A Law Unto Themselves: European Court of Justice - Legal Order pre EU Constitution

Unaccountable Court of Justice

DID YOU KNOW that under the terms of our EC membership, the European Court of Justice has the final say in interpreting treaties and legislation. It can require Member States to take "any necessary measures" to comply with its judgements, and can impose penalty payments "as seen appropriate" (i.e. unlimited) for non-compliance. Euro-apologists try to tell us how much we need the Court to make EC membership workable for everyone. We reprint the views of various legal authorities.

"Member States' courts... were bound to apply Community Law. It could not be overridden by domestic legal provisions however framed without being deprived of its character as Community Law." (EC Court, Case 26/62)

"The supremacy of Community Law when in conflict with national law is the logical consequence of the federal concept of the Community"
(H P Ipsen, 1964)
So much for Edward Heath's reassurances that there would be no erosion of essential sovereignty!

"The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights... against which a subsequent act incompatible with the concept of the Community cannot prevail" (Case 6/64).
This just shows the undemocratic nature of the EC - it would be illegal to renegotiate the membership Treaties to return lost powers to national governments.

"Once the Community has set up a common organisation of the market for a single product, Member States may no longer regulate the market at all" (Case 83/78).
No chance of different arrangements to replace the disastrous Common Agricultural Policy and Common Fisheries Policy?

"The acquis communautaire is the entire body of Community Law, including Treaties, all secondary legislation, decisions etc... by virtue of the concept, member states commit themselves to the goals of the Community as well as its Law." (Cases 161/78 and 44/84).
The Maastricht treaties stated that this shall be maintained "in full" when the treaty framework was to be revised following the 1996 Inter Governmental Conference, thus militating against the return of lost decision-making powers. This ratchet has been carried over into the current 'Treaty of Nice' - see Footnote.)

" No provision of municipal law may prevail over a Community law. The validity of a Community act or its application remains unimpaired, even if it is alleged that the basic rights of the national constitution were violated" (Case 11/70, re: an alleged violation of the German national Basic Law by a Community regulation).
This would invalidate the constitutional 'safeguards' that Germany insisted upon when signing up for the Maastricht treaties, such as the "right" to avoid the Single Currency.

Now what about our constitutional safeguards? Given the European Court's tendency to interpret the legal framework from the partisan angle of promoting European integration, it is perhaps safe only to assume that it is barred from acting only where this is explicitly laid down in a Treaty.

And although the European Commission's propaganda in schools claims that the Court has no powers to overturn the decisions of British courts, our courts are already obliged to work within the rulings of the European Court [under section 3.1 of the European Communities Act, 1972]

Footnote:
The European Court can enforce any Treaty provisions as binding on the UK, with potentially unlimited fines for non-compliance:

Treaty of Nice, Title II, Art 10
"Members States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from actions taken by the institutions of the Community. They shall also facilitate the achievement of the Community's tasks.

They shall abstain from any measure which could jeopardise the objectives of the Community."

Treaty of Nice, Title I, Art 3
"The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire...."

References to European Court cases:

1 Law & the Institutions of the European Union; Lasok & Bridge (Butterworths, 1994)
2 European Community Law, Charlesworth & Cullen (Pitmans Publishing, 1994)

References to 'Treaty of Nice'

The Treaty of Nice in Perspective; Anthony Cowgill and Andrew Cowgill (BMDF, 2001)
(NB 2 volumes, available from the publishers:
British Management Data Foundation,
Highfield,
Longridge,
Sheepscombe,
Stroud, Gloucestershire,
GL6 7QU
Tel: (01452) 812837)

This page compiled: 2 January 1999, updated 5 October 2004