European Court of Justice: Powers (Hansard, 4 July 1990)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, as my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs said in another place, there is a good case for strengthening the role of the European Court of Justice in respect of the enforcement of Community law and in ensuring compliance with its judgments. This is a matter for consideration in the present review of Community institutions.

§ Lord Clinton-Davis
My Lords, I thank the noble Lord the Lord Chancellor for that Answer. Will he indicate more specifically the lines along which the Government are thinking? How is it possible, for example, to impose fines against aberrant member states? Might the Government think in terms of extending the rules relating to competition law to other areas of policy where there is a failure to comply with the law? In that connection I have in mind invoking the power of the sanctions of fines against those responsible rather than dealing directly with governments. Can the noble Lord give the House some further specific indication in this regard?

§ The Lord Chancellor
My Lords, all the ideas mentioned by the noble Lord are worthy of consideration. We have not yet reached the stage of specific proposals. I am convinced—and I believe that this represents the Government's view—that there is a good case for strengthening the role of the European Court of Justice in this way. The precise manner in which to do so requires further consideration. I am grateful to the noble Lord for his suggestions; I am sure that others could be made.

§ Lord Mishcon
My Lords, does the noble and learned Lord agree that we ought not to rush with too much enthusiasm into putting member states in the dock? If proposals are made, would it be sensible to ensure that before sanctions are imposed—be it a fine or whatever—there is an order giving a member state the opportunity of remedying a breach?

§ The Lord Chancellor
My Lords, as I am sure the noble Lord knows, there is no dock at present in the 2090 European Court of Justice at Luxembourg, so far as I recall. I am sure that we all desire the judgments of the court to be complied with, with no question of putting anyone in the dock. If we have respect for the rule of law that is what we would wish to see.
However, the Question concerned what would happen if by any chance a member state did not obey a ruling of the court. I agree with the noble Lord, Lord Mishcon, that it would not be wise to be precipitate. One wants a reasonable procedure for trying toovercome the difficulty. It is not tolerable that if there is a judgment against a member state that state should do nothing at all about it and nothing should happen thereafter. That situation is detrimental to the rule of law.

§ Lord Boyd-Carpenter
My Lords, might the suggestion in the Question have certain implications in respect of national sovereignty? Is that not therefore a further reason for the caution which my noble and learned friend has indicated?

§ The Lord Chancellor
My Lords, the situation would apply only in respect of European law which has been made part of the law of the member state concerned by the proper legislative means in that member state. I agree that caution is required. It is a difficult and delicate area and I believe that the best way forward is for a member state to implement judgments once the court has given them.

§ Lord Stoddart of Swindon
My Lords, does the noble and learned Lord agree that it would be unprecedented for a court sitting outside these shores to be able to impose a fine on Her Majesty's Government? Does he further agree that the long-suffering taxpayers in this country—who have already paid £12,000 million to the Community—would not take well to fines being imposed upon them? Finally, exactly who would enforce the law? Would it be the British police, the German jackboot, or perhaps even the French gendarmerie?

§ The Lord Chancellor
My Lords, perhaps the shortest answer I can give to the noble Lord is to say that no question of a fine arises if the judgment of the court is observed. The United Kingdom Government have a uniquely good record in that respect. In the Sixth Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law, it is reported that there was only one judgment against the United Kingdom with which it had failed to comply. That judgment, which had been given on 21st June 1988, would have been complied with on the adoption of the Finance Act 1989.
The United Kingdom's record is good by comparison with that of the Federal Republic of Germany, for example, which had not complied with four judgments. Belgium had not complied with 12 judgments. Denmark had not complied with two judgments and France had not complied with five judgments. Both Greece and Ireland had not complied with two judgments and Italy had not complied with 24. The Netherlands had not 2091 complied with two judgments. Those figures show that the actions of the United Kingdom speak as effectively as those of any other country in showing that we observe the Community law in an exemplary fashion. Some speak about it, but we do it.

§ Lord Clinton-Davis
My Lords, I hope that the comparative figures that the noble Lord the Lord Chancellor indicated in relation to breaches of the law by Britain and Germany respectively will not reflect the score to night. However, I wonder whether the noble Lord—

Noble Lords
The noble and learned Lord!

§ Lord Clinton-Davis
My Lords, I have now fathomed the reason for these extraordinary House of Commons-like outbursts. I apologise. I hope the noble and learned Lord the Lord Chancellor can indicate how long the Government are likely to take in their consideration of these matters and whether, for example, a statement will be made before the end of the year. In so far as there is no dock available for aberrant Ministers at the European Court of Justice, does not the noble and learned Lord the Lord Chancellor agree that there may be an overwhelming case for this measure being the only effective sanction in certain instances?

§ The Lord Chancellor
My Lords, it is too early to come to a conclusion. This is an important subject and, as has been said, it needs to be approached with a good deal of caution and discretion. It is a matter for consideration in the Community as a whole. It is not something that we could alter at our own hand. As I have already suggested, the measure may be particularly effective in respect of certain countries. I join with the noble Lord in hoping that the figures I gave will not be reflected in the score tonight. However, I have no means of knowing when a conclusion will be reached on this matter. I hope that we shall have a constructive consideration of this matter, perhaps stimulated by this Question.

§ Lord Campbell of Alloway
My Lords, will my noble and learned friend confirm that any decision on enforcement would have to be reached unanimously and not by a majority vote?

§ The Lord Chancellor
My Lords, the precise position to be adopted needs to be considered with some care. One would expect that a decision on any additional powers to be given to the European Court of Justice would need to be reached unanimously. Some of the treaty articles, particularly Article 172, could be used as a basis for developments in this area.