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( NOMINATION for the title of rt e most Misunderstood ropean Economic Community titution" is the European urt of Justice.
rhe Human Rights Court is a asidiary body of the Council of rope, an early post-war empt at some form of
ropean integration. Its rmbership includes all the EEC tes, but it goes much wider. It 5 its headquarters in the inch town of Strasbourg. (Just add to the opportunities for -rfusion, as if any addition re necessary, the EEC's ropean Parliament borrows !Council of Europe's debating amber for its monthly plenary ;sions. But that is simply a dlord and tenant angement; there is no janisational connection.) he Court of Justice has its 3dquarters on Luxembourg, ere it occupies a modern te-glass building. Its task is to sure that EEC law is observed. at is a simple description for a -nplicated task.
he Court consists of 10
Iges, one from each EEC ;mber State. In an attempt to ap the Court free from political aointments they are required ae "persons whose lependence is beyond doubt". a must also hold "the alifications for appointment to ; highest judicial offices in ;ir respective countries", or (a N word Scrabble enthusiasts ght like to note) be ,ficonsults of recognised ripetence".
rJormally the Court sits in rups of three judges, known Chambers. Only the most usual cases attract all 10 lges to the Bench.
is difficult for Britons, with unwritten constitution, fully appreciate its most important 3. This is to ensure that all the 2 institutions — Commission, _ma, Parliament and so on — in accordance with the
rvers given to them by the aty of Rome and the other Treaties which form the legal basis of the EEC.
If they exceed these powers or, at the other extreme, do not carry out the duties laid upon them, they may be brought before the Court. The current action by the European Parliament against the Council of Ministers for the latter's alleged failure to introduce the Common Transport Policy required by the Treaty of Rome has no parallel in this country.
But the Court has many other functions. The most frequent type of case brought before it involves disputes over conditions of employment between the EEC bodies and their employees, over which the Court is the ultimate arbiter.
However, it is the Court's role as final interpreter of EEC legislation that is of current interest to British road transport. The cases recently referred by the Court of Appeal and the House of Lords will provide a long-overdue definitive interpretation of some of the undefined terms used in EEC Regulation 543/69.
The Court's interpretation in this situation is known as a "preliminary ruling". It can only be sought by a national court or tribunal; individuals or companies involved in a case can ask a national court dealing with it to seek a ruling from Luxembourg, but they cannot insist on this. If the court is satisfied that its own interpretation is correct the parties have no right to go over its head direct to Luxenbourg.
When cases are referred the national court lists the questions on which it requires the European Court to rule. These must be confined to EEC law; the Court cannot rule on national law, even if it is tightly connected to an EEC Regulation. This means that questions of interpretation of the purely British rules on duty time and spreadover, which have been grafted on to the EEC rules on driving time and rest periods, cannot be dealt with in Luxembourg.
When the Court receives the questions from the national court it circulates them to the Commission and to the Governments of the Member States. Notice that all 10 EEC Governments are invited to comment. This is because the preliminary ruling will apply throughout the EEC, not just in the country from which the request has come. A case involving the dustmen in the German town of Bremen has meant that "privatised" refuse collection services do not come within the exception for municipal vehicles.
Member States' comments do not have to be confined to purely legal arguments. A government might, for example, point out the practical consequences which would follow a particular interpretation, as well as stating its own views on the question, and any national legal terms which are relevant. But the extent to which the Court takes non-legal arguments into account depends on the circumstances of each case.
The bulk of the work on a request for a preliminary ruling is carried out on paper, under what is known as "the written procedure". In the drivers' hours cases now before the Court the various parties, the Commission, the British Government, and any other Government which wishes to intervene, submit statements of their point of view. To avoid delaying tactics the time limit for all this is fixed by the Court.
Where the case is argued before the judges in open court the parties must be represented by lawyers entitled to practice before a national court in a Member State. Witnesses and experts can be called to give evidence. There is no opportunity for an amateur lawyer to conduct his own case.
The judgment comes in two parts. First comes the reading, in open court, of the opinion of the Advocate-General, a senior adviser to the Court. This usually gives a pretty accurate indication of which way the case is likely to go. But it is not until a few weeks later, when the judges read out their judgment, that the case is finally decided.
And "final" is the right word. There is no appeal. The national court which referred the case to Luxembourg must apply the interpretation which the Court hands down. Even the House of Lords, Britain's highest court, cannot dissent. Not is there any appeal to the International Court of Justice at the Hague.
Quite apart from rulings in the drivers' hours cases now before the Court, it will be interesting to see whether the habit of referring these matters to Luxembourg becomes a habit. This would, at least, remove the uncertainties which have so complicated the application of EEC law in this field.