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zOmircloirm
by Keith Vincent
How much longer?
THE TEN JUDGES of the European Economic Community's Court of Justice again assembled in Luxembourg last month to try to work out the meaning of yet another part of the EEC drivers' hours and tachograph rules.
This is the third time in 12 months that their Lordships have had to consider such questions. They must feel that Regulations 543/69 and 1463/70 are two of the worst drafted pieces of Community legislation ever to be adopted.
All the cases concern exemptions from the need to use a tachograph. In the first case of its type the judges decided that the exemption for lorries carrying animal carcasses related only to those not intended for human consumption. Other meat was not covered.
In the second they decided that "vehicles used for door-todoor selling" had to be specialised for that purpose, not simply specialised for any purpose. They also decided that the doors at which the selling takes place can belong to shops and offices, not just houses.
Last month's problem concerned the transport of live animals from farms to local markets and vice versa. By chance two separate cases raising the same issue cropped up simultaneously.
The European Court iudges do not try the cases or even hear appeals against the judgments reached or the sentences imposed by a national court. That remains a national prerogative.
These cases reach Luxembourg because a national court asks for what is known as a "preliminary ruling". Where Britian is involved these requests usually come from the High Court, though the "doorto-door" case was referred by the House of Lords.
The national court sets out the questions to which it wants answers. The Euro-judges answer these questions. Their answers then becomes the authoritative interpretation of the law. No appeal is possible; the Luxembourg Court is the ultimate interpreter of EEC law. Its rulings are studied by the national court and used in reaching a verdict and, if appropriate, imposing a sentence.
In the "local markets" case the High Court sets out five possible interpretations, plus two further questions if it decides on one of these. The European Court does not, of course, have to accept any of these options, but can come up with one of its own.
The alternatives turn on two main points. One is distance — does the market have to be "reasonably close"? Or can it be "reasonably close having regard to the geographical circumstances"? Or (ingeniously) should it be within the four-hour continuous driving period?
The second main point concerns the type of animal or breed in question. Does the market have to be one where the type can be bought or sold on commercially advantageous terms? If so, what is meant by "advantageous"? And, of course, both the distance and the animal type could be relevant.
Perhaps most difficult of all, whichever definition it chooses the court is asked to say when it would cease to apply. If their Euro-Lordships rise to that one it should provoke some headscratching when the judgment is being drafted.
Hauliers will shed few tears for the learned European judges beavering away in Luxembourg. After all, the hauliers have to try to reach the same sort of judgments in the middle of the hurly-burly of running a business, not in the seclusion of legal chambers.
It is significant that all these cases come from British courts. The only similar case that I have been able to trace comes from West Germany, and involved the privatised dustmen of Bremen. Chauvinists will claim that this proves that only Britain — and perhaps West Germany — enforces the Regulations. But there could be another explanation — the different legal systems.
Most countries have some form of public prosecutor. Is it not necessary to look across the sea for such a system, for it exists in Scotland, where the Procurators Fiscal undertake the task.
In such a system it is relatively easy for the authorities to decide on the interpretations which will be applied to particular pieces of legislation. These interpretations need not be laid down formally — they can simply become known on the grapevine.
In Scotland, for example, the Procurators Fiscal are answerable to the Lord Advocate — the Caledonian equivalent of the Attorney General. The Lord Advocate could simply tell Procurators Fiscal that local markets should be defined in a particular way. Ordinary day-to-day contact between practising solicitors and the Procuratos Fiscal would
enable the former to advise their clients on what is likely to be permissible and what is not. No doubt there would be grey areas, but they would be much smaller than they are at present.
There has already been one public demonstration of this. Vehicles on small Scottish islands are not being prosecuted for not using a tachograph, even though the EEC Regulation at present contains no such exemption. No doubt there have been other cases.
That would not be possible in England and Wales. Here, most prosecutions are brought by the police. But, again unlike most countries, we do not have a national police force. Each local force is independent — often jealously so.
But it is even more complicated than that. South of the Border it is almost literally true to say that anyone can prosecute. In such circumstances the DTp cannot issue firm guidance about how particular provisions will be interpreted. Sometimes they try, but when a "rogue" prosecution is brought their advice is sometimes proved wrong. So perhaps the British trips to the European Court are understandable.
The cure for all this is twofold. First comes very careful drafting of the legislation to try to make it unambiguous. Even in national legislation this is easier said than done.
In Europe it is much more difficult. It is hard enough making sure that all six language versions of the laws say the same thing. Nevertheless the officials trying to amend the existing Regulation have greater clarity as one of their aims.
But the other cure is to make the regime itself as simple as possible. The fewer exceptions the fewer terms whose interpretation can give rise to difficulty.