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The rule of law in Europe

The two European systems: an outline

The two European systems I have referred to in the

previous chapter – the European Convention on Human
Rights and European Community law – are very different from
one another in their substance, and they operate in very
different ways. But each, as we shall see, has an important role
in reinforcing the rule of law; moreover, by a combination of
chance and design, they complement one another.
To summarize in the briefest terms: the European
Convention on Human Rights, first conceived in  with
much input from the United Kingdom, is binding on the cur-
rently forty-six member States of the Council of Europe. The
European Court of Human Rights, based in Strasbourg, hears
cases brought mainly by individuals, occasionally by corpora-
tions, exceptionally even by governments, alleging breach of
the human rights guaranteed by the Convention. Cases can be
taken to Strasbourg only after all domestic channels of redress
have failed. The judgment of the Court, if it finds a breach, is
binding on the State against which it is given, and the Court
may award compensation.
The European Community, which had its origins also
in , now the European Union, is a union of currently
twenty-seven Member States. It was initially set up with pri-
marily economic functions, but with political aspirations. It

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now has competence in many fields, and in most of those fields

Community legislation is applied within the Member States. In
some areas Community legislation is directly applicable within
the Member State, side by side with domestic law; in other areas
Community legislation is transposed by national Parliaments
into domestic law. It is applied by the domestic courts.
Because Community law (both Community legisla-
tion and the Community Treaties) is largely applied within the
Member States by the national authorities, and must be
applied uniformly throughout the Member States if it is to be
effective, the final word on its interpretation rests with the
Court of Justice of the European Communities, based in
Luxembourg. The European Court of Justice (ECJ), as it is
often known, has a wide jurisdiction. In the development of
the law, the most important head of jurisdiction enables it to
give rulings, at the request of national courts, on the meaning
and effect of Community law.
National courts at all levels are free to make references,
and when doing so they suspend their own proceedings to
await the answers to the questions they refer. National courts
of last instance are obliged, under the EC Treaty, to make a ref-
erence, if a decision on the question of Community law is nec-
essary to enable them to give judgment.
This reference procedure can be contrasted with the
Strasbourg system, where the route to the European Court of
Human Rights is open only after all ‘domestic remedies’, as
they are termed, have been exhausted. But the requirement to
exhaust domestic remedies is appropriate to the Strasbourg
Court, which is essentially an international court – although
one with a remarkable jurisdiction – and a court which does

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not seek to unify the law, but rather to set a minimum

European standard.
In contrast, the procedure for references to the ECJ
from the national courts is particularly appropriate to
the more integrated Community system: in this system,
Community law is an integral part of the internal law of each
Member State, and is to be applied uniformly throughout the
Community; and the national courts of the Member States can
also be regarded as Community courts.
Because the rulings of the ECJ are given before the
national court gives judgment, they are called ‘preliminary
rulings’; but they are often decisive for the outcome of the case.
The rulings given by the ECJ are binding on all national courts:
otherwise they would not achieve their purpose. They may
therefore decide many other potential disputes over the same
provisions, and this is one of their most valuable functions.
But the system of preliminary rulings (or ‘preliminary
references’) also makes it possible for the ECJ and the national
court to have what is often called a ‘dialogue’. It is the
national court which is the direct interlocutor of the ECJ. The
national court can explain its concerns, and its national law. In
this way, the various systems of national law have had a great
influence on the development of Community law. We shall see
illustrations of ways in which this process has been mutually
beneficial to Community law and national law, and has con-
tributed to reinforcing the rule of law.
Before giving its ruling, the ECJ will hear the parties to
the case, and also the Member States and Community institu-
tions that wish to take part. Where the question of law is
new, the Court will also have the benefit of the Opinion of an

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Advocate General, a member of the Court whose special func-

tion is to deliver an opinion designed to assist the judges in the
resolution of the case. The Court should in consequence be in
a unique position to take a considered view on the solution of
the case and on what the development of the law requires.

‘The European way’

In a typical and brilliant passage, the great English

judge Lord Denning (who was also the first Hamlyn lecturer)
contrasted the EEC Treaty with the character of English law
and legislation. In one of the first cases where English courts
were confronted with the Treaty, he declared, in his own inim-
itable style:1
The treaty is quite unlike any of the enactments to which
we have become accustomed . . . It lays down general
principles. It expresses its aim and purposes. All in
sentences of moderate length and commendable style.
But it lacks precision. It uses words and phrases without
defining what they mean. An English lawyer would look
for an interpretation clause, but he would look in vain.
There is none. All the way through the treaty there are
gaps and lacunae. These have to be filled in by the
judges . . . It is the European way.

This passage does indeed graphically express some of the great

differences between the EEC Treaty and UK legislation: and
indeed between UK legislation and the European Convention on
Human Rights, although Lord Denning was not addressing that.

11
Bulmer v. Bollinger [] Ch , at p. .

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(The explicit contrast between ‘English’ and ‘European’

need not, I think, be taken to suggest that England is somewhere
else than in Europe. It is simply a convenient shorthand – still
convenient today. Moreover the two legal systems do remain in
some ways separate: the relation between national law and
European Community law is, as we have seen, to some extent a
matter of two separate systems coexisting within the Member
States.)
But some qualifications of Lord Denning’s view are
appropriate, at least today.
First, the contrast with the EEC Treaty is striking
because the Treaty is, as we shall see, in part comparable to a
Constitution for the European Community. If the United
Kingdom had a written constitution, that would necessarily, as
a constitution, share the features of the Treaty as described by
Lord Denning, and British judges would have to apply its
broad and imprecise provisions. This is indeed the position
today in almost every country and almost every legal system in
the world.
Second, despite the abundance, perhaps the excess, of
legislation, in both Community and English law, both systems
are still to a large extent – as is the European Convention – a
case-law system, in which the decisions of the courts play a
leading role. Again, we shall see many examples of this.
Third, as Lord Denning also pointed out, the gaps
in the Treaty have to be filled, not only by the judges,
but also by Community legislation: he refers to regulations
and directives. Much Community legislation does not match
his description: it is rather detailed; it often contains defini-
tions and interpretation clauses. The contrast between UK

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legislation and Community legislation, as distinct from the

Treaty, is less great.
Fourth, English courts have in recent years increas-
ingly taken a more ‘European’ approach to the interpretation
of domestic UK legislation even where it has no European
content. They look rather less at the literal wording, and rather
more at the aim and purposes of the legislation. In their
approach to legislation, they are more ready to apply general
principles, such as the principles of proportionality and human
rights. There are still differences between the approach of
English judges and the approach of the European Courts. But
they are now often differences of degree, not differences of
principle. This is just one, rather positive, example of a process
of convergence between different legal systems in Europe.
To some extent, in our day, English courts are follow-
ing ‘the European way’.

The two European systems and the rule of law

In the following chapters we shall explore some of the

contributions which these two European systems make to rein-
forcing the rule of law. But it may be useful to make at the
outset some general comments.
I would suggest that there are three principal ways in
which they can have this effect.
First, they provide an additional remedy, which is not
available under the domestic law, and which may prove highly
effective.
This is most obviously true of the European
Convention on Human Rights, under which the Strasbourg

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Court may provide a remedy precisely where there is no

‘domestic remedy’. Innumerable examples could be taken.
European Community law can also provide a remedy,
notably where a Community institution acts unlawfully. Here
the national courts have no jurisdiction, but the Court of First
Instance and, on appeal, the ECJ have proved effective
guardians of the rights of individuals and corporations, even if
their access to the Court – their standing to bring proceedings
– is still too restricted.2
Second, the two systems can improve the domestic
systems by requiring that a remedy be available within that
system.
A classic illustration under the Convention system is
the Golder case.3 Here the issue was whether a convicted pris-
oner had the right, under Article () of the Convention, to
take legal proceedings to clear his name. The UK authorities
had effectively refused him permission to sue. Article () of
the Convention provides:
In the determination of his civil rights and obligations . . .
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law.

Does that provision guarantee only certain procedural rights

once a court is seised of a case: or does it also guarantee a right
of access to a court? The Strasbourg Court, to answer that
question, relied on, among other things, the notion of the rule
of law, which is referred to in the preamble to the Convention.
12
See Paul Craig, EU Administrative Law (Oxford, ), pp.  ff.
13
Golder v. United Kingdom ()  EHRR .

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The Court held that the provision guarantees a right (although

not an unlimited right) of access to a court:4
. . . one can scarcely conceive of the rule of law without
there being a possibility of access to the courts . . . The
principle whereby a civil claim must be capable of being
submitted to a judge ranks as one of the universally
recognised fundamental principles of law; the same is true
of international law which forbids the denial of justice.
Article  () must be read in the light of these principles.

More generally, Article  sets out the requirements of the

Convention to provide an effective remedy for breach of the
Convention rights themselves:
Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity.

For its part, European Community law also insists on the

availability of a remedy in national law for breach of a
Community law right. The right to an effective remedy before
the national courts has been recognized by the ECJ as a general
principle of law; the principle is sometimes described as the
right to judicial protection. Remedies and procedural rules
provided for by national law will be scrutinized by the ECJ to
ensure that they do not unduly impede the effective exercise
of Community rights: if they do so, the national court must
not apply them.

14
Ibid. at paras. –.

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Third, the European systems can influence the devel-

opment of national law. As we shall see, there is a two-way
process at work, especially in relation to EC law: principles of
national law may have a positive influence on the development
of EC law; conversely, EC law may have a beneficial influence
on the development of national law. This is one of the conse-
quences of the ‘dialogue’ between the ECJ and the national
courts; and it exists also, as we shall see, with the European
Court of Human Rights.
In these various ways, the European systems – which
we shall now look at a little more closely – strengthen the rule
of law in Europe.

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