The European Union: Legally Complex to Match a Politically Complex Landscape

About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course. 

It has been a difficult week for the European Union.

Switzerland has voted in a referendum to restrict its immigration laws, which may lead to the end of its free movement agreement with the EU; the situation in Ukraine continues to be delicate as Russia accuses the EU of trying to create a ‘sphere of influence’ on the Russian border; European Commission President Barroso has been criticised for saying that it would be ‘difficult’ for an independent Scotland to join the EU; and the German Constitutional Court has referred a question on the legality of the European bailout system to the European Court of Justice with a thinly veiled threat of finding the provisions to be illegal if the ECJ does not agree with a particular interpretation of them. Even for a union which is already in economic crisis and with its fair share of critics, this cannot be the best of times. However, whilst these issues are exercising politicians, many are also inherently legal, as are equally many debates which rage about the EU and its relationship with its Member States. A consideration of the legal framework of the EU, both in terms of aims and its limitations, will show that it has been crafted specifically to suit its unique political nature as an international organisation that is almost – but, crucially, not – supranational in nature. There is no federal state of Europe, and nor will there be without the unanimous political will of the Member States. Our current set-up is as legally complex as it is politically difficult, which only serves to create legal barriers to further integration as well as political ones.
This is necessarily an overview and a simplification of the EU institutional framework, history and policy aims. There is some further reading at the bottom if you would like to understand this area in more depth.

The EU as an international organisation 

The European Union has more control over the day-to day lives of its citizens than any comparable organisation. Its powers extend further than many other bodies, its laws and principles can have effect in national legal systems without any action by national legislatures and it has both political strength and the ability to impose sanctions on Member States for non-compliance with EU law or its court’s rulings. Rarely do we hear complaints about the UN having too much power or involving itself in areas that ought to be left to nation states; and many people have never heard of the International Labour Organisation despite its indirect influence on labour policy worldwide. The EU therefore stands in the unique position of being an international organisation with powers which are almost like those of a federal state in a federation, like the USA. However, there are some marked limitations on these powers and Member States with strong individual identities to govern, rather than provinces which still share a national identity and (to some extent at least) culture.
The reasons for this are discussed below, but it is worth noting the effects: that despite the EU’s peculiar powers such as the ability of some of its norms to have ‘direct effect’ straight into a Member State’s legal system as decided in Van Gend en Loos (1), the organisation is still one rooted in international law. Legislation must go through the democratically elected European Parliament, admittedly, but it must also go through the Council, which is a body made of the leaders of the Member States and depends on 2/3 or unanimous voting, depending on the subject of the measure. Legislation is usually written by the EU bureaucracy, the Commission, rather than being put forward by a leading political party or bloc. To this extent the EU looks more like an international organisation; its measures are not intended to be party-political and require the consent of State representatives, not just direct representatives of the people. This 2/3 voting requirement is to ensure that there is not a standstill of EU activity because with 28 Member States there is usually one that has a problem with a piece of legislation, but it still ensures a high threshold of support from the Member States is achieved before passing an act.
Perhaps most crucially, this delicate institutional balance which combines elements of a federal law-making institution (the Parliament), and the bureaucracy and nation-state consensus of an international organisation (the Commission and Council), can only be altered by unanimous Treaty amendment. The last such set of reforms came in 2010 with the Lisbon Treaty, after an attempt to create a Constitution for Europe failed due to lack of political support. Without another wide-ranging Treaty review, now requiring the support of 28 Member States, the European Union could not extend its competences to create the ‘federal state’ that seems to be such a concern. As long as the EU is created by Treaty between High Contracting Parties (nation states), it technically exists only due to their agreement and cannot declare itself to be a federal state. This does somewhat simplify the matter; there has been a lot of concern about the way in which the European Court of Justice has liberally interpreted the listed competences of the EU and permitted legislation to go beyond what perhaps would be the normal reading of what the EU can do. However, it is one thing to have what Weatherill calls ‘competence creep’ (2) and another to sneak a federal state upon the peoples of Europe. That great leap into the unknown could only be done explicitly and with the consent of all Member States.

A legal framework which fits the political landscape

The European Union has, aside from its relatively recent human rights focus, four Fundamental Freedoms that are principles central to its legal order: the freedom of goods, services, capital and people. This is intended to open up Europe to make a Single Market, within which companies and individuals can move and provide services without any more difficulty than moving to another part of their own country. Member States maintain control over many areas of governance which are central to national identity, there is no ‘European passport’ and each Member State maintains its own flag and identity on the national stage. Politically we still vote for national parties in European elections rather than pan-European parties having developed. What happens here is a sort of recognition of difference without different treatment. Joseph Weiler calls this Europe’s Sonderweg, special way- that Europe is about tolerance of difference rather than trying to make everyone the same (3). In that way we do not need, or even want, a federal body.
This ‘clubbing together’ is beneficial on a number of levels. Firstly, the single market opens up opportunities for trade and movement, which is aimed to end inefficient national monopolies by letting as-efficient foreign firms compete on a level playing field. This week’s report on the Single Market from the government (4) acknowledges the importance of the Single Market for UK business; particularly significant is Easyjet’s assertion that without the EU it would not exist.
Internationally, a larger EU has more power than individual countries. The regulation of the EU Carbon Market has helped EU countries to push ahead on meeting their Kyoto agreements in a co-ordinated way. And together the EU countries can make a much stronger point with a co-ordinated foreign policy than individually. This is aimed at improving situations in other countries by threatening not to trade with countries that breach EU requirements for trading partners. Bilateral trade is also easier with a single trading policy and set of requirements. In a world with such large countries as China, India and the US, individual European countries would struggle to compete or to make their voices heard diplomatically – much as some Member States like to think that their imperial past means that they have maintained their superpower status. This is a way around that problem, by presenting a united front and a single set of trading arrangements.

Most significant in the earlier days of the EU but of no less importance nowadays is the fact that the European project was intended to create ties between the countries of Europe in order to ensure peace. Initially it began as the European Coal and Steel Community, to regulate French and German production so that another war was unthinkable because the countries depended upon one another. There may be debates as to whether integration has gone too far, but the sheer fact that the project has extended so far geographically and in terms of substance covered is a testament to its success. We have had almost seventy years of peace in Europe and it would be almost unthinkable now to declare war within the bloc – too many companies trade across Europe, too many citizens live in another Member State, and whatever the British view might be too many citizens on the continent see themselves as European as well as being a citizen of their nation state. As part of the project to ensure that Member States cannot infringe on citizens’ liberties, which again came out of the World Wars, we also have membership of the Council of Europe – the body which created the European Convention on Human Rights – as a requirement of EU membership. As Lord Neuberger noted in a recent speech, the idea of another organisation overturning Acts of Parliament is alien to the constitutional order (5). It is however seen as a fair trade-off to those countries that have seen occupation and totalitarian governments more recently than the last invasion of England in 1066; unfettered government is not seen as necessary or always positive. The EU’s human rights jurisprudence, Convention on Fundamental Rights and upcoming membership of the Council of Europe both ensure that the EU will not breach human rights in carrying out its own activities and emphasise that the European project curbs the excesses of government by majority rule.

Constitutional niceties 

Despite this rosy picture of a progressive international organisation, there are concerns that the EU oversteps the mark and there is at times tension between Member States and the EU, or more specifically the national (constitutional) courts and European Court of Justice. In the famous judgment of Van Gend en Loos the ECJ declared that in creating the EEC (as it then was) the Member States had created a ‘new legal order’ and limited their sovereign powers. This does not accord with some Member States’ view of their relationship with EU law. The UK, for example, follows EU law because the European Communities Act 1972 sets out that the UK will follow European law and implement legislation as necessary to conform to its obligations. In Germany, obligations to the EU are rooted in the national constitution. This technically leaves the power to leave the EU, or to set limits on its powers, to Germany and the UK Parliament by constitutional amendment or statutory change respectively. The German Constitutional Court has famously said that it reserves the right to assess the constitutionality of EU legislation; something which the ECJ says only it has the power to do. The current OMT case that challenges the EU bailout system highlights the tension here but also the way in which a delicate balance is kept. The German Constitutional Court has referred its first ever question on the interpretation of EU law to the ECJ under what is called the preliminary reference procedure, whereby national courts ask for guidance on the interpretation of EU law before applying the law to the facts in the case. The German court questions the legality of the OMT next to its own constitution (which will ‘trump’ any incompatible EU law) but has asked the ECJ to offer its own interpretation of the law to check if there is a way to find the system lawful. In previous cases the German court has made it clear that it would find an EU instrument unlawful if necessary, but has never done so. On this crucial issue, one with huge implications for the European bailout scheme, the Court is coming as close to annulling an EU instrument as it ever has. And yet it is still giving the ECJ an opportunity to explain itself and find a solution. There will hopefully therefore be another avoidance of the question as to who has ultimate control over whether a piece of European legislation is illegal or not (6). And it is this game which demonstrates most clearly how the legal framework of the EU reflects its politically unique situation.
The EU is an organisation through which Member States lose some of their sovereign powers in exchange for economic benefits, continuing stability in Europe, a bigger presence on the international stage and more besides. And yet rather than dictating that it has become a federal state, the EU claims supremacy over national laws at times but also leaves space for national courts to claim that the EU’s powers are only rooted in the consent of the Member States. This is a complex relationship and inevitably leads to political clashes, but the fact that this strange compromise works at all is a miracle in itself. It is a union of peoples for pragmatic and political reasons, but does not demand that all citizens of Member States feel they are part of one new country. We are not one people; we maintain our national and cultural identities. And to change this is far more difficult than some would have us believe, because the legal framework of the EU is as entrenched as the political differences that dictated it.

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References

(1)  Case 26/62 van Gend en Loos [1963] ECR 1 – Court of Justice
(2)  Yearbook of European Law (2004) 23(1) 1
(3)  Joseph Weiler, ‘Federalism without Constitutionalism: Europe’s Sonderweg’ in Nicolaidis and Howse (eds) The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP: 2001)
(4)  HM Government. (2009) Review of the Balance of Competences between the United Kingdom and the European Union The Single Market [Online]. Available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/227069/2901084_SingleMarket_acc.pdf (accessed 17/02/2014)
(5)  Neuberger (2014) The British and Europe, Cambridge Freshfields Annual Law Lecture. Available at https://www.supremecourt.uk/docs/speech-140212.pdf(accessed 17/02/2014)
(6)  This way in which the various national and European Courts argue that they have ultimate sovereignty is known as pluralism. Reading on pluralism is in the section below.

Further Reading

The framework of the European legal structure is set out in the:
Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C93/47
Consolidated Version of the Treaty on European Union [2010] OJ C83/13
To know more about the EU’s history and institutional balance, see:
Craig and de Búrca, The Evolution of EU Law, [2011] (2nd edition)
For some reading on pluralism, try these below. They are academic texts so do not be concerned if they are difficult to read!
N. MacCormick, Questioning Sovereignty: Law State and Nation in the European Commonwealth (Oxford University Press, 1999)
Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty,” 11 European Law Journal  262 (2005)
Neil Walker, ‘Late Sovereignty in the European Union’ in Walker (ed.), Sovereignty in Transition (Hart, 2003)
Miguel Poiares Maduro, ‘Contrapunctual Law: Europe’s Constitutional Pluralism in Action’ in Walker (ed.), Sovereignty in Transition (Hart, 2003)
Image credits: banner; UN; war; Bundestag.