186 General Principles of Constitutional and Administrative Law

their own imput into the Council’s proceedings but not of course for

Council decisions as such. Council documents are made available to

both Houses, ministerial statements are made after Council meetings,

questions can be asked, and, in addtion to the ordinary departmental

committees, there are select committees in each House to monitor EU

activity. The House of Lords Select Committee is particularly well

regarded and, in addition to scrutinising new legislation, makes wide-

ranging general reports on the EU.

There may be a convention that no UK minister should consent to an

EC legislative proposal before a debate has taken place, unless there are

special reasons which must be explained to the House as soon as

possible hereafter. However, this is not consistently followed. In prac-

tice the volume of EC legislation is greater than the time available

and much European business is conducted without MPs having the

opportunity to consider it in advance (see HC Deb., 30 October 1980,

col. 843–4). Ministers in their capacity as members of the Council are

probably not bound by resolutions of the House of Commons.

There is one specific constraint. By virtue of the European Parlia-

mentary Elections Act 1978, s. 6, no treaty which provides for an

Increase in the powers of the European Assembly can be ratified by the

UK without the approval of an Act of Parliament. It is perhaps ironic

that this provides protection only against the elected element of the EC

rather than against the unelected European Commission.

The European Council, which is a meeting of heads of state and the

president of the Commission, previously existed outside the treaties but

was ‘legalised’ by the Single European Act (now Art. 4). Its function is

to ‘provide the Union with the necessary impetus for its development

and shall define the general political guidelines thereof ’. It must meet at

least twice a year. At the end of each meeting it submits a report to the

Parliament and must submit a further report at the end of each year on

the progress of the Union. The Council as such has no lawmaking

power but nevertheless seems to tip the balance of power away from the

supra-national elements of Commission and Parliament towards the

inter-governmental element.

9.2.2 The European Commission

The Commission represents the interests of the communities as such.

It is required to be independent ‘beyond doubt’ of the member govern-

ments (Art. 213). Its 20 members are chosen by agreement between the

member governments and currently comprise one member from each of

the smaller states and two from the larger states. There are proposals to

187

The European Union

reconsider the matter when the Union enlarges. Each commissioner is

appointed for a renewable term of five years, in order to correspond

with the life of a parliament. Prior to the nomination of the other

commissioners the president of the Commission is nominated for a

two-year term by the member states after consulting the European

Parliament. The president has a right to object to individual nominees

(Art. 217) and the appointment of the commissioners as a whole must

be approved by the Parliament (Art. 214 (2)). The president assigns

departmental responsibilities (Directorates-General) to the other com-

missioners who are required to conform to the political direction of

the president (Art. 219). Members of the Commission cannot be dis-

missed by their governments or the president during their terms of

office (Art. 214) so that, unlike a head of government, the president has

little political leverage. Commissioners can be compulsorily retired by

the European Court on the ground of inability to perform their duties

(Art. 216) and, the whole Commission can be dismissed by the Parlia-

ment (Art. 201). The main functions of the Commission are as follows:

. To propose laws or political initiatives for adoption by the Council.

The Council or the Parliament can request the Commission to

submit proposals (Arts 192, 208).

. To make laws itself either directly under powers conferred by the

treaty or under powers delegated to it by the Council.

. To enforce community law against member states, and the other com-

munity instituions. The community has no police or law enforcement

agencies. The Commission enforces the law by issuing a ‘reasoned

opinion’, negotiating with the body concerned and, if necessary,

initiating proceedings in the court (Art. 226). The judgements of the

court are enforced through the laws of member states.

. To administer the Union budget.

. To negotiate with international bodies and other countries (Arts

228, 22931).

9.2.3 The European Parliament

The European Parliament does not make law but was created as an

‘advisory and supervisory’ body (Art. 189). It injects a limited but

increasing democratic element into Union affairs. It has up to 700 seats,

these being allocated in proportion to the population of each member

state. Elections are held every five years. Since 1979 MEPs have been

directly elected by residents of the member states, the detailed electoral

arrangements being left to each country (see Chapter 11).

188 General Principles of Constitutional and Administrative Law

The Parliament is required to meet at least once a year and in practice

meets roughly once each month, alternating, expensively, between

Strasbourg and Luxembourg. Its members vote in political groupings

and not in national units (see Art. 191). Under the Treaty MEPs are

required to be independent of national policies and not to act under

instructions from any outside source. Freedom of speech and pro-

ceedings within the Parliament are protected but, unlike the UK

Parliament, the European Parliament does not seem to enjoy privilege

against interference from the courts. The European Court of Justice

can review the legality of its activities (Grand Duchy of Luxembourg v.

Parliament (1983)).

The Parliament has the right to be consulted by the Council and in

an increasing range of cases a right of veto. It can also give advice, and

in limited cases can request the Commission to propose legislation

(Art. 190). It can question members of the Council and Commission,

and call for reports (Art. 197). It approves the Union budget, and

approves nominations for the appointment of commissioners and the

admission of new member states. It can hold temporary committees of

inquiries into misconduct or maladministration by other Union

bodies. There is an ombudsman to investigate the Union executive

and report to the Parliament. The Parliament also ratifies treaties with

non-member countries

In some contexts the role of the Parliament has been significantly

strengthened although it must act within strict time limits, usually three

months (see Arts 251, 252). There are two procedures. Firstly, applying

mainly to monetary union matters, the ‘co-operation’ procedure per-

mits a parliamentary input at an early stage and requires a unanimous

vote of the Council if Parliament either rejects its policy or proposes

amendments with which the Commission disagrees. Secondly, relating

to most economic, social and environmental matters but not to agri-

cultural matters the ‘co-decision’ procedure gives the Parliament a

veto which it must exercise by an absolute majority. In the event of

a deadlock between the Parliament and the Council there is provision

for a joint conciliation committee made up of equal numbers of each,

with the Commission as mediator. If agreement still cannot be reached

the parliamentary veto stands.

The Parliament can amend the part of the Union budget that is

not devoted to compulsory Union functions. This means that the

Parliament has little control over most of the budget and no realistic

control over the overall level of Community spending or its distribu-

tion between the member states. It can veto the whole Union budget

(Art. 272), and can dismiss the entire Commission but not individual

189

The European Union

members of it (Art. 201). However, these sanctions are too crude for

any but the most extreme cases.

9.2.4 The European Court of Justice

The European Court of Justice comprises 16 judges appointed by

agreement between the governments of the member states. Unlike

national judges, they have little security of tenure, being appointed for

a renewable term of six years and dismissable by the unanimous

opinion of the other judges and advocates-general (Statutes of the

Court, EC, Art. 6). As well as the judges there are six advocates-

generals who provide the court with an independent opinion upon the

issues in each case. The opinion of the advocates-general is not binding

on the court, but is highly influential.

In practice one judge is appointed from each member state, the extra

appointment being held in rotation by nationals of the four largest

states. Appointments must be made from those eligible for the high-

est judicial office in each member state and also from ‘jurisconsults

of recognised competence’ (EC Treaty, Art. 223). This permits such

persons as academic lawyers or social scientists to be appointed. There

is also a ‘Court of First Instance’. This hears cases of kinds designated

by the Council (unanimity is required). There are no specific qualifica-

tions for appointment to the Court of First Instance other than being a

person ‘whose independence is beyond doubt and who possesses the

ability required for judicial office’. The Court of Justice hears appeals

on a point of law from the Court of First Instance.

The court’s task is to ensure that ‘in the interpretation and applica-

tion of the EC treaty the law is observed’ (Art. 220). The ‘law’ consists of

the treaties themselves, the legislation adopted in their implementa-

tion, general principles developed by the court, general principles of law

of the member states including the European Convention on Human

Rights and also ‘soft law’ which is not binding but must be taken into

account. Soft law includes ‘declarations and resolutions adopted in

the community framework; international agreements and agreements

between member states connected with community activities’ (see

Europe Documents No. 1790 of 3 July, 1992, p. 3). A European Charter

of Rights has also been proposed. the EU, not being a legal entity,

cannot be a signatory to the ECHR. It has been suggested that parts of

the EU system are ‘entrenched’ in the sense that not even the Treaty

itself could be altered in defiance of them. However, in Grau Gromis

(1995) the ECJ accepted that ‘the Member States remain free to alter

even the most fundamental parts of the Treaty’. Shaw (1996, p. 99)

190 General Principles of Constitutional and Administrative Law

points out that the Union is required (Art. 2) to ‘maintain in full the

acquis communitaire, which is the accumulated inheritance of commu-

nity values’, thus introducing an element of stability and irreversibility

into the system.

The jurisdiction of the ECJ is as follows:

(i) Enforcement action against member states who are accused of

violating or refusing to implement European Law (Art. 226).

These proceedings are usually brought by the Commission, but

can be brought by other member states subject to having raised

the matter before the Commission (Art. 227). The Commission

first gives the member state a chance to state its case. The court

can award a lump sum or penalty payment against a member

state which fails to comply with a judgement of the court that the

state concerned has failed to fulfil a treaty obligation (Art. 228).

This is an important strengthening of the enforcement powers of

the court.

(ii) Judicial review of the acts or the failure to act of Union

institutions (Arts 230, 231, 232). This can be brought by other

Union institutions, by member states, an individual or private

body can bring an action only in special circumstances where

that the community act in question is specifically addressed to the

person bringing the action (see e.g. Salamander A-G v. European

Parliament (2000)). In contrast to its reluctance to permit

indivduals to sue the EC, the court has been liberal in supporting

individual rights against national governments (below).

(iii) Preliminary rulings on matters referred to it by national courts

relating to the interpretation of the Treaty and the validity and

interpretation of acts of Community institutions and of the Euro-

pean Central Bank (Art. 234). This is the lynchpin of the ECJ’s

role as a constitutional court and is how actions brought by

private persons would normally be dealt with. Any national court,

where it considers that a decision on the question is necessary to

enable it to give judgement, may request the ECJ to give a ruling

on a question of Community law (Art. 177). The role of the

European Court is confined to that of ruling upon the question of

law referred to it. It then sends the matter back to the national

court for a decision on the facts in the light of the court’s ruling.

A court against whose decision there is no judicial remedy in

national law (that is, the highest appeal court or any other court

against which there is no right of appeal or review) must make

such a request (ibid.). All UK courts are obliged to obey any

191

The European Union

Community law that is made binding on them by Community law

(see European Communities Act 1972 s. 2 (4)) and are required to

follow decisions of the ECJ (ibid., s. 3 (1)). The power to give

preliminary rulings does not apply to the Court of First Instance.

It may be difficult to decide whether a reference can or should

be made. The parties have no say in the matter (Bulmer v.

Bollinger (1974)). A court need not make a reference if it thinks

the point is irrelevent or ‘reasonably clear and free from doubt’

(the acte-claire doctrine) or if ‘substantially’ the same point has

already been decided by the ECJ (see CILFIT SI Ministro de la

Sanita (1982)). In R. v. International Commission of the Stock

Exchange ex parte Else (1982) Ltd. 1 All ER 420 at 422 Bingham

LJ said that ‘if community law is critical to the decision the court

should refer it if it has any real doubt. Furthermore, the court can

take into account the convenience of the parties, the expense of

the action, and the workload of the European Court (ibid) (Van

Duyn Ltd v. Home Office [1974] 3 All ER 178 at 1986; Macarthys

Ltd v. Smith (1979); Customs and Excise v. Samex [1983] 1 All ER

1042 at 1055–6).

It may be particularly difficult to decide whether the law in issue

is sufficiently clear to entitle the UK court to decide for itself.

Much depends upon the extent to which English legal culture

responds to the different reasoning methods of the ECJ, that is

whether the UK court approaches the problem by way of our

traditional ‘literal’ approach to questions of interpretation, or

takes a broader approach, focusing on the ‘spirit’ as opposed to

the letter of the law in the continental manner (see Henn and Darby

v. DPP (1981)). The same applies to the question of whether a

decision in the matter is ‘necessary’ for the resolution of the case.

We cannot know this until we know what the relevant Community

law means.

(iv) Disputes between the Union and its employees.

(v) Compulsory retirement of members of the Commission.

(vi) Advisory opinions.

(vii) The enforcement of obligations created by the European Invest-

ment Bank.

The court has no jurisdiction over second-pillar matters (foreign and

defence policy) or in asylum and immigration matters. Its jurisdic-

tion over other third-pillar matters (co-operation in criminal matters)

depends on the consent of the state concerned but it has no jurisdiction

in respect of the operations of the police and other law enforcement

192 General Principles of Constitutional and Administrative Law

agencies (Art. 35.5). However, in other areas, for example freedom of

trade, the court can interfere with police activities (see R. v. Chief

Constable of Sussex ex parte International Traders Ferry [1999] 1 All

ER 109 at 155).

It is often said that the glue that holds together the Communities

and the member states in a constitutional framework is the rule of law

represented by the ECJ. The Treaty itself is not explicit as to the

relationship between the ECJ and the law of the member states, but

the ECJ has developed several principles which have enabled it to give

primacy to EC law over national law. According to some commenta-

tors the ECJ has in defiance of the normal values of judicial impar-

tiality taken upon itself the political agenda of promoting European

integration. It has attempted to enlist national courts in this enterprise,

by requiring them to defer to EC law and by conferring European law

rights on individuals enforceable in national courts (see Ward, 1996,

Ch. 2; Rasmussen, 1986; Lenz, 1989; cf. Weiler, 1987; Mancini, 1991).

Craig (1992) for example argues that the court has responded to the

relative impotence of the other European institutions, none of which

have direct powers in relation to domestic law, by becoming not only

the judge but the police force of the European enterprise in defiance

of the separation of powers.

9.3 Democracy and the European Union

Perhaps the most fundamental constitutional problem of the EU is the

‘democratic deficit’. Although a democratic governments is a require-

ment of membership, the EU is dedicated to particular social and

economic goals centring upon the protection of free trade. Although

the goals of the EU have become progressively wider, they are not

compatible with the democratic premise of neutrality between social

and economic goals (see Lochner v. New York (1905) per Holmes J).

None of the institutions combine lawmaking or executive power with

democratic accountability and accountability is mainly left to national

institutions although these have no veto over EC laws.

Some of the founders of the European Communities were ideal-

ists who, from a paternalistic stance, had little interest in democratic

processes, assuming perhaps that the ‘European spirit’ could gradually

be infused into public opinion by example and propaganda. This is

reflected in the authoritarian, secretive and bureaucratic culture that

pervades the decision-making bodies of the EU (see Ward, 1996, Ch. 1).

When the European Communities Act 1972 was railroaded through the

193

The European Union

UK Parliament, the driving forces were the desperate economic plight

of the UK, coupled with the romantic adulation of European culture by

the then prime minister, Edward Heath. No serious attention was paid

to the democratic credentials of the Community structure.

On the other hand Art. 6 states that ‘the Union is founded on

the principles of liberty, democracy, respect for human rights and

fundamental freedoms, and the rule of law’, and requires the Union to

respect rights guaranteed under the ECHR and ‘as they result from the

constitutional traditions common to the Member States as general

principles of community law’. However, this nebulous provision does

not have priority over the specific goals of the Union. In particular Art.

10 provides that ‘Member 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 insti-

tutions of the Community. They shall facilitate the achievement of the

Community’s tasks. They shall abstain from any measure that could

jeopardise the attainment of the objectives of the Treaty.’ This seems to

impose an obligation to place EU obligations and goals above other

values. It has been described as imposing a moral obligation on

member states and even as ‘the sort of spiritual and essentially vacuous

clause that is more commonly found in constitutional orders such as

that of Nazi Germany or the Soviet Union’ (Ward, 1996, p. 65).

The primacy of the economic goals seems to have been accepted by

the European Court of Justice when in Internationale Handesge-

sellschaft v. EVST [1970] ECR 1105 at 1135 it was said that ‘the pro-

tection of such rights, whilst inspired by the constitutional traditions

common to the Member States . . . must be ensured with the frame-

work of the structures and objectives of the Community’. Thus the

notion of a lawmaking body created to pursue what one writer has

rather chillingly called the EU’s ‘mission’ (Shaw, 1996, p. 9) is incom-

patible with the democratic principle. In recent years the ECJ has

attempted to install democratic values into Community processes but

this is by its nature a sporadic and fragmented exercise (see Mancini,

1994). Indeed many writers have argued that the main contribution

of the ECJ has been to advance the interests of market integration

(see Weatherill, 1995).

There is no general public right of access to Community informa-

tion. The Maastrict Treaty (1992) declared (Declaration no. 17) that

transparency of the decision-making process strengthens the demo-

cratic nature of the institutions and the public’s confidence in the

administration and the Commission was invited to work on improving

public access to information held by the institutions. However, in a

194 General Principles of Constitutional and Administrative Law

Code of Conduct in 1994 adopted by a Decision (94/90), the Com-

mission undertook to make information available to the public albeit

subject to large exceptions. An analogous decision was adopted by the

Council (93/731). Exceptions where information cannot be disclosed

include the public interest in public security, international relations,

monetary stability, court proceedings and investigations. The Com-

mission may also refuse to disclose information on the ground of the

institution’s interest in the confidentiality of its proceedings.

The ECJ has enforced this limited right to information fairly

vigorously. In World Wildife Fund for Nature v. Commission (1997),

which concerned information about the Commission’s policy regard-

ing the enforcement of environmental law the Court of First Instance

of the ECJ held that, although the Decision was a voluntary under-

taking, having adopted it, the Commission is bound to respect third-

party rights arising under it. The court also held that exceptions should

be interpreted restrictively so as not to inhibit the aim of transparency

and that the Commission must give reasons for refusing to disclose

information. The court has also refused to accept blanket immunity

for particular kinds of information and required the Commission

to balance the public right to know against a clear public interest in

secrecy in the particular case (see JT‘s Corporation v. Commission

(2000); Van der Val v. Netherlands (2000)).

9.4 Federalism and the European Union

The EU is difficult to fit into a coherent constitutional structure.

In addition to the conflicts already mentioned, there is a conflict

between the ideal of European integration and that of national identity.

For example, Art. 6 of the EC Treaty requires national identity to be

respected. This tension suggests the possibility of a federal model since,

as we saw in Chapter 7, federalism is intended to reconcile this kind of

tension by marking out spheres of independence for each unit. While

some idealists, notably Jean Monnet, pursued the agenda of a federal

Europe, the thrust of the original initiative was towards the pragmatic

integration of economic policy as the basis of evolution towards what

the treaties call ‘ever closer union’ but with no agreed final destination.

The widening membership makes a federal arrangement unlikely and

Jean Monnet and his contemporaries are sometimes regarded as com-

munitarian fantasists.

The EU has certain features of federalism in that the powers and

purposes of the Communities are defined in the Treaty with the

195

The European Union

member states having residual autonomy in other areas. Some EC law

overrides incompatible domestic law and, under the doctrine of ‘pre-

emption’, member states may not legislate in areas reserved to the

Community at least in cases where the Community has actually exer-

cised its powers (see Commission v. UK (1981)).

On the other hand the Union has no elected government or enforce-

ment arm of its own. It depends on the courts and the executives of

the member states to enforce its will. There is a concept of citizenship

of the EU (Art. 17) but this gives only limited rights, namely free

movement within the Union within the requirements of the Treaty,

and the right to stand or vote in local government elections and in

elections to the European Parliament on the same terms as nationals.

A delicate balance has to be struck between harmonising the law

throughout the Community and catering for particular national needs

so that individual states can sometimes depart from normal Commu-

nity requirements. For example individual states can sometimes opt

out of EC laws on the basis of special circumstances, there are also

transitional provisions (‘multi-speed’ or ‘variable geometry’ arrange-

ments) in which a core of members participate leaving others to opt in

later if at all, for example monetary union, social welfare provisions

and immigration arrangements (see Shaw, 1996. 94 et seq).

In these respects the European Union is more like a confederation

or an inter-governmental body rather than a genuine supra-national

body. Indeed the German Supreme Court has held that ultimate power

remains with the member states (see Brunner v. European Union Treaty

(1994)). The EU is therefore best regarded as a unique legal order not

reducible into other forms. The idea of a common market and of pool-

ing resources is an attractive way of increasing wealth and minimising

the risk of war but the member states are far from equal economically

and have widely different cultures. It is therefore doubtful whether

there exists in Europe that delicate balance between diversity and unity

on which a federal system depends. The policy of widening member-

ship of the EU is likely to increase this problem.

The tension between the interests of the member states and those of

the Union is expressed ambiguously through the concept of ‘sub-

sidiarity’ which was introduced by the Maastricht Treaty. Subsidiarity

is a vague term with no agreed meaning which can be used to serve

different political interests. Historically subsidiarity is an authoritarian

doctrine used by the Catholic Church to legitimise a hierarchical

power structure. Subsidiarity can also be regarded as a pluralist liberal

principle that decisions should be made at a level as close as possible to

those whom they affect.

196 General Principles of Constitutional and Administrative Law

The version of subsidiarity in the EC Treaty (Art. 5) concerns

the distribution of powers between the Community and national

governments.

In areas that do not fall within its exclusive competence, the Com-

munity shall take action, in accordance with the principle of sub-

sidiarity, only if and so far as the objectives of the proposed action

cannot be sufficiently achieved by the Member States and can there-

fore, by reason of the scale or effects of the proposed action, be better

achieved by the Community . . . Any action by the community shall

not go beyond what is necessary to achieve the objects of this treaty.

This formulation is vague (e.g. the notions of ‘sufficient’ and ‘better’

and the non-sequitur between them). It is unlikely to be directly

enforceable in law but, may operate at a political level thereby

indirectly influencing the law. However, there is another definition of

subsidiarity in Art. A of the Maastricht Treaty which is not only

internally contradictory but seems to clash with that in Art. 5 as ‘a new

stage in the process of creating an ever closer union in which decisions

are taken as near as possible to the citizen’ (however, Art. 2 seems to

give priority to the Art. 5 version). Moreover, doctrines such as those

of the supremacy of EC law and pre-emption are difficult to reconcile

with subsidiarity.

9.5 Community Law and National Law

The relationship between the UK constitution and the European

Union involves a clash of constitutional tradition between the prag-

matic, common law, politically driven constitution of the UK with its

notion of unlimited legislative power, and the civil law approach driven

by general legal concepts familiar to the continental jurists. Given the

incommensurables involved, the relationship between UK law and EC

law is unlikely to be one of rational coherence.

There are different ways of approaching the relationship between

EC law and national law. One is to regard EC law as a distinct system

with its own principles and methods of reasoning, in which the courts

must participate by applying European methods as if they were federal

courts. It could be argued that the relationship derives from a general

obligation to interpret domestic law in line with international treaties.

Another way would be to regard laws emanating from EC bodies

as ‘processed’ into English law under the authority of the European

197

The European Union

Communities Act 1972, to be approached in much the same way as

other legislation in the light of the reasoning methods of English law

(see e.g. R. v. Poole BC ex parte Beebee (1991)). The choice between

these two approaches influences the extent to which the courts are

willing to subordinate UK law to EC ideas.

The courts originally followed the narrower, second approach which

fits traditional ideas of parliamentary supremacy, but, as we shall see,

may now be accepting the broader rationale. Nevertheless the strict

approach remains influential. For example in Mayne v. Ministry of

Agriculture, Fisheries and Food (2000), it was held that UK regulations