Journal of Common Market Studies Volume XIX. No. 4 June 1981

National Legal Tradition and Community Law:

Legislative Drafting and Judic Interpretation in England an

the European Community”

Legislative Drafting and Judic Interpretation in England an

the European Community”

ial .d

JOHN BRIDGE

Professor of Public Law, University of Exeter

English and European Legal Styles A central theory of modern comparative legal studies is founded on the distinction between the legal families of the world.’ On the basis of a comparison of legal systems in terms of their history, ideology, structure and sources, they may be grouped into families, each of which has a distinctive style. Rent David, the French originator of this theory, has suggested that such a classification should be based on two essential and cumulative criteria. For any two legal systems to belong to the same family, it must be possible for someone trained in one of them to be able to handle the other without much difficulty, and for them both to be founded on similar philosophical, political and economic principles. In other words, legal systems are grouped into families, each of which reflects a congeries of particular, distinctive and material features.

In terms of this theory, there is a consensus that Western Europe is divided into legal families. English law comes within the common law4 or

* This paper was originally delivered at the Eleventh Annual Conference of the University Association for Contemporary European Studies at the University of Leeds on 7 January 1981, within the general theme “National Perspectives on European Integration”.

’ See Brown, “Two legal traditions: antithesis or synthesisYjournal of Common Market Studies. Vol. 18, 246 (1980).

R . David and J . E. C. Brierley, Major Legal Systems in the World Today (Stevens, London, 2nd ed. , 1978), p. 20.

’ K. Zweigert and H . Kotz, An Introduction to Comparative Law, Vol. 1 . (North Holland, Amsterdam, 1977), p. 61.

David and Brierley, op. c i t . , Part Three.

352 JOHN BRIDGE

Anglo-American legal family. Law on the continent either comes within a unified Romano-Germanic family, or is divided between Romanistic and Germanic legal families. ’ There are a number of noteworthy differences between the West European and English legal styles, although they are not all of comparable significance. The Romano-Germanic legal systems favour legal norms expressed in abstract terms. On the basis of a priori, general principles, the law is applied deductively, and is strongly influenced by the speculations of academic commentators. There is no reliance on a formal doctrine of binding precedent. The Anglo- American legal systems favour highly specific legal norms expressed in concrete terms. On the basis of particular rules, the law is applied inductively and pragmatically. Academic commentators exert little influence and there is a strong, formal doctrine of precedent. On the continent, judges are career-judges, who are the product of a special training, which tends to isolate them from the practitioners who appear before them. Common law judges are appointed from the ranks of legal practitioners with whom they can readily identify. The administration of justice in a common law country has a strongly persanal flavour. Judgments are not only attributed to named judges, but within both the legal profession and society generally, judges are not only known, but acquire particular reputations. On the continent, the administration of justice is much more anonymous, and judges do not have a status comparable to that of their common law counterparts. In terms of court- room procedures, on the continent, there is a predominance of written advocacy in the form of the exchange of documents elaborating legal argument and seeking to establish evidence. The common law tradition is to rely very heavily on oral advocacy, with the drama of the public examination and cross-examination of litigants and their witnesses. Common law judges act as impartial referees in the courtroom, while the contest is waged between counsel on behalf of their clients. Conversely, continental procedure requires the judges to play a leading role in the examination of witnesses, in an attempt to attain the objective truth in each case.

In terms of such distinctions as these, the lineage of the legal system of the European Community is clearly romano-germanic. It bears a filial relationship to the legal systems of the six original, continental, member states who were responsible for its creation.9 The English legal system,

* Zweigert and Kotz, op. cit . , Part 111.

’ Zweigert and Kotz, op. cit . , Parts I and 11. These authors, unlike David and Brierley, also identify a separate nordic or Scandinavian legal family; ibid. , Part IV.

* See David and Brierley, op. cil., Part Three, Title I . For an interesting comparison of the English and French judiciaries, see Pugsley, “The Advocate’s Duty to the Court”, in D. Lasok (Ed.) Fundamental Duties (Pergamon, Oxford, 1980), pp. 115, 116.

See D. Lasok and J. W. Bridge, An Introduction to the Law and Institutions of the European Communities (Butterworth, London, 2nd ed., 1976), chapter 3.

David and Brierley, op. cit . , Part One.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 353

throughout its history, has successfully withstood Romano-Germanic influences. l o Since Britain’s accession to the European Community in 1973, the English legal system has not only had to acknowledge and respond to such influences, but also to play an active role in enforcing the Community’s laws. The challenge of Community law and its impact on English law have been strikingly and picturesquely expressed by Lord Denning, in the following terms: “the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back . . . In future . . . we must no longer speak or think of English law as something on its own. We must speak and think of community law, of community rights and obligations, and we must give effect to them. This means a great effort for the lawyers. We have to learn a new system”. ‘ I

This paper is concerned with a specific issue, in which the differences between English and European legal traditions impinge on each other: the related topics of legislative drafting and judicial interpretation. Because of different traditions and practices in this area, there are a number of ways in which English law has had to adjust to Community law, with the added possibility that Community law may in time come to be influenced by English law.

The style of English Legislation The principal, traditional, sources of English law are the decisions of the courts in particular cases. Through the accumulation of individual decisions, and fashioned by the doctrine of precedent requiring inferior courts to follow the judgments of superior courts the main body of English law was developed. Because of this emphasis on judge-made law, legislation by Parliament was traditionally regarded as a secondary and inferior source of law. Common law and Statute law were in a sense rivals. As one writer has expressed it: “My Lady Common Law regards with jealousy the rival who arrests and distorts her development, who plants ugly and inartistic patches on her vesture, who trespasses gradually and irresistibly on her domain”. In modern times legislation has in practice supplanted the common law as the dominant source of English law.’’ But the nature and traditional predominance of the common law and a prevailing tendency on the part of the judges to regard statutes as exceptions to the common law have had, and continue to have, a profound influence on the style of English legislation. l 4

l o Cf. J. H. Baker, An Introduction to English Legal History (Butterworth, London, 2nd

“H. P. Bulmer Ltd. v . J. Bollinger S. A . [19741 Ch. 401, pp. 418, 419. I’ C. Ilbert, Legislative Methods and Forms (Clarendon Press, Oxford, 1909), p. 1 . l 3 See Bridge, “The Reform and Restatement of English Law”, Nebraska L. Rev., Vol.

Cf. L. Scannan, Englzjh Law - The New Dimension (Stevens, London, 1974), p. 3.

ed. , 1979), pp. 27, 28.

50, 447 (1971).

354 JOHN BRIDGE

The primary aim of the common law has always been to provide solutions to an endless series of specific disputes, as and when they arise, and not to formulate general rules of conduct for the future. This approach to the resolution of legal disputes has fostered the distinctive English detailed approach to legislation. As a result of this approach, English legislation does not simply spell out principles of law, but also sets out to specify how those principles should be applied in particular circumstances. In the interests of achieving certainty, English Statutes are “customarily drafted with almost mathematical precision, the object (not always attained) being in effect to provide a complete answer to virtually every question that can arise”. l 5 The judicial tendency to regard statutes as exceptions to the common law, and as such to interpret them restrictively, has also influenced their drafting. Highly detailed and specific language is employed in an attempt to ensure that the courts apply statutes in the way intended by Parliament. English tax laws provide a good illustration. English judges in the protection of our liberties are careful to ensure that we are only obliged to pay those taxes which have been unambiguously imposed by statute. The courts recognise that taxpayers have the right to order their affairs so as to attract the least amount of tax. From the standpoint of Parliament, which imposes taxes to raise revenue for the purposes of the Government, such a policy is tax evasion. Therefore highly complex and obscure legislation is passed, which is designed to prevent this. This results in a conflict between two legitimate interests. In the field of tax and of many other areas of legislation “Parliament asks itself: is this Statute sufficiently specific and detailed to prevent the courts from wriggling out of its provisions? But the courts, duty bound to protect the citizen, look for the loophole, the way of escape”. l 6

This attitude means that English legislation, both Parliamentary and that made under delegated powers, is commonly drafted in complex and elaborate language. Simplicity and clarity are sacrificed to certainty and detail. The language of English legislation, and those responsible for i t , have been the butt of much ridicule and criticism. There is even judicial authority to the effect that “the language of statutes is peculiar and not always that which a rigid grammarian would use”. ” Or as a writer of verses about the law has put it:

“I’m the Parliamentary Draftsman, I compose the country’s laws, And of half the litigation

I ’ Sir Charles Davis, Legal Advisor to the House of Commons Select Committee on European Secondary Legidation, in evidence submitted to the Committee on the-Preparation of Legislation: see The Prepnution ofLegislation, Cmnd. 6053 (1975), p. 52.

l6 Scarman, “Need the Law be Obscure?” in M. Zander (Ed.) What’s Wrong With The Law(B.B.C., London, 1970), p. 11 .

I’ Lyons v . Tucker (1880-81) 6 Q.B.D. 660, p. 664 per Grove, J.

NATIONAL LEGAL TRADITION A N D COMMUNITY LAW 355

I’m undoubtedly the cause. I employ a kind of English Which is hard to understand: Though the purists do not like it, All the lawyers think it’s grand.”’*

The volumes of the Law Reports are replete with examples of legislative provisions which have taxed both the ingenuity and patience of counsel and judges. l 9 By way of illustration, the Finance Act 1965 contains the following gem : “Nothing in this section shall be taken as precluding the deduction of expenses incurred in, or any claim for capital allowances in respect of the use of an asset for, the provision by any person of anything which it is his trade to provide, and which is provided by him in the ordinary course of that trade, for payment or, with the object of advertising to the public generally, gratuitously.”20 When that subsection came to be considered in the Court of Appeal, Lord Denning described it as “very obscure”. ” But in the House of Lords, Lord Reid made his feelings very clear in the following terms: “On reading it, my first impression was that it is obscure to the point of unintelligibility, and that impression has been confirmed by the able and prolonged arguments which were submitted to us.”22 He concluded by rejecting both the interpretations suggested by the parties to the case, and proposed a possible meaning of his own. But he was far from confident that he had got i t right, and he added, “if I am wrong about that, I would not shrink from holding that the subsection is so obscure that no meaning can be given to it”. 2 3 As a French commentator has said of English legislative style: “each sentence is unusually long: it contains the principal and the accessory, the reservations and the counter reservations, the particular cases and the general rule; and these are inserted in a succession of enumerations and parentheses which are so intermixed with the minimum of punctuation, that one sometimes wonders which part of the sentence which other part is intended to qualify, and what finally results from the whole”.24 While this is not the place to mount a general attack on the English legislative style, the words of an eminent American judge, uttered some 50 years ago, provide food for

l9 For examples see R. E. Megarry, Miscellany-at-Law (Stevens, London, 1955), pp. 349-365: the same author’s A Second Miscellany-at-Law (Stevens, London, 1973), pp.

J. P. C . PoeticJwtice (Stevens, London, 1947), p. 31.

. - . 170-189; The Reparation of Legislation, Cmnd. 6053 (1975), Appendix B.

’O S. 15 (9). ’’ Flemingv. Associated Newspapers Ltd. [1972] Ch. 170, p. 190. l1 Sub. nom., Associated Newspapers Group Ltd. v. Fleming [19731 A.C. 628, p. 639. 23 Ibid. , p. 642.

International Encyclopaedia of Comparative Law (Mohr, Tubingen), Vol. I!, Chapter 5 . , para. 405.

356 JOHN BRIDGE

thought: “There is something monstrous in commands couched in invented and unfamiliar language; an alien master is the worst of all. The language of the law must not be foreign to the ears of those who obey it.””

Before leaving the question of the style of English legislation, mention must be made of another of its distinctive features. English legislators abhor codification and have a marked predilection for piecemeal, unsystematic law-making. The special characteristics of a code of law which distinguish it from ordinary legislation are that within its field it is the exclusive, authoritative and comprehensive source of the law. English critics, influenced by the apparent flexibility of the common law, believe that codes have a stultifying effect on the growth of the law, and suspect them of being the tools of autocracy. When the English Law Commission was established by Parliament in 1965, to take and keep under review all of English law, with a view to its systematic development and reform, it was placed under a duty to undertake the codification of the law in the sense explained above. 26

The Law Commission set about this task with enthusiasm, particularly in relation to three areas of law: contract: landlord and tenant; and crime. The present Chairman of the Law Commission has recently admitted that despite considerable efforts, he is forced to the conclusion that the codification of English law is virtually unattainable and impracticable. 2 7

Work on the proposed codes of the law of contract and the law of landlord and tenant have been suspended indefinitely. 2 8 While the Law Commission remains committed to the ultimate codification of the Criminal Law, it is regarded as unlikely that such a code will see the light of day in the foreseeable future. 2 9 The failure of codification is attributable to characteristics of English law to which reference has already been made: the detailed approach to legislation; a reluctance to express legal rules in general terms for the courts to apply in particular cases; the insuperable difficulty of distilling and reaching agreement upon the principles contained in centuries of accumulated judicial decisions, covering innumerable permutations of situations, which in a code would inevitably be left at large. 3 0 Some improvements have been made to English statute law as a result of the activities of the Law Commission; firstly, by identifying and repealing superseded and obsolete enactments, and, secondly, by bringing together into one new statute all provisions on a particular topic

2 5 Learned Hand, The Spint of Liberty (Knopf. New York, 1953), p. 56. 2 6 Law Commissions Act 1965, s. 3 (1 ) . Also see L. Scarman, A Code ofEnglish Law?

(University of Hull, 1966) and L. Scarman, Codqicution andyudge-Made Law (University of Birmingham, 1966).

2 7 Mr. Justice Kerr, “Law Reform in Changing Times”, L . Q. Rev., Vol. 96, 515, pp. 527. 528 (1980).

Zbid., p. 529. 2 9 Zbid., pp. 529, 530. ’O Zbid.. pp. 527-530.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 357 which are scattered throughout different statutes. ’I But useful as that process is, its effect is largely cosmetic and, in the words of the first Chairman of the Law Commission, English legislation remains “elaborate to the point of complexity: detailed to the point of unintelligibility: yet strangely uninformative on matters of principle”. 32

The Style of Community Legidation The style of Community legislation, both in the Treaties and in the secondary legislation, reflects the legal traditions of the original six member states in which written law predominates. 3 3 In general the continental European approach to legislation is in terms of permanent, authoritative, comprehensive and systematic codes of law. Such codes are not simply the exclusive source of rules on their respective subject matters, but those rules are expressed in terms of general principle and are intended to guide future conduct rather than to supply the solution to particular disputes.34 The deliberate aim of the European code is therefore “to confine the statement of terms to principles of wide application, and to practise a deliberate restraint in the proliferation of detailed rules”. ’’ The practical application of such general principles to actual disputes is aided by various implementing regulatory acts. But overall, the practical application of the law largely depends on the discretion of the judges influenced by scholarly commentaries on the law. 36 In view of the supremacy of legislation the role of the judges is to adjudicate; while decisions in past cases have a persuasive authority, they cannot be cited as a source of law or superior authority. 37

The law of the European Community fits into this model: a code, in the form of the Treaties, supplemented by secondary legislation, in the form of regulations, directives and decisions. The treaties, particularly the E.E.C. Treaty, have been drafted in broad terms: “they are ample on aims but tend to lack precision“.’* The E.E.C. Treaty, as an early British commentary

’ I Ibid., p. 525. Also see the Annual Reports of the Law Commrsion. A further modest improvement in the accessibility of legislation dates from 1972, when an official revised edition of Acts of Parliament, known as Statutes in Force, was produced. Here, for the first time, Acts are arranged not chronologically but by reference to their subject matter, and are contained in a series of loose-leaf volumes.

j 2 Op. Cit., in n. 16 supra, p. 10. This remains the case despite the efforts of an official committee which considered the preparation of legislation (see The Preparation of Legislation, Cmnd. 6053 (1975)) and the activities of an association of statute users known as the Statute Law Society, which was set up in 1968.

3 3 See David and Brierley, op. c i t . , p. 99. ” Zbid., p. 21. ’’ The Preparation of Legislation, Cmnd. 6053 (1975), p. 51. j6 See David and Brierley, op. a t . , pp. 122, 134. 3 7 Ibid. , pp. 123, 124. 38 Sir Charles Sopwith, Legal Advisor to the Select Committee of the House of Lords on

the European Communities, in evidence to the Committee on the Preparation of Legislation, The Preparation of Legislation, Cmnd. 6053 (1975). p. 55.

358 JOHN BRIDGE

expressed it, “has a jargon of its own . . . it has a certain vagueness . . . there is a pervading diffuseness of language”.39 Thus the opening articles of the Treaty speak of the tasks and activities of the Community in very general terms: to promote a harmonious development of economic activities; ‘O the abolition of obstacles to freedom of movement for persons, services and capital;“ the approximation of the laws of the member states to the extent required for the proper functioning of the common market; 4 2 and so on. Such provisions as these merely set the scene. But although in the body of the Treaty the language becomes more specific, the picture is still painted in bold strokes. For example, free movement for workers is defined by Article 48 as entailing “the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”. That is an admirable statement of principle, but it fails to make any attempt at definition: the precise meaning of such terms as “workers”, “employment”, “remuneration”, and “other conditions of work and employment” are left in the air, subject to further implementing measures. 4 3 Similarly, while Article 100 describes the measures which may be taken to approximate the laws and practices of the Member States, the concept of matters which “directly affect the establishment or functioning of the common market” is far from self-evident. 4 4 Later, in Article 215, when dealing with the liability of the Community to compensate those who have suffered loss as a result of its unlawful acts, the Treaty employs the novel term “non-contractual liability”. This term is neither defined nor explained other than in terms that such liability shall be in accordance “with the general principles common to the laws of the Member-States”. No guidance is given either as to the relevant areas of national law which are to be examined in search of such principles or as to the sense in which they are to be common to the Member States. Is the European Court to look for a general but not necessarily universal trend in national laws or is it to reduce national laws to a series of lowest common denominator^?'^ This provision of the Treaty bears a family relationship to a famous provision of the French Civil Code which states: “Every act whatever of human agency, which causes damage to another, obliges the person by whose fault that damage has

39 A. Campbell and D. Thompson, Common Market Law (Stevens, London, 1962), p. 9. ‘O Art. 2. “ Art. 3 (c). 4 2 Art. 3 (h). ” E.E.C. Treaty, Art. 49. ‘‘ Cf. D. Lasok, The Law oj the Economy in the European Communities (Butterworth,

London, 1980), Chapter 14. On the approach adopted by the European Court see Lord Mackenzie Stuart, The

Non-Contractual Liability of the European Economic Community (British Academy, London, 1975).

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 359 occurred, to repair it”. 46 Such waste-paper basket phrases as these clearly depend upon judicial interpretation and application to give them meaning and substance.

The generality of the E.E.C. Treaty under the influence of its continental legal antecedents was also strongly reinforced by a number of special additional factors. In the first place, there is the novelty of what may be termed the “Community experiment”. Never before, short of the creation of federal unions, had a number of sovereign, independent states committed themselves to such a comprehensive programme of economic integration. Although the founding fathers had their own conception of the Community,47 no one could foresee how it would progress and develop, Therefore the Treaty cou!d do little more than lay down the basic rules and sketch out the plan of campaign. It is a type of treaty which international lawyers call a framework treaty, a trait6 cadre. The Treaty provides the skeleton and leaves the details of the policies which must be followed in order to make that skeleton viable to be worked out progressively and systematically by the institutions of the Community. The Treaty, therefore, like the continental code, is an ultimate and exclusive source of legal authority. Its supreme and all-pervasive significance for the Community has been fully acknowledged by the European Court. 4 8 It establishes guidelines for a particular economic and social way of life.

Secondly, it must be remembered that the E.E.C. Treaty is not the product of a painstaking legislative process. Like all treaties it is the product of bargaining and negotiation between the political representatives of the Member States. The negotiating process has quite distinctive features. For negotiations to take place, there must be both common interests and issues of conflict between the parties. Negotiation has been defined by one authority as “a process in which explicit proposals are put forward ostensibly for the purpose of reaching agreement on . . . the realisation of a common interest where conflicting issues are present”.49 If there were no common interests there would be nothing to negotiate for; if there were no issues of conflict then there would be nothing to negotiate about.’O Even when, as in the case of the Member States of the European Community, a community spirit may foster an accommodating negotiating style, the negotiating parties will nevertheless employ strategies both of persuasion and coercion in an effort to attain their own particular goals. 5 ’ An example

‘‘ Art. 1382: “Tout fait quelconque de I’homme, qui cause B autrui un Qmmage, oblige celui par la faute duquel il est arrive I le reparer”. See Amos and Walton’s Introduction to French Law (Clarendon Press, Oxford, 3rd ed. , 1967), Chapter X.

” E.g. W. Hallstein. Europe in the Making (Allen & Unwin, London, 1972). ‘’ E.g. Pubblico Minuter0 v. Munghera, 59/75, (19761 E.C.R. 91. ‘’ F. C. Ikle, How Nations Negotiate (Praeger, New York, 1967), pp. 3, 4.

J ’ Cf., M . S. McDougal, et al., The Interpretation of Agreements and World Public Ibid. , p. 2 .

Order (Yale N.P. , New Haven, 1967), p. 13.

360 JOHN BRIDGE

from the E.E.C. negotiations is the trade-off which took place in relation to the inclusion of agricultural integration in the second stage of the E.E.C., which was wanted by France, and the transition from the first to the second stages of the E.E.C., which was wanted by Germany. ”

The results of negotiation inevitably include an element of compromise. Such compromise influences the choice of language employed in treaties and strongly favours broad terms and a lack of precision. In the context of the E.E.C. Treaty its broad approach and general language must also have been influenced by the speed and urgency with which the negotiations were conducted. Although the Spaak Report revealed agreement on many points of principle, there were a number of outstanding controversial issues. 53 Out of a desire to take advantage of a pro-European French Government and to avoid the uncertainty surrounding forthcoming German elections, the negotiations were completed during the remarkably short six-month period from September 1956 to February 1957.54 Such expedition clearly had an impact on the drafting of the text of the Treaty. Negotiations and compromise are also features of the intergovernmental process whereby the secondary legislation of the Community is produced. 5 5 Like the Treaties themselves, this legislation is sometimes drafted in terms of broad principle: “Political compromises are often attained by the use of ambiguous words.”’6

The third, and by no means least significant, special factor is the multilingual nature of the Community Treaties and secondary legislation. With the exception of the E.C.S.C. Treaty, of which there is only one authentic version in French, ” the original Community Treaties state that they were drawn up in a single original in Dutch, French, German and Italian “all four texts being equally authentic”. 58 The impression conveyed by that statement, namely that when the E.E.C. Treaty was signed, a final text in all four languages was in existence is, however, a misleading one. The E.E.C. Treaty was drafted partly in French and partly in German. Right until the eve of signature on 25 March 1957, work on the reconciliation of the French and German texts continued, and some discrepancies were not adjusted until after signature. At the time of signature only rough drafts of the Dutch and Italian texts existed and the final texts were not completed

’* See Ikli5, op. cit . , pp. 99, 40. ” See M. Jansen, History ofEuropean Integration 1945-1975 (University of Amsterdam,

” See M. Camps., Britain and the European Community 1955-1963 (Princeton N.P., Princeton, 1964), pp. 68-74.

” See C. Sasse, et al., Decision Making in the European Community (Praeger, New York, 1977); S. Henig, Power and Decision in Europe (Europotentials Press, London, 1980).

” Sir Charles Sopwith, quoted in The Preparation oflegislation, Cmnd. 6053 (1975), p. 54.

’’ E.C.S.C. Treaty, Art. 100. ’’ E.E.C. Treaty, Art 248; Euratom Treaty, Art. 225.

1975), pp. 63-65.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 361 until some six weeks after the formal act of signature. 59 Clearly a number of corners were cut in the drafting of the four so-called equally authentic texts. On more than one occasion linguistic divergences have caused problems for the European Court.60 As a result of the first accessions to membership, further treaty texts in Danish, English and Irish were added.6’ Since 1 January 1981 texts in Greek have also been in force. 62 Although these four new texts are translations of the “originals” they are to be regarded as authentic under the same conditions as the texts in the original languages. 63

For treaties to be in a number of language versions is nothing novel.64 This meets the important practical need to provide texts which can be readily understood by those who have accepted them. But the Community Treaties are not simply agreements conferring rights and imposing obligations on the governments of the Member States. The Community Treaties also form part of the internal law of the Member States; they confer rights and impose obligations on individuals and are enforceable through the national courts of the Member States. It is no easy task to draft a watertight legal document in one language; to draft it in eight different languages, each of equal authenticity, is likely to produce a legal Tower of Babel. Here the framework nature of the Treaties is again relevant and made it easier to compromise on the finer points of language. With the exception of Irish,65 the secondary legislation of the Community is also drafted in all the official languages of the Community, each version again being equally authentic. 66 Thus, following European practice and influenced by the special needs and circumstances of the Community, much Community legislation tends to be expressed in general principles. This approach results “in simpler and clearer . . , legislation where detail is omitted, but equally it lacks the greater certainty which a detailed legislative application of the principles would provide”.

J9 See Maas, “The English Version of the Treaty of Rome”, C.M.L. Rev., Vol. 6. 205 (1969).

69 ~ . g . DR G ~ M V . ~ l a ~ ~ i s , i ~ ~ t j i , i i 9 w E.C.R. 45. ’ Art concerning the Accession of Denmark, Ireland and the United Kingdom, Art. 160.

Act concerning the Accession of the Hellenic Republic, Art. 152. ‘I On the prepararion of the English text of the E.E.C. Treaty see M. Akehurst in B. A.

Wortley (Ed.), An Introduction to the Law of the European Economic Community (Manchester U.P., Manchester, 1972). Chapter 111.

64 The U.N. Charter, for example, is in five equally authentic language versions. There is also an Arabic translation, published by the U.N. in 1969, but this is not an “authentic” version (U.N. Publication OPI/323-14618, Cairo, 1969).

” On the reasons for this exclusion see the Irish White Paper, The Accession of Ireland to the European Communities, Prl. 2064 (1972). p. 83.

66 LOC. cit. in n. 61 and 62 supra arts. 155 and 147 respectively. 6 7 The Preparation of Legislation, Cmnd. 6053 (1975). p. 55.

362 JOHN BRIDGE

Interpretation in the English Courts Some thirty years ago Jerome Frank, a distinguished American judge, suggested a comparison between the interpretation of statutes by judges and the interpretation of musical compositions by those who perform them. 6 8

Adopting that metaphor, from the point of view of both the performer and the listener a great deal will depend on the nature of the score which is being used. At one extreme there may be a full score, which not only gives all the notes, but also copious instructions as to tempi and dynamics. At the other extreme, there may be no more than a line of melody, upon the basis of which each group of performers is able to create and develop its own individual extemporisation. From what has gone before, it will be clear that in teims of these extremes, the English statute approximates to a full score. But even with a full score, whether musical or legal, there is always a discretionary element of interpretation on the part of the performer. In the light of what the composer has committed to paper the performer can attempt to produce a performance which, he believes, satisfies the intentions of the composer. English judges, because of their acknowledgement of the law making supremacy of Parliament, regard it as their primary task to interpret statutes so as to give effect to the intention of Parliament. Judges see this as far from being a mechanical task and themselves adopt a fine-art metaphor. One English judge put it in thesc words: “The duty of the Courts is to ascertain and give effect to the will of Parliament 3,s expressed in its enactments. In the performance of this duty the Judges do not act as computers into which are fed the Statutes . . . and from whom issue forth the mathematically correct answer. The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. ’’ 6 9

There is “an interaction between the form of a communication and the rules by which it is to be interpreted. If defects in drafting complicate the rules of interpretation, it is also true that unsatisfactory rules of interpretation may lead . . . to an over-refinement in drafting at the cost of . . . general intelligibility”. ’O It has already been seen chat, because of the inductive nature of the common law system and because of the traditional relationship between the common law and statutes, English Statutes are exceedingly complex and detailed. Such a style of legislative drafting clearly places severe constraints on a judge’s freedom to interpret

‘* “Words and Music: Some Remarks on Statutory Interpretation”, Columbia L. Rev., Vol. 47, 1259 (1947).

6 9 Corocruft Ltd. v. Pan American Airways Inc. 119681 S W.L.R. 714, p. 792 per Donaldson, J. (The actual decision was reversed on appeal: 119691 I Q.B. 616).

Law Commission, The Interpretation ofStututes, Law Com. No. 21 (1969), p. 4.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 363 the law. But the nature of an individual judge’s reaction to such restraints depends on what has been termed the “impalpable and indefinable elements of judicial spirit or attitude”.7’ To revert to the metaphor of musical performance, a great deal will turn on the extent to which the performer, even when playing from a full score, strives to achieve what is called “work-fidelity”, the production of a so-called authentic performance in the form of a literal rendering of the music as written. ’* Between that extreme and the other of completely disregarding the composer’s intentions there is, of course, a middle ground which permits a range of equally legitimate interpretations. It is the same with statutory interpretation; there is no one test by which to arrive at the intention of Parliament. That “very slippery phrase . . . may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it”. ’3

The traditional English approach to judicial interpretation has been to strive towards “work-fidelity”. The starting point of this approach is the literal rule of interpretation. This rule may be expressed in terms that it is presumed that Parliament intends the words it employs to have their ordinary and natural meaning in the context of the statute in which they appear. In many cases this rule results in generally acceptable interpretations. When a statute provided that purchase tax was payable on “manufactured beverages, including fruit juices”, 74 a court was asked whether unsweetened orange juice which had been freshly and individually pressed for guests at the Savoy Hotel was subject to the tax.7s The judge held that it was not, 7 6 Adopting the literal approach he registered mental resistance to regarding something which was a natural product and individually produced as in any sense “manufactured”. 77 But fact is often stranger than fiction and no statute, however comprehensively drafted, can foresee the infinite variety of factual situations to which it may have to apply. In one case, a company operating a crematorium claimed the benefit of a tax allowance in respect of the capital expenditure on its furnace chamber and chimney tower. 78 The relevant Act permitted the allowance in relation, inter aha, to buildings and structures in use for the purposes of a trade which consists in the subjection of goods or materials to any process. 79 The court was therefore faced with the intriguing question whether the

” C. K. Allen, Law in the Making (Clarendon Press, Oxford, 7th ed., 1964), p. 529. ” Cf. Frank, op. cit., pp. 1260, 1261. 7 3 Salomon v. Salomon 8, Co. Ltd. 113973 A.C. 22, p. 36 per Lord Watson. ’’ Purchase Tax Act 1963, s. 2 (l), (2) and Sched. I., Pt. l., Group 35 (a). ‘j Commtisioners of Customs and k c t i e v. Savoy Hotel Ltd. , [19661 2 All E.R. 299. 76 Zbid., p. 302. ’’ Zbid., p. 300.

’’ Income Tax Act, 1952, s. 271 (1). Bourne v. Nonvich Crematorium Ltd. [19671 1 W.L.R. 691.

364 JOHN BRIDGE

disposal of human corpses by cremation was a trade involving the subjection of goods or materials to a process. While the judge accepted that cremation was a trade, his mind recoiled from describing dead bodies as “goods or materials” or cremation as a “process”. Such descriptions, in his view, would be distortions of the English language and he ruled that the company was not entitled to the tax allowance. *’ Whilst the susceptibilities of the judge were understandable and the statute clearly had not been drafted with cremation in mind, was there any real reason why those engaged in the trade of cremation should not enjoy the benefits of a statutory allowance which was enjoyed by other trades with no greater, if as great, claims on society?

The judge in that case was seeking to arrive at the intention of Parliament. He might have gained some insight into that intention if he had looked at the legislative history of the Act, such as the reports of the relevant debates in Hunsurd. But English judicial practice forbids recourse to such aids to interpretation. The literal approach implies that the courts must interpret the words as they appear in an Act and subject only to any interpretation clause and any relevant case law. This restriction on the judge’s power to investigate the true intentions of Parliament can produce some startling results. When an Income Tax Act provided that anyone making an incorrect tax return should forfeit “treble the tax which he ought to be charged”,83 Parliament probably intended a penalty of treble the unpaid tax. But the Act said “treble the tax” and the House of Lords interpreted it literally as meaning treble the whole amount of tax payable for the year. 84 Thus when English judges, pursuing their traditional literal approach, say that they are looking for the intention of Parliament, such an assertion is not quite accurate. As Lord Reid has said “We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.”85

Although English judges tend to emphasise the literal approach to statutory interpretation, for a very long period they have also been ready in certain circumstances to deviate from that approach. Where the literal meaning of the words used would result in some manifest absurdity the courts may be prepared to consider the consequences of such an interpretation. In such cases an interpretation may be adopted which would

119671 1 W.L.R. p. 695.

E.g. Escoigne Properties Ltd. v . Inland Reuenue Commissioners [19581 A.C. 549, p. ” Ibid., pp. 695, 696.

565 per Lord Denning. ’’ Income Tax Act, 1952, s. 25 (3). ’‘ Inland Revenue Commissioners v. Hinchy [1960] A.C. 748. The law was subsequently

*’ Black-Clawson International Ltd. v . Papier- Werke Waldhof-Aschaffenburg A . G . changed by the Finance Act 1960., s. 44.

[19751 1 All E.R. 810, p. 814.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 365 avoid inconvenient results, the promotion of injustice or evasion.86 As an example, when the Road Traffic Act 1960 requires the driver of a motor vehicle to “stop” after an accident,87 a momentary pause will not be sufficient to comply with that obligation. To “stop” in that context has been construed as meaning to remain stopped for a period sufficient to enable reasonable personal enquiries to be made of the driver by those with authority to do so. Similarly where the purpose of a statute is remedial, where it is designed to correct some defect in the old law, there is authority dating from the sixteenth century that such a statute should be interpreted so as to achieve its remedial purpose.89 When, for example, the Street Offences Act 1959 made it an offence for prostitutes to solicit “in a street”90 the object of that Act was seen to be to enable people to walk along the streets without being solicited. In furtherance of that aim, soliciting “in a street” was interpreted as including the soliciting of passers by from balconies and windows.

These two deviations from the literal rule are examples of what is called purposive interpretation. According to such an approach, while interpretation starts with the words of a statute, it does not necessarily end there; the words must be interpreted in the light of the statute’s scope and purposes. Some English judges have demonstrated their willingness to take purposive interpretation a stage further and to use it so as to fill apparent gaps in legislation. Lord Denning has long been a leading advocate of this approach. 92 Thirty years ago he advanced the view that when faced with a defective statute a judge “must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature”. 93 Conservative judicial opinion immediately castigated that approach as “a naked usurpation of the legislative function under the thin guise of interpretation”. 94 In other words, legislative defects were to be corrected by Parliament and not by the judges. But over the years this new purposive approach has gradually gained support. It was approved by the Report of the Committee on the

86 The classic statement of this rule is in Becke v. Smith (1836) 2 M . 81 W. 191, p. 195per Parke. B.

s. 77 ( 1 ) . Lee v . Knapp [19671 2 Q.B. 442.

89 Heydon? Case (1584) 3 Co. Rep. 7a., at 7 b .

9 ’ Smith v. Hughes [1960] 1 W.L.R. 830. 9 2 See his The Discipline of the Law (Butterworth, London, 1979), pp. 9-22. 9 3 Seaford Court Estates Ltd. v. Asher [19491 2 K.B. 481, p. 499. ’‘ Magor B St. Mellons R .D.C . v. Newport Corporation [1952] A.C. 189, p. 191, per

9 0 s. 1 ( 1 ) .

Viscount Sirnmonds.

366 JOHN BRIDGE

Preparation of Legislation 9 5 and has received some recent encouragement from the House of Lords. 96 As one judge has expressed it, we “can no longer assume that language alone expresses the intention of the legislature. We have to look as well at a vague nimbus of benevolence which is believed to surround, as a cloud of incomprehension surrounds the knowledge of God, the prosaic enactments of mundane !egislators”. ’’ Interpretation in the European Court If, in terms of the musical metaphor, English legislation is a series of full orchestral scores, Community legislation is perhaps a series of piano scores of as yet unrealised major orchestral works. Because of the relationship between the form of legislation and the approach to its interpretation, the English approach, which emphasises the literal meaning of words, is clearly inappropriate. The European Court, in interpreting laws expressed as general principles, and in following the continental European tradition, has adopted a much more fluid approach. There is no comprehensive judicial Statement of the Court’s policy on interpretation. 98 The techniques of interpretation used by the European Court are of a somewhat eclectic nature and cannot be neatly classified. This approach is justifiable because of the nature of both Community law and the jurisdiction of the Court. A rigid set of rules of interpretation would not be appropriate: Community law is a new, developing and, in many ways, untried system of law. The jurisdiction of the Court is heterogeneous, ranging over international, constitutional, civil, administrative and employment matters. These unique features call for a flexible approach.

The European Court does not use any method of interpretation which is peculiar to it alone. It employs four basic techniques which are familiar on the continent. These are: a) literal or grammatical interpretation; b) historical interpretation; i. e . interpretation in the light of the recorded intentions of the legislators; c) comparative or contextual interpretation, i. e. interpretation in the light of other relevant legislation: and d) teleological interpretation, i. e . purposive interpretation in the light of the objectives of the legislation. Apart from historical interpretation, which is shunned by English Courts, there are obvious points of similarity between the English and European techniques: both make use of the literal approach, and the English purposive approach shares elements of the comparative and

’’ Cmnd. 6053 (1975), p. 135. q 6 Stock v . Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231, p. 234, per Viscount

Dilhorne. ’’ Judge Tyrwhitt-Drake, quoted in [1969] 9 Current Law, unnumbered “Contents”

page. ” Perhaps the closest to such a statement is a report by Judge H. Kutscher, the current

President of the European Court, entitled “Methods of interpretation as seen by a judge at the Court of Justice” in Reports of a Judicial and Academic Conference 27-28 September 1976 (Court of Justice of the European Communities, 1977), 1-1 to 1-51.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 367 teleological approaches. But in the European Court the emphasis is the opposite to that in the English Courts, with the greatest reliance being placed on teleological interpretation.

There are three principal arguments in favour of the Court’s preference for the teleological approach. In the first place, both literal and historical interpretation have a limited role to play in the Community context. I t is obvious that the European Court’s starting point is the wording of the text which it has to interpret. But the multilingual nature of Community law vastly reduces the significance of literal meanings. Community law must mean the same in all the Member States, but such uniformity cannot be achieved either by giving equal weight to all the language versions or by searching for some minimum meaning which they all have in common. Such an approach would be highly unlikely to produce an acceptable and workable rule. As the Court said in one case: “No argument can be drawn . . . from any linguistic divergences between the various language versions . . , as the meaning of the provisions in question must be determined with respect to their objectives.”’00 As far as historical interpretation is concerned, in relation to the Treaties it is of virtually no significance because there is very little available evidence, and no official published record, of the process of the negotiations. Even if such evidence was available, its view of the Community would be somewhat dated and would probably have little relevance to the Community as it has developed and is still developing. As far as the secondary legislation of the Community is concerned, there is a wealth of published evidence concerning its legislative history. This can throw light on ihe intentions of the Community and is sometimes used by the Court,’” but only where a clear meaning cannot otherwise be found. lo’ “Viewed as a whole, historical interpretation plays only a subordinate part in Community law; it fulfils at most a subsidiary function.” ’03

In the second place, because of its style, the aims of Community law are defined in the Treaties with considerable clarity. Since the objectives of the Community are already expressly laid down, there is no need for them to be established by an elaborate and painstaking process of interpretation. Thus teleological interpretation by reference to such stated objectives will not tend to be artificial or contrived but rather to coincide with comparative and even literal interpretation. Thirdly, teleological interpretation is particularly well suited to the dynamic and evolutionary nature of the

99 Ibid. , 1-46. loo Mij PPW International N . V . v . Hoofproduktschap voor Akkerbouwprodukten, 61 /72,

1 0 1 E .g., Caisse Regionale de Secunti Social du Nord de la France v. Torrekens. 28/68,

lo* See Commission v. Italy, 38/69, [1970] E.C.R. 47, p, 63, per Adv. fkm. I o 3 Kutscher, op. cit . , 1-22.

119731 E.C.R. 301, p. 310.

[1969] E.C.R. 125; Stnuder v. Ulm, 29/69, [19691 E.C.R. 419.

368 JOHN BRIDGE

Community and its law. This again relates to the framework nature of the Treaties. As has already been noted, they establish a grand plan which has a number of immediate objectives, such as the establishment of a common market. Beyond that lie clear yet less well-defined objectives of economic union with the hint of political union as an ultimate objective. The realisation of these objectives depends heavily upon the institutions of the Community, not least on the European Court. But whatever the institutions do must be done in pursuit of the objectives of the Community. As Article 4 of the E.E.C. Treaty puts it: “Each institution shall act within the limits of the powers conferred upon it by this Treaty.” The Member States are equally obliged by Article 5 to “abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. The Court is obliged by Article 164 to “ensure that in the interpretation and application of this Treaty the law is observed”. Against this background the whole thrust of the authority of the Court is therefore dynamic and teleological within

b the clearly defined framework of the objectives of the Community. Both the comparative and teleological techniques of interpretation share

a common purposive aim. As applied by the European Court the former is in reality a specific application of the latter, since a comparison of the provision being interpreted with other provisions invariably involves a reference to basic objectives. The particular value of the comparative approach is that it advances the development of a coherent and integrated system of law. It is vital that all the several parts of Community law should together form a harmonious whole. A good illustration of the comparative approach is provided by a case which considered the relationship between the Community’s rules on competition in Articles 85 and 86. In simple terms, Article 85 prohibits “restrictive agreements or practices involving some degree of collusion between undertakings that are economically independent of each other;””’ Article 86 prohibits a single undertaking or group of undertakings from establishing “a position of such s t r e n g t h s a given market that the normal constraints of the competitive process no longer apply to it”. ‘ 0 6 The Court has said of these two articles that each seeks to achieve the same aim on different levels, namely the maintenance of effective competition within the common market. Therefore both articles must be interpreted in the light of those earlier provisions of the Treaty”’ which establish the basic objective of ensuring that competition is not distorted. This, therefore, has the necessary consequence that “Articles 85 and 86 cannot be interpreted in such a way that they contradict each other, because they serve to achieve the same aim.”’’* The result in that case is as

lo‘ Europemballage B Continental Can v. CommisJion, 6/72, 119731 E.C.R. 215. lo’ D. Wyatt and A. Dashwood, The Subslantiue Law of the E.E.C. (Sweet & Maxwell,

I o 6 Ibtd. l o ’ Art. 3 ( f ) .

London, 1980) p. 249.

119731 E.C.R. pp. 244, 245.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 369 much a product of the teleological approach as the comparative.

As far as the European Court’s use of the teleological approach is concerned, there are very many instances in its case law. Indeed the most characteristic and significant doctrines of Community law derive from the Court’s efforts to respond to the spirit and objectives of the Community and to give them practical effect. The series of cases expounding and developing the doctrines of the supremacy of Community law over conflicting national law, the direct enforceability of Community law in the courts of the Member States, and the Community’s respect for the principles of human rights are all dramatic illustrations of this approach. In elaborating the doctrine of supremacy, the Court has said: “the terms and spirit of the Treaty make it impossible for the States . . . to accord precedence to a unilateral and subsequent measure . . . The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty . . .‘”09

Similarly, the Court has justified its judgments upholding the enforceability of rules of Community law through proceedings in national courts in terms of “the spirit, the general scheme and the wording of the Treaty”’.”’ Likewise, the Court’s recognition that Community law must not conflict with notions of human rights is “within the framework of the structure and objectives of the Community”. ‘ I ’

These remarkable products of the European Court’s overwhelmingly purposive approach towards interpretation have equally remarkably received broad acceptance by and within the Community. As the President of the Court has observed: “There is no foundation for the view that the Court’s decisions which lean in favour of integration have gone much too far ahead of European realities.”’12

English Courts and the Challenge of Community Law It will be very clear from what has gone before that the law of the European Community presents the English Courts with a challenge of a unique and pc‘found kind. Leaving aside the content of Community Law, which falls outside the scope of this paper, English courts have had to come to terms with a system of law which in its form and the manner of its interpretation is quite different from English law. ‘ I 3 In the judgment in which he referred to Community law as “an incoming tide”, Lord Denning pointed to the

l o g Costa v . ENEL, 6/64, [1964] E.C.R. 585, p. 594. ‘ l o Van Gend en Loos v. Nederlandse Admintjtratie der Belastingen, 26/62, [19631

‘ I ‘ Internationale Handelsgesellschaft v. Einfuhr-und Vorratsstelle fur Getreide und

‘ I 2 Kutscher, ofi. czt., 1-47, ‘ I ’ On this subject generally see L. Collins, European Community Law in the United

‘I‘ See n. 11 , supra.

E.C.R. 1 , pp. 12, 13.

Futtermittel, 11/70, [1970] E.C.R. 1125, p. 1134.

Kingdom (Butterworth, London, 2nd ed.. 1980).

370 JOHN BRIDGE

differences and the challenge they present in the following terms: “what a task is . . . set before us! The Treaty is quite unlike any of the enactments to which we have become accustomed. The draftsmen of our statutes have striven to express themselves with the utmost exactness. They have tried to foresee all possible circumstances that may arise and to provide for them. They have sacrificed style and simplicity. They have foregone brevity. They have become long and involved. In consequence the judges have followed suit, They interpret a statute as applying only to the circumstances covered by the very words. They give them a literal interpretation. If the words of the statute do not cover a new situation - which was not foreseen - the judges hold that they have no power to fill the gap . . . How different is this Treaty! It lays down general principles. It expresses its aims and its purposes. All in sentences of moderate length and commendable style. But it lacks precision. It uses words and phrases without defining what they mean . . . All the way through the Treaty there are gaps and lacunae. These have to be filled in by the judges, or by Regulations or directives. It is the European way.”’15

In order to enable Lord Denning and his judicial brethren to “get down to it”, as he put it; l I 6 to come to grips with Community Law and follow ‘‘the European way”, a constitutional requirement had first to be satisfied. Under the British constitution, authority in relation to treaties is divided between the Crown and Parliament. l 7 The power to enter a treaty and to bind the United Kingdom internationally is an exclusively executive power vested in the Crown, which is customarily exercised on the advice of the Government. But a treaty as such is not a source of rules of law for the courts to apply. A treaty to which the United Kingdom is a party will only become cognisible by English courts when an Act of Parliament expressly incorporates that Treaty into English law or expressly amends English law so as to satisfy the Treaty’s requirements. ” * Therefore, although accession to the European Communities carried with it the obligation to enforce Community law in the United Kingdom, that obligation could not be met by an executive act of the Crown. It required Parliamentary intervention in the form of the European Communities Act 1972. In the absence of such an Act, Community law would not be “law” as far as the English courts are concerned.

For our present purposes the European Communities Act does three things. In the first place, it requires English courts to enforce, allow and follow the rules of Community law which are directly enforceable in the

‘ IJ [1974] Ch., p. 425.

1 1 ’ See Lasok and Bridge, op. c i t . , chapter 12; Collins, op. cit . , chapter 1 . ’ I * The classic statement of these rules is in A . -G. for Canada v. A. -G. for Ontanb 119371

Ibid., p. 419.

A.C. 326, pp. 347, 348, per Lord Atkin.

NATIONAL LEGAL TRADITION AND COMMUNITY LAW 37 1

United Kingdom as a member state.l19 In the second place, i t states expressly that questions of Community law are to be treated as questions of law by the English courts. I 2 O In the third place, it requires English courts to interpret English law in a way which is compatible with Community law’*’ and to interpret Community law in accordance with the principles expressed in the case law of the European Court. In relation to the interpretation of Community law, the Act also authorises English courts to make use of the Treaty procedure which enables national courts to address to the European Court questions concerning doubtful points of Community law. 1 2 3 The answers given by the European Court to such questions are binding on national courts. ‘ 2 4

Because European Community law came into English law through the medium of a British Act of Parliament, there was an initial possibility that English courts would attempt to treat Community law as if it were contained in an Act of Parliament. In one of his entertaining, but nevertheless perceptive, “Misleading Cases”, written in anticipation of a British accession to the Community in 1965, A. P. Herbert speculated whether, under the free movement of persons provisions of the E.E.C. Treaty, Brigitte Bardot had the right to seek election to the British House of Commons. 1 2 5 Herbert assumed that upon British accession the E.E.C. Treaty acquired the force of, and indeed became, a British statute. In response to a suggestion that evidence should be sought from Brussels concerning the intentions of the makers of the Treaty, Herbert’s Mr. Justice Owle said this: “I . . . now remind the world, though this was once a foreign Treaty, it is now a Britzsh statute: and I conceive it my duty to interpret it as we interpet every Act of Parliament, by the plain contemporary meaning of the words. It is not our custom to peep round corners . . . in order to discover what the lawmakers meant: and it will be an ill day when we do. ‘No English judge’, Lord Mildew said in Scott v. The Thames Conservancy (1937), ‘looks under the bed’ . . . If I may quote Lord Mildew again: ‘If Parliament does not mean what it says it must say so’. (BluJJv. Father

Although the practice of English courts since 1973 has not fulfilled A. P. Herbert’s prophecy, there has been a hint of it. In some of the early cases there was a tendency to equate the Community Treaties with Acts of Parliament. There was also, in the early years of British membership, a

European Communities Act 1972, s. 2 (1). s. 3 ( l ) , (2).

I 2 I s. 2 (4). s. 3 (1) .

l2] S . 2 ( l ) , 3 (1). The relevant treaty provision is E.E.C. Treaty, Art. 177. 12‘ See Manzoni v. FNROM, 112/76, [1977] E.C.R. 1647.

Bardot M.P.? and other Modern Misleading Cases (Methuen. London, 1964), p. 164. Ibid., pp. 167, 168.

1 2 ’ E.g. , Application des Gaz S.A. v. Falh Veritas Ltd. [19741 Ch. 381 and Schorsch Meier GmbH v. Hennin 119751 Q.B. 416.

372 JOHN BRIDGE

strong body of judicial opinion which held that the interpretation of Community law was something which English judges could do with little, if any, external assistance. 1 2 * Coloured, no doubt, by their traditional independence and prestige, it was believed that in practice few difficulties concerning interpretation would arise, that in most cases the lower courts would have little difficulty in interpreting the law themselves, and that the courts should not be too ready to submit questions to the European Court, partly because of the increased cost and delay for litigants. Over the past eight years, these bland assumptions have had to be seriously qualified as a result of actual practice. All levels of the judicial hierarchy in England, from tribunals and magistrates through the High Court to the House of Lords, have made use of the procedure for seeking rulings from the European Court. There is broad recognition that the interpretation of Community law requires a special approach, and that English courts must seek and accept the guidance of the European Court. The following passage from a recent unanimous judgment of the House of Lords illustrates clearly the extent to which English courts have adjusted to the demands of Community law: “The European Court, in contrast to English courts, applies teleological . . . methods to the interpretation of the Treaties and other Community legislation. It seeks to give effect to what it conceives to be the spirit rather than the letter of the Treaties: sometimes, indeed, to an English judge, it may seem to the exclusion of the letter. It views the Communities as living and expanding organisms, and the interpretation of the provisions of the Treaties as changing to match their growth. For these reasons the European Court does not apply the doctrine of precedent to its own decisions as rigidly as does an English court. Nevertheless, as any browsing in the Common Market Law Reports will show, the European Court too seeks to maintain consistency in its decisions in the interests of legal certainty. . . . Thus when there is a cursus curiae, a series of decisions to the same effect, . . . an English court, if the case before it is one to which an established body of case law plainly applies, may properly take the view that no real question of interpretation is involved.”’3o The case in which that statement was made raised an issue on which there was a whole series of relevant decisions of the European Court. The Court of Appeal was taken to task for not being aware of, and for not following, those decisions. I 31 The House of Lords remarked that such an occurrence “shows the danger of an English court applying English canons of statutory construction to the interpretation of the Treaty or, for that matter, of Regulations or Directives”. ’ 32

12* See Bridge, “Community Law and English Courts and Tribunals: General Principles and Preliminary Rulings”, European L. Rev., Vol. 1 , 13, p. 18, (1975-76).

See Collins, op. c i t . , pp. 116-118.

Ib id . , pp. 233, 234. I 3 O D.P . P. v . Henn and Durby [19801 2 C.M.L.R. 229, p. 233, per Lord Diplock.

‘I2 Ibid. , p. 233.

NATIONAL LEGAL TRADITION A N D COMMUNITY LAW 373 Despite the strong terms of that pronouncement by the House of Lords,

the supreme court in the land, it would however be misleading if the impression were to be conveyed that all English judges now adopt a uniformly correct European attitude towards questions of European law. Although decisions of the House of Lords are final, very few cases get as far as that. For the overwhelming majority of cases the Court of Appeal is in practice the final court. 1 3 3 The practice of the Court of Appeal is therefore very influential on lower courts. There is ample evidence to show that the Court of Appeal adopts the teleological approach to Community law. Lord Denning has embraced it with unconcealed enthusiasm. Addressing himself to English courts generally, he has said: “They must follow the European pattern. No longer must they examine the words in meticulous detail. No longer must they argue about the precise grammatical sense. They must look to the purpose or intent . . . They must divine the spirit of the Treaty and gain inspiration from it. If they find a gap, they must fill it as best they can. They must do what the framers of the instrument would have done if they had thought about it. So we must do the same.”134 Such an approach is, of course, very much after Lord Denning’s own personal inclinations. It has already been seen how he was criticised for daring to fill gaps in English legislation;135 one can imagine his delight at being placed under an obligation to that very thing in relation to European legislation. Providing he allows his enthusiasm to be moderated by the rulings of the European Court, such an attitude is entirely commendable. 1 3 6 The Court of Appeal has also acknowledged the value of the comparative approach to interpretation, particularly in relation to the secondary legislation of the Community. When interpreting particular provisions of a Regulation, it has been recognised that they must be interpreted by reference to the Regulation as a whole and to the provisions of the Treaty under which it was made.13’

Against this generally satisfactory pattern of practice, a recent case has revealed marked differences in approach between members of the Court of Appeal in a situation in which both Community legislation and English legislation deal with the same subject matter.’38 The case concerned a woman’s entitlement to equal pay for equal work in circumstances in which she was appointed to a post previously occupied by a man. Article 119 of the

’ j 3 By way of illustration.Judici1 Statisticsfor the Year 1979 (Cmnd. 7977) reveal that 64 civil cases went on appeal from the Court of Appeal to the House of Lords (p. 10) whereas 806 civil cases went on appeal to the Court of Appeal from lower courts (p. 13). ”‘ H . P. Bulmer Ltd. v. J , Bollinger S . A . [19741 Ch. 401, p. 426. 1 3 ’ See n. 94 supra. Cf. Lord Denning’s The Discipline ofthe Law (Butterworth, London,

’” See Bridge, loc. cit . , i n n . 128 supra, pp. 20, 21. 1 3 ’ H . P. Bulmer Ltd. v . J. Bollinger S.A. [19771 2 C.M.L.R. 625, p 652, per Buckley, L.

”* Mucarthys Ltd. v . Smith 119791 3 C.M.L.R. 44.

1979), pp. 17-19.

J.

374 JQHN BRIDGE

E.E.C. Treaty places member states under an obligation to “maintain the application of the principle that men and women should receive equal pay for equal work”. As Lord Denning put it, that article “is framed in the European fashion. It enunciates a broad general principle and leaves the judges to work out the details”. 1 3 9 It is not clear from the wording of Article 119 whether men and women whose work is to be compared, for the purpose of entitlement to equal pay, must be in contemporaneous employment, or whether they may be in successive employment. The English law on the subject is contained in the Equal Pay Act 1970 as amended. That Act “is framed in the English fashion. It states no general principle, but lays down detailed specific rules for the court to apply”. 1 4 ’ The rules of the statute are clearly framed in relation to women being entitled to equal pay when they are doing equal work with men in contemporaneous employment. 1 4 2 It was therefore clear that the claimant’s chances of success in her action depended on Community law, since she was highly unlikely to succeed on the basis of the English statute. Lord Denning considered the case from a European standpoint. He took the view that the teleological approach should be adopted in relation to Article 119, and that it should be interpreted as applying to both contemporaneous and successive employment. He then proceeded to interpret the British Equal Pay Act so as to comply with that interpretation. 1 4 3 The other two members of the Court of Appeal, on the other hand, approached the case from the standpoint of the words of the Act. As Lord Justice Lawton put it: “As the meaning of the words used [in the Act] is clear, and no ambiguity, whether patent or latent, lurks within them, under our rules for the construction of Acts of Parliament, the statutory intention must be found within those words. It is not permissible to read into the statute words which are not there nor to look outside the Act . . . to read the words used in a sense other than that of their ordinary meaning.”144 That statement comes close to Lord Mildew’s dictum that “No English judge looks under the bed”.’” But both judicial viewpoints acknowledged the relevance of Community law: whereas Lord Denning was confident as to the meaning of Article 119, the two Lords Justices were not. All agreed to seek a ruling from the European Court to resolve the issue. That ruling confirmed Lord Denning’s interpretation, with the end result that the claim for equal pay was granted. 1 4 ’ The lessons to be learnt from

Ib id . , p. 47. Amended by the Sex Discrimination Act 1975, s. 8 and Sched. 1 .

“ I [19791 3 C.M.L.K., p. 47. See Equal Pay Act 1970, s. 1 .

I ” [19791 3 C.M.L.R. , p. 49, 50. “‘ I b id . , p. 52. Also see Cumming Bruce, L. J., pp. 56, 57. I ” LOC. c i t . , in n. 126 supra.

[19801 2 C.M.L.R. 205. “’ [19801 2 C.M.L.R. 217.

375 that case are twofold. In the first place, it illustrates the danger of adopting the English style of interpretation when Community law is in issue. In the second place, it demonstrates the crucial importance of the role of the European Court as the final arbiter in matters of Community law. If a ruling had not been sought from the European Court, the claim for equal pay would have been dismissed, and a serious injustice done.

A further difference of opinion has also arisen, this time between the Court of Appeal and the House of Lords, concerning the extent of the European influence on the interpretative practices of the English Courts. In a series of four cases the Court of Appeal was called upon to interpret rules of English law which were not part of Community law as such, but were rules which are also to be found in the comparable national laws of the other member states.I4* For example, rules contained in a European treaty concerning trans-continental road transport. It would clearly be the intention and object of such a treaty that the same rules should be applicable in all the states who were party to it. Out of a desire to realise that aim, five members of the Court of Appeal subscribe to the view that when English courts are interpreting such rules for application in England, they should be given an interpretation which is in harmony with that adopted in the other European signatories. 149 This clearly involves adopting the teleological approach. Although these rules were not rules of Community law, reliance was placed on Article 3 (h) of the E.E.C. Treaty, which advocates “the approximation of the laws of the member states to the extent required for the proper functioning of the Common Market”. It was the view of the Court of Appeal that it was under a duty to ensure that the laws of the member states spoke with one voice, not only in relation to Community law, but also in relation to all other matters of common legal interest. In one of the cases, in order to encourage judges not cast in his own heroic mould to adopt this approach, Lord Denning suggested an amended version of the well-known lines of William Cowper:

NATIONAL LEGAL TRADITION AND COMMUNITY LAW

“Ye fearful judges, fresh courage take, The clouds ye so much dread Are big withjustice, and shall break In blessings on your head.”15’

l “ Three cases are reported as Re the Harmonljation of Laws [197712 C.M.L.R. 455; the fourth is The Szskina [19781 1 C.M.L.R. 190.

Lord Denning: 119771 2 C.M.L.R.. pp. 458. 459, 466, 467, 476, 477 and [19781 1 C.M.L.R. , pp. 201, 202; Roskill, L. J.: 119771 2 C.M.L.R. , pp. 460, 461; Lawton, L. J.: 2nd; p. 462; Stephenson, L. J.: ibid., pp. 468, 469; Shaw, L. J.: ibid. , p. 469.

I J O E.g . [I9771 2 C.M.L.R. . pp. 466, 467 and [1978] 1 C.M.L.R. , pp. 201, 202, per Lord Denning.

I J I [19781 1 C.M.L.R., p. 204. The words in italics replace “saints” and “mercy” respectively in the original.

376 JOHN BRIDGE

The House of Lords had no hesitation in rejecting that invitation and held that English judges had no authority to act in the way proposed. Viscount Dilhorne said: “I know of no authority for the proposition that one consequence of this country joining the European Economic Community is that the courts of this country should now abandon principles as to construction long established in our law.”’52 Without a body like the European Court exercising a central controlling function, there are clear dangers implicit in one national judicial system going it alone. As Lord Wilberforce remarked: “To base our interpretation . . . on some assumed, and unproved, interpretation which other courts are to be supposed likely to adopt, is speculative as well as masochistic.”’53 Indeed, even within the context of the European Community, the harmonisation of national laws is not a task for “individual member states on their own initiative but pursuant to directives issued by a unanimous decision of the Council of the Communities . . . There is little encouragement here for judges of national courts of member states to jump the gun by introducing their own notions of what would be a suitable harmonisation of laws concerning their jurisdiction and that of courts of the other member states”. l S 4

Finally, it may be observed that English judges have generally made a positive and constructive response to the challenge of Community law. If anything there has been a tendency towards over-enthusiasm and an excess of zeal in following the European way. But that is something which it will be relatively easy for the House of Lords and the European Court, within their respective jurisdictions, to moderate and put within proper bounds. The reasons for this promising outcome lie partly in the clearly observable differences between English and Community legislation. Community legislation demands a different approach. One of the advantages of the United Kingdom joining the Community after 20 years of development was the existence of a coherent and distinctive body of legal principles which English courts had to accept and had little prospect of changing in any fundamental way. It may also be that the factors of convergence of English law and European law outweigh the factors of divergence and that although they are representative of different families of law, both “are moving along parallel roads, towards the same destination”. l S 5

I s * James Buchanan d Go. Ltd. v . Babco Forwarding @ Shipping (U.K.) Ltd. 119781 1 C.M.L.R. 156, p. 164.

I b i d . , p. 161.

Merryman, “On the Convergence (and Divergence) of the Civil Law and the Common Law”, in M. Cappelletti (Ed.), New Perspectives for a Common t a w of Europe (Sijthoff, London, 1978), p. 233.

Is‘ The Siskina [1978] 1 C.M.L.R. 190. p. 220, per Lord Diplock.