The debate about ‘ever closer union’ stands in sharp contrast to most of those about the European Union. It is one that mystifies the experts but seems evident to much of the public. Out of this paradox might yet come, however, some of the most significant changes to the UK’s relationship with the EU.
The mystery for the experts lies in the significance attached to the phrase (from Article 1 on the Treaty on European Union):
‘This Treaty marks 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.’
The provision countenances decentralisation as much as closer political integration. Furthermore, it is not clear that it has been used for much.
Ever expanding EU law?
The central accusation that it is used to justify ever more expansionist interpretations of EU law wilts under the evidence. The excellent House of Commons Research Briefing on the subject mentions that the phrase has been deployed 57 times until November 2015 by the Court of Justice. Very few of these are, however, in its actual rulings and many of these simply cite a reference to the phrase in a particular piece of legislation to justify access to EU documents.
These legalisms are of little interest to the public. They understand the phrase as justifying the pursuit of integration for integration’s sake. It is a bridge to European state building. People fear a Europe Union with a European citizenship, army and Treasury paralleling those institutions in federal states. If it is highly arguable whether the Union has, or will have, these types of institutions any time soon. It is not merely opponents of the Union who latch on to this symbolism. On 9 February, the original six member states restated their commitment to ‘ever closer union’ as a response to the draft on UK membership.
The accommodation of such symbolic concerns within a legal document was always going to be a challenge. The draft European Council Decision opted for vagueness with a statement stating the phrase does not equate to political integration. It is ‘primarily intended to signal that the Union’s aim is to promote trust and understanding between peoples who live in open and democratic societies which share a common heritage of universal values.’ From this, the Decision states that the phrase does not require a common destination for all and the UK is not committed to further integration.
This is a vacuous restatement of the status quo with no powerful image to reassure the British public. Indeed, there is disquieting ambiguity. The phrase is only primarily intended to promote trust, leaving the door open for a commitment to political integration remaining as an additional objective, particularly as the draft Decision states that this enjoys wide support as an objective of the Union.
There is, however, a second thread in the draft Decision. This states that the phrase ‘ever closer union’ can neither be used as a basis for extending the scope of EU nor for supporting an expansionist interpretation of EU competencies. At one level, this statement is equally empty.
No EU institution admits to ‘extending’ the scope of EU law and the Court of Justice will never admit to making expansionist judgements. It will always be said that they act within their powers or, in the latter case, are interpreting EU law.
And so it would have remained but for interesting developments in London. David Cameron has committed himself to revisiting the relationship between EU and British law separately from what is agreed at the European Council. Details have not been published but according to reports there would be two elements.
UK law supreme over EU law?
The first would restate that EU law enjoys authority within the UK only by virtue of an Act of Parliament, the European Communities Act. This is uninteresting. It was already restated in the 2011 European Union Act.
The second would allow the UK Supreme Court, and other courts, to strike EU measures where it is felt that the EU institutions have acted beyond their powers. This is not something new. Courts in a number of jurisdictions have claimed this power. One finds statements to this effect from Czech, Danish, Dutch, German, Hungarian, and Polish courts. Indeed, the Court of Appeal asserted this power for British courts in 1996 and the Supreme Court reasserted it in March this year.
Questions occur about the threshold to be reached before this can be applied. The German Constitutional Court, in particular, has been reluctant to disapply any measure simply because it was questionable whether the EU had competence to do it. It will only intervene where the EU manifestly did not have competence and the matter was significant.
It is on this point that the draft European Council Decision comes into play. It suggests a less indulgent view of a sharp elbowed exploitation of EU powers by the institutions. National courts are maybe able to intervene in instances where expansionist use is made of these powers. This would be quite a shot across the bow of the European Court of Justice. It would also lead to a more fluid interplay between EU and national law where one does not always trump the other.
Would this be a bad thing? Qualifying the primacy of EU law is characterised by some as the beginning of the end of the European Union. It would lead to free-riding by states and tit-for-tat reprisals. I am not so sure. The state with the highest transposition rate for Directives in November 2015 is, Norway, in which there is no primacy of EU law and it cannot be invoked directly in national courts. With Mercosur, the South American trading arrangement, there is primacy of treaty law but recurrent significant problems with States meeting their obligations. The NAFTA arrangement in North America provides for no primacy of treaty law, but commitments are honoured quite well.
In short, primacy is simply one commitment device amongst a number. It has the problem that, independently of content, it implies that one law is always better than the other. The European Scrutiny Committee of the House of Commons has already noted that this is a democratic nonsense. If the European Council starts a debate on this, it might be more momentous than anybody thought.
By Damian Chalmers senior fellow The UK in a Changing Europe and Professor of EU Law, London School of Economics and Political Science.