The Impact of European Union Law on Member States

Introduction

This essay deals with the question of whether the body of European Union (EU) law curbs the sovereignty of the member states. This question is relevant to one of the fundamental principles of EU laws, which is the primacy of EU law over the states’ laws. The objective of this principle is to ensure a unified and effective application of EU law. This is enforced in the judgment in Costa v Enel that states that member states are bound to the legal system of the EU law. This limits the sovereign rights or otherwise EU law cannot be uniform and binding. The judgement also held that such limitation is within certain limited fields. In this regard, the current essay is concerning the scope and exception of the limitation concerning the bindingness of EU law upon member states.

The objective of unified and effective application of EU law is appropriate given that the constitutional and political history of the EU is rooted to the objective of uniting the EU politically through economic means. The wars between neighbours that culminated in the Second World War affected the states economically and politically. Thus, the formation and strengthening of the European Union are rooted to the purpose of improving the unity of the states. The purpose of this essay is to explore how the united mechanism in the form of EU law interacts with member states’ sovereignty, particularly the effects of EU laws on the powers and rights of the member states.

Sovereign rights and EU law

Historically, the mechanisms adopted by the EU was to establish common economic motives. This was seen when the European Coal and Steel Community began uniting the member states by the year 1950; when the European Economic Community (EEC), or the Common Market was established; when the Single Market and the four freedoms were established in 1993; or when the 1993 ‘Maastricht’ Treaty on European Union was entered establishing new intergovernmental mechanisms governing foreign and security policy.

Along with these developments, the EU also established a body of laws comprising primary legislation (treaties) and secondary legislation (regulations, case laws, and directives). This body of laws gains supremacy over the laws of the member states, which is found in the Lisbon Treaty, Declaration 17. The supremacy is enforced by the European Court of Justice (ECJ) in many cases that held that EU law precedes over member states’ law in the case of a conflict between the two regimes. The reason is that states have transferred their powers to the EU and thus, their sovereignty is limited within the boundaries of the EU law. This reasoning is found in the case of Flaminio Costa v Enel that established the doctrine of supremacy of EU law with the purpose of making EU law efficient, independent and to apply it uniformly across the member states. In this light, EU law forms an integral part of domestic laws. In Larsy, it was held that any domestic law conflicting with the EU law must not be applied by the states’ administrative bodies.

Division of competencies

The supremacy of EU law serves the intended purpose of delimiting the competence involving the member states. This was necessary to establish EU integration and to form new competencies governing the supranational and intergovernmental levels of governance. The new form of competency is a distributed competencies between the member states. This impacts the national autonomy of the member states. For instance, the Treaty of Paris in 1951 that created the European Coal and Steel Community and the European Atomic Energy Community provided for exercising common competencies between the states. The common sharing of competencies is driven by economic interdependence supported by the provisions of the Treaty of Paris. Similarly, the Single European Act 1986 provided for the completion of the internal market and a governance system, which reduced the national autonomy of the signing states. Such EU primary law impacts the national legislation and states sovereignty that is tied to the scope and purposes of the treaties. For example, the Treaty of Maastricht 1992 restructured the treaties to the extent that the treaties transcended national boundaries or governments.

Irrespective of the supranational influence of the EU law, the scope of competencies of the EU is defined by the Treaty on the Functioning of the European Union (TFEU). Article 2 and Article 3 provide the exclusive areas of competence that the EU can exercise. This means that the EU cannot intervene in the areas that are not designated by the TFEU, or in other words the areas that fall under the member states. Article 4 provides the common areas that the EU and the member states can share competencies. One common area could be social policies, including employment and living and working conditions where the EU and the member states shall promote (Article 151). However, as per Article 153(2), the EU cannot affect the rights of the states to define social security principles. Similarly, Article 36 also provides that the EU rules on freedom of movement cannot affect the national restrictions that are placed on public interest and security. Provisions such as these demonstrate that EU actions are limited by the preserved competencies of the states, which could be either implied or explicit.

Role of courts

The transnational influence of EU law on the sovereignty of the states is limited to the exceptions that it provides, as seen above. The uniform applicability of the EU law is impacted by the plurality of the legal systems of the member states. The ECJ plays an important role to enforce EU law and to balance this role with the legal and political interests in member states. Taking the concept of EU citizenship as an example, the ECJ enforces the EU citizenship as established by the Maastricht Treaty 1993. Article 9 of TEU and Articles 20 of TFEU provide that a citizen of a member state is an EU citizen. This concept cannot be limited by the member states legal regimes. Thus, an EU citizen is entitled to the rights conferred by EU law and states cannot violate these rights. This is also supported by cases, such as Grzeczy, where CJEU held that an EU citizen is entitled to the same treatment in law irrespective of their nationality.

It is also relevant to note that the implementation of the EU law may be subject to the discretion of the member states. For instance, in European Commission v United Kingdom of Great Britain and Northern Ireland, the issue was regarding the multiple complaints that the UK received for refusing claims for certain social benefits based on the ground that the claimants did not have residential rights in the member states. Irrespectively, the CJEU held that the UK is competent to do so. Inconsistently, the CJEU in Ruiz Zambrano upheld the rights of a claimant against the Belgium authorities’ decision to preclude rights of residence and a work permit and granted the minor children of the claimant the right to stay within the EU. The inconsistent approach to applying the EU law primarily demonstrates that the states’ discretion influences the decisions of the EU courts.

The scope of the member states’ rights regarding application of EU law is defined by principles derived from treaty provisions. For example, according to the principle of direct effect, domestic courts should apply an EU law provision if that provision is given direct effect. This means that there must be a national law to enforce an EU law. This is seen in the enactment of the UK’s Human Rights Act 1998, which incorporated the Convention on Human Rights (ECHR). Section 4 empowers the domestic court to declare any legal provision incompatible with an ECHR right. The direct effect principle will, thus, entitle an individual to enforce the relevant law. This was seen in the case of Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede, where it was held that even when Article 12 of EEC Treaty prohibits a state from introducing a new custom duty or charges and increasing them, it does not prevent its application to individuals just because the provision was addressed to the member states. Similarly, an EU citizen can enforce their right of freedom of movement provided under Article 45 of TFEU.

In that regard, it is only when the member states provide a ratification through a domestic law that EU law limits their sovereign rights. In addition, there are certain tests that will qualify an EU law to be enforceable. For example, the EU law must be clear, precise, and unconditional and a state must implement within the time limit. Article 288 of TFEU provides that a state has the discretion to decide the form and methods in which it will be bound to a directive regarding the goals to be achieved. All these aspects represent the flexibility of EU law, which is subject to the discretion of the member states.

The goal of uniform application must consider the diversity in local needs. Each member state has different needs, which may influence the implementation measures. As also seen above, the local needs may define the scope of limitation of its powers and rights when it comes to the compliance and enforcement of EU law. For example, in G. Defrenne v Sabena, the judgment reflects that Article 157 of TFEU forms a non-mandatory guideline for national courts, which have the option to rely on EU law regarding equality in gender pay. Thus, while enforcing EU law in domestic jurisdiction, the domestic courts have prime responsibility to uphold or exercise exceptions to the doctrine of primacy of EU law.

The relevant courts’ decisions, principles of EU law, and the treaty provisions, as discussed, highlight the view that the transfer of sovereignty cannot be accepted in general terms. This means that the transfer is of certain and determined competencies. There cannot be an undefined power transfer that removes the national autonomy endangering the functional existence of the member states. Hence, Articles 2, 3, 4 and 151, as seen earlier, provide provisions that conform to this aspect. The reason is that statehood can be endangered either by transferring too many powers or the supranational power, which in this case is the EU, which was formed by the will of the member states. At the same time, it should not constitute a restriction upon the EU integration or a denial of common exercise of competencies.

It may be appropriate to state that the EU is a test case determining whether member states’ sovereignty are transformed. Those favouring state sovereignty see the EU as either an intergovernmental state permitting states to maintain their prerogatives, or a federal state with primacy rights. Others see the EU as a post-sovereign entity that regulates based solely on debatable positive or negative rights. Considering the discussion in this essay, it could be stated that both the EU law and the state law are institutional in character, although the former may not be as coercive or enforceable in nature as the latter except through the ratification and action by the latter. EU law, thus, needs to acquire the status of the rule of law subject to the ratification of member states. This is validated by the provisions of the TFEU or the principles of direct effect. Thus, the EU law does not limit sovereign rights. It is the member states that define the extent of this limitation.

Conclusion

The principle of primacy of EU law is the fundamental principle from where the discussion of enforceability of EU law or the limitation of the member states’ rights and sovereignty commences. However, this essay concludes that the criteria for declaring the limitation of states’ sovereign rights is not clearly established. Hence, sovereignty of the member states cannot be ignored. It has to find a formal expression in the EU law regime.

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EU law has to be flexible given that a state’s legal regime is required to meet the new political and social changes. The plurality of legal order serves the overall objectives of EU uniformity that unites the member states. It allows flexibility in both the EU and states’ legal orders allowing them to adapt to both domestic and supranational changes.

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