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The early case law of the ECJ recognised national procedural autonomy. The Saarland ruling stated that 87:
in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the protection of the rights which citizens have from the direct effect of Community law.
This principle was subject only to the proviso that procedural rules must not (i) be less favourable than those governing similar domestic actions nor (ii) render virtually impossible or excessively difficult the exercise of rights conferred by Community law.
Gradually, this autonomy was eroded. A key ruling was Johnston 88, where the ECJ held that a statutory "ouster clause", which required an employment tribunal to treat a ministerial certificate of "public interest immunity" as conclusive, must cede to the "general principle of effective judicial protection". Factortame and Francovich mark further key stages in the process of "constitutionalisation", whereby EC law can penetrate with impunity the area of legal procedure previously supposed to be reserved for the national legal systems. By the 1990s, the procedural rights of defendants were being described as "principles of higher rank which prevail over all other rules" and commentators were speaking of the virtual erosion of the rule of national procedural autonomy 89.
Procedures can also permeate national systems in the guise of human rights law. ECHR Arts 5, 6 and 13 all guarantee access to justice 90 and Johnston merely mirrors in EC law the right of access to court recognised and protected by ECHR Art 6(1). It is fair to say that ECHR Article 6(1) has been generously interpreted; indeed, a case law has developed around it which would certainly not have been foreseen by the original signatories 91. The degree of judicially ordained procedural convergence has been so great as to induce the complaint that Art 6(1) risks bringing within the ambit of the ECHR nearly the whole of administrative justice 92. In the name of "levelling up", the extension of ECHR Art 6(1) to the standard fare of administrative justice is imperilling established and respected administrative adjudicatory systems 93.
The TEU contained a loose commitment of tto respect "human rights and fundamental freedoms". This was replaced in the Treaty of Amsterdam with a formulation (ToA Art 6) requiring the EU to:
respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of constitutional law.
A European Charter of Rights can only accelerate the process of convergence. Article 47 of the Draft Charter 94 parallels ECHR Art 6(1), while Art 41 creates a "Right to Good Administration", which includes in para 2 the right to a hearing and reasoned decisions. The ECJ technique of constitutionalising human rights principles, directly or indirectly borrowed from the ECHR, is thus legitimated.
At first sight, the extension of human rights into relations between citizens and the administration seems a wholly benign development. If the universality of human rights is accepted as axiomatic, then their extension and co-ordination must surely be a "levelling up". This is, however, a dangerous simplification. An impugned procedure may not be inferior; it may simply be different. There is, for example, no absolute advantage of adversarial over inquisitorial procedure; one is not inevitably more independent or inherently less arbitrary than the other; each can operate fairly 95. Yet by stressing the independence criterion, the Court of Human Rights may prioritise the paradigm of adversarial justice, in which an impartial judge mediates between opposing parties. Again, some societies have strong cultures of "non-law", a preference which may be reflected in their procedures. To rule out ombudsmen as a remedy because their recommendations are not technically binding alters the very concept of justice in a society. As Ronny Abraham argues, cultural uniformity precludes experiment and creates a real danger of stultification. He sees too a threat to minority cultures in the 96:
condemnation of minority institutions and procedures, first considered curious, then abnormal, finally suspect in terms of the principles of due process. It is not because an institution or rule is to be found only in one, or in a small number of countries, that it is to be adjudged bad; the majority is not always right.
Note how Abraham, like Friedman, links procedures with culture.
When EC law clashes with national constitutional law culture clashes may be particularly acute because of the sanctity which nations (rightly) attach to their constitutions, often categorised as "higher" law. In the celebrated case of SPUC v Grogan 97, a "right to life", rated as "fundamental" and protected by a prohibition on abortion in the Irish Constitution, came into conflict with the economic freedom of access to services in the EC Treaty. Even though the ECJ managed to avoid an outright clash, the case came under fire because of the clash of competing norms 98.
Cases which seemingly raise quite simple questions of procedure may in practice involve significant clashes of value. Factortame overturned the doctrine of parliamentary sovereignty, keystone of the British constitution 99. In Peterbroeck and van Schijndel 100, the question was whether a national judge, faced with a situation in which EC law may be applicable but has not been pleaded, must raise the point of his own motion. Behind this technical question lay a deep constitutional question concerning the nature of adjudication in French-style legal systems 101. In thoughtful and considered opinions in these cases, A-G Jacobs set out the case for self-restraint 102:
[I]f the view were taken that national procedural rules must always yield to Community law, that would... unduly subvert established principles underlying the legal systems of the Member States. It would go further than is necessary for effective judicial protection. It could be regarded as infringing the principle of proportionality and, in a broad sense, the principle of subsidiarity, which reflects precisely the balance which the Court has sought to attain in this area for many years. It would also give rise to widespread anomalies, since the effect would be to afford greater protection to rights which are not, by virtue of being Community rights, inherently of greater importance than rights recognized by national law.
To resolve such clashes merely by reference to the operation of the supremacy doctrine, a short cut to a pre-ordained result, is deeply problematic; it resolves the problem superficially but not at a deep level. According to John Gray, rights are 103:
never the bottom line in moral or political theory or practice. They are conclusions, end-results of long chains of reasoning from commonly accepted premises. Rights have little authority or content in the absence of a common ethical life. They are conventions that are durable only when they express a moral consensus. When ethical disagreement is deep and wide an appeal to rights cannot resolve it. Indeed, it may make such conflict dangerously unmanageable... Looking to rights to arbitrate deep conflicts - rather than seeking to moderate them through the compromises of politics - is a recipe for a low-intensity civil war.
This is difficult stuff for lawyers, trained to view the legal system as a rational ordering or ranking of legal principle, and naturally inclined towards the conception of judicial decision as the "single right answer", unchallengeable save by appeal 104. But to pretend - as lawyers so often do - that rights are uncontestable is to divest them of their deep content and meaning; to substitute a thin for a thick, a legal for a political, definition of rights. The purpose and effect of articulating judgements about values in the language of rights is, by endowing them with the sanctity of law, to transfer the power of decision from legislatures to courts. When this process takes place in the EC legal system, the doctrine of legal supremacy operates so as to remove the power of decision from national to European level, entrenching the rights in question at a level beyond political reach. This is Wincottt's "perversion of democracy" duplicated.
87 Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, 1997. See also Case 158/80 Rewe-Handellgesellschaft Nord mbll and another v Hauptzollamt Kiel [1981] ECR 1805.
88 Case 222/84 Johnston v Royal Ulster Constabulary [1986] ECR 1651. See also Case C- 208/90 Emmott v Minister for Social Welfare [1991] ECR I-2925.
89 K. Lenaerts and J. Vanhamme, "Procedural Rights of Private Parties in the Community Administrative Process" (1997) 34 Common Market Law Review 531; R. Crauford Smith, "Remedies for Breaches of EU Law in National Courts: Legal Variation and Selection", in P. Craig and G. de Burca (eds), The Evolution of EU Law, Oxford, 1998.
90 ECHR Art 5 deals with pre-trial process, Art 13 demands an "effective remedy" for infringements of ECHR rights, Art 6 requires a fair and public hearing by an independent and impartial tribunal in the determination of a person's civil rights and obligations.
91 D. Harris, M O'Boyle and C. Warbrick, Law of the European Convention on Human Rights, Butterworths, 1995, ch. 6.
92 R. Abraham, "Les principes généraux de la protection juridictionnelle administrative en Europe: L'influence des jurisprudences européennes" (1997) 9 European Public Law Review 577, 582. A classic example is C 222/86 UNECTEF v Heylens [1987] ECR 4097, discussed below.
93 e.g., the Dutch procedure of Crown appeal Benthem v Netherlands (1985) 8 EHHR 1 noted Verheij, "Dutch administrative law after Bethem's case" [1990] Public Law 23. The practice of allowing members of administrative formations of a Conseil d'Etat to participate in adjudication Procola v Luxembourg (1996) 22 EHRR 193, noted R. Drago, "Un nouveau juge administratif", in Ecrits en hommage à Jean Foyer, Presses univeritaires de France, pp. 454-5. English habeas corpus procedure in Vilrajah v UK (1992) 14 EHRR 248 and judicial review procedure in Lustig-Prean and others v UK (judgement of 29 September 1999).
94 Above, note 7.
95 M. Damaska, The Faces of Justice and State Authority, Yale University Press, 1986. And see H. Lindblom, "Harmony of the Legal Spheres" (1997) 5 European Review of Private Law 11, 20.
96 Abraham, "Les principes généraux", above note 92, p. 582.
97 Case C-159/90 SPUC v Grogan [1991] 3 Common Market Law Review 849J. The Court ruled that an information service on abortion facilities was a "service" but that the students' union involved did not provide a service either directly or indirectly through funding.
98 From the torrent of comment, see J. Coppel and A. O'Neill, "The European Court of Justice: Taking Rights Seriously" (1992) 12 Legal Studies 227.
99 P. Craig, "Report on the United Kingdom" in A-M Slaughter, A. Stone Sweet, J. Weiler (eds), The European Courts and National Courts - Doctrine and Jurisprudence, Hart Publishing, 1998, p.196.
100 Case C 312/93 Peterbroeck, Van Campenhout et Cie v Belgium [1995] ECR I-4599. Here the Court rejected the advice of the Advocate-General, rulng that the Cour d'Appel must raise a point of EC law of its own motion where appeal is the first opportunity on which the point can be raised. In Joined Cases C430, 431/93 van Schijndel & van Veren v Stichting Pensioenfonds voor Fysiotherapeuten [1995] I-4705, a similar action failed on the narrow ground that a point of EC law based on new facts cannot be raised on appeal.
101 On the consequences for the French legal system, see J. Delicostopoulos "L'Influence du droit europeen quant aux pouvoirs du juge judiciare national sur le fait et le droit" (1997) 6 Justices 117.
102 van Schijndel, paras., 24, 25, 27.
103 J. Gray, False Dawn, The Delusions of Global Capitalism, Granta Books, 1998, p.109. See also A. Bayefsky, "Cultural Sovereignty, Relativism and International Human Rights: New Excuses for Old Strategies" (1996) 9 Ratio Juris 42.
104 R. Dworkin, Taking Rights Seriously, Duckworth, 1967 and Law's Empire, Fontana, 1986.