The recent decision by the High Court in the Perkins case on homosexuals in the armed forces (13 March) provoked some indignant responses. Why should the European Court of Justice rule on such a case and what has this to do with the free movement of goods, services, labour and capital?
The European Court of Justice may yet determine that such cases fall outside Community law. However, the decision to refer questions to Luxembourg highlights once more that the European Union courts are a cauldron of controversy.
Last year alone they had to rule on the embargo on trade with Serbia and Montenegro, the ban on British beef exports, damages for Spanish “quota hoppers”, the export of live animals for slaughter, the application of the Working Time Directive to the UK, state aids given by the Spanish and Italian governments to their steel industries, and on the UK's aid for the textile industry in Northern Ireland.
In one sense, EU courts do have a political character – they are required to resolve conflicts of political interest. But suggestions that they have a bias against some member states, or have a political agenda of their own, are wide of the mark.
Confronted by controversial issues and required to reach judgments by unanimity, members of the courts can do nothing other than proceed by consensus. In effect, each judge is nominated by a member state. National traditions differ in their criteria for the selection of judges, but only in a minority of states does a candidate's political affiliation play a part.
Last year, the UK Government published proposals for the reform of the European Union courts. Among them was the suggestion that the Council of Ministers be free to amend EU legislation when the court interprets it contrary to the council's intentions. The problem with this proposal is that EU legislation is not made by the council alone.
The commission proposes legislation. The council may adopt it, in cooperation or consultation with the European Parliament and the Economic and Social Committee. The UK government's proposal would allow the council alone to determine that the court's interpretation was contrary to the intentions of EU institutions as a whole.
Another proposal was that references for preliminary rulings should be subject to appeal. The national court would refer questions to a chamber. Its answer could then be appealed to the full court. If accepted, this proposal would prolong the time taken for the Court of Justice to give answers on these references – a process which already takes too long.
But these proposals tackle the wrong problems. There are real difficulties which need to be addressed at the EU courts. For example, the court of first instance is overburdened, yet its new jurisdiction in the field of intellectual property promises to add some 400 cases a year to its workload.
There are a number of ways in which this problem could be resolved: the number of judges could be increased; specialised chambers could be formed to deal with subjects such as competition, state aid, social law and institutional questions; and provision could be made for some matters, such as employment cases involving staff of the institutions, to be resolved by single judges.
However, political objections have been voiced against all of these solutions. Firstly, at present, each member state has one judge on the court of first instance. If the number were to be increased, but not doubled, how would the new posts be allocated? Secondly, specialised chambers could give rise to dissatisfaction on the part of any member state if the judge whom it had nominated was not involved in the decisions to which that state attaches importance for two years or more. Thirdly, it was questioned whether it is right to press ahead with the proposal whereby judges could deal with some cases individually when this would remove the anonymity that is at present afforded by collegiate judgments.
The problem of languages also requires a political solution. The courts' use of many languages clouds comprehension and slows things down. Plaintiffs can select the official language of their choice, and thereafter all participants must use that language, and the court must give judgment in it.
Both in direct actions and in preliminary rulings, documents in other languages are translated into the court's working language, French. The report for the hearing and judgment are prepared in French and translated into the language of the case. Where member states intervene their documents must also be translated.
The many proposals to limit the number of languages used in the EU courts have been stymied by politics. If French is to be an official language, Belgian considerations require that Dutch should be available also. If Dutch is available, it is impossible to exclude Italian, Spanish and Greek.
These are the real political hurdles. They are less likely to appeal to readers of tabloid newspapers during an election campaign than the imaginary problem of the courts' bias. But if they were overcome, litigation in the EU courts would become cheaper, quicker and more intelligible.