European Integration and national sovreignty

European Integration and national sovereignty.

 

 Will The Treaty of Lisbon create a European “Super-State”?

 

At each stage of European integration the cry has gone up from commentators that this latest step is creating a “super-state”.

The issue of how much sovereignty any national state must cede to the European Community on accession has troubled all countries and nowhere more so than in the UK.

The question is how much each succeeding treaty, in this case, the Lisbon Treaty, is simply a logical extension of that which is implicit and explicit in accession the Community; or is it a radical and new stage towards a super-state.

 

The initial integration of Western Europe did not happen in a political and economic vacuum. It was, on the contrary, in the words of the eminent historian, Eric Hobsbawn:

“…the child of a specific and probably unrepeatable historical conjuncture”[1]

 

With the defeat of Nazi Germany in 1945, Europe became immediately a de facto divided continent. The “Iron Curtain” divided a Soviet occupied East from a Western Europe liberated by the USA, the Commonwealth, the UK and the respective domestic resistance forces. There was a universal consensus that social and economic welfare, based on democratic politics, were the only way forward to prevent the social and economic collapses which had brought totalitarian regimes to power in pre-war Europe. As shrewdly observed by the historian Alan S Milward:

“The historical evidence shows that the real argument has never been about whether it is desirable that a supranational Europe should supersede the nation-state , but about whether the state can find a political and economic base for survival. The surrenders of national sovereignty after 1950 were one aspect of the successful reassertion of the nation-state as the basic organisational entity of Europe. The (European) Community was the European rescue of the nation-state”[2]

 

Looked at in this way, the surrender of some sovereignty was a worthwhile price to first rescue, then rehabilitate the Western European states after the cataclysm of the early twentieth century. Far sighted politicians in France realised that France’s only way to regain prosperity, safety and influence was through reconciliation and economic cooperation with primarily Germany, but also through a wider European integration. European integration not only allowed West Germany to recover but offered political rehabilitation and the prospect of an enlarged market for West Germany’s rapidly recovering economy. This was the basis for the so-called Schuman Plan[3] to establish the European Coal and Steel Community in 1951 which formed the prototype for the eventual European Economic Community established by the Treaty of Rome in 1956.

At these earliest stages of European integration, the United Kingdom (UK)  stood aloof - confident, vainly as it proved, that it was still a world power and safe in the “special relationship” with the USA.  Paradoxically, the USA was and remains ambiguous about the develop of the European Community – on the one had welcoming a bulwark against Soviet influence but, on the other hand, wary of Europe’s growing economic power which could rival the USA.

 

The UK also expressed grave doubts about pooling sovereignty on the constitutional and economic front. Explaining to the House of Commons the UK’s reaction to the Schuman Plan, Prime Minister Attlee opined:

“We…are not prepared to accept the principle that the most vital economic forces of this country should be handed over to an authority that is utterly undemocratic and is responsible to nobody”[4]

 

Consequently, although the UK participated in the conferences leading to the founding of the Community it did not actually join the EEC at the Treaty of Rome. Though founded in international law, these early steps were a framework and not a rigid plan for integration and have been accurately described as follows by Neill Nugent:

“…the Founding Treaties (of the EEC) were not intended to act as straitjackets with respect to the future shape and development of the Communities. Rather, they provided frameworks within which certain things would be expected to happen and other things could happen if decision-makers so chose”[5]

 

The operative term here is “if decision-makers so chose”. At each subsequent stage of integration, of ceded of sovereignty, the member states have a choice and have indeed exercised that choice by rejecting various proposed new steps. For example, as will be seen subsequently, the United Kingdom opted out of the Social Chapter of the Maastricht Treaty.

 

However, the United Kingdom did not join the EEC and therefore was not part of the setting of that crucial framework. This factor has been a constant source of unease in the United Kingdom – for its means that law-makers and judges are acting within an original framework not of their own making.

 

The pre-eminent British constitutional expert, Professor Vernon Bogdanor, outlined the decision to join the (then) EEC as follows:

“This issue had major constitutional implications, and seemed to threaten the fundamental principle of parliamentary sovereignty, since, if Britain were to join, then decisions which had previously taken by Westminster would be in future taken by a body – the Council of Ministers of the European Community – which was not and could not be responsible to Parliament.

Joining the European Community, therefore, would be a decision unlike joining any other international organisation, such as, for example, the United Nations, or NATO”[6]

 

The Community is an international organisation “sui generis” and its essential characteristics of its constitutional arrangements have been set out as follows:

“(a) the Community has institutions which act independently of the Member States in terms of their composition and manner of operation;

(b) the community may take decisions by a majority, yet they will bind all the Member States;

(c) the institutions of the Community implement those decisions or are responsible for supervising that they are properly implemented by the Member States; and

(d) the founding treaty and decisions of the Community may give rise to rights and obligations on the part of individuals which are directly enforceable by the courts in Member States, even in the presence of conflicting provisions of national law”[7]

 

The Treaty of Rome (1956) also established the European Court of Justice (ECJ) which had supranational powers:

“to settle conflicts between the, between the organs of the Community, and between states and the organs. Its judgements were to be enforceable within the territory of the member states”[8] a provision which also came to cause problems for the UK and its own sense of autonomy.

 

It was the legal aspect of the developing Community which was to emerge as a problematic “unforeseen consequence” of entry for the UK.

Once the ECJ began hearing cases and passing judgement, a corpus of Community law began to emerge which would set precedence for all member states and any subsequent acceding member states.

Though it was the question of economic and political sovereignty which concerned the UK originally, this over-riding legal competence of a Community institution became problematic as it raised the issue of primacy of legislation, namely whether in effect European Law represents a higher and not a different source of law.

 

This constitutional position was underlined by two key cases, Van Gend and Loos  and Costa.

Van Gend and Loos was a Dutch firm who claimed that an import duty had been charged by the Dutch authorities contrary to the provisions of Community. The Court upheld the claim saying that:

“the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only Member States but also their nationals”[9]

 

The ECJ went further to emphasise its own credentials as being set the task:

“to secure uniform interpretation of the Treaty by national courts and tribunals, (and) confirms the States have acknowledged that the Community Law has an authority which can be invoked by their nationals before those courts and tribunals”[10]

 

In Costa the Italian Government posed a preliminary question to the ECJ on the constitutional compatibility with Community law of a domestic act to nationalise electricity in Italy. The ECJ judged that community law takes precedence over national law.

“By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity...and more particularly real powers [as a result of the Member States having limited their own powers or transferred them to the Communities’]”[11]

 

Professor Bogdanor points out the surprise, even outrage, of later reactions to subsequent integration, notably the Lisbon Treaty, was misplaced and somewhat belated. It was a sign of lack of appreciation of the UK’s original terms of accession.

 “It is noteworthy that, when the European constitution was produced in 2003, and when, after that constitution was rejected in France and the Netherlands, the Lisbon Treaty was produced as a substitute, many commentators attacked these documents on the grounds that they would make British law subordinate to European law. They had not appreciated that British law had been subordinate to European Community law since 1973 when Britain joined.”[12]

 

This aspect of the primacy Community law was emphasised by the Factortame I case when the full legal implications of entry into the Community for the UK became apparent. Briefly, the British government was concerned about so-called “quota hopping”, a practice by which non-British fishing boats could take up unused British fish quotas, although the actual ships had no real links with the UK. Using two acts of Parliament, the Merchant Shipping Act (1988) and the Merchant Shipping Act (Registration of Fishing Vessels) (1988) the government of Margaret Thatcher tried to restrict “quota hopping”. An application was made to the ECJ to test the compatibility of these measures with the Community provisions for open access to the Community’s common fishing area.  The ECJ found that Community law took precedent[13]

A view later supported by the House of Lords.

 

The UK was not alone in experiencing the logical conclusions of the establishment of a Community corpus of law which impinged on the national scene, as witnessed by the Francovich case. Briefly, Francovich and others worked in an Italian firm which became insolvent and they were consequently unable to receive the compensation guaranteed by Directive 80/987. However, Italy had not implemented that particular directive and so the question arose as to who was liable to pay compensation, if indeed compensation were due. The ECJ ruled that the Italian State had to pay compensation arguing  an individual had protection and rights under Community law even if his/her State had not implemented that law itself. In effect, a state could not deny rights which the Community had granted. The ECJ upheld:

“the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the EC Treaty” [14]

 

Both Factortame I and Francovich highlight the strength of a ruling from the ECJ as overriding the intentions of the member state, even if, as in the case of Factortame I those intentions resulted from a piece of legislation passed in Member State’s Parliament.

 

The Founding Treaties sufficed for almost three decades until the economic stagnation of the Community in the mid-1980s started to give rise to concerns. Following similar debates on the national level, the EC Commission, under the dynamic leadership of its President Jacques Delors, become convinced the Community could not maintain its high levels of social and economic welfare – the very reason for the establishment of the Community in the first case – in the face of rising competition from the Far East, particularly Japan, and the USA. Delors fastened on the notion that completion of the “internal market”, the actual implementation of the Treaty of Rome’s “Four Freedoms” (of movement of goods, capital, persons and services) would provide the necessary dynamic in the Community’s economy. In order to do this, it was felt that a revised and more appropriate constitutional framework would be necessary.

 

The Intergovernmental Conference of the Council of Ministers (IGC) was presented with a draft which eventually became the “Single European Act” (SEA) which both speeded up the integration process and also extended the power of the Community over member states, although not all member states were conscious of this at the time. The British Prime Minister, Margaret Thatcher, was enthusiastic about the extension of economic market principles but subsequently horrified by the constitutional reforms which were encapsulated in the SEA. As Nigel Foster comments:

 

“The SEA is the first significant amendment of the Primary Treaties. It is an important watershed in the historical development of the Communities and is not to be underestimated in its importance, although it was at the time, not just by external observers and commentators but also by heads of state and government who signed up for it. It is sometimes difficult to grasp because it is first a series of package deals changes to the Treaties which not only added new areas of competence but simultaneously made various institutional changes and policy amendments”[15]

 

The SEA added to the competences of the ECJ by establishing the “Court of First Instance” which allows the ECJ to be applied to for an opinion and guidance, a measure from French Law and not part of the Anglo-Saxon legal tradition.

 

But the most radical measure was the introduction of “qualified majority voting” (QVM). How to avoid a situation where one member state held up the others had been a sensitive political issue since the founding of the Community. There had been previous proposals for a majority vote in the Council of Ministers but these had been blocked by the legendary obstinacy of General De Gaulle. France’s President refused to allow France to take the Chair during its Presidency of the Council in order to block any decision- making. This episode in 1965 was followed by the “Luxembourg Accords”. In the words of Nigel Foster:

“which essentially meant that member states retained a veto in all circumstances…however, this unfortunate episode meant that a long period of minimal progress was ushered in”[16]

 

Now after Maastricht, for measure which furthered the integration of the internal market, the Council could call for a “qualified” majority vote. The votes on the Council of Ministers being “weighted” in proportion to the population and economic strength of the member state.

 

The momentum was now high for the Commission, under the leadership of Delors, to press on for further integration. Building on what had been a successful formula for the SEA, a further ICG was called which would reform the Treaties further to include the integration of monetary, economic and social policy. It was now that the Federalists[17] began to encounter serious political opposition based on the issue of member state’s sovereignty. There was widespread apprehension that under Delors the Commission was becoming the driving force for a European super-state.

The eventual Treaty of Maastricht, which came into force in 1993, was negotiated against a much changed political background. In 1989 the Berlin Wall, a symbol of a divided Europe fell and in 1991 the Soviet Union collapsed. These two events surprised the political leadership in Western European which though it may disapprove of the Soviet political system nonetheless had based its realpolitik on the continuation of a divided Europe. The (West) German government, formerly a key driver for an integrated Community, became understandably more introspective as it wrestled with the political complications and economic costs of absorbing the former sovereign State of East Germany and the French government became increasingly and correspondingly anxious to tie the newly united Germany into the Community.

 

The Maastricht Treaty changed the name of the Community to the “European Union”, dropping the word “Economic” an indication from the Federalists that they wanted to press on with political union, and causing fears among those many critics in all member states who feared such a development.  This apprehension was given political expression when in a referendum to endorse the Treaty, the Danes voted “no”. The Danes were eventually to endorse Maastricht after having obtained several “opt-outs” and separate protocols – concessions by the Community which seriously undermined the sense of cohesion. Indeed, such opt-outs were symptomatic of the negotiations at Maastricht and have remained a feature of subsequent treaties.

 

In a signal that the developing Community was trying to fulfil its commitment to social and economic progress the Commission had proposed a “social agenda”. Such a view was anathema to the free-market ideology of the then Tory government in the UK. The Commission sought to counter this by making social matters part of a separate protocol but still failed to persuade the UK government to sign up. It seemed that in the mood of general European security fears, the Member States were not prepared to surrender more autonomy to the Community institutions and the Commission in particular.

The subsequent Edinburgh Summit of winter 1992 further underlined that the progress of cooperation and integration was to be intergovernmental, rather than communitaire.

 

The membership of the Community had increased steadily form the original six signatories of the Treaty of Rome (Belgium, France, Germany, Italy Luxembourg, The Netherlands), to nine (Denmark, Ireland, the UK), to ten (Greece), twelve (Spain and Portugal) to fifteen (Austria, Finland and Sweden) over a period of forty years. In the wake of the collapse of the Soviet Union and the liberation of its former satellites, the Community was faced with urgent demands from those countries to join the Community. The constant demand by reformers for a more thorough going reappraisal of the Community’s constitutional framework was given added weight by the exigencies of absorbing countries which had a far different political an economic development since the end of the Second World War. The countries in question were Estonia, Latvia, Lithuania, Hungary, Poland, Czech Republic, Slovakia, and Slovenia. Over the same period the two Mediterranean islands of Malta and Cyprus were applying for membership.

 

These issues were addressed at the Nice Intergovernmental Conference of December 2000 which resulted in the Treaty of Nice, which did not come into force until February 2003.

In the words of Nigel Foster:

“The Nice Treaty was also a treaty which did not bring about any further radical changes to the Union...”[18]

 

In fact the Nice Treaty gave further evidence of the member states once again asserting that progress within the Community was to be intergovernmental rather than communitaire. The larger countries, France, Germany and the UK, insisting that their majority stake in the weighted voting on the Council be re-emphasised. A further check occurred when Ireland rejected the Treaty of Nice in a referendum. Taking their cue from Denmark at the time of Maastricht, the Irish government wrung national concessions from the Community before putting adhesion to Nice to a second and successful referendum.

After considerable wrangling, the Nice Council agreed upon a “Declaration on the future of the Union and also set up a “Convention on the Future of Europe” which would prepare a draft “Constitutional Treaty” for the Community.

This convention, headed by the distinguished former French President, Valery Giscard D’Estaing, aroused both suspicion and enthusiasm. The very term “Constitution” aroused apprehensions that a putative “European State” was indeed being suggesting and that “the ever closer union” of the original Founding Treaties was an unstoppable process.

 

Whatever support there was amongst Community political elites and theorists, there was a lack of popular support in two original member states, France and the Netherlands, when the matter of the draft Constitution was put to a referendum in 2005. The “no” votes in France and the Netherlands were a devastating blow and unlike Denmark and Ireland, France’s and the Netherlands’ “no” was unequivocal as their governments had no intention of using the “no” vote to bargain national concessions.

 

The Constitutional Treaty was abandoned and in its place an amending treaty, was negotiated and agreed in December 2007, becoming the Lisbon Treaty.

The Lisbon Treaty adopted formally the term “European Union”.

A permanent post of President and a “High Representative of the Union for Foreign Affairs and Security Policy” were established, the latter a deliberate euphemism carefully avoiding the impression that the “Union” had a functioning foreign policy which would have necessitated a “Foreign Minister” to rival in stature and prestige, the Foreign Ministers of the member states.

A “Charter on the Fundamental Rights” was agreed and is meant to be legally binding, but the British and the Poles negotiated an opt-out. A European Union legally binding provision which is not universally binding on the countries of the Union is of course a contradiction in terms.

 

The Treaty of Lisbon in fact signalled a considerable retreat from a position of concentrating more power on the Community’s institutions and the dropping of the title “constitution” was not only a huge blow to the ambitions of the Federalists but an emphatic  restatement of the powers of the member states own Parliaments. The document eventually produced is avowedly “inter-governmental” rather than “communitaire”

To quote the academic Nigel Foster:

“…far from consolidating the Treaty, Protocols and Declaration, the European Leaders have made the constitutional architecture of the Union even more complicated and fragmented.”[19]

 

The rejection of successive major constitutional changes by the voters in Ireland, Denmark, France and the Netherlands, and the series of opt-outs from treaties by the UK and Poland have all indicated that the progress towards a European super-state is actually receding from the high water mark of the Delors’ Presidency of the early 1990s.

 

Finally, it may be more fruitful to see membership of the European Union, not as posing insoluble problems, but as a source of stimulation in the age of globalisation where  international cooperation essential. To quote Leon Brittan, who has been both a British Cabinet Member and a European Commissioner:

“There is an inevitable tension between …the separate nations and the combined Community…yet a resolution…-whether to the celibacy of the Europhobes or the consummation of the Europhiles – is not, I suspect, either attainable or even desirable. The creative tension which exists within the Community is at once inevitable and essential to its success”[20]

 

Michael Hindley May 2011

(0044) 776 8845939

 

 

 

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