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MAJOR ISSUES BULLETIN

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

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

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

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'