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UnaccountableCourt of Justice












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 ‘Eurotreatieswebsite with texts)

 

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This page compiled: 5 October 2004, updated: 19 Feb 2013