Written by Michael S.
The EU’s architecture comprises a combination of supranational and intergovernmental institutions. However the UK’s government has always argued that supranationalism especially in the form of the supremacy of EU laws undermines national sovereignty. The intergovernmentalist approach is closely related to the international relations theory of realism which argues that in an anarchical world devoid of any form of supranational governance, all power and sovereignty lies with nation states. They apply this reasoning to the European integration process by arguing that power in the European Union lies with national governments. Barnard and Peers sums this up by stating, “The central thesis is that States are the driving force behind integration, that supranational actors are there largely at their behest and that such actors as such have little independent impact on the pace of integration.” This paper will examine the way supremacy of EU law has been developed and the extent to which it poses a challenge to national governments.
It has been argued by intergovernmentalists that the supranational power that the Commission and the European Court of Justice possesses has been ceded to these institutions by national governments for the purpose of serving the interests of these governments. However there is a negation of the idea that it was ever the intention of the founding states to imbue European law with legally binding primacy over national governments, laws and courts. Their argument rests on the absence of such power being explicitly stated in the founding Treaty of Rome 1957. Consequently they view the development of the doctrine of the supremacy of European law as a creation of the Court which has threatened the sovereignty of member states. However the Court did take proactive measures in establishing at an early stage the doctrine of the supremacy of European law. This was first accomplished in the ground breaking rulings of the cases Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62) and Costa v ENEL (Case 6/64). In the case of the former the Court established the direct effect of directives and stated “Community law constitutes a new legal order of international law for the benefits of which the states have limited their sovereign rights, albeit within limited fields.” In the case of the latter the Court ruled that “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 unilateral act incompatible with the concept of the Community cannot prevail.”
There were a number of justifications given for these rulings. The first is that it is the member states that have themselves created a new legal system in EU law that has become an integral part of their respective legal systems. The second is that the uniformity and applicability of Community law would be rendered ineffective and near useless if national governments and courts could overrule it. This is an important point inasmuch it is one of the reasons why free trade areas are difficult to manage. Without the implementation of both supranational laws and institutions to enforce those laws, participating states could breach their free trade obligations for domestic economic and political reasons. It was recognition of this problem that the Commission and Court were endowed with supranational powers. Finally Davies makes the point that “The Court referred directly to the text of the EC Treaty to support its judgments. Although the Treaty does not provide directly for the supremacy of Community law, the ECJ argued that Article 249 (then 189) which provides for the direct applicability of regulations would be meaningless if Member states could negate their effect by enacting subsequent, conflicting legislation.”
The Court has gone on to reinforce these initial rulings in a number of cases. For example in the case of Internationale Handelsgeselschaft Case 11/70) it ruled that the validity of Community law could not be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of the State or the principles of a national constitutional structure.” This effectively meant that Community law even took precedence over national constitutional law. The ruling in the case of Commission v Council (Re European Road Transport Agreement (ERTA)) (Case 22/70) also negated the use of concurrent authority by member states. This meant that once the Community had laid down a common policy, member states were not allowed to exercise or implement concurrent authority in establishing alternative rules, even with non-member states that contravened community policy.
The presumed threat posed by supremacy to the sovereignty of member states is limited by three main factors. The first is the principle of conferred powers. This means that “the Union and its institutions can only act insofar as the Treaties have conferred power on them to do so, and is a constitutional principle that applies to all areas of Union law.” However the making of primary law is intergovernmental in that new treaties are agreed and signed unanimously by the European Council consisting of the heads of government of the member states. This means that it is national governments themselves, and not some supranational body that passes and allows themselves to be bound by primary legislation. The second is proportionality which has been defined in Article 5 EC Treaty in the following way, “Any action by the Community shall not go beyond what is necessary to achieve the declared, lawful objective.” This principle protects the sovereignty of member states from overreach by EU institutions, in that EU legislation is not just required to go beyond what is necessary, but it must also be adequate and appropriate to achieving the stated objectives. This has been upheld in case law in examples such as the case of Spain v Council (Case C-310/04) in which the Court ruled that in passing a regulation regarding a cotton support scheme, that the Council had not taken into sufficient account a range of relevant factors such as labour costs and the scheme’s viability.
The final factor is the principle of subsidiarity. This has been described in Article 5(3) TEU in the following way: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be achieved by the Member States, either at central level or at regional or local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at the Union level.” Subsidiarity is therefore based on the premise that governance should ideally be devolved to the lowest possible level, which in practical terms means the local level. It should only be passed to the next highest level if it cannot be efficiently dealt with by the lower level. Therefore competence should only be exercised at the European level when it cannot be effectively or efficiently exercised by any other area of governance, which in the process protects national sovereignty. However the Court has been accused, of using the principle as a placebo rather than as a panacea. In a range of cases such as Commission v Germany, Personal Protective Equipment (Case C-103/01), R v Secretary of State for Business, Enterprise and Regulatory Reforms, ex partee Vodafone (Case C-58/08) and R v (On the Application of Alliance for Natural Health; Food Supplements) v Secretary of State for Health (Case C-154/04) the Court has ruled that Community measures or regulations that had been challenged by member states were aimed at introducing common measures, enabling harmonisation or ensuring free movement, and were therefore best achieved at the Community level.
The strengths of the supremacy of European law have been obvious from many of the case law decisions of the Court that have radically extended the rights of EU citizens in a range of areas. One prime example is in the area of the right to free movement within the Union. For example in the cases of Baumbast and R v Home Secretary (2002) and Zhu and Chen (Case C-200/02) the Court ruled respectively that non EU nationals who were the primary carers of a child were entitled to remain in the EU. In Michel S (Case 76/72) the Court ruled that the child of an EU national working in another member state was entitled to free education within that state even when the parent had died. The Court has also upheld the employment rights of pregnant women in the case of Dekker v Centrum (Case 177/88), as well as the rights for women to receive equal pay for equal work in the case of Murphy (Case 157/86). In the area of competition law it has protected consumers across the Union by preventing businesses from developing oligopolies and in the process using their market dominance to distort markets which ultimately cost more. Examples include the cases of the Quinine Cartel case (1970) and the case of Consten and Grundig (1966) where firms were conducting oligopolistic operations to artificially raise prices as well as preventing competition from non-cartel companies. In other areas ECJ rulings have enforced the autonomy of member states in line with subsidiarity. For example in the case of Buet v Ministere Public (Case 382/87) the court held that “a French law prohibiting doorstep selling of educational materials did not breach EC law under Article 30 but merely offered a greater level of consumer protection which was not inconsistent.” These represent the tiniest sample of the plethora of instances where the Court has acted to enlarge the applicability of EU citizenship rights as widely as possible.
The weaknesses of the Court’s actions are akin to those of case law and the use of precedent in general. Rulings that establish a precedent are essentially a form of law, and are listed under EU law as a tertiary source of law. This has always been controversial in that it is traditionally legislatures that are supposed to be the law making body. However most countries including the United Kingdom have found it difficult to escape what has been termed judge made laws. This is because precedent based case law serves a vital function in ensuring the uniform application of the law. The purpose of precedent is to ensure that rulings apply uniformly across all courts in the country. The same applies at the European level. Case law however becomes controversial where courts make dynamic rather than conservative rulings. The former tends to be concerned with extending rights and privileges enshrined in primary and secondary legislation to the fullest extent possible. This often involves an emphasis on the spirit of the law rather than just its wording. This is the area where the Court has drawn its sharpest criticism.
However it is clear that the Court has seen invoking the spirit rather than just the letter of the law as an opportunity to develop one of the most fundamental objectives of the integration process, and this is to develop an ever closer union between the Union’s member states. This relates to the neofunctional premise that the ultimate aim of the European project is some form of political union. This will be achieved incrementally through a process termed spillover whereby functional integration in one sector leads to integration in (or spills over into) adjacent or related sectors. Neofunctionalism opines that it is the benefits of integration in certain levels such as the economic sector that will lead to public acceptance of integration in related areas. In this respect the Court has seen itself as playing a vital role in demonstrating these benefits through the way it extends the scope and benefit of European law.
The main threat to this approach however as is now evident is spillback as has already occurred with Brexit. Spillback refers to the reversal of spillover whereby member states claw back sovereignty and control in a reversal of the integration process. Having occurred in the UK, there is now a risk that spillback may occur in the Netherlands and France this year, depending on the outcome of national elections. The spillback process has been based on the reversal of economic progress in the Union as a result of the adoption of neoliberal and austerity policies, along with a perception of the EU’s democratic deficit. There is therefore a threat that any further moves towards greater integration as evidenced by dynamic Court rulings may tip the balance in favour of further disengagement from the EU. The immediate future of the EU therefore needs to be based exclusively on economic policies that address the decay in living standards as well as the perception that the EU is simply an elite businessmen’s club. Backward linkage and a re-capturing of economic competence must be achieved before any forward linkage in the form of renewed integration can be accomplished.
Baumbast and R v Home Secretary (2002)
Buet v Ministere Public (Case 382/87)
Commission v Council (Re European Road Transport Agreement (ERTA)) (Case 22/70)
Commission v Germany, Personal Protective Equipment (Case C-103/01)
Consten and Grundig (1966)
Costa v ENEL (Case 6/64)
Dekker v Centrum (Case 177/88)
Internationale Handelsgeselschaft Case 11/70)
Michel S (Case 76/72)
Murphy (Case 157/86)
Quinine Cartel case (1970)
R v (On the Application of Alliance for Natural Health; Food Supplements) v Secretary of State for Health (Case C-154/04)
R v Secretary of State for Business, Enterprise and Regulatory Reforms, ex partee Vodafone (Case C-58/08)
Spain v Council (Case C-310/04)
Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)
Zhu and Chen (Case C-200/02)
Moens G A and Trone J The Principle of Subsidiarity in EU Judicial and Legislative Practice: Panacea or Placebo? (Journal of Legislation Vol. 41, Issue 1, 2015)
Barnard C and Peers S European Union Law (Oxford University Press 2014)
Craig P and De Burca G EU Law: Text, Cases and Materials (Oxford University Press 2015)
Dashwood A, Dougan M, Rodger B, Spaventa E and Wyatt D and European Union Law (Hart Publishing 2011)
Davies K Understanding European Union Law (Cavendish Publishing 2003)
Hartley T C The Foundations of European Union Law (Oxford University Press 2010)
Kaczorowska A European Union Law (Routledge Cavendish 2009)
Larsen, L. B. Judge The Judicial Review of the Principle of Subsidiarity at the Court of Justice of the European Union (6th Subsidiarity Conference, Berlin 2013; online at https://portal.cor.europa.eu/subsidiarity/news/Documents/Subsi_Conf_2013/Berlin%20-%20Judicial%20Review%20of%20the%20Principle%20of%20Subsidiarity%20(Dec%202013)%20Draft%20before%20delivery%20REV%20doc.pdf accessed on 5 January 2016)
O’Neill M The Politics of European Integration: A Reader (Routledge 1996)
Nelsen B F and Stubb A C-G The European Union: Readings on the Theory and Practice of European Integration (Lynne Rienner Publishers 1994)
Steiner J and others EU Law (Oxford University Press 2006)
Storey T and Turner C Unlocking EU Law (Hodder Education Ltd 2010)
Ward I A Critical Introduction to European Law (LexisNexis 2003)
Weatherill S EU Law (Oxford University Press 2014)