Title: European Law

 

Introduction

The development of European Integration placed a significant emphasis on the promotion of both social and economic cohesion in the 1990s.[1] Economic integration was of paramount importance and it focused on competition law and the free movement of capital, people, goods and services. The EU has in the process of its development widened its material scope to not only cover economic integration but also develop a body of laws in the fields of environmental protection, consumer protection and social policy.[2] The process of integration has been long but gradual, tracing its origin to the 2nd World War.[3] Its focus has on several occasions shifted to seemingly trivial issues such as water consumption through toilet flushing.[4] However, these issues raise fundamental questions about the role of the European Union (EU) and the mechanisms employable in carrying out its role. In particular, they dictate how member States respond to the governance and policies set by the EU.

The recent vote by Britain termed ‘Brexit’ was viewed as a threat to the integration. Among the major reasons behind the exit as forwarded by Brexit supporters was the dysfunctional economic policy the EU had failed to address thus leading to high rates of unemployment, stagnation in the economy, among other economic issues.[5] Another major reason which attracted massive support for the exit from a significant section of the government was the potential threat of the Union to state sovereignty. As it shall later be discussed in this paper, the system of governance in the EU is supranational; it extends beyond national boundaries and thus has the potential of undermining national policies and institutions in charge of making and enforcing those policies. This paper shall therefore explore whether the development of the European Integration is dependent on the efficacy of its policy-making system or on its supranational system of governance. To do this, this paper shall discuss the EU system of governance and the repercussions it has on the sovereignty of its member States.

It shall also discuss the policy making process and institutions involved to determine the extent of its efficacy and the consequence of this efficacy or inefficacy to the member States.

The EU system of governance

Article 10(1) of the Treaty on the European Union (TEU) provides that the functioning of the Union will be based on representative democracy. This stipulates that all EU member States are representative democracies. However, the question whether the EU system of governance is democratic is highly debateable.[6] This further raises the question of its legitimacy which shall be discussed later. The institutions responsible for the governance of the Union are the Commission, the European Parliament, the Council and the European Council. These institutions and their compositions are provided for in article 10(2) of the TEU. The EU political institutions can roughly be compared to those of a State to comprehend their purpose. The Commission acts as the administrative and executive branch, the Council and European Parliament compose a bi-cameral legislature and the Court of Justice of the European Union is the judicial branch.[7] EU law is nevertheless mostly administered at the national level by member States. Article 291(1) of the Treaty on the Functioning of the European Union (TFEU) provides that member States shall adopt all measures of national law necessary to implement legally binding Union acts.

The Black’s Law Dictionary[8] defines democracy as a government by the people, either directly or through representatives elected by the people. It has also been defined as a “government of the people, by the people and for the people.” This definition gives rise to the means of legitimizing the EU system of governance.[9] Output legitimacy analyses the effectiveness of EU policies for the people whereas input legitimacy judges EU’s responsiveness to citizens regarding participation by the people through representatives of the people. Lastly, throughput legitimacy seeks to explore the efficiency, transparency and accountability of the EU policy making process in consultation with the people.

Nevertheless, the EU law and its institutions are often perceived to take precedence over national laws. This is particularly a matter of concern where EU norms directly affect national laws thus undermining State sovereignty. It becomes immaterial whether a member State has or has not carried out any means of translation or implementation of the regional law. This direct effect was first established in the case of DIR v Van Gend en Loos[10] where a Netherlands-based company was not in agreement with the duty payable calculated by the Dutch Inland Revenue. The company argued that the DIR had changed the revenue classification contrary to article 12 of the then European Economic Community Treaty (EEC). The court held that such a clear and unequivocal provision did not necessitate implementation at the national level and thus bound the Member State directly.

Policy making in the EU

The European Union is probably the most significant emissary of change in policy making and contemporary government in Europe. As it has earlier been discussed, the effect of EU decisions transverse national boundaries, percolating into activities of policy making in the member States down to the individual lives of its citizens with regard to access to healthcare, privacy, the price of goods and their personal safety.[11] Given their profound effect to the lives of persons in member States, it is important that policy making be efficient to meet the needs of the people and consequently sustain the development of the integration.

The national policy makers of individual States and the regional policy makers of the EU have different characteristics; they exhibit different patterns of behaviour thus producing different results in the various policy domains.[12] The widening and deepening of the EU integration has had its fair share of critics ad has often been viewed as a process of breaking the foundations of national democracy because it does not abide by the traditional mechanisms of parliamentary accountability.[13] Thus policy making by the EU has been found inefficient as it strips national legislatures of their policy autonomy and control over national executive actors. This has consequently led to the questioning of the legitimacy of EU affairs and further still a decline in the general support for the EU.

The EU has attempted to make up for its shortcomings by encouraging and promoting the involvement of national legislators in the establishment of EU policies. Article 12 of the TEU provides for this participation by providing that national parliaments can be involved in the effective functioning of the Union. They can participate in this through various monitoring and evaluation procedures such as policy making in the areas of security, freedom, justice and judicial cooperation.[14]

The European Integration and political conflict

As noted by Liesbet,[15] there is a political dimension, as opposed to policy dimension, to the European integration from the very start. Thus policy considerations are often overshadowed by political elements. This implies that the development of EU integration is mainly dependent on the efficiency of its governance. However, Juergen Neyer notes that neither inter-governmentalism nor supranationalism can convincingly explain the efficiency of the EU in its performance.[16]

The EU law and policy not only affect the governments of the member States but also have a great influence over their court systems. For a long time, judicial independence had no clarity in its application in the UK. This was contributed by several factors such as the multiple roles played by the Chancellor in the various branches of the government. Thus the Constitutional Reform Act was enacted to oversee and guarantee judicial independence as embodied in section 3.[17] It not only sought judicial independence from the executive but independence of individual judges from other judges. One of the impetuses for change was employed by the fact that the UK was a member of the European Union. States in the EU are bound by the European Convention on Human Rights and the UK adopted its provisions through the enactment of the Human Rights Act 1988.[18] The Convention in article 6 emphasized the need of the judiciary to not only be independent but also to be seen as independent.

Article 267 of the (TFEU) provides a cooperative procedure to be followed for preliminary rulings. Where a national court in the course of its proceedings encounters a question of interpretation of the EU law, the court may refer the question to the CJEU. Woods and Watson[19] describe the relationship between the CJEU and national courts as a shared jurisdiction whose success is defined by trust and mutual cooperation. However this relationship is not without friction. In Gerhard Kobler v Österreich[20] the CJEU noted that a national court may be found liable for breaches attributable to a national court of last instance. This friction between the CJEU and national courts casts a lot of doubt on their proclaimed relationship of cooperativeness and trust. Furthermore, handing over such a ruling makes the CJEU superior to national courts. The decisions by the CJEU not only bind the referring court, but bind other national courts as well.[21] The CJEU’s findings have been held to bind national courts in several cases including Benedetti v Munari.[22]

Whereas the CJEU prevents restricting the autonomy of national courts, it was noted in Hoffman La Roche v Centrafarm[23] that it is significant to prevent accumulation of national precedence that contradicts European Union norms. In Arsenal FC v Reed[24] the defendant Matthew Reed was found in breach of Arsenal’s trademark rights through trading unauthorized football merchandise bearing Arsenal’s trademark. The English High Court through the Directive 89/104 EEC referred questions of defence to the ECJ particularly whether it constituted a defence to claim that the use of the trademark was as a sign of affiliation, loyalty or support. The ECJ held that this did not constitute a defence if the use of the trademark adversely affected the guarantee given as to the origin of the goods. The High Court held that Reed was not infringing on Arsenal’s trademark, a decision that was reversed by the Court of Appeal which supported the ECJ’s opinion. The Court of Appeal was of the opinion that national courts should not ignore decisions on references made to the ECJ.

The CJEU however also attempts to respect the jurisdiction and judicial authority of national courts. Article 267(2) TFEU provides that national courts can refer the matter where such reference is essential to the resolution of a dispute in their jurisdiction.[25] In the case of Foglia v Novello[26] a seller of liquer wine was contracted to sell on the condition that any taxes he would incur was to be reimbursed to him unless such taxes were levied in contravention of EU law. Upon refusal to reimburse, Foglia sued Novello though both agreed that the taxes were unlawful. The ECJ refused to give judgment under the grounds that no genuine dispute existed. This established the power of the CJEU to refuse referral and allow national courts to review the matter.

Conclusion

As it has previously been pointed out, the process of integration has no fixed end; it is an ever fledging phenomenon, dynamic in nature and constantly acquiring a new shape. The expansion of the Union and its integration form the core of the arguments by sceptics. This is particularly an issue where integration conflicts with cultural identity and national sovereignty. As noted, there is often a political dimension to the European Integration. Neither the efficiency of policy-making nor the supranational system of governance is solely responsible for the development of the European integration. Both are factors that work jointly to promote its development. As discussed earlier, the policy considerations have an overly profound effect to the very individuals of member States. The extent of their effects are felt by the member States and this guides the manner in which States will consequently respond to the EU norms in the best interest of their individual citizens. Nevertheless, the supranational element of governance has a political aspect and this overshadows the policy considerations. A system of governance without democracy lacks legitimacy, yet the element of democracy in the EU system of governance is often dubious. Thus the most fundamental element that will ether foster or stagnate the development of the EU integration is the political relation between EU and its member States. Both EU governance and EU policy-making can be perceived through political lenses. Member States will be more prone to support the integration where policies and policy-making process is in their favour and where the system of governance of the EU does not threaten State sovereignty.

 

 

 

 

 

 

Bibliography

Case law

Benedetti v Munari (1977) ECR 163

Hoffman La Roche v Centrafarm (1977) ECR 957

Arsenal FC v Matthew Reed (2002) ECJ C206/01

Gerhard Kobler v Österreich (2003) ECR 1-10239

DIR v Van Gend en Loos, Case 26/62 Van Gend en Loos [1963] ECR

Books and articles

Liesbet Hooghe & Fiona Wishdale, Cohesion Policy and European Integration: Building Multi-level Governance (OUP 1996)

Catherine Barnard & Steve Peers, European Law (OUP, 2014)

Hans J Michelmann & Panayotis Soldatos, European Integration: Theories and Approaches (University Press of America, 1994)

Vivien Schmidt, Democracy and Legitimacy in the European Union Revisited (Free University of Berlin, 2010)

Catherine Barnard & Steve Peers, European Law (OUP, 2014)

Hellen Wallace, Mark Pollack & Alasdair Young, Policy Making in the European Union (OUP, 2015)

Seidelmann, Reimund, Democracy-building in the European Union: conditions, problems and options, Télo, Mario (ed.), Democratie et Construction Européenne, Brussels: Edition des l’Université de Bruxelles, (1995: 79)

Liesbet Hooghe & Fiona Wishdale, Cohesion Policy and European Integration: Building Multi-level Governance (OUP 1996) p.29

Juergen Neyer, Efficiency and Effectiveness in European Decision-Making: Insights from Discourse Theory (2003)

Lorna Woods and Phillipa Watson, Steiner and Woods EU Law (Oxford University Press)

Emmanuel Fran?ois, The Role of National Courts in Procedures for Preliminary Rulings Under Article 267TFEU (ERA Seminar 2012)



[1] Liesbet Hooghe & Fiona Wishdale, Cohesion Policy and European Integration: Building Multi-level Governance  (OUP 1996) p.27

[2] Catherine Barnard & Steve Peers, European Law (OUP, 2014) p.9

[3] Hans J Michelmann & Panayotis Soldatos, European Integration: Theories and Approaches (University Press of America, 1994) p.1

[4] See http://ec.europa.eu/unitedkingdom/blog/

[5] George Friedman, 3 Reasons Brits voted for Brexit (Forbes) http://www.forbes.com/sites/johnmauldin/2016/07/05/3-reasons-brits-voted-for-brexit/#6e1d0e1778c1

[6] Catherine Barnard & Steve Peers, European Law (OUP, 2014) p.37

[7] Ibid, p.39

[8] Black’s Law Dictionary, 9th edition

[9] Vivien Schmidt, Democracy and Legitimacy in the European Union Revisited (Free University of Berlin, 2010) p.5

[10] Case 26/62 Van Gend en Loos [1963] ECR

[11] Hellen Wallace, Mark Pollack & Alasdair Young, Policy Making in the European Union (OUP, 2015) p.4

[12] Ibid, p.8

[13] Seidelmann, Reimund, Democracy-building in the European Union: conditions, problems and options, Télo, Mario (ed.), Democratie et Construction Européenne, Brussels: Edition des l’Université de Bruxelles, (1995: 79), pp. 73-89.

[14] See article 70 and 88 TFEU

[15] Liesbet Hooghe & Fiona Wishdale, Cohesion Policy and European Integration: Building Multi-level Governance  (OUP 1996) p.29

[16] Juergen Neyer, Efficiency and Effectiveness in European Decision-Making: Insights from Discourse Theory (2003)

[17] Kemeys notes that this is the first, explicit, statutory recognition of judicial independence in English public law, supra note 7

[18] D Pannick, ‘"Better that a horse should have a voice in the House [of Lords] than that a judge should" (Jeremy Bentham): replacing the Law Lords by a Supreme Court’ (2009) PL 723, 736 

[19] Lorna Woods and Phillipa Watson, Steiner and Woods EU Law (Oxford University Press)

[20] Gerhard Kobler v Österreich (2003) ECR 1-10239

[21] Emmanuel Fran?ois, The Role of National Courts in Procedures for Preliminary Rulings Under Article 267TFEU (ERA Seminar 2012)

[22] Benedetti v Munari (1977) ECR 163

[23] Hoffman La Roche v Centrafarm (1977) ECR 957

[24] Arsenal FC v Matthew Reed (2002) ECJ C206/01

[25] Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law (Cambridge University Press, 2014) p.183

[26] [1981] ECR 3045

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