The Eurolaw Game: Some Deductions from a Saga

Abstract

The subject-matter of this article is the recent bout of litigation concerning the validity under Community law of the restrictions in England and Wales on Sunday trading. The aim of the article is to develop, by means of strict analysis, a series of important themes relating to the role of law in the Community and to the future development of the Community legal order. The term 'saga' has been used in the literature to denote the situation where a single policy attracts litigation over a period of time through a series of attacks. Protracted and convoluted, subtle in argument, and commercially of great significance, the Sunday trading litigation is a classic saga. It serves to highlight a phenomenon within the European Community of policies or strategies of litigation by private parties.1 More specifically, it demonstrates the potential in the internal market for the use of litigation strategies to achieve economic ends by powerful corporate interests which are able, as 'repeat players', to litigate frequently. A major theme concerns the appeal to Community law in order to frustrate or to overturn the outcomes of the legal and political process of the member state. In the course of the analysis, certain features of the Community legal order will be identified as helping to make this a profitable enterprise. Further, the scope in this situation for creative lawyering will be demonstrated by the powerful contribution on both sides of committed and highly skilled advocates. The analysis documents the considerable strain placed on the national legal system by the actions of the traders. A theme which is brought sharply into focus is the continuance of tensions between the role of the national courts as Community courts and their role inside the national constitution. There is a very real threat here to the legitimacy of the national legal system, made on this occasion to look inadequate and uncertain. The argument is advanced that, at this stage of the constitutional development of the Community, a broader focus to legal analysis is in order: a focus which encompasses not only the

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