The EU - too big, too bossy and too interfering?

It is worth reminding ourselves of the fundamental principles upon which the EU is based, namely proportionality, subsidiarity and conferred powers.

If, in light of the recent EU elections and as David Cameron has suggested in Brussels, we are to discuss the issue of whether the EU should hand back power to national governments, we will need to understand the basis on which the EU works and how it must follow it's own protocols and keep within the aims of the EU. The exact nature and extent of the powers to be handed back is not clear.

It is worth reminding ourselves of the fundamental principles upon which the EU is based, namely proportionality, subsidiarity and conferred powers.

The principle of proportionality regulates the exercise of powers by the European Union. It seeks to set actions taken by the institutions of the Union within specified parameters. Under this rule, the involvement of the institutions must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the content and form of the action must be in keeping with the aims set out in the Treaties.

Application of the principle of proportionality is now laid down in Article 5 of the Treaty on European Union. The criteria for applying it is set out in the Protocol (No 2) on the application of the principles of subsidiarity and proportionality as annexed to the Treaties.

The notion of subsidiarity is also defined in Article 5 of the Treaty on European Union. It ensures that decisions are taken as closely as possible to the citizen (at national level, regional or local level to you and me) and that constant checks are made to verify that action at Union level is justified in light of the possibilities available at national, regional or local level. It is this principle which effectively means that the EU should not take action (except in the areas that fall within its exclusive competence), unless it is more effective than action taken at national, regional or local level. It is closely related to the principle of proportionality, which requires that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaties, a bit like the principle of 'ultra vires'.

These principles are not new and only rarely is there a problem. It was the Edinburgh European Council of December 1992 that issued a declaration on the principle of subsidiarity that laid down the rules for its application. Subsidiarity has been recognized and embedded further by subsequent Treaties and notably the Treaty of Amsterdam took up the approach that followed from this declaration in a Protocol on the application of the principles of subsidiarity and proportionality. Yet more procedural requirements were added by the Treaty of Lisbon on 1 December 2009 and the Protocol now requires the principle of subsidiarity to be respected in all draft legislative acts and allows national parliaments to object to a proposal on the grounds that it breaches the principle, as a result of which the proposal may be maintained, amended or withdrawn by the Commission, or blocked by the European Parliament or the Council. In the case of a breach of the principle of subsidiarity, the Committee of the Regions may also refer directly to the Court of Justice of the European Union.

To this mix of 'if you don't, we will' strategy, we must also take into account that the EU has conferred powers whereby the EU and it's institutions have powers conferred on them by the Treaties. This goes to the heart of probably the most important issue arising from any consideration of the powers of the EU and that issue is sovereignty as well as political foresight.

Many things have been said about the influence of European law and we can examine some of them but it might be worth starting with Lord Denning's famous analogy when he said 'European Community membership is like a tide. It flows into the estuaries and rivers of national life........' (The Discipline of Law: Lord Denning (1979)). By this time we had joined, rather belatedly, the Community (as it was known at that time), as a result of the European Communities Act 1972. The main thrust of the arguments for membership were the potential benefits of the enlarged market for our goods and services. The economic benefits are another matter but it could only be achieved over a period of time involving negotiation and the passing of a magnitude of regulations and directives to produce a tariff free market for the benefit of members of the 'club'. Looking back was Lord Denning right to suggest that it had affected and would continue to affect our national life? Yes, because what was the point of membership and how else was harmonisation and uniformity to be achieved if not by new European legislation?

We need to move on to another vexed question which arose early after our membership had been negotiated – 'what was meant to happen in the event of there being a conflict between EU law and national law?' The question was answered by the European Court of justice through a series of judgements, some of which pre-date our joining the EU but which are just as valid.

The Dutch case of Van Gend en Loos (1963) concerned a conflict between the Treaty of Rome and an earlier Dutch law. The ECJ ruled that 'the Member States have limited their sovereignty rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves.' The ruling makes clear that wherever there is a conflict EU law takes precedence subject to the limits mentioned.

We need to consider the manner in which we are said to have limited our sovereignty. The term that is used in this context is 'supranationalism' which is the form of multi-national approach to decision making in the EU. The EU has certain ideals and declared principles set out in treaties. The EU institutions including the ECJ has been constituted to police and achieve these goals. The EU can therefore only act to the extent of those agreed goals – national governments have not completely surrendered to the power of the EU. The EU's powers are themselves limited by the principal of supranationalism – meaning that the EU can only act in the areas agreed by the member states.

Consequently national Parliaments have only given up so much of their sovereignty and there is still a role for national law making. It is all too easy to generalise and argue over this issue of sovereignty but the answer in law is that only some of our power has been given up – and, even then, only that which we have bargained for in negotiations and Treaties.

What seems to have upset some people has been the tendency of the ECJ to proceed in an activist way when ruling on certain EU issues but, because of our membership, we seem to have become enshrined in ever wider EU principles. Is it really this aspect which is at the core of our apparent ambivalent attitude and unease with the EU?

Can we find specific examples where our national government has negotiated the UK out of certain provisions in treaties? The answer to that is yes we can. If we look at the economic policy of a common currency we can quickly see that this was something strenuously resisted by our elected government. As a result we were able to 'opt out' of the 'Eurozone agreement' and many see that as the right decision now in light of the European recession that followed and the grave doubts arising about the integrity of those associated with the joining of Greece to the adoption of the Euro.

At other times we have seen strong and open resistance to the adoption of the 'Social Chapter' sponsored by the then EU Commissioner Jacquers Delors with the presentation of proposals which later became the Maastricht Treaty in 1992. We, as a country, eventually ratified the Treaty but not until we had officially 'opted out' of what had infamously become known as the 'Social Chapter' which, in our government's view, introduced a number of unacceptable social reforms or 'socialism by the back-door'.

Article 5 - Lisbon Treaty website

Edinburgh European Summit - European Parliament

The principle of subsidiarity – Europa

European Communities Act 1972 -

EUROPA - Court of Justice of the European Union

Judgment of the Court, Van Gend & Loos, Case 26-62 - CVCE

Introducing the European Union: Between Supranationalism ..

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