Court in the act
Page 55
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THOSE working in the transport industry always complain, with some justice, about the amount of legislation to which they are subject. So they are likely to react with incredulity to a complaint about a lack of transport legislation.
Nevertheless, in the middle of this month the 10 judges of the European Court of Justice will assemble in Luxembourg to hear just such a complaint. The European Parliament has started a legal action against the Council of Ministers for the latter's alleged failure to implement the Common Transport Policy laid down in the Treaty of Rome over a quarter of a century ago.
The European Commission and the Dutch Government have intervened in the action, which is being followed with great interest by all the transport ministries in the EEC. No doubt the Spanish and Portuguese ministries are also taking an interest, in view of their expectation of joining the EEC at the end of next year.
The Court has been in the British road haulier's eye recently. Its interpretation of the meaning of some of the terms used in regulations 543/69 and 1463/70 have been of great interest to some parts of the industry. But determining precisely what is meant by door-to-door selling, or whether animal carcasses have to be unfit for human consumption before the vehicle carrying them is exempt from tachograph law, is one thing. The Parliament's action is quite another. It goes to the root of what the Common Market is supposed to achieve.
Even after nearly 12 years of membership most Britons are still vague about the way EEC legislation is adopted, and the roles of the various bodies. So the following summary might be useful.
For the purposes of this case the Council of Ministers consists of the 10 EEC Transport Ministers. They, not the European Parliament, are the legislative body. But they cannot set the ball rolling by themselves.
They can only act when the Commission makes a formal proposal. The views of the European Parliament must be taken into account. So must those of the Economic and Social Committee (whose existence is almost unknown) make recommendations. Ministers are quite free to ignore them. And they usually do.
In theory the Council conducts its business by voting, using what is called the qualified majority system. This gives bigger members states more votes than the small ones, but has ingenious rules designed to prevent the former from overruling the latter.
Despite being laid down in the Treaty of Rome this system has been ignored — and not only by transport ministers — for almost 20 years. The polite explanation is that the Council acts unanimously. In reality this gives any one minister a veto.
Getting 10 countries to agree on anything — except perhaps the time to adjourn for lunch — is very difficult. (When the 10 become 12 in 1986 it will be even more difficult.) And that is at the root of the delay which has led the Council into the dock in Luxembourg this month.
The Council has entered a defence. It can point to more than 120 regulations, directives, decisions, recommendations and opinions which it has adopted. It will even be able to show that its productivity is • increasing. Between 1979 and 1982 it adopted an average of 13 instruments each year; 10 years earlier the average was only just over six.
If the Council's advocates do descend to these arithmetical arguments they will virtually be admitting the accuracy of the Parliament's complaint. For the importance of the various measures differs enormously. To equate them would be like a butcher charging the same price for a leg of lamb as for a leg of chicken. And in recent years many of the measures seem to have been adopted simply to avoid admitting complete failure.
It is always dangerous to predict the outcome of a case in any court. The crystal ball is even more clouded by the international nature of the European Court, but it is difficult to see how the 10 judges can fail to come down on the side of ME Ps.
The Court has power to impose heavy fines in certain circumstances, as BL knows to its cost. But this case is not one of those. (Nor, incidentally, is there a dock, except a metaphorical one, nor a eurojail.) The point of the MEPs' action is political. When they started down this road two years ago they wanted to achieve two things. First, they genuinely wanted to see progress in the transport field. The Transport Committee takes its work seriously, and its reports are, on the whole, very sensible. But they also wanted to make a political point — a parliament which cannot legislate is bound to feel frustrated. Their action is a reminder to ministers that if they are not prepared to legislate there is another body ready, willing and able — indeed, positively eager — to do the job for them.
The judgment will no doubt be very lengthy. (That in the recent, relatively simple, doorto-door selling case ran to 30 pages.) And it will refrain from saying explicitly that the Transport Ministers have consistently been too concerned about what they perceive as their national advantage to be bothered about what it says in the Treaty of Rome.
But it is difficult to see how 10 high-powered lawyers can avoid pointing at ministerial failure to use the qualified majority voting system. And if they do, however mild the actual wording of the judgment, ministers will find it hard to carry on as before.
Does it matter? Many people in the industry might be tempted to think that they want more Brussels legislation as much as they want another rise in fuel prices. They might hope that the Court's verdict will be that the Council has put more than enough transport leglislation onto the statute book, and that it should now take a rest — preferably a long one. But that would leave the present unco-ordinated mess over lorry weights, quotas, taxation and much else. Even if the Common Market were to vanish tomorrow these problems would need a solution.
The Court cannot provide one by itself. But it might — just might — point the way to one.