) a limited series of attributes render them unsuited in many ways to producing acute insights into particular judicial preferences or storylines. And in this respect the case study is a far more productive form of analysis. Notwithstanding this, entry into litigation is entry into an organisational process with highly defined properties, which, in turn will generate homologies of its own. There is a consensus in the EC judicial politics literature that judicial behaviour does not fit in some neat, universalistic model of institutional design, but, in Moe's words, is a 'unique structural reflection of its own politics'.¹³⁵ Analysis has approached this, however, in quite discrete supply and demand terms. On the supply side, there is a burgeoning literature that recognises that the formal and informal resources which inform judicial autonomy also structure attitudes to preliminary references and reception of EC law - be they formal legal rules, either procedural or substantive; notions of judicial identity; patterns of recruitment; understanding of intra-judicial relations, relations with other arms of government or with civil society.¹³⁶ More recently from a demand side, it has been observed how general variations between jurisdictions in the patterns in the quantity and distribution of litigation affects the development of EC law in these different jurisdictions.¹³⁷

All these are important structural constraints. Yet, by being treated as simply an external constraint on the output of judicial behaviour, they fail to account for the nature of the dialectic between each other that is generated through the process of litigation and adjudication and how these processes themselves frame and transform that dialectic. No account is taken of what cultural institutionalists label 'the institutional environment', the series of 'rational myths' which condition and enable behaviour, 'rational in that they specify in a rulelike way how certain activities are to be conducted to achieve a given objective, mythical in that the rules "work" because and only to the extent, they rest on widely shared beliefs.'¹³⁸ The feature of such belief-systems is that they not only act as important autonomous forms of organisation. As they frame how organisations perceive the nature of their tasks, measure their success in performing those tasks and enter into relations with their parties, success and legitimacy is measured in areas characteristised by strong institutional environments by the extent to which organisations conform to these 'rational myths'. This, in turn, leads to strong convergences in behaviour.

The central form of institutional environment which patterns judicial behaviour is that the judge must enter into a quintessentially legal relationship with the parties who come before the court. Legal structures will determine who and what appears before the court and when. Legal structures will also determine the triangular relationship between the court and the parties during litigation, and finally the outcome will have to be expressed and reasoned in legal terms. At a very general level, these condition judicial behaviour and limit options.In particular, law contains a number of structures which condition judicial decision-making. These include abstraction - law refers to generic sets of situations - and comprehensiveness - no constraints will be recognised, formally, on legally authority other than those imposed legally. The need for law to stabilise expectations also leads any legal decision to couch itself by reference to past practice and to be non-falsifiable, that is to say that where there is a deviance between a legal norm and behaviour, it is the latter that is to be regarded as legally at fault. Furthermore, the requirement upon judges to couch decisions using binary legal/illegal distinctions precludes them from reaching certain outcomes, such as constructing negotiated settlements, for example.

ii. Institutional Capabilities for Conformity as the Central Constraint on Reception of EC Law

The above are all very general, however. There are structures which condition the attitudes of British judges towards application of EU law far more specifically.

The first of these is, unsurprisingly, the legal doctrine itself, be it substantive or procedural. It may come as a surprise to some of the judicial politics literature, but a feature of judicial identity is that judges are there to apply the law! Within the context of European integration this can cut both ways, as this could involve not merely applying EU legal rules, but also national ones that might conflict with these. Under such a scenario, one would expect national judicial resistance to the reception of EU law to be higher where it is challenging pre-established domestic laws. This has not really happened simply because there is a convergence in UK and Court of Justice legal doctrine that in cases of conflict EC law should take precedence. Applying the law therefore means applying EC law. Notwithstanding this, divergence between EC law and British law has generated some resistance at the edges, which has manifested itself in two ways. In a number of cases, most notably sex discrimination, but also in other fields, there was an unwillingness to 'distort' national law through interpreting it in the light of subsequent directives.¹³⁹ In addition, there was not one example, despite it being legally possible, of a directive being invoked in a British court, where no national legislation was in place. In some instances the latter was not conformant to EC law, but its presence seemed almost to be a precondition to litigation.

A far more powerful centrifugal pressure, and one that seemed to be central to explaining variations in judicial behaviour across different sectors, was that there was a greater resistance to the application of EC law wherever it was perceived as disrupting the capacity of the central institutions within the British political economy to secure societal conformity. This requires a word of explanation. A central feature of law is that it both seeks to stabilise the expectations and govern the conduct of its subjects. With the emergence of liberal political economy it has contributed to securing two broad forms of conformity. On the one hand, adjudication helps sustain repressive conformity. This assumes a `collective consciousness is present through the language and practices that each individual shares.'<sup>140</sup> It seeks to sustain this by making `the members of the group bind themselves even more to the type of collectivity and stress their mutual similarities'.¹⁴¹ This is done either through punishment or through the exclusion of those that are clearly not part of the group. In practical terms, it leads to law being concerned with the protection of the administrative apparatus' interests¹⁴² and of central symbols or practices eg criminal law, immigration law, laws on blasphemy and obscenity. On the other hand, law helps to sustain restitutionary conformity. Derived from the division of labour, this `disposes individuals exercising different occupations and playing different roles to find cohesion among themselves'.¹⁴³ In this instance, the function of law is provide rules of mutual dependence (eg property rights, contract law, recognition of the privileges of professional associations) which allow activities to develop in a patterned and regular manner despite this diversity.¹⁴⁴ In protecting each type of conformity, national law is drawn into a network of relationships with those other institutions that contribute to this conformity. Correspondingly, in applying the law, judicial identity becomes suffused into identification with protection of these institutions. As this association exists essentially at the level of a belief-system, it can not be displaced by the formal process of giving precedence to EC law. The consequence is that there is a greater unreceptiveness to application of EC law where it disrupts these institutions' capabilities to ensure conformity.

In the case of repressive conformity, this is revealed in the apparently paradoxical treatment of the 76 cases involving criminal sanctions by British courts in this period. EC law was invoked successfully 43 times. These figures conceal a stark dichotomy, however. Where EC legislation is being used to extend the State 'monopoly of violence' by providing further bases for criminalising behaviour - most notably in the field of transport, but also in the fields of fisheries, agriculture, taxation and environment - there are, out of 50 cases, 40 instances of EC law being successfully invoked. This is very different from the scenario where EC law acts in a deregulatory manner by threatening to prevent a State from applying criminal sanctions on the grounds that these breach EC law. In only 3 out of 26 cases was EC law being successfully invoked. These figures suggest that there is no core of national competencies upon which courts will not let EC law intrude.¹⁴⁵ There is a positive view to EC law where it builds up the State's capacity to secure repressive conformity and extend sanctions, even if this is at the cost of allowing EC law to determine the normative content of that conformity. There is, however, an extremely resistant approach to EC law and the Court of Justice where, in narrow institutional terms, EC law hinders the capacity to impose not just sanctions, but collective ties. There is further evidence for this hypothesis in the figures on free movement of persons. The overwhelming majority of the former (40/59) concern rights of entry, circulation and residence within the United Kingdom rather than questions of employment or non-discrimination -the question of entry into the national society. A feature of the application of this area of law is a high number of restrictive judgments, a low number of referrals and, given that this area involves a substantial legal regime which grants substantial rights to the EC migrant, a much lower rate of success than either the sex discrimination or TUPE cases (Table 5).

This distribution cannot be put down to the powerful imagery that forms the background to that legislation which secures repressive conformity. For a similar patterm emerges in the case of legislation securing restitutionary conformity. In this instance, there is a very clear dichotomy between legislation that overlaps and supplements enduring private legal relationships and that legislation that cuts across and disrupts these relations. Sex discrimination legislation and TUPE are examples of the former. They build and consolidate the contract of employment. Both have relatively high levels of being successfully invoked. There is a steady pattern of references in the case of sex discrimination and a high deference to the case law of the Court of Justice in the case of both. One finds, once again, therefore that there is no hallowed turf of British private law upon which British judges will not let EU law intrude. This attitude stands in marked contrast to the attitude of British judges to EC competition and environment law. Competition law, as an area, cuts across private contracts by rendering them unenforceable. It diminishes the steering capacity of the institution of contract and had a correspondingly low rate of being successfully invoked. In the case of environmental law, the majority of the decisions concerned challenges to public authority `development consents' granting permission for some private development. The judicial challenge was, in substantive terms therefore, concerned with thwarting private initiatives and curbing the exercise of private property rights. A feature of this area was that on every point it scored lowly. There was a low success rate of invocability, a high rate of refusals by British courts to refer, and a higher than average number of `restrictive' judgments.¹⁴⁶

135 T. Moe, 'The Politics of Structural Choice: Towards a Theory of Public Bureaucracy' 116, 142 in O. Williamson (ed) Organization Theory: From Chester Barnard to the Present (1995, OUP, Oxford).

136D Chalmers, `Judicial Preferences and the Community Legal Order' (1997) Modern Law Review 164. More recently see K. Alter, 'Where, When and How does the European Legal System Influence Domestic Policy' (2000) 54 International Organisation (forthcoming)

137 L. Conant, `Europeanization and the Courts: Variable Patterns of Adaptation among National Judiciaries' in J. Caparaso, M. Cowles & T. Risse (eds) Europeanization and Domestic Structural Change (2000, Cornell University Press, Ithaca)

138 W. Scott, 'Symbols and Organizations: From Barnard to the Institutionalists' 38, 46 in O. Williamson (ed) Organization Theory: From Chester Barnard to the Present (1995, OUP, Oxford).

139 Haughton v Olau Line (UK) [1986] 1 CMLR 730; Kuikka v CCE [1991] 3 CMLR 161; Duke v GEC Reliance [1988] AC 618; Bell Concord Educational Trust v CCE [1989] 1 CMLR 845; Finnegan v Clowney [1990] AC 407; Wychavon District Council v Secretary of the Environment [1994] 6 Journal of Environmental Law 351; Bhudi v IMI Refiners [1994] ICR 307; Macmillan v Edinburgh Voluntary Organisations Council [1995] IRLR 536.

140 S. Moscovici, The Invention of Society (1993, Polity, Cambridge) 84.

141 Ibid., 87.

142 On this see B. Wright, `Quiescent Leviathan? Citizenship and National Security Measures in Late Modernity' (1998) 25 Journal of Law & Society 213, 226-227.

143 S. Moscovici, supra n.140, 87-88.

144 Ibid 87-93. Moscovici is influenced here heavily by the work of Durkheim, most notably E. Durkheim, The Division of Labour in Society (1984, transl W. Halls, Macmillan, Basingstoke). A not dissimilar dichotomy is present in other traditions. See the dichotomy between sovereignty and governmentality in Foucault's work, M. Foucault, `Governmentality' in G. Burchill, C. Gordon & P. Miller, (eds) The Foucault Effect: Studies in Governmentality (1991, Harvester Wheatsheaf, Hemel Hempstead).

145 See most notably Re Colgan [1997] 1 CMLR 53 where the Northern Irish High Court took a 'communautaire' interpretation of Article 39(4) EC which deals with the circumstances in which EC nationals have right to access civil service jobs.

146 The more early ones have been critiqued in J. Golub, `The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the European Court of Justice' (1996) 19 WEP 36. More recently see R v National Rivers Authority ex parte Moreton [1996] Environmental Law Reports 234 & Berkeley v Secretary of State for the Environment [1999] 1 CMLR 945.

147 This concerned entry of entry of Third Country Nationals who did not enter, or attempt, to enter into the Article 39 EC regime. The legal regime for these is markedly more severe, and it seemed appropriate therefore to treat them seperately.

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