THE EUROPEAN UNIONOverview

OVERVIEW

We know all about the doctrine of parliamentary sovereignty: Parliament can make or unmake any law, and no authority on Earth can set-aside an Act of Parliament.

Some argue that the EU has changed this. The UK Parliament is no longer sovereign.

Where does the EU come from? What is its history?

What does the EU do? What is the relationship between EU law and

UK law?

SESSION OBJECTIVES

By the end of this session, all learners will:1. Be able to explain how the UK’s

membership of the European Union has changed the face of our constitution.

2. Be able to outline the structure of the EU.

HISTORY

World War II was driven by violent and rampant nationalism.

The historian Niall Ferguson says: “By any measure, the Second World War was the greatest man-made catastrophe of all time.”

It wiped out 1.3% of the world’s population. It destroyed the economies of Europe. Ultimately led to a lack of trust in the

nation state.

DEALING WITH WWII’S AFTERMATH

The United Nations was set-up in 1945 – directly after the war.

Article 2 of the United Nations Charter states: “All Members shall refrain in their international

relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

“All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

DEALING WITH WWII’S AFTERMATH

The International Court of Justice was introduced by the UN Charter.

Its job is to use international law to settle disputes between states.

The aim is to keep states apart. Prevent them from getting at each other’s throats.

DEALING WITH WWII’S AFTERMATH

Churchill was one among many to see what needed to be done in order to stop the human race from destroying itself: “Only with the continuing and growing

cooperation and understanding among our three countries and among all the peace-loving Nations can the highest aspiration of humanity be realized—a secure and lasting peace which will, in the words of the Atlantic Charter, "afford assurance that all the men in all the lands may live out their lives in freedom from fear and want."

DEALING WITH WWII’S AFTERMATH

European Union had the same intentions as the United Nations.

Except that the UN aimed to keep states apart, while the EU aimed to pull them together.

HOW DID IT ALL BEGIN?

By merging specific economic sectors – coal & steel, atomic power, and eventually everything.

If European states rely on each other to prop-up their economies, and they have to work together in their own interests, it is less likely that they will go to war.

France and Germany started it in 1951 with the European Coal and Steel Community. Less competition between states for

natural resources.

HOW DID IT ALL BEGIN?

France and Germany soon joined by the Netherlands, Italy, Luxembourg and Belgium.

This evolved into the European Atomic Energy Community in 1957. Again, if states are forced to share resources

then they won’t fight over them.

EUROPEAN ECONOMIC COMMUNITY

This is the real precursor to the EU. Set up in 1957 to:

1. Establish a common market.2. Promote harmonious economic

development.3. Increase stability and raise the standard of

living.4. Lower tariffs between Member States and

establish a common external tariff.

1. Britain didn’t become a member until 1973.

THE BIG ONE

1992 Maastricht Treaty. Renamed the EEC. It became the European

Union. European citizenship. Free movement of labour. Free movement of goods and services. Environmental protection.

DEVELOPMENT OF THE EU

1997 Treaty of Amsterdam – human rights, sexual equality, anti-discrimination, cooperation in criminal matters.

2000 Nice Treaty

2007 Treaty of Lisbon – EU President, EU foreign affairs minister.

DEVELOPMENT OF THE EU

http://www.youtube.com/watch?v=UNmsz6_EMJM

EU INSTITUTIONS

Executive Legislature Judiciary

Council of Ministers/

Commission

EU ParliamentEuropean Court

Of Justice

SEPARATION OF POWERS

Council of Ministers: Made up of ministers from each Member State. Proposes laws to the,

EU Parliament: Directly elected representatives from all Member States. Passes laws to be applied by the,

European Court of Justice: Made up of judges nominated by each Member State.

EUROPEAN COURT OF JUSTICE

Hears referrals from Member States on questions of EU law.

Has the ultimate authority on issues of European Union law – higher than the UK Supreme Court.

Based in Luxembourg.

WHAT THE EUROPEAN COURT OF JUSTICE IS NOT.

The European Court of Justice is not the European Court of Human Rights.

The Human Rights Convention is NOT a piece of EU law. It comes from the Council of Europe – a totally separate and distinct organisation.

The Human Rights Convention was drafted after WWII, primarily by British Conservative ministers.

WHAT THE EUROPEAN COURT OF JUSTICE IS NOT.

European Union Council of Europe

EU Law ECJ Human RightsConvention

European CourtOf Human Rights

WHAT THE EUROPEAN COURT OF JUSTICE IS NOT.

http://www.youtube.com/watch?v=pQrCZaAxstg

Farage called it the “European Court,” not the “European Court of Human Rights.” Creates confusion.

Farage blamed the EU and said that getting out of the EU was the cure. Leaving the EU will have no effect on our human rights obligations under the Human Rights Convention.

SUPREMACY OF EU LAW

A series of cases, decided by the European Court of Justice, have established that EU law rules over national law.

EU law even rules over national constitutions.

The UK passed the European Communities Act 1972 in order to join the EU. It gives EU treaty laws direct effect in the UK It gives decisions of the ECJ the force of

precedent.

SUPREMACY OF EU LAW

Flaminco Costa v ENEL [1964] By becoming a member of the EU, Member

States have limited their sovereign rights. We can’t have EU law changing depending on

what state you’re in, otherwise what is the point of it?

EU law cannot be overriden by national laws. Member States’ sovereign rights are

permanently limited.

SUPREMACY OF EU LAW

Internationale Handelsgesellschaft [1970] Applicant argued that if EU law clashes with a

national constitution, the constitution should win. The ECJ ruled against him.

“The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure.”

SUPREMACY OF EU LAW

Simmenthal [1978] ECJ said that EU law prevents Member States

from effectively passing legislation that is contrary to EU law.

SUPREMACY OF EU LAW – UK APPROACH

Factortame (no. 1) Concerned the Merchant Shipping Act 1988. Fishing vessels could only register to fish UK

waters if 75% of shareholders and directors were British.

The House of Lords asked the ECJ for advice. ECJ held that this violated EU law. The House of Lords therefore refused to apply

the Merchant Shipping Act 1988.

Clear example of another institution setting aside a law passed by Parliament and eroding its sovereignty?

CONSEQUENCES OF FACTORTAME

Lord Bridge in Factortame didn’t think it was such a big deal in terms of Parliamentary sovereignty.

Parliament had chosen to sign-up to the EU, had chosen to make its laws effective in the UK, and it was up to Parliament to leave if it no longer liked it.

Ultimate authority still rests with Parliament.

CONSEQUENCES OF FACTORTAME

In Macarthy’s Ltd v Smith Lord Denning said: “If the time should come when our Parliament

deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then . . . it would be the duty of our courts to follow the statute of our Parliament.”

Also read Thoburn v Sunderland City Council where the same thing was said.

HAVE WE LOST OUR SOVEREIGNTY TO THE EU?

YES: European Union law is capable of setting-aside

an Act of Parliament. According to the European Court of Justice,

Parliament cannot pass an Act in violation of EU law. It has permanently limited its sovereignty.

NO: All Parliament has to do if it wants to violate EU

law is say so in express terms. Ultimate power still rests with Parliament.

It can still make or unmake any law, and nobody can set it aside as long as they say so.

SUMMARY

The European Union emerged from the ashes of World War II. It aimed to bring states together to prevent further war.

It is a common market which is supposed to work to everybody’s benefit.

European Union law takes precedence over UK law.

The question whether the UK has lost its sovereignty is up for debate.