The (absence of) legal significance of ‘ever closer union’

On the 5 January a debate about the UK’s renegotiation of its terms of membership of the EU was held in the House of Commons, initiated by the Prime Minister’s report of the December European Council. In it, David Cameron said that “the ever-closer union does matter, not purely as a symbolic issue, but because it does get used as an interpretation by the European Court and has been one of the things that people feel has driven something of a ratchet in terms of EU law, so it is vital that we are fully carved out of that.”

Liam Fox then observed that “the European Court has never defined ‘ever-closer union’ but it has made reference to it 55 times in judgments since 1999”. He went on to ask the Prime Minister “Legally, how would Britain be exempted from the concept of ever-closer union unless we were exempted from all such judgments—either those that might be made in future or those historic in nature?”

To which the Prime Minister had no good answer. He said that a ‘legally binding and irreversible approach that says that Britain is not part of an ever-closer union’ would prevent the courts using ‘ever-closer union to provide a ratchet against Britain in future court judgments’. But he had nothing to say, and could say nothing, about Mr Fox’s point about existing rulings. So he changed his mind. It was suddenly a matter of less substance than he had initially claimed: “I accept that it is a symbol, but symbols matter in politics. Our politics is full of symbols. A symbol of being outside this ever-closer union speaks to the British belief that we joined a common market and not a political union, but, as I have set out, it does also have a practical application.” But the practical application that he has in mind, it seems clear, would only concern future judgments.

Later on in the same debate Bernard Jenkin invited the Prime Minister “to make a list of the European laws and European Court rulings he believes depend primarily on the ‘ever closer union’ phrase in the treaties?” The Prime Minister said “I am very happy to come back to my hon. Friend. I do not have the list on me…” And he dodged the question.

Mr Cameron is not being tied in knots. He is tying himself in knots.

His original sin was to claim that ‘ever closer union’ is used as a basis of interpretation by the Court; having made that claim, he was exposed to Mr Fox’s perfectly devastating response. He then retreated to a claim that the matter was symbolic, aside from any possible future effect of an exclusion. But that is where he should have started. It is a symbolic matter, no more. Because, crucially, the Court does not rely on ‘ever closer union’ as an interpretative principle in its case law. But where might the Prime Minister’s claim that ‘ever closer union … does get used as an interpretation by the European Court’ come from?

First things first, it’s not picky to insist that the phrase, located in the original Treaty of Rome’s Preamble and unchanged since, is not simply ‘ever closer union’ but in fact ‘ever closer union among the peoples of Europe.’ Not picky because this emphasises that states are not the exclusive concern of the system, and also because it insists on diversity – hence, ‘peoples’ not ‘people’. But let this pass for the moment. The claim is probably based on a House of Commons Library Briefing Paper entitled ‘“Ever closer Union” in the EU Treaties and Court of Justice case law’, published on 16 November 2015 under the name of Vaughne Miller.

The Briefing Paper, searching on the Court’s of ‘ever closer union’ is cited, covering not only judgments of the Court but also Opinions of Advocates General. The same search conducted on 9 January 2016 also throws up just 57 citations – and just 10 are judgments of the Court of Justice. That figure of 57 represents, as the Briefing Paper observes, just 0.19 of the total number of cases decided since 1954. More significant still, most of the batch of 57 concern transparency and access to documents, where the Court is fond of cutting and pasting reference to a ‘new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’ – but the quote comes not from the Treaty’s Preamble, but rather from the Recitals to the regulation on access to documents (Regulation 1049/2001) which themselves draw on Article 1 TEU which uses the same phrase. The phrase ‘ever closer union’ is of no material significance to the way these cases are decided. The remaining cases among the 57 show (appropriately enough) plenty of variety in their subject matter, but none at all would come remotely close to the front rank of the Court’s great constitutionalising judgments. Some, maybe most, would scarcely be recognised even by an EU law specialist (Wachter? McCullough v Cedefop? Toland v Parliament? The list is set out in full in the Appendix to the Briefing Paper).

So Mr Cameron’s claim that ever closer union “does get used as an interpretation by the European Court” lacks support. The phrase ‘ever closer union’ among peoples (or among anything else) is for sure not a phrase to be found in any of the Court’s great judgments. Why not? If it matters so much, wouldn’t it have been relied on in the two great cases from which the Court first embarked on its great adventure to transform a Treaty-based system into a ‘new legal order: Van Gend en Loos (decided in 1963) and Costa v ENEL (1964)? Surely at that point it needed all the help it could get to justify its revolution?

Enough rhetorical questions: my point is that the absence of ‘ever closer union’ from the Court’s early heroic judgments is strong evidence of its insignificance. In fact in Van Gend en Loos and in Costa v ENEL the Court of Justice, in declaring EU law capable of direct effect in national legal orders and supreme in the event of conflict with national law, not only did not rely on ‘ever closer union’ as a guiding principle, it offered several far more concrete reasons for insisting on the ‘new legal order’ it was creating. In Van Gend en Loos it noted that the functioning of the common market, a Treaty objective, is of direct concern to all interested parties, implying that the Treaty is more than an agreement which merely creates mutual obligations between the contracting nation-states. It added that ‘this view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples’. It referred too to the establishment of institutions ‘endowed with sovereign rights, the exercise of which affects Member States and also their citizens’, and noted that the nationals of the Member States cooperate through the intermediary of the European Parliament and the Economic and Social Committee. It relied too on the existence of the preliminary reference procedure (today located in Article 267 TFEU) which ‘confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals’. This, then, was ‘a new legal order of international law’. In Costa v ENEL the Court similarly drew on the objectives of the Treaty to assert its innovative legal character. This is a ‘Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community’ and so its law binds both individuals and States.

Some of these arguments are more persuasive than others: reliance on ECOSOC is particularly fatuous. But, taken together, they amount to a gathering of reasons that promote the shaping of EU law as more intimately concerned with the protection of the individual in proceedings before national courts than would be visible in orthodox public international law. The Court gets there without having to, or wanting to, knit with the fog of ‘ever closer union’. Its primary animating concern is to establish the Treaty also as a quasi-constitution rooted in the virtue of the protection of the individual, according to which EU law (as we now know it), in contrast to international law, dictates directly to national judges how they shall treat the rules of EU law in cases before them. Is this motivated by ‘ever closer union’? Not in any legally significant sense.

Perhaps we need to look deeper than explicit mentions in Court papers. Thus, the Briefing Paper claims scholarly support for the contention that the phrase ‘ever closer union’ influences the Court’s judgments. It cites Gunnar Beck’s claim that looking for the ‘spirit’ of the Treaties is a better guide, and that this reveals ‘the concept of “closer union” as a kind of meta-objective [which] tends to give any reference to purposive arguments and hence the Court’s cumulative approach an in-built integrationist flavour’. It ain’t what you do, it’s the way that you do it, perhaps. Beck’s claim, in the crudely condensed form in which it is advanced in the Briefing Paper, is unfalsifiable, but his book (The Legal Reasoning of the Court of Justice) is worth the attention of any student of the Court. A bit more surprisingly, the Briefing Paper cites John Rentoul, a waspishly entertaining political journalist best known for the heat of his admiration for Tony Blair, who has written that ever closer union ‘suffuses the assumptions of the European Court of Justice with idealistic federalism’. That could hardly be less illuminating, and, like most English commentators, he fails to appreciate that there are many different types of federal arrangements, some of which are radically decentralised (try Belgium). Then the Briefing Paper cites Derrick Wyatt’s post from Open Europe’s blog of 15 October 2015. This is serious stuff and it is worth quoting in full (and a still fuller version is here).

The aim of “ever closer union” has probably played a larger role in the thinking of the Court of Justice than appears on the face of the Court’s judgments. Nevertheless, the Court has made a huge contribution to those aspects of EU membership which benefit the UK most. The Court has developed the rules of the internal market. It has contributed in a major way to the “highly competitive social market economy” envisaged by the Treaty on European Union. And it has created a system in which the rule of law can be enforced and more often than not is enforced. This is European integration and the UK benefits from it. But that does not mean that the Court always strikes the right balance. It does not. The Court has been over ready to depart from the text both of Treaty provisions and EU legislation. It has handed down numerous judgments driven by judicial policy, rather than reached by a convincing process of legal analysis and reasoning. This approach has led to a relentless increase in EU competence, and has undermined the political and democratic processes provided for or recognised in the Treaties. The formulation of “ever closer union” has underpinned this approach, and cannot be described as solely symbolic. Judge Mancini, writing extra-judicially in 1994, described the Court’s “preference for Europe” as being determined by genetic code transmitted to the Court by inter alia the primary objective of the Treaty to create ‘ever closer union among the peoples of Europe.’

Judge Mancini was an influential intellectual leader within in the Court. Tellingly, he refers to “ever closer union” as the as the primary aim of the Treaty. Broadly speaking, a majority of the intellectual leaders within the Court have been federalists. Even when the Member States wrote strong de-centralising principles into the EU treaties, in particular those of subsidiarity, and respect for national identity, the Court continued to promote centralising values (such as EU citizenship), and chose to underplay de-centralising values designed to maintain a strong role for national institutions and national democracy in the EU system. It is time for the Court of Justice to re-appraise those elements of its judicial approach which are contributing to an over-centralised Europe.

There are judgments of the Court for which I would share this distaste (Viking Line most of all). Fewer than Wyatt, I think – he goes further than I would and in particular I think the distinction which he correctly identifies in the Court’s generous treatment of the potential of Citizenship in contrast to its reticence in giving teeth to subsidiarity is at least in part explained and justified by the structure of the Treaty: citizenship readily attaches to existing individual rights of free movement and non-discrimination, whereas subsidiarity lacks any comparable mooring to Treaty provisions offering concrete protection for State autonomy or subjective rights. I think too he may overstate the influence of Judge Mancini, a man never shy of offering colourful commentary, who anyway, I think, was referring to ‘ever closer union’ as a catchphrase serving as no more than a summary of the much more intricate and much more credible explanations provided in (inter alia) Van Gend en Loos and Costa v ENEL. But his criticism is thoughtful, subtle and nuanced, and a world away from Mr Cameron’s blunt claim that ‘ever closer union’ gets used as an interpretation by the Court. Wyatt’s claim is not that ‘ever closer union’ is a primary motivation on the surface of the Court’s rulings, but rather, more cautiously, that it may be treated as an underpinning.

Maybe so. Of course, even without buying the rather flamboyant claims of Judge Mancini, it is perfectly possible to accept that lurking in the background of the Court’s foundational case law is the commitment to ever closer union, but it is striking that it is never made explicit, and, as explained above, there are plenty of far more detailed reasons rooted in the text and structure of the Treaty and the intentions of the parties which are present in those judgments and which elucidate the Court’s motivation. Put another way, we can never know whether the Court would have been less ambitious had the Treaty commitment to ever closer union never existed, but its absence would not have caused it to need to drop one single word of its reasoning in Van Gend en Loos and Costa v ENEL. I do not at all deny that a judgment of a court often contains a lot more than appears on the surface – the same is true of a good novel – and quite plausibly (as Wyatt argues) ‘ever closer union’ might have played some role as a nudge. But the attempt to elevate ‘ever closer union’ to the status of a foundational interpretative principle in the Court’s construction of the EU legal order simply does not wash because there are so many other bases that lead down that road on which the Court did explicitly rely. Mr Cameron has taken an argument that could be made with  a degree of persuasive nuance (see Wyatt!), stripped out that nuance and finished up with a belligerently unfounded claim which was promptly exposed as empty by Mr Fox, and from which he had to retreat.

So ‘ever closer union’ has no real direct significance as a legal principle in EU law. It doesn’t seem to have any real political significance today either, given the multiple and increasing patterns of geographical and functional variation and assorted opt-outs across the EU today that are wholly at odds with any trajectory towards ever closer union, from Schengen to the Eurozone, the patterns of enhanced co-operation to the area of freedom, security and justice. (If there is political appetite to re-consider the phrase, it might be cleaner to agree to delete it totally, and not just in application to the UK). It follows that the demand for exclusion from the commitment to ‘ever closer union’ is purely symbolic. There’s nothing wrong with the purely symbolic. Mr Cameron has a point when he noted with his customary breezy imprecision in the remarks that begin this comment that ‘symbols matter in politics’. But don’t claim there is more to it. To be forced to backtrack by Liam Fox is an inelegant posture for a Prime Minister, particularly one planning to act as the plausible and coherent front man for the ‘Stay!’ campaign.

Stephen Weatherill is the Jacques Delors Professor of European Law. He also serves as Deputy Director for European Law in the Institute of European and Comparative Law, and is a Fellow of Somerville College.

The views expressed in this explainer are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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