The second reading: the tabulated micro-analysis of the case

What you may have noticed in your reading of the case and subsequent answering of the questions is that the language of the law report is very different in style to that of an English law report. You are reading a translation of the working language of the EU, which is French not English, although all languages have equal status within the Community. What you will have immediately noticed is that the report reads as a series of descriptions and assertions. You will not find the reasoned, illustrative argumentative techniques that are the more familiar to the common law lawyer. Think, for example, of the case of Mandla v Dowell Lee [1983] 1 All ER 162 or George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 All ER 732–44.

To assist you to methodically engage with this case, it has been broken down into a table style format that takes you through each paragraph. The paragraphs have been numbered in the table according to the bracketed numbers that have been inserted into the text in Appendix 3 so that you can read the actual paragraph as well as its précis in the table. This should be useful as you can see a steady demonstration of summarising dense or technical text. In addition, a classification of the function of each paragraph is given under headings such as:

• descriptive; • setting out facts; • procedural; • conclusion;

• proposition or point in an argument; • inference,

because internally identifying the function of an argument is part of the way that one is able to start to organise a text in terms of its arguments and its proofs. The layout of the table is therefore as follows.

You will be able to see how the text builds up to a final decision. You should be able to clearly see the arguments and have a view yourself on the outcome.

Work through this text slowly. Where necessary refer back to diagrams or tables in the rest of this chapter that may help you. You will find the task completes the purpose of this chapter by giving a firm basis for reading law reports resting on the complex issues discussed. You should be checking the original paragraph to see if you would have made a correct précis.

From the text, tables, diagrams and tasks in this chapter you should have been able to acquire a firm foundation for your analysis of this area in your other subjects.

Note: it is important to realise that critique is only as good as your initial comprehension of the issues, rules, facts and arguments in the text (in other words, you cannot run before you can walk!).

Having persevered with the reading of the case and the notations, the differences between this Community case and common law reports is stark. The judges in the ECJ do not use analogy, poetic language, asides, stories, counter arguments.

There is a veneer of scientific detachment in the language of the Court. The style is unadorned description, technical language without explanation, assertion, the summarising without comment of a wide range of arguments by the parties, the Advocate General, and the governments wishing to make observations. When the ECJ turns to the decisions it will make, it dismisses arguments without explanation with phrases such as, ‘this is misconceived’, ‘No, this is not right’ and states ‘this is the case’ without giving reasons why.

The Court argues deductively without making any attempts to refer to policy. Yet, it must surely be aware of the policy dimensions of its decisions. If it had decided against Van Gend en Loos, then the power of the fledgling Community would have been severely diminished. In the view of the Advocate General, companies would follow the national customs tariffs and not be guided by the provisions of the treaty. The ECJ may well have been taking the opportunity to assert the power of the Community over the individual Member State. This is conjecture in the absence of any comment on policy from the Court itself.

Potentially powerful and persuasive arguments were put forward that the ECJ did not have the jurisdiction to hear the case; the Court merely replied that they did have jurisdiction. This was based on the grounds that the meaning behind the question raised an issue of interpretation within its jurisdiction.

The Court’s simplistic decision following from this that any arithmetical change, even if it resulted from a re-classification within the existing order rather than a deliberate increase, would constitute an infringement of the treaty—is severe and open to question. In the face of arguments that would concentrate upon the intention of Member States concerning infringement, the ECJ says any arithmetical increase constitutes an infringement irrespective of intention.

Indeed, much policy has to be read into all judgments of the ECJ and this judgment is no exception. Perhaps given the tensions between Member States and their creation, the EC, this is a wise and deliberate policy. The Member States gave birth to something that, in many respects, is more powerful and can dictate terms to an individual Member State.

There is little usage of what may be described as the forensic skill of the English judge. The major part of the report concerns summaries of the arguments put forward by both parties, the Advocate General, other interested Member States, and the governments of affected Member States.

Given the detail of the summarised arguments, and the range of arguments presented, it is interesting to note that it is acceptable for the Court to dismiss arguments without reasons. Theoretically, of course, an English judge could do the same, but the entrenched method of reasoning by analogy based on precedent makes such a course of action unlikely.

5.7 SUMMARY

This chapter has attempted to give an outline description of the main areas where English law needs to be read and understood in its European dimension. These areas are the law relating to human rights, and the EU and its law making powers (EC law). The chapter began with a basic introduction to the idea of treaties in general as the main method of the British government making political agreements— agreements that are usually operative at the level of international law. The chapter then explained the ways in which the law relating to human rights and the legal aspects of the EU have become part of English law.

READING BOOKS ABOUT LAW—