Why NO Treaty LIMITING EU powers CAN
EVER be RELIED ON.
On
the 50th anniversary of the treaty
of Rome a leading barrister
describes the role of the European
Court of Justice in expanding the
powers of the EU
by
Martin Howe QC
[Eurofacts 6th April, 2007]
Vol
12 No 13
What is the key feature that makes
the Treaty of Rome different in kind
from every other international Treat
to which this country belongs, and
quite possibly makes it unique in
the world?
To
this question, a lawyer can give
only one answer:
the
key feature is Community Law -a
system of law that penetrates inside
the member states and takes
precedence over national laws in the
domestic courts of member states.
Many treaties bind states with rules
at the international or external
level - but it is this internal
penetration which marks out the
TREATY OF ROME
-as
different from other treaties.
In
fact this internal penetration is a
classic characteristic, not of
international treaties, but of the
internal constitutional arrangements
of
FEDERAL STATES.
And
like a federal state, the
EUROPEAN UNION
-has its own
SUPREME COURT
the
EUROPEAN COURT OF JUSTICE
-which has the
ULTIMATE POWER
-of
decision over both
CONTENT and the SCOPE of COMMUNITY
LAW.
Profound Changes
This court is not neutral or
impartial interpreter of the rules.
The
perspective of looking back over 50
years allows us to see clearly how
profoundly the
TREATY of ROME
-has been changed from what it was
in 1957.
I
am not speaking here of the many
changes of text which have been made
by successive amending treaties such
as the
Single European Act
Maastricht
or
Nice.
I
am talking of the profound changes
in the effective content of the
Treaty which have occurred as a
result of a process of so-called
"INTERPRETATION"
-of
the
Treaty by the Court.
The
key point that Treaty articles have
direct effect inside the member
states is nowhere stated in the
TREATY
-but was decided by the
EUROPEAN COURT
in
the
Van Gend en Loos case in 1963.
It said:
"The treaty is more than an
agreement which merely creates
mutual obligations between the
contracting states. This view is
confirmed by the preamble to the
Treaty which refers not only to
governments but to peoples....the
Community constitutes a new legal
order in international law for whose
benefit the states have limited
their sovereign rights, albeit
within limited fields, and the
subjects of which comprise not only
the Member States but also their
nationals".
Sovereign Rights
Shortly afterwards in 1964 in the
Costa v. ENEL case, the Court ruled
that
COMMUNITY LAW
-over-rides conflicting national
laws:
"
The transfer by the States from
their domestic legal system to the
Community system of rights and
obligations arising under the Treaty
carries with it a permanent
limitation of their sovereign
rights..."
[So
since 1963 politicians who later
claimed that there would be
NO
LOSS OF SOVEREIGNTY
-were lying and are still lying to
the
BRITISH PEOPLE
We
have only days ago put on our
bulletin board some comments from
Lord Carrington about the
interference of the European Union
in matters which should be none of
their concern.
From the early days of the Treaty of
Rome thousands of politicians have
lied -From Macmillan-Edward
Heath-Kenneth Clarke and every prime
minister and government -with the
only objections raised by Margaret
Thatcher who only later realised the
danger which she disregarded decades
before and even Conservative MEPs
today in 2007 still hold onto the
hope that they can change the EU
when the only thing worth having was
given up over 40 years ago.
A
dagger was derisively thrust into
the heart of nation -state sovereign
power by the European Court in
1963/1964 and Britain alone of all
States with its long history of over
a thousand years of freedom should
have kept faith with those who won
that freedom so long ago.]
By
1970, in Internationale
Handelgesellschaft, the European
Court had declared its view that
Community LAW should take precedence
even over the constitutional laws of
Member States -including basic
entrenched laws guaranteeing
FUNDAMENTAL RIGHTS.
In
the 1987 Foto-Frost case, the
European Court ruled that national
courts had no power to question the
validity of Community measures and
reserved that power exclusively to
ITSELF
-even though there is nothing in the
Treaty or in general principles of
INTERNATIONAL LAW
-which would require
STATES
-to
recognise the
VALIDITY OF ACTS
-which are
OUTSIDE THE POWERS
conferred by the
TREATY
*
During the early period of the
[so-called] Common Market, free
market economists would have
approved of the Court's activism in
the field of free movement of goods.
BUT
-this activism became a
Poisoned Chalice
-since the Court made clear that it
regarded a
EUROPEAN FREE MARKET
-not
as an END in ITSELF , but simply a
MEANS to a GREATER END.
Concrete Progress
The
Court spelled out its thinking in
1992 in the
European Economic Area Agreement
Case:
"
An international treaty is to be
interpreted not only on the basis of
its wording, but in the light of its
objectives. ...The Rome Treaty aims
to achieve economic integration
leading to the establishment of an
internal market and economic and
monetary union.
Article 1 of the Single European Act
makes it clear that the objective of
all the Community treaties is to
contribute together to making
concrete progresss towards European
unity.
It
follows from the foregoing that the
provisions of the Rome treaty on
free movement and competition, far
from being an END in THEMSELVES,
are only means for obtaining those
objectives.
...
As the Court of Justice has
consistently held, the COMMUNITY
TREATIES ESTABLISHED A NEW LEGAL
ORDER for the benefit of which the
States have limited their
SOVEREIGN RIGHTS
-in
ever wider fields,
-and the subjects of which comprise
not only the member States but also
their nationals. [emphasis added]".
In
the last sentence, the important
change in wording from 1963 Van Gend
case - should be noted. By 1992,
"limited fields"
become
"ever wider fields"
-reflecting the Court's endorsement
of the doctrine that there can only
ever be a one-way transfer of powers
from member states to the centre.
[Do
you now understand Mr Nice Guy Dave
and many of your MEPs who are always
harping about retrieving
POWER back from BRUSSELS]
The
Court has also expanded powers of
the Community over the external
relations of the member states. It
developed a doctrine of implied
external competence - that the
Community has power to make external
agreements relating to fields over
which it has acquired internal
competence. Furthermore, under this
doctrine, the member states lose
their own powers to conclude
international agreements relating to
areas of policy over which the
COMMUNITY
-has attained an internal
competence.
Under this doctrine, in 2002 the
Bermuda Agreement between the UK and
the US relating to trans-Atlantic
air transport was struck down.
British Airways at the time welcomed
the fact that such arrangements
would in future be negotiated by the
EU rather than bilaterally. I must
confess to a slight sensation of
schadenfreude at British Airways'
present reaction to what the EU has
apparently succeeded in negotiating
on our behalf.
Whilst the Court has liberalised the
internal market, it has often used
its growing powers over the external
trade of member states in a way
which inhibits the liberalisation
across the external borders of the
EU.
In
the 1998 Silhouette case, it
interpreted the
Trade Marks Directive
-as
requiring member states to prohibit
so-called
"parallel imports"
-of
genuine trade marked goods from
non-member states when the
proprietor of the mark has not
consented to the marketing of his
goods into the Community. This
enables trade mark proprietors to
prevent the importation of their own
genuine goods into the EC from other
countries where they have placed
them on the market (e.g. the USA),
so enabling them to charge consumers
within the EC a higher price than in
other markets.
Similarly, in the field of
regulations and technical standards,
the Court has ruled in the 1999
Agrochemicals case that the UK is
prohibited by Community Law from
licensing
"parallel imports"
-from non-EC countries, even though
the products are identical to
agrochemicals licensed inside the EC
and made by the same manufacture.
The
economic rationale of this
"fortress Europe"
-mentally is baffling, and it cuts
against
OUR
-global trade obligations under the
World Trade Organisation
on
Technical Barriers to Trade.
*
Onward Progress
Where the onward progress of
European integration has been
blocked by national vetoes, the
Court has been willing to
reinterpret the Treaty to make up
for the lack of progress on the
legislative front.
In
a whole series of recent tax cases,
the Court has invoked the general
clauses of the treaty on
non-discrimination to strike down
national tax legislation. An
important example is the 2002
Lankhorst-Hohorst case on tax
credits on payments by a subsidiary
to its parent in another member
state. What is significant is that
the Court departed from its earlier
cases which had decided that such
arrangements were compatible with
the Treaty.
The
Treaty had not been changed, but its
meaning, according to the Court,
had. Thus , the effective
harmonisation of direct taxes
proceeds step by step at the hands
of the Court despite the UK's
theoretical veto on this area under
the Treaty.
More recently in the 2005
environmental protection case, the
Court decided that the EC can, under
its first-pillar supranational
law-making powers, specify and
impose criminal offences and
penalties in the very wide fields
where the EC has an existing
competence. The remarkable thing
about this decision is that, if it
is right, the EEC had these powers
over criminal law from the day the
TREATY of ROME
-was signed on 25th March 1957.
Yet
if this had been suggested to those
who signed the Treaty in 1957, or to
those who signed Britain's
Accession Treaty
-in
1972, they would have laughed
We
see, with the perspective of 50
years, how powerful has been the
effect of the rolling process of
reinterpretation of the
TREATY of ROME
-carried out by the Court over that
period.
WHAT CONCLUSION SHOULD WE DRAW FROM
THIS?
If
we believe that it is right to halt
or reverse the ongoing process of
the transfer of powers from the UK
to the European institutions, then
we should recognise a simple point.
We
saw how the so-called Social chapter
opt-out negotiated at Maastricht was
rapidly undermined by the abuse of
HEALTH and SAFETY POWERS
-under the treaty to by-pass the
UK's veto on the
Working Time Directive.
THIS ABUSE OF THE TREATY WAS OF
COURSE SANCTIONED BY THE
EUROPEAN COURT OF JUSTICE.
If
we remain subject to Community law,
and to the European Court's
interpretation of the Treaties, no
agreement or treaty defining or
limiting the powers of Europe can be
relied upon -simply because it will
be reinterpreted by the Court, over
time, to expand those powers again.
[Conservative MPs and MEPs please
note the above and adjust your
records accordingly and remember
that the ECoJ has you all by the
nose -though many of you are still
unaware of how little you can do as
you put it- with your supposed
influence inside the EU.
As
to the excuses of the Pro-EU
Conservative MP' and MEPs that they
were misled from the beginning we
know that this was a lie as shown
from publication of details of that
era. and the following view of:
Jean
Monnet document on the European Coal
and Steel Community, June 1950,
quoted in Memoirs, 1978 confirms
that statement.
"The withdrawal of a State which has
committed itself to the Community
should be possible only if all the
others agree to such withdrawal and
to the conditions in which it takes
place. The rule in itself sums up
the fundamental transformation which
the French proposal seek to achieve.
Over and above coal and steel it is
laying the foundations of a European
federation. In a federation no Stat
can secede by its own unilateral
decision. Similarly, there can be no
Community except among nations which
commit themselves to it with no
limit and no looking back'
*
www.eutruth.org.uk
[' A MATTER OF FACT!
A REMINDER TO REMAINERS WHO IN THEIR MILLIONS REFUSED TO PUT FREEDOM AND
COUNTRY-CULTURE AND CONSTITUTION
FIRST!]
H.F.1424 |
|
|
|