The Unbearable Lightness of Being

THE UNBEARABLE LIGHTNESS OF BEING ... EUROPEAN

“Confound their politics, frustrate their knavish tricks ... oh, save us all !”

1.  What Future for Europe?

1.1  As the Eurozone lurches into ever deeper gloom, with the prospect of the whole venture being wrecked on the Scylla and Charybdis of Greek sovereign bankruptcy and the refusal of China to buy up Italian debt, it might be thought that producing a book on EU Law for UK Lawyers is as useful as handing over a navigation manual for the captain of The Titanic after she has already been holed below the waterline.

1.2  But in fact of course, no matter the future of the Euro, the EU project as a whole is not going to founder on the rock of the single currency. Already indeed voices are raised for the Euro-crisis to be addressed by ever deeper fiscal union and strict budgetary control, at an EU level, of the economies of the Euro-zone. A power of oversight and control at an EU level over the manner in which money is raised and spent at a national level is said to be necessary to ensure the survival of the Euro. As the self-designated “Council for the Future of Europe” [1] has put it in a recent press release:

“It has become clear that a monetary union without some form of fiscal federalism and coordinated economic policy will not work. Nation states will need to share certain dimensions of sovereignty to a central European entity that would have the capacity to source revenue at the federal level in order to provide European-wide public goods.

Furthermore, a common European debt facility, Eurobonds, should be developed. Eurobonds need effective control mechanisms to avoid systematically large fiscal deficits. The existing stability and growth pact has proven insufficient.

To ensure fiscal discipline that protects the public from irresponsible policies on the part of any government, the Eurozone requires an effective and enforceable control system. While standards must be strict the diversity of conditions across the Eurozone requires flexibility in how those standards are met.”

1.3  Conscious, perhaps, of the somewhat de haut en bas tone of these proposals – which seems to urge that the power to decide on how to spend any public money raised, should be wrested from the incompetent hands of (some) Member States government, and vested in the competent grasp of the Euro-technocrat – the press release also states:

“There is no greater task for forward-looking European leadership than honestly engaging the doubts and anxieties of European citizens who feel disconnected and alienated from the abstract processes in Brussels. The vision of Europe that will succeed is that which inspires the commitment of its citizens whose faith in a European future is shaken.”

1.4  The book EU law for UK Lawyers looks primarily at the way in which the law has been used at a European level to engage and bind individuals rather than institutions into the European project. This process of engaging individuals has done, primarily, through the medium of the creation at the level of EU law of individual rights. And rights once created, become matters that can be litigated over. This book then, charts the progress of almost 50 years of litigation since the Court of Justice of the European Union first proclaimed in Van Gend en Loos that:

“[T]he Community constitutes a new legal order of international law for the benefit of which States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals, but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon Member States and upon the institutions of the Community.” [2]

1.5  Those EU law rights, and that body of case law and principle, will not disappear but will remain of, ever increasing relevance to everyday law and practice even if the Euro-project may crash and burn. This is because the strategy of rights creation at the EU level is seen to be the primary for the EU to bridge the gap and encourage a “broad and deep engagement of the public” so that its accrue legitimacy from below, as an expression of the popular will, rather than, as it is more often seen and experienced as, a process of de-democratisation imposed from above by globalising forces ultimately beyond the control of the nation State.

1.6  It is of course difficult to talk (or write) about the EU in a UK context, because it is usually assumed that one must be taking a stance: pro or anti, Europhile or Eurosceptic. If anything I have some sympathy for those who might tend toward a more Eurosceptic outlook but the problem with so much of the discourse over the EU is that it expresses a fear, marked by ignorance and confusion. I would prefer that any fear expressed of the European project should be marked by knowledge and clarity and that, indeed, is also one of the purposes of the book EU law for UK Lawyers.

2.  The paradox of the UK in the EU

Our Eurosceptic politics

2.1  The central paradox when it comes to any discussions of matters concerning EU law within a UK context is that in the UK we have a political culture whose default position is singularly Eurosceptical. There is simply no space in the public square in Britain for those who would, from expressed motives of idealism, openly put forward an express case for the greater political integration of the UK within the EU. Instead the public debate is by talk of not compromising the sovereignty of Parliament (and implicitly of the nation); of not giving up the “British” veto in Europe (barely registering of course that if the UK has the same veto in any matter then so does every one of the other 27 Member States (however small (Malta, Luxembourg, Estonia) or large (Germany); of saving the pound sterling.

2.2  And even such pro-EU sentiment that is given quiet voice to in political circles in the UK is expressed in the language of pragmatism: if we accept this measure or Treaty amendment then Britain influence will be stronger and so the interests of the nation better preserved in a globalized world, and who can gainsay that ? Supporting European integration is thus presented by those who favour it not a matter of idealistic internationalist solidarity but of more or less enlightened national self-interest.

The UK’s permeable legal culture

2.3  The language of UK (constitutional) lawyers and judges, is however, quite different when it comes to matters of EU law. The United Kingdom has no one written document that can be pointed to as its Constitution (although following the analysis of Law LJ in the “Metric Martyrs” case of Thoburn v. Sunderland Council [3] there may be a number of instruments which can with hindsight properly be termed “constitutional statutes”).

2.4  But there are no specific national norms which might be appealed to by national courts to challenge the influence of EU law. In the UK one might expect a conflict to arise at a constitutional level when and if the national courts are required to apply EU law over and against provisions of national law in accordance with the long-established EU law principle of the primacy of EU law. [4] Such a conflict between EU and primary statute would appear to bring into question the cornerstone principle of the United Kingdom constitution, namely the sovereignty of Parliament.

2.5  However there has in fact been little evidence of actual resistance (as opposed to simple ignorance) on the part of national courts to the claims of EU law. One might go further than this and note that, from the 1980s onward, the House of Lords, as United Kingdom’s highest court in civil matters, been almost enthusiastically communautaire in its willingness to apply EU law principles and doctrines to national issues.

2.6  The approach generally taken is that, given that Parliament has committed the United Kingdom to continued full membership of the European Union,[5] the national courts in the United Kingdom have no option but to apply the law as developed by the Court of Justice of the European Union (“CJEU”), even where this leads to them challenging and striking down legislation emanating from the national Parliament on the grounds of its incompatibility with EU law or legal principles. EU law may be seen as a measure which indeed empowers UK judges, allowing them to exercise the function of the judicial review of primary legislation which is otherwise formally denied to them as a matter of EU law.

2.7  Thus, with no codified written constitution, the UK remains completely legally permeable, as a matter of UK constitutional law and practice, to the decisions of the CJEU – producing the paradox that what is, perhaps, the polity which is the least enthusiastically communautaire as a matter of national politics and sentiment, has national legal systems which are among the most integrated into the transnational federal legal structure that the CJEU has over the years created out of the European Treaties.[6]

Germany and the EU

2.8  The contrast with, say German political discourse could not be greater. German politicians dare not openly use the language of nationalism and of protection (and projection) of national interest by some instrumental and opportunistic use of powers granted under and in terms of the EU Treaties. Instead the common discourse of German politics with regard to Europe is couched in idealistic terms, of the EU providing an opportunity for Germany to promote peace good governance and prosperity for all within the Union and, perhaps, implicitly for the German State (and even for German identity) ultimately to wither away in the context of a newly re-discovered common European heritage. But that is certainly not how German (constitutional) lawyers and judge would view or express their ideal of the proper relationship between German constitutional law and EU law.

2.9  As we have seen, the Court of Justice of the European Union stated in 1964 in Costa v ENEL[7] that membership of the EU entailed a permanent limitation of the sovereign rights of the Member States, to the extent that national laws passed after entry into the EU could not be given effect to if and in so far as they were contrary to EU law. Member States were consequently said to have a duty under EU law to repeal national laws which were found to be contrary to EU law.[8] Where this has not been done, the Court of Justice has repeatedly stressed that it is the duty of national courts to give precedence to EU law in situations of conflict with national law,[9] by 'disapplying' in the particular case the national rule – even one which post-dates the relevant EU law provision.[10] This duty of 'disapplication' to give primacy to incompatible EU law provisions applies even to fundamental national constitutional norms[11] for, as the Court of Justice stated in Internationale Handelsgesellschaft GmbH:

[T]he 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 the national constitutional structure.[12]

2.10  By contrast, Paul Kirchhoff, former Justice of the German Constitutional Court, has written extra-judicially:

If … Community law were to seek to abridge the fundamental rights protection deemed immutable by [the German Constitution] the Grundgesetz, [German] constitutional law would then have the mandate and the power to reject this imposition as not being legally binding.[13]

2.11  And in its 1993 judgment on the Maastricht Treaty the German Constitutional Court reaffirmed (German) national sovereignty in unequivocal terms, stating:

The Federal Republic of Germany, therefore, even after the Union Treaty comes into force, will remain a member of an association of States (Staatenbund), the common authority of which is derived from the Member States and can only have binding effects within the German sovereign sphere by virtue of the German instruction that its law be applied.[14]

2.12  Similarly, in its later decision on the constitutionality of the Lisbon Treaty, the German Constitutional Court observed that the EU is to be regarded as:

“a close long-term association of states which remain sovereign, a treaty-based association which exercises public authority, but whose fundamental order is subject to the decision-making power of the Member States and in which the peoples, i.e. the citizens, of the Member States, remain the subjects of democratic legitimation.

….

The Grundgesetz does not authorise the German state bodies to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz).[15]

2.13  And the German Constitutional Court has subsequently confirmed that it retains a constitutional jurisdiction to review the vires of acts of the EU institutions (including decisions of the CJEU) as regards their compatibility with the German constitution,

“if a breach of competence on the part of the European bodies is sufficiently qualified. This is contingent on the act of the authority of the European Union being manifestly in breach of competence, and the impugned act leading to a structurally significant shift to the detriment of the Member State in the structure of the competences