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Casolari, Federico
2019.
Between Compliance and Particularism.
p.
49.
Article contents
The Domestic Reach of General Principles of Law: First City Trading Revisited
Published online by Cambridge University Press: 27 October 2017
Extract
This is a critical analysis—in the light of the Lisbon Treaty, the Charter of Fundamental Rights and recent European Court of Justice (ECJ) case law—of the judgment in R v MAFF, ex p First City Trading, or at least of that part of the judgment concerning the domestic reach of general principles of law. Laws J held that the legal status of the general principles ‘made’ by the ECJ is inferior to that of the principles enshrined in the Treaty, and that therefore the domestic reach of the former is narrower than that of the latter. In the years since the judgment was delivered, however, it does not appear to have been considered by the ECJ and there seems to have been little academic evaluation of its cogency and implications. One commentator considered that the distinction drawn by the judge seemed correct. Another was critical, asserting that ‘the distinction between principles based on Treaty provisions and general principles of law cannot be deduced from the case law of the Court of Justice’. The possible entry into force of the Treaty of Lisbon, which recognises that the Charter of Fundamental Rights of the European Union (and thus presumably the rights, freedoms and principles within it) has ‘the same legal value as the Treaties’, makes it appropriate to revisit the judgment and consider whether Laws J’s approach was correct.
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References
1 [1997] 1 CMLR 250 (QB) (hereinafter, ‘First City Trading’).
2 The judgment was delivered on 29 November 1996.
3 Tridimas, T, The General Principles of EC Law 1st edn (Oxford, Oxford University Press, 1999) 29 Google Scholar.
4 Boyron, S, ‘General principles of law and national courts: applying a jus commune ’ (1998) 23 EL Rev 171, 175Google Scholar.
5 A non-statutory scheme administered by the Intervention Board for Agricultural Produce. See Hansard HC vol 295 col 538 (12 June 1997 WA).
6 Commission Decision 96/239/EC on emergency measures to protect against bovine spongiform encephalopathy, [1996] OJ L78/47. Under the Beef Stocks Transfer Scheme, the government offered to purchase stocks of beef held by slaughterhouses and cutting plants, for which there was no market demand, at 65% of the pre-crisis market price.
7 Case C-92/92, Phil Collins [1993] ECR I-5145 (hereinafter, ‘Collins’).
8 Now Art 12 EC: ‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’
9 Collins, above n 7, para 27.
10 First City Trading, above n 1, para 38.
11 Ibid, para 39.
12 Ibid, paras 39 and 40.
13 Ibid, paras 42–5.
14 For good measure, his Lordship went on to hold that, even if the general principle of equality applied, any discrimination was objectively justified. He considered that there was no need to request a preliminary ruling by the ECJ. A Strasbourg challenge to the Beef Stocks Transfer Scheme under the European Convention on Human Rights, alleging a breach of its Art 1 of Protocol No 1 (protection of property) and Art 14 (prohibition of discrimination), was declared inadmissible: see Pinnacle Meat Processors Co v United Kingdom (App No 33298/96 ) (1999) 27 EHRR CD 217.
15 Hansard HC vol 289 col 575 (4 February 1997 WA).
16 [1998] 2 CMLR 560 (QB).
17 Ibid, para 10.
18 [2000] EuLR 724 (QB).
19 Ibid, para 63.
20 Ibid.
21 Ibid, para 66.
22 Ibid. Proceeding on the assumption that the principle of non-discrimination applied, his Lordship went on to hold that there had been no breach.
23 In Case C-263/97, R v Intervention Board for Agricultural Produce, ex p First City Trading Ltd [1998] ECR I-5537, the ECJ ruled that a Commission regulation did not contravene the general principles of law by prohibiting beef exporters affected by the Commission’s export ban from retaining export refunds received in advance. The applicants, whose beef had left the UK and was in transit when the ban came into effect, claimed that they should have been able to retain the export refunds as compensation for their loss following the repatriation of beef to the UK. The ECJ observed that the Beef Stocks Transfer Scheme was ‘a United Kingdom scheme designed to mitigate some of the effects which the ban had on slaughterers and cutters’ (para 15).
24 See above n 3, 29. For further discussion, see below.
25 Ibid.
26 Tridimas, T, The General Principles of EU Law 2nd edn (Oxford, Oxford University Press, 2006) 44 Google Scholar. See also 123, fn 334: ‘Laws J’s view that the scope of Art 12 is wider than that of the general principle of equality has now been overtaken by British Pig Industry .’
27 Boyron, above n 4, 175.
28 First City Trading, above n 1, para 41.
29 Chalmers, D, Hadjiemmanuil, C, Monti, G and Tomkins, A, European Union Law (Cambridge, Cambridge University Press, 2006) 204–5Google Scholar.
30 Rules of jus cogens are peremptory rules of general international law from which no derogation is permitted. See Arts 53 and 64 of the Vienna Convention on the Law of Treaties 1969, on the invalidity of treaties which conflict with jus cogens. Precisely what those rules are is not easy to say: see Lowe, V, International Law (Oxford, Oxford University Press, 2007) 59–60 CrossRefGoogle Scholar. They include the prohibition of torture: Al-Adsani v United Kingdom (2002) 34 EHRR 11, paras 60–1. In Case T-315/01, Kadi [2005] ECR II-3649, the Court of First Instance held that it could review the UN Security Council resolutions implemented by the contested regulation in order to assess their conformity with the protection of fundamental rights, insofar as those rights constituted jus cogens. On appeal (Joined Cases C-402/05 P etc, 3 September 2008), the ECJ held that while it could not review Security Council resolutions even for compatibility with jus cogens, it could review Community measures giving effect to them in the light of the fundamental rights forming an integral part of the general principles of Community law.
31 See, eg Case 149/77, Defrenne (No 3) [1978] ECR 1365; Opinion 2/94, Accession to the European Convention on Human Rights [1996] ECR I-1759; Case C-249/96, Grant v South-West Trains [1998] ECR I-621; Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677; and Case C-263/02 P, Jégo-Quéré v Commission [2004] ECR I-3425.
32 Case C-144/04, [2005] ECR I-9981.
33 EC competence to combat discrimination based on age had already been established by Art 13, on the basis of which the Directive had been adopted, which was inserted into the EC Treaty by the Treaty of Amsterdam. See Grant, above n 31, where Art 13 could not apply as the Treaty of Amsterdam, although concluded, had not entered into in force.
34 See Hartley, TC, The Foundations of European Community Law 6th edn (Oxford, Oxford University Press, 2007) 221 Google Scholar.
35 Cf Marks & Spencer Plc v Commissioners of Customs and Excise (No 1) [2000] 1 CMLR 256 (CA), paras 47–8, where Schiemann LJ said: ‘In my judgment, while the general principles of Community law can be relied upon in protection of enforceable Community rights which exist independently of them, in general at least, they cannot be relied upon to create an enforceable Community right, which did not exist prior to the infringement of the general principle upon which reliance is placed … there is in the present case no right in play on which the general principles of Community law could bite.’
36 Cf Case C-287/98, Linster [2000] ECR I-6917, where, at paras 57–8 of his Opinion, AG Léger distinguished between ‘the ability to plead substitution’ (where an individual relies upon a directive before a national court in order to enjoy a right established by that directive) and ‘the ability to plead exclusion’ (where an individual merely seeks the disapplication of a conflicting national provision). See also para 31 of AG Saggio’s Opinion in Joined Cases C-240/98 etc, Océano Grupo [2000] ECR I-4491.
37 Joined Cases 117/76 etc, Ruckdeschel [1977] ECR 1753; Case 201/85, Klensch [1986] ECR 3477; Case C–2/92, Bostock [1994] ECR I-955; Case C-309/96, Annibaldi [1997] ECR I-7493; and Case C-224/00, Commission v Italy [2002] ECR I-2965.
38 Art 230 EC makes ‘infringement of this Treaty or of any rule of law relating to its application’ a ground for the annulment of Community acts. See, eg Case 114/76, Bela-Mühle [1977] ECR 1211, where the ECJ annulled a Council regulation which violated both the general principle of proportionality and the prohibition of discrimination in Art 40(3) EEC (now Art 34(2) EC). See also Opinion 2/94, above n 31.
39 Arts 235 and 288 EC.
40 Usher, JA, General Principles of Law (Harlow, Longman, 1998) 129 Google Scholar. See, eg Case 74/74, CNTA [1975] ECR 533.
41 See, eg Unión de Pequeños Agricultores v Council, above n 31.
42 First City Trading, above n 1, para 42.
43 Brown, L Neville and Kennedy, T, Brown & Jacobs: The Court of Justice of the European Communities 5th edn (London, Butterworths, 2000) 351 & 358Google Scholar. In Case 17/74, Transocean Marine Paint Association v Commission [1974] ECR 1063, for example, AG Warner concluded that ‘the right to be heard forms part of those rights which “the law” referred to in Article [220] of the Treaty upholds, and of which, accordingly, it is the duty of this Court to ensure the observance’.
44 See, eg Case C-112/00, Schmidberger [2003] ECR I-5659, para 71.
45 The same expression appears in Art 1 EU, as amended by the Lisbon Treaty: ‘[t]he Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union … Those two Treaties shall have the same legal value.’
46 The Charter reaffirms the rights, freedoms and principles recognised in the Union and makes them more visible, but does not create new rights or principles.
47 Case C94/00, Roquette Frères v Directeur général de la concurrence, de la consommation et de la répression des fraudes, and Commission of the European Communities [2002] ECR I-9011, para 25.
48 Joined Cases C-286/94 etc, Garage Molenheide [1997] ECR I-7281; Case C-381/97, Belgocodex SA v Belgium [1998] ECR I-1853; and Case C-62/00, Marks & Spencer Plc v Commissioners of Customs & Excise [2002] ECR I-6325.
49 Case 201/85, Klensch [1986] ECR 3477; Case 5/88, Wachauf [1989] ECR 2609; Case C-292/97, Karlsson [2000] ECR I-2737; and Joined Cases C-20/00 etc, Booker Aquaculture [2003] ECR I-7411.
50 Case C-260/89, ERT [1991] ECR I–2925; and Case C-62/90, Commission v Germany [1992] ECR I-2575.
51 Tridimas, above n 26, 43 (at fn 237) says that Laws J’s view found support in the Opinion of AG Gulmann in Case C-2/92, Bostock [1994] ECR I-955. In para 31, AG Gulmann observed: ‘The Court has held that the legislation of the Member States may be assessed on the basis of the fundamental rights applying in the Community legal order in at least two situations: fi rst, where the national legislation implements Community rules …; secondly, but more indirectly, in cases where a Treaty provision derogating from the principle of freedom of movement is relied upon by a Member State in order to justify a restriction on freedom of movement stemming from that Member State’s legislation.’ In para 33 he opined: ‘The fact that a legal problem has arisen as a result of the adoption of Community rules is, in my view, not in itself sufficient to entail that the solution adopted for that problem by the national authorities must necessarily respect the fundamental rights applying in the Community legal order.’
52 Cf AG Gulmann’s reference in Bostock, above n 51, to ‘at least two situations’.
53 Above n 44.
54 Case C-36/02, Omega [2004] ECR I-9609.
55 This flows from the duty of loyal cooperation in Art 10 EC: see n 61 below. Schmidberger and Omega are a logical extension of Garage Molenheide, above n 48, where the ECJ held that the principle of proportionality applied to measures adopted by a Member State in the exercise of its powers relating to VAT to prevent them from undermining the principles of the common system of VAT. See further Tridimas, above n 26, 41.
56 In Collins, above n 7, although there was no explicit suggestion that the German rules amounted to a restriction on trade, the Court was clearly concerned about the restrictive effects of intellectual property rights: see paras 19–26. See also Case C-274/96, Bickel [1998] ECR I-7637, para 18, where it held that national rules concerning the language to be used in criminal proceedings fall within the scope of the Treaty ‘in so far as they may compromise the right of nationals of other Member States to equal treatment in the exercise of their right to move and reside freely in another Member State’.
57 [2007] OJ C303/1, 13.
58 Available at <http://eur-lex.europa.eu/en/treaties/dat/32007X1214/htm/C2007303 EN. 01001701.htm> accessed 19 August 2008. Although Explanations do not have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter.
59 Case C-540/03, European Parliament v Council of the European Union [2006] ECR I-5769, para 105.
60 Prohibiting quantitative restrictions and measures having equivalent effect upon imports and exports, respectively.
61 ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’
62 Cf the much narrower construction of Art 51(1) of the Charter preferred by Jacobs, F in his ‘Human Rights in the European Union: the role of the Court of Justice’ (2001) 26 EL Rev 331, 338–9: ‘It does not add, as might be thought to follow from the Court of Justice’s case-law, that the provisions of the Charter are addressed to Member States also when they are derogating from the Treaty. Some might regard that as an inadvertent omission … but the Charter seems to me to be on the right lines on this point.’Google Scholar
63 See, eg A v United Kingdom (1999) 27 EHRR 611, para 22.
64 In Swedish Engine Drivers’ Union v Sweden (1976) 1 EHRR 617, the Court of Human Rights held that ‘neither Article 13 nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention’.
65 See Art 46(1) ECHR, under which states undertake to abide by the final judgment of the Court in any case to which they are parties, and eg Brumarescu v Romania (2001) 33 EHRR 36.
66 See, eg Arts 8(2), 9(2), 10(2) and 11(2) ECHR.
67 See, eg AG Poiares Maduro in Case C-402/05 P, Kadi, Opinion of 16 January 2008, para 30: ‘In the light of the Court’s ruling in ERT, it may be assumed that, to the extent that their actions come within the scope of Community law, Member States are subject to the same Community rules for the protection of fundamental rights as the Community institutions themselves.’
68 Case C-62/06, Opinion of 3 May 2007.
69 Ibid, para 52.
70 See, eg Case 180/83, Moser [1984] ECR 2539; and Case C-299/95, Kremzow [1997] ECR I-2629.
71 See, eg Case C-124/95, R, ex p Centro-Com Srl v HM Treasury and Bank of England [1997] ECR I-81, where the ECJ held that ‘the powers retained by the Member States must be exercised in a manner consistent with Community law’. See further Grief, N, ‘EU law and security’ (2007) 32 EL Rev 752 Google Scholar.
72 See above n 26, 39–42.
73 Ibid, 41.
74 Case 322/88, [1989] ECR 4407.
75 Case C-2/97, [1998] ECR I-8597.
76 Ibid, para 38.
77 First City Trading, above n 1, para 40.
78 Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125.
79 Ibid, 1146.
80 In Kadi, above n 30, para 285, the ECJ referred to ‘the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights’.
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