UK LAW ONLINE

The European Union

What is now called the European Union developed from an number of international treaties between several western European countries in the 1950s. The most significant development was the Treaty of Rome in 1957. The United Kingdom acceded to this treaty in 1972, and European law was made part of UK law by an Act of the UK Parliament, the European Communities Act 1972, by which:

s.2(1) - "all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly ..."

 

s.2(4) - " ... any ... provision ... as might be made by Act of Parliament, and any enactment passed or to be passed ... shall be construed and have effect subject to the foregoing provisions of this section ..."

 

s.3(1) - "For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)."

 

The Treaty of Rome has subsequently been amended by later treaties signed by all Member States and these have in turn been incorporated into UK law by Act of the UK Parliament. These have not so much affected the UK courts and the role of European law as a source of UK law. Rather, they have tended to strengthen the political importance of the European Union as against the powers and importance of Member States. In this way, there are important implications for national sovereignty, and this challenge to national sovereignty is keenly felt in the United Kingdom for historical reasons.

False expectations?

Like other late-comers to the European Communities (for example, Denmark), many politicians and voters in the U.K. harbour misgivings about European membership. The concerns of the "Euro-sceptics" are based on many factors. Some oppose membership on constitutional grounds - the fear of loss of sovereignty and nationality (the two are not necessarily connected, as the Scots have shown since 1707) and rule by a remote bureaucracy. Some oppose membership on foreign policy grounds, taking the view that the U.K. has important links with the Commonwealth and U.S.A. which should not be sacrificed for the sake of Europe. Some oppose membership on pragmatic grounds - they do not believe that the U.K. will economically prosper from membership.

Whatever their reasons for opposition, the doubters could console themselves with the knowledge that there were substantial limitations on the influence of the European Communities which were written into its constitution. Thus, they hoped that these limitations would make membership more or less palatable. The original limitations were as follows.

(1) The Communities were conceived as limited in scope. The Treaty of Rome was designed to regulate only agriculture and inter-State trade and employment. In this way, many in the U.K. believed that they were entering a rather sophisticated customs and trading union which had little bearing on everyday life. The following provisions from the Treaty of Rome seem to point in this direction:

Art.2 The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it.

 

Art.9.1 The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports....

 

(2) The Community lacked the machinery to enforce its wishes against recalcitrant members. The Court of Justice, for example, could only issue declaratory judgments. These could be ignored for long periods or "implemented" in totally perverse ways. (See e.g. Commission v. Italy [1972] C.M.L.R. 699.)

It may be noted that the U.K. has not often been found to be in breach - only 20 times up to the end of 1991, compared to 136 adverse judgments for Italy, 44 for France and 36 for Germany. In Frankovich v Italy [1992] I.R.L.R. 84, the Court itself held that a failure by a State to implement a directive would itself be actionable by way of compensation through national courts.

(3) The Luxembourg Agreement of 1966 (largely conceived at the behest of the French) allowed each member State to exercise a veto over Community proposals which adversely affected vital national interests. The veto was not written into the Treaty and conflicts about its use did arise, but it did reassure doubters.

Each of these limitations has since been weakened, primarily by amendment to Community law in 1986 and further amendment in 1993.

Single European Act of 1986

The Single European Act was the name given to a treaty amending the Treaty of Rome. It was implemented in the U.K. by the European Communities (Amendment) Act 1986. The main effects are as follows.

(1) It expands the scope of legitimate European Communities' interests, especially into the fields of transport, environmental protection, financial services and (indirectly) foreign affairs.

Art.8a The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992....The internal market shall comprise an area without internal frontiers....

 

Though most of the necessary measures have been adopted, their implementation is far from complete, especially in the U.K. which wishes to retain frontier checks (and has opted out of the most recent rules about the removal of frontier checks under the Treaty of Amsterdam (which seeks to make part of European law an early Schengen Treaty) See also House of Commons Foeign Affairs Committee, First Report: The Treaty of Amsterdam, 27 November 1997, HC 305.

The added directions represented a decisive step in the development of the European Communities. They could no longer be presented as simply a customs union.

(2) Art.100a allows for many issues under the SEA to be decided by one of the forms of majority vote and thus dilutes the value of the veto.

Treaty on European Union, Maastricht, Cm. 1934, 1992

With a view to ensuring continued progress after the implementation of the S.E.A., a Treaty on European Union was signed in Maastricht in 1992. The proposed treaty again undermines the limitations on Community influence.

(1) In the first place, it confirms the trend of the SEA by extending Community activities. As it states rather grandly:

Article A(1): "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen."

 

In more detail:

  • it symbolically drops "Economic" from the title of the European Community - economics are no longer the sole issue. The competencies of the EC now extend also to the following: the environment, industrial strategy, education, consumer affairs, health and social welfare. But note that UK opted out of health and social welfare harmonisation (at least until 1997)
  • it establishes a "European Union" which is conceived in terms of three pillars. One is an economic union based on the Treaty of Rome, with the objectives of economic and social progress. Then there is the establishment of an international identity through a common foreign and security (both external and internal policing)policy. Then there is a common citizenship, which requires the strengthening of individual rights and cooperation on justice and home affairs. In short the purpose is "an ever closer union among the peoples of Europe in which decisions are taken as closely as possible to the citizen". But note that it is mainly the economic union which is legally enforceable through the ECJ.
  • a citizenship of the Union is created, including rights to vote in municipal and European elections by non-national residents, the right to diplomatic protection from the embassies of any member State, the right to petition the European Parliament, the right to complain to a European Ombudsman
  • there are requirements for the production of a common foreign and security policy
  • there are provisions about economic and monetary union with the goal of a common European currency (though the UK has chosen not to join in this for the present)
  • there is further extension of majority voting which all but wipes out the Luxembourg Agreement

(2) The Maastricht Treaty also amends the Treaty of Rome concerning enforcement of Community law. In particular, it proposes that if the European Court of Justice finds a member State in breach, it may set a time limit for compliance and specify a financial penalty if it is not met (Art. 171).

 

(3) Opponents of Maastricht criticise on a number of related grounds

  • most relevant is that it is constitutionally dangerous because the effect of Maastricht will be to create a new sovereign state. The European Union, allied to the European Communities, will have all the features commonly associated with sovereignty e.g. governance over all the inhabitants of a distinct territory, a structure of central government whose orders cannot be ignored, citizenship for the inhabitants and regulation of police and military forces. Though the word federalism was expressly expunged from the treaty, the results looks very much like a form of loose federalism which is not far removed from that operating, for example in the U.S.A. This criticism of course embodies the assumption that a Euro state would be a worse form of government than a UK state, primarily on grounds of remoteness and unresponsiveness;
  • opponents also say that Maastricht is unpopular and is being foisted on the peoples of Europe without full support. EG the Danes voted (by a majority of about 48 000) against ratification in June 1992, though later accepted in a second referendum; the French majority in favour was also relatively narrow; the UK govt secured the passage of the implementing Act only by a vote of confidence (this was necessary because s.7 of 1993 Act says it only comes into force after approval in each House of a resolution concerning the govt's position on the Social Protocol);
  • opponents also say that unification in this way is impractical In particular, the crisis in the currency markets in September 1992 has cast doubt on whether monetary union is either feasible or desirable. And strict uniformity becomes more difficult as more countries join the EU - what was possible for 6 is not possible for 15 or more.

(4) Supporters of Maastricht counter these arguments roughly as follows

  • First, pooling sovereignty is inevitable, necessary and beneficial in an area like Europe. Only by acting together in this way are European states able to have a real impact on the world order, especially in an economic sphere. Individual countries are far too weak to have an impact in opposition to, say, Japan or the USA.
  • the unpopularity of the EC is patchy in Europe and, as indicated at the beginning, is mainly confined to the late joiners.
  • It is also argued that Maastricht and Union should not be equated with centralisation. Indeed, the Treaty is expressly based on the principle of "subsidiarity", which has since been given further prominence in the Edinburgh Declaration of Dec 1992. The principle is that governmental decisions should be taken at the lowest possible level, unless the EC goal cannot be achieved by action at that level: Article B(3(b)): "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community.". Often, this means decisions should be taken by national govts not Brussells. By art3a of Maastricht, subsidiarity becomes a general principle of the EC along with eg non-discrimination (art7), solidarity (art5). An institutional emanation of subsidiarity is the Committee of the Regoins under art 189a-c, which has an advisory role and is drawn from members of regional and local government (the latter in the UK). This subsidiarity feature does not dispel all the doubts of the detractors since
    • - subsidiarity is a vague concept - ideas of necessity, effectiveness will have to be interpreted - by the ECJ ultimately
    • - there is still the implication that, unless otherwise applies, power is held centrally by Brussels. Compare Amendment X of the U.S. Constitution
    • - and the principle will do little to change existing distribution of powers because of doctrine of the occupied field. This means that subsidiarity mainly applies to emerging work in the new competencies of the EC - not in fields of activity already established.

 

(5) The latest stage in the development of the European Union has been the Treaty of Amsterdam 1997. This demonstrates that the European Union isnot set in stone but continues to develop in line with the wishes of its Member States (especially France, Germany, and the Benelux countries which tend to form a powerful and cohesive political group). The Amsterdam Treaty saw less dramatic changes compared to Maastricht, partly because of opposition from governments such as the UK which expressed unease about further changes and any "inexorable drift of power towards supra-national institutions, the erosion of national Parliaments and the gradual development of a United States of Europe." (Foreign & Commonwealth Office, A Partnership of Nations (Cm. 3181, 1996) para.5.)

The Amsterdam Treaty is therefore more of a consolidation of existing trends rather than the start of any new trends. Perhaps the only important innovation is the incorporation within European law of the Schengen Agreement, a treaty originated by France, Germany and the Benelux countries to allow for movement between them without any frontier controls at all. The Agreement has run into some difficulties associated with the setting up of a common police database of suspects and also the problem of harmonising entry and visa requirements. In addition, there have been complaints that Italy, a later member, does not adequately police its borders. Fir its part, the UK government (along with Ireland and Denmark) has decided to opt out of these requirements. (See generally European Parliament Directorate-General for Committees and Delegations, Committee on Institutional Affairs, Initial Analysis of the Treaty of Amsterdam Based on a provisional version of the Treaty (conf 4001/97 of 19 June 1997).)

During the last few years, the agenda of the previous UK governments (at least until 1997) has been aimed at a looser, more pragmatic relationship which includes

These policies are also being pursued by the Labour Government.

See generally the following pages realted to the above information:

EUROPA Server

European Commission

European Parliament

Foreign and Commonwealth Office


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Last Updated October 1998