My vision is one of political union because Europe
needs to forge its own unique path. We need to become incrementally closer and
closer... the supreme court will be the European Court
of Justice.
- German
Chancellor Angela Merkel, quot: Guardian,
25.1.12.
DID YOU KNOW that under the terms of our EU membership, the 'Court of Justice of the European Union' (commonly known as European Court of Justice or ECJ) has the final say in interpreting treaties and legislation. It was empowered to require Member States to take "any necessary measures" to comply with its judgements, and to impose penalty payments "as seen appropriate" (i.e. unlimited) for non-compliance. Euro-enthusiasts try to tell us how much we need the Court to make EU membership workable for everyone. We reprint the views of various legal authorities.
"Member States' courts... were bound to apply
Community Law. It could not be overridden by domestic legal provisions however
framed without being deprived of its character as Community Law." (ECJ,
Case 26/62)
"The supremacy of Community Law when in
conflict with national law is the logical consequence of the federal concept of
the Community"
(H P Ipsen, 1964)
So much for Edward Heath's reassurances that there would be no erosion of
essential sovereignty!
"The transfer by the States from their domestic legal system to the
Community legal system of the rights and obligations arising under the Treaty
carries with it a permanent
limitation of their sovereign rights... against which a subsequent act
incompatible with the concept of the Community cannot prevail" (Case
6/64).
This just shows the undemocratic nature of the EU - it would be illegal to
renegotiate the membership Treaty to return lost powers to national
governments.
Any
Treaty revisions are tasked to the European Council, which although consisting
of national heads of government, is an EU institution. Therefore it is bound to
support the political objectives of the EU, legal continuity and consistency
(ref. TEU, Title III, Art. 13).
In Cases 11/00
and 15/00,
the ECJ confirmed that EU institutions were bound by EU goals.
The main goal of the
EU is the progressive integration of Member States' economic and political
systems...
(EU website,
What Is EU Law?, 17.8.11)
"The acquis
communautaire is the entire body of Community Law, including Treaties,
all secondary legislation, decisions etc... by virtue of the concept, member
states commit themselves to the goals of the Community as well as its Law."
(Cases 161/78 and 44/84).
The Maastricht treaties originally stated that this shall be maintained
"in full" when the treaty framework was to be revised following the
1996 Inter Governmental Conference, thus militating against the return of lost
decision-making powers.
Unsurprisingly, this ratchet has been carried over into the 'Treaty of Nice' (see
Footnote) and its successor, the Treaty of Lisbon, which restates its
integrationist goals and commitment to legal continuity and consistency (ref.
TEU, Title III, Art. 13, also Preamble).
The
language in the Treaty gives the impression of powers being reserved for member
states. This is only true in very limited cases, and the use of power heavily
fettered by ECJ judgements imposing EU obligations that take precedence.
The key term is exercise competence. It is
similar in concept to subsidiarity, which sounds like devolution of power to
member states, but keeps the whip hand firmly with EU institutions (e.g. Treaty
of Lisbon ref. TEU, Title I, Art. 4-5; Protocol 2).
Whether it is deemed to be with the EU or
member states, competence (ability to act) is to be used towards EU objectives
basically ever closer economic and political union.
The Court has,
however, stated on numerous occasions, as settled case-law, that there are
certain areas in which, even though they fall in principle within the exclusive
normative [law-making] power of the Member States, Community law sets limits to
that power.
(Case 186/01,
para 56).
the Court went on to
qualify the circumstances under which this national competence must be exercised
(Case 1/05,
para 27).
It is therefore
expressly foreseen that Community measures might be adopted on issues... even
though they currently fall within national competence. (Case 83/98,
para 83).
The Treaty of Lisbon
has some small print interpreted as about the EU choosing not to exercise power
(competence) any more (ref. TFEU, Declaration 18). It actually relates to the
repeal of individual laws and, in any case, being a Declaration has no
legal force, so the legal precedent does not change.
The Treaty of Lisbon gives a clue in highlighting the EU's interest in
partnerships with 'international, global or regional organisations' and 'multilateral
solutions'. (ref. TEU, Title V, Art. 21).The EU could theoretically decide to
cease to exercise some powers in favour of a global governance institution like
a climate change body, but it would not empower member states to act in breach
of any wide-ranging EU obligations.
"No provision of municipal [read: national] law may prevail over a
Community law. The validity of a Community act or its application remains
unimpaired, even if it is alleged that the basic rights of the national
constitution were violated" (Case 11/70, re: an alleged violation
of the German national Basic Law by a Community regulation).
This invalidated the constitutional 'safeguards' that Germany insisted upon
when signing up for the Maastricht treaties, such as the "right" to
avoid the Single Currency.
Now what about our constitutional safeguards? The European Court has a
legendary tendency to interpret the legal framework from the partisan angle of
promoting European integration (i.e. working to the goals of the Treaties).
There are many testaments
to this and even whole
courses available on it!
It is perhaps safe only to assume that it is barred from acting only where this
is explicitly laid down in a Treaty (e.g. Treaty of Lisbon ref. TFEU, Part 6,
Title I, Art. 274-6).
With its connivance, the EU has got away
with laundering controversial measures under legislative headings where there
is no veto - e.g. the Working Time Directive as a 'health and safety' measure.
The Data Retention Directive, forcing communications companies to log our
private communications data (phone calls made and internet use) was pushed
through as a Single Market measure.
The Citizenship
Directive, 2004/38, was effectively passed as a 'Single Market'/'free
movement of people' measure! Entry of 'EU citizens' with a criminal record
cannot be barred on criminality, or public policy grounds, only a "serious
threat affecting one of the fundamental interests of society" (such as
terrorism, or a pandemic infection) is acceptable.
The latter means the UK can't just ban EU criminals like metal thieves who
disrupt our railways or cashpoint fraud gangs.
Justifications based on 'prevention' are not acceptable - the European Court
would adjudicate on these.
Persons excluded on grounds of public policy or security have the right to seek
readmission three years (maybe less) after their expulsion by claiming a change
in circumstance.
Although the Treaty hints that national
security is the sole responsibility of member states, the EU
decides who has the power. (Treaty of
Lisbon refs: TEU, Title I, Art. 4.2; ECJ Cases 186/01,
para 62; 273/97).
national measures for
guaranteeing public security are not completely outside Community law (Case
186/01).
On the basis of the
case law of the Court, the Advocate General considers that the arguments of the
governments, according to which defence would remain within the exclusive
competence of the Member States (because of either an exemption provided for in
the Treaty or the exclusive sovereignty which the states would enjoy in this
matter), are not founded (Case 273/97).
The UK
gradually lost control of its foreign policy between 1973 and 2009. A
longstanding ruling holds that where an 'internal' policy has been agreed, it
should have a common 'external' (i.e. foreign) policy to support it. (Case
22/70, decided on 31.3.71 and covered in the publication 'Security of the
Union', Federal Trust, 1996).
The EU now has an 'internal policy' on practically every area of everyday life.
"Once the
Community has set up a common organisation of the market for a single product,
Member States may no longer regulate the market at all" (Case
83/78).
- So, no chance of national support arrangements to replace the disastrous
Common Agricultural Policy; and products could well cover items as diverse as
approved medicines and foodstuffs, financial services and even healthcare?
The ECJ also confirmed that Single Market needs overrode any perceived national
powers.
No area of Member
State competence is excluded ...from the reach of measures designed to address
barriers... (Case
376/98,
para 63).
And although the European Commission's propaganda
in schools claims that the Court has no powers to overturn the decisions of
British courts, our courts are already obliged to work within the rulings of
the European Court [under section 3.1 of the European Communities Act, 1972]
Footnotes:
EU law was known as EC law or Community law before 2009.
The ECJ can enforce Treaty provisions as
binding on the UK, with potentially unlimited fines for non-compliance.
There are minor exceptions where the ECJ does
not rule (cf. Treaty of Lisbon, TFEU, Articles 275, 276).
Treaty of Nice, Title II, Art 10
"Members States shall take all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out of this Treaty
or resulting from actions taken by the institutions of the Community. They
shall also facilitate the achievement of the Community's tasks.
They shall abstain from any measure which could jeopardise the objectives of
the Community."
Treaty of Nice, Title I, Art 3
"The Union shall be served by a single institutional framework which shall
ensure the consistency and the continuity of activities carried out in order to
attain its objectives while respecting and building upon the acquis
communautaire...."
(The Treaty of Lisbon (ref. TEU, Title I, Art. 1; Title III, Art. 13) inherited
this ratchet from the Treaty of Nice. TEU, Title I, Arts. 2-4 are also
relevant.)
References to European Court cases:
Law & the Institutions of the European Union, Lasok & Bridge
(Butterworths, 1994)
European Community Law, Charlesworth & Cullen (Pitmans Publishing, 1994)
also the online PDF
chapter The
United Kingdom and the European Union of
Constitutional and Administrative Law,
Bradley and Ewing (Pearson, 2010)
References to the Treaties
The Treaty of Nice in Perspective, 2001; and
The Treaty of Lisbon in Perspective, 2008,
auth: Anthony Cowgill (now deceased) and Andrew Cowgill
British Management Data Foundation,
24 Hawkhead Crescent,
Edinburgh EH16 6LR
Tel: (0131) 664 1129
(link to their Eurotreaties website with texts)
This page compiled: 5 October 2004,
updated: 19 Feb 2013