In the absence of comparative analysis, there are dangers in extrapolating the British experience to offer insights on the practice in other jurisdictions. The pattern of references alone indicates siginificant variations. At the risk of over-extension it is possible to indicate where it might have some resonance, as, in as fragmented and decentralised a process as litigation, particularly before many tribunals with low entry costs, it is difficult to believe that the British experience on the narrow application of EU law is unique. The heavy normativity of EU law is likely to be a pan-European feature and offers explanations for governmental acceptance of the EC legal order and also suggests a re-evaluation of how EC law should be critiqued by legal academics. It is likely by contrast that there are many features over British political reaction to Court of Justice case law that are likely to be esoteric. The disposition of the press and the grip that the `European' issue has over one of the parties are themselves distinguishing features. As for the logics that have underpinned British judicial reception of EC law and patterns of references, patterns of litigation will of course vary, but there is nothing in the British experience to suggest that the broad features determining judicial behaviour in the light of these patterns will be too different, notably the absence of fit between references to the Court of Justice and broad application of EU law in national courts.
If that is so, there are two implications for the debate about the nature of the Union judicial system that will take place in the forthcoming Intergovernmental Conference.
The first concerns the debate about European constitutionalism. The constitutional norms of EC law beloved of legal scholars are applied in such limited scenarios that to demand a European constitution, taking them as one's starting point is to argue for the exception becoming the rule. It involves such a radical transformation in the nature of the European Union that it simply beggars belief to argue for this as some form of extension of existing processes.171 Instead, advocates for such a cause would be better advised to explain why it should be the European Union rather than other more cosmopolitian settings, be they global, such as the UN bodies, or genuinely pan-European, such as the OSCE or Council of Europe, that is the appropriate setting for such arrangements.
The second concerns the preliminary reference procedure. Currently, it is creaking under the number of references - a problem that will be exacerbated by enlargement.172 The United Kingdom experience suggests that not only are the majority of references hugely unrepresentative of the type of litigation that involves British courts day in day out, but that EU law is successfully applied by British courts in areas where there are very references. Moreover, it appears that it is above all the structure of the reference system rather than any judicial bias on the part of the Court of Justice that leads to so many judgments being a source of dissension. It is clearly unrealistic to suppose that judicial politics can ever be seperated from the application of EU law. But there would be much to be said for most of it taking place within the domestic judicial sphere - attitudes to the Court of Justice will be less polarised, difficult judgments will be easier to reverse, and the problem would be seen as much a responsibility of the national legal system as the EU one. This could be simply achieved by only allowing national courts of last resort to refer.173
171 Eg the comments of the legal Adviser to the Council who argued that nothing in the `political debate' should not or would not prevent `the improvement of the existing constitutional features'. J-C. Piris, `Does the European Union have a constitution?' (1999) 24 ELRev 557, 585.
172 The average delay for a case before the Court of Justice at the end of 1998 before judgment was given was 21 months. The backlog was 748 cases. EC Commission, Reform of the Community courts COM (2000) 109 final, p.3.
is currently the situation for matters that fall within Title IV of the EC
Treaty on Visas, Immigration and Other Policies related to Free Movement of
Persons, Article 68(1) EC. Member States accepting Court of Justice
jurisdiction to give preliminary rulings on matters that fall under Title VI of
the Treaty on European Union on Police and Judicial Cooperation on Criminal
Matters can also make it a condition of that acceptance, Article 35(3)(a) TEU.
The proposal here is that practice should be extended generally.
The Commission proposals involve the opposite. It proposes that national courts should only refer where the point of EC law is particularly problematic. This might limit the number of cases referred to the Court of Justice but would seem to confine references to test cases, thereby exacerbating existing tensions, EC Commission, Reform of the Community courts, COM (2000) 109 final.