Unlocking EU Law

Tony Storey, Alexandra Pimor

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351332729
• Edition: 5
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

European Law is a core element of every law degree in England and Wales. Unlocking EU Law will ensure you grasp the main concepts with ease, providing you with an essential foundation for further study or practice. The fifth edition is fully up-to-date with the latest developments, including:

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• a new chapter on state liability;

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• all major new cases;

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• discussion of the possible impacts of Brexit.

This book is essential reading for students studying EU Law on undergraduate courses in the UK.

The UNLOCKING THE LAW series is designed specifically to make the law accessible. Features include:

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• aims and objectives at the start of each chapter;

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• charts of key facts to consolidate your knowledge;

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• diagrams to aid learning;

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• summaries to help check your understanding of each chapter;

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• problem questions with guidance on answering;

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• a glossary of legal terminology.

The series covers all the core subjects required by the Bar Council and the Law Society for entry onto professional qualifications, as well as popular option units.

1

The historic origins and character of the EU legal order

AIMS AND OBJECTIVES

After reading this chapter you should be able to:

■ Understand the reasons for the development of a single Europe

■ Understand the background to the Treaties and the idea of the Community

■ Understand the main aims and objectives of the Treaties

■ Understand the concept of supranationalism

■ Understand how the Treaties have developed through subsequent Treaties

■ Understand the principles and consequences of enlargement of territory and scope

■ Understand the significance of the EU Constitution and the Reform Treaty

■ Analyse the development of the EU

■ Analyse the consequences of enlargement

1.1 The origins of and background to the Treaties

1.1.1 The background to the idea of a single Europe

One problem that appears to confront students of EU law is an apparent assumption in the United Kingdom that Europe is something foreign, that it refers to a place and to people across the English Channel that have nothing to do with the United Kingdom. This is, of course, not the truth, since the United Kingdom has been a member of the European Community (now called the European Union – the use of the term Community/Community law tends to historically refer to the pre-2009 version of the Union) since signing the Treaties and ratifying membership in the European Communities Act 1972. The United Kingdom has been a member of the European Community since 1 January 1973. It has remained so after a majority vote for membership in a popular referendum in 1975 in which there was freedom for MPs of whatever party to support the campaign to deliver a ‘yes’ or a ‘no’ vote according to the way that their consciences and their commitment led them. Nevertheless, Euro-scepticism is not uncommon within the country and it would not be unreasonable to suggest that this, in part at least, follows the encouragement of certain elements of the media. This Euro-scepticism seems to be founded in two critical misconceptions about the nature and the role of the Community (now the Union since the Treaty on European Union signed at Maastricht in 1992):

■ That the idea of European unity is a new and modern political concept – in fact it is anything but. The idea is certainly as old as Europe itself and has been put into place before but in different political form.

■ That the Community was based mainly on co-operation between the Member States that may or may not be followed. Again, this is not the truth. The Community legal order was:

based on the objectives of the Treaties that have been agreed by all Member States, and it works towards the achievement of the single dominant purpose of the Community: the full economic integration of the Member States towards a truly united Europe.

In fact, it is unusually appropriate that the Treaty responsible for creating and framing the concept of the Community should be referred to commonly as the Treaty of Rome (this is, of course, the second Treaty of Rome, the first being the EURATOM Treaty). It is appropriate because it is possible to see the Roman Empire as the first real attempt to unify Europe. Of course, in this case it was by a colonial power and through military dictatorship. Nevertheless, the whole purpose of the empire was economic, increasing availability of resources and markets and control of trade.

Following the Romans, it is possible to identify a number of situations demonstrating the same aspiration of a united Europe:

■ The original view of Christendom expounded by the Roman Catholic Church, or more precisely of the Papacy that led it, was very much a European ideal, and everything outside Europe was considered to be barbarian.

■ Charlemagne moulded and reigned over the so-called ‘Holy Roman Empire’ which covered much of modern Europe. This was obviously a political empire and it soon fell apart after his death as it passed to his sons, becoming the principalities that form the basis of many of the modern nation states.

■ Henry IV of France also tried very hard to create a Christian Commonwealth of Europe.

■ In the nineteenth century, Napoleon Bonaparte declared a stated ambition and policy for a European empire.

■ In the twentieth century, Hitler’s expansionist philosophy was also aimed at a Reich that would control most of Europe.

■ Even besides the above, there have been numerous philosophers, including Kant, Rousseau, Marx and Neitzsche, who have all presented a united Europe as an ideal, and this despite them representing the widest spectrum of political philosophy, from Fascism to Communism.

There has always been, in the widest sense, a European identity and the desire for European unity; and historically, the so-called ‘Euro-sceptics’ were in a minority. However, Euro-scepticism has been on the rise across Europe, and whilst it had a particular foothold in the United Kingdom which previously was seen as marginal, the referendum on the membership of the UK in the EU on 26 June 2016 revealed a deeper rooted sense of disenfranchisement from the European project.

The ‘Euro-sceptics’ have always shown hostility towards the concept of a federal Europe, despite the fact that in its foundations the Community looked towards an eventual political unity as well as an economic unity. The British hostility towards federalism is even stranger since the idea of a federal Europe originated in Britain. It was suggested by Winston Churchill (who was Prime Minister during the war years) before the Second World War and supported then because of the fear of a fascist Germany. In fact, Jean Monnet, who is accepted as being the ‘intellectual father’ of the concept of European Union (EU), himself credited the origins of the ideal to the British. Yet today, the UK is set to exit the EU under the Article 50 TEU procedure, which was introduced by the Treaty of Lisbon and is being used for the very first time. This is a historic phenomenon which is deemed to change not only the nature of the relationship between the UK and the EU, but will also have repercussions for the development of the EU as a polity and for the UK as a non-EU country.

A further point worth making when considering the origins of the concept is that whatever philosophy has ever been put forward for EU has always included incorporation of a binding legal order as well as any economic, social or political union.

1.1.2 The origins of the Union as a Community

It must be remembered that the idea of European unity is based on a very noble and worthwhile principle: the avoidance of war in Europe. War between various nation states, most notably France and Germany, had been an almost constant feature for several centuries before the absolute devastation in the two ‘World Wars’ of the twentieth century.

The late nineteenth and early twentieth centuries saw various attempts at European integration of different types with this object in mind. The French ‘Briand Plan’ of 1929–30 is a classic example.

Nevertheless, economic and political imperatives conspired to create even more disruptive conflicts. As a result, following the Second World War there was an even stronger recognition of the need to avoid future conflicts. Certain other key points were also recognised in the immediate post-war period:

■ that the Treaty of Versailles, while devised to prevent German hostility, had actually been a total failure and had led in part to the rise of Nazi Germany;

■ that the only successful means of preventing war in Europe was not to repress the German state but to tie Germany into a European partnership.

Churchill (Prime Minister during the war) in fact encouraged the idea of a form of European unity. In a speech in Zurich in 1946, shortly after the close of the war, Churchill (by then Leader of the Opposition) suggested:

We must build a kind of United States of Europe. In this way only will hundreds of millions of toilers be able to regain the simple joys and hopes which make life worth living…. The structure of the United States of Europe, if well and truly built, will be such as to make the material strength of a single state less important.

I Ward, A Critical Introduction to European Law (Butterworths, 1996), pp. 6–7

It is worth noting that Churchill was not so much concerned with all nations losing power as he was with Germany losing power.

A European Union of Federalists was then established in 1946. Its supporters on the Continent argued that the way forward was the creation of ‘supranational’ bodies. In the Montreux Resolution of 1947 the group suggested:

QUOTATION

‘unification in Western Europe means escaping the risk of power politics. Federalists must declare without compromise that it is absolute sovereignty that must be abated … a part of that sovereignty must be entrusted to a federal authority.’

A variety of intergovernmental conferences quickly followed at which agreements were reached to set up new organisations on either a global or merely a European scale. These organisations included:

■ the International Monetary Fund (IMF);

■ the General Agreement on Tariffs and Trade (GATT);

■ the Organisation for European Economic Co-operation (OEEC) (this in effect was the creation of the United States through the ‘Marshall Plan’ of 1947 – the idea being to create an organisation that would administer the financial aid that was needed to repair the damage done to Europe during the Second World War);

■ the Council of Europe (this was a most significant development for its creation of a European Convention on Human Rights and a European Court of Human Rights);

■ the BENELUX Union (a union between the countries of Belgium, the Netherlands and Luxembourg – still among the smallest nations in the EU – significantl...