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It is necessary to deal with European Community legislation
at some length, not only because it is now an important source
of English law, but also because it is surrounded by misunderstandings
and misconceptions. It is also necessary to state the obvious:
that this section, is concerned solely with law, and not at
all with politics. A great deal of discussion regarding the
EU is conducted on a political level, but this section is concerned
only with the legal consequences of UK membership of the EU.
At the outset it must be stated that the term ‘EC legislation’
is a misnomer. There are in fact three European Communities:
the European Economic Community (the EEC), the European Coal
& Steel Community (the ECSC), and the European Community
of Atomic Energy (Euratom). In Brussels in 1972 the UK was one
of the prospective members who signed a Treaty of Accession
agreeing to join the three communities and accepting all their
rules.
However, despite the existence of the three communities, all
of them share four common institutions: the Assembly (now called
the European Parliament), the Commission, the Council, and the
Court of Justice.
In practice, therefore, it is possible -to treat the Communities
as one, and in deference to popular usage the singular term
Community and the expression EC legislation will here be used.
Following the signature of the Treaty on Accession in 1972,
the European Communities Act 1972 was passed and the UK became
a member of the EC as from 1 January 1973. This involved acceptance
of the facts:
-that certain legislation not passed by the UK Parliament would
become part of the law of the UK;
-that the UK Parliament would be obliged to enact as English
law some decisions made by Community institutions, without being
at liberty to alter them in substance or to reject them; and
-that this legislation must be interpreted in accordance with
Community rules rather than in accordance with traditional English
principles.
Article 89 of the European Economic Community Treaty, better
known as the Treaty of Rome, provides that in order that the
Council and the Commission can carry out their tasks they shall:
-make regulations which shall have general application. Such
regulations are binding in their entirety and are directly applicable
to all member states;
-issue directives which are binding on the member states to
which they are addressed as regards the results to be achieved.
The choice of form or method, however, is left to the member
state;
-issue decisions which are binding upon those to whom they are
addressed;
-offer recommendations and opinions which have no binding force.
Section 2 of the European Communities Act 1972 provides that:
-all rights, powers, liabilities, obligations, and restrictions
created under the Treaties and all remedies and procedures which
from time to time are provided shall, without further enactment,
be given legal effect in the UK;
-Her Majesty by Order in Council and a designated Minister of
the Crown or Government department may, by regulations, make
provisions for:
-implementing any Community obligation of the UK; or
-enabling to be implemented any rights to be enjoyed by the
UK. The person exercising this power shall have regard to the
objects of the Communities;
-the amounts required to meet Community obligations or to make
payments to any member state are to be met out of the consolidated
fund (all revenue collected for the national exchequer) or,
if the Treasury so determines, the national loan fund. Sums
received by virtue of the treaty arrangements are paid into
the consolidated fund or, if the Treasury so directs, into the
national loan fund, save for any sums required for disbursements
under any other enactment. Expenses incurred by a Minister of
the Crown or Government department by virtue of the treaties
are met out of money provided by Parliament.
Section 3 of the Act provides as follows:
-any question arising in litigation as to the meaning or effect
of the treaties, or of a Community instrument, if not being
answered in a European Court, shall be determined in accordance
with European Court principles;
-judicial notice shall be taken of the treaties. This means
simply that judges in UK courts shall recognise the treaty enactments
as though they were statutes created by the UK Parliament;
-if a document or instrument issued by a Community institution
is required for litigation in the UK courts a copy of such document
or instrument certified by an official of the Council or Commission
must be accepted in evidence;
-evidence may also be by way of production of a Queen’s
printer’s copy of a document or instrument or by a copy
held by a Government department.
Where a question of the interpretation of some provision of
a European treaty arises in a case being dealt with by an English
court and there is no appeal from that court (as in the case
with, say, the House of Lords), the court must refer the question
to the European Court of Justice for a ruling. The decision
of the European Court must be accepted by the English court.
Where there is a clear conflict between English law and Community
law, the courts must apply Community law. For example, in Schorsch
Meier Gmbh v. Hennin (1975) the question arose whether the English
courts could give judgment in a foreign currency. In an earlier
case the House of Lords had ruled that they could not, but Article
106 of the EC Treaty requires the English courts to give judgment
in favour of a creditor who is a subject of a member state in
the currency of that state. The Court of Appeal ruled that Article
106 overruled the House or Lords decision so far as cases involving
EC countries are concerned.
It is sometimes said that, because the UK is now part of the
EC, and because therefore the UK is bound by Community regulations
and directives irrespective of the will of the UK Parliament,
Parliament has surrendered some degree of its sovereignty. This
assertion requires close examination, and the five following
points should be considered:
-The bulk (some 90 per cent) of Community law is concerned with
the administration of the Common Agricultural Policy, and is
trivial in the extreme. It therefore does not justify close
scrutiny, and such scrutiny as may be necessary can be carried
out by the European Parliament.
-The EC has a directly elected Parliament in which the UK itself
is fully represented. The EC Parliament is not a law-making
body, but it has supervisory powers over the Commission, including
the ultimate power of calling for the resignation of the entire
Commission.
-The Commission consists of fourteen Commissioners, two of whom
are British.
-The Council is composed of one representative of each member
state. All major proposals for Community legislation must be
unanimously approved by the Council, and in an extreme case
the UK member could use his right of veto to prevent proposals
from becoming law.
-The UK Parliament has devised a system whereby all proposals
for major Community legislation are debated in the UK Parliament
before they come before the Council of Members. The British
representative on the Council is therefore well aware of the
attitude of the UK towards the proposed legislation and it is
inconceivable that he would ignore the wishes of Parliament
in his negotiations with the other members of the Council. This
consideration, together with the power of veto, ensures that
legislation is not passed against the expressed wish of the
UK Parliament.
These are the practical considerations, but in addition the
strictly legal position must be considered. Parliament has ‘the
right to make or unmake any law whatever’, and this position
has been in no way altered by Britain’s membership of
the EU. The reasons for this are:
-The only reason why Community law has become enforceable in
the UK is that the sovereign Parliament, by the European Communities
Act 1972, decreed that it should do so.
-As has been said by an eminent judge, ‘If the Queen in
Parliament were to make laws which were in conflict with this
country’s obligations under the Treaty of Rome, those
laws, and not the conflicting provisions of the Treaty, would
be given effect to as the domestic law of the UK’.
-The power of Parliament to repeal the European Communities
Act 1972 remains unfettered. It is this factor which establishes
beyond question that the sovereignty of Parliament remains unimpaired.
If the 1972 Act were repealed the UK would leave the EU and
in so doing would commit breaches of treaties by which it has
agreed to be bound.
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