European Law

in:

Robert Hosking looks at how European Union law works and at whose interests it serves.

Since the signing of the Maastricht Treaty in 1992, the structure of the European Union is often described as an edifice resting upon three pillars. The first is the European Communities, a legal entity concerned with economic integration and the Common Market. The second is the Common Foreign and Security Policy (CFSP), an institution concerned predominately with the arms industry and the third pillar is co-operation in Justice and Home Affairs (JHA).

Agreements made under the second and third pillar are binding on all member states but only agreements made under the first pillar constitute Community law. Laws executed by the European Communities are taken by judiciary institutions at the European level which have been given specific powers by the member states’ elite. This feature means that the “European Communities” is something more than just another EU intergovernmental organisation.

For Community law to have effect it must be the same for all member states.  Moreover, the power to interpret and adjudicate this law rests in a single, extremely secretive and non-democratic body. The legal institutions that interpret Community law are the European Court of Justice (ECJ) and the Court of First Instance (CFI), established in 1989 to reduce the burden on the ECJ.

There is one judge from each member state in both the ECJ and the CFI.  These judges are ‘elected’ by the EU’s elite class of governors. Their deliberations are held in secret and without any dissenting opinions published, only one judgement being declared. This means that judges should be protected from any allegations of succumbing to ‘national pressure’ or accusations of not defending ‘national interests’. The ECJ is served by Advocates General who provide a summary of each new case before it goes to Court. These summaries are not binding but are considered carefully by the judges and do offer an indication of the ECJ’s final judgement.

For European law to have the same effect on all member states, it is necessary for the ECJ to be able to overturn national law in the event of conflict. Nevertheless, ultimate authority in the European Courts is based upon the consent of the member states’ elite. It is the European Commission, whose members are directly appointed by the member states’ governments, and the European Council (made up of the heads of government), which are the legislative, law-making authorities of the EU. It follows that all laws and policies pursued in the European Communities will be very much concerned with ‘national interests’ and not those of either a federal organisation or the general population of Europe.

Although the CFSP and JHA remain strictly intergovernmental organisations, their policies falling outside the ECJ’s jurisdiction, the Treaty of Amsterdam (1997) has moved several JHA policies into the Communities pillar, a phenomenon known as “Communitisation”. Co-operation in the Schengen Agreement (border control) and matters of civil law are now under the jurisdiction of the ECJ. The rationale for much of this movement is economic integration, that is, dealing with the consequences of the ruthless neo-liberalism required by the Common Market and the World Trade Organisation.

The EU is an international organisation and international treaties signed by nation-states must be applied to their respective legal systems if they are to have any effect. Any country that joins the EU is obliged to make Community law valid within its own jurisdiction. The most important features of this relationship between national law and Community law are the doctrines of direct effect, supremacy and the principle of preliminary reference.

If a case is brought to the national courts and requires an interpretation of Community law, the Treaty of Rome (1957) obliges the national court to make a preliminary reference to the ECJ. Although the ECJ’s interpretation is not binding it can be argued that because of the granting of this authority, the European Court was also able to establish the doctrines of direct effect and supremacy of Community law.

The Van Gend case in 1963, was the first ECJ ruling of direct effect and once this principle was accepted it meant that Community law was directly effective, that is, it prevailed over national law. This factor could have led to confrontation, but with the Costa case a year later, the ECJ ruled that in the event of conflict Community law was supreme. Thus, much national law is now invalid, whilst the principles of direct effect and supremacy, rather than being two single legal entities, cannot be separated (Wincott, p86).

The doctrines of direct effect and supremacy demonstrate that the ECJ has taken partial control of  the member countries’ national law. Furthermore, these legal concerns have been entrusted to a non-elected European elite. Many commentators will argue that the national veto allows member states ultimate control over the EU’s institutions. Nevertheless, it must be recognised that the veto also limits this control, because any fundamental changes in the EU require the unanimous decision of all member states. In this light, the real ‘irony’ is not that due to the veto the European Court is allowed considerable autonomy, but that with the system of Majority Voting in the European Commission and Qualified Majority Voting (QMV) in the Council of Ministers, laws are “imposed on people against their express wishes and over the heads of their elected representatives” (McGiffen, p57).

Sovereignty is essentially a legal concept. It is the right of a country to make and enforce its own laws. The ultimate justification of this right in a democratic state is from the people themselves. The EU “not only demonstrates a limited concept of democracy” (Ibid., p56) but also lacks the coercive powers needed if its decrees are to be obeyed. Just as Community law would be ineffective if Union-wide rules were not applied, they are useless if not enforced. Community law can only be directly effective and supreme because a European elite class has agreed to this. Moreover, the members of this elite have accepted the jurisdiction of a secretive authority, far removed from the threat of public interference, because they continue to recognise their own ultimate authority (Bromley, p77).

  Underlying the idea of compliance within the EU is that of self-interest. Economic rulings are accepted by a European elite because these rulings are profitable. If a particular ruling is advantageous to one member, then, by reciprocation, other rulings will be advantageous to themselves. If it were not like this the system of European law would not function.

The European Communities deal predominantly with matters of the Common Market. For this reason the Union requires a common set of rules and policies. Hence, Community law. Economic policy and social regulation is articulated by those who control the EU’s economic and political institutions, have been delegated to do so, or those who have meaningful influence on these institutions, such as powerful lobby groups or multinationals. Much of this authority is derived from non-elected concentrations of private power and not from the European population’s consent. One can expect to read in newspapers and social studies the disputes existing between the EU’s oligarchy, but one must not expect these disputes to infringe upon their interests in any profound manner.

Robert Hosking is a teacher and freelance writer.

References

Bainbridge, T. (2002) The Penguin Companion To European Union, Third Edition, London, Penguin Books.

Bromley, S. (2001) Introduction: Governance And The European Union, London, Sage Publications, Open University.

Bromley, S. (2001) The Nation State In The European Union, London, Sage Publications, Open University.

Hartley, T. C. (1994) The Foundations Of European Community Law, Third Edition, Oxford, Oxford University Press.

Heffernan, R. (2001) Building The European Union, London, Sage Publications, Open University.

McGiffen, S. P. (2002) Globalisation, The Pocket Essential, Herts, Pocket Essential.

Wincott, D. (2001) Law, Order And Administration In The European Union, London, Sage Publications, Open University.