The positive case for the European Court of Justice

Michael Gove and others in the Out campaign have attacked the European Court of Justice (ECJ) in aggressive terms and strongly criticised its decisions.  As explained here those criticisms are ill-founded.

But it’s important not to lose sight of the fact that the ECJ has delivered many judgments that have greatly helped UK businesses and individual citizens in getting access to markets elsewhere in the EU and being treated fairly by other EU Member States.  Here are some examples.

• Cowan v Trésor Public (Case 186/87): the ECJ held that Mr Cowan, who was the victim of a violent attack when visiting Paris as a tourist, was entitled to the same compensation from the French Government as a French citizen.

• Ministre de l’Economie v De Ruyter (Case C-623/13): the ECJ held that France was not entitled under EU law to require people not resident in France to pay social security contributions on rental income from their French properties, when they could not make social security claims in France. Brits who were wrongly taxed by the French government will get their money back.

• Commission v France (Case C-1/00): the ECJ held that France was obliged to end its unlawful ban on imports of British beef after the BSE crisis.

• Commission v Spain (Case C-12/00): the ECJ held to be unlawful Spanish legislation prohibiting cocoa and chocolate products from being marketed as “chocolate” if they contained vegetable fats other than cocoa butter (as UK chocolate often does).

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• Commission v France: (Case C-265/95): the ECJ held that France was obliged to take steps to stop violent demonstrations by French farmers against imported agricultural products.

• Commission v France (Case C-200/08): the Advocate General (whose job is to advise the ECJ on what he or she thinks is the right answer to cases before the ECJ) advised that France was in breach of EU law by refusing to recognise UK snowboard instructor qualifications (the case settled before the ECJ gave judgment).

• UK v European Central Bank (Case T-496/11): the General Court of the EU (the part of the ECJ that hears first instance appeals against decisions by EU institutions) struck down discriminatory treatment by the ECB of UK clearing houses.

Those cases – and many others – show that the ECJ is vigilant in protecting UK citizens and businesses against breaches of EU law by other Member States.  And, under EU law, a business or individual can bring action themselves in national courts to stop breaches of EU rules, with a procedure for the national courts to refer questions of EU law to the ECJ.  They can also ask the Commission, which is independent of any individual State, to enforce the rules for them.

Those mechanisms are not generally found in trade treaties such as the ones that Brexiters hope to negotiate after Brexit. But they help to make EU law the sword of the ordinary citizen and not just a matter between governments.

George Peretz is a QC specialising in EU and public law.

Edited by Sebastian Mallaby