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Britain in the European Union (TCC)

Britain in the European Union (TCC)

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Published by: manavmelwani on May 12, 2010
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07/21/2010

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Britain in the European UnionThe Community and the Nation State
Horrors of WW2 were felt by many to be due to excessive nationalism and it was felt that thestates within Europe should b e organised so as to reduce the likelihood of further conflict
European Coal and Steel Community (ECSC)
Success led to plans for the European defence community and the European politicalcommunity. There was however much opposition
This led to a less overtly political step, the European Economic Community (EEC); formed in1957 with the Rome treaty
Single European Act 1986
The Treaty on European Union, (the Maastricht Treaty) in 1993 was more far-reaching andintroduced the 3 pillars idea. (with the first being more supranational and the other 2 moreintergovernmental)
Treaty of Amsterdam 1999 blurred the line between decision making in the second and thirdpillars, and that within the first
Treaty of Nice 2000; to deal with the institutional consequences of enlargement
Vienna
The EEC originally established four major institutions (i) The Council of Ministers, (ii)TheCommission, (iii) The Assembly (renamed the European Parliament by Maastricht), and (iv)The Court of Justice
The Legislative and Decision-Making Process
For the first 30 years of the Community’s existence, decision making was dominated by theCouncil and Commission.
The commission has the right of legislative initiative
Maastricht introduced the co-decision procedure and the Amsterdam treaty further strengthened the EP’s position under the co-decision procedure. It also extended its sphere of application, so that much important Community legislation is now subject to the procedure.
The procedure accords the EP, in formal terms, coequal powers in the legislative process withthe Council (note the whole back and forth elaboration on 87)
Though the procedure is complex, it works and serves to accommodate differing institutionalinterests
The bottom line is that an act will not be passed unless both the EP and the Council agree.
The Nature of the Community
Complex, might be worth reading again
The theme which appears repeatedly in papers emanating from the Community is that of institutional balance, rather than separation of powers. This refers to the desirability of preserving a proper balance of power between the Council, as representing the interests of the member states, the EP as representing the people, and the Commission as guardian of the overall aims of the Treaty. While classical ideas of separation of powers are not thereforecentral to the institutional ordering within the EC, another constitutional principle, the Rule of Law is of prime importance. Article 6 of the Treaty of European Union declares that theCommunity is founded on the respect for human rights, democracy, and the Rule of Law.Respect for these principles is made a condition of membership of the European Union.
The United Kingdom Parliament and Legislative Scrutiny
Considering the machinery used to review Community legislation, there is the EuropeanScrutiny committee which goes through large amounts of EU documents such as draftproposals for legislation, and reports on them
 
It recommends a number for further consideration by one of the European standingcommittees
There is also a House of Lords’ Select Committee on the European Union which functionsthrough a number of subject-matter based subcommittees and considers any proposals that itbelieves show be drawn to the attention of the House.
Sovereignty
The Traditional Debate
Sir William Wade “It follows therefore that there is one, and only one, limit to Parliament’slegal power: it cannot detract from its own continuing sovereignty.”
The Judicial Response Prior to Factortame
Idea of PS and implied repeal meant there could be tensions between Uk and EC law. ThePrimacy of EC law over national law was asserted by the ECJ early on. (
Costa v ENEL
)
Prior to
Factortame
there were three differing strands within the UK jurisprudence. (i)traditional doctrine of PS. (ii) (dominant) these sought to blunt the edge of any conflictbetween the two systems by using strong principles of construction, reading UK law,whenever possible, to be compatible with community law. (iii) Here, courts accepted, inprinciple, the idea of purposive construction, but felt unable to read the UK legislation inconformity with the relevant EC norm.
Factortame, EOC, and Thoburn
Note the result in
Factortame
The Dicta of Lord Bridge is particularly relevant. Three aspects of his reasoning should bedistinguished. One was essentially
contractarian:
the UK new when it joined the EC thatpriority should be accorded to EC haw, and it must be taken to have contracted on thoseterms. The second is
functional 
: it was always inherent in a regime such as the Communitythat it could only function adequately if EC law could take precedent in the event of a clashwith domestic legal norms. The third was the existence of the European Communities Act1972, which was said to impose a duty on national courts to override national law in the eventof a clash with directly enforceable Community law.
The impact of 
Factortame
was made clear in the
EOC 
case (
R v Secretary of State for Employment, ex parte Equal Opportunities Commission
) The HL held that the nationallegislation was in breach of EC law.
Factortame
was regarded as authority for the propositionthat it was open to a national court to declare provisions of a primary statute to beincompatible with norms of Community law. The HL also made it clear that this power toreview primary legislation resided in national courts, not just the HL.
In Thoburn, Laws LJ said that the common law had modified the traditional concept of sovereignty in the sense that it had created exceptions to the doctrine of implied repeal.Ordinary statutes were subject to the doctrine of implied repeal but what Laws LJ referred toas ‘constitutional statutes’, which conditioned the legal relationship between citizen and statein some overreaching manner, or which dealt with fundamental constitutional rights, were notsubject to the doctrine of implied repeal. And thus such repeal could only occur if there were‘some express words in the later statute, or by words so specific that the inference of anactual determination to effect the result contended for was irresistible.’ The ECA 1972 wasregarded as just such a constitutional statute.
Supremacy after Factortame, ECO, and Thoburn: The Substantive Impact of the Decisions
In doctrinal terms, these decisions mean that the concept of 
implied repeal 
no longer appliesto clashes concerning Community and national law (subject perhaps to
Thoburn
)
 
If Parliament ever does wish to derogate from its Community obligations then it will have to doso
expressly 
and
unequivocally 
. (and should they, the react of the courts remains to be seen)
The supremacy of EC law over national law
operates in areas where EC law is applicable
.The problem here is who decides when a matter is within the competence of the EC? Also,the ECJ is well known to have often reasoned ‘teleologically’ (reasoned in order to attain theends it believes that the particular Treaty was intended to serve) and expanded theboundaries of Community competence in a manner which caused disquiet within somenational legal systems. The German Federal Constitutional Court held that it will not inevitableaccept Community decisions which it regards as crossing the line between legitimate Treatyinterpretations and
de facto
treaty amendment. (
Brunner 
(94); though more recent decisionsindicate a softening to this approach). The general tenor of the judgment of Laws LJ in
Thoburn
is also inclined to the conclusion that the ultimate competence to decide on thescope of Community Competence resides with the national court. While he does not addressthe point directly his reasoning to the effect that the fundamental legal basis of the UK’srelationship with the EU rests with domestic, not European, law lends support to thatconclusion. This is reinforced by his statement that if the EU were to enact a measurerepugnant to a constitutional right guaranteed by UK law, it would be for the national courts todecide whether the general words of the ECA 1972 were sufficient to give it overriding effectin domestic law.
Supremacy after Factortame, ECO, and Thoburn: The Conceptual Basis of the Decisions
It is possible to rationalize what the courts have done as a species of 
statutory construction
.On this view accommodation between national law and EC law is attained through a rule of construction to the effect that inconsistencies will be resolved in favour of EC law unlessParliament has indicated clearly and unambiguously that it intends to derogate fromCommunity Law. There are a few points about this approach
The doctrine of implied repeal was itself part of the traditional view of PS and in thissense, this approach constitutes a modification of the traditional doctrine even if oneadopts Laws LJ’s view that implied repeal should not generally apply to constitutionalstatutes.
The wording of s2(4) is notoriously difficult to disentangle. The section is framed interms of ‘any enactment passed or to be passed . . . shall be construed and haveeffect’ subject to Community rights. The view word ‘construed’ conveys the sense thatthe later statute must be capable of being read so as to be compatible with EC lawwithout thereby unduly distorting its meaning or rewriting it. This may well not bepossible. It should be remembered that a statute might be seriously at odds with therequirements of EC law, even where parliament has not, through any expresswording, manifested its intention to derogate from the Community norm. It is doubtfulwhether s2(4) was intended to cure all such absences of fit.
Wade contends that incorporating s2(4) into a later statute (e.g. 1988 Act) ‘is merelyanother way of saying taht the Parliament of 1972 has imposed a restriction on theParliament of 1988’ which is what ‘the classical doctrine of sovereignty will notpermit’. Nor can this be countered simply by saying that the later Parliament coulddefeat the exercise of construction by expressly providing that the later statute is toprevail over any conflicting EC law. It is by no means clear that an express provisionof the kind being postulated here would work, given the very reasoning of LordBridge. Such a statutory provision itself would be held to be contrary to EC law by theECJ. This holding would be part of the ‘Community law to which by the Act of 1972the Act of 1988 is held to be subject.’ In order to overcome this argument the later statute would have to contain an express provision that it was to prevail over anyconflicting EC law and also a provision rendering the relevant provisions of the ECA1972 inapplicable to the subject matter covered by the later statute.

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